EXHIBIT H-3

Definitions

 

Note:    These definitions shall be used by UC in contractual agreements executed for work under this Agreement with all Performing Institutions except DOE Laboratories. Exhibit H-4 shall be used with DOE Laboratories except those managed by UC.

 

1.                  DEFINITIONS

 

A.    Agreement Period is the length of the Agreement between the Energy Commission and the UC.

 

B.    Agreement Start Date is the date Commission reimbursable expenses can begin after the Department of General Services signs the Agreement.

 

C.    Agreement End Date is the last date Commission reimbursable expenses can be incurred and is the expiration date of the Agreement.

 

D.    Copyrightable Work means any copyrighted work as defined under U.S. copyright law to which the Performing Institution has acquired title, that is first created by UC or by a Performing Institution in the performance of this Agreement and is not a scholarly work.

 

E.     Date means calendar date.

 

F.     Equipment means any products, objects, machinery, apparatus, implements or tools purchased, used or constructed within the project, including those products, objects, machinery, apparatus, implements or tools from which over thirty percent (30%) of the equipment is composed of materials purchased for the project.

 

For purposes of determining depreciated value of equipment in the Agreement, the project shall terminate at the end of the normal useful life of the equipment purchased, funded and/or developed with Commission funds.  The Commission may determine the normal useful life of such equipment.

 

G.    Key Personnel are employees or consultants of UC or a Performing Institution who are critical to the outcome of the project.  For example, they may have expertise in the particular field, or have experience that is not available from another source.  Replacing these individuals may affect the outcome of the project.

 

H.    Key Subcontractors are contractors, subcontractors or vendors to UC or to a Performing Institution and who are critical to the outcome of the project.  As with Key Personnel, Key Subcontractors may have expertise in the particular field, or have experience that is not available from another source and replacement may significantly affect the project.  An employee of UC’s or the Performing Institution’s subcontractor or vendor may also qualify as “key”.

 

I.       Licensed Product means any product commercialized by a Licensee that embodies or utilizes a Subject Invention, Copyrightable Work or Project Related Products.

 

J.      Licensee means the organization (or its affiliates, joint venture or sublicensee) that develops any Subject Invention, Copyrightable Work or Project Related Products into a commercial product that is made available to the public in the marketplace.  Licensee may be the UC, a Performing Institution or a company to whom the UC or the Performing Institution licenses commercial rights.

 

K.    Materials means the substances used in constructing a finished object, commodity, device, article or product.

 

L.     Net Revenues means the total of the gross invoice prices of Licensed Product sold, less the sum of the following actual and customary deductions where applicable: cash; quantity discounts; sales, use, tariff, import/export duties or other excise taxes imposed upon particular sales; transportation charges; and allowance or credits to customers because of rejections or returns.

 

M.  Net Royalties means gross royalties and fees received by UC or a Performing Institution from a Licensee as consideration for commercially licensing any Subject Invention, Copyrightable Work or Project-Related Product, less the following:

 

1.      Legal and other direct expenses (that are not otherwise reimbursed under an option or license agreement from a third party) of patenting, protecting and preserving patent, copyright and related property rights, maintaining patents and other such costs, taxes, or reimbursements as may be necessary or required by law, except patent infringement expenses, and

 

2.      Inventor or author shares in accordance with UC’s, or as appropriate, the Performing Institution’s patent or copyright policy

 

Direct expenses include operating expenses of UC and Performing Institutions. Net Royalties do not include any payments to joint holders nor research funding accepted by a Performing Institution in association with an option or licensing agreement. Net Royalties shall be aggregated cumulatively, over time, by UC for each Performing Institution and for all of each Performing Institution’s disclosed Subject Inventions, Copyrightable Works and Project-Related Products.

 

N.    Otherwise Disposing Of means (1) Project-Related Products and rights not sold but delivered by the UC or a Performing Institution to others regardless of the basis for compensation, if any, and (2) Project-Related Products and rights put into use by UC or any third party for any purpose other than testing or evaluation of the Project-Related Products.

 

O.    Performing Institution means (i) any non-UC not-for-profit organization, for-profit organization, or Federal laboratory, or (ii) any part of University of California, such as a campus or UC-managed Department of Energy Laboratory performing research under this Agreement.

 

P.      Project refers to the entire effort undertaken and planned by the UC and consisting of the work co-funded  by the Commission.  The project may coincide with or extend beyond the Agreement Period.

 

Q.    Project-Related Products (“PRP”) means all tangible research products first made by UC or a Performing Institution in the performance of this agreement, but not a Subject Invention nor a Copyrightable Work.

 

R.    Sale is the sale, license, lease, option, gift or other transfer of a Subject Invention, Copyrightable Work or Project Related Product.

 

S.      Sales Price means gross revenue, excluding normal returns and allowances such as sales tax, freight and insurance, if applicable, derived from a sale.

 

T.     Subject Invention means any patentable invention or discovery that is either:

 

1.      Conceived and first actually reduced to practice in the performance of this Agreement;

 

2.      Conceived in the performance of this Agreement elected by the Commission pursuant and reduced to practice within 42 months following the termination or expiration of the applicable WA; or

 

3.      Conceived prior to and reduced to practice in the performance of this Agreement, provided that such conception was incorporated into the Project and the parties mutually agree in writing to include such conception.

 

U.    Technology refers to the general subject area where the product or innovation will be used.  For example, solar thermal electric generation is a technology area; direct steam generation is an innovation in this technology area.  Technology Developed means subject invention and/or project-related products and rights.

 


V.    Terms Relating to Data

 

1)     Technical Data or Data as used throughout this Agreement means recorded information regardless of form or characteristic, of a scientific or technical nature and used in the performance of this Agreement.  It may, for example, document research; document experimental, developmental, demonstration, or engineering work; or be usable or used to define a design or process; or to procure, produce, support, maintain, or operate material.  The data may be graphic or pictorial delineations in media such as drawings or photographs, test specifications or related performance or design type documents or computer software (including computer programs, computer software data bases, and computer software documentation). Examples of technical data include manufacturing techniques and methods, machinery, devices such as tools, products, or components, research and engineering data, engineering drawings and associated lists, specifications, engineering calculations, standards, process sheets, manuals, technical reports, catalog item identification, and related information.  Technical data as used herein does not include financial reports, cost analyses and other information incidental to contract administration.

 

2)     Public Information is information previously published, generally available from more than one source, or information in the public domain.  All air monitoring and emission data included in a proposal or requested through a contract are public information.  Government Code Section 6254.7 states that all information, analyses, plans or specifications that disclose the nature, extent, quantity, or degree of air contaminants or other pollution which any article, machine, equipment, or other contrivance will produce, which any state or local agency requires applicant to provide before the applicant builds, erects, alters, replaces, operates, sells, rents, or uses such article, etc., are public records.

 

3)     Confidential Information is information submitted to the Commission, that UC has satisfactorily identified and which the Commission has agreed to designate as confidential pursuant to Title 20 CCR Sections 2501 and following (and amendments).

 

4)     Proprietary Data is such data as UC has identified in a satisfactory manner as being under the Performing Institution's control prior to commencement of performance of this a WA or produced by the Performing Institution outside of this Agreement at its own expense, and which UC has reasonably demonstrated as being of a proprietary nature either by reason of copyright, patent or trade secret doctrines in full force and effect at the time when performance of the applicable WA is commenced.

 

5)     A Trade Secret is any formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented and which is generally known only to certain individuals with a commercial concern and are using it to fabricate, produce or compound an article of trade or a service having commercial value and which gives its user an opportunity to obtain a business advantage over competitors who do not know or use it.

 

6)     Generated Data is that data that UC collects, collates, records, deduces, reads out or postulates for use in the performance of this Agreement.  In addition, any electronic data processing program, model or software system developed or substantially modified by the UC in the performance of this Agreement at Commission expense, together with complete documentation thereof, shall be treated as Generated Data.

 

7)     Deliverable Data is that data which, under the terms of this Agreement, is required to be delivered to the Commission.