KNOWLEDGE MANAGEMENT LABORATORY (KML) CENTER CONSORTIUM MEMBERSHIP by by654321

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									                                         Knowledge Management Laboratory (KML)
                                         723 Seibert Rd, Suite 3 Phone: (618) 744–9848
                                         Scott AFB, IL 62225     E-mail: kml@cadrc.calpoly.edu
       Knowledge Management Laboratory




KNOWLEDGE MANAGEMENT LABORATORY (KML) CENTER CONSORTIUM MEMBERSHIP AGREEMENT

THIS KNOWLEDGE MANAGEMENT LABORATORY (KML) CENTER CONSORTIUM MEMBERSHIP AGREEMENT
(“Agreement”) is made and is effective as of December 1, 2009 (the “Effective Date”), by and between Cal Poly Corporation, a §501(c)
(3) nonprofit corporation with offices located at 1 Grand Ave. Building 38 Room 150 (“Corporation”), and the following entity (the
“Company”) (Corporation and Company each a “Party” and collectively the “Parties”):


COMPANY INFO                                                                           COMPANY POINT OF CONTACT (POC)

Company Name:                                                                          POC Name:
                                                                                                    LAST                FIRST          MID. INT.


Incorporated In:                                                                       Title:


Mailing Address:                                                                       Telephone:
                      STREET                                          BLDG/SUITE


                                                                                       Fax:
                        CITY                      STATE                     ZIP



Telephone:                                                                             Email:


Fax:




IN CONSIDERATION of the mutual promises made in this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which the Parties acknowledge, the Parties, intending to be legally bound, agree as follows:


1.        Introduction and Purpose. The Corporation is a §501(c)(3) nonprofit corporation, whose mission is to provide research
          administration services for California Polytechnic State University (herein after called ”University”) and is an agent for
          University. Corporation, together with the University has established the Knowledge Management Laboratory (KML) Center
          Consortium (hereinafter called “CONSORTIUM”). The purpose of this CONSORTIUM is to create a mechanism whereby
          organizations involved in Information Technology (IT) including commercial, government, and academic entities may
          collaborate with each other and University faculty, staff, and students to undertake research projects that produce timely
          and relevant advances to IT concepts, design principles, and implementation solutions. The goal of the CONSORTIUM is to
          explore and advance the technology in areas such as Service-Oriented Architecture (SOA), Business Process Management
          (BPM), net-centric deployment, information–centric representation, collaborative software agents, Natural Language Processing
          (NLP), semantic data mapping and cleansing, and autonomic computing.


          The CONSORTIUM activities will be carried out by certain University faculty, staff and students in collaboration with members
          of the CONSORTIUM.


          Any company may become a member of the CONSORTIUM, consistent with applicable state and federal laws and statutes, and
          the goals and objectives of the KML Center.
2.      Definitions.

A.      “Affiliate” with respect to Company means any legal entity that owns, is owned by, or is commonly owned with Company where
        “owns” means more than 50% ownership or the right to direct the management of the entity. “Affiliate” with respect to
        Corporation means CADRC, the Trustees of California State University, and California Polytechnic State University.

B.      “Confidential Information” means non-public information, know-how and trade secrets in any form, that:

        i.           Is designated as being confidential; or
        ii.          A reasonable person knows or reasonably should understand to be confidential.

        The following types of information are not Confidential Information. Information that:

              •      Is, or becomes, publicly available without a breach of this Agreement;
              •      Was lawfully known to the receiver of the information without an obligation to keep it confidential;
              •      Is received from another source who can disclose it lawfully and without an obligation to keep it confidential;
              •      Is independently developed; or
              •      Is a comment or suggestion volunteered by a party about the other party’s business, products or services.

C.      “Intellectual Property” or “IP” means all intellectual property rights throughout the world, whether existing under statute, at
        common law, or in equity, now known or hereafter recognized or in force, including: (A) rights associated with works of
        authorship, including but not limited to all exclusive and non-exclusive exploitation rights, copyrights, neighboring rights, and
        moral rights; (B) trademark, trade dress, service mark and similar rights; (C) trade secret rights and know how; (D) patents,
        designs, algorithms and other industrial property rights; (E) other proprietary rights of every kind and nature however
        designated, whether arising by operation of law, contract, license or otherwise; and (F) registrations, applications, renewals,
        extensions, continuations, divisions or reissues thereof.

3.	     Member	Fees	and	Benefits.		
        Annual membership is available at three levels as identified below with corresponding privileges, annual fees, and benefits.

                                                               MEMBERSHIP LEVELS
                                                                                                Levels
              Privileges
                                                                        Contributor            Associate                   Partner
              Annual Fee                                                 $10,000                $20,000                    $50,000
              Facilitated recruitment of graduates                           P                       P                       P
              Online Member Bulletin                                         P                       P                       P
              CADRC Currents Newsletter                                      P                       P                       P
              Conferences                                                    P                       P                       P
              Technical Reports and White Papers                             P                       P                       P
              Membership on Technical Committees                             P                       P                       P
              KML Seminars and Workshops                                     P                       P                       P
              Membership on Advisory Board                                                           P                       P
              Utilization of KML Equipment                                                           P                       P
              Utilization of KML Space for Meetings                                                  P                       P
              Installation of Non-KML Equipment                                                                              P
              Utilization of KML for Own Research                                                                            P

        A fee in support of the CONSORTIUM at the desired level of membership shall be paid to the CADRC, Cal Poly, San Luis
        Obispo as a lump sum effective October 1, prior to the onset of each fiscal year, or in four equal quarterly installments on October
        1, January 1, April 1, and July 1 of each year of sponsorship. Checks from COMPANY should be mailed to the Cal Poly

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CADRC   CALIFORNIA POLYTECHNIC STATE UNIVERSITY         1 GRAND AVENUE • SAN LUIS OBISPO, CA 93407        (805) 756-2841       info@cadrc.calpoly.edu
        Corporation Bldg 38 Room 102 One Grand Avenue, San Luis Obispo, CA 93407, made payable to the “Cal Poly Corporation”
        in support of the KML Center CONSORTIUM. Because research of the type to be explored by CONSORTIUM takes time and
        research results may not be obvious immediately, COMPANY should join CONSORTIUM with the intention of remaining a
        fee-paying member for at least two years.

        Upon payment of the membership fee, COMPANY will receive a letter from the Executive Director of the CADRC to formally
        appoint Company’s point of contact person to the CONSORTIUM.


4.      Consortium Organization and Bylaws.
        The organization and operation of CONSORTIUM are specified by the KML Center Bylaws that are attached to this Agreement.
        Each member will adhere to the Bylaws of the CONSORTIUM.

        There will be a KML Advisory Board composed of one representative of each Associate member and not more than two
        representatives of each Partner member organization. The KML Advisory Board makes recommendations on: (a) non-proprietary
        research projects to be supported by the CONSORTIUM; (b) the apportionment of resources to these research projects; and, (c)
        changes in the Bylaws of the CONSORTIUM. The operation of the KML Advisory Board is specified in the Bylaws.


5.	     Confidentiality.		
        Company may enter into or rely on existing separate confidentiality agreements between Company and each member of the
        CONSORTIUM for purposes of this Agreement. If Company has not entered into such separate agreement, the following terms
        will govern the disclosure and use of Confidential Information.

        The Parties acknowledge that in the course of this Agreement, they each may be exposed to or receive sensitive Confidential
        Information of the other Party or other members of the CONSORTIUM. Each Party agrees to maintain the other Party’s
        Confidential Information and that of other CONSORTIUM members disclosed hereunder for a period of five (5) years from
        the date of first disclosure, and not to use or disclose such Confidential Information without the consent of the other Party
        or applicable CONSORTIUM member, except as reasonably necessary to perform this Agreement and as expressly authorized
        in this Agreement; provided, however. In all cases, each Party shall be responsible and liable for any breach of this Agreement
        by any individual or entity to which it discloses the other Party’s Confidential Information, or that of other CONSORTIUM
        members disclosed hereunder, in the same manner and to the same extent that it is responsible for its own breach. Neither
        Party is required to restrict work assignments of representatives who have had access to Confidential Information. Neither
        Party can control the incoming information the other will disclose to it in the course of working together, or what that Party’s
        representatives will remember, even without notes or other aids. Each Party agrees that use of information in representatives’
        unaided memories in the development or deployment of the Parties’ respective products or services does not create liability
        under this agreement or trade secret law, and each Party agrees to limit what it discloses to the other accordingly. The Parties
        acknowledge that the improper use or disclosure of Confidential Information will cause irreparable harm to Party which owns
        such Confidential Information, and as such the aggrieved Party shall be entitled to seek equitable relief, including injunctive
        relief to the extent permitted by law, in addition to all other remedies.


6.      Intellectual Property.

A.      Pre-existing Intellectual Property. Each Party will own and retain all rights, title and interests to its Intellectual
        Property that exists before the Effective Date of this Agreement or which is independently created during the Term of this
        Agreement (collectively “Pre-existing IP”).

B.      Non-proprietary Research. Company may be invited to participate in non-proprietary research projects. If a research project
        is non-proprietary, Corporation will clearly and prominently designate it as such in its invitation. If Company agrees to
        participate in such non-proprietary research projects, Company acknowledges that the results of such projects will be made
        freely available to all CONSORTIUM members. As such, if Company contributes Intellectual Property to a non-proprietary
        research project, Company grants to Corporation and CONSORTIUM members a fully-paid, worldwide, perpetual, irrevocable,
        nonexclusive, nontransferable license to its applicable copyrights to use, reproduce, prepare derivative works from, distribute,


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CADRC   CALIFORNIA POLYTECHNIC STATE UNIVERSITY       1 GRAND AVENUE • SAN LUIS OBISPO, CA 93407        (805) 756-2841    info@cadrc.calpoly.edu
        perform and display its contribution for the purposes set forth in this Agreement. Notwithstanding any licensing obligations
        contained herein, Company retains all rights, title and interests in and to its contribution and there are no limitations whatsoever
        on Company’s ability to exercise any of its rights in its contribution or any portion thereof. For the avoidance of doubt, the
        foregoing license will not apply to Company’s commercially released products.

        Technical information resulting from non-proprietary projects or non-proprietary components of proprietary projects will be
        freely available to all CONSORTIUM members.


C.      Proprietary Research. Company and Corporation may agree to work together on proprietary research. Such proprietary
        research will be performed under a separate written agreement between the Parties, which will include terms to govern
        ownership of any resulting Intellectual Property rights.

        Technical information resulting from proprietary projects or proprietary components of non-proprietary projects will only be
        made available to CONSORTIUM members subject to the approval of, and license terms provided by, the owner of the IP.


D.      Publication of Research. University reserves the right to publish the results of any non-proprietary research supported by the
        CONSORTIUM. The publication of proprietary research will be subject to the approval of, and license terms provided by, the
        owner of the Intellectual Property (IP).


7.      TERM AND TERMINATION. The Agreement is effective until September 30, 2010 (the “Initial Term”). This Agreement
        shall be automatically renewed for successive one (1) year terms (each a “Renewal Term”, with the Initial Term and each
        Renewal Term comprising the Term), unless either Party terminates this Agreement with 90 days prior written notice. If
        Corporation terminates this Agreement prior to the end of the Initial Term or any Renewal Term other than for Company’s
        material breach of the Agreement, Corporation will refund to Company a pro-rata amount of Company’s membership fees for
        the period of time between the date of termination and the end of the Initial Term or Renewal Term.


8.      WARRANTY DISCLAIMERS; INDEMNIFICATION.

A.      Warranty Disclaimers. NEITHER PARTY NOR ITS AFFILIATES MAKES ANY WARRANTIES, WHETHER EXPRESS,
        IMPLIED OR STATUTORY, IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE
        IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY,
        SECURITY, ACCURACY, FUNCTIONALITY OR NON-INFRINGEMENT WITH RESPECT TO ITS PERFORMANCE UNDER
        THIS AGREEMENT OR THE CONTRIBUTIONS, FEEDBACK, SOFTWARE, PRODUCTS, APPLICATIONS, SERVICES,
        CONTENT, DATA OR OTHER MATERIALS PROVIDED TO THE OTHER PARTY IN CONNECTION WITH THIS
        AGREEMENT.

B.      Indemnification.

        Each Party shall defend, indemnify, hold the other, its Affiliates and their respective agents, directors, employees, officers,
        representatives, students, and volunteers (collectively, the “Indemnitees”) harmless from and against any and all claims, actions,
        suits and proceedings by unaffiliated third parties to the extent arising out of or in connection with the Party’s (including any
        licensee, contractor, agent, or anyone directly or indirectly employed by such Party for whose acts any of them may be liable)
        actions or activities as related to the use of the Premises at 723 Seibert Road (Suite 3), Scott AFB, Illinois including failure to
        comply with any of its obligations contained in this Agreement, except to the extent such loss or damage which was caused by
        the negligence or willful misconduct of the Indemnitees.

        The indemnification obligations under this Section 8(B) are contingent upon the Party seeking indemnity providing: (i) prompt
        written notice of claims for which it is seeking indemnification, and (ii) reasonably necessary assistance, information and
        authority for the indemnifying Party to defend the claim and perform its obligations under this Section. The indemnifying Party
        will reimburse the indemnified Party for its reasonable costs and expenses in providing any such assistance. The indemnifying
        Party will not settle any third party claim in a manner which would impose any obligation on the indemnified Party without
        first obtaining the indemnified Party’s consent, which consent will not be unreasonably withheld or delayed.

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CADRC   CALIFORNIA POLYTECHNIC STATE UNIVERSITY       1 GRAND AVENUE • SAN LUIS OBISPO, CA 93407        (805) 756-2841     info@cadrc.calpoly.edu
9.      EXCLUSION OF DAMAGES AND DAMAGES CAP. IN NO EVENT WILL EITHER PARTY OR THEIR AFFILIATES BE
        LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL,
        EXEMPLARY, PUNITIVE, OR SIMILAR DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOST
        DATA, OR LOST BUSINESS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY BREACH HEREOF
        UNDER ANY CIRCUMSTANCE OR LEGAL THEORY, INCLUDING WITHOUT LIMITATION NEGLIGENCE, STRICT
        LIABILITY, TORT, CONTRACT, WARRANTY, NON-INFRINGEMENT OR OTHERWISE, EVEN IF APPRISED OF THE
        POSSIBILITY OF SUCH DAMAGES OCCURRING. THESE LIMITATIONS SHALL APPLY EVEN IF THE REMEDIES
        OTHERWISE PROVIDED UNDER THIS AGREEMENT, AT LAW OR IN EQUITY, FAIL OF THEIR ESSENTIAL PURPOSE,
        AND REGARDLESS OF THE FORM OR CAUSE OF ACTION OR THE ALLEGED BASIS OF THE CLAIM. THIS SECTION 9
        DOES NOT APPLY TO BREACHES OF CONFIDENTIALITY OR INFRINGEMENT BY ONE PARTY OF THE OTHER’S
        INTELLECTUAL PROPERTY RIGHTS. EACH PARTY’S TOTAL, AGGREGATE LIABILITY ARISING OUT OF OR RELATED
        TO THIS AGREEMENT SHALL BE LIMITED TO TWO (2) TIMES THE MEMBERSHIP FEE PAID OR PAYABLE FOR 12
        MONTHS PRIOR TO THE APPLICABLE BREACH OR CLAIM.


10.     RESPONSIBILITY OF MEMBERSHIP.

A.      Company willingly embraces a collaborative approach for research and agrees to take responsibility in case of any action,
        complaint or proceeding brought by a third party, including other members, against the CONSORTIUM to the extent of damage
        caused, either by any of Company’s acts or omissions in relation to collaboration with USTRANSCOM, DOD or by any products,
        processes or services created and contributed to a research project by Company.

B.      The CONSORTIUM shall not be liable for any defaults of any products, processes or services created by any Member and jointly
        investigated through collaboration in the CONSORTIUM, including, for example, anomalies in the functioning or performance
        thereof.

C.      The Company agrees that it will carry adequate amounts of liability insurance, and other insurances that are appropriate for
        personnel, autos, property and business, for any activity in which the Company participates as part of the CONSORTIUM and/
        or at the Premises at 723 Seibert Road (Suite 3), Scott AFB, Illinois.


11.     MISCELLANEOUS PROVISIONS.


        a.         Governing Law. This Agreement will be interpreted and governed by the laws of the State of California without regard
                   to its conflict of laws rules. Application of the U.N. Convention of Contracts for the International Sale of Goods is
                   expressly excluded.

        b.         Independent Contractors. The relationship between the Parties established by this Agreement is that of independent
                   contractors, and nothing contained in this Agreement will be construed to constitute the Parties as partners, joint
                   venture partners, or franchisor/franchisees. Neither Party shall have the authority to make representations on behalf
                   of the other without the other Party’s express written consent.

        c.         No Waiver; Section Headings. No waiver of any breach or default or any failure to exercise any right hereunder shall
                   be construed as a waiver of any subsequent breach or default or relinquishment of any future right to exercise such
                   right. The headings in this Agreement are for convenience only and cannot be used in interpreting this Agreement.

        d.         Severability. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the
                   remaining provisions will nevertheless remain in full force and effect. To the extent consistent with applicable law, the
                   Parties agree to renegotiate in good faith any term held invalid and to be bound by the mutually agreed substitute
                   provision.

        e.         Force Majeure. Neither Party shall be liable for any failure or delay in its performance under this Agreement due to
                   causes that are beyond its reasonable control, including, but not limited to, an act of God, act of civil or military
                   authority, fire, epidemic, flood, earthquake, riot, war, terrorism, failure of equipment, failure of telecommunications


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CADRC   CALIFORNIA POLYTECHNIC STATE UNIVERSITY        1 GRAND AVENUE • SAN LUIS OBISPO, CA 93407       (805) 756-2841     info@cadrc.calpoly.edu
                  lines, lack of Internet access, sabotage, and governmental action.

         f.       Assignment. Neither Party may assign or delegate this Agreement or any of its rights or duties under this Agreement,
                  without the prior written consent of the other Party, except to an Affiliate.

         g.       Notices. Notices may be provided either by electronic or physical mail or express courier (charges prepaid) to the
                  Parties’ points of contact specified in this Agreement. Notices to Corporation must be sent to Legal Counsel, Cal Poly
                  Corporation Building 1 Grand Ave. 15 San Luis Obispo, CA 93407-0035. Each Party may specify changes to its point of
                  contact by giving notice to the other.

         h.       Restricted Rights and Compliance With Laws. Each Party agrees to comply with all applicable laws, including all
                  United States export laws and the laws of any other jurisdiction to which Company is subject. All such materials
                  provided by either Party are provided subject to such Party’s standard commercial agreement; products acquired for
                  use within or for any United States federal agency are provided with “LIMITED RIGHTS” and “RESTRICTED RIGHTS”
                  as defined in DFARS 252.227-7013 and FAR 52.227-19. Neither Party will export, directly or indirectly, any products
                  or technology provided under this Agreement to any country for which the U.S. Government or any agency thereof at
                  the time of export requires an export license or other government approval without first obtaining such license or
                  approval.

         i.       Entire Agreement; Survival. This Agreement constitutes the entire agreement between the Parties, and supersedes and
                  cancels all previous and contemporaneous communications with respect to its subject matter. The following Sections
                  shall survive the termination or expiration of this Agreement for any reason: 2, 5, 6, 7, 8(A), 9, and 10.

         j.       No Construction Against Drafter. The Parties agree that any principle of construction or rule of law providing that an
                  agreement shall be construed against the drafter of an agreement shall not apply to this Agreement.

         k.       No Third Party Beneficiaries. This Agreement is entered into solely between, and may be enforced only by, Corporation
                  and Company, and this Agreement shall not create or be construed to create any rights in any relying Party or other
                  third Parties.

         l.       Equitable Relief. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall
                  derogate from either Party’s right to seek equitable or injunctive relief to preserve the status quo or to prevent irreparable
                  harm.



IN WITNESS WHEREOF, this Agreement has been executed by duly authorized representatives of the parties.


Cal Poly CorPoration



Melissa Mullen, Sponsored Programs Manager


Date




ComPany



Printed Name


Title


Date
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CADRC     CALIFORNIA POLYTECHNIC STATE UNIVERSITY     1 GRAND AVENUE • SAN LUIS OBISPO, CA 93407         (805) 756-2841    info@cadrc.calpoly.edu

								
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