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Cooperative Research and Development Agreement Between ICANN and US Department of Commerce


Cooperative Research & Development Agreement

Article 1. INTRODUCTION

This Cooperative Research and Development Agreement (CRADA) between the United States Department of Commerce (Commerce), as represented by the National Institute of Standards and Technology (NIST) and the National Telecommunications and Information Administration (NTIA), and the Internet Corporation for Assigned Names and Numbers (Collaborator) will be effective when signed by Commerce and Collaborator (the 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.

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 outside of this CRADA.

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

2.3 "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.

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

2.5 "Proprietary Information" means confidential scientific, business, or financial information, which may embody trade secrets provided by the Collaborator to Commerce in the course of this CRADA, and developed exclusively at private expense, except if such information:

2.5.1 was in Commerce's possession before receipt from the Collaborator; or

2.5.2 is or becomes a matter of public knowledge through no fault of Commerce; or

2.5.3 is received by Commerce from a third party without a duty of confidentiality; or

2.5.4 is disclosed by the Collaborator to a third party without a duty of confidentiality on the third party; or

2.5.5 is independently disclosed by Commerce with the Collaborator's prior written approval; or

2.5.6 is independently developed by Commerce without reference to information disclosed hereunder.

2.6 "CRADA Data" means all recorded information first produced in the performance of this Agreement, including software.

2.7 "Commerce" means the Department of Commerce only as represented by the National Institute of Standards and Technology and the National Telecommunications and Information Administration.

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 Commerce 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. Commerce shall be the supervising Federal agency, both administratively and scientifically, for this CRADA. The NIST PI is responsible for the scientific and technical conduct of this project on behalf of NIST. The NTIA PI is responsible for the scientific and technical conduct of this project on behalf of NTIA. 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 Commerce facilities, the Project Team shall pursue its activities according to the work schedule and under the Government security and conduct regulations that apply to Federal Government 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 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 Commerce 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 Commerce 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. Commerce may not contribute funds to a non-Federal collaborator.

Article 5. TITLE TO EQUIPMENT

5.1 Equipment. Equipment purchased by Commerce, NTIA or NIST with funds provided under this CRADA by the Collaborator shall be the property of Commerce, NTIA or NIST respectively. 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 Commerce under this Agreement, which the Collaborator asserts is proprietary. Commerce agrees that Proprietary Information shall be used only for the purposes described in the attached SoW. Except where Commerce 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. Commerce agrees to use its best efforts to maintain the confidentiality of Proprietary Information. Commerce will promptly notify the Collaborator of requests for Collaborator's Proprietary Information. The Collaborator agrees that Commerce is not liable for the disclosure of information designated as Proprietary which, after notice to and consultation with the Collaborator, Commerce determines may not lawfully be withheld or which a court of competent jurisdiction requires disclosed.

Article 7. CRADA Data

7.1 CRADA Protected Information. In accordance with section 12(c)(7)(B) of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3710a(c)(7)(B)), as amended, Commerce agrees not to disseminate 'CRADA Protected Information' for a period of five (5) years after its development. 'CRADA Protected Information' is information first produced in the performance of this Agreement, which would be a trade secret that would be treated as privileged or confidential if the information had been obtained from a non-Federal party. Commerce will treat such information (to include software, documentation and other research results developed under this agreement) as exempt from disclosure for a period of five (5) years under the provisions of subchapter II of Chapter 5 of Title 5, United States Code. Nothing in this Article shall be construed to prevent Commerce from exercising the license provided for in Article 7.3.

7.2 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 Commerce.

7.3 Government License. Notwithstanding the provisions of Article 7.1 and 7.2, the Collaborator grants to the U.S. Government an unlimited, paid-up, non-exclusive, irrevocable world-wide license to CRADA Data and works, and to any background invention or works required to practice the CRADA data and works. CRADA Data or works prepared by Commerce employees, and CRADA Data prepared jointly by Commerce 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. Commerce may own copyright in such works outside of the United States.

Article 8. TERMINATION

8.1 Notices. The Collaborator and Commerce each have the right to terminate this Agreement upon 30 days notice in writing to the other Party.

8.2 Termination After Change of Control. Commerce 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 9. DISPUTES

9.1 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, any Party may terminate this Agreement immediately.

9.2 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 Commerce signatories.

Article 10. LIABILITY

10.1 Property. The U.S. Government shall not be responsible for damage to any property of the Collaborator provided to Commerce pursuant to this Agreement.

10.2 Indemnification.

10.2.1 Conduct of Employees. Members of Collaborator's Project Team assigned to this SoW are not employees of Commerce. 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 Commerce or its employees. Commerce's responsibility for payment of tort claims in connection with the performance of work under this Agreement is governed by the Federal Tort Claims Act.

10.2.2 Collaborator's Use of Commerce's 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 Commerce'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 Commerce's technical developments.

10.3 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 Commerce's 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.

10.4 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 11. MISCELLANEOUS

11.1 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.

11.2 Governing Law. The construction validity, performance and effect of this Agreement for all purposes shall be governed by the laws of the United States.

11.3 Entire Agreement. This Agreement is intended to coexist with, and to implement in part, the November 25, 1998, Memorandum of Understanding Between the U.S. Department of Commerce and Internet Corporation for Assigned Names and Numbers. This Agreement and that Memorandum of Understanding constitute the entire agreement between the Parties concerning the subject matter hereof and supersede any prior understanding or written or oral agreement relative to said matter.

11.4 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.

11.5 Amendments. If any 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.

11.6 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 Parties 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.

11.7 Notices. All notices pertaining to or required by this Agreement shall be in writing and shall be directed to the signatories.

11.8 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.

11.9 The Use of Name or Endorsements. Collaborator shall not use the name of NTIA, NIST 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 without Commerce's prior agreement. By entering into this Agreement, Commerce does not directly or indirectly endorse any product or service provided, or to be provided, by the Collaborator its successors, assignees, or licensees. The Collaborator shall not in any way imply that this Agreement is an endorsement of any such product or service.

11.10 Rights to Background Inventions. No rights to Background Inventions are conveyed by this Agreement, except as set forth in Article 7.3.

11.11 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 11.5.

11.12 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 and the appropriate Commerce representatives.

11.13 Survivability. The provisions of Articles 6, 7, and 10 shall survive the termination of this CRADA.

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

Signatory for the Collaborator:

 

________________________________
Michael M. Roberts           Date
Interim President and CEO
Mailing Address for Notices:
   Michael M. Roberts
   Internet Corporation for Assigned Names and Numbers
   4676 Admiralty Way, Suite 330
   Marina del Rey, CA 90292

Signatories for the Department of Commerce

The National Institute of Standards and Technology:

________________________________
Michael R. Rubin             Date
Deputy Chief Counsel

_____________________________
Bruce Mattson                 Date
Chief, Industrial Partnerships Program

 

_____________________________
William Mehuron              Date
Acting Director
Information Technology Laboratory
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

 

National Telecommunications and Information Administration

______________________________
Larry Irving                  Date
Assistant Secretary for
Communications and Information


Appendix A
The Research Plan

Commerce requires the information listed below. The contents of this Appendix are for public disclosure.

1. Collaboration Project Title. (Please provide a brief project title which Commerce may use for public disclosure and management reporting.): Improvements to Management of the Internet Root Server System

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

Internet Corporation for Assigned Names and Numbers
4676 Admiralty Way, Suite 330
Marina del Rey, CA 90292

3. Licensing of Background Inventions belonging to NIST or NTIA. CRADA partners may apply for exclusive or nonexclusive licenses in Background Inventions belonging to NIST or NTIA. Collaborator hereby states that:

PLEASE CHECK THE APPROPRIATE BOX
[x] Collaborator is not engaged in discussions with NIST or NTIA (please identify, if any) concerning a NIST or NTIA Background Invention that is related to the work done under this CRADA.
[ ] Collaborator is engaged in discussions with NIST or NTIA (please identify, if any) concerning a NIST or NTIA Background Invention that is related to the work done under this CRADA.

4. NIST's and NTIA's Principal Investigators (please provide name, mail address, and telephone number):

(The NIST or NTIA P.I. may change at management's sole discretion.)

Craig W. Hunt
National Institute of Standards and Technology
Building 820, Room 464
Gaithersburg MD 20899
(301) 975-3827

Karen Rose
National Telecommunications and Information Administration
HCHB 4712
Washington DC
(202) 482-1304

5. Collaborator's Principal Investigator (please provide name, mail address, and telephone number):

Michael M. Roberts
339 La Cuesta Drive
Portola Valley, CA 94025-7534
(650) 854-2108

6. Proposed Duration and Schedule for the CRADA:

Start of project: May 15, 1999
Interim report: December 31, 1999
Proposed completion/final report: September 30, 2000

7. Collaborator Personnel, Services, Facilities, Intellectual Property, Equipment, and/or Funds Contributions are Listed as Follows:

Personnel: 4 personnel, devoted part-time.
Services: Collaborator will provide administrative support to this project using office staff employed by collaborator. Legal services required by Collaborator will be through its retained counsel (Jones, Day, Reavis & Pogue).
Adjunct personnel: Collaborator expects to obtain additional assistance, including from current operators of various of the existing root servers, through its Root Server System Advisory Committee and otherwise.
Facilities: Collaborator will contribute necessary office and laboratory facilities at 4676 Admiralty Way, Marina del Rey, CA.
Intellectual property: Collaborator will contribute to this project various existing licenses to necessary software. In addition, collaborator expects to develop additional software for use in this project.
Equipment: Collaborator will contribute existing computer and networking equipment. In addition, by arrangement with present and future root server operators, collaborator expects to secure the use of various root servers as needed for this project.
Funds: Collaborator will contribute funds as needed, in an amount not subject to an accurate estimate at this time due to the nature of this research and development project. Among other things, collaborator is in process of purchasing additional computer and networking equipment and related software for use in this project. In addition, collaborator will contribute funds to secure meeting facilities as necessary for its Root Server System Advisory Committee.

8. NIST and NTIA Personnel, Services, Facilities, Intellectual Property, and/or Equipment Contributions are Listed as Follows: (management reserves the right to replace these staff members at its sole discretion.)

Craig W. Hunt (NIST)301/975-3827
Karen Rose (NTIA)202/482-1304

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

Name
Michael M. Roberts
Suzanne Woolf*
Josh Elliott*
Joyce K. Reynolds*

Telephone

650/854-2108

(*=Services of these personnel currently available to collaborator under loanout agreement with the University of Southern California Information Sciences Institute.)

It is contemplated that some or all of the root server operators will agree to participate in this project as team members (see SoW below). In addition, Collaborator may engage additional experts to participate in this project as team members. As appropriate, Collaborator will revise this section under Section 3.3 to reflect any updates to team membership.

10.The Statement of Work (SoW):

The parties will collaborate on a study and process for making the management of the Internet (DNS) root server system more robust and secure. The collaboration will address:

Operational requirements of root name servers, including host hardware capacities, operating system and name server software versions, network connectivity, and physical environment.

Examination of the security aspects of the root name server system and review of the number, location, and distribution of root name servers considering the total system performance, robustness, and reliability.

Development of operational procedures for the root system, including formalization of contractual relationships under which root servers throughout the world are operated.

The study will address the technical management of the entire Internet (DNS) root server system, including all (currently thirteen) root servers located throughout the world and the techniques and equipment for generating, maintaining, and distributing authoritative root zone files. The study will include formulation of the operational procedures, requirements, and protocols referenced above through engineering analysis and will be accomplished with appropriate consultation with affected parties, including existing operators of the Internet root server system, through use of collaborator's Root Server System Advisory Committee and otherwise. After operational procedures, requirements, and protocols are formulated, they will be evaluated by implementing them in a controlled manner on the Internet (DNS) root server system. Any change(s) in the designated authoritative source for root zone files must be approved by the Department of Commerce in a separate document and nothing in this SoW or this Agreement is intended to direct such a change.


Appendix B
NIST Employee
Conflict of Interest Statement

As used in this Conflict of Interest Statement, the term "Collaborator" refers to the specific organization(s) that is/(are) proposed as a signator(s) of this Cooperative Research and Development Agreement.

I understand that I, my spouse, and other relatives living with me may not engage in activities or relationships that present a real or potential conflict of interest. This includes:

Financial interests that can be directly affected by the Collaborator of this Agreement.

Employment with or promises of employment from the Collaborator.

Nonofficial relationships with the Collaborator that have or may have a real or potential personal benefit.

There may be activities or relationships (past, present, or planned in the future) with the Collaborator other than those listed above that may raise a concern of real or apparent conflicts of interest. Such activities or relationships should be briefly described below. In the event that I become aware of any possible conflict of interest, I must notify my Laboratory Director as soon as possible.

Signature of NIST Scientist

___________________________________

Date: ______________________________

Printed Name: ________________________

Organization: _________________________

RETURN FORM TO: CARLITTA FOSTER-HAYES, BLDG. 820, RM. 213


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