PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (“Agreement”) is entered into this day of (the “Effective Date”), by and between . (“COMPANY”), a Utah corporation with offices located at , and Utah Valley University (“UVU”), a state institution of higher education, located at 800 West University Parkway, Orem, Utah, 84058 (Each a “Party” and together the “Parties”).
A. The UVU Business Resource Center (“BRC”) offers Go-To-Market (“G2M”) grants, or no risk loans, to local Utah companies, funded by the Utah Science Technology and Research Initiative (“USTAR”).
B. COMPANY has applied for and was awarded a G2M grant in the amount described in Exhibit A (“Grant Amount”) to assist COMPANY in carrying out the Statement of Work, defined in Exhibit A (“Statement of Work”).
C. The Parties desire to set forth their rights and obligations stemming from the G2M grant funded by USTAR.
NOW, THEREFORE, for good and valuable consideration, COMPANY and UVU hereby agree as follows:
1. STATEMENT OF WORK
a. In General. COMPANY shall provide all the deliverables set forth in the Statement of Work, attached hereto and incorporated herein by this reference as Exhibit A.
b. Grant Compliance. UVU and COMPANY shall jointly comply with all the terms, conditions and reporting obligations set forth in the USTAR G2M grant program, a copy of which is attached hereto and incorporated herein as Exhibit B.
a. Payment: The amount awarded to COMPANY by UVU pursuant to the G2M grant is set forth in Exhibit A. Payment will be made immediately upon COMPANY being awarded the grant and completing the criteria required for the “AWARD Criteria”, described in Exhibit B.
b. Repayment: If COMPANY becomes Commercially Successful, COMPANY shall repay the original grant amount in full, plus 20 percent (1.2 times the original grant amount), to UVU. “Commercially Successful” is defined as the generation of $500,000 in annual Gross Sales Revenues by COMPANY, regardless of whether the revenue was derived from the commercialization of the technology developed with G2M funds or from other products or services sold by the company. UVU and USTAR shall have full control over the use of repaid grant monies. The intent is to have these repayment funds deployed for further institution-based technology commercialization efforts.
c. Repayment Date: COMPANY shall reimburse UVU within one year following the close of the fiscal year (July to June) after becoming Commercially Successful. If COMPANY does not repay the full amount, plus 20 percent, of the award by the end of one year following the close of the fiscal year after becoming Commercially Successful, COMPANY shall instead pay UVU any unpaid balance of the award, plus an additional amount equal to 30 percent of the unpaid award balance.
d. Failure to Commercialize: If COMPANY and UVU agree in writing that COMPANY has no viable path to become Commercially Successful no repayment of the award shall be required.
e. Failure to Notify of Commercialization: If COMPANY becomes Commercially Successful and fails to notify UVU, or if COMPANY assigns, licenses, sells, donates, or otherwise transfers the rights or obligations to commercialize, sale, market, or manufacture the COMPANY’s Product, Service, or Process to any individual or company and fails to notify UVU of such transfer, COMPANY shall pay UVU an amount equivalent to two times the award funds received within 90 days of the transfer.
3. TERM AND TERMINATION
a. Initial Term; Renewal Term. This Agreement will commence on the Effective Date set forth above and will continue in full force and effect for a period of one (1) year (“Initial Term”), unless otherwise terminated as provided herein. This Agreement will automatically renew for consecutive one year terms thereafter (“Renewal Terms”) unless either party notifies the other party of its election not to renew the terms of this Agreement at least thirty days prior to the expiration of the Initial Term or any Renewal Term. Notwithstanding the termination of this Agreement upon the expiration of the Initial Term or any Renewal Term, this Agreement will remain in effect with respect to any Statement of Work then in progress, but not then completed, until such Statement of Work is itself terminated or performance thereunder is completed.
b. Termination. Either Party, upon giving written notice to the other Party, may terminate this Agreement and the Statement of Work:
i. If either Party breaches any material term or condition of this Agreement or Statement of Work and such breach remains uncorrected for thirty days following written notice from the non-breaching party specifying the breach; or,
ii. At any time in the event the other party terminates or suspends its business, becomes subject to any bankruptcy or insolvency proceeding under federal or state statute, or becomes subject to direct control by a trustee or similar authority.
4. INDEMNIFICATION AND INSURANCE
a. Each party to this Agreement assumes responsibility for its own acts and omissions, and those of its employees, students, and agents, as provided by law. Utah Valley University is a governmental entity under the Utah Governmental Immunity Act (the “Act”) and nothing herein shall be construed as a waiver of any rights or defenses applicable to UVU under the Act, including without limitation, UVU’s defense of immunity and the provisions of the Act regarding limitation of judgments.
b. COMPANY shall bear, without limitation, all liability covering injury to persons and damage to property in or about UVU’s property or occurring in the course of or as a result of the performance of this Agreement. Where applicable, COMPANY shall also be solely responsible for providing certificates of insurance evidencing workers compensation and employees liability coverage applicable to COMPANY’s employees and authorized volunteers.
5. CONFIDENTIAL INFORMATION
The Parties agree that in the course of performing this Agreement, they may disclose to each other business and/or technical information about properties, customers, employees, sales, finances, business, methods, plans or operations, and its customer data or information, software, codes, designs, systems and hardware. Except as otherwise provided in this Agreement, any such information, whether provided orally (followed up by written summary within five days of oral disclosure) or in writing, and marked or designated as confidential or should be, under all of the circumstances of disclosure, considered “Confidential Information”, shall be deemed confidential and subject to this Agreement. Confidential Information under this Agreement shall not include (i) information known by Parties prior to disclosure, (ii) information in the public domain at the time of disclosure, and (iii) information obtained on a non-confidential basis from a third party who is not under a confidentiality obligation to Parties. Except as required by law or as necessary to perform under this Agreement, Parties shall keep all Confidential Information confidential, and shall not disclose or reveal any Confidential Information to any third party.
6. REPRESENTATIONS AND WARRANTIES
COMPANY agrees and represents that it will, to the best of its ability, perform the work identified in the Statement of Work set forth in Exhibit A. COMPANY is responsible for and will manage the resources outlined in the Statement of Work and will make all reasonable efforts to complete the work on time and with the highest professional quality.
a. Complete Agreement. This Agreement and the Statement of Work contain the complete agreement between the Parties and supersede all prior agreements between the Parties relating to the Statement of Work.
b. Modification of Agreement. This Agreement and the Statement of Work may only be modified in writing signed by both parties. No waiver of this Agreement or the Statement of Work or of any covenant, condition, or limitation herein or therein contained will be valid unless in writing and duly executed by both Parties. The Parties further agree that the provision of this section may not be waived except as herein set forth.
c. Force Majeure:Neither party will be liable for any delay in performance due to force majeure, including strikes, accidents, acts of God, or other delays beyond their control. COMPANY shall promptly notify UVU of any force majeure. If timely completion of COMPANY’s obligations in the Statement of Work is prevented by any cause of force majeure, or an act of UVU, then such failure or delay will not constitute default.
d. Forbearance – No Waiver. Forbearance or neglect on the part of either Party to insist upon strict compliance with the terms of this Agreement will not be construed as or constitute a waiver thereof.
e. Choice of Law; Attorney’s Fees. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH, WITHOUT REFERENCE TO ITS CHOICE OF LAWS PRINCIPLES. THIS AGREEMENT IS MADE AND PERFORMABLE IN UTAH COUNTY, UTAH.
f. Severability and Survival. Each term and provision of this Agreement will be valid to the fullest extent permitted by applicable law. If one or more provisions of this Agreement are held to be illegal or unenforceable under applicable law, such illegal or unenforceable portion(s) will be limited or excluded from this Agreement to the minimum extent required so that this Agreement will otherwise remain in full force and effect and enforceable in accordance with its terms. All provisions of this Agreement shall survive the termination of this Agreement and remain enforceable by the parties. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating responsibility or liability between COMPANY and UVU shall survive the completion of the service hereunder and the termination of this Agreement.
g. Notices: Any notice required by this Agreement must be in writing and given to the other party at the address stated above or at such other address as such party may later designate by notice. Notice will be deemed effective upon: (a) confirmation of electronic transmission if given by fax; (b) actual receipt if given by personal delivery, including next day courier service; or, (c) five business days after deposit in the United States mail, registered or certified mail, postage prepaid, return receipt requested and properly addressed.
h. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
i. Exhibits. Exhibits A and B are attached hereto, incorporated herein by reference, and made a part hereof for all purposes.
COMPANY HAS READ THIS AGREEMENT CAREFULLY, UNDERSTANDS IT AND ACCEPTS THE OBLIGATIONS THAT IT IMPOSES WITHOUT RESERVATION. COMPANY SIGNS THIS AGREEMENT VOLUNTARILY AND FREELY, IN DUPLICATE, WITH THE UNDERSTANDING THAT UTAH VALLEY UNIVERSITY WILL RETAIN ONE COUNTERPART AND COMPANY WILL RETAIN THE OTHER COUNTERPART.
Utah Valley University
EXHIBIT A: Statement of Work
COMPANY’s G2M award funds will be used in the following manner:
Implement the Nail it Then Scale It process to develop and validate a functional prototype (or salable solution) with customers within the next 12 months.
EXHIBIT B: USTAR Terms and Conditions
The governing authority of the Utah Science Technology and Research (USTAR) initiative has allocated funds from the state budget to create the Go-To-Market (G2M) grant program. The purpose of the program is to accelerate the transformation of innovative ideas and technologies into commercial success for entrepreneurial companies, thus creating high paying jobs in Utah.
2. ELIGIBILITY AND CRITERIA FOR FUNDING:
G2M applications are intended for high potential technology companies legally incorporated in the state of Utah. G2M applications are subject to these official terms and conditions of the program. Regardless of where the company is located, any Utah-based company may apply for a G2M grant through either Dixie State College, Utah Valley University, or Weber State University by following the respective processes described in the PROCESS section below. USTAR will only transfer G2M funds directly to Dixie State College, Utah Valley University, and Weber State University. These institutions will then reimburse actual expenses, up to the grant award amount, on behalf of the G2M project company.
The following criteria (“CRITERIA”) are required for funding at each phase: training, required reading, sufficient scores from pitch, 2+ on Team, Approved Industry, In Service Region, Copy of Slides, Corp. Verification, Business Name, Business Address, Business Description, MOU Signed, reporting for current employees and revenues.
3. PROCESS: The process for Utah Valley University is as follows:
a. APPLICATION: Utah-based companies may apply at any time, while funds last, by visiting http://www.uvu.edu/brc/accelerator/.
b. PRE-SCREENING: The UVU Business Resource Center (BRC) pre-screens applicants based on: 1) Industry – applicants must be developing a technology in one of the following industries: IT hardware, software, digital media or advanced manufacturing (defined to be tools, technologies, and products that help manufacturers increase efficiency and profitability). 2) Company Size – applicants’ companies must have at least two co-founders or employees. 3) Company Goals – applicants must be striving to create a scalable enterprise, capable of generating greater than $5 million in annual sales revenues. 4) Coachability – applicants must demonstrate a willingness to take and implement feedback and coaching from the UVU BRC’s staff.
c. PHASE I – IS THE IDEA GOOD:
Phase I is generally taught once a month from 8:30am to noon on the 2nd Thursday of each month. Phase I required reading is “Nail It Then Scale It”. The goal is to find a monetizable pain. Entrepreneurs are trained to refine their idea and their market. They are given homework to test their idea, market, and product hypotheses with their actual customers. Once they have market data they may be allowed to present to their peers -other companies in the program. Their peers rate them on the following criteria: (1) Did the team find a monetizable pain; (2) Can they execute; and (3) Were they intellectually honest in conducting their research. Companies may receive a Phase I Award, if they are rated well by their peers. The USTAR Governing Authority retains the right to make final funding decisions.
d. PHASE II – Is the Business Model Viable:
Phase II training is generally taught from 8:30am to noon on the 1st Wednesday of each month. Phase II required reading is “Business Model Generation”. The goal is to develop a functional prototype. Companies are trained to create a Business Model Canvas, which includes Key Activities, Partners, and Resources, Cost Structure, Customer Relationships, Customer Segments, Value Propositions, Distribution Channels, and Revenue Streams. They are given homework to put together a market and industry assessment, the business model canvas, and financial model. They are also required to do a functional prototype test and salable solution test.
The Phase II companies present their business model and other findings to the BRC Executive Committee. The Executive Committee decides whether the business model is viable, and may give advice and a Phase II Award to the company. The USTAR Governing Authority retains the right to make final funding decisions.
e. PHASE III TRAINING:
Phase III training is taught from 8:30am to noon on the 2nd month of each quarter, on the 2nd Thursday Aug, Nov, Feb, May, Aug, Nov. Phase III required reading is “The Ultimate Sales Machine”. The goal is to obtain pilot customers and gain traction in the market. Companies are trained to refine their Sales Roadmap and Business Model, develop Sales Channels, and become Fundable by investors. They are required to make sales and get traction with customers. They also receive business coaching. They present to Angel Investors and the BRC Executive Committee, who may give them advice and a Phase III Award. The USTAR Governing Authority retains the right to make final funding decisions.
Recipients of G2M grants agree to provide the UVU BRC and USTAR with monthly revenue and jobs created/retained reports. Recipients of G2M grants who go on to generate $500,000 in annual Gross Sales Revenues must repay the original grant amount plus 20 percent (1.2 times the original grant amount) to the institution of higher learning that sponsored the G2M. Refer to the REPAYMENT section 2(B) in the Agreement for more details.
5. ADDITIONAL APPLICATION REQUIREMENTS AND PROVISIONS:
a. Original Work: Applications must be the original work of the applicant(s) and must not infringe any third-party rights. Please ensure application responses are written in English, containing informative yet non-confidential information. USTAR is ultimately responsible for state reporting requirements. G2M recipients agree to assist USTAR on a monthly basis in tracking a variety of metrics including the number of jobs created and will properly account for all expenses reimbursed with G2M funds. Failure to do so may impact future funding and commercialization support decisions.
b. No Partnership: The G2M recipient is an independent contractor and not a partner with the State of Utah; the vendor cannot bind the State under the G2M program. G2M is subject to the Government Records Access & Management Act; other documents may be also subject to the Act.
c. Written Statement of Work: Prior to disbursing funds, USTAR and the G2M applicant will execute a written Statement of Work, describing the mutually agreed timeline and deliverables of the project. The Agreement and Exhibit A constitute a written Statement of Work.
d. USTAR Publications: USTAR reserves the right to offer commercialization guidance and to publish non-confidential G2M program success stories in the media with appropriate applicant review. Applicants agree to notify USTAR prior to publicizing their projects and prior to using the USTAR logo in print, online or other media.
The applicant hereby release, discharge, hold harmless and agree to indemnify USTAR, USTAR's affiliates, the State of Utah, and third party information providers from any claim or liability, whether now existing or arising in the future, arising from or related to any applications or USTAR's, the State’s, or any third parties’, use thereof, or arising from or related to the G2M program, or the applicant’s participation therein. The applicant agrees to indemnify, defend and hold harmless USTAR, USTAR's affiliates, the State of Utah, and third party information providers from and against all claims, suits, actions, losses, expenses, damages, penalties, and costs, including reasonable attorneys’ fees resulting from any actual or alleged conduct as a result of their participation with a G2M project.
7. LIMITATION OF LIABILITY:
USTAR will not use, and does not have any rights in, any applications, except for the purposes of conducting and promoting the G2M program. USTAR cannot guarantee the confidentiality or security of the intellectual property rights and cannot control the use of the ideas or concepts within any applications by third parties.
8. FAILURE TO PERFORM – SUSPENSION OR TERMINATION:
USTAR, in its sole discretion, may require the applicant to repay all funds disbursed by USTAR under this Agreement in the event of gross misconduct. Such repayment is to be made to the institution of higher learning within 90 days of a determination by USTAR of gross misconduct.
9. LITIGATION: In the case of any litigation arising from the G2M program, Utah will be the jurisdiction for any related legal proceedings.