PS_Attachment_1_Beamers_Model_OT.docx

AGREEMENT NUMBER: HR0011-XX-9-XXXX

DARPA has provided the model OT as an opportunity for proposer to suggest edits for consideration. The model OT is representative of the general terms and conditions that DARPA intends to include in any awards, however final terms and conditions will be specific to each award and will vary from the model provided here. Performers shall update all text in blue below and provide with the proposal submission. This MODEL OT Agreement does not constitute a commitment by the Government of any kind, nor is it authorization to begin incurring any cost associated with the BEAMERS Program. Proposers may suggest edits to the model OT for consideration by DARPA and provide a copy of the model OT with track changes as part of their proposal package. 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 Prototype Agreement

BETWEEN

(INSERT COMPANY NAME AND ADDRESS)

AND

THE DEFENSE ADVANCED RESEARCH PROJECTS AGENCY

675 NORTH RANDOLPH STREET

ARLINGTON, VA 22203-2114

CONCERNING

BEAMERS

Agreement Number: TBD Purchase Requisition Number: XXXXXXXXXXXXXX Total Potential Value of the Agreement: $XXXXXX Funds Obligated: $ XXXXXXX Authority: 10 U.S.C. § 4022 Effective Date: XX/XX/XXXX

This Agreement is entered into between the United States of America, hereinafter called the Government, represented by The Defense Advanced Research Projects Agency (DARPA), and (INSERT COMPANY NAME) pursuant to and under United States Federal law.

FOR (INSERT COMPANY NAME) FOR THE GOVERNMENT

DEFENSE ADVANCED RESEARCH PROJECTS

AGENCY

(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:

· 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 DEVELOP THE PROTOTYPE AND WHAT IS ITS POTENTIAL IMPACT ON THE MILITARY AND COMMERCIAL SECTOR?

· WHAT ARE THE ISSUES OF PARTICULAR IMPORTANCE TO DARPA? 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?

The Program Tasking is set forth in Attachment 1 (Task Description Document).

B. Definitions

In this Agreement, the following definitions apply:

Agreement: The body of this Agreement and Attachments 1 – 6, which are expressly incorporated in and made a part of the Agreement.

Background Data: Intellectual Property made available for this agreement that was created by the performer independent of this project and prior to the start of this project.

Data: Recorded information, regardless of form or method of recording, which includes but is not limited to, technical data, software, mask works 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.

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.

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

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: Relates to 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: NAME OF COMPANY HERE.

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.

Property: Any tangible personal property other than property actually consumed during the execution of work under this agreement. For purposes of this Agreement, "property" does not include the deliverable prototype which is an integrated wideband receive-only staring ES receiver that operates over the 1-110 GHz bandwidth and does not perform scanning across apace or frequency. The prototype demonstrator combines wideband apertures, beamspace processing, frequency channelization, Tier-0 event detection, mission-configurable capture scheduling, selectiveTier-1 coherent I/Q acquisition, and a digital back-end used for testing. The prototype will demonstrate simultaneous observation across the required spatial and frequency coverage, detection and reporting of signal intercepts, and selective waveform capture using a limited pool of ADC resources that is less than the total observed beam-frequency cells. The BEAMERS Phase 1 and Phase 2 prototypes must support the five capabilities referenced in Program Solicitation Section 1.2. Its primary objective is to experimentally validate the performance and scalability of this architecture in performing staring as aperture size, frequency coverage, and cell count increase, without requiring continuous full-rate digitization. The purpose of the prototype is to demonstrate the operational utility of high BBP staring ES architectures. Prototype performance will be assessed using the Program Metrics, evaluated on the connected receive chain.

Phase 1 Baseline Prototype The Phase 1 prototype comprises a set of lx8, or functionally equivalent one-dimensional, aperture that demonstrate complete receive chains for each band tile through selective coherent capture. For an array approach, this is a linear aperture; for a lens or focal-plane approach, it may be an equivalent one-dimensional set of spatial ports.

Phase 1 must retire the in-chain risks associated with beam formation, calibration, channelization, sensitivity, dynamic range, two-tier detection, SOI selection, and routing to coherent capture. Phase 1 integration is limited to the functions within each band tile; band tiles may operate and be evaluated independently, provided that interfaces, timing, event metadata, calibration state, and the Phase 2 cross-band integration concept are defined.

Phase 2 Prototype Evolution The Phase 2 prototype must scale the Phase I architecture to a set of 8x8, or functionally equivalent two-dimensional, aperture band-tiles and must integrate the band tiles into a final BEAMERS Program Prototype. Phase 2 will retire the risks associated with two-dimensional aperture scaling, increased cell count, calibration and thermal complexity, crosstalk and jammer leakage, event load, coherent-digitizer contention, and aggregate power consumption. The prototype must have a common time reference and calibrated spatial, spectral, and measurement information to enable coordinated Tier-0 detection, event association, and resource scheduling for cross-band detection. Phase 1 and Phase 2 are successive phases of the same Prototype Project under each award, not separate prototype projects.

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, maskworks 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. This Agreement is an Other Transaction pursuant to 10 U.S.C. § 4022. The principal purpose of this Agreement is to engage in a research and development program for development of an integrated wideband receive-only staring ES receiver that operates over the 1-1110 GHz bandwidth and does not perform scanning across apace or frequency. The prototype demonstrator combines wideband apertures, beamspace processing, frequency channelization, Tier-0 event detection, mission-configurable capture scheduling, selectiveTier-1 coherent I/Q acquisition, and a digital back-end used for testing. The prototype will demonstrate simultaneous observation across the required spatial and frequency coverage, detection and reporting of signal intercepts, and selective waveform capture using a limited pool of ADC resources that is less than the total observed beam-frequency cells. The BEAMERS Phase 1 and Phase 2 prototypes must support the five capabilities referenced in Program Solicitation Section 1.2. Its primary objective is to experimentally validate the performance and scalability of this architecture in performing staring as aperture size, frequency coverage, and cell count increase, without requiring continuous full-rate digitization. The purpose of the prototype is to demonstrate the operational utility of high BBP staring ES architectures. Prototype performance will be assessed using the Program Metrics, evaluated on the connected receive chain.

Phase 1 Baseline Prototype The Phase 1 prototype comprises a set of lx8, or functionally equivalent one-dimensional, aperture that demonstrate complete receive chains for each band tile through selective coherent capture. For an array approach, this is a linear aperture; for a lens or focal-plane approach, it may be an equivalent one-dimensional set of spatial ports.

Phase 1 must retire the in-chain risks associated with beam formation, calibration, channelization, sensitivity, dynamic range, two-tier detection, SOI selection, and routing to coherent capture. Phase 1 integration is limited to the functions within each band tile; band tiles may operate and be evaluated independently, provided that interfaces, timing, event metadata, calibration state, and the Phase 2 cross-band integration concept are defined.

Phase 2 Prototype Evolution The Phase 2 prototype must scale the Phase I architecture to a set of 8x8, or functionally equivalent two-dimensional, aperture band-tiles and must integrate the band tiles into a final BEAMERS Program Prototype. Phase 2 will retire the risks associated with two-dimensional aperture scaling, increased cell count, calibration and thermal complexity, crosstalk and jammer leakage, event load, coherent-digitizer contention, and aggregate power consumption. The prototype must have a common time reference and calibrated spatial, spectral, and measurement information to enable coordinated Tier-0 detection, event association, and resource scheduling for cross-band detection. Phase 1 and Phase 2 are successive phases of the same Prototype Project under each award, not separate prototype projects.

2. The Performer shall be responsible for performance of work set forth in Attachment 1, Task Description Document. The Performer shall submit or otherwise provide all documentation required by Attachment 2, Report Requirements and Attachment 3, Schedule of Milestones and Payments.

3. 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.

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 obtain access to Program results and 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 in achieving the Program objectives.

ARTICLE II: TERM

A. Term of this Agreement

The TBD2 Program commences upon the date of the last signature hereon and continues for maximum of 15 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

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

C. Extending the Term

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

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), in consultation with the DARPA Program Manager (PM), shall provide recommendations to Program developments and technical collaboration and be responsible for the review and verification of the milestones.

B. Modifications

1. Recommendations for modifications, including justifications to support any changes to the Scope of Work, as described in Task Description Document (Attachment 1), and Schedule of Milestones and Payments (Attachment 3), will be documented in writing and submitted by the Performer to the DARPA AOR with a copy to the DARPA PM and AO. This documentation will detail the technical, chronological, and financial impact of the proposed modification to the research program. The DARPA AO and the Performer’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 and PM shall be responsible for the review and verification of any recommendations to revise or otherwise modify the Task Description, Schedule of Milestones and Payments, or other proposed changes to the terms and conditions of this Agreement.

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

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

C. Program Management Process The Program Plan is set forth in the TDD, Attachment 1 and the Schedule of Milestones and Payments, Attachment 3. The Performer will provide monthly technical status and business status reports, in accordance with Attachment 2 in order to update DARPA on Performer’s performance under the Agreement. The performer will provide technical status updates with supporting material at virtual or in-person meetings monthly.

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):

TBD NAME

DARPA Contracts Management Office (CMO) Phone: 703-526- Email: XXX@darpa.mil

DARPA Agreements Officer’s Representative (AOR):

Phone:

Email:

B. Performer Points of Contact

Authorized Representative

(NAME)

(TITLE)

(PHONE NUMBER)

(EMAIL)

Administrative/Contracting:

(NAME)

(TITLE)

(PHONE NUMBER)

(EMAIL)

Program Manager:

(NAME)

(TITLE)

(PHONE NUMBER)

(EMAIL)

Each party may change its representatives named in this Article by written notification to the other party. The Government will affect the change as stated in Article III, Paragraph B. above.

ARTICLE V: OBLIGATION AND PAYMENT

A. Obligation

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

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

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 prototype goals of this Agreement.

4. Payments will be made by the Defense Finance and Accounting 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 (SAM) 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, Extension TBD

b. For the Admin DoDAAC, enter HR0011.

c. For the Service Acceptor AOR fields, enter (the Service Acceptor AOR DoDAAC).

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 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-TBD

· The Performer agrees, when entering invoices entered in WAWF to utilize the contracting line-item number (CLIN) and accounting classification reference number (ACRN) 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 SAM.

· Cage Code: (ENTER CAGE CODE)

· SAM UEI: (ENTER UEI)

· TIN: (ENTER TIN)

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

7. Financial Records and Reports:

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

b. To the extent that the total government payments under the Agreement exceed $5,000,000, the Comptroller General of the United States, in its discretion, shall have access to and the right to examine records of any party to the Agreement or any entity that participates in the performance of this Agreement that directly pertain, to and involve transactions relating to, the Agreement for a period of three (3) years after final payment is made. This requirement shall not apply with respect to any party to this Agreement or any entity that participates in the performance of the Agreement, or any subordinate element of such party or entity, that, in the year prior to the date of the Agreement, has not entered into any other contract, grant, cooperative agreement, or other transaction agreement that provides for audit access to its records by a government entity in the year prior to the date of this Agreement. This Paragraph only applies to any record that is created or maintained in the ordinary course of business or pursuant to a provision of law. The terms of this Paragraph shall be included in all sub-agreements/contracts to the Agreement.

C. Funding Summary

1. Funding details including the Line(s) of Accounting and Funding Amount are summarized below.

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

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

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

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 to each Subject Invention consistent with the provisions of this Article.

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

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

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

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

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

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

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

6. The Performer shall submit to DARPA annual listings of Subject Inventions. At the completion of the Agreement, the Performer shall submit a comprehensive listing of all subject inventions identified during the course of the Agreement and the current status of each, see Attachment 2.

C. Conditions When the Government May Obtain Title

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

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

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

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

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

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

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

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

E. Action to Protect the Government’s Interest

1. The Performer agrees to execute or to have executed and promptly deliver to DARPA all instruments necessary to (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 (see, Attachment 2) in sufficient time to permit the filing of patent applications prior to United States or foreign statutory bars.

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

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

F. Lower Tier Agreements

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

G. Reporting on Utilization of Subject Inventions

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

2. All required reporting shall be accomplished, to the extent possible, using the i-Edison reporting website: https://www.nist.gov/iedison. To the extent any such reporting cannot be carried out by use of i-Edison, reports and communications shall be submitted as directed in Attachment 2.

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. March-in Rights

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

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

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

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

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

ARTICLE 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 (INSERT DELIVERABLE PROTOTYPE), 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 (INSERT NUMBER OF YEARS) after completion or termination of this Agreement, require delivery of data and receive (INSERT APPLICABLE DATA RIGHTS).

4. March-In Rights

a. In the event the Government chooses to exercise its March-in Rights, as defined in 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 within sixty (60) calendar days from the date of the written request. The Government shall retain Unlimited Rights, as defined in Article I, Paragraph B of this Agreement, to this delivered Data.

b. To facilitate any potential deliveries, the Performer agrees to retain and maintain in good condition until one (1) year 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.

B. Marking of Data

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

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

Unless otherwise marked, any Data delivered under this Agreement is delivered with Unlimited Rights.

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 (INSERT NUMBER OF YEARS) (xx) thereafter.

A. General

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

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

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

a. Sales of products or components; or

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

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

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

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

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

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

C. Lower Tier Agreements

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

ARTICLE 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…