SAMPLE_OT_R__-_Fixed_Support_Consortium_-_2025.02.28.docx

AGREEMENT NUMBER: HR0011-XX-3-XXXX

AGREEMENT NUMBER: HR0011-XX-3-XXXX

(SAMPLE - CONSORTIUM MODEL -Fixed Support Approach)

OTHER TRANSACTION FOR RESEARCH

BETWEEN

(INSERT CONSORTIUM NAME AND ADDRESS)

AND

THE DEFENSE ADVANCED RESEARCH PROJECTS AGENCY

675 NORTH RANDOLPH STREET

ARLINGTON, VA 22203-1714

CONCERNING

(INSERT RESEARCH AND DEVELOPMENT EFFORT)

Agreement No.: HR0011-XX-3-XXXX Purchase Requisition No.: XXXXXXXXXXXXXX Total Amount of the Agreement: $(INCLUDES GOVERNMENT ONLY FUNDING) Total Estimated Government Funding 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 CONSORTIUM NAME) pursuant to and under United States. Federal law. Note that by signing this Agreement, (INSERT CONSORTIUM NAME) also attests to the accuracy and completion of the Certifications of the Agreement herein Attachment 5, Certifications for Agreement. (REMOVE LAST SENTENCE IF REPS/CERTS IS NOT INCLUDED AS ATTACHMENT AND IS INSTEAD SIGNED AND ON FILE SEPARATELY)

(Signature) (Signature)

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

TABLE OF CONTENTS

ARTICLES

ATTACHMENTS

ARTICLE I: SCOPE OF THE AGREEMENT

A. Background

THIS SECTION 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 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

Agreement: The body of this Agreement and Attachments 1 – 4, which are expressly incorporated in and made a part of the Agreement.

Consortium: The group of Consortium Members collaborating to accomplish the objectives of the Agreement, one of which must be a for-profit entity.

Consortium Member: A single Consortium performer operating under the Articles of Collaboration referred to in this Agreement.

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

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 Consortium, 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 of a Consortium Member 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. The Consortium 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 Consortium shall submit or otherwise provide all documentation required by Attachment 2, Report Requirements.

2. The Consortium 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.

3. The Government funding is estimated to represent (X) % of the overall amount necessary to accomplish the TDD. The Consortium 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 Consortium. 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 Consortium are bound to each other by a duty of good faith and best research effort in achieving the goals of the Program. This Agreement reflects the collaborative document identified as “Articles of Collaboration for (INSERT NAME OF CONSORTIUM),” which document binds Consortium Members.

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 Consortium to provide for a coordinated effort to advance the 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 Consortium, acting through its Consortium Management Committee, 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 Consortium beyond the last completed and paid milestone if the Consortium, acting through its Consortium Management Committee, decides to terminate.

C. Extending the Term

The Parties may extend by mutual written agreement 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 modification of the Agreement by the Agreements Officer (“AO”) and the Consortium Administrator.

ARTICLE III: MANAGEMENT OF THE PROJECT

A. Consortium Members

Consortium Members, as set forth in the Articles of Collaboration of the Consortium, are:

1. (LIST CONSORTIUM MEMBER)

2. (LIST CONSORTIUM MEMBER)

B. Consortium Management Committee (“CMC”)

1. The CMC shall be comprised of one voting representative from each Consortium Member, and in accordance with the Consortium Articles of Collaboration, bind the Consortium Members. The following CMC decisions are subject to DARPA AO approval:

(a) Changes to the Articles of Collaboration if such changes substantially alter the relationship of the Parties as originally agreed upon when the Agreement was executed;

(b) Changes to, or elimination of, any DARPA funding allocation to any Consortium Member as technically and/or financially justified;

(c) Technical revisions to the Agreement; and

(d) Admission of additional or replacement Consortium Members.

2. The CMC is responsible for establishing a schedule of regular technical meetings to be held on a quarterly basis. The CMC shall notify all Consortium Members and the DARPA Agreements Officer’s Representative (“AOR”) or DARPA PM of the established meeting schedule and, in the event of changes to this schedule, shall notify all Consortium Members and the DARPA PM and AOR thirty (30) calendar days prior to the next scheduled meeting.

3. A quorum (INSERT QUORUM DEFINITION DURING NEGOTIATION) is required of the Program Managers (or designees) representing the Consortium Members and the DARPA PM (or designee) at quarterly technical meetings. All technical decisions shall be made by (MAJORITY/CONSENSUS/ETC.) vote of the CMC and the DARPA PM (or designee).

C. Management and Program Structure

Technical and program management of the coordinated research program established under this Agreement shall be accomplished through the management structures and processes detailed in this Article.

1. The CMC shall be responsible for the overall management of the Consortium including technical, programmatic, reporting, financial and administrative matters.

2. The DARPA PM shall fully participate in all meetings of the CMC. Other Government personnel as deemed appropriate by the DARPA PM may also participate in the technical portion of these meetings.

D. Program Management Planning Process

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

1. Initial Program Plan: The Consortium 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 CMC, 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, concurrent with the appropriate meetings of the CMC which will be attended by the Consortium Members, the DARPA AOR, Senior DARPA management or other DARPA program managers and personnel as appropriate. The CMC, 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 Consortium 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 E.

E. 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 CMC 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 CMC 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.

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

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. Consortium Points of Contact

Consortium Administrative/Contracting:

(NAME)

(TITLE)

(ADDRESS)

(PHONE NUMBER)

(EMAIL)

Consortium Program Manager:

(NAME)

(TITLE)

(ADDRESS)

(PHONE NUMBER)

(EMAIL)

Each party may change its representatives named in this Article by written notification to the other party.

ARTICLE V: OBLIGATION AND PAYMENT

A. Obligation

The Government’s liability to make payments to the Consortium 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 Consortium has and agrees to maintain an established accounting system which complies with Generally Accepted Accounting Principles and with the requirements of this Agreement.

3. The CMC 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 Consortium which includes feedback regarding deficiencies requiring correction, or 2) written notice of acceptance to the DARPA PM, AO, and Consortium within fifteen (15) calendar days of receipt of deliverable(s)/milestone report(s). Upon written approval from the DARPA AOR, the Consortium 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 Constortium is required to utilize the WAWF system when processing invoices and receiving reports under this Agreement. The Constortium 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 Constortium is directed to use the “2-in-1” format when processing invoices. The Constortium 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 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 AO.

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 (choose one) upon receipt of a confirmation email, or other form of transmittal, from the AOR.

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

· Payments shall be made by DFAS-(INSERT APPROPRIATE DFAS OFFICE).

· The Constortium 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 Constortium 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 Central Contractor Registration.

· 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. 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 Consortium and Consortium Members shall maintain adequate records to account for all funding under this Agreement. Upon completion or termination of this Agreement, whichever occurs earlier, the Consortium Administrator shall furnish a copy of the Final Report required by Attachment 2, Part F. The Constortium’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 Constortium, 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 Consortium 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 Consortium 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 CMC of the Consortium. 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 Constortium. 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 Constortium shall have notified DARPA, in accordance with Subparagraph B.2 below, that the Constortium does not intend to retain title, the Constortium 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 Constortium 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 Constortium 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 Constortium determines that it does not intend to retain title to any such Invention, the Constortium 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 Constortium 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 Constortium 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 Constortium 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 Constortium and the overall effect of the extension.

6. The Constortium shall submit to DARPA annual listings of subject inventions. At the completion of the Agreement, the Constortium 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 Constortium shall convey title to any subject invention to DARPA under any of the following conditions:

1. If the Constortium 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 Constortium to disclose or elect within the specified times;

2. In those countries in which the Constortium fails to file patent applications within the times specified in Paragraph B of this Article; however, if the Constortium 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 Constortium shall continue to retain title in that country; or

3. In any country in which the Constortium 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 Constortium and Protection of the Constortium’s Right to File

1. The Constortium shall retain a nonexclusive, royalty-free license throughout the world in each subject invention to which the Government obtains title, except if the Constortium fails to disclose the subject invention within the times specified in Paragraph B of this Article. The Constortium’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 Constortium 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 Constortium’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 Constortium 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 Constortium, 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 Constortium a written notice of its intention to revoke or modify the license, and the Constortium 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 Constortium 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 Constortium 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 Constortium 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 Constortium each subject invention made under this Agreement in order that the Constortium can comply with the disclosure provisions of Paragraph B of this Article. The Constortium 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 Constortium 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 Constortium 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 Constortium 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 Constortium 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 Constortium, and such other data and information as the agency may reasonably specify. The Constortium 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 Constortium, 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 Constortium 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 Constortium 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 Constortium agrees that, with respect to any subject invention in which it has retained title, DARPA has the right to require the Constortium, 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 Constortium, 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 Constortium 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 Constortium, assignee, or their licensees;

3. Such action is necessary to meet requirements for public use and such requirements are not reasonably satisfied by the Constortium, 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 Constortium 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 Constortium 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 Constortium 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 Constortium agrees to retain and maintain in good condition until (INSERT NUMBER OF 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.

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 Consortium.

C. Lower Tier Agreements

The Consortium 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) 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.), DoD Manual 5220.22, Volume 2 (August 1, 2018), 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) transfer to foreign subsidiaries of the Consortium Members 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 Consortium shall provide timely notice to DARPA of any proposed transfers from the Consortium 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 Consortium, 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 Consortium.

3. In any event, the Consortium 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 Consortium’s written notification, the DARPA AO shall advise the Consortium 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 Consortium 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 Consortium 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 Consortium shall provide written confirmation of such licenses.

C. Lower Tier Agreements

The Consortium 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: SAFEGUARDING COVERED DEFENSE INFORMATION AND CYBER INCIDENT REPORTING

A. Background

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

B. Safeguarding CDI

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

C. Cyber Incident Reporting

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

D. Public Release

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

E. Lower Tier Agreements

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

F. Definitions

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

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

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

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

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

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

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

Rapidly Report: Report to DARPA within 72 hours of discovery of any cyber incident.

ARTICLE XI: TITLE TO AND DISPOSITION OF PROPERTY (USE IF CONSORTIUM NOT EXPECTED TO ACQUIRE PROPERTY VALUED GREATER THAN $10,000)

A. Definitions

In this Article “property” means any tangible personal property other than property actually consumed during the execution of work under this agreement.

B. Title to Property

No significant items of property are expected to be acquired under this Agreement. Title to each item of property acquired under this Agreement with an acquisition value of $10,000 or less shall vest in the Consortium upon acquisition with no further obligation of the Parties unless otherwise determined by the AO. Should any item of property with an acquisition value greater than $10,000 be required, the Consortium shall obtain prior written approval of the AO. Title to this property shall also vest in the Consortium upon acquisition. The Consortium shall be responsible for the maintenance, repair, protection, and preservation of all property at its own expense.

C. Disposition of Property

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