1
EXHIBIT 10.10
Cooperative Agreement Under 10 U.S.C. 2371
between
The United States of America
U.S. Air Force, Air Force Material Command
Rome Laboratory
00 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx XXX, XX 00000-0000
with
Object Technology for Rapid Software Development Consortium
00000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Concerning Object Technology for Rapid Software Development
Agreement No.: F30602-95-2-0006
PR/ARPA Order No.: AO#C540/PR C-5-2753
Total Amount of the Agreement: $11,903,054
Government share: $5,897,817
Consortium share: $6,005,237
Authority: 10 U.S.C. 2511/2371
Catalog of Federal Domestic Assistance number: Technology Reinvestment
Projects-12.911
For: Object Technology for Rapid For: The United States of America
Software Development Consortium Rome Laboratory
Xxxxxx X. Xxx 4-5-95 Xxxxx Xxxxxxxx 4/7/95
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Signature Date Signature Effective Date
Xxxxxx X. Xxx, Chairman XXXXX XXXXXXXX
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Name, Title Name, Grants Officer
Agreement No.: F30602-95-2-0006 Page 1
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Agreement No. F30602-95-2-0006
Table of Contents
Articles Page
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Part I Administrative Information
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Article 1 Definitions 4
Article 2 Administrative Requirements 5
Article 3 Administrative Responsibilities 5
Part II Term
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Article 4 Recognition of Pre-Award Costs 6
Article 5 Term of the Agreement 6
Article 6 Termination 7
Article 7 Extending the Term 7
Part III Management of the Project
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Article 8 Scope and Management of the Program 7
Article 9 Consortium Administration 8
Article 10 Consortium Management Committee 8
Article 11 Program Management Planning Process 9
Article 12 Modifications 9
Article 13 Title to Property 10
Part IV Financial Matters
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Article 14 Cost Principles 10
Article 15 Standards for Financial Management Systems 10
Article 16 Allotted Funding 11
Article 17 Payment 11
Article 18 Program Income 11
Article 19 Cost Sharing and Matching 12
Part V Disputes
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Article 20 Disputes 12
Part VI Intellectual Property Rights
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Article 21 Inventions 13
Article 22 Data Rights 14
Article 23 Foreign Access to Technology 16
Part VII Technical and Financial Reporting
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Article 24 Quarterly Reports 18
Article 25 Annual Program Plan 18
Article 26 Special Technical Reports 19
Article 27 Final Report 19
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Part VIII Miscellaneous Performance Issues
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Article 28 Limitation of Liability 19
Article 29 Using Technical Information Resources 20
Article 30 Procurement Standards 20
Part IX Certifications
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Article 31 Certification 20
Attachments
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1 Project Plan and Statement of Work
2 Schedule of Milestones
3 Cost Matching Summary and Schedule
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Agreement No. F30602-95-2-0006
PART I. ADMINISTRATIVE INFORMATION
Article 1. Definitions
The term "parties" as used herein shall refer to the Object Technology for
Rapid Software Development Consortium and the United States of America,
hereinafter called the Government, represented by Rome Laboratory.
The term "agreement" as used herein shall refer to these articles and the
attachments hereto.
The term "agreement year" as used herein shall refer to each consecutive
twelve month period from the effective date of this agreement throughout the
term of the agreement.
The term "consortium" as used herein shall refer to the Object
Technology for Rapid Software Development Consortium which was formed in
accordance with the Articles of Collaboration ("Consortium Agreement") entered
into between the Consortium Members.
The term "program" as used herein shall refer to the Object Technology
for Rapid Software Development effort.
The term "Code" as used herein shall mean computer programming code,
including both Object Code and Source Code.
"Object Code" is the computer programming code substantially in binary
form. It is directly executable by a computer after processing, but without
compilation or assembly.
"Source Code" is the computer programming code, other than Object Code, and
related Source Code level system documentation, comments and procedural code,
such as job control language. It may be printed out or displayed in a form
readable and understandable by a programmer of ordinary skill.
The term "Computer Software" as used herein shall mean computer programs and
computer data bases, and Computer Software Documentation.
The term "Computer Software Documentation" as used herein shall mean Technical
Data, including computer listings and printouts, in human readable form which:
Document the design and details of Computer Software
Explains the capabilities of the Computer Software, and
Provides operating instructions for using the Computer Software to obtain
desired results from the computer.
The term "consortium participants" or "members" as used herein shall
refer to the members of the consortium as follows:
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Agreement No. F30602-95-2-0006
Template Software, Inc.
IBM Corporation
Honeywell Technology Center
ISX Corporation
Article 2. Administrative Requirements
A. This agreement will be implemented under the terms and conditions stated
herein and administered in accordance with the Interim-Guidance draft of DOD
3210.6-R, the DOD Grant and Agreement Regulations (DODGARs) (4 Feb 94) Parts
22, 25, 28, 31, 34, 36, and 37, except as modified by the terms and conditions
stated herein.
B. In the event of a conflict between the terms of this agreement and other
governing documents, the following shall be the order of precedence, in
descending order:
1. The articles in this agreement
2. The attachments to this agreement
3. The Articles of Collaboration.
Article 3. Administrative Responsibilities
A. Government representatives are:
Grants Officer/Agreement Administrator: Xxxxx Xxxxxxxx
Rome Laboratory/PKPF
00 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx Xxx Xxxxx Xxxx,
XX 00000-0000
Phone:(000) 000-0000
FAX: (000) 000-0000
Grants Administration Office: Rome Laboratory/PKPF
00 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx Xxx Xxxxx Xxxx,
XX 00000-0000
Government Program Manager: Xxxxxx Xxxxxx
0000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
FAX: (000) 000-0000
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Government Program Monitor Xxxxx Xxxxxxx
Rome Laboratory/C3AB
000 Xxxxxx Xxxx
Xxxxxxxx Xxx Xxxxx Xxxx, XX 00000-0000
Phone:(000) 000-0000
Fax: (000) 000-0000
Payment Office: Rome Laboratory/FMFC
(submit invoices to the Grants Officer)
Servicing Staff Judge Advocate's
office (for invention reporting):
Rome Laboratory/JA
00 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx Xxx Xxxxx Xxxx, XX 00000-0000
B. Consortium representatives are:
Consortium Administrator and Remittance Address: Xxxxxxxx Xxxxxx
Template Software, Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Consortium Program Manager: Xxxxxxx Xxxx
Template Software, Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Phone: (000) 000-0000
FAX: (000) 000-0000
PART II. TERM
Article 4. Recognition of Pre-Award Costs
Costs incurred by the Consortium after October 20, 1994 and In-Kind
Contributions of $1,520,900 shall be determined allowable to the same extent as
if incurred after award.
Article 5. Term of the Agreement
The term of this agreement commences on the effective date shown on the face of
the agreement, and continues for twenty-four (24) months unless terminated as
provided herein. If all funds are expended prior to the end of the term, the
parties have no obligation to continue performance and may elect to cease
performance at that point. Articles in this agreement which by their express
terms or by necessary implication,
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apply for periods of time other than as specified in this article shall be
given effect, notwithstanding this article.
Article 6. Termination
A. This agreement may be terminated by either party upon written notice to the
other party, based upon a reasonable determination that the project will not
produce beneficial results commensurate with the expenditure of resources.
Such written notice shall be preceded by consultation between the parties. In
the event of a termination, the Government shall have license rights consistent
with the Article below entitled "Data Rights" to Data developed under this
Agreement through such termination so long as the Government makes all payments
for the Government share of actual costs expended through the date of
termination.
B. The Government and the consortium, acting through its Consortium Management
Committee, will negotiate in good faith a reasonable and timely adjustment of
all outstanding issues between the Parties at the time of termination. The
Government shall reimburse the consortium for the Government share of the
obligations properly incurred by the consortium prior to termination and the
Government share of those noncancellable obligations that remain after the
termination.
Article 7. Extending the Term
If the parties agree, the term of this agreement may be extended if funds are
available and research opportunities reasonably warrant. Any extension shall
be formalized through modification of the agreement by the grants officer and
the consortium program administrator.
PART III. MANAGEMENT OF THE PROJECT
Article 8. Scope and Management of the Program
A. This agreement recognizes the relationship contemplated in the document
identified as "Consortium Agreement - Articles of Collaboration for Object
Technology for Rapid Software Development", which binds consortium members and
brings them within the scope of this agreement. The Government and the
consortium are bound to each other by a duty of good faith and best effort to
achieve the goals of this agreement. This agreement is not intended to be, nor
shall it be construed as, by implication or otherwise, a partnership, a
corporation, or other business organization. This Agreement is not a
procurement contract or grant agreement for the purposes of FAR Subpart
31.205-18.
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B. The consortium shall use its best efforts to perform a coordinated research
and development program carried out in accordance with the statement of work
entitled "Object Technology for Rapid Software Development" Attachment 1 to
this agreement. The consortium shall submit all documentation required by Part
VIII, Technical and Financial Reporting.
C. The overall management, including technical, programmatic, reporting,
financial and administrative matters, of the coordinated research program
established under this agreement shall be accomplished by the CMC. The
Government program manager may interact with the consortium to promote
effective collaboration between the consortium and the Government.
Article 9. Consortium Administration
A. In accordance with the Articles of Collaboration, the consortium member that
will act on behalf of the consortium in executing this agreement, and any
future modifications to it, is the consortium administrator, Template Software,
Inc. All financial transactions between the Government and the consortium,
including payment, will be made with the consortium administrator.
B. The CMC will immediately notify the grants officer in writing if at any time
the Articles of Collaboration are changed such that these duties are assigned
to another member.
Article 10. Consortium Management Committee
A. In accordance with the Articles of Collaboration, the CMC shall be comprised
of one representative from each consortium member "Voting Representative", and
may bind the consortium members in project decisions. All decisions shall be
made by unanimous vote of the Voting Representatives of the CMC. However, the
following CMC decisions are always subject to Government approval:
1. Changes to the Articles of Collaboration if such changes substantially
alter the relationship of the consortium as originally agreed upon when this
agreement was executed;
2. Changes to, or elimination of, any Government funding allocation to any
consortium member.
3. Technical and/or funding revisions to this agreement; and
4. Admission, replacement, or deletion of consortium members.
The Consortium shall notify the Government of the above decisions in writing
and the Government shall provide the Consortium written notice of its approval
or disapproval within 10 days of such notification or extended time period
mutually agreed upon by the
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parties. In the event the Government does not provide such notification within
the time period stated, the decision will be deemed approved by the Government.
B. The CMC will establish a schedule of quarterly technical meetings ("TRP
Meetings") and notify all consortium members and the Government program manager
of the schedule. In the event of a change to the schedule, the CMC will
notify all consortium members and the Government program manager at least
thirty (30) days in advance of the next meeting.
C. A quorum of representatives of consortium members is required at all TRP
Meetings. In addition, every TRP Meeting must include the Government program
manager or designee. Other Government personnel, as deemed appropriate, may
also participate.
Article 11. Program Management Planning Process
A. For the first agreement year, the consortium will follow the annual program
plan that is contained in the Statement of Work (Attachment 1), and the
Schedule of Milestones (Attachment 2).
B. The CMC, with Government program manager involvement, will prepare an
Annual Program Plan in the first quarter of each subsequent agreement year.
This Plan will be presented for review and approval by the CMC concurrent
with the appropriate quarterly meeting of the CMC attended by the consortium
members, the Government program manager, and other Government personnel as
appropriate.
C. The Annual Program Plan provides a detailed schedule of project activities,
commits the consortium to use its best efforts to meet specific performance
objectives and includes forecasted expenditures. The Annual Program Plan will
consolidate all prior adjustments in the program schedule, including
revisions/modifications to milestones.
Article 12. Modifications
A. Modifications to this agreement may be proposed by either party. Only the
grants officer has the authority to act on behalf of the Government to modify
this agreement. The CMC will make recommendations for any modifications to
this agreement in writing, including justifications to support any changes to
the statement of work and/or the milestones, and submit them to the government
program manager with a copy to the grants officer. The CMC shall detail the
technical, chronological, and financial impact of the proposed modification to
the program.
B. The grants officer may unilaterally issue minor or administrative agreement
modifications, e.g., changes in the paying office or appropriation data, or
changes to Government personnel identified in the agreement.
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Article 13. Title to Property
Title to all real property and nonexpendable tangible personal property
purchased by the consortium or members with federal funds under this agreement
is vested in the Government. The consortium must obtain the prior approval of
the grants officer before making any such purchases of real property or
nonexpendable tangible personal property with federal funds under this award.
PART IV. FINANCIAL MATTERS
Article 14. Cost Principles
A. Federal funds and funds counted as the consortium's cost share or match,
determined pursuant to Article 15 below, shall be used only for costs that:
1. A reasonable and prudent person would incur, in carrying out the
advanced research project contemplated by this agreement; and
2. Are consistent with the purposes stated in the governing Congressional
authorization and appropriation, 10 X.X.X 0000.
B. The parties recognize that the consortium, as a conduit, does not incur nor
does it allocate any costs of its own to the consortium member costs directly
incurred pursuant to this agreement.
Article 15. Standards for Financial Management Systems
A. The consortium members shall maintain adequate records to account for the
control and expenditure of Federal funds received and the participant's cost
sharing or matching required under this agreement.
B. The consortium members shall establish and maintain accounting systems
that:
1. Comply with Generally Accepted Accounting Principles.
2. Control and properly document all cash receipts and
disbursements.
C. The Consortium shall ensure that an audit of activities under this Agreement
shall be conducted once within 12 months after the expiration or termination of
this Agreement where such audit shall not extend beyond a two week period.
1. Selection of Auditors
The Consortium Members shall select an auditor(s), herein defined as an
independent certified public accountant(s) who will review Consortium and
Consortium Member expenditures.
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2. Scope of Audit and Audit Objectives
The auditor shall determine that the Consortium Member has fully accounted
for the funding under this Agreement. The auditor shall issue a report which
will include the auditor's opinion as to the amount of allowable costs under
this agreement in accordance with the cost principles set forth in Article 14.
The Consortium Member shall provide the Government a copy of the audit report
within 30 days of its issuance by the auditor.
D. The Government reserves the right, once within 18 months after the
expiration or termination of this Agreement, to examine the Consortium Members'
direct cost financial records, which are limited to the records in connection
with the direct charges of labor, travel, equipment, supplies, contracts, and
materials under this agreement. This audit does not include the right to audit
the content of the indirect pools. The Grants Officer or designee shall notify
the Consortium in writing of his or her request to examine such direct cost
financial records and the Consortium Members shall provide such records to the
Government for examination at a mutually agreeable location within a reasonable
time after such notification. Such examination shall be performed during
business hours, on business days and shall be subject to the security
requirements of the Consortium Members.
Article 16. Allotted Funding
The following funds are allotted to this agreement:
Fund Cite(s) Amount
------------ ------
970400.1302 X00 0000 4V10000 0C5400 52753 $5,897,817.00
63570E 503901 F03901 (C5400001)
Article 17. Payment
The consortium shall be reimbursed by submitting Requests for Advance or
Reimbursement (SF 270s). The original and two copies of each request for
reimbursement shall be submitted by the consortium administrator to the Grants
Administration Office no more frequently than semi-monthly. Payments will be
made within thirty (30) calendar days after of receipt of the invoices by the
Government unless the billing is improper.
Article 18. Program Income
All income earned by the Consortium or the Consortium Members during the term
of this Agreement shall be used to finance the non-Government share of the
project. Program Income in excess of the non-Government share of the project,
if any, shall accrue to the Consortium or the Consortium Member, respectively.
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Article 19. Cost Sharing and Matching
A. The parties estimate that the statement of work for this agreement can only
be accomplished with the consortium aggregate resource contribution of
$6,005,237 and federal funds of $5,897,817 from October 20, 1994 through
twenty-four 24 months after the effective date of this Agreement. The
consortium agrees to provide the resources in the manner shown in Attachment
3. Failure of either party to provide its respective total contribution may
result in a proportional reduction in funding by the grants officer.
B. The consortium's contributions may count as cost sharing or matching only to
the extent that they are used for authorized purposes of the agreement, and
such purposes are consistent with applicable cost principles.
PART V. DISPUTES
Article 20. Disputes
A. General. Parties shall communicate with one another in good faith and in a
timely and cooperative manner when raising issues under this article. The
Department of Defense's policy is to try to resolve all issues concerning
agreements by mutual agreement at the grants officer's level.
B. Dispute Resolution Process.
1. Any disagreement, claim or dispute between the Government and the
consortium concerning questions of fact or law arising from or in connection
with this agreement, whether or not involving an alleged breach of this
agreement, may be raised only under this article.
2. Whenever disputes, disagreements, or misunderstandings arise, the
parties shall attempt to resolve the issue(s) involved by discussion and mutual
agreement as soon as practicable. Failing resolution by mutual agreement, the
consortium shall submit to the grants officer the written, relevant facts,
identifying unresolved issues and specifying the clarification or remedy
sought. Within 60 calendar days of receipt of the written claim or issue in
dispute, the grants officer shall either:
a. Prepare a written decision on the issue, including the basis for the
decision, or
b. Notify the consortium of a specific date when he or she will
render a written decision, if more time is required to do so. The notice will
include the reason for delaying the decision.
3. In the event the consortium decides to appeal the decision of the
grants officer, they must do so within 30 calendar days of receipt of the
decision. The appeal must be submitted, in writing, to the Rome Laboratory
Commander. The Commander
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shall conduct a review of the matter and issue a written decision within 30
calendar days of receipt of the written appeal. Any such decision is not
subject to further administrative review and shall be final and binding unless
the Consortium member, at this point seeks a final remedy in the court of
competent jurisdiction or appropriate administrative authority.
PART VI. INTELLECTUAL PROPERTY RIGHTS
Article 21. Inventions
A. Part 401 of Title 37, Code of Federal Regulations, is incorporated by
reference, in its entirety. The applicable clause is found at 37 CFR
401.14(a), and is modified as follows: replace the word "contractor" with
"consortium"; replace the words "agency," "Federal Agency" and "funding Federal
Agency" with "government"; replace the word "contract" with "agreement"; delete
paragraphs (g)(2), (g)(3) and the words "to be performed by a small business
firm or domestic nonprofit organization" from paragraph (g)(1); paragraph (1),
Communications, point of contact on matters relating to this clause will be the
servicing Staff Judge Advocate's office identified elsewhere in this agreement,
and, in 401.14(c)(1), line 3, delete "two" and substitute "four"; Line 5,
after "." the period xxxx, insert "Such disclosure shall be deemed to be notice
of election by the Consortium Member to retain title to Subject Invention."
B. Pursuant to 401.1(a)(2), an invention which is made at any time outside the
research activities of this agreement is deemed a Background Invention in which
the Government shall have no rights, and title to all such Background
Inventions which may be used in the performance of this Agreement shall at all
times remain with the Consortium Member.
C. The consortium shall file Invention (Patent) Reports at the end of the term
for this agreement. Final reports are due 60 days after the expiration of the
final performance period. The consortium shall use DD Form 882, Report of
Inventions and Subcontracts, to file an inventions report. Negative reports
are also required. The consortium shall submit the original and one copy to
the servicing Staff Judge Advocate's office, one copy to the Grants
Administration Office, and one copy to the grants officer, if different from
the Grants Administration Office.
D. Final payment cannot be made nor can the agreement be closed out until the
consortium delivers to the Government all disclosures of subject inventions
required by this agreement, an acceptable final report pursuant to the article
entitled "Final Report," and all confirmatory instruments.
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Article 22. Data Rights
A. "Data," as used in this Article, means recorded information, regardless
of form or method of recording, which includes but is not limited to,
Technical Data, Computer Software, trade secrets, and mask works. The
term does not include financial, administrative, cost, pricing, or
management information and does not include Subject Inventions included
under Article 21.
"Technical Data," as used in this article, means recorded information of a
scientific or technical nature (including computer software documentation)
regardless of the form or method of the recording. The term does not
include Computer Software or Data incidental to Agreement administration,
such as financial and/or management information.
B. The Parties agree to the following categories of Data:
1. Category A, "Background Data," as used in this article, means Data, the
development of which was paid for by other than Government funds or Consortium
cash contributions under this Agreement. This Data may have been developed or
created by a Consortium Member prior to the effective date of this Agreement or
outside of the work to be performed under this Agreement and includes Data
which may be contributed to the Program by a Member as an In-Kind Contribution.
2. Category B is Data developed by the Consortium in performance of the
work specified under this Agreement and paid for by the Govemment, in whole or
in part, and which cannot be disclosed without compromising Category A Data.
3. Category C is Data developed by the Consortium in performance of the
work specified under this Agreement and paid for by Government funds or
Consortium cash contributions and excludes Category A and B Data.
C. The allocation of principal rights are as follows:
1. Ownership rights to Data and Technical Data generated under this
Agreement shall vest in its Consortium Member(s) which develops such Data
and/or Technical Data.
2. Each Consortium Member shall retain title to its Category A Data and no
rights in Category A Data shall be granted to the Government.
3. In the event a Consortium Member does not reduce to practical
application items, components, and processes developed under this Agreement
within five years after the conclusion of this Agreement, the Government shall
obtain the paid-up right to use, duplicate, or disclose Category B Data
specifically developed under this Agreement and described in the Statement of
Work attached hereto, in whole or in part, and in any manner, for Government
purposes only, but such rights do not include the right to use, duplicate or
disclose Source Code or prepare derivative works based upon any Code included
in such Category B Data. Any rights or license to the Government for Code
shall be for Object Code only. Government purposes includes competitive
procurement and does not include the right to have or permit others to use,
duplicate or
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disclose Category B Data for commercial or non-federal purposes. Execution of
the Commercialization Plan within five (5) years after completion of this
Agreement will be deemed as effective steps to achieving practical application
of items, components, and processes developed in the Performance of this
Agreement.
4. Two years after the conclusion of this Agreement, the Government shall
obtain the paid-up right to use, duplicate, or disclose Category C Data
specifically developed under this Agreement and described in the Statement of
Work attached hereto, in whole or in part, and in any manner, for Government
purposes only, but such rights do not include the right to use, duplicate or
disclose Source Code or prepare derivative works based upon any Code included
in such Category C Data. Any rights or license to the Government for Code
shall be for Object Code only. Government purposes include competitive
procurement and does not include the right to have or permit others to use,
duplicate or disclose Category C Data for commercial or non-federal purposes.
5. Each Consortium Member will prepare a list of Category A and B Data (as
practicable) for incorporation into this Agreement for the first year within a
reasonable period following the date of this Agreement and subsequent years, as
part of the annual planning process. Following mutual agreement of the Parties
on the Category A and B Data, the grants officer will incorporate this list by
written modification.
D. Each Consortium Member reserves the right to protect by copyright original
works developed under this Agreement. Each Consortium Member(s) hereby grants
license rights to the Government in such copyrighted materials of the same
scope as the rights set forth in Paragraphs C.3 and C.4 above. Both Parties
understand and agree that the license rights granted to the Government in this
Section in the case of Code is to the Object Code forms of computer programs
only.
E. Any Data delivered under this Agreement shall be marked with the following
legend: "Use, duplication, or disclosure is subject to the restrictions as
stated in Cooperative Agreement F30602-95-2-0006 between Rome Lab and the
Object Technology for Rapid Software Development Consortium."
F. Technical Data Exclusion:
1. No deliverables are identified in a Statement of Work dated 3 Apr 1995
and in the event the Statement of Work is subsequently modified to include
deliverables such deliverables shall be provided with data rights in accordance
with this Article as described below.
2. The following will not be required for delivery or disclosure under
this Agreement, or as a result of any modification thereto, regardless of the
point in time at which the development occurs. These limitations are based
upon the fact that the items described below have been identified as "Developed
Exclusively at Private Expense" as defined by DoD FAR Supplement 252.227-7013
(a)(12) or subject to a patent to which the Government will not have a
license.
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a. Consortium Member's design and development information,
manufacturing, test processes, techniques and associated support tools for
Object Oriented Programming including all Code, Computer Software
Documentation, specifications, design concepts, test results and the like.
b. Any Consortium Member's intellectual property or deliverables which
are not specifically identified in the Statement of Work to this Agreement.
G. Except as specifically granted in this Agreement, the Government shall have
no other license in Data by implication, estoppel or otherwise.
Article 23. Foreign Access to Technology
This article shall remain in effect during the term of the agreement and for
five (5) years thereafter.
A. Definitions
"Foreign firm or institution" means a firm or institution organized or
existing under the laws of a country other than the United States, its
territories, or possessions or Canada. The term includes, for purposes of this
agreement, any agency or instrumentality of a foreign government, and firms,
institutions or business organizations which are owned or substantially
controlled by foreign governments, firms, institutions, or individuals.
"Know-how" means all information including, but not limited to
discoveries, formulas, materials, inventions, processes, ideas, approaches,
concepts, techniques, methods, software, programs, documentation, procedures,
firmware, hardware, technical data, specifications, devices, apparatus and
machines.
"Technology" means discoveries, innovations, know-how and inventions,
whether patentable or not, including computer software, recognized under U.S.
law as intellectual creations to which rights of ownership accrue, including,
but not limited to, patents, trade secrets, mask works, and copyrights
developed under this agreement.
B. General. The parties agree that research findings and technology
developments under the attached Statement of Work may constitute a significant
enhancement to the national defense, and to the economic vitality of the United
States. Accordingly, access to important technology developments under this
agreement by foreign firms or institutions must be carefully controlled. The
controls contemplated in this article are in addition to, and are not intended
to change or supersede, the provisions of the International Traffic in Arms
Regulation (22 CFR pt. 121 et seq.), the DOD Industrial Security Regulation
(DOD 5220.22-R) and the Department of Commerce Export Regulation
(15 CFR pt. 770 et. seq.)
C. Restrictions on Sale or Transfer of Technology to Foreign Firms or
Institutions.
1) In order to promote the national security interests of the United
States and to effectuate the policies that underlie the regulations cited
above, the procedures stated in subparagraphs C.2, C.3, and C.4 below shall
apply to any transfer of Technology to
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Foreign Firms or Institutions. For purposes of this paragraph, a transfer
includes a sale of a company to a Foreign Firm or Institution and sales or
licensing of Technology to a Foreign Firm or Institution. As it relates to
sales of a company to a Foreign Firm or Institution, subparagraph C.5 below
will apply in lieu of the procedures stated in subparagraphs C.2, C.3 and C.4
Transfers do not include:
a. sales of products or components, or
b. licenses of software or documentation related to sales of
products or components, or
c. transfer to foreign subsidiaries of the Consortium
participants, or
d. transfer which provides access to Technology to a Foreign
Firm or Institution which is an approved source of supply or source for the
conduct of research under this Agreement provided that such transfer shall be
limited to that necessary to allow the firm or institution to perform its
approved role under this Agreement, or
e. non-exclusive licensing agreements, including, but not limited
to, non-exclusive patent licensing agreements, provided the agreements do not
include the transfer of any "know how", or
f. transfer of technology brought to the Consortium as In-Kind
contribution.
2. The consortium shall provide timely notice to the Government of any
proposed transfer from the consortium of technology developed with Government
funding under this agreement to foreign firms or institutions. If the
Government determines that the transfer may have adverse consequences to the
national security interests of the United States, the consortium, its vendors,
and the Government shall jointly endeavor to find alternatives to the proposed
transfer which obviate or mitigate potential adverse consequences of the
transfer but which provide substantially equivalent benefits to the consortium.
3. In any event, the consortium shall provide written notice to the
Government program manager of any proposed transfer to a foreign firm or
institution at least 60 calendar days prior to the proposed date of transfer.
Such notice shall cite this article and shall state specifically what is to be
transferred and the general terms of the transfer. Within thirty calendar days
of receipt of the consortium's written notification, the grants officer shall
advise the consortium whether it consents to the proposed transfer. In cases
where the Government does not concur or sixty calendar days after receipt and
the Government provides no decision, the consortium may utilize the procedures
under the article entitled "Disputes." No transfer shall take place until a
decision is rendered.
4. Except as provided in subparagraph C.1 above and in the event the
transfer of technology to foreign firms or institutions is approved by the
Government, the consortium shall negotiate a license with the Government to the
technology under terms that are reasonable under the circumstances prior to
such transfer.
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5) All Consortium Members, through the Consortium, shall file the
appropriate notifications to the Committee on Foreign Investment in the US
(CFIUS) under the Defense Production Act, and its implementing regulations 31
CFR Part 800 if there is a merger, acquisition or takeover of a Consortium
Member by a foreign interest (as defined under 31 CFR 800.209). CFIUS has
jurisdiction and CFIUS determination to allow or block a pending merger,
acquisition, or takeover of a Consortium Member shall be final. The consortium
will provide the Grants Officer a copy of such appropriate notifications made
to CFIUS.
D. Lower Tier Agreements. The consortium shall include this article, suitably
modified, to identify the parties, in all subcontracts or lower tier
agreements, regardless of tier, for experimental, development, or research
work.
PART VII. TECHNICAL AND FINANCIAL REPORTING
Article 24. Quarterly Reports
On or before ninety calendar days after the effective date of this agreement
and quarterly thereafter throughout the term of this agreement, the CMC shall
submit a quarterly report. Two copies shall be submitted or otherwise provided
to the Government program manager, and one copy shall be submitted to the
grants officer. The report will have two major sections:
A. Technical Status Report. The technical status report will detail technical
progress to date and report on all problems, technical issues or major
developments during the reporting period. The technical status report will
include a report on the status of consortium collaborative activities during
the period.
B. Business Status Report. The business status report shall provide summarized
details of the resource status of this agreement, including the status of the
contributions by all participants. This report will include a quarterly
accounting of current expenditures as outlined in the Annual Program Plan. Any
major deviations shall be explained with discussion of proposed actions to
address the deviations.
Article 25. Annual Program Plan
The CMC shall submit to the Government program manager one copy of the Annual
Program Plan described in the article entitled "Program Management Planning
Process." This plan shall be submitted not later than 30 calendar days
following the annual plan review as described in the article entitled "Program
Management Planning Process."
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Agreement No. F30602-95-2-0006
Article 26. Special Technical Reports
As agreed to by the consortium and the Government program manager, the CMC
shall submit to the Government program manager one copy of special reports on
significant events such as significant target accomplishments by the
consortium/consortium members, significant tests, experiments, or symposia.
Article 27. Final Report
A. Within 60 calendar days of completion or termination of this agreement, the
CMC shall submit a Final Report consisting of two parts, one addressing the
technical achievements and the second recapping the business/financial aspects
of the agreement. The technical portion of the report should be suitable for
publication and is to provide a recap of the program, discussing program
accomplishments. With the approval of the Government program manager, reprints
of published articles may be submitted or attached to the technical portion of
the Final Report. The business portion of the report shall contain a separate
discussion of total costs incurred, total costs contributed by each consortium
member with an explanation for any deviations from the original business plan.
The original and two copies shall be submitted to the Government program
manager.
B. The CMC shall xxxx the final report delivered with the following
distribution statement in accordance with MIL STD 1806:
"Distribution Statement A. Approved for public release: distribution is
unlimited"
PART VII. MISCELLANEOUS PERFORMANCE ISSUES
Article 28. Limitation of Liability
A. The consortium and consortium members agree to indemnify and hold harmless
and defend the government, its employees and agents, against any liability or
loss for any claim, including the cost of litigation, made by an employee or
agent of the recipient, or persons claiming through them, for death, injury,
loss or damage to their person or property arising in connection with the
agreement, except to the extent that such death, injury, loss or damage arises
solely from the negligence or willful misconduct of government employees.
B. The government shall not be liable to the consortium or consortium members
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
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Agreement No. F30602-95-2-0006
Federal Tort Claims Act (28 U.S.C. 2671 et seq.) or other Federal law where
sovereign immunity has been waived. The consortium and consortium members
shall indemnify the government against all such claims or proceedings and shall
hold the government harmless for any resulting liabilities and lawsuits
provided the recipient is reasonably notified of such claims and proceedings.
C. Claims for damages of any nature whatsoever pursued under this Agreement
shall be limited to direct damages only up to the aggregate amount of the
Government's funding disbursed as of the time the dispute arises. No claims
for consequential, punitive, special and incidental damages, claims for lost
profits, or other indirect damages shall be allowed. The Government agrees
that there is no joint and several liability within the Consortium. The
Consortium disclaims any liability for consequential, indirect, or special
damages, except when such damages are caused by willful misconduct of the
Consortium Management Committee personnel. In no event shall the liability of
a Consortium Member or any other entity performing research activities under
this Agreement exceed the funding it has received up to the time of incurring
such liability.
Article 29. Using Technical Information Resources
To the extent practical, the consortium will use the technical information
resources of the Defense Technical Information Center (DTIC) and other
Government or private facilities to investigate recent and on-going research
and avoid needless duplication of scientific and engineering effort.
Article 30. Procurement Standards
The consortium and consortium members will:
A. Follow basic principles of business intended to produce rational decisions
and fair treatment in all contracts entered into under this agreement.
B. Comply with federal statutes, executive orders, regulations, and other legal
requirements applicable to contracts entered into under this agreement.
PART IX. CERTIFICATIONS
Article 31. Certification
By signing the agreement or accepting funds under the agreement, the consortium
agrees that each consortium member is providing the:
A. Certification at Xxxxxxxx X, 00 XXX Part 25 regarding Drug-Free Workplace
Requirements.
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B. Certification at Appendix A, 32 CFR Part 25 regarding Debarment, Suspension,
and Other Responsibility Matters-Primary Covered Transactions.
C. Certification at Appendix A, 32 CFR Part 28 regarding Lobbying.
D. Assurance at 32 CFR Part 56.9(b) regarding Nondiscrimination on the Basis of
Handicap in Programs and Activities Assisted or Conducted by the Department of
Defense.
E. Assurance at 32 CFR 195.6 regarding Nondiscrimination in Federally Assisted
Programs of the Department of Defense-Effectuation of Title IV of the Civil
Rights Act of 1964.
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Page 1 of 1
Cooperative Agreement Under 10 U.S.C. 2371
between
The United States of America
U.S. Air Force, Air Force Materiel Command
Rome Laboratory/PKPF
00 Xxxxxxxxxx Xxx
Xxxx XX 00000-0000
with
Object Technology for Rapid Software Development Consortium
00000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Agreement No.: F30602-95-2-0006, Modification No. P00002
Authority: 10 U.S.C. 2511/2371
ARPA Order: C540
1. The purpose of this modification is as follows:
(a) Page 1 is revised by changing "Griffiss XXX XX 00000-0000" to "Rome
NY 13441-4514."
(b) Attachment No. 1, Statement of Work, dated 3 April 1995 is hereby
deleted in its entirety, and the revised Statement of Work, dated 20 November
1995 is substituted in lieu thereof.
(c) Attachment No. 2, Schedule of Milestones, dated 3 April 1995 is hereby
deleted in its entirety, and the revised Schedule of Milestones, dated 20
November 1995 is substituted in lieu thereof.
2. There is no monetary change to the subject agreement as a result of this
modification.
For: Object Technology for Rapid For: The United States of America
Software Development Consortium Rome Laboratory
Xxxxxx X. Xxx Xxxxx Xxxxxxxx 2/28/96
--------------------------------- ----------------------------
Signature Date Signature Effective Date
XXXXX XXXXXXXX
Grants Officer
--------------------------------- ----------------------------
Name, Title Name, Grants Officer
