Resolution No. 5991
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RESOLUTION NO. 5991
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A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF VERNON APPROVING AND AUTHORIZING
THE EXECUTION OF A CONFIDENTIALITY
AGREEMENT AMONG · FUEL CELL ENGINEERING
CORPORATION, ENERGY RESEARCH CORPORATION
AND THE CITY OF VERNON PROVIDING FOR
DISCLOSURE OF CERTAIN CONFIDENTIAL
INFORMATION RELATING TO THE THE
COMMERCIALIZATION OF FUEL CELL POWER PLANT
SYSTEMS
WHEREAS, the City Council of the City of Vernon adopted
Resolution No. 5859 on November 20, 1990, approving and
authorizing the execution of an agreement to join the Fuel Cell
Commercialization Group (FCCG), a joint research and development
venture organized pursuant to the National cooperative Research
Act of 1984, because of the City'S interest in purchasing an
early production 2 MW carbonate fuel cell power plant; and
WHEREAS, the City Council of the City of Vernon adopted
Resolution No. 5955 on July 16, 1991, approving and authorizing
the execution of a letter of intent expressing the City'S intent
to purchase a single 2 MW early production unit fuel cell power
plant, subject to negotiation of a mutually satisfactory
contract; and
WHEREAS, in order to carry out the development and
commercialization of the Fuel Cell Power Plants by Fuel Cell
Engineering corporation and to make the appropriate plans and
decisions regarding the possible purchase and operation by the
City of Vernon of said system, certain confidential and
proprietary information needs to be disclosed by all parties ;
and
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1 WHEREAS, the city of Vernon desires to preserve and
2 protect its rights by entering into a confidentiality Agreement
3 to implement the exchange of information with Energy Research
4 Corporation and Fuel Cell Engineering Corporation.
5 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
6 THE CITY OF VERNON AS FOLLOWS:
7 SECTION 1: The City Council of the City of Vernon
8 hereby finds and determines that the recitals contained
9 hereinabove are true and correct.
1& SECTION 2: The City Council of the City of Vernon
If hereby approves the Confidentiality Agreement, a copy of which
12 has been presented to the City council concurrently with this
13 resolution, and the City council hereby orders said Agreement to
14 be received and filed by the City Clerk.
15 SECTION 3: The city council of the City of Vernon
16 hereby authorizes the Mayor and the City Clerk to execute said
17 Agreement for, and on behalf of, the City of Vernon.
18 SECTION 4: The City Clerk of the City of Vernon shall
19 certify to the passage of this resolution and thereupon and
20 thereafter the same shall be in full force and effect.
21 APPROVED AND ADOPTED this 23rd day of September, 1991.
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Vernon,
(SEAL)
I, BRUCE V. MALKENHORST, city Clerk of the City of
do hereby certify that the foregoing Resolution, being
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CONFIDENTIALITY AGREEMENT AMONG
ENERGY RESEARCH CORPORATION,
FUEL CELL ENGINEERING CORPORATION
AND THE CITY OF VERNON, CALIFORNIA
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CONFIDENTIALITY AGREEMENT
Agreement, dated as of , 1991, between Fuel
Cell Engineering corporation, a Delaware corporation ("FCEC"),
Energy Research Corporation, a New York corporation ("ERe") and the
City of Vernon, California, a municipal corporation ("the city").
WITNESSETH
WHEREAS, ERC is engaged in the design, development,
manufacture and sale of mol ten carbonate fuel cell subsystems ("ERC
Fuel Cell Subsystems") for use in power plants;
WHEREAS, FCEC is engaged in the design and development of
balance of plant equipment for ERC Fuel Cell Subsystems and in the
marketing and sale of power plant systems incorporating both ERC
Fuel Cell Subsystems (manufactured and sold by ERC or its
designees) and balance of plant equipment ("Fuel Cell Power Plant
systems");
WHEREAS, the City is a Member (as hereinafter defined) of
the Fuel Cell Commercialization Group ("FCCG"), a membership group
registered under the provisions of the National Cooperative
Research Act of 1984, 15 U.S.C. S S 4301, et. seq. ("NCRA") and
consisting of public and private utility companies and not-for-
profit associations of such companies and other persons or
...
organizations interested in purchasing fuel cell power plants
("FCCG Members") organized to promote the commercialization of
molten carbonate fuel cells and molten carbonate fuel cell power
plants;
WHEREAS, the City is participating in a plan announced by
FCCG, ERC and FCEC to promote the commercialization of Fuel Cell
Power Plant Systems being sold by FCEC (or its designees), and the
purchase by FCCG Members of, demonstration, pre-commercial, and
commercial forms of such Fuel Cell Power Plant systems (the
"commercialization Plan");
WHEREAS, in order to carry out the commercialization Plan
and in order to make plans and decisions regarding the possible
purchase and operation by the City of Fuel Cell Power Plant
Systems, the City desires to receive from ERC and/or FCEC
(hereinafter "ERC and/or FCEC" shall be defined as "ERC/FCEC"),
either directly or through disclosures from ERC/FCEC to FCCG,
certain confidential and proprietary information (which may
include, without limitation, design, planning, commercial, business
and technological information related to Fuel Cell Power Plant
Systems) and belonging to or controlled by ERC/FCEC, and ERC/FCEC
desires to receive from the City (either directly or through
disclosures from FCCG to ERC/FCEC) certain confidential and
proprietary information belonging to or controlled by the City; and
WHEREAS, the City is willing to disclose to ERC/FCEC such
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confidential and proprietary information as is deemed'necessary by
the City to further the Commercialization Plan and possible
purchase by the City of Fuel Cell Power Plant systems insofar as
such disclosure is proper within the bounds of the NCRA, and
ERC/FCEC is willing to disclose to the City such confidential
information as is deemed necessary by ERC/FCEC to further the
Commercialization Plan and possible purchase by the city of Fuel
Cell Power Plant Systems insofar as such disclosure is proper
within the bounds of the NCRA, upon the terms and conditions herein
set forth;
follows:
NOW, THEREFORE, the parties hereto hereby agree as
1. Definitions. The following terms as used in this
Agreement shall have the meanings give to them as noted below:
(a) "Authorized Purposes" shall be defined as set forth
in Paragraph 8 below;
(b) "Commercialization Plan" shall be defined as set
forth in the fourth Whereas clause above;
(c) "Transmitting Party" shall mean a
transmitting information to another
hereunder;
(d) "FCCG" shall mean the Washington, D.C., corporation
named the Fuel Cell Commercialization Group.
(e) "FCEC" shall mean the Delaware corporation named
Fuel Cell Engineering Corporation, and "ERC" shall
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Party
Party
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mean the New York corporation named Energy Research
corporation.
(f) "Fuel Cell Power Plant systems" shall be defined as
set forth in the second Whereas clause above;
(g) "Prohibited Disclosure" shall be defined as set
forth in Paragraph 11 below;
(h) "Protected Information" shall be defined as set
forth in Paragraph 2 below;
(i) "Receiving Party" shall mean a Party receiving
information from another Party hereunder;
(j) "ERC/FCEC" shall be defined as set forth in the
fifth Whereas clause above;
(k) "Party" shall mean either ERC/FCEC or the City;
(l) "Third Party" shall mean a person or entity other
than ERC/FCEC or the City;
(m) "NCRA" shall be defined as set forth in the third
Whereas clause above;
(n) "ERC Fuel Cell subsystems" shall be defined as set
forth in the first Whereas clause above;
(0) "Unprotected Documents" shall be defined as set
forth in Paragraph 3 below;
(p) "Replacement Documents" shall be defined as set
forth in Paragraph 3 below;
(q) "FCCG Member" shall be defined as set forth in the
third Whereas clause above;
2. It shall be the responsibility of each Party to
identify any information the that Party wishes to have protected in
accordance with this Agreement by clearly and plainly markinq all
documents or other materials that it discloses to the other Party
(either directly or through FCCG) containing such information
(including but not limited to copies, reprints, and reproductions
thereof) with the words "FCEC PROPRIETARY SUBJECT TO
CONFIDENTIALITY AGREEMENT" if issued by FCEC, or the words "ERC
PROPRIETARY -- SUBJECT TO CONFIDENTIALITY AGREEMENT", if issued by
ERC, or the words "THE CITY OF VERNON PROPRIETARY -- SUBJECT TO
CONFIDENTIALITY AGREEMENT", if issued by the City. Information
contained in documents or materials marked in the aforesaid manner
shall be considered "Protected Information", except as otherwise
provided herein.
3. (a) Information contained in documents or other
materials provided by one Party to the other Party that are not
marked as Protected Information shall not be considered Protected
Information and shall not be subject to the protection of this
Agreement, regardless of whether such information has been or
subsequently is contained in other documents or materials so marked
provided, however, that if a Transmitting Party who has transmitted
documents or other materials not marked as Protected Information
("Unprotected Documents"), gives written notice to a Receiving
Party specifically identifying such Unprotected Documents and
requesting that the Receiving Party destroy such Unprotected
Documents and replace them with documents or other materials
accompanying the request and marked as Protected Information in
accordance with Paragraph 2 above (the "Replacement'Documents"),
then in such event, the Receiving Party shall have the obligation
to use reasonable efforts to locate and destroy the Unprotected
Documents and replace them with the Protected Documents, in which
case the Receiving Party shall from then on treat the information
in such Replacement Documents as Protected Information. If the
Receiving Party is unable to locate the Unprotected Documents using
reasonable efforts, the Receiving Party shall so notify the
Transmitting Party and the information in the Replacement Documents
shall remain unprotected.
(b) Information transmitted orally between the Parties
shall be considered Protected Information for a period of thirty
(30) days from the date when orally transmitted. For dates beyond
the thirty (30) day period, orally transmitted information shall be
considered Protected Information only if by the end of said thirty-
day period the orally transmitted information has also been
transmitted in documents or other materials marked in accordance
with Paragraph 2, above. Subsequent oral transmission of the same
information shall not detract from its status as protected
Information.
(c) All transmittals and notices required by this
Agreement shall be sent to the addresses given in Exhibit C, which
addresses may be changed by each Party with ten (10) days advance
written notice.
4. Information of ERC contained in a document marked as
containing confidential or proprietary information of ERC in
accordance with Paragraph 2, above, and transmitted by FCEC to the
City shall be treated by the city as Protected Information under
this Agreement in the same manner as if the information had been
transmitted directly to the City by ERC. Information of FCEC
contained in a document marked as containing confidential or
proprietary information of FCEC in accordance with paragraph 2,
above, and transmitted by ERC to the City shall be treated by the
City as Protected Information under this Agreement in the same
manner as if the information had been transmitted directly to the
City by FCEC.
5. Notwithstanding any other provision of this
Agreement, the following information received hereunder by a
Receiving Party from a Transmitting Party shall not be considered
proprietary or treated as Protected Information:
(a) Information that has been or becomes published or
generally known to the trade or to others without
breach or fault on the part of the Receiving Party;
(b) Information that is known by the Receiving Party
prior to the disclosure thereof hereunder as
evidenced by written records of the Receiving
Party;
(c) Information received by the Receiving Party legally
and free or any contrary obligation of
confidentiality from a Third Party (other than
FCCG) who, to the best knowledge of the Receiving
Party after reasonable inquiry, did not' obtain such
by breach or any obligation owed to the
Transmitting Party or to a Third Party whose
proprietary information has been disclosed by the
Transmitting Party.
6. The City shall designate a Principal and Alternate
Representative of the City who shall have the responsibility for
receiving Protected Information and controlling the flow of
Protected Information within the city. For the time period in
which FCCG is in existence, the Principal and Alternate
Representatives of the City for purposes of this Agreement shall be
the same as the Principal and Alternate Representatives of the City
to FCCG, unless the city otherwise designates in writing to FCEC.
Currently, the representatives of the city to FCCG are as follows:
Kenneth J. DeDario, Principal; Jorge C. Somoano, Alternate. In
addition to any other persons authorized to receive ERC/FCEC
Protected Information, any agent or employee of the City who is
qualified as a member of a committee of FCCG shall be so authorized
(a list of agents and employees of the city currently so qualified
is attached as Exhibit A to this Agreement). subject to the other
terms of this Paragraph 6, the city shall have the right to change
its designated Principal and/or Alternate Representative, or to
designate additional individuals authorized to receive Protected
Information, upon ten (10) days' advance written notice of the name
of each such newly designated Representative.
7. (a) Subject to the provisions of subparagraph 7(b)
below, each Party shall control and treat as proprietary the
Protected Information it receives (directly or through FCCG) from
the other Party and shall use the Protected Information only in
connection with and in furtherance of the commercialization Plan
and of the city's possible purchase and operation of Fuel Cell
Power Plant Systems.
(b) Notwithstanding any other provision of this
Agreement, the City shall not: (i) disclose ERC/FCEC Protected
Information to other than FCCG and then only in accordance with
Paragraph 9 below; (ii) use ERC/FCEC Protected Information other
than in-house or with FCCG to review technical designs and to
evaluate whether the City wishes to purchase Fuel Cell Power Plant
systems or, subject to 7(b) (iii) below; for activities related to
the Commercialization Plan; or (iii) use ERC/FCEC Protected
Information to conduct research in or develop or to manufacture,
operate or sell fuel cells, fuel cell power plant systems or any
components thereof.
8. Each Party agrees to develop and implement such
procedures as may be required to prevent intentional or negligent
disclosure to Third Parties (other than FCCG) of Protected
Information of the other Party. To such end, each Party shall at
a minimum: (i) disclose the Protected Information of the other
Party only to such of its employees who have a "need to know" in
order to carry out their functions in connection with the uses of
the Protected Information authorized in paragraph 7 (the
"Authorized purposes"); (ii) prior to the disclosure of any of the
Protected Information of the other Party to any such employee,
provide the employee with notice of the employee's confidentiality
obligations as provided hereunder by delivering to the employee a
copy of this Agreement and requiring the employee to acknowledge in
writing such obligations; and (iii) maintain all documents,
drawings, writings and other items of any nature marked in
accordance with Paragraph 2, above, as containing Protected
Information of the other Party in files separate and apart from
other information in a Party's possession, to be removed therefrom
only in furtherance of the Authorized Purposes.
9. (a) The city shall have the right to disclose any
information to receives from ERC/FCEC, including Protected
Information, to FCCG, provided, however, that whenever the City
disclosed to FCCG Protected Information received from ERC/FCEC, the
City shall mark all documents or other materials containing such
information in the manner described in paragraph 2, above, (as
modified by the provisions of this subparagraph, below) and further
provided that at time of any such disclosure to FCCG of Protected
Information received from ERC/FCEC, there shall be in force a
Confidentiality Agreement between ERC/FCEC and FCCG as set forth in
Exhibi t B attached hereto and made a part hereof. In marking
documents pursuant to this subparagraph, (1) documents which are
originals or copies or ERC/FCEC documents marked by ERC/FCEC as
Protected Information in accordance with Paragraph 2, above, shall
require no further marking by the city and the marking provided by
ERC/FCEC shall suffice to maintain the information as Protected
Information; and (2) all other documents shall be marked to
indicate the Party or Parties whose Protected. Information is
contained in the documents as follows: CONTAINS PROPRIETARY
INFORMATION OF AAA -- SUBJECT TO CONFIDENTIALITY AGREEMENT -- where
AAA can be ERC, FCEC or the City or combination thereof.
(b) Each of ERC and FCEC shall have the right to
disclose to the other Protected Information of the City, and such
Protected Information shall be treated under this Agreement when
received by ERC or FCEC from the other in the same manner as it
would have if transmitted directly from the City. Each Party shall
have the right to disclose information that it receives from the
other Party other than Protected Information to any other persons
or entities, including members of the general public.
10. Nothing contained herein shall constitute or be
construed to constitute the grant of any license under any patent,
patent application, Know-how, or other industrial property right or
right of ownership. None of the Protected Information disclosed
hereunder shall constitute any representation, warranty, assurance,
guarantee, or inducement with respect to the infringement of
trademarks, patents, copyrights, trade secrets or any other rights
of third parties.
11. Any disclosure of Protected Information other than
in accordance with the terms and conditions of this Agreement, or
as otherwise agreed in writing between the Parties, shall be a
"Prohibited Disclosure". If a Party becomes aware of a Prohibited
Disclosure or of information indicating the likelihood of a
Prohibited Disclosure, whether said Party is the Transmitting Party
or the Receiving Party with respect to the Protected Information in
question, the Party so aware shall immediately notify the other in
writing of the Prohibited Disclosure or likely Prohibited
Disclosure. If a Party becomes aware or has been notified of a
Prohibited Disclosure of Protected Information for which it is the
Receiving Party and the Prohibited Disclosure occurred under
circumstances wi thin the control of the Receiving Party, that Party
shall immediately take all reasonable actions to retrieve the
Protected Information wrongfully disclosed, and to halt or limit
the dissemination and unauthorized use thereof.
12 . Each Party hereto, with regard to any Protected
Information for which it is the Receiving Party, hereby indemnifies
and holds harmless the other Party hereto against any and all
claims by any Third Party arising out of any Prohibited Disclosure
by the Receiving Party that causes the disclosure of Protected
Information proprietary to said Third Party.
13. Nothing in this Agreement shall require the city to
disclose or refuse to disclose ERC/FCEC information to FCCG, if
such disclosure or refusal to disclose would constitute a violation
of the NCRA; provided, however, that the city represents and
warrants that the city will not request or accept ERC/FCEC
information unless there is in force and effect a Confidentiality
Agreement as set forth in Exhibit B between ERC/FCEC and FCCG. It
shall not be a breach of this Agreement for a Party to disclose
Protected Information of the other Party pursuant to any
governmental or court order as long as the Party subject to such
governmental or court order has taken all reasonable steps in
consultation with the other Party, including the making of timely
motions for obtaining suitable protective orders, to maintain to
the maximum possible degree the confidentiality of the information
required to be disclosed pursuant to said governmental or court
order.
14. This Agreement shall expire upon the occurrence of
any of the following events, which shall first transpire:
(a) Upon the expiration of six (6) months advance
written notice of termination given by any of the
Parties on or after elapse of fifty four (54)
months from the day and year first above written;
(b) By mutual agreement of the Parties,
15. Upon the expiration of this Agreement as provided in
Paragraph 14, above, each Party shall return to the other Party any
and all documents or other materials containing Protected
Information of the other Party (and any copies thereof). For a
period of ten (10) years after the expiration or termination of
this Agreement, neither Party hereto shall have the right to
disclose or use Protected Information of the other Party, except as
specifically permitted in any contracts between them for the
purchase by the City of demonstration or early production Fuel Cell
Power Plant systems.
16. This Agreement shall be governed by and interpreted
in accordance with the laws of the state of New York. Any disputes
arising out of this Agreement that are submitted to formal dispute
resolution, whether before a court, before an arbitral tribunal,
or otherwise, shall be situated in the venue of the city and state
of New York or in a venue of a state where any party has its
principal place of business, as selected by the Party submitting
the dispute to formal dispute resolution.
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed on the day and year first above written.
FUEL CELL ENGINEERING CORPORATION
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By: (~uA~ F {~
Name: ~ -kobert F. Riordan
Title: President
ENERGY RESEARCH CORPORATION
By:
THE CITY OF VERNON, CALIFORNIA
\)~~\\7~
David B. Brear ey .
City Attorney
By: ~~C7[& d/~..--(:?-::r~/~~y~
-- . ame: Leonis C. \HalburO'
Ti't.le '-y\;lyor. Gi tJ oyvy~n
ATTEST: /2---- ;://;# 4~~/
Bruce V. Ma kenhorst
City Clerk
Approved as to Form:
EXHIBIT A
To Aqreement Between BRC/FCEC and the city of Vernon. California
List of City Representatives Qualified as
Members of committees of FCCG
Kenneth J. DeDario
Jorge c. Somoano
EXHIBIT B
To Aqreement Between ERC/FCEC and the city of Vernon. California
CONFIDENTIALITY AGREEMENT AMONG
ENERGY RESEARCH CORPORATION,
FUEL CELL ENGINEERING CORPORATION
AND FUEL CELL COMMERCIALIZATION GROUP
CONFIDENTIALITY AGREEMENT AMONG
ENERGY RESEARCH CORPORATION,
FUEL CELL ENGINEERING CORPORATION
AND FUEL CELL COMMERCIALIZATION GROUP
CONFIDENTIALITY AGREEMENT
Agreement, dated as of July 16 , 1991,
between Fuel Cell Engineering corporation, a Delaware
corporation (ffFCECfI), Energy Research Corporation (flERCff), a New
York corporation, and Fuel Cell Commercialization Group, a
Washington, D.C., corporation ("FCCGff).
WITNESSETH
WHEREAS, ERC is engaged in the design, development,
manufacture and sale of molten carbonate fuel cell subsystems
("ERC Fuel Cell Subsystems") for use in power plants;
WHEREAS, FCEC is engaged in the design and development
of balance of plant equipment for ERC Fuel Cell Subsystems and
in the marketing and sale of power plant systems incorporating
ERC Fuel Cell Subsystems manufactured and sold by ERC (or its
designees) and balance of plant (ffFuel Cell Power Plant
Systemsff);
WHEREAS, FCCG is registered under the provisions of the
National Cooperative Research Act of 1984, 15 U.S.C. SS 4301 ~
sea. ("NCRAff) and is a membership group consisting of public and
private utility companies and not-for-profit associations of
such companies and other persons or organizations interested in
purchasing fuel cell power plants ("FCCG Members") organized to
promote the commercialization of molten carbonate fuel cells and
molten carbonate fuel cell power plants;
WHEREAS, FCCG, ERC and FCEC have announced a plan to
promote the commercialization of Fuel Cell Power Plant Systems
being sold by FCEC (or its designees), and the purchase by FCCG
Members of demonstration, pre-commercial, and commercial forms
of such Fuel Cell Power Plant Systems (the "Commercialization
Plan") ;
WHEREAS, in order to carry out the Commercialization
Plan, FCCG desires to receive from ERC and/or FCEC (hereinafter
"ERC and/or FCEC" shall be defined as "ERC/FCEC") (for FCCG's
own use and for transmittal to FCCG Members as appropriate)
certain confidential and proprietary information (which may
include, without limitation, design, planning, commercial,
business and technological information related to Fuel Cell
Power Plant Systems) and belonging to or controlled by ERC/FCEC,
and ERC/FCEC desires to receive from FCCG certain confidential
and proprietary information belonging to or controlled by FCCG
(including but not limited to certain confidential and
proprietary information belonging to or controlled by FCCG
Members); and
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WHEREAS, FCCG is willing to disclose to ERC/FCEC such
confidential and proprietary information as is deemed necessary
by FCCG to further the Commercialization Plan and is proper
within the bounds of the NCRA, and ERC/FCEC is willing to
disclose to FCCGsuch confidential information as is deemed
necessary by ERC/FCEC to further the commercialization Plan and
is proper within the bounds of the NCRA, upon the terms and
conditions herein set forth;
NOW, THEREFORE, the parties hereto hereby agree as
follows:
1. Definitions. The following terms as used in this
Agreement shall have the meanings given to them as noted below:
(a) "Commercialization Plan" shall be defined as set
forth in the fourth Whereas clause above;
(b) "Transmitting Party" shall mean a Party
transmitting information to another Party
hereunder;
(c) "FCCG" shall mean the Washington, D.C.,
corporation named the Fuel Cell Commercialization
Group;
(d) "FCEC" shall mean the Delaware corporation named
Fuel Cell Engineering Corporation, and "ERC" shall
mean the New York corporation named Energy
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Research corporation;
(e) "Fuel Cell Power plant Systems" shall be defined
as set forth in the second Whereas clause above;
(f) "Permitted Disclosure" shall be defined as set
forth in Paragraph 6 below;
(g) "Prohibited Disclosure" shall be defined as set
forth in Paragraph 11 below;
(h) "Protected Information" shall be defined as set
forth in Paragraph 2 below;
(i) "Receiving party" shall mean a Party receiving
information from another Party hereunder;
(j) "ERC/FCECIt shall be defined as set forth in the
fifth Whereas clause above;
(k) "Party" shall mean either ERC/FCEC or FCCG;
(l) "Third party" shall mean a person or entity other
than ERC/FCEC or FCCG;
(m) flNCRA" shall be defined as set forth in the third
Whereas clause above;
(n) "ERC Fuel Cell subsystems II shall be defined asset
forth in the first Whereas clause above;
(0) "Unprotected Documents" shall be defined as set
forth in Paragraph 3 below;
(p) "Replacement Documents" shall be defined as set
forth in Paragraph 3 below;
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(q) "FCCG Member" shall be defined as set forth in the
third Whereas clause above;
2. It shall be the responsibility of each Party to
identify any information that the Party wishes to have protected
in accordance with this Agreement by clearly and plainly marking
all documents or other materials that the Party discloses to the
to the other Party containing such information (including but
not limited to copies, reprints, and reproductions thereof) with
the words "FCEC PROPRIETARY -- SUBJECT TO CONFIDENTIALITY
AGREEMENT II --, if issued by FCEC, or the words "ERC PROPRIETARY
SUBJECT TO CONFIDENTIALITY AGREEMENT II , if issued by ERC,
or the words "FCCG PROPRIETARY -- SUBJECT TO CONFIDENTIALITLY
AGREEMENT", if issued by FCCG. Information contained in
documents or materials marked in the aforesaid manner shall be
consider.ed "Protected Information", except as otherwise provided
herein.
3. (a) Information contained in documents or other
materials provided by one Party to the other Party that are not
marked as Protected Information shall not be considered
Protected Information and shall not be subject to the protection
of this Agreement, regardless of whether such information has
been or subsequently is contained in other documents or
materials so marked provided, however, that if a Transmitting
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Party who has transmitted documents or other materials not
marked as Protected Information ("Unprotected Documents"), gives
written notice to a Receiving Party specifically identifying
such Unprotected Documents and requesting that the Receiving
Party destroy such Unprotected Documents and replace them with
documents or other materials accompanying the request and marked
as Protected Information in accordance with paragraph 2 above
(the "Replacement Documents"), then in such event, the Receiving
Party shall have the obligation to use reasonable efforts to
locate and destroy the Unprotected Documents and replace them
with the Protected Documents, in which case the Receiving Party
shall from then on treat the information in such Replacement
Documents as Protected Information. If the Receiving Party is
unable to locate the Unprotected Documents using reasonable
efforts, the Receiving Party shall so notify the Transmitting
Party and the information in the Replacements Documents shall
remain unprotected.
(b) Information transmitted orally between the Parties
shall be considered Protected Information for a period of thirty
(30) days from the date when orally transmitted. For dates
beyond the thirty day period, orally transmitted information
shall be considered Protected Information only if by the date in
question the orally transmitted information has also been
transmitted in documents or other materials marked in accordance
with Paragraph 2, above. Subsequent oral transmission of the
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same information shall not detract from its status as Protected
Information.
4. Information received by FCCG from any FCCG Member
that is contained in a document identified as Protected
Information in accordance with a separate confidentiality
agreement between ERC/FCEC and said FCCG Member shall be treated
by FCCG as Protected Information under this Agreement, unless
that information is also provided to FCCG in a manner which
renders it unprotected. Information of ERC contained in a
document marked as containing confidential or proprietary
information of ERC in accordance with Paragraph 2, above, and
transmitted by FCEC to FCCG shall be treated by FCCG as
Protected Information under this Agreement in the same manner as
if the information had been transmitted directly to FCCG by
ERC. Information of FCEC contained in a document marked as
containing confidential or proprietary information of FCEC in
accordance with Paragraph 2 above, and transmitted by ERC to
FCCG shall be treated by FCCG as Protected Information under
this Agreement in the same manner as if the information had been
transmitted directly to FCCG by FCEC.
5. Notwithstanding any other provision of this
Agreement, the following information received by a Receiving
Party from a Transmitting Party shall not be considered
- 7 -
proprietary or treated as Protected Information:
(a) Information that has been or becomes published or
generally known to the trade or to others without
breach or fault on the part of the Receiving
Party;
(b) Information that is known by the Receiving Party
prior to the disclosure thereof hereunder as
evidenced by written records of the Receiving
Party;
(c) Information received by the Receiving Party
legally and free of any contrary obligation of
confidentiality from a Third Party who, to the
best knowledge of the Receiving Party after
reasonable inquiry, did not obtain such by breach
of any obligation owed to the Transmitting Party,
or to a Third Party whose proprietary information
has been disclosed by the Transmitting Party.
6. FCCG shall have the right to disclose any
information it' receives from ERC/FCEC, including Protected
Information, to any FCCG Member or Members in furtherance of the
Commercialization Plan, provided, however, FCCG shall have the
right to disclose such Protected Information to FCCG Members
only as follows:
(a) FCCG shall make no disclosure of Protected
- 8 -
Information to any FCCG Member unless the Member
and ERC/FCEC have executed a Confidentiality
Agreement as set forth in Exhibit A attached
hereto and made part hereof, and at the time of
the disclosure the Confidentiality Agreement is in
force and effect and has not expired;
(b) FCCG shall make disclosures of Protected
Information to FCCG Members only through the named
individuals authorized to received ERC/FCEC
Protected Information under the terms of the
aforementioned Confidentiality Agreement between
ERC/FCEC and the FCCG Member;
(c) FCCG shall mark all documents or other materials
transmitted to any FCCG Member containing
Protected Information in the manner described in
Paragraph 2, above, (as modified by the provisions
of this subsparagraph, below) and shall not
transmit Protected Information orally unless such
Protected Information has already been transmitted
in documents or materials bearing the markings
required by this subparagraph. In marking
documents pursuant to this subparagraph, (1)
documents which are originals or copies of
ERC/FCEC documents marked by ERC/FCEC as Protected
Information in accordance with paragraph 2, above,
- 9 -
shall require no further marking by FCCG and the
marking provided by ERC/FCEC shall suffice to
maintain the information as Protected Information;
and (2) all other documents shall be marked to
indicate the Party or Parties whose Protected
Information is contained in the documents as
follows: CONTAINS PROPRIETARY INFORMATION OF XXX
-- SUBJECT TO CONFIDENTIALITY AGREEMENT -- where
XXX can be ERC, FCEC or FCCG or combinations
thereof.
Any disclosure by FCCG to an FCCG Member in accordance with the
foregoing requirements shall be considered a "Permitted
Disclosure". Each of ERC and FCEC shall have the right to
disclose to the other Protected Information received from FCCG,
and such Protected Information shall be treated under this
Agreement when received by ERC or FCEC from the other in the
same manner as it would have if transmitted directly from FCCG.
Each Party shall have the right to disclose information that it
receives from the other Party other than Protected Information
to any other persons or entities, including members of the
general public.
7. FCCG shall not be responsible for the manner in
which Protected Information is used by FCCG Members to whom FCCG
- 10 -
transmits such information, except for the manner in which FCCG
Members receive Protected Information from FCCG. The rights and
obligations of FCCG Members with regard to Protected Information
received by them from FCCG shall be determined solely by the
separate confidentiality agreements executed by FCEC and each
FCCG Member. FCCG shall not be held liable for any breach of
any confidentiality agreement between FCEC and an FCCG Member.
8. (a) Subject to the provisions of subparagraph
8(b) below, each Party shall control and treat as proprietary
the Protected Information it receives from the other Party and
shall use the Protected Information only in connection with and
in furtherance of the purposes of the commercialization Plan.
(b) Notwithstanding any other provision of this
Agreement, FCCG shall not: (i) disclose ERC/FCEC Protected
Information to other than FCCG Members and then only in
accordance with Paragraph 6 above; (ii) use ERC/FCEC Protected
Information other than in-house or with FCCG members to review
technical designs and to evaluate whether FCCG members wish to
purchase Fuel Cell Power Plant Systems or, subject to 8(b) (iii)
below, for activities related to the commercialization Plan; or
(iii) use ERC/FCEC Protected Information to conduct research in
or develop or to manufacture, operate or sell fuel cells, fuel
cell power plant systems or any components thereof.
- 11 -
9. Each Party agrees to develop and implement such
procedures as may be required to prevent intentional or
negligent disclosure to Third Parties (other than Permitted
Disclosures by FCCG to FCCG Members) of Protected Information of
the other Party. To such end, each Party shall at a minimum:
(i) disclose such Protected Information of the other Party only
to such of its employees who have a "need to know" in order to
carry out their functions in connection with the permitted uses
of the Information set forth in Paragraph 8, above; (ii) prior
to the disclosure of any Protected Information of the other
Party to any such employee, provide the employee with notice of
the employee's confidentiality obligations as provided hereunder
by delivering to the employee a copy of this Agreement and
requiring the employee to acknowledge in writing such
obligations; and (iii) maintain all documents, drawings,
writings and other items of any nature marked in accordance with
Paragraph 2, above, as containing Protected Information of the
other Party in files separate and apart from other information
in a Party's possession, to be removed therefrom only in
connection with the permitted uses of the Information as set
forth in Paragraph 8 above.
10. Nothing contained herein shall constitute or be
construed to constitute the grant of any license under any
patent, patent application, Know-how, or other industrial
- 12 -
property right or right of ownership. None of the Protected
Information disclosed hereunder shall constitute any
representation, warranty, assurance, guarantee, or inducement
with respect to the infringement of patents, trade secrets or
any other rights of third parties.
11. Any disclosure of Protected Information other than
in accordance with the terms and conditions of this Agreement,
or as otherwise agreed in writing between the Parties, shall be
a "Prohibited Disclosure". If a Party becomes aware of a
Prohibited Disclosure or of information indicating the
likelihood of a Prohibited Disclosure, whether said Party is the
Transmitting Party or the Receiving Party with respect to the
Protected Information in question, the Party so aware shall
immediately notify the other Party in writing of the Prohibited
Disclosure or likely Prohibited Disclosure. If a Party becomes
aware or has been notified of a Prohibited Disclosure for which
it is responsible, that Party shall immediately take all
reasonable actions to retrieve the Protected Information
wrongfully disclosed, and to halt or limit the dissemination
and unauthorized use thereof.
12. Each Party hereto, with regard to any Protected
Information for which it is the Receiving Party, hereby
indemnifies and holds harmless the other Party hereto against
- 13 -
any and all claims by any Third Party arising out of any
Prohibited Disclosure by the Receiving Party that causes the
disclosure of Protected Information proprietary to said Third
Party.
13. Nothing in this Agreement shall require FCCG to
refuse to disclose ERC/FCEC information to FCCG Members, if such
disclosure or refusal to disclose would constitute a violation
of the NCRA; provided, however, that FCCG represents and
warrants: (i) that FCCG will not request or accept ERC/FCEC
information unless there is in force and effect a
Confidentiality Agreement as set forth in Exhibit A between
ERC/FCEC and each and every existing FCCG Member and (ii) that
each and every future FCCG Member shall execute such a
Confidentiality Agreement with ERC/FCEC concurrently with
becoming an FCCG Member. It shall not be a breach of this
Agreement for a Party to disclose Protected Information of the
other Party pursuant to any governmental or court order as long
as the Party subject to such governmental or court order has
taken all reasonable steps in consultation with the other Party,
including the making of timely motions for obtaining suitable
protective orders, to maintain to the maximum possible degree
the confidentiality of the information required to be disclosed
pursuant to said governmental or court order.
- 14 -
14. This Agreement shall expire upon the occurrence of
any of the following events, whichever shall first transpire:
(a) Upon the expiration of six (6) months advance
written notice of termination given by any of the
Parties on or after the elapse of fifty four (54)
months from the day and year first above written;
(b) By mutual agreement of the Parties.
15. Upon the expiration of this Agreement as provided
in Paragraph 14, above, each Party shall, upon written request
from the other Party, return to the other Party any and all
documents or other materials containing Protected Information of
the other Party (and any copies thereof). For a period of ten
(10) years after the expiration or termination of this
Agreement, neither Party hereto shall have the right to disclose
or use for any purpose Protected Information of the other Party.
16. This Agreement shall be governed by and
interpreted in accordance with the laws of the state of New
York. Any disputes arising out of this Agreement that are
submitted to formal dispute resolution, whether before a court,
before an arbitral tribunal, or otherwise, shall be situated in
the venue of the city and state of New York or in a venue of a
state where any Party has its principal place of business, as
selected by the Party submitting the dispute to formal dispute
- 15 -
.
resolution.
IN WITNESS WHEREOF, each of the Parties has caused this
Agreement to be executed on the day and year first above
written.
FUEL CELL ENGINEERING CORPORATION
By:
~F~
Name: Robert F. Riordan
Title: President
ENERGY RESEARCH CORPORATION
FUEL CELL COMMERCIALIZATION GROUP
By:
/ "
/ Ct' //
t. . ~(....r
Name:' ,~ff ey A. serfass
Title: ' Executive Dir~tor
- 16 -
.
EXHIBIT C
To Agreement Between BRC/FCEC and the city of Vernon. California
Notices and ~ransmittals
Energy Research Corporation
3 Great Pasture Road
Danbury, CT 06813
Fuel Cell Engineering Corporation
3 Great Pasture Road
Danbury, CT 06813
The City of Vernon, California
City Hall
4305 Santa Fe Avenue
Vernon, CA 90058