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Sample: Cooperative Research and Development Agreement COOPERATIVE RESEARCH
AND DEVELOPMENT AGREEMENT Article 1. Preamble 1.1 This Cooperative Research and Development Agreement (AGREEMENT) for performing the work described in the Work Plan attached hereto as Appendix A is entered into pursuant to 15 U.S.C. § 3710a (as amended) by and between (Insert COLLABORATOR name) (hereinafter referred to as "COLLABORATOR") and the United States of America as represented by the Defense Microelectronics Activity (DMEA) (hereinafter referred to as "UNIT'), located at McClellan Air Force Base, CA. The terms and conditions of this AGREEMENT are set forth as follows. Article 2. Definitions 2.1 As used in this AGREEMENT, the following terms shall have the following meanings and such meanings shall be applicable to both the singular and plural forms of the terms: 2.1.1 "CREATED" in relation to any copyrightable work means when the work is fixed in any tangible medium of expression for the first time, as provided for at 17 U.S.C. § 101. 2.1.2 "EFFECTIVE DATE" The date when this document is signed by the REVIEWING OFFICIAL. 2.1.3 "GOVERNMENT" means the Government of the United States of America. 2.1.4 "GOVERNMENT PURPOSE LICENSE" or "GPL" means a license to the GOVERNMENT conveying a nonexclusive, irrevocable, worldwide, royalty-free license to practice and have practiced an INVENTION for or on behalf of the GOVERNMENT for government purposes and conveying the right to use, duplicate or disclose copyrighted works or PROPRIETARY INFORMATION in whole or in part and in any manner, and to have or permit others to do so, for government purposes. Government purposes include competitive procurement, but do not include the right to have or permit others to practice an INVENTION or use, duplicate or disclose copyrighted works or PROPRIETARY INFORMATION for commercial purposes. 2.1.5 "INVENTION" means any invention or discovery which is or may be patentable or otherwise protected under Title 35 of the United States Code or any novel variety of plant which is or may be protectable under the Plant Variety Protection Act (7 U.S.C. § 7321 et seq.). 2.1.6 "MADE" in relation to any INVENTION means the conception or first actual reduction to practice of such INVENTION. 2.1.7 "PROPRIETARY INFORMATION" means information which embodies trade secrets or which is confidential technical, business or financial information provided that such information: i) is not generally known, or is not available from
other sources without obligations concerning its confidentiality; iii) is not described in an issued patent or a published
copyrighted work or is not otherwise available to the public without
obligation concerning its confidentiality; v) can be withheld from disclosure under 15 U.S.C.
§ 3710a(c)(7)(A) & (B) and the Freedom of Information Act,
5 U.S.C. § 552 et seq; and v) is identified as such by labels or markings designating the information as proprietary. 2.1.8 "REVIEWING OFFICIAL" means the authorized representative of the Department of Defense who is identified on the signature page of this AGREEMENT. 2.1.9 "UNDER" as used in the phrase "UNDER this AGREEMENT" means with in the scope of work performed under this AGREEMENT. Article 3. Work Plan 3.1 The nature and scope of the work performed UNDER this AGREEMENT, including any equipment, maintenance and other support, and any associated reporting requirements are set forth in Appendix A. 3.2 COLLABORATOR may inspect GOVERNMENT property identified in Appendix A prior to use. Such property may be repaired or modified at COLLABORATOR's expense only after obtaining the written approval of UNIT. Any repair or modification of the property shall not affect the title of the GOVERNMENT. Unless UNIT hereafter otherwise agrees, COLLABORATOR shall, at no expense to UNIT, return all GOVERNMENT property after termination or expiration of this AGREEMENT in the condition in which it was received, normal wear and tear excepted. 3.3 The parties agree to confer and consult with each other prior to publication or other public disclosure of the results of work UNDER this AGREEMENT to ensure that no PROPRIETARY INFORMATION or military critical technology or other controlled information is released. Prior to submitting a manuscript for publication or before any other public disclosure, each party will offer the other party ample opportunity to review such proposed publication or disclosure, to submit objections, and to file applications for letters patent in a timely manner. No publication or disclosure shall be made in connection with or under this Agreement without the express consent of the other party, unless authorized by any provision herein. Article 4. Financial Obligations 4.1 Any payments for expendable items, engineering services and other charges associated with specific, elements under the Work Plan (Appendix A), shall be agreed to by COLLABORATOR and UNIT prior to commencement of any work associated with each element of the plan. Payment shall be made by the COLLABORATOR before work begins or within 30 days of the UNIT billing date (as shown on the bill) to the COLLABORATOR, as directed by DMEA MEOP for the specific service items required. 4.2 Payments from copyrights shall be payable by COLLABORATOR to UNIT in accordance with the provisions of Article 6. 4.3 Except as provided for in paragraph 4.4, payments by COLLABORATOR to UNIT under this Article shall be made payable to UNIT and mailed to the following address: DMEA Program Office 4.4 Royalty or other income from patents shall be payable in accordance with any patent license under Article 5. 4.5 Except as stipulated in paragraphs 4.1, 4.2 and 4.4, UNIT and COLLABORATOR activities conducted under this Agreement will be self-funded. Article 5. Patents 5.1 Disclosure of INVENTIONS. Each party shall report to the other party, in writing, each INVENTION MADE UNDER this AGREEMENT, promptly after the existence of each such INVENTION, in the exercise of reasonable diligence, becomes known. 5.2 Rights in INVENTIONS. Each party shall separately own any INVENTION MADE solely by its respective employees UNDER this AGREEMENT. INVENTIONS MADE jointly by UNIT and COLLABORATOR employees shall be jointly owned by both parties. COLLABORATOR shall have an option under 15 U.S.C. 3710a(b)(2) to obtain an exclusive or non-exclusive license at a reasonable royalty rate, subject to the retention of a GPL by the GOVERNMENT, in any INVENTION MADE by UNIT employees UNDER this AGREEMENT. COLLABORATOR shall exercise the option to obtain a license by giving written notice thereof to UNIT six (6) months after disclosure of the INVENTION under paragraph 5. 1. The royalty rate and other terms and conditions of the license shall be set forth in a separate license agreement and shall be negotiated promptly after notice is given. COLLABORATOR hereby grants to the GOVERNMENT, in advance, a GPL in any INVENTION MADE by COLLABORATOR employees UNDER this AGREEMENT. 5.3 Filing Patent Applications. COLLABORATOR shall have the first option to file a patent application on any INVENTION MADE UNT)ER this AGREEMENT, which option shall be exercised by giving notice in writing to UNIT within six (6) months after disclosure of the INVENTION under paragraph 5. 1, and by filing a patent application in the U.S. Patent and Trademark Office within six (6) months after written notice is given. If COLLABORATOR elects not to file or not to continue prosecution of a patent application on any such INVENTION in any country or countries, COLLABORATOR shall notify UNIT thereof at least three (3) months prior to the expiration of any applicable filing or response deadline, priority period or statutory bar date. In any country in which COLLABORATOR does not file, or does not continue prosecution of, or make any required payment on, an application on any such INVENTION, UNIT may file, or continue prosecution of, or make any required payment on, an application, and COLLABORATOR agrees, upon request by UNIT, to assign to the GOVERNMENT all right, title and interest of COLLABORATOR in any such application and to cooperate with UNIT in executing all necessary documents and obtaining cooperation of its employees in executing such documents related to such application. The party filing an application shall provide a copy thereof to the other party. Any patent application filed on any INVENTION MADE UNDER this AGREEMENT shall include in the patent specification thereof the statement: "This invention was made in the performance of a cooperative research and development agreement with the Department of Defense. The invention may be manufactured and used by or for the Government of the United States for all government purposes without the payment of any royalty." 5.4 Patent Expenses. Unless otherwise agreed, the party filing an application shall pay all patent application preparation and filing expenses and issuance, post issuance and patent maintenance fees associated with that application. Article 6. Copyrights 6.1 COLLABORATOR shall own the copyright in all works CREATED in whole or in part by COLLABORATOR UNDER this AGREEMENT, which are copyrightable under Title 17, United States Code. COLLABORATOR shall mark any such works with a copyright notice showing COLLABORATOR as an owner and shall have the option to register the copyright at COLLABORATOR's expense. 6.2 COLLABORATOR hereby grants in advance to the GOVERNMENT a GPL in a copyrighted works CREATED UNDER this AGREEMENT. COLLABORATOR will prominently mark each such copyrighted work subject to the GPL with the words: "This work was created in the performance of a cooperative research and development agreement with DMEA. The Government of the United States has a royalty-free government purpose license to use, duplicate or disclose the work, in whole or in part and in any manner, and to have or permit others to do so, for government purposes." 6.3 COLLABORATOR shall furnish to UNIT, at no cost to UNIT, three (3) copies of each work CREATED in whole or in part by COLLABORATOR UNDER this AGREEMENT. 6.4 COLLABORATOR shall pay to UNIT twenty percent (20%) of all gross income received by COLLABORATOR or its affiliates from the sale, lease or rental of any copyrighted work CREATED UNDER this AGREEMENT. COLLABORATOR shall pay to UNIT fifty percent (50%) of all gross royalties received by COLLABORATOR or its affiliates from the licensing or assignment of any copyrighted work CREATED UNDER this AGREEMENT. Any sale, lease or rental to GOVERNMENT shall not be subject to payments hereunder and shall be discounted in price by a corresponding amount. All such payments to UNIT shall be due and paid on or before the last day of the month next following receipt by COLLABORATOR of any such gross income or gross royalties. COLLABORATOR shall provide to UNIT a report at least annually showing all gross income and royalties received. COLLABORATOR shall make payments due hereunder to UNIT in accordance with paragraph 4.3 of this AGREEMENT. COLLABORATOR's obligation to make payments to UNIT hereunder shall survive expiration or other termination of this AGREEMENT. 6.4.1 UNIT, at its expense, may require an account of income received by COLLABORATOR and its affiliates and may, at reasonable times and upon reasonable notice to COLLABORATOR, examine COLLABORATOR'S and any affiliate's books and records to verify the accounting.
7.1 Neither party to this AGREEMENT shall deliver to the other party any PROPRIETARY INFORMATION, except with the written consent of the receiving party. Unless otherwise expressly provided in a separate document, such PROPRIETARY INFORMATION shall not be disclosed by the receiving party except under a written agreement of confidentiality to employees and contractors of the receiving party who have a need for the information in connection with their duties UNDER this AGREEMENT. 7.2 PROPRIETARY INFORMATION developed UNDER this AGREEMENT shall be owned by the developing party and any jointly developed PROPRIETARY INFORMATION shall be jointly owned. GOVERNMENT shall have a GPL to use, duplicate and disclose, in confidence, and to authorize others to use, duplicate and disclose, in confidence, for government purposes, any such PROPRIETARY INFORMATION developed solely by COLLABORATOR. COLLABORATOR may use, duplicate and disclose, in confidence, and authorize others on its behalf to use, duplicate and disclose, in confidence, any such PROPRIETARY INFOPMATION developed solely by UNIT. PROPRIETARY INFORMATION developed UNDER this AGREEMENT shall be exempt from the Freedom of Information Act. 5 U.S.C. § 552 et seq, as provided at 15 U.S.C. § 3710a(c) (7) (A) & (B). The exemption for PROPRIETARY INFORMATION developed jointly by the parties or solely by UNIT shall expire not later than five years from the date of development of such PROPRIETARY INFORMATION. Article 8. Term, Modification, Extension, Termination and Disputes 8.1 Term and Extension. The term of this AGREEMENT is for a period of three (3) years, commencing on the EFFECTIVE DATE of this AGREEMENT. This AGREEMENT shall expire at the end of this term unless both parties hereto agree in writing to extend it further. Expiration of this AGREEMENT shall not affect the rights and obligations of the parties accrued prior to expiration. 8.2 Modification. Any modifications shall be by mutual written agreement signed by the parties' representatives authorized to execute this AGREEMENT and attached hereto. A copy of any modifications will be forwarded to the REVIEWING OFFICIAL for information purposes. 8.3 Termination. Either party may terminate this AGREEMENT
for any reason upon delivery of written notice to the other party at
least three (3) months prior to such termination. 8.4 Disputes. All disputes arising out of or related to, this AGREEMENT shall be resolved in accordance with this Article. 8.4.1 The parties shall attempt to resolve disputes between themselves. Any dispute which is not disposed of by agreement of the parties shall be referred to the REVIEWING OFFICIAL for decision. 8.4.2 REVIEWING OFFICIAL. The REVIEWING OFFICIAL shall within sixty (60) days of the receipt of the dispute, notify the parties of the decision. This decision shall be final and conclusive unless, within thirty (30) days from the day of receipt of such copy, either party submits to the REVIEWING OFFICIAL, a written appeal addressed to the Secretary of Defense, 8.4.3 Secretary of Defense. The decision of the Secretary of Defense, or his duly authorized representative, on the appeal shall be final and conclusive. 8.5 Continuation of Work. Pending the resolution of any such dispute, work under this AGREEMENT will continue as elsewhere provided herein. Article 9. Representations and Warranties 9.1 UNIT hereby represents and warrants to COLLABORATOR as follows: 9.1.1 Mission. The, performance of the activities specified by this AGRFEMENT are consistent with the mission of UNIT. 9.1.2 Authority. All prior reviews and approvals required by regulations or law have been obtained by UNIT prior to the execution of the AGREEMENT. The UNIT official executing this AGREEMENT has the requisite authority to do so. 9.1.3 Statutory Compliance. UNIT, prior to entering into this AGREEMENT, has (1) given special consideration to entering into cooperative research and development agreements with small business firms and consortia involving small business firms; (2) given preference to business units located in the United States which agree that products embodying an INVENTION MADE under this AGREEMENT or produced through the use of such INVENTION will be manufactured substantially in the United States; and (3) taken into consideration, in the event this AGREEMENT is made with an industrial organization or other person subject to the control of a foreign company or government, whether or not such foreign government permits United States agencies, organizations, or other persons to enter into cooperative research and development agreements and licensing agreements with such foreign country. 9.2 COLLABORATOR hereby represents and, warrants to UNIT as follows: 9.2.1 Corporate Organization. COLLABORATOR, as of the date hereof, is a corporation duly organized, validly existing and in good standing under the laws of the State. 9.2.2 Statement of Ownership. COLLABORATOR is not a foreign owned or a subsidiary of a foreign-owned entity. COLLABORATOR has the right to assignment of all INVENTIONS MADE and copyrightable works CREATED by its employees UNDER this AGREEMENT. 9.2.3 Authority. The COLLABORATOR official executing this AGREEMENT has the requisite authority to enter into this AGREEMENT and COLLABORATOR is authorized to perform according to the terms thereof Article 10. Liability 10.1 Property. All property is to be furnished "as is." No party to this AGREEMENT shall be liable to any other party for any property of that other party consumed, damaged or destroyed in the performance of this AGREEMENT, unless it is due to the gross negligence or willful misconduct of the party or an employee or agent of the party. 10.2 COLLABORATOR Employees. COLLABORATOR agrees to indemnify and hold harmless and defend the GOVERNMENT, its employees and agents, against any liability or loss for any claim made by an employee or agent of COLLABORATOR, or persons claiming through them, for death, injury, loss or damage to their person or property arising as a result of COLLABORATOR'S performance under-this AGREEMENT, except to the extent that such death, injury, loss or damage arises solely from the negligence of UNIT or its employees. 10.3 NO WARRANTY. EXCEPT AS SPECIFICALLY STATED IN ARTICLE 9, OR IN A LATER AGREEMENT, THE PARTIES MAKE NO EXPRESS OR IMPLIED WARRANTY AS TO ANY MATTER WHATSOEVER, INCLUDING THE CONDITIONS OF THE RESEARCH OR ANY INVENTION OR PRODUCT, WHETHER TANGIBLE OR INTANGIBLE, MADE, OR DEVELOPED UNDER THIS AGREEMENT, OR THE MERCHANTALITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE RESEARCH OR ANY INVENTION OR PRODUCT. THE PARTIES FURTHER MAKE NO WARRANTY THAT THE USE OF ANY INVENTION OR OTHER INTELLECTUAL PROPERTY OR PRODUCT CONTRIBUTED, MADE OR DEVELOPED UNDER THIS AGREEMENT WILL NOT INFRINGE ANY OTHER UNITED STATES OR FOREIGN PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT. IN NO EVENT WILL ANY PARTY BE LIABLE TO ANY OTHER PARTY FOR COMPENSATORY, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES. 10.4 Other Liability. The GOVERNMENT shall not be liable to any other party, whether directly or by way of contribution or indemnity, for any claim made by any person or other entity for personal injury or death, or for property damage or loss, arising in any way from this AGREEMENT, including, but not limited to, the later use, sale or other disposition of research and technical developments, whether by resulting products or otherwise, whether made or developed UNDER this AGREEMENT, of whether contributed by either- party pursuant to this AGREEMENT, except as provided under the Federal Tort Claims Act (28 U.S.C. §§ 2671 et seq.) or other Federal law where sovereign immunity has been waived. Article 11. General Terms and Provisions 11.1 Disposal of Toxic or Other Waste. COLLABORATOR shall be responsible for the removal and disposal from UNIT property of any and all toxic or other material provided or generated by COLLABORATOR in the course of performing this AGREEMENT. COLLABORATOR shall obtain at its own expense all necessary permits and licenses as required by local, state, and federal law and regulation and shall conduct such removal and disposal in a lawful and environmentally responsible manner. 11.2 Force Majeure. Neither party shall be in breach of this AGREEMENT for any failure of performance caused by any event beyond its reasonable control and not caused by the fault or negligence of that party. In the event such a force majeure event occurs, the party unable to perform shall promptly notify the other party and shall in good faith maintain such part performance as is reasonably possible and shall resume full performance as soon as is reasonably possible. 11.3 Relationship of the Parties. The parties to this AGREEMENT and their employees are independent contractors and are not agents of each other, joint venture partners or joint parties to a formal business organization of any kind. Neither party is authorized or empowered to act on behalf of the other with regard to any contract, warranty or representation as to any matter, and neither party will be bound by the acts or conduct of the other. Each party will maintain sole and exclusive control over its own personnel and operations. 11.4 Publicity/Use of Name Endorsement. Any public announcement of this AGREEMENT shall be coordinated in advance, in writing, between COLLABORATOR, UNIT and the public affairs office supporting UNIT. COLLABORATOR shall not use the name of UNIT or GOVERNMENT on any product or service which is directly or indirectly related to either this AGREEMENT or any patent license or assignment which implements this AGREEMENT without the prior written approval of UNIT. By entering into this AGREEMENT, UNIT or GOVERNMENT does not directly or indirectly endorse any product or service provided, or to be provided by COLLABORATOR, its successors, assignees, or licensees. COLLABORATOR shall not in any way imply that this AGREEMENT is an endorsement of any such product or service. 11.5 No Benefits. No member of, or delegate to the United States Congress, or resident commissioner, shall be admitted to any share or part of this AGREEMENT, nor to any benefit that may arise therefrom, but this provision shall not be construed to extend to this AGREEMENT if made with a corporation for its general benefit 11.6 Governing Law. The construction, validity, performance and effect of this AGREEMENT for all purposes shall be governed by the laws applicable to the GOVERNMENT. 11.7 Waiver of Rights. Any waiver shall be in writing and provided to the other party. Failure to insist upon strict performance of any of the terms and conditions hereof, or failure or delay to exercise any rights provided herein or by law, shall not be deemed a waiver of any rights of either party hereto. 11.8 Severability. The illegality or invalidity of any provisions of this AGREEMENT shall not impair, affect or invalidate the other provisions of its AGREEMENT. 11.9 Assignment. Neither this AGREEMENT nor any rights or obligations of either party hereunder shall be assigned or otherwise transferred by any party without the prior written consent of the other party. 11.10 Controlled Information. The parties understand that information and materials provided pursuant to or resulting from this AGREEMENT may be export controlled, classified, or unclassified sensitive and protected by law, executive order or regulation. Nothing in this AGREEMENT shall be construed to permit any disclosure in violation of those restrictions. Article 12. Notices 12.1 Notices, communications, and payments hereunder shall be deemed made if given and addressed as set forth below. A. Formal notices under this AGREEMENT shall be sent by prepaid certified U.S. Mail and addressed as follows: UNIT: Defense Microelectronics Activity COLLABORATOR:
UNIT: Defense Microelectronics Activity COLLABORATOR:
Collaborator: By: _____________________________ Date: _________________________
By: ____________________________________ Date: ___________________
By: ___________________________________ Date: ____________________ TED GLUM
WORK PLAN 1.0 OBJECTIVE:
2.0 BACKGROUND: (Give a short description of the background) 3.0 TECHNICAL TASKS: (Provide a detailed description of the work proposed) 3.1 to 3.X (Provide details of each specific task to be accomplished) 3.Y OBSOLESCENCE AND DIMINISHING MANUFACTURING SOURCES
ENGINEERING 4.0 PROCEDURES AND PROCESSES (Note- All of Para. 4 .0 are mandatory paragraphs) 4.1 The following is the DMEA "Task Order" acceptance and approval process: 4.1.1 The COLLABORATOR will work with the DMEA Technical Point of Contact to identify the scope of the task, the detailed requirements, and other information necessary for DMEA to prepare an estimate of the level of effort required. This estimate shall be recorded on a draft Task Order (see Appendix B) associated with the CRADA. 4.1.2 The DMEA Technical Point of Contact shall complete the Task Order and route it through DMEA to get formal approval for the effort. 4.1.3 Once a Task Order is signed by the DMEA "Authorizing Officials", the DMEA Technical Point of Contact will provide a copy which will include the resource requirements and any estimated costs, to the COLLABORATOR. The COLLABORATOR will then obtain formal approval signatures, as required. 4.1.4 Task and funding arrangements addressed in a Task Order may commence upon receipt of the completed Task Order in MEO. MEO shall attach the Task Order to the basic CRADA, archive the package, and provide copies of the official agreement to all pertinent Unit and Collaborator parties. 4.1.5 As the data on this form is estimated, Task Orders shall not require revision unless the DMEA Technical Point of Contact determines that there has been a significant change in the scope, funding or schedule. Any Task Order revisions that are required shall repeat this process. 5.0 BENEFITS 5.2 Benefits to the Government: Detail benefits to the Government. 6.0 MILESTONES: 7.0 REPORTS
THIS TASK ORDER IS ASSOCIATED WITH CRADA NUMBER: TBD TASK TITLE: TBD This Task Order augments the associated CRADA, and shall not exceed the scope defined therein. This Task Order shall become "effective" immediately upon the signature of the DMEA Authorizing Official identified below, and no work shall be initiated until this Task Order is effective.
2. Planned Schedule of Required Activities (include Start Date, Key Milestones, and End Date) 3. Personnel: 4. Test Equipment Requirements and Cost: 5. Facility Requirements/Cost: 6. Funds Requirements and Total Estimated Cost of Task Order: 7. Payment schedule Amount and Dates: (Calendar Month/Year) 8. Report Requirements: (Identify any reports required, in addition to the Annual Report) (Collaborator Name) AUTHORIZING OFFICIALS: DMEA AUTHORIZING OFFICIALS _________________________ ____________________________________ __________________________________________________________________ To learn more about how your college or university can partner with our organization email Bill Vanden Bosch at bill@TheFTC.org. Back To Partnership Agreements
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