Revised: 4/11/00 Collaborator: _______________________________
COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENT (CRADA)
Article 1. INTRODUCTION
This Cooperative Research and Development Agreement (CRADA) between the National Oceanic and Atmospheric Administration (NOAA), on behalf of the National Weather Service (NWS), and the Collaborator will be effective when signed by all Parties. The research and development project(s) which will be undertaken by each of the Parties in the course of this CRADA is detailed in the Statement of Work (SoW) which is attached as part of Appendix A. Any exceptions or changes to the CRADA are set forth in Appendix B.
Article 2. DEFINITIONS
As used in this CRADA, the following terms
shall have the indicated meanings:
2.1 "Background Invention" means any
invention of either Party conceived outside of this CRADA.
2.2
"Cooperative Research and
Development Agreement" or "CRADA" means this Agreement, entered into by
NOAA/NWS, pursuant to 15 U.S.C. Section 3710a.
2.3 "Invention" means any invention or
discovery which is or may be patentable or otherwise protected under Title 35
(35 U.S.C.) or any novel variety of plant which is or may be protectable under
the Plant Variety Protection Act (7 U.S.C. 2321 et seq.).
2.4
"Principal Investigator"
or "PI" means the
person designated respectively by each Party to this CRADA who will be
responsible for the scientific and technical conduct of the research.
2.5 "Project Team"
means all personnel assigned by the Collaborator to conduct the
research designated in this Agreement.
2.6 "Proprietary Information" means
confidential scientific, business, or financial information, which may embody
trade secrets provided by the Collaborator to NOAA/NWS in the course of this
CRADA, and developed exclusively at private expense, except if such information:
2.6.1 was in NOAA/NWS's possession before
receipt from the Collaborator; or
2.6.2 is or becomes a matter of public
knowledge through no fault of NOAA/NWS; or
2.6.3 is received by NOAA/NWS
from a third party without a duty of confidentiality; or
2.6.4 is
disclosed by the Collaborator to a third party without a duty of confidentiality
on the third party; or
2.6.5 is independently disclosed by NOAA/NWS with
the Collaborator's prior written approval; or
2.6.6 is independently
developed by NOAA/NWS without reference to information disclosed hereunder.
2.7 "Research Products" means all tangible
materials, other than CRADA Data, first produced in the performance of this
CRADA.
2.8 "CRADA
Data" means all recorded information first produced in the performance
of this Agreement.
2.9 "CRADA Invention" means any invention
conceived or first actually reduced to practice under this CRADA.
Article 3. COOPERATIVE RESEARCH
3.1 Research Plan and
Changes. The Statement of Work (SoW) of this
CRADA, its duration, and its objectives are detailed in Appendix A. The research
under this CRADA shall be performed on a reasonable efforts basis. Collaborator
certifies the correctness of the information contained in Appendix A.
3.2 Reviews and Reports.
Periodic conferences shall be held
by NOAA/NWS and the Collaborator to review work progress. Parties shall exchange
formal written interim progress reports and final reports on a schedule as set
forth in Appendix A.
3.3 Principal
Investigators. NOAA/NWS shall be the supervising
Federal agency, both administratively and scientifically, for this CRADA. The
NOAA/NWS PI is responsible for the scientific and technical conduct of this
project on behalf of NOAA/NWS. The designated Collaborator PI is responsible for
the scientific and technical conduct of this project on behalf of the
Collaborator. The Collaborator shall designate the Project Team in Appendix A of
this Agreement.
3.4 Project Team. While
at NOAA/NWS, the Project Team shall pursue its activities according to the work
schedule and under the Government security and conduct regulations that apply to
NOAA/NWS employees. The project team shall conform to the Standards of Ethical
Conduct for Employees of the Executive Branch (Executive Order 12674 and 5
C.F.R. Part 2635), hereby made part of this Agreement, to the extent that these
standards prohibit private business activities or interests incompatible with
the best interest of the Department of Commerce. Individuals selected to work at
the other Party's laboratory will be subject to the acceptance by that Party.
Such acceptance shall not be unreasonably withheld.
3.5 Change
in Collaborator Status.
Collaborator agrees to notify NOAA/NWS within thirty days should it become
subject to the control of a foreign company or government at any time during
this Agreement, or if any other change occurs relevant to Appendix A.
Article 4. FINANCIAL OBLIGATIONS
4.1 NOAA/NWS and Collaborator Contributions. Each Party's contribution to the CRADA is listed in Appendix A. Payment schedules, if applicable, are also indicated in Appendix A. The Collaborator shall provide directly for travel and related expenditures for its Project Team. NOAA/NWS may not contribute funds to a non-Federal collaborator.
Article 5. TITLE TO EQUIPMENT
5.1 Equipment. Equipment purchased by NOAA/NWS with funds provided under this CRADA by the Collaborator shall be the property of NOAA/NWS. All equipment loaned under this CRADA by a Party remains the property of that Party unless the Parties agree in writing on some other disposition. Each Party's equipment will be returned to the lending Party at the lending Party's expense and risk as soon as practical after termination of the Agreement.
Article 6. TREATMENT OF PROPRIETARY INFORMATION
6.1 Protection. Each Party agrees to limit its disclosure of Proprietary Information to the other to the amount necessary to carry out the SoW of this CRADA. The Collaborator shall place a Proprietary Information notice on all information it delivers to NOAA/NWS under this Agreement, which the Collaborator asserts is proprietary. NOAA/NWS agrees that Proprietary Information shall be used only for the purposes described in the attached SoW. Except where NOAA/NWS is legally obligated to release information pursuant to the Freedom of Information Act (5 U.S.C. 552), or other requirement of law, Proprietary Information shall not be disclosed or otherwise made available in any form to any other person, firm, corporation, partnership, association or other entity without the written consent of the Collaborator. NOAA/NWS agrees to use its best efforts to maintain the confidentiality of Proprietary Information. NOAA/NWS will promptly notify the Collaborator of requests for Collaborator's Proprietary Information. The Collaborator agrees that NOAA/NWS is not liable for the disclosure of information designated as Proprietary which, after notice to and consultation with the Collaborator, NOAA/NWS determines may not lawfully be withheld or which a court of competent jurisdiction requires disclosed.
Article 7. INTELLECTUAL PROPERTY
7.1 Preference for U.S.
Manufacturing. The Parties agree that an important
purpose of the CRADA is to improve U.S. competitiveness so as to provide
substantial benefit to the U.S. economy. Thus, any product embodying CRADA
inventions, or produced through the use of such inventions, for sale or use in
the United States by the Collaborator or any affiliate, or licensee, shall be
manufactured substantially in the United States.
7.2 Rights
to Background Inventions. No
rights to Background Inventions are conveyed by this Agreement.
7.3
Reporting Inventions and Other
Responsibilities. Each Party shall promptly report in
writing to the other Party each CRADA Invention disclosed to it. Such reports
shall be maintained as Proprietary by the receiving Party until such time as a
patent or other intellectual property application claiming that CRADA Invention
has been filed. The Collaborator shall ensure that all Project Team members (a)
promptly report any CRADA Inventions they make to the Collaborator, and (b) sign
any documents necessary or desirable for the filing and prosecution of patent
applications. If any Project Team member is not the Collaborator's employee, the
Collaborator shall require the member to agree in writing to assist the
Collaborator in fulfilling all of its patent responsibilities under this CRADA.
7.4 Treatment of CRADA
Data.
7.4.1 Ownership of Original Copies of CRADA Data. NOAA/NWS and the Collaborator agree to exchange all CRADA Data. Subject to these sharing requirements, the creating Party will retain the original copy of all CRADA Data created solely by it. NOAA/NWS shall retain the original copy of all jointly created CRADA Data; NOAA/NWS shall supply Collaborator with a copy of the original copy of jointly created CRADA Data, and Collaborator shall have access to the original copy. NOAA/NWS and Collaborator shall each have the right to use all CRADA Data for their own purposes, consistent with their obligations under this Agreement. Pursuant to the Federal Technology Transfer Act (15 U.S.C. 3710a(c)), NOAA/NWS agrees that, for a period of five (5) years after development, it will not disseminate CRADA Data that would be a trade secret or commercial or financial information that is privileged or confidential if the information had been obtained from a non-Federal party participating in a CRADA.
7.4.2 Ownership of Copyrights of CRADA Data. Collaborator may elect to copyright works, or those identifiable portions of a joint work, developed solely by a Project Team member. When Collaborator obtains a copyright, Collaborator shall affix the applicable copyright notice of 17 U.S.C. §§ 401, 402, and 403, and an acknowledgment of the scientific and technical contributions of the National Oceanic and Atmospheric Administration. The Collaborator grants to the U.S. Government, a paid-up, non-exclusive, irrevocable world-wide license to reproduce or have reproduced, prepare or have prepared in derivative form, and distribute or
have distributed copies of CRADA Data for government purposes. CRADA Data prepared by NOAA/NWS employees, and CRADA Data prepared jointly by NOAA/NWS employees and the Project Team, are not subject to copyright in the United States pursuant to Section 105 of Title 17 of the United States Code. NOAA/NWS may, however, own copyright in such works outside of the United States.
7.5 Ownership of Research Products.
NOAA/NWS and the Collaborator
agree to exchange samples of all Research Products. Research Products will be
shared equally by the Parties. Subject to these sharing requirements, the
Research Products created under this CRADA are the jointly owned property of the
Parties. The Parties agree to make mutually acceptable arrangements for the
disposition of unique or hard-to-replace Research Products.
7.6
Publication and
Disclaimer. Except as provided in Sections 7.3
and 7.7, the Parties are encouraged to make publicly available the results of
their research. Before either Party submits a paper or abstract for publication
or otherwise intends to publicly disclose information about a CRADA Invention,
CRADA Data, or Research Products, the other Party shall be provided thirty (30)
days to review the proposed publication or disclosure. NOAA/NWS reports and
publications developed under this Agreement shall carry the following
disclaimer:
"This work was performed under a Cooperative Research and
Development Agreement (CRADA) between NOAA/NWS and Collaborator. Under the terms
of the CRADA, this document may not be used as advertising for any product or
service, nor may Collaborator imply to anyone that the CRADA or the research
results are an endorsement by NOAA/NWS of any Collaborator products or
services."
7.7 Patenting and Ownership of CRADA
Inventions.
7.7.1 Government's Minimum Rights.
7.7.1.1 NOAA/NWS Sole Inventions and Joint
Inventions. Pursuant to the Federal Technology
Transfer Act of 1986 as amended (15 U.S.C. 3710a (b)), NOAA/NWS, on behalf of
the United States Government, shall retain a nonexclusive, nontransferable,
irrevocable, paid-up license to practice or have practiced NOAA/NWS Sole CRADA
Inventions and Joint CRADA Inventions throughout the world by or on behalf of
the Government.
7.7.1.2 Collaborator Sole
Inventions. Pursuant to the Federal Technology
Transfer Act of 1986 as amended (15 U.S.C. 3710a (b)), NOAA/NWS, on behalf of
the United States Government, shall retain a nonexclusive, nontransferable,
irrevocable, paid-up license to practice or have practiced Collaborator Sole
CRADA Inventions throughout the world by or on behalf of the Government for
research or other Government purposes.
7.7.2 Joint
CRADA Inventions. Joint CRADA Inventions shall be
jointly owned. Collaborator shall be responsible for filing U.S. Patent
Applications for joint CRADA Inventions in a timely manner. If Collaborator does
not file a U.S. Patent Application on a joint CRADA Invention within six (6)
months after disclosure, NOAA/NWS may file a U.S. Patent Application on such
joint CRADA Invention. The non-filing Party shall reasonably cooperate and
assist the Filing Party in perfecting the patent application. The Filing Party
shall give the non-filing Party copies of any correspondence to and from the
U.S. Patent and Trademark Office.
7.7.3 CRADA
Inventions Solely Developed. Except
for Joint CRADA Inventions, each Party shall retain title to any CRADA Invention
of its employees or Project Team members. The Party retaining title to a CRADA
Invention may file a U.S. Patent Application, but has no duty to file a U.S. or
foreign patent application. Each Party grants the other Party a research license
to CRADA Inventions. This research license shall not include any rights to make,
sell or use such CRADA Inventions for commercial purposes or in lieu of purchase
as a commercial product.
7.7.4 Patent
Expenses and Prosecution. All of
the expenses attendant to the filing of patent applications shall be borne by
the Party filing such application. Each Party shall promptly provide the other
Party with copies of Provisional Applications filed, Patent Applications filed
and Office Actions bearing upon any CRADA Invention. Any post filing and post
patent fees shall also be borne by the same Party.
7.7.5 Foreign
Filings of CRADA Inventions. The
Parties will consult with each other as to the advisability of filing for patent
protection outside the U.S.
Article 8. LICENSING
8.1 Option
for a Commercialization License.
NOAA/NWS, on behalf of the Government, hereby agrees to grant to the
Collaborator: (1) an option to choose an exclusive commercialization license to
patents or patent applications on NOAA/NWS CRADA Inventions; and (2) an option
to choose an exclusive commercialization license to NOAA/NWS' interest in
patents or patent applications on joint CRADA Inventions. The exclusive or
nonexclusive license shall be limited to fields of use defined by the subject
matter of the SoW found in Appendix A. The license will specify the licensed
fields of use, geographic territory, markets, term and royalties, and will,
pursuant to Article 7.1 of this CRADA, contain a requirement that products
manufactured for sale or use in the United States under the license will be
manufactured substantially in the United States. Additional terms and conditions
shall be added to all licenses consistent with applicable statutes and
regulations. The royalty rates will be based on product sales and the rates
conventionally granted in the field identified in the SoW for inventions with
reasonably similar commercial potential. The royalty rates will also reflect the
relative contributions of the Parties to the invention. Licenses granted under
this Article are subject to the reservation of patent licenses in favor of the
United States Government required in Section 7.7.1 above.
8.2
Exercise of License Option to NOAA/NWS Sole
or Joint CRADA Inventions. The
option of Section 8.1 must be exercised by written notice mailed within six (6)
months from the filing date of the application. Exercise of this option by the
Collaborator initiates a negotiation period which expires in six (6) months. If
the last proposal by the Collaborator has not been responded to in writing by
NOAA/NWS within this six (6) month period, the negotiation period shall be
extended to expire one (1) month after NOAA/NWS responds. If no agreement is
concluded in this period or if Collaborator exercises its option for a
nonexclusive license, NOAA/NWS shall be free to license such CRADA Inventions to
others.
Article 9. TERMINATION
9.1 Notices. The Collaborator and NOAA/NWS each have the right to
terminate this Agreement upon 30 days notice in writing to the other party.
9.2 Termination After Change of Control.
NOAA/NWS may terminate this
Agreement immediately if direct or indirect control of the Collaborator is
transferred to a foreign company or government; or, if Collaborator is already
controlled by a foreign company or government, if that control is transferred to
another foreign company or government.
Article 10. DISPUTES
10.1 Settlement. Any
dispute arising under this Agreement which is not disposed of by agreement of
the Parties shall be submitted jointly to the signatories of this Agreement. A
joint decision of the signatories or their designees shall be the disposition of
such dispute. If the Parties cannot reach a joint decision, either Party may
terminate this Agreement immediately.
10.2 Continuation of
Work. Pending the resolution of any dispute
or claim pursuant to this Article, the Parties agree that performance of all
obligations shall be pursued diligently in accordance with the direction of the
NOAA/NWS signatory.
Article 11. LIABILITY
11.1 Property. The U.S. Government shall not be responsible for damage
to any property of the Collaborator provided to NOAA/NWS or acquired by NOAA/NWS
pursuant to this Agreement.
11.2 Indemnification.
11.2.1 Conduct
of Employees. Collaborator's Project Team assigned
to this SoW are not employees of NOAA/NWS. The Collaborator shall indemnify and
hold harmless the U.S. Government for any loss, claim, damage, or liability of
any kind to the Collaborator's Project Team arising in connection with this
Agreement, except to the extent that such loss, claim damage or liability arises
from the negligence of NOAA/NWS or its employees. NOAA/NWS's responsibility for
the payment of claims for the loss of property, personal injury or death, or
otherwise arising out of any negligent act or omission of its employees in
connection with the performance of work under this Agreement shall be governed
by the Federal Tort Claims Act.
11.2.2 Collaborator's Use of NOAA/NWS
Research. The Collaborator shall indemnify and
hold harmless the U.S. Government for any loss, claim, damage, or liability of
any kind arising out of the use by the Collaborator, or any Party acting on its
behalf or under its authorization, of NOAA/NWS's research and technical
developments or out of any use, sale or other disposition by the Collaborator or
others acting on its behalf or with its authorization, of products made by the
use of NOAA/NWS's technical developments.
11.3 Force
Majeure. Neither Party shall be liable for any
unforeseeable event beyond its reasonable control not caused by the fault or
negligence of such Party, which causes such Party to be unable to perform its
obligations under this Agreement (and which it has been unable to overcome by
the exercise of due diligence), including, but not limited to, flood, drought,
earthquake, storm, fire, pestilence, lightning and other natural catastrophes,
epidemic, war, riot, civic disturbance or disobedience, strikes, labor dispute,
or failure, threat of failure, or sabotage of the NOAA/NWS facilities, or any
order or injunction made by a court or public agency. In the event of the
occurrence of such a force majeure event, the Party unable to perform shall
promptly notify the other Party. It shall further use its best efforts to resume
performance as quickly as possible and shall suspend performance only for such
period of time as is necessary as a result of the force majeure event.
11.4 NO WARRANTY. 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
OWNERSHIP, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE RESEARCH
OR ANY INVENTION OR PRODUCT.
Article 12. MISCELLANEOUS
12.1 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.
12.2 Governing Law. The
construction validity, performance and effect of this Agreement for all purposes
shall be governed by the laws of the United States.
12.3 Entire
Agreement. This Agreement constitutes the entire
agreement between the Parties concerning the subject matter hereof and
supersedes any prior understanding or written or oral agreement relative to said
matter.
12.4
Headings. Titles
and headings of the Sections and Subsections of this Agreement are for the
convenience of references only and do not form a part of this Agreement and
shall in no way affect the interpretation thereof.
12.5 Amendments. If
either Party desires a modification in this Agreement, the Parties shall, upon
reasonable notice of the proposed modification by the Party desiring the change,
confer in good faith to determine the desirability of such modification. Such
modification shall not be effective until a written amendment is signed by all
the Parties hereto by their representatives duly authorized to execute such
amendment.
12.6 Assignment. Neither
this Agreement nor any rights or obligations of any Party hereunder shall be
assigned or otherwise transferred by either Party without the prior written
consent of the other Party except that the Collaborator may assign this
Agreement to the successors or assignees of a substantial portion of the
Collaborator's business interest to which this Agreement directly pertains.
12.7 Notices. All
notices pertaining to or required by this Agreement shall be in writing and
shall be directed to the signatories.
12.8 Independent
Contractors. The relationship of the Parties to
this Agreement is that of independent contractors and not as agents of each
other or as joint venturers or partners. Each Party shall maintain sole and
exclusive control over its personnel and operations.
12.9 The Use
of Name or Endorsements.
Collaborator shall not use the name of NOAA/NWS or the Department of Commerce on
any advertisement, product or service which is directly or indirectly related to
either this Agreement or any patent license or assignment agreement which
implements this Agreement. By entering into this Agreement NOAA/NWS 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.
12.10 Duration of the
Agreement. It is mutually recognized that the
duration of this project cannot be rigidly defined in advance, and that the
contemplated time periods for various phases of the SoW are only good faith
guidelines subject to adjustment by mutual agreement to fit circumstances as the
SoW proceeds. In no case will the term of this CRADA extend beyond the term
indicated in the SoW unless it is revised in accordance with Section 12.5.
12.11 Survivability. The provisions of Articles 6, 7, 8, 11, and 12.9 shall survive the termination of this CRADA.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date of the last signature written below. Annex A and B appended to this Agreement are rendered an integral part of this Agreement upon signature of the Agreement by the parties.
National Oceanic and Atmospheric
Administration (NOAA),
National Weather Service
(Name of Collaborator)
By: By:
Print Name: John Kelly Print Name:
Title: Assistant Administrator Title:
Address: Address:
Date: Date:
Concurrence by the Senior Counselor/NOAA Office of the General Counsel:
_____________________________________________________________
Mailing Address for Notices:
Attention: (Fill in contact person and related information, as appropriate)
________________________________________________________________________________________
Appendix A
The Research Plan
NOAA/NWS
requires the information listed below. The project title, eligibility, and
company address information (Items 1, 2, and 3 respectively) are for public
disclosure. NOAA/NWS considers the information in Items 5, 7, 9, 11, and 12
proprietary.
1. Collaboration Project Title. (Please
provide a brief project title that NOAA/NWS may use for public disclosure and
management reporting.):
2. Collaborator Eligibility. In order to
assure compliance with Section 2 of the Federal Technology Transfer Act of 1986
(15 U.S.C. §3710a), the Collaborator must provide the following information to
NOAA/NWS:
PLEASE CHECK THE APPROPRIATE BOX
[ ]
Collaborator certifies that it is not subject to the control of any foreign
company or government, and agrees to notify NOAA/NWS within thirty days should
it become subject to the control of a foreign company or government at any time
during this Agreement; or
[ ] Collaborator acknowledges that it is
subject to the control of the following foreign company or government (if a
company, please specify nationality):
_______________________________________ Company Name, Country/Government
Collaborator certifies to NOAA/NWS that it is incorporated under the
laws of one of the states or territories of the United States; and that it has a
manufacturing presence in the United States; and that the foreign government
listed above permits United States agencies, organizations, or other persons to
enter into cooperative agreements and licensing agreements.
3.
Company Name and Address (city,
state, zip code):
________________________________________
________________________________________
________________________________________
4. Licensing of Background Inventions belonging to NOAA. CRADA partners may apply for exclusive or nonexclusive licenses in Background Inventions belonging to NOAA/NWS. Collaborator hereby states that:
PLEASE CHECK THE APPROPRIATE BOX
[ ]
Collaborator is not engaged in discussions with NOAA/NWS concerning a NOAA/NWS
Background Invention that is related to the work done under this CRADA.
[ ] Collaborator is engaged in discussions with NOAA/NWS concerning a
NOAA/NWS Background Invention that is related to the work done under this CRADA.
5. NOAA/NWS's Principal
Investigator (please provide name, mail address, and telephone number):
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
6. Collaborator's Principal Investigator (please
provide name, mail address, and telephone number):
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
7. Proposed Duration and Starting Date for the
CRADA: ______________________________
8. Collaborator Personnel, Services, Facilities,
Intellectual Property, Equipment, and/or Funds Contributions are Listed as
Follows:
9.
NOAA/NWS Personnel, Services, Facilities, Intellectual Property, and/or Equipment
Contributions are Listed as Follows:
10. Collaborator's Project Team (please list):
Name/Telephone
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
11. The Statement of Work (SoW):
(Please describe the research project. The description should:
1) state the project's objectives, and 2) detail the research approach
sufficiently to permit your management chain to review the proposed
collaboration. A brief description of one page is usually sufficient.)
________________________________________________________________________________________
Appendix B
Exceptions or Changes to the CRADA
(Changes to CRADA will be placed here)
________________________________________________________________________________________