Attachment_2_Draft_TIA_Template_-_Expenditure_Based_29_January_2019.doc

Agreement No. W911W6-XX-2-XXXX

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NOTES:

This template reflects that Government’s objective. Changes beyond those annotated in yellow highlight should be addressed in the agreement analysis.

10 U.S.C. 2358 is the appropriate reference for when the type of the TIA is a cooperative agreement which is the norm for this office. When awarding a TIA that is an assistance transaction other than a cooperative agreement, 10 U.S.C. 2371 should be used instead.

In Article X Disputes, references to Aviation Development Directorate-Eustis may need to be revised based on the customer organization. This can be addressed during topic review board for Aviation Development Directorate-Ames or other organization’s projects using TIAs.

In Article XIII Intellectual Property Rights other than Inventions and Patents, the latest revisions start with a Government negotiation position of Unlimited Rights to the Government in technical data and software developed during agreement performance and the modifications to Background Data and Software. In light of the mixed Government and Recipient funding, the Government should not normally agree to less than Government Purpose Rights in developed technical data and software and modifications to Background Technical Data and Software, unless the Program Office documents why less than GPR meets the minimum objectives of the R&D effort. . Proposal instructions should then include directions that if offeror desires changes it has to clearly identify with supporting rationale. The Agreement Analysis must address negotiations of these rights if changed from Unlimited Updated 8 May 2018

Technology Investment Agreement

Between

Recipient Name

Recipient Address

CAGE: XXXXX

Fiscal Station Code: XXXXXX And

U.S. Army Contracting Command – Redstone Arsenal 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 This Agreement is entered into between the United States of America, hereinafter called the "Government," represented by the U.S. Army Contracting Command – Redstone Arsenal (ACC-RSA) on behalf of the Aviation Development Directorate – Eustis (ADD-E) and Recipient Name (XX), and hereinafter also called the "Recipient" pursuant to and under U.S. Federal Law.

RECIPIENT NAME

FOR THE UNITED STATES OF AMERICA, U.S. Army Contracting Command – Redstone Arsenal

(Signature/Date)

(Signature/Date)

Name Title

Name Agreements Officer

Effective date

TABLE OF CONTENTS

ATTACHMENTS

(or Statement of Work, Statement of Objectives, or Other as appropriate)

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), §§ 1103.100-1103.310, 2 CFR §§ 1125.10-1125.1010 , and Title 32 CFR, §§ 21.100-37.1375. 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 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. Section 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, FILL IN NAME, 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 Attachment 1, Attachment 1, FILL IN NAME 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. “Agreement Administrator” is the Government's principal point of contact for all contractual, administrative, financial or other non-technical issues arising under the Agreement.

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

C. 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 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.

D. “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.

E. “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.

F. “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.

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

H. “Principal Investigator” 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 Attachment 1, FILL IN NAME set forth herein, and acting as Recipient principal technical point(s) of contact.

I. “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.

J. “Recipient Administrator” is the Recipient’s principal point of contract for all contractual, administrative, financial, and other non-technical issues arising under the Agreement.

K. “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.

L. “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 Attachment 1, FILL IN NAME set forth herein, and acting as the principal technical point of contact.

M. “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.

ARTICLE III: TERM

A.

Term of this Agreement.

The term of this agreement commences as of the effective date on the first page of the Agreement and ending on XX MONTH YEAR, including the Government review and completion of the Draft/Final Report in accordance with Attachment 2, Report Requirements/Agreement Deliverables. 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 in accordance with 32 C.F.R. §§ 34.50 to 34.53, and 37.925, and 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 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, Program Management Structure.

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 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 by agreement modification shall be obtained for one or more of the following program or budget related reasons:

1. Change in the scope as described in Attachment 1, FILL IN NAME (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 Recipient’s proposal and approved in the award, the sub-award, transfer or contracting out of substantive program performance under an award, with substantive defined as at least $50,000.00. For any sub-award or contracting out of substantive program performance under this Agreement of $50,000 or more requiring Government Agreement Officer approval, the Recipient will notify the Government Agreements Officer in writing reasonably in advance of placing any such sub-award or contracting out with the following information; a description of the substantive work to be funded or procured, identification of the proposed sub-awardee or subcontractor, and the estimated value of the effort. The Recipient will provide a courtesy copy of this notice to the Government’s Technical Agent. This Article does not apply to the purchase of supplies, material, equipment or general support services.

N. 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 Agreements Officer.

1.

Administrative and technical matters under this Agreement will be referred to the representatives of the parties to include Government 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, Program Management Structure.

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 26.

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 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.

3. Accounting and Appropriation Data:

Amount:

CIN:

TOTAL

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 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 register to use WAWF at https://wawf.eb.milwithin 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: Non Procurement Instrument (NPI) Voucher

CAGE CODE: XXXXX

ISSUE BY DODAAC: W911W6

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

DODAAC: XXXXXX

AGREEMENTS 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, Program Schedule/Funding Profile to maintain the Industry Cost Match Contributions Recipient will notify the Government 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 amount presently obligated for payment by the Government and allotted to this Agreement is stated in A.3., of this Article. The Parties contemplate that the Government will allot additional funds incrementally to the Agreement up to the estimated Government cost share at Attachment 4, 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.

If at any time, the estimated total program costs are projected to exceed the total amount of this Agreement, Recipient shall notify the Government 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 efforts performed under this Agreement.

Payment Instructions for Multiple Fund Accounting Citations: SELECT ONE OF THE PAYMENT INSTRUCTIONS FROM DFARS PGI 204.7108, PAYMENT INSTRUCTIONS.

D. 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 accepted accounting principles (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, Report Requirements/Agreement Deliverables. Recipient's relevant financial records are subject to examination or audit by the Government for a period not to exceed three (3) years after 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, FILL IN NAME (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 Agreement Officer's level. Alternate Dispute Resolution (ADR) procedures to include, but not 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 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 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 Agreements Officer shall make every effort to encourage Recipient to enter into ADR procedures with the 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, ADD-Eustis 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 ADD - Eustis 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, within thirty (30) calendar days, requests further review as provided in this Article.

4.

Upon written request to the Director ADD-Eustis, 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 and Army Federal Acquisition Regulation Supplement (AFARS) 5133.9001, Designation of Grant Appeal Authority.

ARTICLE XI: PERFORMANCE REPORTS

Recipient will submit or otherwise provide to the Government, the reports described in Attachment 2, Report Requirement/Agreement Deliverables and such other technical reports as may be mutually agreed between Recipient and the Government.

ARTICLE XII, INVENTIONS AND PATENT RIGHTS.

A. Definitions

1. Invention means any invention or discovery which is or may be patentable or otherwise protectable under Title 35 of the United States Code, or any novel variety of plant which is or may be protected under the Plant Variety Protection Act (7 U.S.C. 2321 et seq.).

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

3. Nonprofit Organization means a university or other institution of higher education or an organization of the type described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c) and exempt from taxation under section 501(a) of the Internal Revenue Code (25 U.S.C. 501(a)) or any nonprofit scientific or educational organization qualified under a state nonprofit organization statute.

4. Practical Application means to manufacture in the case of a composition 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 being utilized and that its benefits are, to the extent permitted by law or government regulations, available to the public on reasonable terms.

5. Small Business Firm means a small business concern as defined at section 2 of Pub. L. 85-536 (15 U.S.C. 632) and implementing regulations of the Administrator of the Small Business Administration. For the purpose of this article, the size standards for small business concerns involved in government procurement and subcontracts at 13 CFR 121.3-8 and 13 CFR 121.3-12, respectively, will be used.

6. Subject invention means any invention of the Recipient conceived or first actually reduced to practice in the performance of work under this Agreement, provided that in the case of a variety of plant, the date of determination (as defined in section 41(d) of the Plant Variety Protection Act, 7 U.S.C. 2401(d)) must also occur during the period of Agreement performance.

B. Allocation of Principal Rights

The Recipient may retain the entire right, title, and interest throughout the world to each subject invention subject to the provisions of this article and 35 U.S.C. 203. With respect to any subject invention in which the Recipient retains title, the Federal government shall have a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced for or on behalf of the United States the subject invention throughout the world.

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

1. The Recipient will disclose each subject invention to the Federal Agency within two months after the inventor discloses it in writing to Recipient personnel responsible for patent matters. The disclosure to the agency shall be in the form of a written report and shall identify the Agreement under which the invention was made and 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, on 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 addition, after disclosure to the agency, the Recipient will promptly notify the agency of the acceptance of any manuscript describing the invention for publication or of any on sale or public use planned by the Recipient.

2. The Recipient will elect in writing whether or not to retain title to any such invention by notifying the Federal agency within two years of disclosure to the Federal agency. However, in any case where publication, on sale or public use has initiated the one year statutory period wherein valid patent protection can still be obtained in the United States, the period for election of title may be shortened by the agency to a date that is no more than 60 days prior to the end of the statutory period.

3. The Recipient will file its initial patent application on a subject invention to which it elects to retain title within one year after election of title or, if earlier, prior to the end of any statutory period wherein valid patent protection can be obtained in the United States after a publication, on sale, or public use. The Recipient will file patent applications in additional countries or international patent offices within either ten months of the corresponding initial patent application or six 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. Requests for extension of the time for disclosure, election, and filing under subparagraphs (1), (2), and (3) may, at the discretion of the agency, be granted.

D. Conditions When the Government May Obtain Title

The Recipient will convey to the Federal agency, upon written request, title to any subject invention—

1. If the Recipient fails to disclose or elect title to the subject invention within the times specified in (c), above, or elects not to retain title; provided that the agency may only request title within 60 days after learning of the failure of the Recipient to disclose or elect within the specified times.

2. In those countries in which the Recipient fails to file patent applications within the times specified in (c) above; provided, however, that if the Recipient has filed a patent application in a country after the times specified in (c) above, but prior to its receipt of the written request of the Federal agency, the Recipient shall continue to retain title in that country.

3. In any country in which the Recipient decides not to continue the prosecution of any application for, to pay the maintenance fees on, or defend in reexamination or opposition proceeding on, a patent on a subject invention.

E. Minimum Rights to Recipient and Protection of the Recipient Right to File

1. The Recipient will retain a nonexclusive royalty-free license throughout the world in each subject invention to which the Government obtains title, except if the Recipient fails to disclose the invention within the times specified in (c), above. The Recipient's license extends to its domestic subsidiary and affiliates, if any, within the corporate structure of which the Recipient is a party and includes the right to grant sublicenses of the same scope to the extent the Recipient was legally obligated to do so at the time the Agreement was awarded. The license is transferable only with the approval of the Federal agency except when transferred to the successor of that party of the Recipient's business to which the invention pertains.

2. The Recipient's domestic license may be revoked or modified by the funding Federal agency to the extent necessary to achieve expeditious practical application of the subject invention pursuant to an application for an exclusive license submitted in accordance with applicable provisions at 37 CFR part 404 and agency licensing regulations (if any). This license will not be revoked in that field of use or the geographical areas in which the 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 funding Federal agency to the extent the Recipient, its licensees, or the domestic subsidiaries or affiliates have failed to achieve practical application in that foreign country.

3. Before revocation or modification of the license, the funding Federal agency will furnish the Recipient a written notice of its intention to revoke or modify the license, and the Recipient will be allowed thirty days (or such other time as may be authorized by the funding Federal agency for good cause shown by the Recipient) after the notice to show cause why the license should not be revoked or modified. The Recipient has the right to appeal, in accordance with applicable regulations in 37 CFR part 404 and agency regulations (if any) concerning the licensing of Government-owned inventions, any decision concerning the revocation or modification of the license.

F. Recipient Action to Protect the Government's Interest

1. The Recipient agrees to execute or to have executed and promptly deliver to the Federal agency all instruments necessary to (i) establish or confirm the rights the Government has throughout the world in those subject inventions to which the Recipient elects to retain title, and (ii) convey title to the Federal agency when requested under paragraph D. above and to enable the government to obtain patent protection throughout the world in that subject invention.

2. The Recipient agrees to require, by written agreement, its employees, other than clerical and nontechnical employees, to disclose promptly in writing to personnel identified as responsible for the administration of patent matters and in a format suggested by the Recipient each subject invention made under Agreement in order that the Recipient can comply with the disclosure provisions of paragraph C., above, and to execute all papers necessary to file patent applications on subject inventions and to establish the government's rights in the subject inventions. This disclosure format should require, as a minimum, the information required by C. 1., above. The Recipient shall instruct such 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 Recipient will notify the Federal agency of any decisions not to continue the prosecution of a patent application, pay maintenance fees, or defend in a reexamination or opposition proceeding on a patent, in any country, not less than thirty days before the expiration of the response period required by the relevant patent office.

4. The Recipient agrees to include, within the specification of any United States patent applications and any patent issuing thereon covering a subject invention, the following statement, “This invention was made with government support under (identify the Agreement) awarded by (identify the Federal agency). The government has certain rights in the invention.”

G. Subawards

1. The Recipient will include this article, suitably modified to identify the parties, in all subawards, regardless of tier, for experimental, developmental or research work to be performed by a small business firm or domestic nonprofit organization. The subrecipient will retain all rights provided for the Recipient in this article, and the Recipient will not, as part of the consideration for awarding the subawards, obtain rights in the subrecipient’ s subject inventions.

2. The Recipient will include in all other subawards, regardless of tier, for experimental developmental or research work the patent rights article required by 32 CFR 37.860(c)(3).

H. Reporting on Utilization of Subject Inventions

The Recipient agrees to submit on request 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 the Recipient 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 Recipient, and such other data and information as the agency may reasonably specify. The Recipient also agrees to provide additional reports as may be requested by the agency in connection with any march-in proceeding undertaken by the agency in accordance with paragraph (j) of this article. As required by 35 U.S.C. 202(c)(5), the agency agrees it will not disclose such information to persons outside the government without permission of the Recipient.

I. Preference for United States Industry

Notwithstanding any other provision of this article, the Recipient agrees that neither it nor any…