Attachment 5 - CRADA-CTA.docx

COMMERCIAL TEST AGREEMENT

between

THE UNITED STATES OF AMERICA

DEPARTMENT OF THE AIR FORCE

AIR FORCE RESEARCH LABORATORY

<<DIRECTORATE>> DIRECTORATE

(AFRL/XX)

and

<<CUSTOMER>>

Article 1—Preamble This Commercial Test Agreement (“Agreement”) is made and entered into pursuant to 10 U.S.C. § 2539b(a)(3), DoD Instruction (DoDI) 5535.11, Availability of Samples, Drawings, Information, Equipment, Materials, and Certain Services to Non-DoD Persons and Entities (12 March 2012), and Air Force Instruction (AFI) 61-301, The Domestic Technology Transfer Process and the Offices of Research and Technology Applications (30 May 2001), by and between the United States of America as represented by the Secretary of the Air Force, acting through the Air Force Research Laboratory, <<DIRECTORATE>> (“Air Force Activity”), located at Wright-Patterson Air Force Base, Ohio, and <<CUSTOMER>> (“Customer”), located at <<CUSTOMER LOCATION>>.

WITNESSETH:

WHEREAS Air Force Activity desires to make available, at a prescribed fee, certain services for the testing of materials, equipment, models, computer software or other items to Customer;

WHEREAS Air Force Activity has determined that the use of facilities contemplated under this Agreement will not degrade performance of its primary mission activities and will not divert Air Force Activity personnel or resources from scheduled tests of government material or otherwise interfere with Air Force Activity mission requirements;

WHEREAS Air Force Activity has determined this Agreement to be in the interest of national defense and that the services do not involve expansion of the capabilities and capacities of Air Force Activity, even if Customer agrees to finance the expansion; and

WHEREAS Customer has established, to the satisfaction of Air Force Activity, that provisions of the services will not constitute undue competition with the private sector.

Article 2—Definitions

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

2.1. “Test Agency Representative” means the authorized Air Force Activity representative identified at Article 13, paragraph 13.2.

2.2. “Government” means the Government of the United States of America.

2.3. “Equipment” or “Materials” means personal property, including machinery, devices and apparatus, and components of such items.

2.4. “Test Results” means information generated by or resulting from tests performed with services made available by Air Force Activity under this Agreement.

2.5. “Effective Date” is the date of the last signature of the authorized representatives of the parties designated under Article 13.

Article 3—Work Statement

3.1. The Work Statement at Appendix A sets forth the nature and scope of the work to be performed by both parties, including all responsibilities of each party under this Agreement.

3.2. The Customer must submit requests for all testing services in accordance with the test request procedures described at Appendix A.

Article 4—Statement of Capability

The Statement of Capability at Appendix B sets forth Air Force Activity’s technical capability, specific technical approach, the detailed costs, other support, and any associated reporting requirements and any special conditions to the manner in which the testing services will be provided or delivered to Customer.

Article 5—Cost Reimbursement

5.1. Fees. The Customer must reimburse Air Force Activity for all costs incurred in rendering the services set forth at Appendix A. Such costs must include, at minimum, all direct costs incurred by Air Force Activity. Such costs will also include indirect costs, where applicable, such as the costs of modifying and restoring any test facility to its original configuration. Fees for services are based on reimbursement of all actual costs (i.e., all direct and applicable indirect costs) involved.

5.2. Total Not-To-Exceed (NTE) Cost Estimate. A detailed cost analysis and the not-to-exceed (NTE) total cost of services shall be included in Appendix B and shall be provided to Customer prior to the beginning of each approved test. The cost analysis shall contain estimates, as appropriate, for Government labor, contract services (e.g., contract labor, materials, travel, subcontracting, and material handling fee), product service fees, management reserve, project overhead, and general and administrative fees. The labor rates, burden rates and fees are contained in Appendix C.

5.3. Total NTE Cost Estimate Exceeded. Unless otherwise indicated in the Work Statement, Air Force Activity will provide Customer written notice within ten (10) days or as soon as practicable before expending more than the NTE total costs. Such written notice will include a revised estimate of the NTE total cost for completion of the testing services and a due date for payment at or before the NTE total cost is expended. The Customer must pay the additional amount reflected in the revised estimate of the NTE total cost before the due date, in which case this Agreement shall be modified accordingly. If no such payment is received, Air Force Activity will stop work immediately upon expenditure of the NTE total cost amount or on the due date, whichever is earlier.

5.5. Payments. Payments will reference this Agreement by USAF CTA Number and by the names of the parties and shall state the purpose of the payments. The Customer must also send, by ordinary mail, a copy of the payment documents to the Test Agency Representative. The Customer shall submit all payments by cashier’s check, certified check, bank money order or postal money order, payable to <<PAY ACCOUNT>>, to the following address:

<<ADDRESS>

5.7. Payment Required in Advance. The Air Force Activity must receive payment of the estimated NTE total cost before conducting any testing. Any surplus funds (i.e., those in excess of the actual costs incurred) remaining after the conclusion of each test shall be refunded to Customer within thirty (30) days thereof. Under no circumstance may the fees for services received exceed the amount necessary to recoup the total costs incurred.

Article 6—Confidentiality of Test Results

All Test Results under this Agreement are confidential pursuant to 10 U.S.C. § 2539b(b) and may not be disclosed outside the Government without written consent of Customer.

Article 7—Term, Modification, Extension, and Termination

7.1. Term and Extension. The term of this Agreement shall commence on the Effective Date of this Agreement and shall expire on <<EXPIRATION>>, unless extended by written agreement of the authorized representatives of the parties, or otherwise terminated in accordance with this article. The expiration of this Agreement shall not affect the rights and obligations of the parties accrued prior to expiration.

7.2. Modification. Any modification must be by written agreement of the authorized representatives of the parties and shall be incorporated into this Agreement.

7.3. Termination. Either party may terminate this Agreement for any reason upon delivery of written notice to the other party at least thirty (30) days prior to such termination. Termination of this Agreement shall not affect the rights and obligations of the parties accrued prior to the date of termination. In the event of termination by Customer, Customer shall be responsible for all costs incurred by Air Force Activity through the date of termination. If Air Force Activity terminates this Agreement, it shall not be liable to Customer or its contractors or subcontractors for any costs resulting from or related to the termination, including, but not limited to, incidental or consequential damages.

7.4. Interruption or Cancellation of Services. National security and Air Force Activity mission requirements shall take precedence over Customer's requirements under this Agreement. The Test Agency Representative, or any higher authority, may terminate, interrupt or delay Customer's testing services whenever such termination, interruption or delay is in the best interests of Government. The Air Force Activity will notify Customer, in writing, of the termination, interruption or delay. The Government will not be liable to Customer, or any third party, for any costs or consequences resulting from the termination, interruption or delay, including any direct or consequential damages.

Article 8—Disputes

8.1. Disputes. The parties shall resolve all disputes arising out of, or related to this Agreement in accordance with this Article.

8.2 The Customer and Air Force Activity will attempt to resolve disputes between themselves. Resolution attempts must be documented and kept on file by the local technology transfer focal point for Air Force Activity. If the parties are unable to agree on a resolution, either party may submit the dispute for resolution, in writing, to the Test Agency Representative and to Customer’s Program Manager who together shall attempt to resolve the dispute by mutual agreement. If the parties are unable to resolve the dispute, within thirty (30) business days after the issue has been submitted to the Test Agency Representative and Program Manager, the Director of Air Force Activity, identified on the signature page, shall issue a written decision which shall be considered to be an exhaustion of administrative remedies by the agency. Nothing in this section is intended to limit or prevent either party from pursuing any other right or remedy available at law.

Article 9—Representations and Warranties

9.1. The Customer hereby represents and warrants to Air Force Activity:

9.1.1. Corporate Organization. The Customer, as of the date hereof, is duly organized and validly existing in good standing under the laws of the State of <<STATE>>.

9.1.2. Statement of Ownership. The Customer is not foreign-owned or a subsidiary of a foreign-owned entity.

9.1.3. Authority. The official executing this Agreement on behalf of Customer has the requisite authority to do so.

9.2. The Air Force Activity hereby represents to Customer:

9.2.1. Authority. The Air Force Activity official executing this Agreement has the requisite authority to do so.

9.2.2. Termination for Good Cause Only. The Air Force Activity will seek termination or interruption or cancellation of services for good cause only, ordinarily where mission requirements or national security concerns dictate.

9.3. The parties make no other representation or warranty whatsoever.

Article 10—Liability

10.1. The parties shall inform each other in writing of any claim, suit, loss or injury arising under this Agreement. The parties further agree to consult promptly on the defense of such claims and to provide information, aid and cooperation to assist in the defense of such claims.

10.2. The Customer assumes all liability for Customer’s employees while performing work under this Agreement using or physically situated on Government property. The Customer is not authorized under this Agreement to allow any third party access to Government property.

10.3. General Disclaimer. THE AIR FORCE ACTIVITY MAKES NO EXPRESS OR IMPLIED WARRANTY AS TO THE CONDITION OF ANY RESEARCH TEST(S), INTELLECTUAL PROPERTY, TEST RESULTS, OR ANY RESULTING PRODUCT OR PROCESS, THE TRANSFER OF ANY PROPERTY OR SERVICE OF WHATEVER NATURE OR THE MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE ARTICLE(S) TESTED.

10.4. Government Assumes No Liability. The Customer agrees that Air Force Activity shall not be liable for any damage, whether direct or consequential, and that Customer will indemnify and hold Government harmless for any loss, claim, damage or liability of any kind arising out of or in connection with any property or service provided by Air Force Activity under this Agreement.

Article 11—Mishap Investigation(s)

11.1. The Air Force Activity may conduct a safety investigation pursuant to AFI 91-204 into any mishap resulting in loss, damage or destruction of a test article or test facility. The safety report will not be released to Customer.

11.2. The Air Force Activity may conduct an accident investigation pursuant to AFI 51-503. The accident report may be released to Customer.

Article 12—General Terms and Provisions

12.1. Disposal of Toxic or Other Waste. The Customer shall be responsible for the proper removal and disposal from Air Force Activity property of any and all toxic, hazardous, or solid waste, and the removal of any other material provided or generated in the course of performing this Agreement if specified for removal by Customer in Appendix A. The Customer shall obtain at its own expense all necessary permits and licenses as required by local, state and federal law and regulation.

12.2. Force Majeure. Neither party shall 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. Should a force majeure event occur, the party unable to perform will promptly notify the other party and shall in good faith resume performance as soon as is reasonably practicable.

12.3. Relationship of the Parties. The parties to this Agreement and their employees are independent entities and are not agents of each other, joint venturers, or partners to any business organization. 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, and neither party will be bound by the acts or conduct of the other. Each party will maintain sole and exclusive control over its own personnel and operations.

12.4. Inspection. The Customer may inspect the Air Force Activity testing facility identified in Appendix A prior to any testing conducted under this Agreement. The Air Force Activity will maintain and calibrate the testing facility.

12.5. Publicity/Use of Name/Endorsement. The Customer, Air Force Activity, and the appropriate public affairs office shall coordinate any announcement of this Agreement by either party to this Agreement. The Customer shall not use any name or logo attached to Government, the Department of the Air Force, HQ AFMC, AFRL or Air Force Activity on any product, service, patent license or assignment related directly or indirectly to this Agreement without the prior written approval of Air Force Activity. By entering into this Agreement, neither the Government, the Department of the Air Force, HQ AFMC, AFRL, nor Air Force Activity directly or indirectly endorses any product or service provided, or to be provided, by Customer. The Customer shall not in any way imply that this Agreement is an endorsement of any such product or service. The Air Force Activity shall not use Customer’s name, logo, or product without prior written consent.

12.6. Governing Law. U.S. federal law governs this Agreement for all purposes, including but not limited to, determining the validity of the Agreement, the meaning of its provisions, and the rights, obligations and remedies of the parties or third parties.

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

12.8. Severability. The illegality or invalidity of any provisions of this Agreement shall not impair, affect or invalidate the other provisions of this Agreement.

12.9. Assignment. Neither party shall assign or transfer any rights or obligations derived from this Agreement without the prior written consent of the other party.

12.10. Controlled Information. The parties understand that information and materials provided pursuant to or resulting from this Agreement may be export controlled, classified, or unclassified sensitive and protected by law, executive order or regulation. This Agreement does not permit any disclosure in violation of these restrictions or other applicable law or regulation.

Article 13—Notices

13.1. Send all formal and administrative notices under this Agreement by U.S. Mail to:

13.2. Send all correspondence on technical matters to:

IN WITNESS WHEREOF, the parties execute this Agreement, in duplicate, by their authorized representatives as follows:

USAF CTA NUMBER ___-____-____-___

Technical Director

Appendix A

WORK STATEMENT

Title

Appendix B

AIR FORCE ACTIVITY’S

STATEMENT OF CAPABILITY

Appendix C

RATES & FEES