Attachment_G_Model_Other_Transaction_for_Prototype_v2.docx

Agreement No. HR0011XX9XXXX DARPA has provided the model OT as an opportunity for proposer to suggest edits for consideration. The model OT is representative of the general terms and conditions that DARPA intends to include in any awards, however final terms and conditions will be specific to each award and will vary from the model provided here.

Proposers may suggest edits to the model OT for consideration by DARPA and provide a copy of the model OT with track changes as part of their proposal package. Proposed changes to the model OT will not be evaluated. Any changes suggested should be commensurate with the technical approach, milestones, and deliverables proposed. It is required that Proposers include comments providing rationale for any suggested edits of a non-administrative nature. Suggested edits may be rejected at DARPA’s discretion.

**DARPA will complete all sections in brown/red *DARPA additional instructions in red.

**Performer must track any requested OT Article changes and complete all blue sections of Agreement.

Other Transaction for Prototypes

BETWEEN

(INSERT PERFORMER NAME AND ADDRESS)

AND

THE DEFENSE ADVANCED RESEARCH PROJECTS AGENCY

675 NORTH RANDOLPH STREET

ARLINGTON, VA 22203-2114

CONCERNING

(INSERT RESEARCH AND DEVELOPMENT TITLE)

Agreement No.: HR0011-XX-9-XXXX Purchase Requisition No.: XXXXXXXXXXXXXX Total Amount of the Agreement: $XXXXXXXXXXXXXX Funds Obligated: $XXXXXXXXXXXXXX Authority: 10 U.S.C. § 4022 Effective Date: MM/DD/YYYY Period of Performance:

Line(s) of Appropriation:

0001/000101

AA

This Agreement is entered into between the United States of America, hereinafter called the Government, represented by The Defense Advanced Research Projects Agency (DARPA), and (INSERT PERFORMER NAME) pursuant to and under United States Federal law. Note that by signing this Agreement, (INSERT PERFORMER NAME) also attests to the accuracy and completion of the Certifications of the Agreement herein Attachment 8, Certifications for Agreement.

FOR (INSERT PERFORMER NAME) FOR THE GOVERNMENT DEFENSE ADVANCED RESEARCH PROJECTS AGENCY

(Signature) (Signature)

(Name, Title) (Date) (Name, Title) (Date)

TABLE OF CONTENTS

ARTICLES

The following article will be included if applicable:

Not applicable if:

⦁ The performer is a non-traditional or NDC entity, such as a small business, university, nonprofit, or a business new to working with the government.

ARTICLE 18 Options

ATTACHMENTS

ARTICLE 1: SCOPE OF THE AGREEMENT

A. Background

The Program is as set forth in Attachment 1, Task Description Document (TDD).

B. Scope

1. This Agreement is an Other Transaction pursuant to 10 U.S.C. § 4022. The principal purpose of this Agreement is to conduct a research and development program for the development of a (DESCRIBE PROTOTYPE). This research shall be carried out in accordance with the Performer’s proposal, Attachment 1, TDD, Section “X” (i.e. Scope of Work).

2. The Performer shall be paid a fixed amount for each milestone accomplished in accordance with Attachment 3, Schedule of Milestones and Payments and the procedures of Article 4.

C. Goals / Objectives

1. The goal(s) of this Agreement is/are outlined in the Performer’s proposal, section “X” (REFERENCE SECTION THAT DESCRIBES THE GOALS OF THE AGREEMENT).

2. The Government will have continuous involvement with the Performer. The Government will obtain access to program results and rights in patents and data pursuant to Articles 6 and 7. DARPA and the Performer are bound to each other by a duty of good faith in achieving the Program objectives.

ARTICLE 2: TERM

A. Term of this Agreement

The Program commences upon the date of the effective date hereon and continues for 15 MONTHS. Option 1, if and to the extent exercised, will extend the term of the Agreement by an additional 9 months. Option 2, if and to the extent exercised, will extend the term of the Agreement for an additional 6 months, for a total of 30 months for the program. Provisions of this Agreement, which, by their express terms or by necessary implication, apply for periods of time other than specified herein, shall be given effect, notwithstanding this Article.

B. Termination Provisions

The Government may terminate this Agreement by written notice to the Performer, provided that such written notice is preceded by consultation between the Parties. The Performer may request Agreement termination by giving the Government sixty (60) days written notification of their intent to do so. If the Performer decides to request termination of this Agreement, the Government may, at its discretion, agree to terminate. The Government and the Performer should negotiate in good faith a reasonable and timely adjustment of all outstanding issues between the Parties as a result of termination, which may include non-cancelable commitments. In the event of a termination of the Agreement, the Government shall have paid-up rights in Data as described in Article 7, Data Rights. Failure of the Parties to agree to an equitable adjustment shall be resolved pursuant to Article 5, Disputes.

C. Extending the Term

The Parties may extend, by mutual written agreement, the term of this Agreement if research opportunities from the vision statement set forth in Article 1 reasonably warrant. Any extension shall be formalized through modification of the Agreement by the Agreements Officer (AO) and the Performer Administrator.

ARTICLE 3: MANAGEMENT OF THE PROJECT

A. Management and Program Structure

The Performer shall be responsible for the overall technical and program management, technical planning and execution of the Program. The DARPA Agreements Officer’s Representative (AOR), in consultation with the DARPA Program Manager (PM), shall provide recommendations to Program developments and technical collaboration and be responsible for the review and verification of the completed milestones.

B. Modifications

1. Recommendations for modifications, including justifications to support any changes to the Scope of Work, as described in the Attachment 1, TDD and Attachment 3, Schedule of Milestones and Payments will be documented in a letter and submitted by the Performer to the DARPA AOR or the DARPA AO. This documentation will detail the technical, chronological, and financial impact of the proposed modification to the research program. The DARPA AO and the Performer shall approve any Agreement modification. The Government is not obligated to pay for additional or revised future milestones until Attachment 3, Schedule of Milestones and Payments is formally revised by the DARPA AO and made part of this Agreement.

2. The DARPA AOR shall be responsible for the review and verification of any recommendations to modify the SOW, prospective milestones, or other proposed changes to the terms and conditions of this Agreement.

3. For minor or administrative Agreement modifications (e.g. incremental funding, changes in the paying office or appropriation data, changes to Government or the Performer’s personnel identified in the Agreement, etc.) no signature is required by the Performer.

4. The DARPA AO will be responsible for instituting all modifications to this Agreement.

ARTICLE 4: OBLIGATION AND PAYMENT

A. Obligation

1. The Government’s liability to make payments to the Performer is limited to only those funds obligated under the Agreement or by modification to the Agreement. DARPA may obligate funds to the Agreement incrementally.

2. If a modification becomes necessary in performance of this Agreement, pursuant to Article 3, Paragraph B, the DARPA AO and the Performer’s Administrator shall execute a revised Schedule of Milestones and Payments for prospective milestones.

B. Payments

1. The Parties agree that fixed payments will be made for the completion of milestones. These payments reflect value received by the Government toward the accomplishment of the research goals of this Agreement.

2. The Performer shall document the accomplishments of each completed milestone by submitting or otherwise providing the milestone report required by Attachment 1, Paragraph A. To the maximum extent practicable, the DARPA AOR shall review the deliverable(s)/milestone report(s) and either: 1) provide a written notice of rejection to the Performer which includes feedback regarding deficiencies requiring correction, or 2) written notice of acceptance to the DARPA PM, AO, and Performer within fifteen (15) calendar days of receipt of deliverable(s)/milestone report(s). Upon written approval from the DARPA AOR, the Performer will submit their invoice through Wide Area Workflow (WAWF), as detailed in Attachment 4.

3. Limitation of Funds: In no case shall the Government’s financial liability exceed the amount obligated under this Agreement.

4. Payments will be made by the cognizant Defense Finance and Accounting Service office, as indicated below, within thirty (30) calendar days of an accepted invoice in WAWF. Attachment 4 details how to submit and process invoices through WAWF.

5. Payments shall be made in the amounts set forth in Attachment 3, provided the DARPA AOR has verified the completion of the milestones.

6. The Performer shall maintain adequate records to account for all funding under this Agreement. Upon completion or termination of this Agreement, whichever occurs earlier, the Performer shall furnish to the AO a copy of the Final Report required by Attachment 2, Paragraph D.

ARTICLE 5: DISPUTES

A. General

The Parties shall communicate with one another in good faith and in a timely and cooperative manner when raising issues under this Article.

B. Dispute Resolution Procedures

1. Any disagreement, claim or dispute between DARPA and the Performer concerning questions of fact or law arising from or in connection with this Agreement, and, whether or not involving an alleged breach of this Agreement, may be raised only under this Article.

2. Whenever disputes, disagreements, or misunderstandings arise, the Parties shall attempt to resolve the issue(s) involved by discussion and mutual agreement as soon as practicable. In no event shall a dispute, disagreement or misunderstanding which arose more than three (3) months prior to the notification made under Subparagraph B.3 of this Article constitute the basis for relief under this Article unless the Director of DARPA in the interests of justice waives this requirement.

3. Failing resolution by mutual agreement, the aggrieved Party shall document the dispute, disagreement, or misunderstanding by notifying the other Party in writing, through the DARPA AO, of the relevant facts, identify unresolved issues, and specify the clarification or remedy sought. Within five (5) working days after providing notice to the other Party, the aggrieved Party may, in writing, request a joint decision by the DARPA Senior Procurement Executive and a senior executive, no lower than (INSERT A LEVEL OF EXECUTIVE FAR ENOUGH REMOVED FROM THE PROGRAM TO MAINTAIN A GREATER LEVEL OF IMPARTIALITY) level, appointed by the Performer. The other Party shall submit a written position on the matter(s) in dispute within thirty (30) calendar days after being notified that a decision has been requested. The DARPA Senior Procurement Executive and the Performer’s appointed senior executive shall conduct a review of the matter(s) in dispute and render a decision in writing within thirty (30) calendar days of receipt of such written position. Any such joint decision is final and binding.

4. In the absence of a joint decision, upon written request to the Deputy Director of DARPA, made within thirty (30) calendar days of the expiration of the time for a decision under Subparagraph B.3 above, the dispute shall be further reviewed. The Deputy Director of DARPA may elect to conduct this review personally or through a designee or jointly with a senior executive, no lower than (INSERT A LEVEL OF EXECUTIVE FAR ENOUGH REMOVED FROM THE PROGRAM TO MAINTAIN A GREATER LEVEL OF IMPARTIALITY) level, appointed by the Performer. Following the review, the Deputy Director of DARPA will resolve the issue(s) and notify the Parties in writing. Such resolution is not subject to further administrative review and, to the extent permitted by law, shall be final and binding. Comment by Phan, Phuong “Thao”: Performer - The “executive” in Paragraph 4 must be a level higher than the Executive level stated in paragraph 3.

C. Limitation of Damages

Claims for damages of any nature whatsoever pursued under this Agreement shall be limited to direct damages only up to the aggregate amount of DARPA funding disbursed as of the time the dispute arises. In no event shall DARPA be liable for claims for consequential, punitive, special and incidental damages, claims for lost profits, or other indirect damages.

ARTICLE 6: PATENT RIGHTS

A. Allocation of Principal Rights

1. Unless the Performer shall have notified DARPA, in accordance with Subparagraph B.2 below, that the Performer does not intend to retain title, the Performer shall retain the entire right, title, and interest throughout the world to each Subject Invention consistent with the provisions of this Article.

2. With respect to any Subject Invention in which the Performer retains title, DARPA shall have a nonexclusive, nontransferable, irrevocable, paid-up license to practice, or to have practiced on behalf of the United States, the Subject Invention throughout the world.

B. Invention Disclosure, Election of Title, and Filing of Patent Application

1. The Performer shall disclose each Subject Invention to DARPA within four (4) months after the inventor discloses it in writing to their company personnel responsible for patent matters. The disclosure to DARPA shall be in the form of a written report and shall identify the Agreement and circumstances under which the invention was made and the identity of the inventor(s). It shall be sufficiently complete in technical detail to convey a clear understanding, to the extent known at the time of the disclosure, of the nature, purpose, operation, and the physical, chemical, biological, or electrical characteristics of the Invention. The disclosure shall also identify any publication, sale, or public use of the Invention and whether a manuscript describing the invention has been submitted and/or accepted for publication at the time of disclosure.

2. If the Performer determines that it does not intend to retain title to any such Invention, the Performer shall notify DARPA, in writing, within eight (8) months of disclosure to DARPA. However, in any case where publication, sale, or public use has initiated the one-year statutory period wherein valid patent protection can still be obtained in the United States, the period for such notice may be shortened by DARPA to a date that is no more than sixty (60) calendar days prior to the end of the statutory period.

3. The Performer shall file its initial patent application on a Subject Invention to which it elects to retain title within one (1) year after election of title or, if earlier, prior to the end of the statutory period wherein valid patent protection can be obtained in the United States after a publication, or sale, or public use. The Performer may elect to file patent applications in additional countries, including the European Patent Office and the Patent Cooperation Treaty, within either ten (10) months of the corresponding initial patent application or six (6) months after the date permission is granted by the Commissioner for Patents to file foreign patent applications, where such filing had previously been prohibited by a Secrecy Order.

4. The Performer shall notify DARPA of any decisions not to continue the prosecution of a patent application, pay maintenance fees, or defend in a reexamination or opposition proceedings on a patent, in any country, not less than thirty (30) calendar days before the expiration of the response period required by the relevant patent office.

5. Requests for extension of the time for disclosure election, and filing under this Article, may be granted at DARPA’s discretion after considering the circumstances of the Performer and the overall effect of the extension.

6. The Performer shall submit to DARPA annual listings of Subject Inventions. At the completion of the Agreement, the Performer shall submit a comprehensive listing of all Subject Inventions identified during the course of the Agreement and the current status of each.

C. Conditions When the Government May Obtain Title

Upon DARPA’s written request, the Performer shall convey title to any Subject Invention to DARPA under any of the following conditions:

1. If the Performer fails to disclose or elects not to retain title to the Subject Invention within the times specified in Paragraph B of this Article; however, DARPA may only request title within sixty (60) calendar days after learning of the failure of the Performer to disclose or elect within the specified times;

2. In those countries in which the Performer fails to file patent applications within the times specified in Paragraph B of this Article; however, if the Performer has filed a patent application in a country after the times specified in Paragraph B of this Article, but prior to its receipt of the written request by DARPA, the Performer shall continue to retain title in that country; or

3. In any country in which the Performer decides not to continue the prosecution of any application for, to pay the maintenance fees on, or defend in reexamination or opposition proceedings on, a patent on a Subject Invention.

D. Minimum Rights to the Performer and Protection of the Performer’s Right to File

1. The Performer shall retain a nonexclusive, royalty-free license throughout the world in each Subject Invention to which the Government obtains title, except if the Performer fails to disclose the Subject Invention within the times specified in Paragraph B of this Article. The Performer’s license extends to its domestic subsidiaries and affiliates, including Canada, if any, and includes the right to grant licenses of the same scope to the extent that the Performer was legally obligated to do so at the time the Agreement was awarded. The license is transferable only with the approval of DARPA, except when transferred to the successor of that part of the business to which the Subject Invention pertains. DARPA approval for license transfer shall not be unreasonably withheld.

2. The Performer’s domestic license may be revoked or modified by DARPA to the extent necessary to achieve expeditious practical application of the Subject Invention pursuant to an application for an exclusive license submitted consistent with appropriate provisions at 37 C.F.R. Part 404. This license shall not be revoked in that field of use or the geographical areas in which the Performer has achieved practical application and continues to make the benefits of the Subject Invention reasonably accessible to the public. The license in any foreign country may be revoked or modified at the discretion of DARPA to the extent the Performer, its licensees, or the subsidiaries or affiliates have failed to achieve practical application in that foreign country.

3. Before revocation or modification of the license, DARPA shall furnish the Performer a written notice of its intention to revoke or modify the license, and the Performer shall be allowed thirty (30) calendar days (or such other time as may be authorized for good cause shown) after the notice to show cause why the license should not be revoked or modified.

E. Action to Protect the Government’s Interest

1. The Performer agrees to execute or to have executed and promptly deliver to DARPA all instruments necessary to (1) establish or confirm the rights the Government has throughout the world in those Subject Inventions to which the Performer elects to retain title, and (2) convey title to DARPA when requested under Paragraph C of this Article and to enable the Government to obtain patent protection throughout the world in that Subject Invention.

2. The Performer agrees to require by written agreement with its employees, other than clerical and non-technical employees, to disclose promptly in writing to personnel identified as responsible for the administration of patent matters and in a format suggested by the Performer each Subject Invention made under this Agreement in order that the Performer can comply with the disclosure provisions of Paragraph B of this Article. The Performer shall instruct employees, through employee agreements or other suitable educational programs, on the importance of reporting Inventions in sufficient time to permit the filing of patent applications prior to United States or foreign statutory bars.

3. The Performer shall include, within the specification of any United States patent application and any patent issuing thereon covering a Subject Invention, the following statement:

This invention was made with Government support under Agreement No. HR0011-XX-9-XXXX, awarded by DARPA. The Government has certain rights in the invention.

F. Lower Tier Agreements

The Performer shall include this Article, suitably modified, in all subcontracts or lower tier agreements, regardless of tier, for experimental, developmental, or research work.

G. Reporting on Utilization of Subject Inventions

1. The Performer agrees to submit, during the term of the Agreement, an annual report on the utilization of a Subject Invention or on efforts at obtaining such utilization that are being made by the Performer or its licensees or assignees. Such reports shall include information regarding the status of development, date of first commercial sale or use, gross royalties received by the Performer, and such other data and information as the agency may reasonably specify. The Performer also agrees to provide additional reports as may be requested by DARPA in connection with any march-in proceedings undertaken by DARPA in accordance with Paragraph I of this Article. DARPA agrees it shall not disclose such information to persons outside the Government without permission of the Performer, unless required by law.

2. All required reporting shall be accomplished, to the extent possible, using the i-Edison reporting website: https://www.nist.gov/iedison. To the extent any such reporting cannot be carried out by use of i-Edison, reports and communications shall be submitted to the AO and Administrative Agreements Officer (AAO), if one is appointed.

H. Preference for American Industry

Notwithstanding any other provision of this Agreement, the Performer agrees that it shall not grant to any person the exclusive right to use or sell any subject invention in the United States unless such person agrees that any product embodying the Subject Invention or produced through the use of the Subject Invention shall be manufactured substantially in the United States. However, in individual cases, the requirements for such an agreement may be waived by DARPA upon a showing by the Performer that reasonable but unsuccessful efforts have been made to grant licenses on similar terms to potential licensees that would be likely to manufacture substantially in the United States or that, under the circumstances, domestic manufacture is not commercially feasible.

I. March-in Rights

The Performer agrees that, with respect to any Subject Invention in which it has retained title, DARPA has the right to require the Performer, an assignee, or exclusive licensee of a Subject Invention to grant a non-exclusive license to a responsible applicant or applicants, upon terms that are reasonable under the circumstances, and if the Performer, assignee, or exclusive licensee refuses such a request, DARPA has the right to grant such a license itself if DARPA determines that:

1. Such action is necessary because the Performer or assignee has not taken effective steps, consistent with the intent of this Agreement, to achieve practical application of the Subject Invention;

2. Such action is necessary to alleviate health or safety needs which are not reasonably satisfied by the Performer, assignee, or their licensees;

3. Such action is necessary to meet requirements for public use and such requirements are not reasonably satisfied by the Performer, assignee, or licensees; or

4. Such action is necessary because the agreement required by Paragraph H of this Article has not been obtained or waived or because a licensee of the exclusive right to use or sell any Subject Invention in the United States is in breach of such Agreement.

ARTICLE 7: DATA RIGHTS

A. Allocation Of Principal Rights

1. The Parties agree that in consideration for Government funding, the Performer intends to reduce to practical application items, components and processes developed under this Agreement.

2. With respect to Data developed or generated under this Agreement related to the (INSERT DELIVERABLE PROTOTYPE), the Government shall receive Unlimited Rights, as defined in Attachment 5.

3. With respect to Data delivered pursuant to Attachment 1 under the Agreement, the Government shall receive Unlimited Rights). Notwithstanding the provision in A.4, the performer agrees, with respect to data generated or developed under this Agreement, the Government may, within 3 years after completion or termination of this Agreement, require delivery of data and receive Unlimited Rights).

4. March-In Rights

a. In the event the Government chooses to exercise its March-in Rights, as defined in Article 7, Paragraph 1 of this Agreement, the Performer agrees, upon written request from the Government, to deliver at no additional cost to the Government, all Data necessary to achieve practical application within sixty (60) calendar days from the date of the written request. The Government shall retain Unlimited Rights, as defined in Attachment 5 of this Agreement, to this delivered Data.

b. To facilitate any potential deliveries, the Performer agrees to retain and maintain in good condition until 3 years after completion or termination of this Agreement, all Data necessary to achieve practical application of any Subject Invention as defined in Attachment 5.

B. Marking of Data

Pursuant to Paragraph A above, any Data delivered under this Agreement shall be marked with the following legend:

Use, duplication, or disclosure is subject to the restrictions as stated in Agreement HR0011-XX-9-XXXX between the Government and the Performer.

C. Lower Tier Agreements

The Performer shall include this Article, suitably modified to identify the Parties, in all subcontracts or lower tier agreements, regardless of tier, for experimental, developmental, or research work.

ARTICLE 8: FOREIGN ACCESS TO TECHNOLOGY

This Article shall remain in effect during the term of the Agreement and for 5 years thereafter.

A. General

The Parties agree that research findings and technology developments arising under this Agreement may constitute a significant enhancement to the national defense, and to the economic vitality of the United States. Accordingly, access to important technology developments under this Agreement by Foreign Firms or Institutions must be carefully controlled. The controls contemplated in this Article are in addition to, and are not intended to change or supersede, the provisions of the International Traffic in Arms Regulations (22 C.F.R. Part 120, et seq.), National Industrial Security Program Operating Manual (NISPOM) (32 C.F.R. Part 117, et seq.), and the Department of Commerce’s Export Administration Regulations (15 C.F.R. Part 730, et seq.).

B. Restrictions on Sale or Transfer of Technology to Foreign Firms or Institutions

1. In order to promote the national security interests of the United States and to effectuate the policies that underlie the regulations cited above, the procedures stated in Subparagraphs B.2, B.3, and B.4 below shall apply to any transfer of technology. For purposes of this Paragraph, a transfer includes a sale of the company, and sales or licensing of technology. Transfers do not include:

a. Sales of products or components; or

b. Licenses of software or documentation related to sales of products or components; or

c. Transfer to foreign subsidiaries of the Performer for purposes related to this Agreement; or

d. Transfer which provides access to technology to a Foreign Firm or Institution which is an approved source of supply or source for the conduct of research under this Agreement provided that such transfer shall be limited to that necessary to allow the firm or institution to perform its approved role under this Agreement.

2. The Performer shall provide timely notice to DARPA of any proposed transfers from the Performer of technology developed under this Agreement to Foreign Firms or Institutions. If DARPA determines that the transfer may have adverse consequences to the national security interests of the United States, the Performer, its vendors, and DARPA shall jointly endeavor to find alternatives to the proposed transfer which obviate or mitigate potential adverse consequences of the transfer, but which provide substantially equivalent benefits to the Performer.

3. In any event, the Performer shall provide written notice to the DARPA AOR and the DARPA AO of any proposed transfer to a Foreign Firm or Institution at least sixty (60) calendar days prior to the proposed date of transfer. Such notice shall cite this Article and shall state specifically what is to be transferred and the general terms of the transfer. Within thirty (30) calendar days of receipt of the Performer’s written notification, the DARPA AO shall advise the Performer whether it consents to the proposed transfer. In cases where DARPA does not concur or sixty (60) calendar days after receipt and DARPA provides no decision, the Performer may utilize the procedures under Article 5, Disputes. No transfer shall take place until a decision is rendered.

4. In the event a transfer of technology to Foreign Firms or Institutions which is NOT approved by DARPA takes place, the Performer shall (a) refund to DARPA funds paid for the development of the technology and (b) the Government shall have a non-exclusive, nontransferable, irrevocable, paid-up license to practice, or to have practiced on behalf of the United States, the technology throughout the world for Government and any and all other purposes, particularly to effectuate the intent of this Agreement. Upon request of the Government, the Performer shall provide written confirmation of such licenses.

C. Lower Tier Agreements

The Performer shall include this Article, suitably modified, to identify the Parties, in all subcontracts or lower tier agreements, regardless of tier, for experimental, developmental, or research work.

ARTICLE 9: TITLE TO AND DISPOSITION OF PROPERTY

A. Title to Property (USE THIS PARAGRAPH IF NO PROPERTY BEING ACQUIRED OVER $10,000, AND DELETE ATTACHMENT 8 FROM TABLE OF CONTENTS AND AGREEMENT.)

No significant items of property are expected to be acquired under this Agreement. Title to each item of property acquired under this Agreement with an acquisition value of $10,000 or less shall vest in the Performer upon acquisition with no further obligation of the Parties unless otherwise determined by the AO. Should any item of property with an acquisition value greater than $10,000 is required, the Performer shall obtain prior written approval of the AO. Title to this property shall also vest in the Performer upon acquisition. The Performer shall be responsible for the maintenance, repair, protection, and preservation of all property at its own expense. The Performer’s deliverable prototype shall not be classified as property.

A. Title to Property (USE THIS PARAGRAPH IF THERE WILL BE PROPERTY ACQUIRED OVER $10,000, AND USE ATTACHMENT 8 IN TABLE OF CONTENTS AND AGREEMENT.)

Items of property with an acquisition value greater than $10,000 are expected to be acquired under this Agreement and are listed in Attachment 9. Title to each item of property acquired under this Agreement with an acquisition value of $10,000 or less shall vest in the Performer upon acquisition with no further obligation of the Parties unless otherwise determined by the AO. Additional items of property with an acquisition value greater than $10,000 can only be obtained with prior written approval of the AO and modification of this Agreement. Title to this property shall also vest in the Performer upon acquisition. The Performer shall be responsible for the maintenance, repair, protection, and preservation of all property at its own expense. The Performer’s deliverable prototype shall not be classified as property.

B. Disposition of Property

At the completion of the term of this Agreement, items of property with an acquisition value greater than $10,000 shall be disposed of in the following manner:

1. Purchased by the Performer at an agreed-upon price, the price to represent fair market value, with the proceeds of the sale being returned to DARPA; or

2. Transferred to a Government research facility with title and ownership being transferred to the Government; or

3. Donated to a mutually agreed University or technical learning center for research purposes; or

4. Any other DARPA-approved disposition procedure.

ARTICLE 10: SAFEGUARDING COVERED DEFENSE INFORMATION AND CYBER INCIDENT REPORTING

A. Background

Protection of Covered Defense Information (CDI), to include Controlled Unclassified Information (CUI) and Controlled Technical Information (CTI), is of paramount importance to DARPA and can directly impact the ability of DARPA to successfully conduct its mission. Therefore, this Article requires the Performer to protect CDI that resides on the performer’s information systems. This Article also requires the Performer to rapidly report any cyber incident involving CDI.

B. Safeguarding CDI

The Performer shall implement the version of NIST Special Publication (SP) 800-171 in effect at the time the solicitation is issued or as authorized by the Agreements Officer for CUI and CTI that resides on the performer’s information systems. Consistent with NIST SP 800-171, implementation may be tailored to facilitate equivalent safeguarding measures used in the performer systems and organization. Any suspected loss or compromise of CDI that resides on the performer’s information systems shall be considered a cyber incident and require the Performer to rapidly report the incident to DARPA in accordance with Paragraph C below.

C. Cyber Incident Reporting

Upon discovery of a cyber incident involving CUI or CTI, the Performer shall take immediate steps to mitigate any further loss or compromise. The Performer shall rapidly report the incident to DARPA and provide sufficient details of the event—including identification of detected and isolated malicious software—to enable DARPA to assess the situation and provide feedback to the Performer regarding further reporting and potential mitigation actions. The Performer shall preserve and protect images of all known affected information systems and all relevant monitoring/packet capture data for at least ninety (90) days from reporting the cyber incident to enable DARPA to assess the cyber incident. The Performer agrees to rapidly implement security measures as recommended by DARPA and to provide to DARPA any additionally requested information to help the Parties resolve the cyber incident and to prevent future cyber incidents.

D. Public Release

All information and data covered by this Article must be reviewed and approved by DARPA prior to any public release. The DARPA public release process is governed by DARPA Instruction 65. An online form is available to support those requests at: https://www.darpa.mil/work-with-us/contract-management/public-release.

E. Lower Tier Agreements

The Performer shall include this Article in all subcontracts or lower tier agreements, regardless of tier, for work performed in support of this Agreement.

F. Definitions

Compromise: Disclosure of information to unauthorized persons, or a violation of the security policy of a system, in which unauthorized intentional or unintentional disclosure, modification, destruction, or loss of an object, or the copying of information to unauthorized media may have occurred.

Covered Contractor Information System: Unclassified information system that is owned, or operated by or for, a contractor and that processes, stores, or transmits covered defense information.

Covered Defense Information (CDI): Unclassified controlled technical information or other information, as described in the Controlled Unclassified Information (CUI) Registry at http://www.archives.gov/cui/registry/category-list.html, that requires safeguarding or dissemination controls pursuant to and consistent with law, regulations, and Governmentwide policies, and is (1) Marked or otherwise identified in the agreement, task order, or delivery order and provided to the performer by or on behalf of DoD in support of the performance of the agreement; or (2) Collected, developed, received, transmitted, used, or stored by or on behalf of the performer in support of the performance of the agreement.

Controlled Technical Information (CTI): Technical information with military or space application that is subject to controls on the access, use, reproduction, modification, performance, display, release, disclosure, or dissemination. Controlled technical information would meet the criteria, if disseminated, for distribution statements B through F using the criteria set forth in DoD Instruction 5230.24, Distribution Statements on Technical Documents.

Controlled Unclassified Information (CUI): Unclassified information that requires safeguarding or dissemination controls, pursuant to and consistent with applicable law, regulations, and Government-wide policies. Instructions for the use, marking, dissemination, and storage of CUI can be found in DoD Instruction 5200.48, “Controlled Unclassified Information (CUI).”

Cyber Incident: Actions taken through the use of computer networks that result in a compromise or an actual or potentially adverse effect on an information system and/or the information residing therein.

Information System: A discrete set of information resources organized for the collection, processing, maintenance, use, sharing, dissemination, or disposition of information.

Rapidly Report: Report to DARPA within seventy-two (72) hours of discovery of any cyber incident.

ARTICLE 11: FOLLOW-ON PRODUCTION CONTRACTS OR OTHER TRANSACTIONS

In accordance with 10 U.S.C. § 4022(f), the Government may award a follow-on production contract or Other Transaction (OT) to the Performer, or a recognized successor in interest to the OT, following the successful completion of this entire Agreement, as modified.

ARTICLE 12: CIVIL RIGHTS ACT

This Agreement is subject to the compliance requirements of Title VI of the Civil Rights Act of 1964 as amended (42 U.S.C. § 2000d) relating to nondiscrimination in Federally assisted programs. The Performer has signed an Assurance of Compliance with the nondiscriminatory provisions of the Act.

ARTICLE 13: PUBLIC RELEASE OR DISSEMINATION OF INFORMATION

A. Prohibition There shall be no dissemination or publication, except within and between the Performer and any subcontractors, of information developed under this Agreement or contained in the reports to be furnished pursuant to this Agreement without prior written approval of the DARPA AOR or the DARPA PM. All technical reports will be given proper review by appropriate authority to determine which Distribution Statement is to be applied prior to the initial distribution of these reports by the Performer. Unclassified patent related documents are exempt from prepublication controls and this review requirement. There shall be no dissemination or publication, except within and between the Performer and any subcontractor(s), of information developed under this effort without first obtaining approval for public release from the DARPA Public Release Center (PRC). Papers prepared in response to academic requirements which are not intended for public release outside the academic institution are exempt from prepublication controls.

A. Public Release

The Performer shall submit all proposed public releases for review and approval as instructed at http://www.darpa.mil/work-with-us/contract-management/public-release. Public releases include press releases, specific publicity or advertisement, and publication or presentation, but exclude those relating to the open sourcing or licensing, sales or other commercial exploitation of products, services or technologies. In addition, articles for publication or presentation will contain a statement on the title page worded substantially as follows:

This research was, in part, funded by the U.S. Government. The views and conclusions contained in this document are those of the authors and should not be interpreted as representing the official policies, either expressed or implied, of the U.S. Government.

ARTICLE 14: ORDER OF PRECEDENCE

In the event of any inconsistency between the terms of this Agreement, the language set forth in the Attachments, and the Performer’s proposal, the inconsistency shall be resolved by giving precedence in the following order: (1) The Agreement, (2) all Attachments to the Agreement, and (3) Performer’s proposal

ARTICLE 15: EXECUTION

This Agreement constitutes the entire agreement of the Parties and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions among the Parties, whether oral or written, with respect to the subject matter hereof. This Agreement may be revised only by written consent of the Performer and the DARPA AO. This Agreement, or modifications thereto, may be executed in counterparts each of which shall be deemed as original, but all of which taken together shall constitute one and the same instrument.

ARTICLE 16: PROHIBITION ON CONTRACTING FOR CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT

(a) Definitions. As used in this Agreement—