RESEARCH AGREEMENT
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This Research Agreement ("Agreement") is entered into and effective as
of November 24, 1997 by and between Pageant Technologies (USA) Inc., a
corporation having its principal place of business at 00 Xxxx Xxxxxxxx, Xxxx
Xxxx Xxxx, Xxxx (hereinafter referred to as "Sponsor") and the University of
Utah (Tax ID. # 00-0000000), a body politic and corporate of the State of Utah,
on behalf of the University of Utah Electrical Engineering located at 0000
Xxxxxxx Xxxxxxxxxxx Xxxxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000 (hereinafter referred
to as "University").
RECITALS:
WHEREAS, Sponsor wishes to have certain research services performed in
accordance with the scope of work outlined in this Agreement; and
WHEREAS, the performance of such research is consistent, compatible and
beneficial to the academic role and mission of University as an institution of
higher education; and
WHEREAS, University is qualified to provide such research services.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants,
conditions and undertakings herein set forth, the parties agree as follows:
1. Scope of Work. University agrees to perform for Sponsor certain
research services (the "Services") described in the Scope of Work set forth in
Appendix A, which is attached hereto and incorporated herein by this reference.
The Services shall be performed under the direction and supervision of Xxxxxxxx
Xxx, principal investigator, Department of Electrical Engineering.
2. Term. The term of this Agreement shall commence upon the effective
date hereof and shall continue until December 31, 1998 unless extended or
renewed by mutual agreement of the parties. Scope of work and final reports
shall be completed on or before July 31, 1998. Per mutual agreement of both
parties, personnel costs including fringe benefits and associated indirect costs
will be invoiced and paid until December 31, 1998, or for one year total
compensation for each identified employee whichever comes first, not to exceed
budget totals in paragraph 3.
3. Compensation and Payment.
3.1 Compensation. Sponsor shall pay to University a total of Two
hundred Eighty two thousand, five hundred forty nine Dollars ($282,549) (the
"Compensation") for performance of the Services under this Agreement. A budget
itemizing the costs for
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providing the Services is set forth in Appendix B, which is attached hereto and
incorporated herein by this reference.
3.2 Payment. Monthly progress payments shall be made by Sponsor
to University based upon monthly invoices submitted by University. The amounts
of all such progress payments shall be based upon University's progress in
performing the Services. Invoices submitted to Sponsor shall be paid by Sponsor
within thirty (30) days of receipt. The monthly invoices for services performed
shall identify direct costs, labor and the percent of work completed. Final
payment shall be made upon completion of the Services.
Compensation checks shall be payable to "The University of Utah" and shall be
delivered to Xxxx X. Xxxxxxxx, Manager, Research Accounting, 000 Xxxxx
Xxxxxxxxxx Xxxxxx, #000, University of Utah, Xxxx Xxxx Xxxx, Xxxx, 00000.
4. Reporting Requirements. University shall provide written reports to
Sponsor on the progress of the performance of Services as outlined or required
in the Scope of Work. A final written report shall be furnished to Sponsor upon
completion of the Services.
5. Equipment. All equipment, instruments and materials purchased or used
by University in connection with performance of the Services shall at all times
remain under the sole control and ownership of University.
6. Publication and Confidentiality.
6.1 Publication. In furtherance of University's role as a public
institution of higher education, it is necessary that significant results of
research activities be reasonably available for publication by the University,
and Sponsor acknowledges that University may publish the results of research
conducted in connection with this Agreement. Notwithstanding the foregoing,
University agrees that it shall not publish the results of research conducted in
connection with this Agreement, without the prior written consent of Sponsor,
until the expiration of six (6) months following the first to occur of either
the termination of this Agreement or submission of the final written report
required under Section 4 hereof. In the event University wishes to publish
research results prior to the expiration of the above described six (6) month
period, University shall first provide to Sponsor written notice of University's
intent to publish and a draft of such publication. Sponsor shall have thirty
(30) days after receipt of the draft publication to request in writing the
removal of portions deemed by Sponsor to contain confidential or patentable
material owned by Sponsor, or to request a delay in submission of the draft for
publication pending Sponsor's application for patent protection. In either
event, University shall have no obligation to delay publication of the draft for
longer than six (6) months following delivery of University's notice to Sponsor
of intent to publish. If University does not receive Sponsor's written response
to the notice of intent to publish within the thirty (30) day period, then
Sponsor shall be deemed to have consented to such publication. Information
supplied to University by Sponsor and identified by Sponsor as proprietary
information shall not be included in any material published by University
without prior written consent of Sponsor.
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6.2 Confidentiality. Sponsor acknowledges that University is a
governmental entity and thus subject to the Utah Government Records Access and
Management Act, Sec. 63-2-101 et seq., Utah Code Xxx. (1993 and Supp. 1995)
("GRAMA") and Section 53B-16- 301 et seq., Utah Code Xxx. (1993 and Supp. 1995).
Pursuant to GRAMA and Section 53B-16-301 et seq., this Agreement, and
confidential information provided pursuant hereto may be subject to public
disclosure. Any person who provides University with records that such person
believes should be protected from disclosure for business reasons must, pursuant
to Section 63-2-308 of GRAMA and Section 53B-16-304, provide University with a
written claim of business confidentiality and a concise statement of reasons
supporting such claim.
7. Indemnification.
7.1 Indemnification by University. University is a governmental
entity and is subject to the Utah Governmental Immunity Act, Section 63-30-1 et
seq., Utah Code Xxx. (1993 and Supp. 1995) (the "Act"). Section 63-30-34 of the
Act expressly limits judgments against the University, its officers and
employees to $250,000.00 per person and $500,000.00 per occurrence for bodily
injury and death and to $100,000.00 per occurrence for property damage. Subject
to the provisions of the Act, University shall indemnify, defend and hold
harmless Sponsor, its officers, agents and employees against any actions, suits,
proceedings, liabilities and damages that may result solely from the negligent
acts or omissions of University, its officers, agents or employees in connection
with this Agreement. Nothing in this Agreement shall be construed as a waiver of
any rights or defenses applicable to University under the Act, including without
limitation, the provisions of Section 63-30-34 regarding limitation of
judgments. University shall give Sponsor timely notice of any claim or suit
instituted of which it has knowledge that in any way, directly or indirectly,
affects or might affect Sponsor, and Sponsor shall have the right at its own
expense to participate in the defense of the same.
7.2 Indemnification by Sponsor. Sponsor shall indemnify, defend
and hold harmless University, its directors, officers, agents and employees
against any actions, suits, proceedings, liabilities and damages arising from
the negligent acts or omissions of Sponsor, its officers, agents or employees in
connection with this Agreement. Sponsor shall give University timely notice of
any claim or suit instituted of which it has knowledge that in any way, directly
or indirectly, affects or might affect University, and University shall have the
right at its own expense to participate in the defense of the same.
8. Compliance With Laws. In performance of the Services, University
shall comply with all applicable federal, state and local laws, codes,
regulations, rules and orders. University shall obtain, at its expense and as
part of the price for Services, all required government licenses, permits, and
approvals for the performance of the Services, except those licenses, permits
and approvals which the Scope of Work specifies will be obtained by Sponsor.
9. Patent and Inventions. The University shall own all rights, title and
interest in all inventions and improvements conceived or reduced to practice by
University or University personnel in the performance of the Services and may,
at its election, file all patent
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applications relating thereto. In consideration of Sponsor's support of
University in performance of the Services, University agrees to grant to
Sponsor, on such terms and conditions as University may specify, an option for
an exclusive license on any such inventions, improvements, applications or
patents. Sponsor's right to elect and exercise said option shall expire six
months after University has provided written notice to Sponsor of any such
invention, improvement, application or patent. The terms of any such license
that shall be negotiated shall be within industry standards of such invention,
improvement, application or patent. If the parties fail to reach agreement as to
the terms and conditions of such license within (60) sixty days, after the
Sponsor has exercised its right to acquire such license, then the terms of the
license shall be settled pursuant to the disputes resolution provisions set
forth in Section 14 herein. In the event University shall abandon its rights to
any such invention, improvement, application or patent, then University shall
assign to Sponsor all of University's rights, title and interest therein. This
shall occur if the University does not file a provisional or patent application
in respect to an invention or improvement within the (6) six months the
University has provided written notice to Sponsor of any such invention or
improvement.
10. Relationship of Parties. In assuming and performing the obligations
of this Agreement, University and Sponsor are each acting as independent parties
and neither shall be considered or represent itself as a joint venturer,
partner, agent or employee of the other. Neither party shall use the name or any
trademark of the other party in any advertising, sales promotion or other
publicity matter without the prior written approval of the other party.
11. Termination. This Agreement may be terminated by either party for
material breach, by giving written notice thereof to the other party. Such
termination shall be effective thirty (30) days after receipt of such notice. If
in such an instance the breach can be cured, the party shall have the right
during such (30) thirty day period to cure such breach. Termination shall not
relieve either party of any obligation or liability accrued hereunder prior to
such termination, or rescind or give rise to any right to rescind any payments
made prior to the time of such termination.
12. Uncontrollable Forces. Neither Sponsor nor University shall be
considered to be in default of this Agreement if delays in or failure of
performance shall be due to uncontrollable forces the effect of which, by the
exercise of reasonable diligence, the nonperforming party could not avoid. The
term "uncontrollable forces" shall mean any event which results in the
prevention or delay of performance by a party of its obligations under this
Agreement and which is beyond the control of the nonperforming party. It
includes, but is not limited to, fire, flood, earthquakes, storms, lightning,
epidemic, war, riot, civil disturbance, sabotage, inability to procure permits,
licenses, or authorizations from any state, local, or federal agency or person
for any of the supplies, materials, accesses, or services required to be
provided by either Sponsor or University under this Agreement, strikes, work
slowdowns or other labor disturbances, and judicial restraint.
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13. Miscellaneous.
13.1 Assignment. Neither party shall assign or transfer any
interest in this Agreement, nor assign any claims for money due to or become due
under this Agreement, without the prior written consent of the other party.
13.2 Entire Agreement. This Agreement, with its attachments,
constitutes the entire agreement between the parties regarding the subject
matter hereof and supersedes any other written or oral understanding of the
parties. This Agreement may not be modified except by written instrument
executed by both parties.
13.3 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties, their successors and permitted assigns.
13.4 Notices. Except as provided in Section 3 hereof regarding
payment of invoices, any notice or other communication required or permitted to
be given to either party hereto shall be in writing and shall be deemed to have
been properly given and effective: (a) on the date of delivery if delivered in
person during recipient's normal business hours; or (b) on the date of delivery
if delivered by courier, express mail service or first-class mail, registered or
certified, return receipt requested. Such notice shall be sent or delivered to
the respective addresses given below, or to such other address as either party
shall designate by written notice given to the other party as follows:
In the case of Sponsor:
Pageant Technologies (USA) Inc.
X.X. Xxx 000
Xxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
In the case of University:
University of Utah
Office of Sponsored Projects
0000 Xxxxxxx Xxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxxx
13.5 Governing Law. This Agreement shall be interpreted and
construed in accordance with the laws of the State of Utah, without application
of any principles of choice of laws.
13.6 Nonwaiver. A waiver by either party of any breach of this
Agreement shall not be binding upon the waiving party unless such waiver is in
writing. In the event of a written waiver, such a waiver shall not affect the
waiving party's rights with respect to any other or further breach.
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13.7 Execution by Counterpart. This Agreement may be executed
separately or independently in any number of counterparts, each and all of which
together shall be deemed to have been executed simultaneously and for all
purposes to be one Agreement.
13.8 Attorney Fees. The prevailing Party in any action or suit to
enforce the terms or conditions of this Agreement shall be entitled to recover
its costs of court and reasonable attorneys' fees incurred in enforcing the
terms or conditions of this Agreement.
14. Dispute Resolution. Except to the right of either party to
apply to a court of competent jurisdiction for a temporary restraining order, a
preliminary injunction, or other equitable relief to preserve the status quo or
prevent irreparable harm, any and all claims, disputes or controversies arising
under, out of, or in connection with the Agreement, including any dispute
relating to patent validity or infringement, which the parties shall be unable
to resolves within sixty (60) days shall be mediated in good faith. The party
raising such dispute shall promptly advise the other party of such dispute. By
not later than five (5) business days after the recipient has received such
notice of dispute, each party shall have selected for itself a representative
who shall have the authority to bind such party, and shall additionally have
advised the other party in writing of the name and title of such representative.
By not later than (10) days after the date of such notice of dispute, the party
against whom the dispute shall be raised shall select a mediator in the Salt
Lake City area and such representative shall schedule a date with such mediator
for a hearing. The parties shall enter into a good faith mediation and shall
share the costs equally. If the representative of the parties have not been able
to resolve the dispute within fifteen (15) business days after such mediation
hearing, then any and all claims, disputes or controversies arising under, out
of, or in connection with this Agreement, including any dispute relating to
patent validity or infringement, shall be resolved by final and binding
compulsory arbitration in Salt Lake City, Utah pursuant to Title 78, Chapter 31a
Utah code Xxx (1953), as amended, and shall be determined in accordance with the
Commercial Arbitration Rules of the American Arbitration Association to the
extent such rules are not in conflict with such law. The arbitrators shall have
no power to add to, subtract from or modify any of the terms or conditions of
this Agreement, not to award punitive damages. Any award rendered in such
arbitration may be enforced by either party in either the courts of the State of
Utah or in the United States District Court for the District of Utah, to whose
jurisdiction for such purposes University and Sponsor each hereby irrevocably
consents and submits. All costs and expenses, including reasonable attorney's
fees, of the prevailing party in connection with arbitration of such controversy
or claim shall be borne by the other party.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives effective as of the day and
year first written above.
UNIVERSITY OF UTAH PAGEANT TECHNOLOGIES (USA), INC.
"University" "Sponsor"
By: /s/ Xxxxx X. Xxxxxxxxxx By: /s/ Xxxxxxx Xxxxxxx
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(Signature) (Signature)
Name: Xxxxx X. Xxxxxxxxxx, Director Name: Xxxxxxx Xxxxxxx
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Office of Sponsored Projects (Please Print)
Title: Title: President
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Date: 11/26/97 Date: 11/26/97
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APPENDIX A
SCOPE OF WORK
By agreement between the University of Utah and Pageant Technology Inc., the
following work is to be performed by University faculty, staff and students
within the Department of Electrical Engineering including Hedco Labs, for the
purpose of producing a working prototype of a micron scale, integrated circuit
ferromagnetic nonvolatile random access memory, which will be referred to as
HFRAM.
WORK ONE
STEP ONE: RAMP-UP
1.1 Hire staff and students.
1.2 Obtain office and research space for staff and students.
1.3 Order appropriate ferromagnetic materials for use in a micron scale
memory cell.
1.4 Repair and enhance equipment needed for HFRAM development.
STEP TWO: SINGLE MEMORY CELL
2.1 Research appropriate ferromagnetic materials for use in a micron scale
memory cell.
2.2 Deposit, using appropriate methods, selected versions of the
aforementioned ferromagnetic materials on silicon or glass substances in
the micron range, as a "stick" normal to the plane of the substrate,
such stick to have an aspect ratio greater than 1:1.
2.3 Place around said stick a state-change conductor intimate to me stick,
of no more than 270 degrees rotation and insulated from it.
2.4 Manufacture, either prior or subsequent to such deposition, a magnetic
flux sensor/detector such as an InSb Hall Effect sensor intimate to the
stick, at one end, parallel to the plane of the substrate, and centered
to the axis of said stick.
2.5 Attach such electrical conductors to the state change and flux sensor
cell thus manufactured so hat electrical current may be applied to the
state change and sensor circuit of said memory cell.
2.6 Test said individual cell for state change, data retention, and sense
capabilities under a variety of conditions appropriate for such a
device, with power on, then with power off for data retention.
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2.7 Perform associated theoretical work to support experimental HFRAM
development.
STEP THREE: Matrixed memory cells
3.1 Construct a grouping of said cells as eight "bits", in a "byte,"
electrically interconnected, and test as above.
3.2 Construct a small grouping, or matrix/array of said bytes, electrically
interconnected and test as above.
3.3 Prepare a certain number of packaged dies with matrices of the order of
32 to 64 bytes of said cells to be tested as finished product. It is
understood that yield may be low for high bit count matrices/array.
WORK TWO
Conduct searches of existing data bases monthly or as requested to identify
emerging technologies and/or products which may fit into Pageant's business
strategy.
COMMENTS
Progress reports on Work One will be rendered on a quarterly basis or within 48
hours of encountering a situation which could adversely impact the intent of
this statement of work.
The University will take best efforts to produce an eight bit proof of concept
device as soon as possible after RAMP-UP to facilitate Pageant's marketing and
business strategy.
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APPENDIX B
ESTIMATED BUDGET
Post Doc's (50,000 + 16,500) $ 66,500
Technician (15,000 + 4,950) 19,950
UG Op Spt (12,500 + 1,125) 13,625
Tech Support (33,000 + 10,890) 43,890
HEDCO Lab 13,650
Supplies 15,000
Upgrades 10,000
Masks 15,000
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SUBTOTAL $197,615
Equipment 30,950
Overhead 54,344
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TOTAL $282,549
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