Document2

REV 6/23 (S. Landis)

If the entity is providing “vendor” type of services/goods as in-kind cost share, then do not include the cost principles shown in this document and delete the sentence “All cost share must be allowable under federal guidelines in order to be used as cost share.”

[DATE]

[Sponsor]

[Address]

[Dear ]:

Subject: Financial Cost-Share Reporting for “[Project Title];”

UND Fund-Project ________-UND00_____________; EERC Fund ________

The [_______________________] (Prime Sponsor) recently awarded the University of North Dakota Energy & Environmental Research Center (EERC) funding for the subject Project (the Project). [Sponsor’s Name] (Sponsor) agrees to contribute in-kind cost-share funding to the Project in the amount of US$XX,XXX in the form of ___________________ [technical assistance and review of project goals, procedures and results, supplies and materials, equipment, software, capital expenditures, etc. ] as further described within the attached Enclosure One and in accordance with this agreement (Agreement). The period of performance for this portion of the Project is [_________ __, 201X, through ________ __, 201X] [Period of Performance for cost-share may be different than the Project Period of Performance]. The EERC and Sponsor are sometimes hereinafter referred to individually as a “Party” and collectively as the “Parties.”

[INSERT COST-SHARE CONTRIBUTION SCHEDULE TABLE, IF APPLICABLE]

[Example: [Sponsor] Cost-Share Contribution Schedule

Year 1	Year 2	Year 3	Year 4	Total
US$0	US$1,124,264	US$1,124,264	US$1,124,264	US$3,372,792

End Example]

Sponsor shall submit in-kind cost-share amounts and a narrative of the Project activities for which such costs were incurred by e-mail to the EERC Contracts Officer [Insert Officer’s name and e-mail address], on a monthly basis within thirty (30) days after the close of the calendar month [Discuss with PM to make sure the monthly requirement fits with the project needs, otherwise alter to fit situation]. A sample format is enclosed for use in submitting these costs as (Enclosure Two). All in-kind cost share must be allowable in accordance with 2 CFR Part 200, as amended by 2 CFR Part 910, and the applicable federal cost principles listed below in order to qualify as Sponsor’s cost share commitment.

ADD APPLICABLE COST PRINCIPLES FROM BELOW]:

For Commercial Entities: The applicable cost principles outlining allowable costs are established at Federal Acquisition Regulation (FAR) Part 31.2 (Cost Principles for Commercial Organizations) and FAR Part 42.7 (Indirect Cost Rates).

For All Other Entities: The applicable cost principles outlining allowable costs are established at 2 CFR Part 200, Subpart E, Cost Principles.

The Parties recognize the importance and necessity of the cost-share support. If the agreed-upon level of cost share is not reached, nor adequate documentation submitted, then the Parties will arrive at a mutually amicable solution to address the shortcoming and any consequences that may arise. Potential remedies include, but are not limited to, securing alternate in-kind cost share, provision of a cash contribution by the Sponsor equivalent to the shortfall of cost share, revision of Project scope, etc. Any such remedy will likely necessitate the explicit concurrence of the Prime Sponsor(s).

ADD CONFIDENTIAL INFORMATION PROVISIONS

If no Confidential Information is Disclosed

During the course of this Agreement, it is not anticipated that confidential or proprietary information will be disclosed. Should it become necessary for either Party to disclose confidential or proprietary information, a modification will be prepared and executed by the Parties.

If only the EERC’s Information is Disclosed

Sponsor shall maintain in strict confidence, and shall not disclose or permit others to disclose, the content of any and all materials of any kind or nature that is provided to the Sponsor by the EERC and marked confidential.

If both Parties’ Information is Confidential

Sponsor and the EERC consider certain data, know-how, and other privileged information which may be disclosed between the Parties to be confidential and proprietary. The Parties agree to maintain in confidence such data, know-how, and other privileged information (including without limitation commercial and financial information and trade secret) that have not been publicly released, published, or patented (hereinafter referred to collectively as Information).

In order to be maintained in confidence under this section, Information must be marked confidential. In the event of oral disclosures, the Information will be reduced to writing within thirty (30) days of disclosure and submitted to the receiving Party to remain confidential.

The Parties recognize the proprietary rights of the disclosing Party in and to the Information and the confidential nature of the Information. Thus, the Parties agree to take every reasonable precaution to safeguard and treat the Information as confidential and to take every appropriate action by instruction, agreement, or notice to its directors, officers, agents, and employees of the confidential and proprietary nature of the Information submitted by the disclosing Party. Reasonable precautions to safeguard the Information shall mean using a standard of care which is no less stringent than that which the receiving Party uses to protect its own confidential Information.

Always Include Foundation Language:

The EERC may share Information with its affiliate, the Energy and Environmental Research Center Foundation d/b/a , as necessary to effectuate the Purpose of this Agreement. In all cases, the Information shall be protected by measures no less stringent than those contained in this Agreement.

The confidentiality requirements do not apply to Information that is a) already known by the receiving Party, b) disclosed by a third party having a bona fide right to do so, c) presently in the public domain, d) independently developed by the receiving Party, or e) disclosed under operation of law with notification to the Disclosing Party of such required disclosure, or otherwise fails to qualify for at least one exception to North Dakota’s open records laws.

The [Prime Sponsor] of the Project will have the right to examine/review all confidential Information of this Project as necessary to evaluate the subject Project and Project progress. In addition, any confidential Information submitted by Sponsor that is included in the technical progress reports will be submitted in a separate appendix, and [Prime Sponsor] will be requested to hold that appendix in confidence for a period of five (5) years in accordance with the Energy Policy Act.

Other than the process described for progress reports, it is hereby agreed between the Parties that the Information will be held in confidence for a period of six (6) years from disclosure or until written permission to disclose is given by the disclosing Party, whichever is shorter.

OR if we want to incorporate an existing NDA into this agreement, the following words can be used as a guide for inclusion in the agreement; however, remember to review the terms and conditions of both the NDA and this agreement to assure there are no contradictory clauses.

Sponsor and the EERC agree that the terms of confidentiality regarding this Agreement shall be governed by the provisions of the confidentiality agreement executed by the Parties having an effective date of __________, 201X (hereinafter referred to as the “Confidentiality Agreement”).

The Confidentiality Agreement is appended hereto as Enclosure Three and incorporated with the following amendment:

Paragraph numbered ___(insert number) is replaced in its entirety with the following:

“The purpose of the disclosure(s) is to allow the Parties to evaluate and discuss potential research projects and to evaluate, discuss, and facilitate the performance of a research project.”

INTELLECTUAL PROPERTY PROVISIONS

If no IP is anticipated

It is not anticipated that this Project will result in any inventions, discoveries, or improvements. However, the EERC will promptly notify Sponsor and Prime Sponsor if any inventions, discoveries, or improvements are developed under this Project which are potentially patentable or otherwise protectable.

Such notification shall be marked confidential. The Parties recognize the proprietary rights of the EERC in and to the notification and the confidential nature of the notification. It is hereby agreed by the SPONSOR that the disclosed information will be held in confidence for a period of six (6) years [or five (5) years if matched to federal funds] from notification or until written permission to disclose is given by the EERC, whichever is shorter.

In the event that intellectual property (IP) with the potential to generate revenue to which the EERC is entitled is developed under this Agreement, such IP, including rights, title, interest, and obligations, may be transferred to the EERC Foundation, a separate legal entity.

The Sponsor is aware that the EERC is also receiving federal funding for the Project and that the EERC’s obligations to Sponsor regarding intellectual property such as patents, data, and copyrights that may be secondary to the EERC’s obligations to the U.S. federal government. Nothing in this Agreement prevents Sponsor from asserting its rights in such property against the U.S. federal government.

End of IP section

EQUIPMENT

The EERC shall retain title to all equipment purchased and/or fabricated by it or on its behalf with funds provided by SPONSOR under this Agreement.

INSERT THE FOLLOWING 2 PARAGRAPHS WHEN APPLICABLE:

All SPONSOR-provided equipment and assemblies of equipment shall be in full compliance with current applicable standards and codes established by U.S. federal, state, and local governments. Equipment for which the applicable U.S. Occupational Health and Safety Administration (OSHA) regulations call for approval by a Nationally Recognized Testing Laboratory (NRTL) shall be certified by an OSHA-approved NRTL or must be field-evaluated and marked by a NRTL. Electrical wiring materials and equipment shall be certified, listed, or labeled by a NRTL or must be field-evaluated and marked by a NRTL, unless otherwise approved by the North Dakota electrical executive director or designee. The end product of electrically operated equipment requires certification when such equipment utilizes multiple electric components, such as factory-installed fuses, capacitors, or resistors. NRTL testing must utilize a U.S. consensus-based evaluation standard, developed and maintained by a U.S. standards-developing organization.

The SPONSOR will be responsible for all costs associated with obtaining approvals/certifications for any item(s) provided by the SPONSOR that do not have the required approved/certification. Alternatively, the SPONSOR can provide an approved/certified item(s).

EXPORT CONTROL

If export-controlled technology or equipment is not anticipated, then include only the first two sentences.

The Parties acknowledge that any material, item, article, information, technical data, source code or services, or the direct products thereof provided by the other under this Agreement may be subject to U.S. export control laws and regulations, including, but not limited to, the International Traffic in Arms Regulations, the Export Administration Regulations, and sanctions regulations administered by the Office of Foreign Asset Controls of the U.S. Department of Treasury. Sponsor agrees, prior to providing or disclosing any material, item, article, information, technical data, or source code or services subject to U.S. export controls, to notify the EERC in writing that the material is export-controlled and shall include the identification and classification of any item or information that is export-controlled and an identification of any restrictions on the disclosure or use of the export-controlled item. The EERC shall have the right to decline or limit (a) the receipt of such information and (b) any task requiring receipt of such information. The EERC will not disclose or export any such materials, items, articles, information, technical data, source code or services, or the direct products thereof obtained by it pursuant to this Agreement to any destination or person if such disclosure or export requires an export license or other government authorization, unless the EERC obtains a license or other government approval prior to the export or disclosure, as applicable. If Sponsor fails to notify the EERC of Sponsor export-controlled information in accordance with this provision and the U.S. government imposes a fine or penalty upon the EERC because the EERC had disclosed or used such information in violation of applicable law, Sponsor will indemnify the EERC and hold it harmless from such fine or penalty. This provision shall survive the termination of this Agreement.

End of Export Control Section

Despite the possibility that one Party may have prepared the initial draft of this Agreement, the Parties agree that neither of them shall be deemed the drafter of this Agreement and that, in construing this Agreement in case of any claim that any provision hereof may be ambiguous, no such provision shall be construed in favor of one Party on the ground that such provision was drafted by the other.

In the event of default by Sponsor of the obligations under this Agreement, or in the event that [Prime Sponsor] terminates work by the EERC on the subject Project, then performance by Sponsor may be terminated by the EERC at any time by giving written notice. Such notice shall be effective upon the receipt of written notice by Sponsor.

Sponsor herein is an Independent Contractor, not a partner or joint venturer, and shall not act as an agent for the EERC, nor shall Sponsor be deemed to be an employee of the EERC for any purposes whatsoever. Sponsor shall not have any authority, either express or implied, to enter any agreement, incur any obligations on the EERC’s behalf, or commit the EERC in any manner whatsoever without the EERC’s express prior written consent.

Any changes, alterations, or modifications to this Agreement will be in writing and signed by the authorized officials of the parties hereto.

Sincerely,

Insert Officer’s Name

Contracts Officer

Contracts and Intellectual Property

Initials

Enclosures

The Parties hereto have executed this Agreement by their duly authorized representatives on the day and year last specified below.

SPONSOR NAME	UNIVERSITY OF NORTH DAKOTA ENERGY & ENVIRONMENTAL RESEARCH CENTER
By	By
Name	Name	Sheryl A. Eicholtz-Landis, CRA
Title	Title	Director of Contracts and Intellectual Property
Date	Date

ENCLOSURE ONE

SPONSOR NAME

COST-SHARE

ENCLOSURE TWO

SPONSOR NAME

Project Title

COST-SHARE REPORT

Period of Performance: Month XX, 200X, through Month XX, 200X

For the Month Ending on _________________

Major Cost Elements	Amount of In-Kind Cost Share for Current Billing Period	Cumulative Amount of In-Kind Cost Share from Inception	Committed In-Kind Cost Share Budget
Personnel	$0
Fringe Benefits (Rate ____ %)	$0
Travel	$0
Supplies/Freight/Other	$0
Indirect Cost (Rate ___%)*	$0
Total	$0

*Is the amount noted for these lines based on a percentage allocation? If so, is the rate approved for federal use?

Description of Project activities performed for which cost share is being reported above:

________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Certification:

I certify to the best of my knowledge and belief that the reported expenditures are in accordance with the terms and conditions of the Agreement between [SPONSOR] and the University of North Dakota Energy & Environmental Research Center dated XX/XX/XX.

Date	Signature
Title
EERC Approvals:
Contracts Officer	Date
Project Manager	Date