[Insert name of Air Force Activity]
[Insert name of collaborator]
Article 1. Preamble
1.1 This Cooperative Research and Development Agreement (Agreement) for performing the work described in the Work Statement attached hereto as Appendix A is entered into pursuant to 15 U.S.C. § 3710a (as amended) and Air Force Policy Directive 61-3 by and between [Insert name of collaborator], (hereinafter referred to as "Collaborator"), located at [Insert address of collaborator] and the United States of America as represented by the Department of the Air Force [Insert name of Air Force activity] (hereinafter referred to as "Air Force Activity"), located ___________ Air Force Base, (State). 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:
2.2 "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.
2.3 "Effective Date" means the earlier of: (a) the date of the last signature of the duly authorized representatives of the parties and the Reviewing Official; or (b) 30 days after the receipt of a signed copy of this Agreement by the Reviewing Official without that official taking any action thereon.
2.5 "Government" means the Government of the United States of America. 2.6 "Government Purpose License" or "GPL" means a license to the Government conveying a nonexclusive, irrevocable, worldwide, royalty-free license to have practiced an Invention for government purposes and on behalf of any foreign government or international organization pursuant to any existing or future treaty or agreement with the United States, 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.
2.7 "Invention" means any invention or discovery that 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.).
2.8 "Made" in relation to any Invention means the conception or first actual reduction to practice of such Invention.
2.9 "Proprietary Information" means information which embodies trade secrets or which is confidential technical, business or financial information provided that such information:
2.10 "Reviewing Official" means the authorized representative of the Department of the Air Force who is identified on the signature page of this Agreement.
2.11 "Under" as used in the phrase "Under this Agreement" means within the scope of work performed under this Agreement.
Article 3. Work Statement
3.1 Appendix A sets forth the nature and scope of the work performed Under this Agreement, including any equipment, maintenance and other support, and any associated reporting requirements.
3.2 The Collaborator may inspect Government property identified in Appendix A prior to use. Such property may be repaired or modified at the Collaborator's expense only after obtaining the written approval of the Air Force Activity. Any repair or modification of the property shall not affect the title of the Government. Unless Air Force Activity hereafter otherwise agrees, the Collaborator shall, at no expense to the Air Force Activity, 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 patents in a timely manner.
Article 4. Financial Obligations
4.1 The Collaborator will pay the Air Force Activity the amount of $________ within 30 days after the Effective Date hereof. Subsequent payments will be paid as follows:___________.
4.2 Payments from copyrights shall be payable by Collaborator to Air Force Activity in accordance with the provisions of Article 6.
4.3 Except as provided for in paragraph 4.4, payments by Collaborator to the Air Force Activity under this Article shall be made payable to the Air Force Activity and mailed to the following address:
4.4 Royalty or other income from patents shall be payable in accordance with any patent license under Article 5.
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. Inentions Made
jointly by the Air Force Activity and the Collaborator employees shall be
jointly owned by both parties. The 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 the Air Force Activity employees Under This Agreement. The Collaborator
shall exercise the option to obtain a license by giving written notice thereof to the Air
Force Activity within three (3) 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. The Collaborator hereby grants to the Government, in advance, a GPL
in any Invention
5.3 Filing Patent Applications. The Collaborator shall have the first option to file a patent application on any Invention Made Under this Agreement, which option shall be exercised by giving notice in writing to the Air Force Activity within three (3) 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 the Collaborator elects not to file or not to continue prosecution of a patent application on any such Invention in any country or countries, the Collaborator shall notify the Air Force Activity 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 the Collaborator does not file, or does not continue prosecution of, or make any required payment on, an application on any such Invention, the Air Force Activity may file, or continue prosecution of, or make any required payment on, an application, and the Collaborator agrees, upon request by the Air Force Activity, to assign to the Government all right, title and interest of the Collaborator in any such application and to cooperate with Air Force Activity 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. Note: 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 the Air Force. 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 The Collaborator shall own the copyright in all works Created in whole or in part by the Collaborator Under this Agreement, which are copyrightable under Title 17, United States Code. The Collaborator shall mark any such works with a copyright notice showing the Collaborator as an owner and shall have the option to register the copyright at the Collaborator's expense.
6.2 The Collaborator hereby grants in advance to the Government a GPL in all copyrighted works Created Under this Agreement. The 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 the Department of the Air Force. 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 The Collaborator shall furnish to the Air Force Activity, at no cost to the Air Force Activity, three (3) copies of each work Created in whole or in part by the Collaborator Under this Agreement.
6.4 The Collaborator shall pay to the Air Force Activity twenty percent (20%) of all gross income received by the Collaborator or its affiliates from the sale, lease or rental of any copyrighted work Created Under this Agreement. The Collaborator shall pay to the Air Force Activity fifty percent (50%) of all gross royalties received by the 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 the Air Force Activity shall be due and paid on or before the last day of the month next following receipt by the Collaborator of any such gross income or gross royalties. The Collaborator shall provide to the Air Force Activity a report at least annually showing all gross income and royalties received. The Collaborator shall make payments due hereunder to the Air Force Activity in accor dance with paragraph 4.3 of this Agreement. The Collaborator's obligation to make payments to the Air Force Activity hereunder shall survive expiration or other termination of this Agreement.
6.5 The Air Force Activity, at its expense, may require an accounting of income received by the Collaborator and its affiliates and may, at reasonable times and upon reasonable notice to the Collaborator, examine the Collaborator's and any affiliate's books and records to verify the accounting.
Article 7. Proprietary Information
7.1 Neither party to this Agreement shall deliver to the other party any Proprietary Information not developed Under this Agreement, 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 the Collaborator. The Collaborator may use, duplicate and disclose, in confidence, and authorize others on its behalf to use, duplicate and disclose, in confidence, any such Proprietary Information developed solely by the Air Force Activity. 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 the Air Force Activity 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 ( ) months, 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 any reason upon delivery of written notice to the other party at least three (3) months 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 either party, each party shall be responsible for its own costs incurred through the date of termination, as well as its own costs incurred after the date of termination and which are related to the termination. If the Air Force Activity terminates this Agreement, it shall not be liable to the Collaborator or its contractors or subcontractors for any costs resulting from or related to the termination, including, but not limited to, consequential damages or any other costs.
8.4 Disputes. All disputes arising out of, or related to, this Agreement shall be resolved in accordance with this Article.
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 Air Force Activity hereby represents and warrants to the Collaborator as follows:
9.2 The Collaborator hereby represents and warrants to Air Force Activity as follows:
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. The 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 the Collaborator, or persons claiming through them, for death, injury, loss or damage to their person or property arising in connection with this Agreement, except to the extent that such death, injury, loss or damage arises solely from the negligence of Air Force Activity 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 MERCHANTABILITY, 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 to this Agreement, 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, or 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. The Collaborator shall be responsible for the removal and disposal from Air Force Activity property of any and all toxic or other material provided or generated by the Collaborator in the course of performing this Agreement. the 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 venturers, 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 between the Collaborator, Air Force Activity and the public affairs office supporting Air Force Activity. the Collaborator shall not use the name of Air Force Activity 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 Air Force Activity. By entering into this Agreement, Air Force Activity or Government does not directly or indirectly endorse any product or service provided, or to be provided, by the Collaborator, its successors, assignees, or licensees. the 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 all other parties. 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 any 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 this Agreement.
11.9 Assignment. Neither this Agreement nor any rights or obligations of any party hereunder shall be assigned or otherwise transferred by any party without the prior written consent of all other parties.
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. Send formal notices under this Agreement shall be sent by prepaid certified U.S. Mail and addressed as follows: Air Force Activity: Attn: (ORTA) Address Collaborator: Attn: Address B. Send correspondence on technical matters by prepaid ordinary US mail and address them: Air Force Activity: Attn: Address Collaborator: Attn: Address IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in duplicate by their duly authorized representatives as follows: COLLABORATING PARTY AIR FORCE ACTIVITY ____________________________________ ____________________________________ (Name of Collaborating Activity) (Name of Air Force Activity) ____________________________________ ____________________________________ (Name of Official--Printed or Typed) (Name of Official--Printed or Typed) ____________________________________ ____________________________________ (Signature of Official) (Signature of Official) ____________________________________ ____________________________________ (Title of Official) (Title of Official) ____________________________________ ____________________________________ (Address of Official) (Address of Official) ____________________________________ ____________________________________ (Date Signed) (Date Signed) REVIEWED AND APPROVED BY AIR FORCE REVIEWING OFFICIAL: ______________________________________________________________________________ (Name of Air Force Reviewing Official--Printed or Typed) ______________________________________________________________________________ (Title--Printed or Typed) ___________________________________ ____________________________________ (Signature) (Date) Appendix A: Work Statement NOTE: This is an essential part of the CRADA and should be completed first. It Should: --- Describe the scope of work in technical terms --- Specify each party's research and development responsibilities. --- Detail each party's contribution of funds, personnel, services, property, equipment, and facilities. --- State each party's division of responsibilities for reporting progress and results. --- Identify the principal investigators for each party, the milestones for work progress, and the procedures for interaction between parties. --- Identify each party's background intellectual property rights and environmental, health, and safety responsibilities. This is particularly important if the CRADA may call for an exchange of materials, equipment, or facility use. Include proprietary information (if any) in a separate, appropriately marked document. Suggested Format: 1.0 Title: Provide a descriptive title of the CRADA. 2.0 Objective: State the overall purpose of the CRADA, including a short description of benefits anticipated for the Government and the collaborating party. Indicate the thrust of the outcome, whether it is a product, process, facility, or personnel. 3.0 Background: Include any pertinent historical information related to the proposed CRADA. State each party's background intellectual property rights in either party and each party's responsibilities regarding health, safety, and environmental protection. 4.0 Technical Tasks: This section may include the following parts. 4.1 Collaborator: Describe the tasks that the Collaborator is to do and describe and estimate the value of the resources it is to provide in the form of funds, personnel, services, property, and equipment. 4.2 Air Force Activity: Describe the tasks that the Air Force Activity is to do and describe and estimate the value of the resources it is to provide in the form of personnel, services, property, and equipment. 5.0 Deliverables or Desired Benefits: This section may include the following. 5.1 Benefits to the Collaborating Party: Describe what the collaborating party hopes to accomplish and how the collaborating party plans to benefit, directly or indirectly, from the CRADA. 5.2 Benefits to the Government: Describe how the Government will benefit directly or indirectly from the CRADA. 6.0 Other: Give any other pertinent information that would help both parties understand their respective roles in the CRADA. 7.0 Milestones: Give the dates each party is expected to complete its tasks. 8.0 Reports: List the reports each party is to generate and give a schedule for their completion. Parties should prepare and submit written progress reports at least every 6 months, and a final report within 2 months after the CRADA or work under the CRADA ends. Parties should coordinate the formats. Starter draft as of September 9, 1993
For additional information about Cooperative Research and Development Agreements take a look at some of the CRADA Project Stories Wright Technology Network has done. If you have any questions about CRADAs or are interested in getting more information about CRADA projects, please contact Jim Singer at Wright Technology Network (937) 253-0217 or CRADA@wtn.org.
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