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AGREEMENT BETWEEN THE RESEARCH FOUNDATION OF STATE UNIVERSITY OF NEW YORK AND INDEPENDENT CONTRACTOR R.F. Account #____________________________ MADE by and between THE RESEARCH FOUNDATION OF STATE UNIVERSITY OF NEW YORK, a nonprofit, educational corporation organized and existing under the laws of the State of New York, with its principal offices located at State University Plaza, Broadway, Albany, New York, 12246 (Mailing address: Post Office Box 9, Albany, New York 12201-0009), hereinafter referred to as the "FOUNDATION," and Dr. Ermanno Imbergamo, having a place of business at via Annibale Vecchi 80/F, Perugia, Italy (Mailing address: Ermanno Imbergamo, via Annibale Vecchi 80/F), an individual hereinafter referred to as "INDEPENDENT CONTRACTOR." WITNESSETH: WHEREAS, the FOUNDATION is acting for the benefit of the Research Foundation of SUNY ; sometimes referred to as the "UNIVERSITY"; and WHEREAS, the FOUNDATION has been awarded a certain contract from the New York University to carry out a project entitled "Subcontract from NYU for the continued advanced planning of the KOPIO Experiment "; (hereinafter the "PROJECT"); and WHEREAS, the FOUNDATION desires the INDEPENDENT CONTRACTOR to perform certain services for the FOUNDATION in connection with the PROJECT; and WHEREAS, INDEPENDENT CONTRACTOR has represented to the FOUNDATION that INDEPENDENT CONTRACTOR is competent, willing and able to perform such services for the FOUNDATION. NOW, THEREFORE in consideration of the premises and the mutual covenants and agreements contained herein it is mutually agreed by and between the respective parties as follows: 1. Scope of Work INDEPENDENT CONTRACTOR agrees to perform, as an independent Contractor, and not as an agent or employee of the FOUNDATION, all of the services set forth in Exhibit "A" appended hereto and made a part hereof to the satisfaction of the FOUNDATION's Principal Investigator, Michael D. Marx. 2. Compensation In full and complete consideration of INDEPENDENT CONTRACTOR's performance hereunder, the FOUNDATION agrees to compensate INDEPENDENT CONTRACTOR approximately 25000 Dollars. 3. Term and Termination Unless sooner terminated as provided herein, this Agreement shall continue in full force and effect from April 15th 2005 through December 31st 2005. It is understood and agreed that the FOUNDATION may terminate this Agreement upon written notice by registered mail addressed to INDEPENDENT CONTRACTOR at the address indicated herein, or such other address as INDEPENDENT CONTRACTOR may designate in writing, whenever the FOUNDATION determines, in its discretion, that such termination would be in the best interests of the FOUNDATION. It is understood and agreed, however, in the event that FOUNDATION has evidence that INDEPENDENT CONTRACTOR is in default upon any of its obligations hereunder, FOUNDATION shall be entitled to either suspend the contract until an acceptable remedy is established, or to terminate the agreement. Such termination shall be effective immediately upon receipt of official written notification from FOUNDATION. FOUNDATION shall also be entitled to pursue any rights or remedies which FOUNDATION may have against INDEPENDENT CONTRACTOR by reason of such default, and FOUNDATION may withhold any payments to INDEPENDENT CONTRACTOR for the purpose of set-off until such time as the exact amount of damages may be determined. 4. Rights in Work Product INDEPENDENT CONTRACTOR agrees that material produced by INDEPENDENT CONTRACTOR hereunder shall be considered "work for hire" which shall be owned by FOUNDATION. INDEPENDENT CONTRACTOR agrees that INDEPENDENT CONTRACTOR shall not claim or assert any proprietary interest in any of the data or materials required to be produced or delivered by INDEPENDENT CONTRACTOR in the performance of INDEPENDENT CONTRACTOR's obligation hereunder, and hereby assigns all rights, title and interest in said data and materials to FOUNDATION. INDEPENDENT CONTRACTOR warrants any material produced by INDEPENDENT CONTRACTOR hereunder shall be original except for such portion from copyrighted works as may be included with the permission of the copyright owners thereof, that it shall contain no libelous or unlawful statements or materials, and will not infringe upon any copyright, trademark, patent, statutory or other proprietary rights of others, and that INDEPENDENT CONTRACTOR will hold harmless the FOUNDATION from any costs, expenses and damages resulting from any breach of this warranty. INDEPENDENT CONTRACTOR further agrees not to publish, permit to be published, or distribute for public consumption, any information, oral or written, concerning the results or conclusions made pursuant to this Agreement without the prior written consent of the FOUNDATION. Notwithstanding the foregoing, INDEPENDENT CONTRACTOR will retain ownership of intellectual property included in deliverables to the extent that said intellectual property has been independently developed by INDEPENDENT CONTRACTOR without Research Foundation financial support. With respect to such INDEPENDENT CONTRACTOR owned intellectual property, INDEPENDENT CONTRACTOR hereby grants to Research Foundation a royalty-free, nonexclusive license to use such intellectual property for purposes consistent with the Research Foundation's obligations under the grant or contract which funds this project. 5. Assignment It is understood and agreed that the services to be rendered by INDEPENDENT CONTRACTOR are unique and that INDEPENDENT CONTRACTOR shall not assign, transfer, contract or otherwise dispose of INDEPENDENT CONTRACTOR's rights or duties hereunder, in whole or in part, to any other person, firm or corporation. 6. Status of Parties The nature of the relationship which the INDEPENDENT CONTRACTOR shall have to the FOUNDATION pursuant to this Agreement shall be that of an independent contractor. In connection with its status as an independent contractor, INDEPENDENT CONTRACTOR hereby warrants that it is in compliance with all tax filing and similar requirements imposed on independent contractors, and acknowledges that it is solely responsible for paying income taxes, FICA taxes, and other taxes and assessments which arise from receipt of consulting payments under this Agreement. This Agreement shall not be construed to contain any authority either express or implied, enabling the INDEPENDENT CONTRACTOR to incur any expense or perform any act on behalf of the FOUNDATION. 7. Entire Agreement This Agreement represents the entire Agreement and understanding of the parties hereto and no prior writings, conversations or representations of any nature shall be deemed to vary the provisions hereof. This Agreement may not be amended in any way except by a writing duly executed by both parties hereto. 8. Compliance with Laws and Regulations: General Obligations a) In the performance of the work authorized pursuant to this agreement, INDEPENDENT CONTRACTOR agrees to comply with all applicable laws and regulations, as well as policies of the sponsor applicable to INDEPENDENT CONTRACTOR's performance hereunder, and the express terms of FOUNDATION's agreement with the sponsor, which shall be deemed to be inserted herein, and this agreement shall be read and enforced between the parties as though all such provisions were included verbatim herein. The following is optional language to be used when independent contractor is subject to federal debarment provisions (when issued under a federal grant, cooperative agreement, scholarship, or fellowship). b)CONTRACTOR acknowledges compliance with Executive Order 12549, as amended by Executive Order 12689, “Debarment and Suspension”, and 48 CFR 9.406-409; and must provide certification in accordance with Exhibit B which is attached to and made a part of this agreement. By executing this agreement, CONTRACTOR makes the required certification. The following is optional language to be used when subcontractor is subject to the NIH policy requiring education on the protection of human research participants for principal investigators receiving NIH contract awards for research. c) CONTRACTOR acknowledges and understands the NIH policy requiring education on the protection of human research participants for principal investigators, and all persons identified as key personnel, receiving NIH contract awards for research involving human research participants. CONTRACTOR must submit a description of the education as documentation that the requirement has been completed by the principal investigator, all persons identified as key personnel, including subcontractors or consultants, who are responsible for the design and conduct of the research under the contract. The description of education must include the persons’ names, the title of the education program completed by each named person, and a one-sentence description of the program. The documentation is to be furnished in the first progress report, or with the first deliverable submitted to NIH, after October 1, 2000, whichever occurs earlier. CONTRACTOR can meet the NIH education requirement by using readily available curricula, including the FOUNDATION’s short-term program for education on the protection of human research participants available at: http://www.rfsuny.org/ CONTRACTOR agrees to describe the education completed and submit documentation for replacement/substitution of the principal investigator, and all persons identified as key personnel, including subcontractors or consultants, who are responsible for the design and conduct of the research under the contract. The following is optional language to be used when subcontractor is subject to the HIPAA regulations regarding the protection of Individually Identifiable Health Information. d) Provisions Applicable to Receipt and Use of Individually Identifiable Health Information by Contractor, Subcontractor or Independent Contractor It is expected that CONTRACTOR will receive information from Research Foundation (RF) project staff members to enable CONTRACTOR to perform work and services for RF under this Agreement. Some of the information provided may be Individually Identifiable Health Information (IIHI) as defined in the Health Insurance Portability and Accountability Act (HIPAA) of 1996, and the regulations issued thereunder. CONTRACTOR is hereby granted permission to receive and use IIHI provided by RF project staff members for purposes of performing work and services under this Agreement, in consideration of which CONTRACTOR agrees to the following privacy provisions. CONTRACTOR will use appropriate safeguards to prevent use or disclosure of IIHI other than as provided by this Agreement. CONTRACTOR will not use or further disclose IIHI other than as required to perform contract work hereunder or as required by law. CONTRACTOR will report any unauthorized use or disclosure of IIHI that comes to CONTRACTOR’s attention to the RF. If CONTRACTOR shares IIHI with third parties, CONTRACTOR will assure that said third parties are subject to the same privacy obligations that are set forth in these provisions. CONTRACTOR will provide access to IIHI in accordance with 45 CFR 524. CONTRACTOR will make IIHI available for amendment, and incorporate amendments in accordance with 45 CFR 526. CONTRACTOR will make information available to account for disclosures in accordance with 45 CFR 164.528. CONTRACTOR will make its records regarding procedures and practices covering use and disclosure of IIHI available for purposes of determining CONTRACTOR’s compliance with these privacy provisions. As termination of this Agreement, CONTRACTOR will, if feasible, return or destroy IIHI received from the RF project staff members and retain no copies thereof. It is understood and agreed that RF may terminate this Agreement if the RF determines that CONTRACTOR is in material breech of the privacy provisions set forth above. 9. Liability to Third Parties If either INDEPENDENT CONTRACTOR or FOUNDATION is negligent in carrying out its obligations hereunder, the negligent party agrees to take responsibility for, and indemnify the innocent party against the consequences of said negligence, including claims of third parties for damages and expenses which arise from or are related to the negligent party's performance or failure to perform pursuant to this agreement. 10. Modifications This agreement may be changed, amended, modified or extended only by a writing duly executed by the respective parties hereto. 11. Governing Law Regardless of the place of physical execution or performance this agreement shall be construed according to the laws of the State of New York and shall be deemed to have been executed in the State of New York. 12. Order of Precedence In the event of any inconsistency between clauses 1-12 of this Agreement, and the attached Exhibit A, the inconsistency should be resolved by giving precedence to clauses 1-12. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. The Research Foundation of Independent Contractor State University of New York By__________________________ By Ermanno Imbergamo Date________________________ Date____________________ Exhibit A SCOPE OF WORK Develop a trigger algorithm, using information from the KOPIO detector to reduce the rate of data acquisition to less than one MHz with an efficiency acceptable for the physics of the experiment. The algorithm should be easily adaptable for an implementation on state of the art commercial electronics devices. Develop realistic simulations of the detector and use them to determine the performance of the algorithm on signal events and on background events, with emphasis on the efficiency for signal events and the overall rate. Report periodically the status of the work to the FOUNDATION's Principal Investigator and produce a written final report of the results of the work. Exhibit B The Research Foundation of SUNY P.O. Box 9, Albany, New York 12201-0009 ______________________________________________________________________________ CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS - LOWER TIER TRANSACTION ______________________________________________________________________________ PURPOSE Federal regulations prohibit participants in federal non-procurement transactions from purchasing goods and services from organizations excluded from participation in federal programs due to debarment or suspension. These regulations are set forth in the May 26, 1988 Federal Register. The Certification below must be returned to the Research Foundation office from which it originated. The form requires you to certify that neither your firm nor principals of the firm are debarred or suspended from participating in federal non-procurement transactions. In addition, although the certification refers to “proposals,” the form must be signed without modification even when an order, subcontract, or consulting agreement is not preceded by submission of a proposal. See reverse for certification instructions. CERTIFICATION (1) The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. (2) Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. _____________________________________________________ ___________________ Authorized Signature Date Exhibit B Instructions for Certification 1. By signing and submitting this proposal, the prospective lower tier participant is providing the certification set out on the reverse. 2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. 3. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. 4. The terms “covered transaction,” “debarred,” “suspended,” “ineligible,” “lower tier covered transaction,” “participant,” “person,” “primary covered transaction,” “principal,” “proposal,” and “voluntarily excluded,” as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. 5. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. 6. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled, “Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion -- Lower Tier Covered Transaction,” without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. 7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to check the Nonprocurement List. 8. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. 9. Except for transactions authorized under paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.
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