TIA_Template_-_Expenditure_Based_4_Sep_2015.doc

Agreement No. W911W6-XX-2-XXXX

Technology Investment Agreement

Between

Recipient Name

Recipient Address

CAGE: XXXXX

Fiscal Station Code: XXXXXX And

U.S. Army Aviation Applied Technology Directorate (AATD)

Fort Eustis, VA 23604‑5577

Concerning

“Program Title Name” Agreement No.: W911W6-XX-2-XXXX Total Amount of the Agreement: $ Government Funds Contribution: $ Recipient Contribution:

Government Funds Obligated:

Authority: 10 U.S.C. 2358

Effective Date: XX Month Year Estimated Performance Date (Based on Government Funds Obligated): XX Month Year Accounting and Appropriation Data:

This Agreement is entered into between the United States of America, hereinafter called the "Government," represented by the U.S. Army's Aviation Applied Technology Directorate (AATD) and Recipient Name (XX), and hereinafter also called the "Recipient" pursuant to and under U.S. Federal Law.

RECIPIENT NAME

STREET ADDRESS

CITY, STATE

FOR THE UNITED STATES OF AMERICA, AVIATION APPLIED TECHNOLOGY DIRECTORATE

(Signature/Date)

(Signature/Date)

Name Title

Name Grants/Agreements Officer

Effective date

TABLE OF CONTENTS

4ARTICLE I: SCOPE OF THE AGREEMENT

ARTICLE II: GENERAL DEFINITIONS

ARTICLE III: TERM

ARTICLE IV: MANAGEMENT OF THE PROJECT

ARTICLE V. AGREEMENT ADMINISTRATION

ARTICLE VI: OBLIGATION AND PAYMENT

ARTICLE VII: PROGRAM INCOME

ARTICLE VIII: GOVERNING LAW/ORDER OF PRECEDENCE

ARTICLE IX: CLOSEOUT ADJUSTMENTS

ARTICLE X: DISPUTES

ARTICLE XI: PERFORMANCE REPORTS

ARTICLE XII: PATENT RIGHTS

ARTICLE XIII. OTHER INTELLECTUAL PROPERTY RIGHTS

ARTICLE XIV: FOREIGN ACCESS TO TECHNOLOGY

ARTICLE XV: PUBLIC RELEASE OR DISSEMINATION OF INFORMATION

ARTICLE XVI: OFFICIALS NOT TO BENEFIT

ARTICLE XVII: EXECUTION

ARTICLE XVIII: ARTICLE XVIII: EQUIPMENT,PROPERTY, and GOVERNMENT FURNISHED INFORMATION……………………………………………………………….23

ARTICLE XIX: USE OF TECHNICAL FACILITIES

ARTICLE XX: NON ASSIGNMENT

ARTICLE XXI: SEVERABILITY

ARTICLE XXII: FORCE MAJEURE

ARTICLE XXIII: CERTIFICATIONS/ASSURANCES

ARTICLE XXIV: WAIVER OF RIGHTS

ARTICLE XXV: AUTHORIZATION AND CONSENT

ARTICLE XXVI: NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT

ARTICLE XXVII: LIABILITY

ARTICLE XXVIII: TRAFFICKING IN PERSONS

ARTICLE XXIX: PROHIBITION ON USING FUNDS UNDER GRANTS AND COOPERATIVE AGREEMENTS WITH ENTITIES THAT REQUIRE CERTAIN INTERNAL CONFIDENTIALITY AGREEMENTS…………………………………………28

ATTACHMENTS

ATTACHMENT 1.

STATEMENT OF RESEARCH EFFORT

ATTACHMENT 2.

REPORT REQUIREMENTS/AGREEMENT DELIVERABLES

ATTACHMENT 3.

PROGRAM MANAGEMENT STRUCTURE

ATTACHMENT 4.

PROGRAM SCHEDULE/FUNDING PROFILE

ATTACHMENT 5.

CONTRACT PROVISIONS

ATTACHMENT 6.

IDENTIFICATION OF BACKGROUND INTELLECTUAL

PROPERTY AND PROPRIETARY INFORMATION

ARTICLE I: SCOPE OF THE AGREEMENT

A.

This Technology Investment Agreement (hereafter “Agreement”) is a Cooperative Agreement pursuant to 10 U.S.C. 2358 Research Projects, Title 2 of the Code of Federal Regulations (CFR), Chapter XI, and Title 32 CFR, Subtitle A, Chapter I, Subchapter C. The Parties agree that the principal purpose of this Agreement is for Recipient to provide its best research efforts in the support and stimulation of advanced research and technology development and not the acquisition of property or services for the direct benefit or use of the Government. Federal Acquisition Regulation (FAR) and Department of Defense Federal Acquisition Regulation Supplement (DFARS) apply only as specifically referenced herein. The Grants/Agreements Officer represents, warrants and assures the other parties to this Agreement that this Agreement is not a procurement contract under the Armed Services Procurement Act of 1947 or grant under 31 U.S.C. Sections 6303 for purposes of FAR Section 31.205-18(a), and that such other parties' independent research and development (IR&D) costs incurred in performance under this Agreement are not construed to be sponsored by, or required in performance of a procurement contract or grant. This Agreement is not intended to be, nor will it be construed as, by implication or otherwise, a partnership, a corporation, or other business organization.

B.

Program Background, Purpose and Objectives

1.

Background. Enter Background information on proposed effort

2. Purpose. The purpose of this Agreement is to support and stimulate research of enter program highlight that are of mutual benefit to both military and commercial markets under auspices of the Department of Defense (DoD) dual use investment strategy. In a global market, it is increasingly vital to our national security to capture technologies that are commercially available, incorporate them into our weapon systems and get them fielded before our adversaries. DoD has recognized that it is critical to move from separate industrial bases for military and commercial markets to an integrated national industrial base if the U.S. is to keep its military advantage. The objective to marry the momentum of a vigorous, productive and competitive commercial infrastructure with the unique technologies and systems integration capabilities critical to defense can be pursued by undertakings such as this project. Numerous initiatives represent a significant endeavor on the part of the Government and industry to pursue partnering and the principles of integrated product/process development (IPPD) for maximum, mutual benefit of the Government and industry. Using the principles of IPPD, the DoD’s dual use strategy to invest in research and development on technologies important to both defense and commercial applications are being achieved. Previous programs have demonstrated that it is possible to integrate the defense and commercial industrial bases and to access the commercial capabilities for military systems. Given DoD’s budget realities and the amount of research being conducted in the commercial sector, this project takes an innovative approach to technology development and utilization to support the enter program title goals. The agreement will create a collaborative work environment to conduct innovative research and exploit state-of-the-art concepts in support of goals to transfer technology between the private sector and the Government. A clear objective of the contemplated research is to provide the mechanism and incentive to catalyze the transfer, thus tapping previously unavailable sources of joint funding.

3. Objectives. The overall objective of the enter program title program is to ………..

C.

Scope

1.

The Recipient will participate in a program of coordinated research and development with the Government in accordance with the Statement of Research Effort incorporated in this Agreement as Attachment 1, Statement of Research Effort, and will submit all data required by Attachment 2, Report Requirements/Agreement Deliverables.

2.

The Government will have continuous involvement with the Recipient. The Government will also obtain access to research results and certain rights in data and patents pursuant to Articles XII: Patent Rights and XIII: Other Intellectual Property Rights. THE GOVERNMENT and the Recipient are bound to each other by a duty of good faith and best research effort in achieving the goals of the program.

3.

As a condition of this Agreement, it is herein understood and agreed that Federal funds are to be used only for costs that: (1) a reasonable and prudent person would incur in carrying out the research project herein; and (2) are consistent with the purposes stated in the governing Congressional authorizations and appropriations.

4.

The Government and the Recipient estimate that the Statement of Research Effort of this Agreement can only be accomplished with an aggregate resource contribution of $. The Recipient intends and, by entering into this Agreement, undertakes to provide $. The Government intends and, by entering this Agreement, undertakes to provide $ of these funds. Such contributions will be provided as identified in Attachment 4, Program Schedule/Funding Profile. The foregoing contributions of the respective parties are maximum contributions which shall be exceeded only by mutual agreement as evidenced by a bilateral modification to this Agreement. If either the Government or Recipient is unable to provide its respective total contribution, the other party may reduce its project funding by a proportional amount.

ARTICLE II: GENERAL DEFINITIONS

Except as otherwise noted in specific Articles, the following definitions apply to this Agreement:

A. “Recipient” - The person (e.g., organization or other entity) to which a DoD component awards a grant or with which a DoD component enters into an Agreement.

B.

“Party” - For purposes of this Agreement, there are only two Parties: AATD (The Government) and the Recipient.

C.

“Government Program Manager” - (as used herein “Program Manager” means the Government Program Manager) is the Government’s representative charged with overall responsibility for program performance, as set forth herein.

D. The “Overarching Integrated Product Team (OIPT)” consists of the Government and Recipient Program/Agreement Management Team, which is depicted in Attachment 3, Program Management Structure, and is the management group responsible for overall management of the program.

E.

“Recipient Program Manager” is the authorized technical agent of Recipient charged with maintaining a technical point-of-contact function with responsibilities including receipt and distribution of technical communications between the Government and Recipient, monitoring of technical program progress and facilitation of overall program technical and reporting requirements on behalf of Recipient, acting as the principal technical point of contact.

F. The “Working Integrated Product Team (WIPT)” is jointly facilitated by the Recipient Program Manager and the Government Technical Agent and consists of those Recipient key investigators and their Government counter parts charged with the day-to-day research performance. For issues involving administrative, financial, programmatic or other non-technical issues, Recipient and Government Agreement Administrators are WIPT members.

G. “Recipient Administrator” is the authorized agent of Recipient charged with maintaining the program financial management function including receipt and distribution of program funds, monitoring of financial program progress, and facilitating overall program contractual, financial and reporting requirements on behalf of Recipient.

H.

“Agreement Administrator” is the Government's principal point of contact for all contractual, administrative, financial or other non-technical issues arising under the Agreement.

I. “Technical Agent(s)” means those technical representatives of the Government Program Manager charged by the Government Program Manager with responsibility for monitoring technical program progress, jointly coordinating with Recipient Principal Investigator(s) on review and verification of technical and reporting requirements, facilitating any modification to the Statement of Objectives set forth herein, and acting as the principal technical point of contact.

J. “Principal Investigator” or “Chief Technical Integrator” means those technical representatives of Recipient Program Manager charged by Recipient Program Manager with responsibility for day-to-day program execution and for monitoring technical program progress, jointly coordinating with Technical Agent(s) on review and verification of technical and reporting requirements, facilitating any modification to the Statement of Objectives set forth herein, and acting as Recipient principal technical point(s) of contact.

K. “Grants/Agreements Officer” is the Government official with the authority to enter into, administer, and/or terminate a grant, cooperative agreement, technology investment agreement, or other transaction in accordance with delegations. The Grants/Agreements Officer is responsible for enforcement of requirements and for assuring that the overall business process supports the agency mission.

L. “Intellectual Property” means any inventions, creations, improvements, technical data, mask works, works of authorship or other developments, including software, and improvements thereto, whether patentable, copyrightable or not. “Intellectual Property Rights” means rights in intangible personal property such as patents and patent applications, trademarks, copyrights, technical data, and software.

M. Federal Acquisition Regulation (FAR) Clauses / Defense Federal Acquisition Regulations Supplement (DFARS) Clauses which may be referenced to apply to this Agreement except that (a) all references to the "Contracting Officer" shall be deemed to be references to the Government Grants/Agreements Officer; (2) all references to the "Contractor" shall be deemed to be references to the Recipient: (3) all references to the "contract" shall be deemed to be reference to this Agreement; (4) all references to the "Dispute clause" shall be deemed to be references to Article X (Disputes); and, (5) all equitable adjustments available under the clause shall be subject to the terms of Article X (Disputes). Also, if there are Recipient references to the "Contract Data Requirement List (CDRL)(s)", this shall be deemed to be references to the Agreement Deliverables.

ARTICLE III: TERM

A.

Term of this Agreement.

The term of this agreement is XX (XX) months total, (XX (XX) months technical performance and an additional three (3) months for the Government review and completion of the Draft/Final Report), commencing on the effective date shown on the face of this Agreement and ending on XX Month Year. If all funds are expended prior to the Estimated Performance Date as shown on the face of the Agreement, the parties have no obligation to continue performance on the effort. Provisions of this Agreement, which, by their express terms or by necessary implication, apply for periods of time other than specified herein, will be given effect, notwithstanding this Article.

B.

Suspension, Termination and Enforcement.

1.

This Agreement may be suspended or terminated in whole or in part only if a., b., c. or d. apply:

a. By either party if the other party materially fails to comply with the terms and conditions of the Agreement;

b. By the Government, in which case the two parties will agree upon the suspension/termination conditions, including the effective date, and in the case of a partial, the portion to be suspended/terminated;

c. By the Government if there is insufficient funding. The Government's maximum liability is limited to the funds placed on the Agreement and should the Government’s funds placed on the Agreement not be sufficient to cover the Government’s obligations, Recipient agrees in advance its sole remedy is to demand in writing termination of the Agreement. Recipient may also stop work immediately. Five days after receipt of the demand by the Government, both parties agree the Agreement shall be deemed terminated, unless the Government shall have provided adequate funds to continue, or both parties have agreed in writing to allow continued performance.

d. By Recipient, if there are insufficient cost match funds, or upon written notification to the Government setting forth any reasons for such termination, the effective date, and, in the case of a partial suspension/ termination, that portion to be terminated. Such notification will be given no later than thirty (30) days prior to the effective date of the termination.

If the Government determines that a partial suspension/termination would not accomplish the purpose under which this Agreement was made, the Government may terminate the Agreement in its entirety under paragraphs a., b., or c.

2.

If this Agreement is terminated pursuant to Paragraph B.1. (a) above, the following will apply. Hearings and appeals: Either Party will be provided an opportunity for a hearing, an appeal or other administrative proceeding to which either party is entitled under any statute or regulation applicable to the action involved (see Article X, Disputes, herein).

3.

Any costs resulting from obligations incurred by Recipient during a suspension or after termination are only allowable if necessary and unavoidable and;

a. The costs result from obligations which were properly incurred by Recipient before the effective date of suspension or termination, and were not in anticipation of it, and in the case of a termination, were not cancelable;

b. The costs would be allowable if the award were not suspended or expired normally at the end of the funding period in which the termination takes effect.

c. They are shutdown costs associated with a suspension or termination unless that suspension or termination was caused by a material breach of the Recipient.

4.

Extending the Term: The Parties may extend the term of this Agreement by mutual written agreement, if funding availability and performance reasonably warrants such an extension. Any extension consistent with applicable law will be formalized through a written bilateral modification between the Grants/Agreements Officer and Authorized Recipient Signatory.

ARTICLE IV: MANAGEMENT OF THE PROJECT

A.

Management and Program Structure.

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

1.

The program management concept capitalizes on the principles of Integrated Product and Process Development (IPPD), maximizes the strengths of all participants, and integrates the Government sponsor. A key feature of the program management structure is the Integrated Product Team (IPT) consisting of the OIPT and WIPT as depicted in Attachment 3.

2.

Recipient will comply with federal statutes, executive orders, regulations, and other legal requirements applicable to agreements into which it enters under federal assistance agreements. Recipient will follow basic principles of business intended to produce rational decisions and fair treatment. Recipient will use its existing procurement system that has undergone a Contractor's Purchasing System Review under 48 CFR 44.3 (in the Federal Acquisition Regulation) and been deemed acceptable. Any contract awarded by Recipient and its sub-recipients shall contain the procurement provisions, as applicable, defined in Attachment 5, Contract Provisions hereto.

3.

The Government Program Manager and/or his designated Technical Agent(s) will be responsible for the review and verification of the performance and will have continuous interaction to cause effective collaboration between the Government and Recipient.

B.

Modifications.

At any time during the term of the Agreement, research progress or results may indicate that a change in the Program Management Plan would be beneficial to meeting technology demonstration objectives. Modifications, including justification to support any changes to the Statement of Research Effort and impacts to technical, chronological, and financial status, will be documented in coordinated updates to the Program Management Plan. Any modifications or changes to this Agreement will be accomplished by mutual agreement between the Grants/Agreements Officer and Recipient. In the event of a delay in performance, including failure to provide funding as identified in Article VI: Obligation and Payment, by either party, a modification to the Agreement may be executed to remedy the effect of the delay upon the other party.

ARTICLE V. AGREEMENT ADMINISTRATION

A. Either Party shall immediately, in writing, request prior approval from the other Party when there is reason to believe that within the next thirty (30) calendar days a programmatic or budgetary revision will be necessary. Such approval shall be sought for one or more of the following program or budget related reasons:

1. Change in the scope or the objective of the Statement of Research Effort (even if there is no associated budget revision requiring prior written approval).

2. Change in a key person specified in Attachment 3, Program Management Structure for the IPPD Organization.

3. The need for additional Government or Recipient funding.

4. Unless described in the application and funded in the approved awards, the sub-award, transfer or contracting out of substantive program performance under an award, with substantive defined as at least $50,000.00. This provision does not apply to the purchase of supplies, material, equipment or general support services.

B. A party may change its representatives in this Article by written notification to the other party. Modifications to this Agreement will not be effective until a written modification is signed by the Agreement signatories or their successors; however, administrative modifications may be unilaterally executed by the Grants/Agreements Officer.

1.

Administrative and technical matters under this Agreement will be referred to the representatives of the parties to include Government Grants/Agreements Officer and Agreement Administrator, Recipient Agreement Administrator, Government Program Manager and Technical Agent and Recipient Program Manager and Principal Investigator. The names and contact information for these individuals are provided in Attachment 3 2.

Notwithstanding the above designations, responsibility for the following functions on behalf of the Government is hereby delegated to the Defense Contract Management Agency (DCMA) enter DCMA Office and address a.

Performing property administration services (to include Plant Clearance).

b.

Reviewing Recipient's financial management, property management, and purchasing systems.

c.

Determining that Recipient has a drug-free workplace program, as required under 32 CFR 25.

d.

Executing administrative close-out procedures.

e.

Determining that Recipient has an established accounting system, which complies with Generally Accepted Accounting Principles (GAAP), and including recommendations of rates for Agreement quick close-out.

f.

Effecting necessary actions to establish this Agreement record for cost reimbursement payment via Wide Area Work Flow (WAWF).

g.

Any additional delegations will be coordinated between the Grants/Agreements Officer, DCMA representative, and Recipient, and set forth in writing.

ARTICLE VI: OBLIGATION AND PAYMENT

This section provides for the obligation and payment of Government funds, as well as audit procedures.

A. Obligation.

1.

In no event will either party’s financial obligation exceed the amount of funds obligated under this Agreement or by modification to the Agreement.

2.

The Government is not obligated to reimburse Recipient for expenditures in excess of the total funds obligated by the Government.

B. Payments.

1.

Recipient has and agrees to maintain an established accounting system which complies with Generally Accepted Accounting Principles (GAAP) and the requirements of the Agreement, and will ensure that appropriate arrangements have been made for receiving, distributing, and accounting for Federal funds. An acceptable accounting system is one in which all cash receipts and disbursements are controlled and documented properly.

a.

Accounting Procedures. The commercial cost principles in 48 CFR 31 and 48 CFR 231 (in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement) shall apply to determine the allowability of costs charged to the Government.

b.

Further, the allowability of any expenditures incurred in the performance of any sub-award conducted on a cost reimbursement basis will be subject to those Federal cost principles applicable to the particular type of organization concerned.

2.

Recipient shall be reimbursed by submitting payment requests, no more frequently than monthly via Wide Area Workflow (WAWF). The monthly payment request shall include any applicable invoice attachments. If DCMA authorizes direct bill, Recipient should follow direct bill authorization. If not authorized direct bill, DCMA will review payment requests and compare against planning budgets. DCMA will use the Recipient's Technical and Business/Financial Status Reports to track billings against accomplishments. Significant variances will be discussed with the Government Technical Agent before any subsequent payment approval is made. Unless found to be incorrect or otherwise inappropriate, DCMA will accept Recipient's voucher via WAWF.

3.

The accepted electronic form for submission of payment requests and receiving reports is WAWF. This application allows DOD vendors to submit and track invoices and receipt/acceptance documents electronically. Recipients shall (i) register to use WAWF at https://wawf.eb.mil and (ii) ensure an electronic business point of contact (POC) is designated in the Systems for Award Management site at https://www.sam.gov within ten calendar days after award of this Agreement. Training on WAWF is available on-line at http://www.wawftraining.com/. All questions relating to the WAWF payment system setup and vendor training can be directed to the WAWF help desk. The helpdesk is open 24 hours a day 7 days a week and can be reached at 1-866-618-5988.

4.

Payments will be made by (DFAS Customer Service Location), Defense Finance and Accounting Services (DFAS), XXXX Center, DFAS-CO/XXXX Entitlement Operations, enter address, Phone: XXX-XXX-XXXX, Payment Office Fiscal Station Code: XXXXXX. Questions concerning payments should be directed to the DFAS. Please have your Agreement number ready when calling about payments.

5.

The following codes and information will be required to ensure successful flow of WAWF documents.

TYPE OF DOCUMENT: Cost Voucher

CAGE CODE: XXXXX

ISSUE BY DODAAC: W911W6

ADMIN BY: DCMA: Defense Contract Management Agency (DCMA) Enter DCMA Office and address.

DODAAC: XXXXXX

AGREEMENTS/GRANTS OFFICER: Name: @mail.mil; 757-878-XXXX ADDITIONAL CONTACT: Agreement Administrator, Name: @mail.mil; 757-878-XXXX 6.

Recipient will make their best attempt to expend the Government’s applied funds prior to the expenditure of their own funds. In the event it becomes necessary to deviate from the funding profile identified in Attachment 4, to maintain the Industry Cost Match Contributions that expire annually, Recipient will notify the Government Grants/Agreements Officer. If required, the Government and Recipient agree to put forth their best effort to adjust the program effort and associated funding profile, if necessary, to ensure that all applied funds from the Government and Industry are expended appropriately.

C. Limitation of Funds: The parties agree that the performance of this Agreement will not cost either party more than its share of the cost as specified herein. The Government will allot funds incrementally to this Agreement. The Government is not obligated to reimburse Recipient for costs incurred in excess of the total amount allotted and obligated by the Government to this Agreement. At any time, the estimated total program costs are projected to exceed the total amount of this Agreement; Recipient shall notify the Government Grants/Agreements Officer. Recipient agrees to perform, or have performed, work on the Agreement up to the point at which the total amount of costs incurred under the Agreement approximates, but does not exceed the total amount actually allotted by the Government to the Agreement, plus the agreed Recipient contribution. Recipient is not obligated to continue performance under this Agreement or otherwise incur costs in excess of the amount then allotted by the Government plus the associated Recipient contribution unless, and until the Government notifies Recipient in writing that the amount allotted by the Government has been increased and specifies an increased amount, which shall then constitute the total amount allotted by the Government to this Agreement. The parties understand and agree that all funds once committed to this Agreement regardless of their source or time of obligation are considered to have equally funded all testing (to include all test data and test reports) performed under this Agreement.

D. Payment Instructions for Multiple Fund Accounting Citations: Multiple accounting classifications are/will be applied to this agreement. In an effort to utilize funds prior to cancellation, all invoices/vouchers received are to be paid in the following order until each ACRN is fully disbursed: ACRN AA, AB, AC, etc.

E. Audit Procedures.

1.

Selection of an Auditor: An independent auditor, herein defined as Government auditor (Defense Contract Audit Agency Resident Auditor) who meets the standards specified in the Government Auditing Standards issued by the U.S. Comptroller General, will review Recipient expenditures. The auditor will determine whether: (a) Recipient has an internal control structure to support reasonable assurance that it is managing Federal awards in compliance with generally approved accounting procedures (GAAP) and applicable laws and regulations, (b) Recipient has complied with laws and regulations that may have a direct and material effect on each major Federal program, and (c) Recipient has complied with the requirements set forth in this Agreement.

2.

Recipient will maintain adequate records to account for Federal funds received under this Agreement. Upon completion or termination of this Agreement, whichever occurs earlier, Recipient will furnish to the Agreement Administrator a copy of the final financial report prepared in accordance with Attachment 2. Recipient's relevant financial records are subject to examination or audit by the Government for a period not to exceed three (3) years after submission of the expiration or termination of this Agreement. The Government (Agreement Administrator or DCAA) will have direct access to sufficient records and information of Recipient, to ensure full accountability for all funding under this Agreement. Upon prior written notice, such audit, examination, or access will be performed during business hours on business days and will be subject to the security requirements of the audited party.

ARTICLE VII: PROGRAM INCOME

Any and all program income earned during the program period will be added to funds committed to the project by the Government and be used to further eligible program objectives. The parties do not anticipate program income earned during the performance of this Agreement.

ARTICLE VIII: GOVERNING LAW/ORDER OF PRECEDENCE

This Agreement will be enforced and interpreted in accordance with applicable federal laws and regulations, directives, circulars or other guidance. In the event of any inconsistency between the terms of this Agreement and language set forth in the attachments thereto, the inconsistency shall be resolved by giving precedence in the following order: (1) The Agreement, (2) Attachment 1 – Statement of Research Effort (3) Attachment 2 – Report Requirements/Agreement Deliverables and (4) Other Attachments to the Agreement.

ARTICLE IX: CLOSEOUT ADJUSTMENTS

A downward adjustment to the Government's and Industry Team’s funding, based on the cost share ratio, may be made by bilateral modification to the Agreement in the event the effort is completed at less than the estimated cost of the Agreement. Recipient will submit within ninety (90) calendar days after the date of completion of the effort, all financial, performance and other reports as required by the terms and conditions of the award. The Government may approve extensions to the ninety (90) day period when requested by Recipient.

ARTICLE X: DISPUTES

A. General. The Parties will communicate with one another in good faith and in a timely and cooperative manner when raising issues under this Article, with the objective of resolving any misunderstandings, disagreement, claims, or disputes by mutual agreement.

B. Dispute Resolution Procedures.

1.

Any disagreement, claim or dispute between the Government and Recipient 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 misunderstanding arise, the Parties will attempt to resolve the issue(s) involved by discussion and mutual agreement as soon as practicable, with the goal of settlement within three (3) months of identification of the issue. Every reasonable attempt will be made to resolve all issues at the Grants/Agreement Officer's level. Alternate Dispute Resolution (ADR) procedures to include, but not be limited to settlement negotiations, mediation and fact-finding, will be used to the maximum extent practicable. Whenever Recipient submits, in writing, a disputed claim or issue to the Government, the Grants/Agreements Officer shall consider the claim or disputed issue and, within 60 days of receipt of the claim or issue in dispute, either;

a.

Prepare a written decision, which shall include the basis for the decision, and accordingly document the Agreement file or;

b.

Notify Recipient of a specific date when the Grants/Agreements Officer will render a decision when more time is needed for response. The notice will inform Recipient of the reason for delaying the decision.

c.

In the event Recipient decides to appeal the decision, the Grants/Agreements Officer shall make every effort to encourage Recipient to enter into ADR procedures with the Grants/Agreements Officer. The ADR procedures applicable to this Agreement are expressed in subparagraphs B.3 and B.4 of this Article.

3. Failing resolution by mutual agreement, the aggrieved Party shall document the dispute, disagreement, or misunderstanding by notifying the other Party (through the Agreement Administrator or Recipient 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 Deputy Director of AATD and Recipient’s (to be filled in by Recipient).

The other Party will 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 Deputy Director of AATD shall conduct a review of the matter(s) in dispute jointly with the aggrieved party, and a joint decision will be rendered in writing within thirty (30) days of receipt of such written positions. Any such decision is final and binding unless a Party shall, within thirty (30) calendar days, request further review as provided in this Article.

4.

Upon written request to the Director, made within thirty (30) calendar days or upon unavailability of a joint decision under subparagraph B.3 above, the dispute shall be further reviewed. The Director or his designee will conduct this review jointly with Recipient’s (to be filled in by Recipient). Following the review, the Director 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. In no event will either Party be entitled to incidental or consequential damages.

5.

If Recipient chooses not to participate in the Dispute Resolution Procedure or does not accept the results of the Dispute Resolution Procedure, Recipient may elect to appeal such decision in accordance with the procedures specified in Title 32 of the Code of Federal Regulations, Section 22.815.

C. Limitations of Damages. In no event shall either party be liable for claims for consequential, punitive, special and incidental damages, claims for lost profits, or other indirect damages.

ARTICLE XI: PERFORMANCE REPORTS

Recipient will submit to or otherwise provide to the Government, in accordance with the reports described in Attachment 2, and such other technical reports as may be mutually agreed between Recipient and the Government.

ARTICLE XII: PATENT RIGHTS

A. Definitions.

1.

All references to "Recipient", as it applies to Article XII, Patent Rights, shall be deemed to be reference to Recipient and any team member. Use of the name "Recipient" is not intended to exclude any team member.

2.

“Invention” means any invention or discovery, which is or may be patentable or otherwise protectable under Title 35 of The United States Code.

3.

“Made” when used in relation to any invention means the conception or first actual reduction to practice of such invention.

4.

“Practical application” means to manufacture, in the case of a composition of matter or 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.

5.

“Subject Invention” means any invention made, or improvement to any invention conceived or first reduced to practice in the performance of work under this Agreement. Any invention both conceived and first actually reduced to practice at private expense outside this Agreement, including reduction to practice by simulation if the technology is sufficiently mature to reasonably ensure workability, is not a Subject Invention.

B. Allocation of Principal Rights. Unless Recipient will have notified the Government (in accordance with subparagraph C.2 below) that Recipient does not intend to retain title, Recipient will retain the entire right, title, and interest throughout the world to each Subject Invention consistent with the provisions of this Article, and 35 U.S.C. 203. With respect to any Subject Invention in which Recipient retains title, the Government will have a nonexclusive, nontransferable, irrevocable, paid-up license for Government to practice or have practiced on behalf of the United States the Subject Invention throughout the world. Notwithstanding the above, Recipient may elect to provide full or partial rights to other parties.

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

1.

Recipient will disclose each Subject Invention to the Government (through the Agreement Administrator) within six (6) months after the inventor discloses it in writing to his company personnel responsible for patent matters. The disclosure to the Government will be in the form of a written report and will identify the Agreement under which the invention was made and the identity of the inventor(s). It will 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, optical, chemical, biological, or electrical characteristics of the invention. The disclosure will also identify any publication, sale, or public use of the invention and whether a manuscript describing the invention has been submitted for publication and, if so, whether it has been accepted for publication at the time of disclosure. In the event there are no Subject Inventions, Recipient will submit a negative report as part of Agreement closeout.

2.

If Recipient determines that it does not intend to retain title to any such invention, Recipient will notify the Government, in writing, within eight (8) months of disclosure to the Government. 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 the Government to a date that is no more than sixty (60) calendar days prior to the end of the statutory period.

3.

Recipient will 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. Recipient may elect to file patent applications in additional countries (or regional Patent Office or pursuant to the Patent Cooperation Treaty) within either twelve (12) 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.

Any Subject Inventions, jointly made by employees of the Government of the United States of America and Recipient, will be jointly owned by those parties. With respect to jointly owned Subject Inventions, the parties will agree, on a case-by-case basis, as to which party will file patent applications, if any. Each party will bear its own patent filing expenses in filing patent applications on joint Subject Inventions. Requests for extension of the time for disclosure, election, and filing under Article XII, subparagraph C. may, at the discretion of the Government, and after considering the position of Recipient, be granted and will normally be granted unless the Agreements Officer has reason to believe that a particular extension would prejudice the Government’s interest.

D. Conditions When the Government May Obtain Title. Upon the Government's written request, Recipient will convey title to any Subject Invention to the Government under any of the following conditions:

1.

If Recipient fails to disclose or elects not to retain title to the Subject Invention within the times specified in paragraph C of this Article, provided, that the Government may only request title within sixty (60) days after learning of the failure of Recipient to disclose or elect within the specified times.

2.

In those countries in which Recipient fails to file patent applications within the times specified in paragraph C of this Article, provided that, if Recipient has filed a patent application in a country after the times specified in paragraph C of this Article, but prior to its receipt of the written request by the Government, Recipient will continue to retain title in that country; or

3.

In any country in which Recipient 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, if the Government, at its expense, is going to continue to retain title in that country.

E. Minimum Rights to Recipient and Protection of Recipient's Right to File.

1.

Recipient will retain a nonexclusive, royalty free sub-licensable license throughout the world in each Subject Invention to which the Government obtains title, except if Recipient fails to disclose the Subject Invention within the times specified in paragraph C of this Article. The Recipient license extends to the domestic subsidiaries and affiliates, if any, of Recipient within the corporate structure of which Recipient is a party and includes the right to grant licenses of the same scope to the extent that Recipient was legally obligated to do so at the time the Agreement was awarded.

The license is transferable only with the approval of the Government, except when transferred to the successor of that part of the business to which the invention pertains. Government approval for license transfer will not be unreasonably withheld.

2.

The Recipient domestic license may be revoked or modified by the Government to the extent necessary to achieve expeditious practical application of Subject Invention pursuant to an application for an exclusive license submitted consistent with appropriate provisions at 37 CFR Part 404, provided that such revocation or modification will not take place less than ten (10) years after the end of the term of the Agreement. This license will not be revoked in that field of use or the geographical areas in which Recipient has achieved practical application and continues to make the benefits of the invention reasonably accessible to the public. The license in any foreign country may be revoked or modified at the discretion of the Government to the extent Recipient, 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, the Government will furnish Recipient a written notice of its intention to revoke or modify the license, and Recipient will 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.

F. Action to Protect the Government's Interest.

1.

Recipient agrees to execute or to have executed and promptly provide to the Agreements Administrator all instruments necessary to: (a) establish or confirm the rights the Government has throughout the world in those Subject Inventions to which Recipient elects to retain title, and (b) convey title to the Government when requested under paragraph D. of this Article and to enable the Government to obtain patent protection throughout the world in that Subject Invention.

2.

Recipient agrees to require, by written Agreement, that employees of Recipient, other than clerical and non-technical employees, agree to disclose promptly in writing, to personnel identified as responsible for the administration of patent matters and in a format acceptable to Recipient, each Subject Invention made under this Agreement in order that Recipient can comply with the disclosure provisions of paragraph C. of this Article. Recipient will 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.

Recipient will notify the Government of any decisions not to continue the prosecution of a patent application, pay maintenance fees, or defend in a re-examination 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.

4.

Recipient will 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. W911W6-XX-2-XXXX for the enter program title program. The Government has certain rights in the invention.”

G. Lower Tier Agreements.

1.

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

2.

In the case of a lower tier agreement with a vendor, at any tier, the Government, the vendor, and the Recipient agree that the mutual obligations of the parties created by this Article flow down to the vendor and constitute an agreement between the vendor and the Government with respect to such obligations.

3. The foregoing flow down requirements shall pertain only to the obligations created by this Article. For purposes of clarity, the Parties agree that the Recipient has the right to freely negotiate the ownership and other allocation of intellectual property rights as between the Recipient and its vendors.

H. Reporting on Utilization of Subject Inventions.

1.

Recipient agrees to submit to the Agreement Administrator during the term of the Agreement, periodic reports no more frequently than annually on the utilization of a Subject Invention or on efforts at obtaining such utilization that are being made by Recipient or licensees or assignees of the inventor. Such reports will include information regarding the status of development, date of first commercial sale or use, gross royalties received by Recipient's subcontractor(s), and such other data and information as the agency may reasonably specify.

2.

Recipient also agrees to provide additional reports as may be requested by the Government in connection with any march-in proceedings undertaken by the Government in accordance with paragraph J of this Article. Consistent with 35 U.S.C. 202(c)(5), the Government agrees it will not disclose such information to persons outside the Government without permission of Recipient.

I. Preference for American Industry. Notwithstanding any other provision of this clause, Recipient agrees that it will 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 will be manufactured substantially in the United States. However, in individual cases, the requirements for such an agreement may be waived by the Government upon a showing by Recipient 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.

J. March-In Rights. Recipient agrees that, with respect to any Subject Invention in which it has retained title, the Government has the right to require Recipient, an assignee, or exclusive licensee of a Subject Invention to grant a nonexclusive license to a responsible applicant or applicants, upon terms that are reasonable under the circumstances, and if Recipient, assignee or exclusive licensee refuses such a request, the Government has the right to grant such a license itself if the Government determines that:

1.

Such action is necessary because Recipient or assignee has not taken effective steps, or is not expected to take within a reasonable time, effective steps to achieve practical application of the Subject Invention, a reasonable time being no less than ten (10) years from the end of the term of the Agreement;

2.

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

3.

Such…