This sample agreement is provided for information only. If you would like to obtain a copy of an agreement for redlining or customizing to fit your specific needs, please contact NCAR.
This Fee-for-Service Agreement (“Agreement”) is entered into effective as of the date of execution by the last signing Party (the “Effective Date”), by and between the Board of Regents of the Nevada System of Higher Education, on behalf of the University of Nevada, Reno (“University”), Nevada Center for Applied Research (“NCAR”) and ___ (“Client”). NCAR and Client (each a “Party,” and collectively the “Parties”) agree as follows:
- Point of contact, address and phone number.
Shared Research Facilities Coordinator
Nevada Center for Applied Research
1664 N. Virginia St, MS 0525
Reno, NV 89557
- Statement of Services. NCAR agrees to provide the following service(s) (attach additional pages if necessary) (collectively, the “Services”):
Notwithstanding the foregoing description of the Services, Client expressly represents and warrants that no sample or other material or product Client furnishes to NCAR for testing contains, in whole or in part, any controlled substance, including without limitation marijuana or any other THC containing substance. Client makes this representation and warranty as a material inducement to NCAR to enter into this Agreement.
- Principal Investigator. The Services will be supervised by ______ (“Principal Investigator”). If, for whatever reason, Principal Investigator is unable to continue to develop this project and a successor, acceptable to both NCAR and Client, is not available, this Agreement shall be terminated as provided in Section 6(a), below.
- Term; Delivery Date. NCAR agrees to provide the Services within _____ from the Effective Date, but in no event shall the term of this Agreement exceed two (2) years. Estimated delivery date for the Services is _______.
- Payment. Client shall pay NCAR the fee of up to and no more than ______ for performing the Services. Payment shall be made in accordance with the following schedule:
- __% due upon Client’s execution of the Agreement;
- __% due ___ days from the start date of the Services;
- __% due ___ days after period of performance ends.
- Either Party may terminate this Agreement for convenience and without cause at any time upon giving at least seven (7) days’ prior written notice to the other Party.
- In the event that either Party commits any breach of or default in any of the terms or conditions of this Agreement, and also fails to remedy such default or breach within thirty (30) days after receipt of written notice thereof from the other Party, the Party giving notice may, at its option and in addition to any other remedies which it may have at law or in equity, terminate this Agreement by sending written notice of termination to the breaching Party, and such termination shall be effective as of the date of the receipt of such notice.
- In the event no funds or insufficient funds are appropriated and budgeted or are otherwise available to NCAR in any fiscal period for obligations due from NCAR under this Agreement, including but not limited to providing the Services, then this Agreement shall terminate on the last day of the fiscal period for which appropriations were received, without penalty, charge, or expense to NCAR of any kind whatsoever. NCAR agrees to provide written notice to Client of this eventuality, should it occur.
- Upon termination of this Agreement for any reason, Client shall reimburse NCAR for all costs and non-cancelable commitments incurred in the performance of the Services and not yet paid for.
- Client Indemnification. Client shall indemnify, defend (with counsel of NCAR’s choosing), and hold harmless NCAR and its respective regents, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, injury to person or property, liabilities, penalties, fines, lawsuits, judgments, and expenses (including without limitation reasonable legal fees and costs) of any kind or amount whatsoever, which directly or indirectly result from or arise out of any act or omission of Client, its respective affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with this Agreement. Client’s indemnity obligations under this Section shall survive the termination of this Agreement.
- NCAR Indemnification. To the extent limited in accordance with NRS 41.0305 to NRS 41.039, inclusive, NCAR shall indemnify, defend, and hold harmless Client and its respective officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, injury to person or property, liabilities, penalties, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which directly or indirectly result from any negligent act or failure to act by NCAR or any of its officers or employees, which may occur in connection with this Agreement. NCAR will assert the defense of sovereign immunity as appropriate in all cases, including malpractice and indemnity actions. NCAR’s indemnity obligation for actions sounding in tort is limited in accordance with the provisions of NRS 41.035.
- Waiver of Consequential Damages. Notwithstanding anything to the contrary contained in this Agreement, and to the maximum extent permitted by law, in no event will NCAR be responsible or liable to Client for any incidental damages, consequential damages, exemplary damages of any kind, lost goodwill, lost profits, lost business, and/or any indirect economic damages whatsoever regardless of whether such damages arise from claims based upon contract, negligence, tort (including strict liability or other legal theory), or a breach of any covenant (express or implied) of this Agreement, and regardless of whether NCAR was advised or had reason to know of the possibility of incurring such damages in advance.
- No NCAR Representations or Warranties. NCAR MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SERVICES OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND HEREBY EXCLUDES AND DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. THE SERVICES ARE PROVIDED “AS IS.” CLIENT AND ITS EMPLOYEES USE THE SERVICES AT THEIR OWN RISK.
- Intellectual Property. The Parties retain ownership of any intellectual property created prior to the Effective Date, and no license to such is implied. In the event that new intellectual property is created during the term of this Agreement, ownership of such intellectual property shall follow inventorship or authorship. Intellectual property created solely by Client shall be owned by Client. Intellectual property created solely by NCAR personnel shall be owned by NCAR. Intellectual property created by both Client and NCAR personnel shall be jointly owned, and the Parties shall negotiate in good faith the management and disposition of such intellectual property.
- Proprietary Data. Except as otherwise required by law, including but not limited to pursuant to a valid court order or as required under the Nevada Public Records Act, NCAR will exercise reasonable efforts to maintain in confidence proprietary information Client discloses or submits to NCAR that is designated in writing as confidential information at the time of disclosure ("Confidential Information"). Notwithstanding any contrary designation by Client, Confidential Information does not include information:
- generally known or otherwise available in the public domain through no act of NCAR;
- already owned or possessed by NCAR at the time of Client’s disclosure;
- independently discovered or developed by NCAR;
- lawfully obtained by NCAR from a third party without any obligation of confidentiality; or
- approved for release upon Client’s prior written consent.
NCAR retains the right to refuse to accept any such information which is not considered to be essential to the completion of the Services. NCAR’s obligations under this Section shall survive and continue for one (1) year after this Agreement ends.
- Export Controls. Client further expressly acknowledges and agrees that:
- Client shall comply with all applicable United States and foreign laws and regulations controlling the export of technical data, computer software, laboratory prototypes, and all other export controlled commodities;
- Client accepts full responsibility for ensuring appropriate controls, including the implementation of effective technology control plans as applicable, with respect to the work it undertakes in connection with this Agreement that is subject to U.S. export control laws, including, but not limited to, the International Traffic in Arms Regulations and the Export Administration Regulations;
- NCAR Services, work, materials, equipment, or facilities utilized in the fulfillment of this Agreement will not be used for a purpose prohibited by applicable export control laws, including those related to nuclear, chemical, or biological weapons proliferation, and missile technology;
- Client shall not, directly or indirectly, re-export any controlled commodities to which it gains access under this Agreement, unless the required authorization and/or license is obtained from the proper government agency(ies) prior to export;
- Client shall not provide NCAR with any export-controlled items (e.g., commodities, software, information, or technology) without sufficient prior written notice and information, including Export Controlled Classification Numbers (ECCNs) for EAR-controlled items, U.S. Munitions List (USML) categories if ITAR-controlled, or other relevant identifying information. In the event its necessary to disclose technical data that are regulated under export controls, Client shall clearly mark such data as “Export Controlled;”
- Client shall guarantee that its research under this Agreement will not include the participation, at any level, of companies and/or persons on the Denied Persons List; the Unverified List; the Entity List; the Specially Designated Nationals List; the Debarred List; or the Nonproliferations Sanctions List; and
- Without limiting to the indemnification requirements contained in Section 7a, Client shall indemnify, defend (with counsel of NCAR’s choosing), and hold harmless NCAR and its respective regents, officers, agents, employees, and permitted successors and assigns from and against any and all claims, losses, damages, injury to person or property, liabilities, penalties, fines, lawsuits, judgments, and expenses (including without limitation reasonable legal fees and costs) of any kind or amount whatsoever, which directly or indirectly result from or arise out of Client’s violation of ITAR, EAR, and/or any other export control regulation mandated by federal law. Client’s indemnity obligations under this Section shall survive the termination of this Agreement.
- Publicity. Neither Party shall use the name of the other, or that of any of its regents, trustees, officers, faculty, students, employees, or agents, or any trademark owned by the other in any advertising or other form of publicity without the advanced written permission of the other Party. Notwithstanding the foregoing, NCAR may disclose the existence of this Agreement in a press release, on-line, or otherwise, throughout the life of this Agreement with Client’s prior written approval, which shall not to be unreasonably withheld. Further, the Parties agree to cooperate with each other in preparing, reviewing, and approving such disclosures, either Party’s approval for each disclosure not to be unreasonably withheld.
- Force Majeure. If either Party is delayed or prevented from the performance of any act required hereunder (excluding Client’s payment obligations) by reason of strikes, failure of public transportation, civil or military authority, inability to procure materials, governmental restrictions, governmental regulations, governmental controls, act of public enemy, pandemics, epidemics or other outbreaks of diseases or other infections, accidents, fires, explosions, or acts of God, including, without limitation, earthquakes, floods, winds, or storms, or other similar cause without the fault and beyond the control of the Party obligated, performance of such act shall be excused for the period of delay.
- No Waiver. Failure to declare a breach or the actual waiver of any particular breach of the Agreement or its material or nonmaterial terms by either Party shall not operate as a waiver by such Party of any of its rights or remedies as to any other breach.
- Choice of Law; Venue. This Agreement is subject to and shall be interpreted in accordance with the laws of the State of Nevada. The Parties consent to the personal jurisdiction of any state or federal court of competent jurisdiction located in Washoe County, Nevada, and to the service of process by any means authorized by any such state or federal court or under the laws of the State of Nevada. Venue for any legal dispute hereunder shall be Washoe County, Nevada.
- Reservation. Nothing contained this Agreement shall be construed to waive or limit NCAR’s defense of sovereign immunity, which defense is hereby expressly reserved, nor to waive or limit the protections afforded to NCAR under NRS 41.0305 to 41.309, inclusive.
- Severance. The provisions hereof are severable, and if any provision contained in this Agreement is held to be unenforceable by any court of competent jurisdiction, this Agreement shall be construed as if such provision did not exist and the non-enforceability of such provision shall not be held to render any other provision(s) of this Agreement unenforceable.
- Assignment. This Agreement shall be binding upon and inure solely to the benefit of the Parties, and shall not be assignable by either Party without the prior written consent of the other Party. Any assignment made in violation of this Section shall be void.
- No Partnership. Nothing in this Agreement shall be deemed in any way to create between the Parties any relationship of partnership, joint venture, or association, and the Parties hereby disclaim the existence of any such relationship. The Parties agree that Client, its agents and employees are not agents or employees of NCAR. Client shall be solely responsible for the actions and omissions of its agents and employees under this Agreement.
- Exhibits; Order of Precedence. Any exhibits referred to herein are made a part of this Agreement by reference; however, in the event of a conflict between the terms of such exhibit or any other document incorporated herein and the terms of this Agreement, the terms of this Agreement shall govern.
- Entire Agreement. This Agreement, including any incorporated exhibits, contains the entire agreement between Client and NCAR regarding the subject matter hereof. This Agreement supersedes any prior agreements, understandings or negotiations, whether written or oral. This Agreement may be amended only through a written document executed by all Parties. Without limiting the forgoing, no terms, provisions, or conditions of any purchase order issued by Client will have any effect on the Parties’ obligations under, or otherwise modify, this Agreement.
- Counterparts/Electronic Signatures. This Agreement may be executed in any number of counterparts and such counterparts may be combined to establish a fully executed document. In addition, an electronic signature shall be valid for all purposes.
- Effectiveness. This Agreement shall not become effective or in force until all of the below-named Parties have fully executed this Agreement as indicated by their signatures.
(Name, title and date required)
Board of Regents of the Nevada System of Higher Education, on behalf of the University of Nevada, Reno, Nevada Center for Applied Research
(Signature of Carlos Cardillo, Director, NCAR, and date required)
(Signature of Charlene Hart, Assoc. VP, Research Admin., and date required)