Model: Commercial Test Agreement

Sample: Comercial Test Agreement (CTA)

Number CTA-____-____-___
Between
Defense Microelectronics Activity (DMEA)
And ________________________

Article 1. Preamble

1.1 The UNITED STATES OF AMERICA, represented by the DEFENSE MICROELECTRONICS ACTIVITY, (hereinafter referred to as DMEA), located at 4234 54th Street, McClellan AFB, CA 95652-1521and XXX Company (hereinafter referred to as Customer), located at,___________ enter into this COMMERCIAL TESTING AGREEMENT (“Agreement”). The statutory authority for this Agreement is 10 U.S.C. 2539b(a)(3).

1.2. Implementing Authority The Under Secretary of Defense issued Interim Draft Department of Defense Guidance Implementing 10 U.S.C. 2539b on April 17, 1997. The interim policy states: "It is the policy of the Department of Defense to promote research and development within the commercial sector of the U.S. economy, and the transfer of technology from the military to the commercial sector. These policies further national security by promoting the development of a national industrial and technological base from which to sustain military technology superiority while enhancing productive capabilities for the nation overall." In this interim policy the Under Secretary of Defense delegated authority to the directors or commanders of government laboratories, centers, or other facilities for testing of materials, equipment, models, computer software, and other items for any person or entity. These persons or entities include individuals, partnerships, corporations, associations, state and local governments, tribunal government, or an agency or instrumentality of the United States. Therefore, the DMEA Director is authorized to make available to any person or entity, at a prescribed fee, DMEA testing services for materials, equipment, models, computer software, and other items consistent with the following requirements:

1.3. Conditions:

(a) The authority may be exercised when (1) the customer has established in writing, and to the satisfaction of the DMEA Director, that provisions of the testing service will not constitute undue competition with the private sector; and (2) that the testing service does not involve expansion of the DMEA capabilities and capacities, even if the person or entity agrees to finance the expansion. A copy of the customer’s reviewed and acceptable "non competition/non availability" statement is attached as Appendix C. If the requested testing is for a customer performing against a Department of Defense contract, then the “non competition/non availability” statement is not required – instead the customer shall provide the contract number for the Department of Defense (DoD) Contract (Air Force, Army, Navy, etc.) in their testing request letter.

(b) Except as provided in paragraph 1.3(c) below, the testing of materials and other items not owned by the government shall not cause government personnel or other government resources to be diverted from scheduled tests of government material or otherwise interfere with government mission requirements.

(c) The DMEA Director shall determine the priority of use for DMEA capabilities for testing of material and other items not owned by the government. In making this determination, the director shall consider the degree to which the proposed test furthers the policies set forth in section "A - Policy" of the Under Secretary of Defense 17 April 1997 interim policy, and priorities of scheduled government tests, and may revise established test schedules in order to accommodate tests of material and other items not owned by the government.

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:

2.2 “Proprietary Information" means information embodying trade secrets or is confidential technical, business, or financial information provided:

(a) The information is not generally known, or is not available from other sources without obligation concerning its confidentiality;
(b) Has not been made available by the owner to others without obligation concerning its confidentiality;
(c) It 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; and
(d) The information is identified as proprietary or confidential by labels or markings designating the information as such.

2.3 "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.

2.4 “Drawing” means a diagram, plan or list detailing the fabrication and assembly of structural elements, or the installation of materials and equipment. A drawing details the characteristics, or outlines the parts or operation of a product or item.

2.5 “Equipment or materials” means personal property, including machinery, devices and apparatus, and components of such items.

2.6 “Independent research and development (IR&D) programs” means a research and development effort that is not sponsored by, or required in performance of a government contract, or grant for: (1) basic research, (2) applied research, (3) development, or (4) systems and other concept formulation studies. IR&D programs also do not include technical efforts expended in developing and preparing technical data specifically to support submitting a bid or proposal.

2.7 “Laboratory” means a facility or group of facilities owned, leased or otherwise under the jurisdiction and control of the Department of Defense, a substantial purpose of which is the performance of research, development, engineering, test and evaluation, or otherwise developing or maintaining technology.

2.8 “Manufacturing or other information” means any blueprints, drawings, plans, instructions, documentation or other technical information that can be used or adopted for use to design, engineer, produce, manufacture, operate, repair, overhaul, or reproduce any equipment or material.

2.9 “Person or entity” means an individual, partnership, corporation, association, state, local, or tribunal government, or an agency or instrumentality of the United States.

2.10 "Effective Date" means the date of last signature of the authorized representatives of the parties.

2.11 "Test Agency Representative" means the authorized DMEA representative identified at Article 12.2.

Article 3. Work Statement

3.1 Appendix A sets forth the nature and scope of the work to be performed under this Agreement, including any facilities, testing machines and equipment, supplies, services, maintenance, and other support, and any associated reporting requirements. It also describes the test request procedures for the Customer and the contents of each request.

Article 4. Statement of Capability and Detailed Cost Analysis

4.1 Appendix B sets forth DMEA’s technical capability, specific technical approach, the costs, and any special conditions to the manner in which the testing services will be delivered to the Customer.

Article 5. Cost Reimbursement

5.1 The Customer shall reimburse DMEA for all costs incurred in rendering the services set forth at Appendix A. Costs shall include, when applicable, the costs of set-up and restoring any test facility to its original configuration. Fees for services are based on reimbursement of all actual costs (i.e. all direct and applicable indirect costs) involved. Fees will not exceed the amount necessary to recoup the actual costs. Costs are detailed in Appendix B.

5.2 The not-to-exceed (NTE) total cost of these services is to be determined by the Test Agency Representative and the Customer prior to the beginning of each approved test.

5.3 The detailed cost analysis shall be included in Appendix B and shall be provided to the Customer prior to the beginning of each approved test. The cost analysis shall contain estimates for government labor, contract services (contract labor, materials, travel, subcontracting, material handling fee), DMEA labor rates, product service fees, management reserve, project overhead, and general and administrative fees.

5.4 Payment for the completed test shall be made by the customer within 30 days of the DMEA invoice date.

5.5 The customer shall make all payments by company check, cashier’s check, certified check, bank money order or postal money order and payable to the DEFENSE MICROELECTRONICS ACTIVITY. Payment shall be mailed to the following address:

DMEA/MEOP (Finance)
4234 54th Street, Bldg 618
McClellan AFB, CA 95652-1521

5.6 Payments shall reference the CTA Number (listed on the top of this agreement) and by the DMEA invoice number. The Customer shall also send, by ordinary mail, a copy of the payment documents to the Test Agency Representative

Article 6. Confidentiality

6.1 The results of tests performed under this Agreement are confidential pursuant to 10 U.S.C. 2539b(b), and may not be disclosed outside the United States Government without the consent of the Customer.

6.2 Any Proprietary Information received by DMEA under this Agreement may not be disclosed outside the United States Government without the consent of the Customer. In the event the parties agree a government support contractor will need access to such information in order to perform work under this Agreement, the Customer will provide DMEA written release authority for the required disclosure. DMEA will require the government support contractor to execute a nondisclosure agreement prior to receipt of the information approved for disclosure.

Article 7. Term, Modification, Extension, and Termination

7.1 Term and Extension. The term of this Agreement shall commence on the Effective Date of this Agreement and shall expire on _________, unless extended by written agreement of the authorized representatives of the parties, or otherwise terminated in accordance with this article. Both parties shall review this Agreement every two years. The expiration of this Agreement shall not affect the rights and obligations of the parties accrued prior to expiration.

7.2 Modification. Any modifications shall be by written agreement of the authorized representatives of the parties and shall be incorporated into this Agreement.

7.3 Termination. Either party may terminate this Agreement for any reason upon delivery of written notice to the other party at least thirty (30) days prior to such termination. Termination of this Agreement shall not affect the rights and obligations of the parties accrued prior to the date of termination of this Agreement. In the event of termination by the Customer, the Customer shall be responsible for all costs incurred by DMEA through the date of termination and all related costs incurred after the termination. If DMEA terminates this Agreement, it shall not be liable to the Customer or its contractors or subcontractors for any costs resulting from or related to the termination, including, but not limited to, incidental or consequential damages.

7.4 Test Interruption. DMEA mission requirements shall take precedence over the Customer's requirements under this Agreement. The Test Agency Representative, or a higher authority may interrupt or delay the Customer's tests, as described in Appendix A, at any time such interruption or delay is reasonability required in support of the DMEA mission. The Test Agency Representative will notify the Customer, in writing, of the interruption or delay. DMEA will not be liable to the Customer, or any third party, for any costs or consequences resulting from the interruption or delay.

Article 8. Disputes

8.1 Disputes. The parties shall resolve all disputes arising out of, or related to this Agreement in accordance with this Article.

8.2 The Customer and Test Agency Representative shall attempt to resolve disputes between themselves. The parties shall refer any dispute, not resolved by agreement, to the DMEA Deputy Director within 30 days after failure to resolve a dispute.

8.3 The DMEA Deputy Director shall within sixty (60) days of the receipt of the dispute, notify the parties of the final and binding decision.

8.4 DMEA may elect not to continue testing until the dispute is resolved.

Article 9. Representations and Warranties

9.1 The Customer hereby represents and warrants to DMEA:

9.1.2 Corporate Organization. The Customer, as of the date hereof, is a corporation duly organized, validly existing and in good standing under the laws of the State of _______________.

9.1.3 Statement of Ownership. The Customer is not foreign owned or a subsidiary of a foreign-owned entity.

9.1.4 Authority. The Customer official executing this Agreement has the authority to enter into this Agreement.

Article 10. Liability

10.1 Liability. DMEA will not be liable for any claim made by any person or entity for personal injury or death, or for property damage, destruction, or loss, arising from or under this Agreement and shall not be liable for personal injury, or property damage, destruction, or loss arising from the later use, sale, or other disposition of research and technical developments, whether by resulting products or otherwise, tested under this Agreement, except as provided under the Federal Tort Claims Act (28 U.S.C.2671 et seq.) or other Federal law waiving sovereign immunity.

10.2 Indemnification. The Customer agrees to indemnify, hold harmless, and defend DMEA, its employees and agents, against any liability or loss for any claim made by an employee or agent of the Customer, or any person claiming through them, for death, injury, loss or damage to their person or property arising in connection with this Agreement, except as provided under the Federal Tort Claims Act (28 U.S.C. 2671 et seq.) or other Federal law waiving sovereign immunity.

10.3 General Disclaimer. DMEA MAKES NO EXPRESS OR IMPLIED WARRANTY AS TO THE CONDITION OF ANY RESEARCH TEST(S), INTELLECTUAL PROPERTY, TEST RESULTS, OR ANY RESULTING PRODUCT OR PROCESS, OR THE MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE ARTICLE(S) TESTED.

Article 11. General Terms and Provisions

11.1 Disposal of Toxic or Other Waste. The Customer shall be responsible for the proper removal and disposal from DMEA’s property of any and all toxic, hazardous, or solid wastes, or material provided or generated in the course of performing this Agreement. The Customer shall obtain at its own expense all necessary permits and licenses as required by local, state, and federal law and regulation.

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. Should a force majeure event occur, the party unable to perform shall promptly notify the other party and shall in good faith resume 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 venturers, or partners to any business organization. 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 Inspection. The Customer may inspect the DMEA testing facility identified in Appendix A prior to any testing conducted under this Agreement. DMEA will maintain and calibrate the testing facility.

11.5 Publicity/Use of Name Endorsement. The Customer, DMEA, and the DMEA public affairs officer shall coordinate any announcement of this Agreement. The Person or entity shall not use any name or logo attached to the United States Government, the Department of Defense, or DMEA on any product, service, patent license or assignment related directly or indirectly to this Agreement without the prior written approval of DMEA. By entering into this Agreement, the United States Government, the Department of Defense, and DMEA do not directly or indirectly endorse any product or service provided, or to be provided, by the Customer. The Customer shall not in any way imply that this Agreement is an endorsement of any such product or service.

11.6 Governing Law. The construction, validity, performance and effect of this Agreement for all purposes shall be governed by Federal law.

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 to delay to exercise any rights provided herein or by law, shall not be deemed a waiver of any rights of either party.

11.8 Severability. The illegality or invalidity of any provisions of this Agreement shall not impair, affect or invalidate the other provisions of this Agreement.

11.9 Assignment. No party shall assign or transfer any rights or obligations derived from this Agreement 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 therefore protected by law, executive order or regulation. This Agreement does not permit any disclosure in violation of those restrictions.

Article 12. Notices

12.1 Send modification and termination notices under this Agreement by prepaid certified U.S. Mail to:

________________________ Defense Microelectronics Activity
________________________ DMEA/MEOP
________________________ Mr. Jim Dininger
________________________ 4234 54th St. Bldg 620
________________________ McClellan AFB CA 95652-1521

12.2 Send correspondence on technical matters by prepaid ordinary U.S. Mail and address them as follows:

________________________ Defense Microelectronics Activity
________________________ DMEA/ME__
________________________ Test Agency Representative
________________________ 4234 54th St. Bldg 620
________________________ McClellan AFB CA 95652-1521

Signatures

IN WITNESS WHEREOF, the Parties execute this Agreement, in duplicate, by their authorized representatives as follows:

By:___________________________________ By: ______________________________
(Signature) (Signature)

Name: ________________________________ Name: Earl Hendricks

Title: _________________________________ Title: Deputy Director,
Defense Microelectronic Activity

Date: _________________________________ Date: ____________________________

Reviewed and approved by
DMEA REVIEWING OFFICIAL: _______________________________
Ted Glum
Director
Defense Microelectronics Activity

Date: ________________________

Appendix
A. Work Statement
B. Statement of Capability and Detailed Costs
C. Non competition/non availability Statement
or DoD Contract Number as applicable

To learn more about how you can partner with our organization, or how we can help you partner with federal labs, email Bill Vanden Bosch at bill@TheFTC.org.