University of California Office of the President
Senior Vice President—Business and Finance

Research Administration Office

Memo
Operating Guidance

No. 01 - 02

February 13, 2001

CONTRACT AND GRANT OFFICERS

Subject: Stanford Linear Accelerator Center Use and Pacific Northwest National Laboratory Environmental Molecular Sciences Laboratory Nonproprietary Use Agreements

Attached are copies of the Stanford Linear Accelerator Center (SLAC) Use Agreement between Stanford University and The Regents of the University of California and the Pacific Northwest National Laboratory . Nonproprietary Use Agreement for the Environmental Molecular Sciences Laboratory (EMSL) between Battelle Memorial Institute and the Regents. Under these Use Agreements, users from the University of California are granted permission to use the Stanford Synchrotron Radiation Laboratory (SSRL), a facility of SLAC, and the Battelle EMSL.

SLAC Use Agreement:

The effective date of SLAC Use Agreement is February 1, 1998 and continues until January 31, 2003.

University researchers that are interested in the SLAC capabilities and how to submit a request to use the facility can find the directions at: http://www-ssrl.slac.stanford.edu/guide.html There are several mechanisms in place for requesting use of this facility. Any questions or required assistance should be directed to: Audrey L. Archuleta, SSRL User Research Administration Manager, (650) 926-3191 or ala@ssrl.slac.stanford.edu.

EMSL Use Agreement:

The Battelle EMSL Use Agreement was effective February 5, 2001, the date it was signed by Battelle. It does not have an end date. So it is in effect until it is terminated by either party or replaced by a new agreement. The individual users complete and sign Appendix B, EMSL Agreement Covering Obligations and Responsibilities of Users. Users should be appropriately notified of the terms of Article X – Certification in the Use Agreement. In this Article, the University has certified that use of the facility is primarily for conducting basic scientific research and not for development of commercial products or services. In addition, Appendix C contains the standard DOE Government rights to patents, copyrights, and data. Users should be aware of these rights if there are any cases where their use of the facility involves research with a for-profit corporation.

Refer: Samuela A. Evans
(510) 987-9849
Samuela.Evans@ucop.edu

Subject Index: 22
Organization Index: P-190 & P-020 

David F. Mears
Director, Research Administration

Attachment

***
STANFORD LINEAR ACCELERATOR CENTER

USE AGREEMENT
Between

STANFORD UNIVERSITY
and
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
Research Administration Office
1111 Franklin St., 5th Fl.
Oakland, CA 94607-5200

I. The Board of Trustees for Leland Stanford, Jr., University (Stanford) operates the Stanford Linear Accelerator Center (SLAC), a government-owned research and user facility, under contract with the U.S. Department of Energy (DOE). Upon execution of this agreement, users from The Regents of the University of California (hereafter User Institution) are granted permission to use these facilities, in keeping with Stanford's contract with DOE. The User Institution assumes responsibility for medical and general liability costs, if any, incurred by User Institution's employees as a result of their use of SLAC facilities, provided said use is within the scope and conduct of their employment with User Institution.

II. (a) Users from the sponsoring institution shall:

(1) take all reasonable precautions in carrying out their activities at SLAC, to protect the safety and health of Stanford employees, other users, and the general public, as required by federal, state, and local laws, University rules, and DOE Directives, and

(2) comply with other regulations and laws, such as the University Code of Conduct, statutory limitations on the use of government property, and the federal laws regarding discrimination based on race or gender, applicable to activities at SLAC.

(b) Stanford shall provide to User a copy of applicable laws, regulations, rules, and directives described above. In the event that any User fails to observe and comply with all applicable laws, regulations, and policies, Stanford may stop all or any part of their work and retract permission to participate as a User or otherwise remain at SLAC.

III. Neither Stanford nor any of its employees, agents, or others acting or purporting to act on Stanford's behalf shall be responsible for failure to perform services or to furnish materials under the users' agreement with SLAC. The User Institution waives any and all claims against Stanford University for personal injury to user or for property damage/loss (for property owned by the User) against Stanford deriving from, connected with, arising under, or related to performance of the experiment or their other activities conducted at SLAC, except to the extent that such injury or damage is caused by the negligent or intentional acts or omissions of Stanford and/or SLAC.

IV. Employee(s) of and/or consultant(s) of User Institution shall be permitted to use SLAC facilities for the purpose of performing the experiment(s) described in the proposal(s) accepted for performance at the SLAC synchrotron radiation facility. This Use Agreement shall apply to all experiment(s) carried out in the future at the SLAC synchrotron radiation facilities.

V. Before commencing the experiment(s), Users expecting to incur costs in running their experiment(s) shall provide an instrument that will allow SLAC to obtain reimbursement from User (or User Institution) for costs incurred in performance of the experiment. User agrees to reimburse SLAC, on presentation of an invoice(s), for all expenses reasonably incurred by Stanford on behalf of the User or at User's request in connection with experiments. However, it is expressly understood that Stanford shall have no obligation to incur expenses on behalf of User. This agreement shall be incorporated by reference in each Supplemental Agreement for proprietary research at the Stanford Synchrotron Radiation Laboratory.

VI. This Use Agreement shall become effective February 1, 1998. The Agreement shall continue in force until January 31, 2003.

User Institution:

The Regents of the University of California

Signature_______________________________________ Date: October 13, 1999
Samuela A. Evans, Contract and Grant Officer

Board of Trustees of the Leland Stanford Jr., University,
Stanford Linear Accelerator Center, by

_______________________________________________ Date:______________________

[for the]

ENVIRONMENTAL MOLECULAR SCIENCES LABORATORY

The parties to this Agreement are Battelle Memorial Institute, Pacific Northwest Division (hereinafter referred to as "Battelle"), managing the Environmental Molecular Sciences Laboratory (EMSL) under Contract No. DE-AC06-76RL0-1830 for the United States Department of Energy (DOE) as an agent of the United States of America (hereinafter referred to as "Government"), and The Regents of the University of California (hereinafter referred to as the "User Entity"):

ARTICLE I – SCOPE OF SERVICES 

1. Subject to the terms and conditions set forth below, Battelle shall make available to designated employees or representatives (hereinafter referred to as "Users," individually or collectively, as the context suggests) of User Entity, certain facilities, equipment, services, information and/or material located within the EMSL User Facility. Use of the EMSL User Facility (hereinafter referred to as the "Activity) shall be in accordance with the User’s EMSL use proposal(s), which must be submitted and approved in advance. 
2. Upon request by the User and at Battelle’s discretion, limited support services will be provided to the User. Non-proprietary users may use the EMSL User Facility free of charge except in cases where significant modifications, extraordinary support services, and/or additional equipment or consumables are needed to meet the User’s requirements. In these cases, financial support may be requested from the User.

 ARTICLE II – ADMISSION; PERSONNEL RELATIONSHIPS

1. Each admission or readmission of a User to the EMSL User Facility under this Agreement shall be subject to and implemented under the applicable admission regulations and procedures of Battelle and DOE. Each User shall execute Appendix "B," which is attached hereto and made a part of this Agreement, and deliver it to Battelle on or before admission to the EMSL facility. 
2. Users shall be considered employees or representatives of User Entity during all activities under this Agreement and shall not be considered employees of Battelle or DOE for any purpose. However, the occupational activities of Users shall be subject to the administrative and technical oversight of Battelle during and in connection with such participation in the Activity, and the User shall therefore abide by and comply with all applicable rules, regulations and requirements of Battelle and DOE with regard to such Activity including, but not limited to, those pertaining to security, safety, operating and health-physics procedures, access to information, hours of work, and conduct. User Entity shall obtain such agreements from each User as necessary to implement the provisions of this Agreement.  

ARTICLE III – SCHEDULING 

The User Entity understands and agrees (a) that the Activity is subject to the priority of Battelle’s work for the Government and on a non-priority basis in regard to other users, and (b) that Battelle, through its cognizant user facility administrator, shall have sole responsibility and discretion for allocating and scheduling usage of the facilities, equipment, services, materials and/or information needed for or involved in the Activity.

ARTICLE IV – MATERIALS

It is recognized that any material to be supplied by the User may be damaged, consumed, or lost. Materials (including residues and/or other contaminated material) remaining after performance of the work or analysis will be removed in their then condition by the User at the User’s expense.

ARTICLE V – INTELLECTUAL PROPERTY PROVISIONS

Except as otherwise required by 35 U.S. Code Section 212, rights of the parties in patents, technical data, copyrights and other intellectual property shall be as set forth in Appendix C, which is attached hereto and made a part of this Agreement.

ARTICLE VI – LIABILITY 

1. Neither the Government, DOE, Battelle, nor persons acting on their behalf will be responsible for any injury to or death of persons or other living things or damage to or destruction of property or for any other loss, damage or injury of any kind whatsoever resulting from the furnishing of facilities, equipment, material, information or personnel under this Agreement, and arising out of the negligence or willful misconduct of USER, its employees or agents, provided however, that Battelle, DOE, or the Government, pursuant to the Federal Tort Claims Act, shall each be liable for its own negligence contributed in whole or in part to said loss, damage, or injury. 
2. Neither the Government, DOE, Battelle, nor persons acting on their behalf will be responsible, irrespective of cause, for failure to furnish the facilities, equipment, material, information or personnel under this Agreement at any particular time or in any particular manner. 
3. If and to the extent permitted by law applicable to the User Entity, the User Entity agrees indemnify and save harmless the Government, DOE, Battelle, and persons acting on their behalf from any costs and expenses resulting from loss, damage, destruction, misuse or alteration to or of property of the U.S. Government to the extent that such loss, damage, destruction or alteration is caused or contributed to by the intentional or negligent act of User Entity or its employees or representatives. 
4. The foregoing provisions of this Article VI shall have no application to public liability for nuclear incident as defined and provided for in the Atomic Energy Act of 1954, as amended, compensation for which shall be in accordance with such law.

   ARTICLE VII – EXPORT CONTROLS 

   User Entity hereby acknowledges notice that the export of goods and/or Technical Data from the United States may require some form of export control license from the U.S. Government and that failure to obtain such export control license may result in criminal liability under the laws of the United States. 

   ARTICLE VIII – TITLE AND ADMINISTRATION 

   It is understood and agreed that this Agreement is entered into by Battelle for and on behalf of the Government; that Battelle is authorized to and will administer this Contract in other respects for DOE, unless otherwise specifically provided for herein; that administration of this Agreement may be transferred from Battelle to DOE or its designee, and in case of such transfer and notice thereof to the User Entity, Battelle shall have no further responsibilities hereunder. 

   ARTICLE IX – TERMINATION 

   Either party hereto may terminate this Agreement for any reason at any time by giving not less than (30) days prior written notice to the other party. Battelle reserves the right to immediately cancel this Agreement without regard to the aforesaid written notice when cancellation of this Agreement is determined to be necessary to the national defense and security of the United States. Such termination shall only affect the term of this Agreement, and shall otherwise be without prejudice to the rights of the parties hereunder which may have previously accrued.

   ARTICLE X – CERTIFICATION 

   The User Entity certifies that the use of facilities, equipment, services, material and/or information described herein, including any future amended version thereof, will not be undertaken where the primary intent is to develop or modify products, processes, or services for commercialization. The User’s primary intent is to conduct basic scientific research, which will be made available to the general public in accordance with the terms of this agreement, including those contained in Appendix C.

   ARTICLE XI – PUBLIC DISCLOSURE REQUIREMENTS

   In regards to publications or presentations resulting from work performed using the EMSL, users are required to: 

5. Include an acknowledgement of the EMSL (example: "A portion of) The research described in this paper (poster or presentation) was performed in the Environmental Molecular Sciences Laboratory, a national scientific user facility sponsored by the Department of Energy’s Office of Biological and Environmental Research and located at Pacific Northwest National Laboratory.") EMSL staff can be listed on publications as appropriate, but an EMSL acknowledgment should be included as part of every publication or presentation for which EMSL capabilities made a contribution.
6. Provide to the EMSL User Services Office (PO Box 999, K8-84, Richland, WA 99352) copies or reprints of the publications. 
7. Submit to the EMSL User Services Office summaries of research results for publications in the annual EMSL Activity Report.

ARTICLE XII – ENTIRE AGREEMENT 

It is expressly agreed by the parties hereto that this Agreement constitutes the entire and only contract between the parties with respect to the subject matter herein; and that this Agreement cannot be amended nor any provision thereof waived except by an instrument in writing and duly executed on behalf of each of the parties hereto by the duly authorized representatives of each party. 

SIGNATURES

BY:
BATTELLE MEMORIAL INSTITUTE
PACIFIC NORTHWEST DIVISION

NAME: Gene G. Stott
TITLE: Sr. Contract Specialist

USER ENTITY NAME: THE REGENTS OF
THE UNIVERSITY OF CALIFORNIA
NAME: Samuela A. Evans
TITLE: Contract and Grant Officer

DATE: January 30, 2001

NON-PROPRIETARY USE AGREEMENT

PATENT RIGHTS – USER FACILITIES (CLASS WAIVER)

1. DEFINITIONS

1. "User" means the person or entity with which this Agreement is made. 

2. "Subject Invention" means any invention or discovery of the User, conceived or first actually reduced to practice in the course of or under this Agreement, and includes any art, method, process, machine, manufacture, design, or composition of matter, or any new and useful improvement thereof, or any variety of plants, whether patented or unpatented under the patent laws of the United States of America or any foreign country.
3. "Facility Operator" means the operating contractor which manages and operates the Government-owned, contractor-operated facility where the work under this Agreement is to be performed.
4. "DOE" means the United States Department of Energy

1. RIGHTS OF THE USER
   1. Election to retain rights – Subject to the provisions of paragraph C. (2) of this clause, the User may retain the entire right, title and interest in any patent application filed in any country on a Subject Invention reported and elected in accordance with paragraph D. of this clause and in any resulting patent secured by the User. Where appropriate, the filing of patent applications by the User is subject to DOE security regulations and requirements.
   2. Minimum license – The User reserves an irrevocable, nonexclusive, paid-up license in each patent application filed in any country on a Subject Invention and any resulting patent in which the User does not elect to retain title or in which the Government acquires title. The license shall extend to the User’s domestic subsidiaries and affiliates, if any, within the corporate structure of which the User is a part and shall include the right to grant sublicenses of the same scope to the extent the User was legally obliged to do so at the time this Agreement was entered into. The license shall be transferable only with approval of DOE except when transferred to the successor of that part of the User’s business to which the invention pertains.
2. RIGHTS TO GOVERNMENT
   1. Assignment to the Government – The User agrees to assign to the Government, upon request, the entire right, title, and interest in any country to each Subject Invention of the User and to each Subject Invention of Battelle to which the User has acquired title, except to the extent that rights are retained by the User under paragraph B. (2) of this clause, where the User:
      1. Does not elect, pursuant to this clause to retain such rights; 
      2. Fails to have a patent application filed in that country on the Subject Invention or decides not to continue prosecution or not to pay any maintenance fees concerning the Subject Invention; or 
      3. At any time, the User no longer desires to retain title. 
   2. Terms and Conditions of Waived Rights 
      1. To preserve the Government’s residual rights to Subject Inventions, the User shall take all actions in reporting, electing, filing on, prosecuting and maintaining such rights promptly, but in any event, in sufficient time to satisfy domestic and foreign statutory and regulatory time requirements; or, if the User decides not to take appropriate steps to protect the invention rights, it shall notify DOE in sufficient time to permit the Government to file, prosecute and maintain patent applications, and any resulting patents prior to the end of such domestic or foreign statutory or regulatory time requirements. 
      2. The User shall convey or assure that conveyance of any executed instruments necessary to vest in the Government the rights set forth in this clause. 
      3. The User hereby grants to the Government a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced each Subject Invention throughout the world for or on behalf of the United States.
      4. The User shall provide the Government a copy of any application filed on a Subject Invention promptly after such application is filed, including its serial number and filing date. 
      5. The User agrees that the respect to any Subject Invention in which it has acquired title, DOE has the right to require the User, or an assignee or exclusive licensee of a Subject Invention, to grant a nonexclusive, partially exclusive, or exclusive license in any field of use to a responsible applicant or applicants, upon terms that are reasonable under the circumstances, and if the User assignee, or exclusive licensee refused such a request, DOE has the right to grant such a license itself if DOE determines that:

         (1) Such action is necessary because the User or employee has not taken, or is not expected to take within a reasonable time, effective steps to achieve practical application of the Subject Invention in such field of use;

(2) Such action is necessary to alleviate health or safety needs which are not reasonable satisfied by the User, assignee, or their licensees; or 

(3) Such action is necessary to meet requirements for public use specified by federal regulations, and such requirements are not reasonably satisfied by the User, assignee, or licensees.


f. The User shall submit written reports at reasonable intervals upon request of the Government during the term of the patent on the Subject Invention regarding:

(1)The commercial use that is being made or is intended to be made of the invention; and 

(2)The steps taken by the User of its transferee to bring the invention to the point of practical application or to make the invention available for license. 

To the extent data or information supplied under this section is considered by the User or an assignee or exclusive licensee or assignee to be privileged and confidential and is so marked, DOE agrees that, to the extent permitted by 35 U.S.C. 202(c)(5), it will not disclose such information to persons outside the Government.


 D. INVENTION IDENTIFICATION, DISCLOSURES, AND REPORTS 

The User shall furnish the Patent Counsel a written report containing full and complete technical information concerning each Subject Invention of the User within six months after conception or first actual reduction to practice, whichever occurs first, in the course of or under this Agreement, but in any event prior to any sale, public use or public disclosure of such invention known to the User. The report shall identify the Agreement and inventor and shall be sufficiently complete in technical detail and appropriately illustrated by sketch or diagram to convey to one skilled in the art to which the invention pertains a clear understanding of the nature, purpose, operation, and to the extent known, the physical, chemical, biological, or electrical characteristics of the invention. The report should also include any election of rights under this clause. When an invention is reported under this paragraph D., it shall be presumed to have been made in the manner specified in Section (a) (1) and (2) of 42 U.S.C. 5908. 

E. LIMITATION OF RIGHTS 

Nothing contained in this clause shall be deemed to give the Government any rights with respect to any inventions other than a Subject Invention, except as set forth in the Facilities License of paragraph.

F. FACILITIES LICENSE 

In addition to the rights of the parties with respect to inventions or discoveries conceived or first actually reduced to practice in the course of and under this Agreement, the User agrees to and does hereby grant to the Government an irrevocable, nonexclusive paid-up license in and to any inventions or discoveries, regardless of when conceived or actually reduced to practice or acquired by the User, which at any time through completion of this Agreement are owned or controlled by the User and are incorporated into the facility as a result of this Agreement to such an extent that the facility is not restored to the condition existing prior to the Agreement (1) to practice or to have practiced by or for the Government at the facility, and (2) to transfer such license with the transfer of that facility. The acceptance or exercise by the Government of the aforesaid rights and license shall not prevent the Government at any time from contesting the enforceability, validity or scope or, or title to, any rights or patents herein licensed.

G. RIGHTS TO TECHNICAL DATA 

The Government shall have the right to use, duplicate, or disclose any technical data first produced or furnished under this Agreement, and to permit others to do so.

H. DELIVERABLES 

The User agrees to furnish at the request of the Facility Operator a nonproprietary technical report of the research results. 

I. LEGAL NOTICE

The following legal notice shall be affixed to each report or publication resulting from this Agreement which may be distributed by the User:

DISCLAIMER NOTICE

This document was prepared by ______________________________________ as a result of the use of facilities of the U.S. Department of Energy (DOE) which are managed by Battelle Memorial Institute, Pacific Northwest Division. Neither Battelle, DOE, the U.S. Government, nor any person acting on their behalf: (a) Makes any warranty or representation, express or implied, with respect to the information contained in this document; or (b) Assumes any liabilities with respect to the use of, or damages resulting from the use of any information contained in the document.  

II. PATENT AND COPYRIGHT INDEMNITY – LIMITED

If and to the extent permitted by law applicable to the User*, the User shall indemnify the Government, DOE, and Battelle and their officers, agents, and employees against liability, including costs, for infringement of any United States patent or copyright arising out of any acts required or directed by the User to be performed under the Agreement to the extent that such acts are not normally performed at the facility. Further, the foregoing indemnity shall not apply unless the User shall have been informed in a reasonable time by Battelle, DOE, or the Government of the suit or action alleging such infringement, and such indemnity shall not apply to a claimed infringement which is settled without the consent of the User unless required by a court of competent jurisdiction.

* In accordance with California State law, this clause does not apply to the University of California.

III. COPYRIGHTED MATERIAL

The User shall grant to the Government and others acting on its behalf a royalty-free, nonexclusive, irrevocable, worldwide license for Government purposes to publish, distribute, translate, duplicate, exhibit, and perform any technical data first produced in the performance of this Agreement.