Attachment 2 - CRADA.docx

UNITED STATES AIR FORCE

COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENT

(CRADA)

between

<<AIR FORCE ACTIVITY>>

and

<<COLLABORATOR>>

“Title”

INDEX

SECTION I:

STANDARD TERMS AND CONDITIONS

ARTICLE 1— PREAMBLE

1.1. This Cooperative Research and Development Agreement (“Agreement”) for performing the work described in the Joint Work Plan is entered into under the authority of the Federal Technology Transfer Act of 1986, as amended and codified at 15 U.S.C. § 3710a, and pursuant to Air Force Policy Directive 61-3, Domestic Technology Transfer (20 May 2013) and Air Force Instruction 61-302, Cooperative Research and Development Agreements (30 May 2001) by and between <<Collaborator>> (“Collaborator”), located at <<Address of Collaborator>>, and the United States of America as represented by the Department of the Air Force, acting through <<Air Force Activity>>, (“Air Force Activity”), located at <<Address of Air Force Activity>>.

This Agreement is binding on Air Force Activity and Collaborator according to the terms and conditions set forth as follows.

DEFINITIONS

As used in this Agreement, the following terms have the following meanings and such meanings will be applicable to both the singular and plural forms of the terms.

“Reviewing Official” means the final authority of the Department of the Air Force for this Agreement, identified in Section III, Signatures, below the signatures of the parties.

“Effective Date” is the date this Agreement, including any Amendment thereto, is signed by the appropriate Air Force Activity official after having been signed by the appropriate Collaborator official unless the Reviewing Official disapproves of or requires modification to this Agreement within thirty (30) Days of the date signed by Air Force Activity. The Effective Date of any Modification is the date signed by the appropriate Air Force Activity official after having been signed by the appropriate Collaborator official.

“Government” means the Government of the United States of America including any agency or agencies thereof.

“Invention” means any invention or discovery which is or may be patentable or otherwise protected under Title 35 of the United States Code or any novel variety of plant which is or may be protected under the Plant Variety Protection Act (7 U.S.C. § 2321 et seq). See 35 U.S.C. § 201(d) and 15 U.S.C. § 3703(7).

“Created” when used in relation to any copyrightable work means the work is fixed in any tangible medium of expression for the first time. See 17 U.S.C. § 101.

“Made” when used in relation to any Invention means the conception or first actual reduction to practice of such Invention. See 35 U.S.C. § 201(g).

“Joint Work Plan” (Section II) describes the purpose and scope of this Agreement and assigns obligations and responsibilities among the parties. The Joint Work Plan specifically details any Background Technology brought to this Agreement; any property, equipment, maintenance, service, or other support to be provided; and any reports, products, or other deliverables expected to be produced or provided as a result of the collaborative activities under this Agreement. To the extent any provision of the Joint Work Plan, including any attachment thereto, conflicts with any provision in Section I: Standard Terms and Conditions, such provision in Section I: Standard Terms and Conditions, shall control.

“Under this Collaboration” means work performed by Air Force Activity or Collaborator employees in furtherance of their obligations or responsibilities described in the Joint Work Plan.

“Collaborator Restricted Information” is privileged or confidential information developed in whole or in part by Collaborator Under this Collaboration which embodies trade secrets or which is confidential technical, business or financial information, provided such information is identified as such by labels or markings designating the information as proprietary. Collaborator Restricted Information does not include information which is generally known or is available from another source without obligations concerning its confidentiality, or is described in an issued patent, published patent application, or published copyrighted work.

“Restricted Access Information” is information developed solely by Air Force Activity Under this Collaboration that would be a trade secret or commercial or financial information that is privileged or confidential if the information had been obtained from a non-Federal party participating in a CRADA. The term, “confidential,” as used throughout this Agreement, refers to the customary definition and should not be confused with the level of classification for national security information. Restricted Access Information does not include information which is generally known or is available from another source without obligations concerning its confidentiality, or is described in an issued patent, published patent application, or published copyrighted work.

“Protected Information” is any information developed Under this Collaboration, including both Collaborator Restricted Information and Restricted Access Information.

“Background Technology” is specified technology brought to this Agreement by either party consisting of privileged or restricted information or intellectual property protected by trade secret or described in a patent, patent application or copyrighted work. All Background Technology must be Made, Created or otherwise developed prior to the Effective Date of this Agreement, or if added under a Modification or Amendment, prior to the effective date of such Modification or Amendment. All Background Technology is specifically identified as such in the Joint Work Plan, along with the marking requirements and, if applicable, terms for delivery, storage and disposition of such Background Technology. Background Technology does not include oral or visual information not fixed in a tangible form.

“Special Purpose License” means a nonexclusive, nontransferable, irrevocable, worldwide, royalty-free and paid-up license to Air Force Activity to use, modify, reproduce, release, perform, display, or disclose technology, technical data, or copyrighted works, in whole or in part, within the Government without restriction, and to release or disclose outside the Government and authorize persons to whom release or disclosure has been made, to use, modify, reproduce, release, perform, display, or disclose such technology or information for Government purposes. The Special Purpose License includes the rights to use, modify, reproduce, release, perform, display, or disclose technology, technical data, or copyrighted works for competitive procurement, but it does not include the rights to use, modify, reproduce, release, perform, display, or disclose for commercial purposes or authorize others to do so.

“Confirmatory License” refers to a single-page document submitted by Collaborator to Air Force Activity documenting Government’s license rights to, and power to inspect and make copies of patent applications filed on, an Invention Made Under this Collaboration and owned by Collaborator. The Air Force Activity will record the Confirmatory License at the United States Patent and Trademark Office. See Appendix A, Section II: Joint Work Plan.

“Alternative Dispute Resolution” (ADR) means any procedure in which the parties agree to use a third-party neutral to resolve issues in controversy, including, for example, mediation, non-binding arbitration, or facilitation. ADR does not include binding arbitration.

“Official File” refers to the official Government record of this Agreement, maintained by Air Force Activity and accessible by the Office of Research and Technology Applications (ORTA) specified as the Air Force Activity POC in Article 12—“Notices,” and which includes, at minimum, an accounting of all funds and equipment provided under this Agreement, all Modifications or Amendments thereto, all Formal Notices submitted under paragraph 12.1, and each report specified in Article F—“Deliverables.”

“Days” refer to calendar days unless specified otherwise.

FINANCIAL CONSIDERATIONS

0. Expenses. Except as otherwise stated in the Joint Work Plan, each party shall bear its own expenses in the performance of work Under this Collaboration.

0. [Alternate] Expenses. The Collaborator will pay Air Force Activity $X US within thirty (30) Days after the Effective Date. Subsequent payments will be paid as detailed in Section II: Joint Work Plan.

1. Payments. Except as provided for in paragraph 3.2, payments by Collaborator to Air Force Activity under this Article shall be made payable to <<Air Force Activity FAS>> and mailed to the following address:

Address for payment

1. Federal Funding. Unless specified otherwise in Section II: Joint Work Plan, Collaborator certifies that no funds provided to Air Force Activity under this Agreement were originally received by Collaborator under a Government funding agreement. [If this statement is not true, consult the ORTA for guidance.]

1. Notice to Accompany Payments. Payments shall reference this Agreement by USAF CRADA Number and by the names of the parties and shall state the purpose of the payments. A copy of the payment documents shall also be sent by ordinary mail to the address shown for formal notices in Article 12—“Notices.”

0. Royalty Payments. Royalty or other income from intellectual property will be paid in accordance with any separate license agreement hereafter entered into by the parties pursuant to Article 4—“Invention Disclosures & Patents” or Article 5—“Copyright Protection.”

ARTICLE 4— INVENTION DISCLOSURES & PATENTS

4.1. Disclosure of Inventions. Each party must report to the other party, in writing, each Invention Made Under this Collaboration, within six (6) months after the Invention is Made unless a written request for an extension of time to provide such a report has been approved by the other party. Such requests shall not be unreasonably refused.

4.2. Rights and Licensing of Inventions Made Under this Collaboration.

4.2.1. Sole Inventions. Each party will separately own any Invention Made Under this Collaboration solely by its respective employees.

4.2.1.1. License to Air Force Activity. The Collaborator will grant to Air Force Activity a paid-up, royalty-free, irrevocable, non-exclusive license to practice, or have practiced for or on behalf of Government, any Invention Made Under this Collaboration solely by Collaborator employees. The Collaborator will promptly provide a Confirmatory License upon request by Air Force Activity for any Invention Made Under this Collaboration that is owned by Collaborator.

4.2.1.2. License to Collaborator. The Air Force Activity will grant to Collaborator a paid-up, royalty-free, irrevocable, non-exclusive license to practice any Invention Made Under this Collaboration solely by Air Force Activity employees. The Air Force Activity will promptly provide a Confirmatory License upon request by Collaborator for any Invention Made Under this Collaboration that is owned by Air Force Activity.

4.2.1.3. Option for Collaborator to Obtain Exclusive License. The Collaborator will have the option to choose an exclusive license for a pre-negotiated field of use at a reasonable royalty rate, subject to the conditions set forth in 15 U.S.C. § 3710a(b)(1), for any Invention Made Under this Collaboration solely by Air Force Activity employees.

4.2.1.3.1. The Collaborator must exercise the option to obtain an exclusive license for an Invention Made Under this Collaboration within six (6) months of the filing of a patent application on such Invention. The Collaborator may request such time be extended as necessary to understand the nature of the Invention and to permit sufficient time to determine the potential value thereof, which request will not be unreasonably refused by Air Force Activity. Any such extensions approved by Air Force Activity must be in writing.

4.2.1.3.2. The Collaborator shall have the right of enforcement under chapter 29 of Title 35, United States Code, for an exclusive license entered into under this paragraph.

4.2.2. Joint Inventions. An Invention Made Under this Collaboration jointly by Air Force Activity employees and Collaborator employees (“Joint Invention”) will be jointly owned by both parties.

4.2.2.1. Collaborator Election. The Collaborator shall promptly elect whether to grant title of its ownership interest in a Joint Invention to Air Force Activity, subject to a non-exclusive, irrevocable, paid-up, royalty-free license to practice the Invention from Air Force Activity to Collaborator.

4.2.2.2. Assignment. If Collaborator appropriately files a patent application on a Joint Invention, Air Force Activity may, at its discretion, assign title in that Invention to Collaborator, subject to the conditions set forth in 15 U.S.C. § 3710a(b)(1).

4.2.2.3. Joint Ownership Agreement. The Air Force Activity will promptly provide a draft Joint Ownership Agreement to Collaborator for each Joint Invention in which the parties do not agree to consolidate ownership in accordance with paragraphs 4.2.2.1 or 4.2.2.2. The Joint Ownership Agreement will define rights and responsibilities among the parties for each such Joint Invention. The Collaborator will be responsible for all patent preparation and prosecution under the Joint Ownership Agreement.

4.2.3. General Terms.

4.2.3.1. Copies of Patent Applications. The party filing any patent application on any Invention Made Under this Collaboration, including provisional and international filings, must provide a copy thereof to the other party within thirty (30) Days of filing such application.

4.2.3.2. Cooperation. The party not filing, prosecuting, or administering any patent application or patent under this Article will fully cooperate with the party filing, prosecuting, or administering the application or patent in promptly executing all necessary documents and obtaining cooperation of its employees in executing such documents related to such application or patent.

4.2.3.3. Patent Expenses. The party filing an application on any Joint Invention is responsible for all patent application preparation and filing expenses, issuance, post issuance, and patent maintenance fees associated with that application while this Agreement is in effect, unless otherwise agreed to under a Patent License Agreement or Joint Ownership Agreement.

4.2.3.4. Collaborator Rights to Employee Inventions. The Collaborator shall ensure that it obtains rights to all Inventions Made by one or more of its employees Under this Collaboration.

4.3. Licensing Other Federally Owned Inventions. The Collaborator may submit an application for license in accordance with 37 C.F.R. 404.8 for any federally owned Invention for which a patent application was filed before the signing of this Agreement that is directly within the scope of the work specified in the Joint Work Plan. The royalty rate, field of use, and other terms and conditions shall be set forth in a separate license agreement and shall be negotiated promptly and in good faith.

4.4. Federal Regulations. All licenses granted to Collaborator under this Article shall ordinarily be subject to Title 37, Code of Federal Regulations, Part 404, Licensing of Government-Owned Inventions.

4.5. Participation of Third Parties. Except as specified in paragraph 4.5.1, either party intending to use the support of any contractor or third party not identified in the Joint Work Plan to perform any of its obligations Under this Collaboration shall provide written notice to the other party at least thirty (30) Days in advance of any involvement of such contractor or third party with activities Under this Collaboration. If the party receiving such notice objects at any time to the use or involvement of such contractor or third party, the party providing such notice will not utilize or promptly cease utilizing the services of such contractor or third party to perform its obligations Under this Collaboration.

4.5.1. Third Party Support of Air Force Activity. The Air Force Activity may use the support and research services of support contractors, such as Advisory and Assistance Services (A&AS) contractors, in performing its roles or obligations described in the Joint Work Plan. Every other contractor or third party assisting Air Force Activity in performing its roles or obligations described in the Joint Work Plan must be listed in paragraph C.2, along with the specific obligation or service each such party is expected to provide.

4.5.2. Support Contractor Inventions. The Collaborator acknowledges that invention rights under the Bayh-Dole Act, 35 U.S.C. § 200 et seq., or the applicable patent rights clause under the Federal Acquisition Regulation (FAR) or the Defense Federal Acquisition Regulation Supplement (DFARS) governing any such contract, or both, may conflict with the terms in this Article. In such cases, Collaborator’s rights or options in such inventions under this Article will take precedence over any such rights of the contractor in accordance with 35 U.S.C. § 210(e). See also 48 C.F.R. 27.303(b)(7).

4.5.3. Third Party Support of Collaborator. No information, material, equipment, or other resources provided by Collaborator under this Agreement, originating from any contractor or third party, shall have any restriction whatsoever on further use, release or disclosure beyond that specified in this Agreement, except as specifically identified, including a detailed description of any such limitations, in the Joint Work Plan. Any agreement with a third party to provide support to Collaborator for participation under this Agreement shall contain terms consistent with this provision and which are at least sufficient to provide Air Force Activity all rights anticipated under this Agreement as if Collaborator was providing the support itself. The Collaborator shall provide a copy of any such third party support agreement to Air Force Activity within thirty (30) Days of the execution of this Agreement or the third party support agreement, whichever is later.

ARTICLE 5— COPYRIGHT PROTECTION

5.1. Ownership of Copyrighted Works. The Collaborator shall ensure that it obtains rights to all copyrightable works Created by one or more employees Under this Collaboration. The Collaborator shall own the copyright in all works copyrightable under Title 17, United States Code, Created solely by Collaborator employees Under this Collaboration or, subject to the rights of third parties under paragraph 4.5, Created in part by Collaborator employees Under this Collaboration.

5.2. License in Published Copyrighted Works. The Collaborator hereby grants in advance to Government a Special Purpose License in all published copyrighted works Created Under this Collaboration. The Collaborator will prominently mark each such published copyrighted work with the words: “This work was created in the performance of a Cooperative Research and Development Agreement [CRADA No.] with the Department of the Air Force. The Government of the United States has certain rights to use this work.”

5.3. Copies of Published Copyrighted Works. The Collaborator must furnish to Air Force Activity, at no cost to Air Force Activity, one copy of each published copyrighted work Created in whole or in part by Collaborator Under this Collaboration. The Collaborator is not required to provide a copy of any such work that is only published electronically if the publication is accessible without cost to Air Force Activity.

ARTICLE 6— BACKGROUND TECHNOLOGY AND PROTECTED INFORMATION

6.1. Disclosure of Oral and Visual Information. Information disclosed orally or visually, if identified as information that is to be protected under this Agreement at the time of disclosure, will be deemed Protected Information under this Agreement for thirty (30) Days and thereafter if, within thirty (30) Days after such oral or visual disclosure, such information is reduced to writing or otherwise affixed in tangible form, and properly marked in accordance with Article 2—“Definitions” and the Joint Work Plan, and submitted to the other party.

6.2. Disclosure and Use of Background Technology. All Background Technology provided to the other party must be specifically identified in the Joint Work Plan.

6.2.1. Unless otherwise expressly provided in the Joint Work Plan, Background Technology may only be disclosed to those having a need for the information in connection with their duties Under this Collaboration. The party designating Background Technology in the Joint Work Plan hereby grants a royalty-free license to the other party to this Agreement to use all such Background Technology for the purpose of performing its obligations Under this Collaboration. Subject to paragraph 6.2.2, and unless specifically stated otherwise in the Joint Work Plan, the receiving party will have no rights (other than for performing work Under this Collaboration) in such Background Technology regardless of whether it is improved, refined or otherwise further developed Under this Collaboration.

6.2.2. The party designating Background Technology in the Joint Work Plan agrees to offer the other party on reasonable terms, to be negotiated under separate agreement, the non-exclusive right to further use all such Background Technology after the expiration or termination of this Agreement in negotiated fields of use, to include at least all fields or technologies described in the Joint Work Plan. This offer shall be made available to the other party for six (6) months from the expiration or termination of this agreement.

6.3. Computer Software and Computer Software Documentation. All computer software and computer software documentation Made, Created or developed Under this Collaboration by Collaborator shall be treated as Collaborator Restricted Information for purposes of determining rights in such computer software and computer software documentation.

6.4. Collaborator Restricted Information. The Collaborator grants a Special Purpose License to Air Force Activity in all Collaborator Restricted Information.

6.5. Restricted Access Information. All Restricted Access Information may be exempt from release under the Freedom of Information Act for a period of five (5) years as provided for at 15 U.S.C. § 3710a(c)(7)(B), during which time Collaborator may only use or disclose Restricted Access Information in confidence, or authorize others to use or disclose Restricted Access Information in confidence.

6.6. Marking of Background Technology and Protected Information. All Background Technology and Protected Information will be conspicuously marked as such and will reference this CRADA by number (see Figures 1&2, paragraph E.4 of the Joint Work Plan). Neither party will be liable for the release of unmarked Background Technology or Protected Information. The party receiving properly labeled Background Technology or Protected Information must comply with all appropriate requirements governing the treatment of such information as described in the Joint Work Plan. The receipt or acceptance of improperly or inaccurately marked information shall not adversely affect the rights of the party receiving such information.

6.7. Future Use of Information and Technology in Government Procurement. Any copyrightable work or Collaborator Restricted Information to which Air Force Activity receives a Special Purpose License under this Agreement shall be prominently marked with “Government Purpose Rights,” as defined under 48 C.F.R. 252.227-7013(a)(13) & 7014(a)(12), or other notice clearly indicating Government has at least such rights, when delivered to any party under a federal procurement contract—other than a supplier or support contractor—after the Effective Date of this Agreement (see Figure 3, paragraph E.4). Under no circumstances shall the mere marking or labeling of such information or technology in accordance with this Article imply that such “Government Purpose Rights” license will automatically change to an “Unlimited Rights” or other license at any time. See 10 U.S.C. § 2320.

ARTICLE 7— TERM OF AGREEMENT, MODIFICATIONS & TERMINATION

7.1. Term of Agreement. This Agreement commences on the Effective Date of this Agreement and shall terminate at the expiration date indicated above the signatures in Section III: Signatures, unless both parties hereto agree in writing to extend it further in accordance with paragraph 7.2 or 7.3. Expiration of this Agreement shall not affect the rights and obligations of the parties accrued prior to expiration. This Agreement may not be modified after its expiration or termination.

7.2. Modifications. Any change or extension within the scope of this Agreement as authorized by the Reviewing Official may be made by Modification, which shall be entered into by mutual written agreement signed by the parties’ representatives authorized to execute this Agreement. Each Modification will be attached hereto, a copy of which must be made available to the Reviewing Official within thirty (30) Days after each such Modification is signed by both parties.

7.3. Amendments. Any change outside the scope of this Agreement may be made by Amendment, which shall be entered into by mutual written agreement signed by the parties’ representatives authorized to execute this Agreement and submitted to the Reviewing Official. Each Amendment will be attached hereto.

7.4. Termination. Either party may terminate this Agreement for any reason upon delivery of written notice to the other party. The written notice shall specify an effective termination date at least thirty (30) Days after receipt by the other party. Termination of this Agreement shall not affect the rights and obligations of the parties accrued prior to the effective date of termination of this Agreement. In the event of termination by either party, each party shall be responsible for its own costs incurred through the effective date of termination, as well as its own costs incurred after the effective date of termination and which are unrelated to the termination. If Air Force Activity terminates this Agreement strictly for mission requirements or national security purposes, it shall not be liable to Collaborator or its contractors or subcontractors for any costs resulting from or related to the termination, including, but not limited to, consequential damages or any other costs.

ARTICLE 8— DISPUTES

8.1. Resolution of Disputes. All disputes arising out of or related to this Agreement will be resolved in accordance with this Article. The parties agree to use reasonable efforts to reach a fair settlement of any dispute. Resolution attempts must be documented and maintained in the Official File. Pending the resolution of any informal or formal dispute process, work under this Agreement not subject to dispute may continue.

8.2. Informal Resolution. The parties agree to make a good faith attempt to informally resolve all disputes arising out of this Agreement among themselves before pursuing the formal dispute resolution process.

8.3. Alternative Dispute Resolution Process. In accordance with Department of Defense Instruction 5145.05, Alternative Dispute Resolution (ADR) and Conflict Management (27 May 2016) and Air Force Policy Directive 51-12, Alternative Dispute Resolution (9 January 2003), the parties should use ADR as an alternative to litigation or formal proceedings to the maximum extent practicable and appropriate. Either party may submit a written request for ADR to the other party any time prior to the submission of a request for a formal decision by the Reviewing Official. ADR may be used for all or a portion of the issue in controversy. The Air Force Activity shall, within sixty (60) Days of receiving or submitting a request for ADR, identify in writing a third-party neutral suitable for the requested ADR process and provide an estimate or cost basis for the process. In identifying such third-party neutral, Air Force Activity shall, with the assistance of the Air Force General Counsel (SAF/GC), make use of existing Government ADR resources to avoid unnecessary expenditure of time and money. The party in receipt of a request for ADR may provide a written rejection of the requested ADR process, which must include a detailed description of why the requested ADR process is not appropriate. Failure to provide such rejection to the other party within thirty (30) Days of the identification of a third-party neutral shall be deemed as an acceptance of the requested ADR process.

8.4. Formal Decision by Reviewing Official. If informal efforts to resolve disputes are unsuccessful, either party may request a formal decision by the Reviewing Official. The Reviewing Official must, within sixty (60) Days of receipt of the request for decision, issue a formal decision to the parties in writing. The decision of the Reviewing Official shall be binding on the parties unless appealed in accordance with paragraph 8.5.

8.5. Final Agency Decision. Either party may appeal the formal decision by the Reviewing Official by submitting a request for a final agency decision, along with a complete documentation of the dispute process, to the Office of the Secretary of the Air Force General Counsel for Acquisition (SAF/GCQ) within six (6) months of the issuance of the formal decision by the Reviewing Official. The Office of the Assistant Secretary of the Air Force for Acquisition (SAF/AQR) shall promptly notify the parties of the final agency decision in writing. The decision of SAF/AQR or designee shall be final and conclusive and shall be binding on the parties. Nothing in this Agreement may be interpreted to deny or limit the right of the parties to thereafter seek relief in federal court.

ARTICLE 9— REPRESENTATIONS

9.1. Air Force Activity. The Air Force Activity hereby represents to Collaborator as follows:

9.1.1. Mission. The performance of the activities specified by this Agreement is consistent with the mission of Air Force Activity.

9.1.2. Authority. The Air Force Activity has obtained, prior to the execution of this Agreement, all prior reviews and approvals required by law or regulation. The Air Force Activity officials signing and executing this Agreement have the requisite authority to do so.

9.1.3. Statutory Compliance. The Air Force Activity, prior to entering into this Agreement, has: (1) given special consideration to entering into CRADAs with small business firms and consortia involving small business firms; (2) given preference to business units located in the United States which agree that products embodying an Invention Made Under this Collaboration or produced through the use of such Invention will be manufactured substantially in the United States; and (3) taken into consideration, in the event this Agreement is made with an industrial organization or other person subject to the control of a foreign company or government, whether or not such foreign government permits United States agencies, organizations, or other persons to enter into CRADAs and licensing agreements with such foreign country.

9.2. Collaborator. The Collaborator hereby represents to Air Force Activity as follows:

9.2.1. Corporate Organization. The Collaborator, as of the date hereof, is a <<corporation>> duly organized, validly existing and in good standing under the laws of the State of <<State>>. The Collaborator is <<not>> a Small Business, as defined by the Small Business Administration. The Collaborator is <<not>> a foreign owned or a subsidiary of a foreign owned entity. [If foreign owned, indicate the country of ownership.]

9.2.2. Statement of Ownership. The Collaborator has the right to assignment of all Inventions Made and copyrightable works Created by its employees Under this Collaboration.

9.2.3. Authority. The Collaborator official executing this Agreement has the requisite authority to enter into this Agreement and Collaborator is authorized to perform according to the terms hereof.

9.2.4. Infringement. The Collaborator will not knowingly, without appropriate authorization and consent, infringe any third-party’s intellectual property rights in the performance of work Under this Collaboration. The Collaborator will immediately notify Air Force Activity of any potential infringement involving work Under this Collaboration upon receipt of a notice of infringement or after otherwise becoming aware of any possible infringement of a third party’s intellectual property.

9.2.5. Lawful Compliance. The Collaborator will perform all activities under this Agreement in compliance with all applicable laws, regulations and policies.

9.2.6. Certification. Neither Collaborator nor any of its principals are currently debarred, suspended, proposed for debarment, declared ineligible, or otherwise excluded from participating in transactions with Government, the Department of Defense, or the United States Air Force. The Collaborator will promptly notify Air Force Activity if such status changes during this Agreement.

ARTICLE 10— LIABILITY AND LIMITATIONS

10.1. Property. No real or tangible property or equipment may be furnished to the other party unless specifically identified in the Joint Work Plan.

10.1.1. All such property and equipment identified in the Joint Work Plan is furnished “AS IS” and the parties make NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, for any property or equipment furnished under this Agreement.

10.1.2. All Government property and equipment furnished to Collaborator under this Agreement must be returned to Air Force Activity on or before the termination or expiration of this Agreement. The Collaborator shall immediately return or provide immediate access to any Government property or equipment provided to it under this Agreement that is deemed essential for national security or mission needs at the absolute discretion of the Reviewing Official. The unauthorized use of Government property can subject a person to fines, imprisonment, or both, under 18 U.S.C. § 641.

10.1.3. The party that has received property or equipment from the other party under this Agreement assumes the risk of, and shall be responsible for, any loss of such property or equipment upon its return, or failure to return when due, to the party providing the property or equipment. All property and equipment provided to the receiving party, unless otherwise specified in the Joint Work Plan, shall be returned in the same condition in which it was received, reasonable wear and tear excepted.

10.2. Intellectual Property. The parties make NO EXPRESS OR IMPLIED WARRANTY AS TO ANY MATTER WHATSOEVER, including the conditions of the research or any Invention or other intellectual property, or product, whether tangible or intangible, provided, Made, Created or developed Under this Collaboration, or the merchantability, or fitness for a particular purpose of the research or any Invention or other intellectual property, or product. The parties further make no warranty that the use of any Invention or other intellectual property or product provided, contributed, Made, Created or developed Under this Collaboration will not infringe any other United States or foreign patent or other intellectual property right.

10.3. DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES.

10.4. No Waiver of Sovereign Immunity. Notwithstanding any provision to the contrary, Collaborator understands and agrees that Government will not be liable to any party to this Agreement, whether directly or by way of contribution or indemnity, for any claim made by any person or other entity for personal injury or death or for property damage or loss, arising in any way from this Agreement, including, but not limited to, the later use, sale, or other disposition of research and technical developments, whether by resulting products or otherwise, whether Made, Created, or developed Under this Collaboration or contributed by either party pursuant to this Agreement, except as provided under the Federal Tort Claims Act (28 U.S.C. § 2671 et seq.) or other federal law where sovereign immunity has been explicitly waived.

ARTICLE 11— GENERAL TERMS & PROVISIONS

11.1. Disposal of Toxic or Other Waste. The Collaborator is responsible for either the removal and disposal from Air Force Activity premises of any additional toxic and hazardous materials and wastes over and above amounts or different from types which would be produced during operations of Air Force Activity facilities in the absence of this Agreement or for the costs associated with such additional removal or disposal, if any. The Collaborator must obtain, at its own expense, all necessary permits and licenses as required by local, state, and Federal law and regulation, and will effect such removal and disposal in a lawful and environmentally responsible manner.

11.2. Force Majeure. Neither party will be in breach of this Agreement for any failure of performance caused by any event beyond its reasonable control and not caused by the fault or negligence of that party. In the event such a force majeure event occurs, the party unable to perform must promptly notify the other party, and in good faith maintain such part performance as is reasonably possible, and resume full performance as soon as is reasonably practicable.

11.3. Relationship of the Parties. The parties to this Agreement and their employees are independent contractors and are not agents of each other, joint venturers, partners, or joint parties to a formal business organization of any kind. Neither party is authorized or empowered to act on behalf of the other with regard to any contract, warranty, or representation as to any matter, nor will either party be bound by the acts or conduct of the other. Each party will maintain sole and exclusive control over its own personnel and operations.

11.4. Publicity/Non-Endorsement. Any public announcement of this Agreement must be coordinated between Collaborator, Air Force Activity and the public affairs office supporting Air Force Activity. By entering into this Agreement, neither Air Force Activity nor the Government directly or indirectly endorses any product or service provided, or to be provided, by Collaborator, its successors, assignees, or licensees. The Collaborator may not in any way imply that this Agreement is an endorsement of Collaborator or any such product or service.

11.5. Publication or Public Disclosure. The parties agree to confer and consult with each other prior to publication or other public disclosure of information obtained from, or results derived from, collaborative activities Under this Collaboration to ensure that no Background Technology, Protected Information, military critical technology, classified information, export controlled, or other controlled or sensitive information is inappropriately released.

11.5.1. Each party shall provide a complete copy of any such proposed publication or public disclosure to the other party as soon as practicable, subject to the limitations under paragraph 11.5.2, to allow the other party to submit objections to such publication or disclosure and to take suitable steps to secure appropriate protection in a timely manner.

11.5.2. Where submission of a complete copy of the proposed publication or disclosure is limited by law or regulation or where such submission is impractical, the party proposing such publication or disclosure shall provide a summary or description of the relevant information subject to publication or disclosure. Such summary or description shall be as reasonably complete as possible to allow the party to assess the need to protect sensitive information.

11.5.3. Neither party may proceed with such publication or public disclosure within thirty (30) Days of providing a copy, summary, or description of such publication or public disclosure under paragraph 11.5.1 or 11.5.2, without the express written consent of the other party.

11.5.4. Failure to object to such proposed publication or disclosure within ninety (90) Days after such proposed publication or disclosure was received from the other party, or prior to the actual publication or public disclosure, subject to paragraph 11.5.3, whichever is earlier, shall constitute implied assent to such publication or disclosure.

11.5.5. In all cases, a party proposing to publish or publicly disclose information obtained from the other party that is marked with a restriction limiting the distribution of such information, may not proceed with such publication or public disclosure without the express written consent of the other party.

11.5.6. Under no circumstances shall any review or assent of a proposed publication relieve the publishing party of its obligations under Executive Order 13526, “Classified National Security Information,” the Arms Export Control Act, or the Export Administration Act.

11.5.7. Subject to the restrictions under paragraph 11.4, any such publication or other public disclosure of work or results Under this Collaboration must, unless waived by the other party in writing, include a statement to the effect that the project or effort was made in the performance of a Cooperative Research and Development Agreement with the other party to this Agreement.

11.6. Governing Law. The construction, validity, performance and effect of this Agreement will be governed, for all purposes, by the laws applicable to Government.

11.7. Waiver of Rights. Any waiver must be in writing and provided to all other parties. Failure to insist upon strict performance of any of the terms and conditions hereof, or failure or delay to exercise any rights provided herein or by law, will not be deemed a waiver of any rights of any party hereto.

11.8. Entire Agreement. This Agreement represents the entire agreement of the parties and is the complete and exclusive statement of their agreement.

11.9. Severability. The illegality or invalidity of any provision of this Agreement will not impair, affect, or invalidate the other provisions of this Agreement.

11.10. Survivability. All rights and responsibilities incurred under Section I: Standard Terms and Conditions, and Article E—Intellectual Property, shall survive the expiration or termination of this Agreement.

11.11. Assignment. Neither this Agreement nor any rights or obligations of either party hereunder may be assigned or otherwise transferred by either party without the prior written consent of the other party.

11.12. Controlled Information. The parties understand that information and materials provided pursuant to or resulting from this Agreement may be export controlled or unclassified sensitive and protected by law, executive order, or regulation. Nothing in this Agreement may be construed to permit any disclosure in violation of these restrictions.

11.13. Classified Information. No classified information will be submitted, received, discussed, or otherwise transferred between the parties under this Agreement.

11.13. [Alternate] Classified Information. All access by Collaborator to classified information shall be in accordance with DoD 5220.22-M, National Industrial Security Program Operating Manual, and determined at the absolute discretion of Air Force Activity. The Collaborator shall sign and comply with DD Form 441, Department of Defense Security Agreement, and DD Form 254, Department of Defense Contract Security Classification Specification. DD Form 254 shall be attached prior to beginning any work effort specified in the Joint Work Plan involving classified information. All classified information accessed by Collaborator, as well as appropriate justification for such access, must be identified in Article D of the Joint Work Plan. The Collaborator shall further comply with all Special Access Program (SAP) and Sensitive Compartmented Information (SCI) directives, manuals, and other guidelines determined to be appropriate by Air Force Activity. Details of these arrangements shall be annotated in the attached DD Form 254.

11.14. Records. The Air Force Activity will maintain a complete record of this Agreement in the Official File. This record will include, for example, a signed copy of this Agreement, legal review, all Modifications, Amendments and attachments thereto, an archive of all Background Technology and Protected Information provided by either party—which shall be used solely for the purpose of documenting Air Force Activity’s obligations under this Agreement—and all formal notices received by or delivered to Collaborator under Article 12—“Notices,” in accordance with 15 U.S.C. § 3710a(c)(6).

11.15. No Human or Animal Research. No work performed Under this Collaboration will involve human or animal subjects. Absolutely no human or animal research or testing is authorized under this Agreement or any Modification thereto.

11.16. Implementation of Operations Security (OPSEC) by Air Force Activity. General OPSEC procedures, policies and awareness are required in an effort to reduce program vulnerability to adversary effort to collect and exploit critical information. OPSEC shall be applied as a protective measure throughout the life cycle of this Agreement.

ARTICLE 12— NOTICES

Notices specified in this Agreement must be addressed and sent as follows:

12.1. Formal Notices. Send formal notices under this Agreement, including copyright, invention and patent correspondence, by prepaid, certified U.S. Mail, or by electronic mail with a non-automated confirmation receipt by receiving party (note: If receiving party requires a “wet signature,” that party should not provide confirmation to the sender but should instead indicate the need for an original document), to:

12.2. Technical Matters. Send informal correspondence on technical matters to the Technical Point of Contact (TPOC), designated below, by U.S. Mail or electronic mail to:

<< Collaborator-TPOC Address-Line1>> << Collaborator-TPOC Address-Line2>> <<AFA-TPOC Address-Line1>> <<AFA-TPOC Address-Line2>>

USAF CRADA NUMBER FY-DAY-LAB-##

USAF CRADA NUMBER FY-DAY-LAB-##

Air Force CRADA Version 5.2 (17 August 2017)

USAF CRADA Section I: Standard Terms and Conditions Page 16

USAF CRADA Section II, Joint Work Plan Page 22

SECTION II:

JOINT WORK PLAN

“Title”

ARTICLE A— PROJECT DESCRIPTION

A.1. Executive Summary. [Provide a brief overview, abstract, or executive summary of the proposed collaboration in a single paragraph.]

ARTICLE B— OBJECTIVES

B.1. Nature of Collaboration and CRADA Objectives. [Describe the overall nature and objectives of the collaboration (i.e., what are the parties planning to do, what question are they trying to answer, and what do they hope to achieve?) Explain the problem or question to be investigated and describe the RDT&E anticipated during the collaboration.) This paragraph should answer the question: if everything goes as planned and the work is successful, what will this Agreement achieve?] B.2. Technology Transfer. [Describe the objective of the Agreement in terms that show it meets the statutory requirement of the Federal Technology Transfer Act – that is, that it serves “to transfer federally owned or originated technology to State and local governments and to the private sector.”] B.3. Benefit to Air Force Mission.

B.3.1. Description of Benefit to Air Force Activity. [Describe the objective of the Agreement in qualitative terms that show it serves the Air Force mission. Answer the question, “What does the Air Force get out of this Agreement?” The activities under this Agreement must be directed “toward the conduct of specified research or development efforts which are consistent with the missions of the laboratory.”] B.3.2. Estimated Benefit to Air Force Activity. [Provide an estimate of the benefit to Air Force Activity in both tangible and intangible terms. Use quantitative terms, if possible (e.g., dollars saved, hours of labor saved, etc.). If the benefit is achieving a capability that can’t be done alone, describe the benefit and define how much it’s worth or explain why it’s important. If the benefit is intangible—such as helping to shape the future workforce or building improved relationships, or if it is otherwise impossible to estimate, merely list or describe the benefits.] B.4. Benefit to Collaborator.

B.4.3. Description of Benefit to Collaborator. [Describe the objective from Collaborator’s perspective. How does it benefit Collaborator?] B.4.4. Estimated Benefit to Collaborator. [Provide estimate of benefit to Collaborator.] B.5. Estimated Value of Contributions. In contrast to an estimate of the benefits received, provide an estimate of all resources committed by each party in support of this collaboration.

ARTICLE C— PARTIES AND OTHER PARTICIPANTS

C.1. Relationship of Parties. [Explain how this relationship between Air Force Activity and Collaborator developed…