STATE OF NORTH CAROLINA 8/98 Rev: 7/99
ANALYSIS AND TESTING AGREEMENT
This Agreement entered into by and between the North Carolina
State University, c/o ________________________ (College or
Department)_____________________, Campus Box _____, Raleigh,
North Carolina, 27695-_____, (hereinafter referred to as UNIVERSITY),
and _______________________________________________ with a
principal place of business at _______________________________,
(hereinafter referred to as SPONSOR).
WHEREAS, the project contemplated by this AGREEMENT is of
mutual interest and benefit to the UNIVERSITY and the SPONSOR,
and will further the instructional, research, and public service
objectives of the UNIVERSITY in a manner consistent with its
status as a public educational institution; and
WHEREAS, SPONSOR desires to provide funding in support of
NOW, THEREFORE, the parties hereto agree as follows:
(1.) SCOPE OF PROJECT: The UNIVERSITY will use its best efforts
to undertake the testing protocol as described in Attachment
"A", hereby made a part of this AGREEMENT, and hereafter
referred to as "PROJECT".
(2.) PROJECT COORDINATOR: The project shall be under the
supervision of, from the (Department/Laboratory/Unit) of ______
who shall serve as University Project Coordinator. If for
any reason the Project Coordinator shall be unable to continue
to serve, and a successor acceptable to both parties is not
available, this AGREEMENT shall be terminated as hereafter
(3.) PERIOD OF PERFORMANCE: The activities of this PROJECT
shall be conducted during the period beginning _________ through
__________ . This period will be subject to modification or
renewal only by mutual written agreement of the parties hereto.
(4.) PAYMENT OF COSTS: In consideration of the UNIVERSITYS
performance hereunder, SPONSOR agrees to support the UNIVERSITYS
costs incurred conducting the activities as stated in Attachment
A, in the amount of _______________________ Dollars
($______). This amount shall not be exceeded by the UNIVERSITY
without the written authorization of the SPONSOR.
Payments shall be made by the SPONSOR according to the following
Invoice will be issued within 30 days after work has been
(5.) REPORTS: UNIVERSITY shall deliver to the SPONSOR a final
report showing the results of the activity performed. Said
report shall be due within ninety (90) days of completion
of the PROJECT. UNIVERSITY hereby grants SPONSOR an unlimited,
royalty-free, non-exclusive right and license to use the data
and information developed under the Project. UNIVERSITYS
use of such data and information shall be consistent with
the terms of this Agreement.
(6.) RIGHTS IN DEVELOPMENTS:
(a.) Title to all intellectual property , data or information,
owned, developed, conceived and reduced to practice by SPONSOR
prior to the start of the work under this AGREEMENT shall
remain the sole property of the SPONSOR (hereinafter referred
to as SPONSORs Pre-Existing Technology).
(b.) Intellectual property conceived or reduced to practice
under this AGREEMENT by one or more employees and/or students
of UNIVERSITY which result from or constitute improvements
in or additions to the SPONSORs Pre-existing technology,
including but not limited to any inventions, designs, techniques,
innovations or other discoveries, shall belong to SPONSOR,
provided such improvements or additions result from and could
be anticipated by the Protocol attached to this AGREEMENT
as Attachment A.
(c.) Intellectual property rights in all other inventions,
designs, techniques, innovations, or other discoveries not
designated as being the property of the Sponsor pursuant to
Subparagraphs (a) or (b) above, conceived or reduced to practice
under this AGREEMENT by one or more employees and/or students
of UNIVERSITY, shall belong to UNIVERSITY.
(d.) SPONSOR shall have an option to negotiate for a royalty-bearing,
exclusive license to any such intellectual property rights
belonging to UNIVERSITY under subparagraph (c) above, provided
SPONSOR must exercise its option by notice in writing within
three (3) months of the disclosure to it by UNIVERSITY of
the discovery, or within three (3) months following the completion
of the PROJECT.
(e.) UNIVERSITY will maintain for itself at all times a
royalty-free, nonexclusive, nontransferable license to any
intellectual property falling within subparagraph (6) (b)
or (c) hereof, such license to be limited to non-commercial
research and educational purposes.
(7.) WARRANTY: UNIVERSITY MAKES NO WARRANTIES, EXPRESSED
OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT
LIMITATION, THE OWNERSHIP, MERCHANTABILITY, OR FITNESS FOR
A PARTICULAR PURPOSE OF ANY GOODS OR SERVICES PROVIDED. The
UNIVERSITY makes no representation or warranty regarding the
actual or potential infringement of patents or copyrights
of third parties, and SPONSOR acknowledges that the avoidance
of such infringement in the use of the services related to
this AGREEMENT shall remain the responsibility of SPONSOR.
(8.) TERMINATION Performance under this AGREEMENT may be
terminated by either party upon sixty (60) days written notice.
Upon termination by either party, UNIVERSITY will be reimbursed
for all costs and noncancelable commitments incurred in performance
of the PROJECT prior to the date of termination in an amount
not to exceed the total commitment set forth in Paragraph
(9.) LIABILITY: The liability of the UNIVERSITY, as an agency
of the State of North Carolina, for bodily injury, property
damage, infringement of proprietary rights and patents, and
other items is limited by the North Carolina Tort Claims Act,
Article 31, sec. 143-291.
The SPONSOR will indemnify and hold harmless UNIVERSITY,
its trustees, officers, employees and agents from and against
any liabilities, damages, or claims (including attorneys'
fees) arising out of injuries (including death) or property
damage suffered by any person as a result of SPONSOR's negligence
or willful misconduct in the performance of this AGREEMENT
or from SPONSOR's use or possession of the results produced
(10.) HAZARDOUS MATERIALS: All materials provided by SPONSOR
must be accompanied by the appropriate environmental and safety
information for those materials as required by law.
The responsibility for and costs of disposal of all SPONSOR
provided materials remaining at the termination of the PROJECT
will rest with the SPONSOR. SPONSOR shall arrange for disposal
or removal of any remaining SPONSOR provided materials prior
to receipt of any final report of the PROJECT. The UNIVERSITY
may decline to accept projects that impose undue risk.
UNIVERSITY will observe all applicable safety precautions
and governmental requirements concerning handling of test
materials. SPONSOR and UNIVERSITY acknowledge that the selection
of PROJECT procedures, sites, and equipment, and the assignment
and supervision of personnel to be used in the conduct of
PROJECT hereunder rest under the sole and exclusive direction
(11.) PROPRIETARY INFORMATION: Any proprietary information
disclosed by one party to the other, including invention disclosures
made by UNIVERSITY to SPONSOR, shall be disclosed in writing
and designated as proprietary, or if disclosed orally, shall
be confirmed in writing and designated proprietary within
thirty (30) days of such disclosure. A party receiving proprietary
information hereunder, hereafter referred to as RECIPIENT,
agrees to use the proprietary information only for the purpose
of this AGREEMENT and further agrees that it will not disclose
or publish such information except that foregoing restrictions
shall not apply to:
(i) information which is or becomes publicly known through
no fault of RECIPIENT;
(ii) Information learned from a third party entitled to disclose
(iii) information already known to or developed by RECIPIENT
prior to receipt hereunder, or information independently developed,
at any time, by RECIPIENT personnel not privy to the proprietary
information, as shown by RECIPIENTs written records;
(iv) information which is published in the necessary course
of the prosecution of patent applications based upon inventions
developed pursuant to this AGREEMENT; or;
(v) information required to be disclosed by operation of law
(including, but not limited to, the NC Public Records Act)
or court order.
To the extent that any proprietary information owned by the
University is provided by the University to Sponsor in writing,
or if disclosed orally, confirmed in writing and designated
as the Universitys proprietary information within thirty
(30) days of such disclosure, the Sponsor agrees that it shall
maintain the confidentiality of such information consistent
with the terms of this Section 11.
The obligation of confidentiality imposed by this provision
shall expire three (3) years following the expiration or termination
of this AGREEMENT. Each party will use a reasonable degree
of care to prevent the inadvertent, accidental, unauthorized
or mistaken disclosure or use by its employees of proprietary
information disclosured hereunder.
(12.) USE OF NAMES: Neither party will use the name, marks,
or symbols of the other for any commercial purpose without
the express written permission of the other party.
(13.) NOTICES: Any notices required to be given or which
shall be given under this AGREEMENT shall be in writing, delivered
by first-class mail or facsimile, addressed to the parties
for SPONSOR for UNIVERSITY
(14.) INDEPENDENT PARTIES: For purposes of this AGREEMENT,
the parties hereto shall be independent contractors and neither
shall at any time be considered an agent or employee of the
other. No joint venture, partnership, or like relationship
is created between the parties by this AGREEMENT.
(15.) ASSIGNMENT: This AGREEMENT shall be binding upon and
inure to the benefit of the parties hereto and may be assigned
only to the successors of these parties. Any other assignment
by either party without prior written consent of the other
party shall be void.
(16.) GOVERNING LAW: This AGREEMENT is acknowledged to have
been made and shall be construed and interpreted in accordance
with the laws of the State of North Carolina, provided that
all questions concerning the construction or effect of patent
applications and patents shall be decided in accordance with
the laws of the country in which the particular patent application
or patent concerned has been filed or granted, as the case
(17.) CONSULTING: In the event that the University Project
Coordinator and/or the SPONSOR shall seek a consulting arrangement
with each other on the subject of this study during the period
covered by this AGREEMENT, such arrangement shall be reported
to the UNIVERSITY according to the Conflict of Interest and
External Pay Policies of the UNIVERSITY.
(18.) ENTIRE AGREEMENT: Unless otherwise specified herein,
this AGREEMENT embodies the entire understanding of the parties
for this project and any prior or contemporaneous representations,
either oral or written, are hereby superseded. No amendments
or changes to this AGREEMENT including, without limitation,
changes in the activities of the program, total estimated
cost, and period of performance, shall be effective unless
made in writing and signed by authorized representatives of
both parties. If any provisions stated in this AGREEMENT,
resulting purchase orders, and the project proposal are in
conflict, the order of precedence, beginning with the first
to last shall be (1) this AGREEMENT with attachments, (2)
the project proposal, and (3) the purchase order, it being
understood and agreed that any purchase order or similar document
issued by SPONSOR will be for the sole purpose of establishing
a mechanism for payment of any sums due and owing hereunder.
Notwithstanding any terms and conditions contained in said
purchase order, the purchase order will in no way modify,
or add, or take precedence to the terms of this AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this
AGREEMENT effective as of the date last hereinafter written.
SPONSOR DEPARTMENT HEAD North Carolina State University
By:: _________________ By:______________________ By:___________________________
Title: _________________ Title:____________________ Title:
Date: _________________ Date:___________________ Date:_________________________
Read and Understood by: