Cooperative Research and Development Agreement Among The National Institute of Standards and Technology, The University of Maryland, College Park, MD, and [Corporation]

Article 1. INTRODUCTION

This Cooperative Research and Development Agreement (CRADA), effective upon the date executed by the last party to sign (“Effective Date”), is entered into by and between the National Institute of Standards and Technology (hereinafter referred to as “NIST”), the University of Maryland (hereinafter referred to as “UM”), a public agency and instrumentality of the State of Maryland, located in College Park, Maryland, and the Collaborator, a corporation organized under the laws of the State of _____________________and having a principal location of ________________________. 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 Research Plan which is attached as 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 any Party conceived of outside this CRADA.

2.2 "Cooperative Research and Development Agreement" or "CRADA" means this Agreement, entered into by NIST pursuant to 15 U.S.C. section 3710a.

2.3 "CRADA Data" means all recorded information first produced in the performance of this Agreement.

2.4 "CRADA Invention" means any invention conceived under this CRADA.

2.5 "Invention" means any invention or discovery which is or may be patentable or otherwise protectable 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. 2321 et seq.).

2.6 "Principal Investigator" or "PI" means the person designated respectively by each Party to this CRADA to be responsible for the scientific and technical conduct of that Party in the performance of research under this CRADA.

2.7 "Project Team" means all personnel assigned to conduct the research designated in this Agreement.

2.8 "Proprietary Information" means confidential scientific, business, or financial information, which may embody trade secrets, whether in written, oral, graphic, electronic or physical form, including but not limited to scientific knowledge, know-how, processes, inventions, techniques, formulae, products, data, plans and software, which is not generally known to the public, developed exclusively at private expense, clearly identified as Proprietary Information, and provided by one Party (the “Disclosing Party”) to another party or the other parties (the “Receiving Party”) under this CRADA, except if such information:

2.8.1 was in the Receiving Party’s possession before receipt from the Disclosing Party; or

2.8.2 is or becomes a matter of public knowledge through no fault of the Receiving Party; or

2.8.3 is received by the Receiving Party from a third party without a duty of confidentiality; or

2.8.4 is disclosed by the Disclosing Party to a third party without a duty of confidentiality on the third party; or

2.8.5 is independently disclosed by the Receiving Party with the Disclosing Party’s prior written approval; or

2.8.6 is independently developed by the Receiving Party without reference to information disclosed hereunder.

2.9 "Research Products" means equipment and other tangible materials, excluding CRADA Data, CRADA Inventions, and copyrightable works, that are first produced in the performance of this CRADA.

Article 3. RESEARCH PLAN

3.1 Research Plan and Changes. The description, duration and objectives of the research to be conducted under this CRADA are detailed in the Research Plan, attached and incorporated as part of this CRADA at Appendix A. The research under this CRADA shall be performed on a reasonable efforts basis.

3.2 Reviews and Reports. Periodic conferences shall be held by NIST, UM, and the Collaborator to review progress under the Research Plan. Parties shall exchange formal written interim progress reports and final reports pursuant to the schedule set forth in Appendix A.

3.3 Principal Investigators. The NIST PI is responsible for the scientific and technical conduct of this project on behalf of NIST. The UM PI is responsible for the scientific and technical conduct of this project on behalf of UM. The Collaborator PI is responsible for the scientific and technical conduct of this project on behalf of the Collaborator.

3.4 Project Team. While at NIST the Project Team shall pursue its activities according to the work schedule and under the Government security and conduct regulations that apply to NIST 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 another Party’s laboratory will be subject to the acceptance by that other Party, which acceptance shall not be unreasonably withheld, and shall pursue their activities in accordance with the work place and safety policies and regulations of that other Party.

3.5 Collaborator Status and Changes. Collaborator certifies the correctness of the information contained in Appendix A. Collaborator agrees to notify NIST and UM within thirty (30) 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.

3.6 Coordinator. _____________shall serve as the coordinator of the work conducted under this CRADA.

Article 4. FINANCIAL OBLIGATIONS

4.1 NIST, UM, and Collaborator Contributions. Each Party's contributions to the CRADA are 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 members of the Project Team. NIST may not contribute funds to a non-Federal collaborator.

4.2 Unused and Uncommitted Funds. UM and NIST agree to return unused and uncommitted financial contributions UM and/or NIST received from Collaborator that exist upon the expiration or termination of this Agreement. Collaborator acknowledges that NIST and UM may retain and expend such funds for up to one (1) year subsequent to the expiration or termination of the CRADA to cover any costs incurred and committed in connection with this CRADA before its expiration or termination.

Article 5. TITLE TO EQUIPMENT

5.1 Equipment. Equipment purchased by NIST with funds provided under this CRADA by the Collaborator shall be the property of NIST. Equipment purchased by UM with funds provided under this CRADA by the Collaborator shall be the property of UM. A Party may loan equipment to another Party pursuant to a written agreement which, among other terms mutually agreed to by the Parties, provides that: (a) the loaned equipment shall remain the property of the loaning Party unless the Parties agree in writing on some other disposition; (b) the loaned equipment will be returned to the loaning Party at its expense and risk as soon as practical after the expiration or termination of the Agreement, and (c) when Collaborator is the recipient of loaned equipment, Collaborator shall be responsible for maintaining the equipment during the loan period and all costs associated therewith.

Article 6. TREATMENT OF PROPRIETARY INFORMATION

6.1 Protection. All Parties agree to limit their disclosure of Proprietary Information to one another to the amount necessary to carry out the Research Plan of this CRADA. A Disclosing Party shall place a Proprietary Information notice on all information it asserts is proprietary and delivers to another Party. Receiving Parties agree to use Proprietary Information only for the purposes described in the attached Research Plan. Except where NIST or UM is legally obligated to release information pursuant to the Freedom of Information Act (5 U.S.C. 552), the Maryland Access to Public Records Act (Md. Ann. Code St. Gov. Art. §10-611 et seq.), or other requirement of law, a Receiving Party shall not disclose or otherwise make Proprietary Information available in any form to any other person, firm, corporation, partnership, association or other entity without the written consent of the Disclosing Party. Receiving Parties agree to use their best efforts to maintain the confidentiality of Proprietary Information. A Receiving Party will promptly notify the Disclosing Party of requests the Receiving Party receives to disclose Proprietary Information of another Party. No Party will be liable for the disclosure of information designated as Proprietary which, after notice to and consultation with the Disclosing Party, the Receiving Party determines may not lawfully be withheld or which a court of competent jurisdiction requires to be disclosed. A receiving Party will return Proprietary Information to the Disclosing Party upon written request.

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 of Collaborator, UM, or any licensee of the Parties 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. In addition to ensuring compliance with any of its own internal policies regarding intellectual property, each Party shall ensure that its Project Team members (a) promptly report any CRADA Inventions they conceive during this CRADA and (b) sign any documents necessary or desirable for the filing and prosecution of patent applications. If any Project Team member is not one of the Parties’ employees, the Party responsible for that Project Team member shall require that member to agree in writing to assist the Parties in fulfilling all of patent responsibilities under this CRADA. Each Party shall promptly report in writing to the other Parties each CRADA Invention disclosed to it. Such reports shall be maintained as Proprietary Information by the receiving Parties until such time as a patent or other intellectual property application claiming that CRADA Invention has been filed or the intellectual property has been released into the public domain.

7.4 Treatment of CRADA Data

7.4.1 Ownership of Original Copies of CRADA Data. NIST, UM, and the Collaborator agree to exchange all CRADA Data their Project Team members develop in the performance of work under the Research Plan. Subject to this sharing requirement, the creating Party will retain the original copy of all CRADA Data created solely by its Project Team members. NIST shall retain the original copy of all CRADA Data created jointly by Project Team members of more than one Party and shall supply UM and Collaborator with a copy of jointly created CRADA Data. UM and Collaborator shall have access to the original copy of CRADA Data, upon request to NIST. NIST, UM, and Collaborator shall each have the right to use CRADA Data consistent with their obligations under this Agreement.

7.4.2 Ownership of Copyrights of CRADA Data. UM and Collaborator may elect to register copyright in copyrightable CRADA Data and copyrightable works developed solely or jointly by their Project Team members. When UM or Collaborator register copyright or elect to exercise their copyright in copyrightable CRADA Data and works (rather than release them into the public domain), UM or Collaborator shall affix the applicable copyright notice of 17 U.S.C. §§ 401, 402, or 403 and an acknowledgment of the scientific and technical contributions of the other Parties, as appropriate, to the work. UM and the Collaborator grant 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 copyrightable CRADA Data and works by or on behalf of the Government solely for Government purposes. Copyrightable CRADA Data and works prepared solely by NIST employees or jointly by NIST employees and another Party’s Project Team members are not copyrightable in the United States pursuant to section 105 of title 17 of the United States Code, but may be copyrighted outside of the United States.

7.5 Ownership of Research Products. NIST, UM, 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 Article 6 and Sections 7.3 and 7.7, the Parties are encouraged to make publicly available the results of their research. Before one Party submits a paper or abstract for publication or otherwise discloses information about a CRADA Invention, CRADA Data, or Research Products, the other Parties shall be provided thirty (30) days to review the proposed publication or disclosure solely for the inclusion of proprietary or patentable information. Any party that identifies such information in the proposed publication may request its deletion or a delay in publication not to exceed sixty (60) days in order to take appropriate action to protect such information.

7.6.1 NIST employees shall submit all material they author, in whole or in part, for NIST management review.

7.6.2 NIST 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 NIST, UM 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 NIST or UM of any Collaborator products or services."

7.7 Patenting and Ownership of CRADA Inventions

7.7.1 Joint CRADA Inventions. Joint CRADA Inventions shall be jointly owned by the employing Parties of the inventors. The joint owners of a Joint CRADA Invention may but are not obligated to file U.S. Patent Applications on such Joint CRADA Inventions. If the Parties who own a Joint CRADA Invention mutually agree to file U.S. Patent Applications, they shall agree between or among themselves which owning Party shall be responsible for filing the application in a timely manner. If only one of the joint owners wants to file for patent protection, that joint owner may file a U.S. Patent Application on the Joint CRADA Invention at its sole expense. Each non-filing owning Party shall retain an associate power of attorney on patent applications of a Joint CRADA Invention. In all instances, the non-filing Party shall reasonably cooperate and assist the filing Party in perfecting the patent application, and the Filing Party shall have the right to control the prosecution of the U.S. Patent Application. If the owning Parties do not file a U.S. Patent Application, either jointly or singly, on a Joint CRADA Invention within six (6) months after disclosure of the Joint CRADA Invention to the non-inventing Party, the non-inventing Party may file a U.S. Patent Application on such Joint CRADA Invention. The owning Parties of a Joint CRADA Invention will grant the non-owning Party and will retain for themselves a research license to Joint CRADA Inventions with a right to grant nonexclusive research licenses to third parties. This research license shall not include any rights to make, sell or use Joint CRADA Inventions for commercial purposes or in lieu of purchase as a commercial product.

7.7.2 Sole CRADA Inventions. Each Party shall retain title to any CRADA Invention conceived of solely by its employees or Project Team members. The owning Party of a Sole CRADA Invention may but is not obligated to file a U.S. or foreign Patent Application covering the Sole CRADA Invention. If the owning Party elects to file a patent application, it shall do so only after consultation with the other Parties. The owning Party of a Sole CRADA Invention grants the other Parties and shall retain for itself a research license to its Sole CRADA Inventions with a right to grant nonexclusive research license to third parties. This research license shall not include any rights to make, sell or use such Sole CRADA Inventions for commercial purposes or in lieu of purchase as a commercial product.

7.7.3 Patent Expenses and Prosecution. Except as provided for in section 8.2 and 8.5, all of the expenses attendant to the filing, defense and maintenance of patent applications, including but not limited to attorneys fees and patent fees, shall be borne by the owner of a Sole CRADA Invention or jointly by the joint owners of a Joint CRADA Invention. A filing Party shall promptly provide the other Parties with copies of Provisional Applications filed, Patent Applications filed and Office Actions bearing upon any Sole or Joint CRADA Invention.

7.7.4 Foreign Filings of CRADA Inventions The Parties will consult with each other as to the advisability of filing for patent protection outside the United States.

Article 8. LICENSING

8.1 Government’s Minimum Rights

8.1.1 NIST Sole CRADA Inventions and Joint NIST CRADA Inventions. Pursuant to the Federal Technology Transfer Act of 1986, as amended (15 U.S.C. 3710a (b)), NIST, on behalf of the United States Government, shall retain a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced NIST Sole CRADA Inventions, Joint NIST CRADA Inventions, and Joint UM-Collaborator CRADA Inventions throughout the world for research or other Government purposes by or on behalf of the Government.

8.1.2 UM or Collaborator Sole CRADA Inventions. Pursuant to the Federal Technology Transfer Act of 1986, as amended (15 U.S.C. 3710a (b)), NIST, on behalf of the United States Government, shall normally retain a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced UM or Collaborator Sole CRADA Inventions throughout the world for research or other Government purposes by or on behalf of the Government.

8.2 Sole NIST CRADA Inventions and Joint NIST CRADA Inventions. NIST, on behalf of the Government, hereby agrees to grant the Collaborator an option to negotiate an exclusive or nonexclusive commercialization license to patents or patent applications on Sole NIST CRADA Inventions and to NIST's interest in patents or patent applications on Joint NIST CRADA Inventions. The exclusive or nonexclusive license shall be limited to fields of use defined by the subject matter of the Research Plan found in Appendix A of this CRADA. The license will (a) specify the scope of the license by fields of use, geographic territory, and/or markets; the duration of the license and royalties and other payments; (b) require that products manufactured for sale or use in the United States under the license will be manufactured substantially in the United States, in accordance with Article 7.1 of this CRADA; (c) with respect to any exclusive license granted to Collaborator, require Collaborator to pay all costs, including but not limited to patent and attorneys’ fees, incurred in connection with the filing, defense and maintenance of any patent or patent application on a Sole NIST CRADA Invention or to NIST’s interest in patents or patent applications on Joint NIST CRADA Inventions; (d) reserve a patent license in favor of the United States Government, in accordance with Article 8.1, and (e) reserve for each Party a research license, in accordance with Article 7.7.1 and 7.7.2. 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 Research Plan for inventions with reasonably similar commercial potential. The royalty rates will also reflect the relative inventive contributions of the Parties to a Joint NIST CRADA Invention.

8.3 Exercise of License Option to Sole NIST CRADA Inventions. The option to negotiate a license to Sole NIST CRADA Inventions, under Article 8.2, must be exercised by written notice mailed within one (1) month after Collaborator’s receipt from NIST of the First Ex parte Action on the Merits by the U.S. Patent and Trademark Office (“PTO”). The “First Ex parte Action on the Merits” is defined as that action that clearly establishes the issues which exist between the examiner and the patent owner insofar as the patent is concerned. An action that contains only a restriction requirement does not constitute a “First Ex parte Action on the Merits.” Exercise of this option by the Collaborator initiates a negotiation period that expires six (6) months after Collaborator’s receipt from NIST of the First Ex parte Action on the Merits by the PTO. If the last proposal by the Collaborator has not been responded to in writing by NIST within this six (6) month period, the negotiation period shall be extended to expire one (1) month after the date on which Collaborator receives NIST’s response. If no license is executed during the negotiation period or if the option(s) exercised is for a nonexclusive license, NIST shall offer UM an opportunity to negotiate an exclusive or nonexclusive commercialization license to patents or patent applications on Sole NIST CRADA Inventions under the conditions set forth above in this section. If no license is executed during the negotiation period or if the option UM exercises is for a nonexclusive license, NIST shall be free to license Sole NIST CRADA Inventions to others.

8.4 Exercise of License Option to Joint NIST CRADA Inventions. The option to negotiate a license to NIST’s interest in patents or patent applications on Joint NIST CRADA Inventions, set forth in Article 8.2, must be exercised by written notice mailed within one (1) month after the date Collaborator receives notice that that a patent will be allowed on the Joint NIST CRADA Invention by the PTO. Exercise of this option by the Collaborator initiates a negotiation period that expires in six (6) months from the date Collaboration receives notice of the PTO’s decision. If the last proposal by the Collaborator has not been responded to in writing by NIST within this six (6) month period, the negotiation period shall be extended to expire one (1) month after the date on which Collaborator receives NIST’s response. If no license is executed during the negotiation period or if the option(s) exercised is for a nonexclusive license, NIST shall offer UM an opportunity to negotiate an exclusive or nonexclusive commercialization license to NIST’s interest in patents or patent applications on Joint NIST CRADA Inventions under the conditions set forth in this section. If no license is executed with UM during the negotiation period or if the option UM exercises is for a nonexclusive license, NIST shall be free to license its interest in patent or patent applications on Joint NIST CRADA Inventions to others.

8.5 Sole UM CRADA Inventions and Joint UM CRADA Inventions. With respect to Sole UM CRADA Inventions and UM’s interest in Joint UM CRADA Inventions, UM agrees to grant Collaborator a first right to negotiate an exclusive royalty bearing license, including the right to grant sublicenses. Collaborator shall notify UM of its decision to negotiate an exclusive license within thirty (30) days after Collaborator receives UM’s request for Collaborator’s decision. The license will (a) be limited to fields of use defined by the subject matter of the Research Plan, found in Appendix A; (b) specify a geographic and/or market field; (c) require that products manufactured for sale or use in the United States under the license will be manufactured substantially in the United States, in accordance with Article 7.1 of this CRADA; (d) require Collaborator to pay all costs, including but not limited to patent and attorneys’ fees, incurred in connection with the filing, defense and maintenance of any patent covered by an exclusive license granted in a Sole UM CRADA Invention or to UM’s interest in patents or patent applications on Joint UM CRADA Inventions to Collaborator; (e) reserve a patent license in favor of the United States government, in accordance with Article 8.1; (f) reserve for each Party a research license, in accordance with Sections 7.7.1 and 7.7.2, and (g) specify royalty rates based on product sales, the rates conventionally granted in the field identified in the SoW for inventions with reasonably similar commercial potential, and with respect to Joint UM-Collaborator Inventions, based on the relative inventive contributions of the Parties.

Exercise of this option by Collaborator initiates a negotiation period that expires in six (6) months from the date UM receives Collaborator’s notice of election to negotiate a license. If the last proposal by Collaborator has not been responded to in writing by UM within this six (6) month period, the negotiation period shall be extended to expire one (1) month after Collaborator receives UM’s response. If no license is executed during the negotiation period or if the option exercised is for a nonexclusive license, UM shall be free to license Sole UM CRADA Inventions or its interest in patent and patent applications on Joint UM CRADA Inventions to others.

Article 9. TERMINATION

9.1 Notices. NIST, UM, and the Collaborator each have the right to terminate this Agreement upon thirty (30) days written notice to the other Parties.

9.2 Termination After Change of Control. NIST 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.

Article 11. LIABILITY

11.1 Property. The U.S. Government shall not be responsible for damage to any property of UM or Collaborator provided to NIST or acquired by NIST pursuant to this Agreement. UM, the State of Maryland, and their officers, agents, and employees shall not be responsible for damage to any property of NIST or the Collaborator provided to UM or acquired by UM pursuant to this Agreement.

11.2 Indemnification

11.2.1 Conduct of Employees. The members of Collaborator's Project Team are not and shall not be deemed to be employees of NIST or UM. The Collaborator shall indemnify and hold harmless the U.S. Government and UM, the State of Maryland, and their respective officers, agents and employees 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 NIST, UM, or their employees. NIST'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. UM’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 should be governed by the Maryland Tort Claims Act.

11.2.2 Collaborator's Use of NIST and/or UM Research. The Collaborator shall indemnify and hold harmless the U.S. Government and UM, the State of Maryland, and their officers, agents, and employees for any loss, claim, damage, or liability of any kind arising out of the use of NIST's and/or UM’s research and technical developments by the Collaborator or any party acting on behalf of or with the authorization of Collaborator or arising out of any use, sale or other disposition of products based on or using or incorporating NIST's and/or UM’s technical developments by the Collaborator or others acting on its behalf or with its authorization.

11.3 Force Majeure. No 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 NIST or UM 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 Parties. 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 WARRANTY, EXPRESS OR IMPLIED, IN FACT OR ARISING BY OPERATION OF LAW, WRITTEN OR ORAL, 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, FITNESS FOR A PARTICULAR PURPOSE OR FREEDOM FROM INFRINGEMENT OF RIGHTS OF THIRD PARTIES 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 and the State of Maryland.

12.3 Entire Agreement. This Agreement, together with Appendix A, 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 one 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 one Party without the prior written consent of the other Parties.

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 NIST, the Department of Commerce or UM 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 NIST and UM do 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 by NIST or UM.

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 Research Plan are only good faith guidelines subject to adjustment by mutual agreement to fit circumstances as the Research Plan proceeds. In no case will the term of this CRADA extend beyond the term indicated in the Research Plan unless it is revised in accordance with Section 12.5.

12.11 Full Execution. The Collaborator acknowledges that this CRADA is not an offer to enter into a contract and cannot unilaterally be made binding. No contract exists until this CRADA is fully executed and signed by all parties, including the Collaborator, NIST Deputy Chief Counsel, NIST Laboratory Director, NIST Industrial Partnerships Program Chief, and the UM Director of the Office of Research Administration and Advancement.

12.12 Survivability. The provisions of Articles 4.2, 5.1, 6, 7, 8, 11, 12.2, 12.9, and 12.13 shall survive the termination of this CRADA.

12.13 Export of Technical Data. The Collaborator agrees to comply with United States Export Control Laws and Regulations, including but not limited to the International Traffic in Arms Regulations (22 C.F.R. Part 121 et seq.) and the Department of Commerce Export Regulations (15 C.F.R. part 770 et seq.). Throughout the term of this CRADA, the Collaborator agrees that no technical data created under this Agreement that is controlled by U.S. export laws and regulations shall be disclosed to any foreign national, foreign firm, or Foreign country, including foreign nationals employed by the Collaborator, unless the Collaborator first obtains the appropriate licenses or approvals, if necessary.

12.14 Classified Information. No Party will disclose information that is classified by the United States Government to another Party under this CRADA.

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as follows:

AGREED TO:

____________________________________ COLLABORATOR

By: ________________________________

By: ________________________________

___________________________________
Print name of signatory

___________________________________
Date

Mailing Address for Notices and Informational Copies:
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________

NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY

By _________________________________

__________________
[Print name of signatory]
NIST Deputy Chief Counsel

__________________
Date

Mailing Address for Notices and Informational Copies:

Attention: Dr. Bruce E. Mattson
National Institute of Standards and Technology
Building 820, Room 213
Gaithersburg, MD 20899

UNIVERSITY OF MARYLAND

By: ___________________________________
Erica Kropp
Director
Office of Research Administration and Advancement

__________________
Date

Mailing Address for Notices and Informational Copies:

Attn: Erica Kropp
Office of Research Administration and Advancement
Room 2100, Lee Building
University of Maryland
College Park, MD 20742

NIST requires the information listed below. The project title, eligibility, and company address information (items 1, 2, and 3 respectively) are for public disclosure. NIST considers the information in items 5, 7, 9, 11, and 12 proprietary.

Part I: Collaborator and UM Certifications

1. 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 NIST:

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 NIST 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 NIST 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.

2. Company Name and Address (city, state, zip code):

_______________________________________
________________________________________
________________________________________

3. Participation in NIST's Advanced Technology Program. NIST may enter into CRADAs with recipients of awards from the Advanced Technology Program ("ATP"). However, NIST will not accept contributions of ATP funds from ATP recipients under CRADAs. Collaborator and UM hereby state that:

PLEASE CHECK THE APPROPRIATE BOX

COLLABORATOR:

[ ] Collaborator is not a recipient of ATP funds.

[ ] Collaborator is a recipient of ATP funds, and the research to be conducted under this CRADA is part of the ATP project.

ATP Award No.____________________

Date of ATP Award:____________________

[ ] Collaborator is a recipient of ATP funds, and the research to be conducted under this CRADA is not a part of the ATP project.

UNIVERSITY OF MARYLAND:

[ ] UM is not a recipient of ATP funds.

[ ] UM is a recipient of ATP funds, and the research to be conducted under this CRADA is part of the ATP project.

ATP Award No.____________________

Date of ATP Award:____________________

[ ] UM is a recipient of ATP funds, and the research to be conducted under this CRADA is not a part of the ATP project.

4. Licensing of Background Inventions belonging to NIST. CRADA partners may apply for exclusive or nonexclusive licenses in Background Inventions belonging to NIST. Collaborator and UM hereby state that:

PLEASE CHECK THE APPROPRIATE BOX

COLLABORATOR:

[ ] Collaborator is not engaged in discussions with NIST concerning a NIST Background Invention that is related to the work done under this CRADA.

[ ] Collaborator is engaged in discussions with NIST concerning a NIST Background Invention that is related to the work done under this CRADA.

UNIVERSITY OF MARYLAND:

[ ] UM is not engaged in discussions with NIST concerning a NIST Background Invention that is related to the work done under this CRADA.

[ ] UM is engaged in discussions with NIST concerning a NIST Background Invention that is related to the work done under this CRADA.

Part II: Principal Investigators and Project Team Members

5. NIST's and/or UM’s Principal Investigator: (The NIST P.I. may change at NIST management’s sole discretion.)

Name __________________________________________________________________
Mail Address ____________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
Telephone Number: ______________________________________________________
Facsimile Number: _______________________________________________________
E-mail: _________________________________________________________________

6. Collaborator's Principal Investigator:

Name ___________________________________________________________________
Mail Address _____________________________________________________________
________________________________________________________________________
________________________________________________________________________
Telephone Number: _______________________________________________________
Facsimile Number: ________________________________________________________
E-mail: _________________________________________________________________

7. Collaborator's Project Team (please list):

Name	Title	Telephone
_____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

8. NIST and/or UM's Project Team (please list):

Name	Title	Telephone
_____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

Part III: Contributions of Parties

9. Collaborator agrees to contribute the following personnel, services, facilities, intellectual property, equipment, and/or funds to the Project:

10. NIST agrees to contribute the following personnel, services, facilities, intellectual property, and/or equipment to the Project:

11. UM Agrees to contribute the following personnel, services, facilities, intellectual property, and/or equipment to the Project:

Part V: The Research Plan

12. Collaboration Project Title. (Please provide a brief project title that NIST and UM may use for public disclosure and management reporting.):

13. Proposed Duration and starting date for the CRADA: __________________

14. The Research Plan (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.)

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APPENDIX B
EXCEPTIONS OR CHANGES TO THE CRADA