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Follow-on question - NCHRP Martha M. Taylor 14 May 1997 13:28 EST

A couple of weeks ago, I posted a request for information from recipients
of agreements from NCHRP.  I am now asking more specifically for advice and
guidance (from anyone).  The exact language (barring typos) that NCHRP
requires us to agree to is:

"(a) The parties agree that the contractor and its employees, agents,
subcontractors, and subgrantees (hereinafter referred to collectively as
"Contractor") will be primarily responsible for performing the work
required under the contract, and shall therefore be legally responsible for
and obligated to pay all claims arising out of contractor's negligent or
wrongful acts in performing such work, including all claims for bodily
injury (including death), personal injury, property damage, and other
losses, liabilities, costs and expenses (including but not limited to
attorneys fees) asserted against the Academy, its committee members,
officers, employees, and agents, by any third parties, whether or not
represented by a final judgment, where such claims arise out of any
negligent or wrongful act of Contractor.

(b) The term "wrongful act" as used herein shall mean any actual or alleged
negligent breach of duty or other tortious act or omission; willful
malfeasance; failure to comply with Federal or state governmental
requirements; copyright or patent infringement; or any actual or alleged
false or misleading statement or omission made by Contractor in its
proposal to the Academy or in any written deliverable required under the

(c) The obligations in paragraph (a) of this clause shall not extend to
claims, damages, losses, liabilities, costs, and expenses to the extent
they arise out of the negligent acts or omissions of the Academy, its
committee members, officers, employees, and agents in making a material
alteration to a report or other written deliverable required under the
contract where such material alteration is made without the consent of

(d) Both the Academy and Contractor shall give prompt notice to each other
upon learning of the assertion of any claim or the commencement of any
action or proceeding, in respect of which a claim under this paragraph may
be sought, specifying, if known, the facts pertaining thereto and an
estimate of the amount of the liability arising therefrom, but no failure
to give such notice shall relieve the Academy or contractor of any
liability hereunder except to the extent actual prejudice is suffered

(e) The Academy and Contractor agree to cooperate in the defense of any
claim, action, or legal proceeding brought against the Academy, although
the Academy shall be primarily responsible for, and shall control, any such
defense.  The Academy shall have the option to permit Contractor or its
insurance carrier to assume the defense of any such claims, except that,
unless agreed to in advance by the Academy in writing, contractor shall not
have the right to select counsel for, assume the defense of, or to approve
the settlement of, any claim, action, or legal proceeding brought against
the Academy."     (Personal note - we have no control, we just have to pay
for it.)

It doesn't get any better from here forward and survives
termination/expiration of the agreement.  Someone please tell me that I am
over-reacting to this language.  I have two agreements of extreme
importance to the institution sitting and awaiting a decision about the
institution's willingness to accept this risk.  The work is not
particularly risky but the consequences of a tort claim in this state makes
defense an expensive proposition even if the judgment is in our favor.  We
are not able to find anyone to insure us for the work and I do not honestly
believe there is a single public institution out there that has patent
infringement indemnification insurance.

I need some help from my fellow NCHRP recipients.  Please explain how you
are able to accept such horrendous terms and also whether or not you are
willing to address this issue as a group with NCHRP to get the terms
relaxed in the interest of promoting good science without punishing good
scientists.  I have so far heard from only one institution since my last
request about this issue.  I contacted three others by telephone at the
request of one of our faculty members.  One has agreed to accept the risk,
one has refused to work with NCHRP, one has not returned my phone call,
and one is in the same boat as we are trying to decide what in the world we
can do to satisfy the sponsoring agency without risking the farm.  Thanks
in advance for any information you might provide.

Martha M. Taylor,   Director               (334) 844-4438
Contracts and Grants Administration         FAX (334) 844-5953
307 Samford Hall
Auburn University,  AL  36849-5131