DARPA-PA-27-02_Protein_Palace_Attachment_I_Model_Other_Transaction_for_Research.docx

Attachment I – Model Research OT

DARPA-PA-27-02

DARPA has provided the model OT as an opportunity for proposers to suggest edits for consideration. The model OT is representative of the general terms and conditions that DARPA intends to include in any resulting award, however final terms and conditions will be specific to each award and may 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 a 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.

OTHER TRANSACTION FOR RESEARCH

BETWEEN

(INSERT PERFORMER AND ADDRESS)

AND

THE DEFENSE ADVANCED RESEARCH PROJECTS AGENCY

675 NORTH RANDOLPH STREET

ARLINGTON, VA 22203-1714

CONCERNING

(INSERT RESEARCH AND DEVELOPMENT EFFORT)

IN SUPPORT OF PROTEIN PALACE

Agreement No.: HR0011-XX-3-XXXX Purchase Requisition No.: XXXXXXXXXXXXXX Total Amount of the Agreement: $

Funds Obligated: $ XXXXXXXXXXXXXX Authority: 10 U.S.C. § 4021

Line of Appropriation:

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 the (INSERT PERFORMER) pursuant to and under United States Federal law.

(Signature) (Signature)

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

TABLE OF CONTENTS

ARTICLES

ATTACHMENTS

ARTICLE I: SCOPE OF THE AGREEMENT

A. Background

THIS PARAGRAPH(S) DESCRIBES THE VISION OF THE PROGRAM AND SHOULD ANSWER THE FOLLOWING QUESTIONS IN NARRATIVE FORM

· WHAT IS THE PURPOSE OF THE AGREEMENT?

· WHAT IS THE CURRENT TECHNOLOGICAL SITUATION?

· WHAT MAKES THIS PROGRAM A “CRITICAL TECHNOLOGY” EFFORT?

· WHY IS THE CURRENT TECHNOLOGY NOT SUFFICIENT?

· WHY IS IT NECESSARY FOR THE GOVERNMENT TO SUPPORT INDUSTRY IN ADDRESSING THIS SITUATION?

· WHAT ARE THE ISSUES OF PARTICULAR IMPORTANCE TO DARPA?

· WHAT ARE THE DUAL-USE (MILITARY AND COMMERCIAL) APPLICATIONS?

· WHAT IS THE MARKET POTENTIAL?

· WHAT ARE THE COMMERCIALIZATION GOALS?

· IF THE PROGRAM IS SUCCESSFUL, THEN WHAT? WHERE DO WE GO FROM HERE?

· IF THIS COLLABORATION IS SUCCESSFUL, WHAT WILL WE HAVE ACCOMPLISHED?

B. Definitions

In this Agreement, the following definitions apply:

Agreement: The body of this Agreement and Attachments 1 – xx, which are expressly incorporated in and made a part of the Agreement.

Background IP: The IP developed or acquired before the Agreement or developed independently of performance under the Agreement without the use of any Government resources, that is used in performance or is necessary to use, test, evaluate, reproduce or transition a deliverable. The act of delivery or incorporation into a deliverable does not in itself constitute the conversion of Background IP into Foreground IP.

Data: Recorded information, regardless of form or method of recording, which includes but is not limited to, technical data, software, and trade secrets. The term does not include financial, administrative, cost, pricing or management information and does not include subject inventions, included in Article VII.

Commercialization Event: A documented commercial license, commercial sale, paid pilot, strategic manufacturing agreement, committed third-party investment or other event as specified in the Agreement which constitutes a tangible step towards the commercial use of the relevant Protein Palace technology.

Covered Government Support Contractor: An individual or organization performing work under a contract or agreement with the Government, to furnish independent and impartial advice or technical assistance directly to the Government in support of its management and oversight of a program or effort. Such contractors are granted access to Data necessary for contract performance, and their agreements contain clauses or articles that: 1. Prohibit the public disclosure or release of proprietary and nonpublic information furnished by the Government; 2. Require the handling of Controlled Unclassified Information (CUI) in accordance with 32 C.F.R. Part 2002; 3. Strictly limit the use and disclosure of any Government-furnished technical data or software marked with restrictive legends, ensuring the information is used solely for the performance of the contract and is protected from unauthorized release to third parties.

Foreground IP: The IP which is first generated, created or developed in performance of the Agreement. It includes any new modifications or improvements to Background IP but does not include the Background IP itself (including specifically identified Background IP which is incorporated into the deliverables).

Foreign Firm or Institution: A firm or institution organized or existing under the laws of a country other than the United States, its territories, or possessions. The term includes, for purposes of this Agreement, any agency or instrumentality of a foreign government; and firms, institutions or business organizations which are owned or substantially controlled by foreign governments, firms, institutions, or individuals.

Form, Fit, and Function Data: A technical data that describes the required overall physical, functional, and performance characteristics (along with the qualification requirements, if applicable) of an item, component, or process to the extent necessary to permit identification of physically and functionally interchangeable items.

Government: The United States of America, as represented by DARPA.

Government Purpose: Includes, but is not limited to, use by or on behalf of the Government, including use by Government contractors, for research, development, testing, evaluation, production, operation, maintenance, repair, modification, or disposal. Government Purpose does not include use for commercial purposes.

Government Purpose Rights: The rights to use, duplicate, or disclose Data, in whole or in part and in any manner, for Government purposes only, and to have or permit others to do so for Government purposes only.

Invention: Any invention or discovery which is or may be patentable or otherwise protectable under Title 35 of the United States Code.

Know-How: All information including, but not limited to discoveries, formulas, materials, inventions, processes, ideas, approaches, concepts, techniques, methods, software, programs, documentation, procedures, firmware, hardware, technical data, specifications, devices, apparatus and machines.

Made: Any invention means the conception or first actual reduction to practice of such invention.

Party: Includes the Government (represented by DARPA), or the Performer, or both.

Performer: COMPANY NAME.

Practical application: To manufacture, in the case of a composition of product; to practice, in the case of a process or method, or to operate, in the case of a machine or system; and, in each case, under such conditions as to establish that the invention is capable of being utilized and that its benefits are, to the extent permitted by law or Government regulations, available to the public on reasonable terms.

Program: Research and development being conducted by the Performer, as set forth in Article I, Paragraph C.

Property: Any tangible personal property other than property actually consumed during the execution of work under this agreement.

Subject invention: Any invention conceived or first actually reduced to practice in the performance of work under this Agreement.

Technology: Discoveries, innovations, Know-How and inventions, whether patentable or not, including computer software, recognized under U.S. law as intellectual creations to which rights of ownership accrue, including, but not limited to, patents, trade secrets, and copyrights developed under this Agreement.

Unlimited Rights: Rights to use, duplicate, release, or disclose, Data in whole or in part, in any manner and for any purposes whatsoever, and to have or permit others to do so.

C. Scope

1. The Performer shall perform a coordinated research and development program (“Program”) designed to develop (INSERT RESEARCH AND DEVELOPMENT EFFORT). The research shall be carried out in accordance with the Task Description Document (“TDD”) incorporated in this Agreement as Attachment 1. The Performer shall submit or otherwise provide all documentation required by Attachment 2, Report Requirements.

2. The Performer shall be paid a fixed amount for each milestone accomplished in accordance with the Schedule of Milestones and Payments set forth in Attachment 3 and the procedures of Article V. The Schedule of Milestones and Payments may be revised or updated in accordance with Article III. The Performer shall provide cost share as set forth in Attachments 3 & 4.

3. The Government funding is estimated to represent (X) % of the overall amount necessary to accomplish the TDD. The Performer shall provide any remaining funding necessary to accomplish the TDD.

D. Goals/Objectives

1. The goal of this Agreement is (INSERT GOAL(S) OF AGREEMENT).

2. The Government will have continuous involvement with the Performer. The Government will also obtain access to research results and certain rights in patents and data pursuant to Articles VII and VIII. DARPA and the Performer are bound to each other by a duty of good faith and best research effort in achieving the goals of the Program.

3. This Agreement is an “other transaction” pursuant to 10 U.S.C. § 4021. The Parties agree that the principal purpose of this Agreement is for the Government and the Performer to provide for a coordinated effort to advance research and technology goals of the program and not primarily for the acquisition of property or services for the direct benefit or use of the Government. This Agreement is not intended to be, nor shall it be construed as, by implication or otherwise, a partnership, a corporation, or other business organization.

ARTICLE II: TERM

A. Term of this Agreement

The Program commences upon the date of the last signature hereon and continues for (INSERT NUMBER OF MONTHS) (xx) months. 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

Subject to a reasonable determination that the program will not produce beneficial results, either Party may terminate this Agreement by written notice to the other Party, provided that such written notice is preceded by consultation between the Parties. In the event of a termination of the Agreement, it is agreed that disposition of Data developed under this Agreement, shall be in accordance with the provisions set forth in Article VIII, Data Rights. The Government and the Performer will negotiate in good faith a reasonable and timely adjustment of all outstanding issues between the Parties as a result of termination. Failure of the Parties to agree to a reasonable adjustment will be resolved pursuant to Article VI, Disputes. The Government has no obligation to pay the Performer beyond the last completed and paid milestone if the Performer decides to terminate.

C. Extending the Term

The Parties may extend by mutual written agreement signed by authorized representatives the term of this Agreement if research opportunities within the vision statement set forth in Article I reasonably warrant. Any extension shall be formalized through written modification of the Agreement by the Agreements Officer (“AO”) and the Performer’s authorized representative.

ARTICLE III: MANAGEMENT OF THE PROJECT

A. Management and Program Structure

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

B. Program Management Planning Process

Program planning will consist of an Annual Program Plan with inputs and reviews from the Performer and DARPA management, containing a detailed schedule of research activities and milestones.

1. Initial Program Plan: The Performer will follow the initial program plan that is contained in the TDD (Attachment 1), and the Schedule of Milestones and Payments (Attachment 3).

2. Overall Program Plan Annual Review

(a) The Performer, with DARPA PM participation and review, will prepare an overall Annual Program Plan in the first quarter of each Agreement year. (For this purpose, each consecutive twelve (12) month period from (and including) the month of execution of this Agreement during which this Agreement shall remain in effect shall be considered an “Agreement Year”). The Annual Program Plan may be presented and reviewed at an annual site review, at the discretion of the DARPA PM, which will be attended by the Performer’s Management, the DARPA AOR, Senior DARPA management or other DARPA program managers and personnel as appropriate. The Performer, with DARPA participation and review, will prepare a final Annual Program Plan.

(b) The Annual Program Plan provides a detailed schedule of research activities, commits the Performer to meet specific performance objectives and describes the milestones. The Annual Program Plan will consolidate all prior adjustments in the research schedule, including revisions/modifications to prospective milestones. Recommendations for changes and technical revisions or modifications to the Agreement which result from the Annual Review shall be made in accordance with the provisions of Article III, Paragraph C.

C. Modifications

1. As a result of meetings, annual reviews, or at any time during the term of the Agreement, research progress or results may indicate that a change in the TDD would be beneficial to program objectives. Recommendations for modifications, including justifications to support any changes to the TDD and prospective milestones, will be documented and submitted by the Performer to the DARPA PM and AOR with a copy to the DARPA AO. This documentation will detail the technical, chronological, and financial impact of the proposed modification to the research program. The Performer’s authorized representative shall approve any Agreement modification. The Government is not obligated to pay for additional or revised future milestones until the Schedule of Milestones and Payments (Attachment 3) 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 revise or otherwise modify the Agreement TDD, Schedule of Milestones and Payments, or other proposed changes to the terms and conditions of this Agreement.

ARTICLE IV: AGREEMENT ADMINISTRATION

Unless otherwise provided in this Agreement, approvals permitted or required to be made by DARPA may be made only by the DARPA AO. Administrative and contractual matters under this Agreement shall be referred to the following representatives of the parties:

A. Government Points of Contact:

Agreements Officer (AO):

(NAME)

(TITLE)

(PHONE NUMBER)

(EMAIL)

DARPA Program Manager (PM):

(NAME)

(TITLE)

(PHONE NUMBER)

(EMAIL)

Agreements Officer’s Representative (AOR):

(NAME)

(TITLE)

(PHONE NUMBER)

(EMAIL)

B. Performer’s Points of Contact

Administrative/Contracting:

(NAME)

(TITLE)

(PHONE NUMBER)

(EMAIL)

Program Manager:

(NAME)

(TITLE)

(PHONE NUMBER)

(EMAIL)

ARTICLE V: OBLIGATION AND PAYMENT

A. Obligation

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

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 has an established and agrees to maintain an established accounting system which complies with Generally Accepted Accounting Principles and with the requirements of this Agreement

3. The Performer shall document the accomplishments of each milestone by submitting or otherwise providing the Milestones Report required by Attachment 2, Part E. 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 AORthe Performer will submit their invoice through Wide Area Workflow (WAWF), as detailed below.

4. Payments will be made by the Defense Agency Financial Services office, as indicated below, within thirty (30) calendar days of an accepted invoice in WAWF. WAWF is a secure web-based system for electronic invoicing, receipt and acceptance. The WAWF application enables electronic form submission of invoices, government inspection, and acceptance documents in order to support DoD’s goal of moving to a paperless acquisition process. Authorized DoD users are notified of pending actions by e-mail and are presented with a collection of documents required to process the contracting or financial action. It uses Public Key Infrastructure (PKI) to electronically bind the digital signature to provide non-refutable proof that the user (electronically) signed the document with the contents. Benefits include online access and full spectrum view of document status, minimized re-keying and improving data accuracy, eliminating unmatched disbursements and making all documentation required for payment easily accessible.

5. The Performer is required to utilize the WAWF system when processing invoices and receiving reports under this Agreement. The Performer shall (i) ensure an Electronic Business Point of Contact is designated in System for Award Management at http://www.sam.gov and (ii) register to use WAWF–RA at the https://wawf.eb.mil site, within ten (10) calendar days after award of this Agreement. Step by Step procedures to register are available at the https://wawf.eb.mil site. The Performer is directed to use the “2-in-1” format when processing invoices. The Performer shall maintain an active registration for “All Awards” in System for Award Management (SAM) throughout the life of the award. For WAWF Payment and Invoicing Support, email DARPAInvoices@darpa.mil or contact WAWF help desk at 866-618-5988 or email disa.global.servicedesk.mbx.eb-ticket-requests@mail.mil.

a. For the Issue By DoDAAC, enter HR0011.

b. For the Admin DoDAAC, enter HR0011.

c. For the Service Acceptor, enter DoDAAC TBD

d. Leave the Inspect by DoDAAC, Ship From Code DoDAAC, Service Approver, and LPO DoDAAC fields blank unless otherwise directed by the Agreements Officer.

e. The following guidance is provided for invoicing processed under this Agreement through WAWF:

· Acceptance within the WAWF system shall be performed by the AOR or AO upon receipt of a confirmation email, or other form of transmittal, from the AOR.

· The Performer shall upload the AOR approval as an attachment upon submission of an invoice in WAWF.

· Payments shall be made by DFAS-DoDAAC TBD

· The Performer agrees, when entering invoices entered in WAWF to utilize the CLINs associated with each milestone as delineated at Attachment 3. The description of the CLIN shall include reference to the associated milestone number along with other necessary descriptive information. The Performer agrees that the Government may reject invoices not submitted in accordance with this provision.

Note for DFAS: The Agreement shall be entered into the DFAS system by CLIN – Milestone association (MS)/ACRN as delineated at Attachment 3. The Agreement is to be paid out by CLIN (MS)/ACRN. Payments shall be made using the CLIN (MS)/ACRN association as delineated at Attachment 3.

f. Payee Information: As identified at the System for Award Management.

· Cage Code: (ENTER CAGE CODE)

· SAM UEI: (ENTER UEI)

· TIN: (ENTER TIN)

6. Payments shall be made in the amounts set forth in Attachment No. 3, provided the DARPA AOR has verified the accomplishment of the milestones.

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

8. Financial Records and Reports: 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 a copy of the Final Report required by Attachment 2, Part F. The Performer’s relevant financial records are subject to examination or audit on behalf of DARPA by the Government for a period not to exceed three (3) years after expiration of the term of this Agreement. The AO or designee shall have direct access to sufficient records and information of the Performer, to ensure full accountability for all funding under this Agreement. Such audit, examination, or access shall be performed during business hours on business days upon prior written notice and shall be subject to the security requirements of the audited party.

ARTICLE VI: 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 (through the DARPA AO or the Performer’s Administrator, as the case may be) in writing 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 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. DARPA Senior Procurement Executive, and the 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 or designee will resolve the issue(s) and notify the Parties in writing. Such resolution is not subject to further administrative review by the Director of DARPA, whose decision to the extent permitted by law shall be final and binding.

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 VII: 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 in 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 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 his 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 (1)-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 from the date permission is granted by the Commissioner of Patents and Trademarks to file foreign patent applications, where such filing has 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 (including Canada) subsidiaries and affiliates, 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 CFR 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 (i) establish or confirm the rights the Government has throughout the world in those subject inventions to which the Performer elects to retain title, and (ii) 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 U. S. 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-3-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 Agreements Officer and Administrative Agreements Officer.

H. Preference for American Industry

Notwithstanding any other provision of this clause, 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. Exceptional Circumstance

The Parties recognize that the Government is making a significant investment in the Subject Inventions under this Agreement. To protect the Government’s interests, the Parties agree to the following in the event that the Performer goes out of business or otherwise exits the (INSERT DESCRIPTION) industry; does not take effective steps consistent with the Agreement to achieve practical application or otherwise makes the Subject Inventions unavailable to the Government:

1. Upon DARPA’s request and an adequate showing of need, the Performer, assignee or exclusive licensee will provide a non-exclusive license to a responsible applicant or applicants, under terms that are reasonable under the circumstances, and

2. If the Performer, assignee or exclusive licensee refuses a reasonable request from the Government, DARPA has the right to grant such a license itself if DARPA makes a reasonable determination that such action is necessary to alleviate societal health or safety needs or national security needs, which are not reasonably satisfied, by the Performer, assignee, or exclusive licensees.

ARTICLE VIII: 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 program, the Government shall receive (INSERT APPLICABLE DATA RIGHTS), as defined in Article I, Paragraph B.

3. With respect to Data delivered pursuant to Attachment 2 under the Agreement, the Government shall receive (INSERT APPLICABLE DATA RIGHTS). Notwithstanding the provision in A.4, the performer agrees, with respect to data generated or developed under this Agreement, the Government may, within three (3) years after completion or termination of this Agreement, require delivery of data and receive (INSERT APPLICABLE DATA RIGHTS).

4. Rights in Foreground and Background IP After the Agreement.

Details to be negotiated based on performer’s assertion

5. Exceptional Circumstances

(a) In the event the Government chooses to exercise its rights under Article VII, Paragraph I 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 of a specified Subject Invention. The Government shall retain Unlimited Rights, as defined in Article I, Paragraph B of this Agreement, to this delivered Data.

(b) To facilitate any future requests and/or deliveries, the Performer agrees to retain and maintain in good condition until three (3) years after completion or termination of this Agreement, all Data necessary to achieve Practical Application of any Subject Invention as defined in Article I, Paragraph B of this Agreement.

(c) The Government is required to execute this exercise of rights in writing and the Performer agrees to deliver the Data within sixty (60) calendar days from the date of the Government’s written request. The Performer may request an extension of this time-period by making a written justification to the Government and such a request will not be unreasonably withheld.

B. Marking of Data

Pursuant to Paragraph B 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-3-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 IX: FOREIGN ACCESS TO TECHNOLOGY

This Article shall remain in effect during the term of the Agreement and for five (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 C.2, C.3, and C.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) transfers to foreign affiliates or subsidiaries of the Performer for purposes related to the performance of this Agreement, or

(d) permissible 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 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 VI, 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 have practiced on behalf of the United States the Technology throughout the world for Government an 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 X: CYBER INCIDENT REPORTING AND PUBLIC RELEASE

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. The cybersecurity safeguarding requirements applicable to information systems used in performance of this Agreement are established in the Cybersecurity Maturity Model Certification Article. This Article addresses the performer's obligations to report and respond to cyber incidents involving CDI, and to control the public release of information under this Agreement.

B. Relationship to Cybersecurity Maturity Certification Article

This Article supplements, and does not replace, the safeguarding requirements established in the Cybersecurity Maturity Model Certification Article. To the extent any provision of this Article addresses the implementation of security requirements for information systems, the requirements of the Cybersecurity Maturity Model Certification Article shall govern. Nothing in this Article relieves the performer of any obligation under that Article.

C. Information Categories This Agreement uses several related categories of protected information across this Article and the Cybersecurity Maturity Model Certification Article. These categories are intended to operate together, not in conflict, and are understood as follows:

Federal Contract Information (FCI) is information provided by or generated for the Government under this Agreement that is not intended for public release. It is addressed under the Cybersecurity Maturity Model Certification Article.

Controlled Unclassified Information (CUI) is the broader category of unclassified information requiring safeguarding or dissemination controls, and is addressed under both Articles.

Controlled Technical Information (CTI) is a subset of CUI consisting of technical information with military or space application subject to dissemination controls (distribution statements B through F).

Covered Defense Information (CDI) is used in this Article as a collective reference to CUI and CTI residing on information systems used in performance of this Agreement.

The cybersecurity safeguarding and certification requirements applicable to FCI and CUI are established in the Cybersecurity Maturity Model Certification Article. The cyber incident reporting and public release requirements of this Article apply to cyber incidents involving CDI (i.e., CUI and CTI). The use of differing category terms between the two Articles does not create separate or conflicting obligations; where the same information falls within more than one category, the requirements of each Article apply concurrently to that information.

D. Cyber Incident Reporting

Any actual or reasonably suspected unauthorized access to, disclosure of, loss of, or compromise of CDI residing on an information system used in performance of this Agreement that could reasonably affect the confidentiality, integrity, or availability of such information, or otherwise affect performance under this Agreement, shall be considered a reportable cyber incident.

Upon discovery of a reportable cyber incident involving CUI or CTI, the Performer shall promptly take reasonable measures to contain, mitigate, and investigate the incident and to prevent any further loss or compromise of CDI. The Performer shall rapidly report the cyber incident to DARPA. The initial report shall include, to the extent known at the time of reporting, the nature of the incident, the date and time of discovery, affected information systems, the categories of CDI potentially affected, known indicators of compromise (including identified malicious software, if applicable), and the containment measures implemented. The Performer shall provide supplemental reports as material information becomes available until the incident has been resolved. The Performer shall preserve and protect forensic evidence relating to the cyber incident, including system images, audit logs, authentication records, relevant monitoring or packet capture data (where available), and other relevant forensic artifacts, for at least ninety (90) days following submission of the initial incident report, or longer if requested by DARPA in support of an ongoing assessment. The Performer shall cooperate with DARPA in assessing the cyber incident and shall provide additional technical information reasonably requested to support the Government's assessment. The Performer shall consider Government recommended mitigation measures in good faith and promptly notify the Agreements Officer of the actions taken or, where applicable, the basis for implementing an alternative mitigation approach.

The Performer shall promptly notify DARPA if the cyber incident materially affects performance under this Agreement, including impacts to technical performance, schedule, cost, or delivery of Agreement milestones, and shall identify planned mitigation measures.

E. Public Release

The Performer shall not publicly release information concerning any cyber incident arising under this Agreement except in accordance with the Public Release Article of this Agreement and DARPA Instruction 65.

F. Lower Tier Agreements

The Performer shall flow down…