Cooperative Research And Development Agreement

COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENT

FOR

NOVEL RESERVE CELL TECHNOLOGIES and

HIGH SENSITIVITY MAGNETOMETER TECHNOLOGY

BETWEEN

MPHASE TECHNOLOGIES, INC.

150 CLOVE ROAD

LITTLE FALLS, NEW JERSEY 07424

AND

U.S. ARMY ARMAMENT RESEARCH, DEVELOPMENT AND ENGINEERING CENTER

PICATINNY, NJ 07806-5000


mPhase Technologies Inc


Victor Lifton Principal Investigator 908-582-3105


U.S. ARMY ARMAMENT RESEARCH, DEVELOPMENT AND ENGINEERING CENTER:


Mr. Tim Ryan

Mr. John Moran

Office of Research and Technology Applications

Legal Counsel

(973) 724-7953

(973) 724-6590


Mr. Carlos M. Pereira and Mr. Preston Haney
Co-Principal Investigators
(973) 724-1542 / 9764


The purpose of this AGREEMENT is to establish a cooperative effort between the U.S. Army Armament Research, Development and Engineering Center (ARDEC) and mPhase Technologies, Inc. (MPHASE) in order to develop power source and sensor technology for munitions guidance and control. This work falls within the mission of ARDEC.


NTIS Category: 76C - Navigation & Guidance System Components


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Table of Contents

Article 1 Definition Article 2 Cooperative Researches Article 3 Reports Article 4 Financial Obligations Article 5 Titles to Property Article 6 Software Article 7 Inventions and Patents Article 8 Data and Publication Article 9 Representations and Warranties Article 10 Termination Article 11 Disputes Article 12 Liabilities Article 13 Miscellaneous Article 14 Duration of Agreement and Effective Date Appendix A Statement of Work Appendix B Estimate of the Parties Resources 3


MPHASE TECHNOLOGIES, INC. AND U.S. ARMY ARMAMENT RESEARCH, DEVELOPMENT AND ENGINEERING CENTER COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENT


The Parties to this Cooperative Research and Development Agreement (AGREEMENT), authorized under Public Law 99-502, as amended, and Executive Order 12591 (10 April 1987) are mPhase Technologies, Inc. (MPHASE) incorporated in the State of New Jersey and the U.S. Army Armament Research, Development and Engineering Center (ARDEC), a laboratory of the United States Army.


A.

Whereas, MPHASE and ARDEC desire to collaborate in the further advancement of the Technology relating to the design, fabrication and implementation of nanostructure material and devices which has commercial application to power cells and magnetometer sensors and military application to alternative batteries and sensors.


B.

Whereas, the use by MPHASE of ARDEC Technology will benefit the ARDEC mission.


NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:


Article 1. Definitions


As used in this AGREEMENT, the following terms shall have the following meanings and such meanings should be equally applicable to both the singular and plural forms of the terms defined


1.1

"Agreement" means this Cooperative Research and Development Agreement (CRADA).


1.2

"Invention" means any invention or discovery which is or may be patentable under Title 35 of the United States Code or any novel variety of plant which is or may be protected under the Plant Variety Protection Act (7 U.S.C. 7321 et seq.). 4


1.3

"Made" in relation to any invention means the conception or first actual reduction to practice of such invention.


1.4

"Proprietary Information" means information that embodies trade secrets developed at private expense prior to or independent of this AGREEMENT, or information which is confidential business or financial information provided that such information:


(i) is not generally known or available from other sources without obligations concerning its confidentiality;

(ii) has not been made available by the owners to others without obligation concerning its confidentiality; and

(iii) is not already available to the Government without obligation concerning its confidentiality.


1.5

"Subject Data" means all recorded information first produced in the performance of this AGREEMENT.


1.6

"Subject Invention" means any invention made in the performance of work under this AGREEMENT.


1.7

"Subject Software" means all software, software databases or software documentation first produced in the performance of this AGREEMENT.


1.8

"Subject Improvement" means any improvement first produced in the performance of this AGREEMENT.


1.9

" Government License" means non-exclusive, irrevocable, paid-up license to use, practice or have practiced a Subject Invention, Subject Software, or Subject Data throughout the world by or on behalf of the U.S. Government. 5


1.10

"Final Products" means any product produced for sale by MPHASE or any other duly authorized third party which embodies Subject Data, Subject Software or Subject Invention as defined in 1.5 to 1.8 above or Government owned patent(s) which are licensed to MPHASE by the Government.


1.11 "Nonreleasable ARDEC information" shall mean any information marked by ARDEC as "Nonreleasable ARDEC information." "Nonreleasable ARDEC information " may include, but is not limited to: any operational security information (OPSEC), limited distribution information, financial data, advanced procurement information (e.g., future requirements, statements of work, and acquisition strategies), source selection information (e.g., bids before made public, source selection plans, and rankings of proposals), trade secrets and other confidential business information (e.g., confidential business information submitted by a contractor), attorney work product, information protected by the Privacy Act (e.g., social security numbers, home addresses and telephone numbers), and other sensitive information (e.g., pr ogram, planning and budgeting system information).


Article 2. Cooperative Research


2.1

Statement of Work . Cooperative research performed under this AGREEMENT shall be performed in accordance with the Statement of Work (SOW) attached hereto as Appendix A. An estimate of the Parties' resources to be devoted to this effort is attached as Appendix B. Each party agrees to participate in the cooperative research and to utilize such personnel, resources, facilities, equipment, skills, know-how, and information, as it considers necessary, consistent with its own policies, missions and requirements. While assigned to this effort, employees of both Parties shall remain employees of their respective employers.


2.2

Review of Work . Periodic conferences shall be held between ARDEC and MPHASE to review the progress of work. It is understood that the nature of this cooperative research is such that completion within the period of performance specified, or within the limits of financial support allocated, cannot be guaranteed. Accordingly, it is agreed that all cooperative research is to be performed on a best efforts basis. 6


2.3

Principal Investigation . ARDEC agrees that its portion of the work will be performed under the supervision of Carlos Pereira and Preston Haney as principal investigators, who have the responsibility for the scientific and technical conduct of this project at ARDEC. The principal investigator for MPHASE is Victor Lifton, who has the responsibility for the scientific and technical conduct of this project at MPHASE.


2.4

Scope Change . Each party may request changes to the SOW, which shall be made in writing and agreed by both Parties. Both Parties agree to make a good faith effort to agree on any necessary change to the SOW.


Article 3. Reports


3.1

Final Report . Within 1 month after the completion of work under this AGREEMENT, ARDEC and MPHASE shall together prepare a final written report on the technical progress made and the results obtained, identifying such problems as may have been encountered, and establishing goals and objectives requiring further effort.

Final Report . Within 1 month after the completion of work under this AGREEMENT, ARDEC and MPHASE shall together prepare a final written report on the technical progress made and the results obtained, identifying such problems as may have been encountered, and establishing goals and objectives requiring further effort.

3.2

If, however, the work under this AGREEMENT extends beyond one year from the date of this AGREEMENT, ARDEC and MPHASE. shall prepare annual interim reports describing the technical progress made, identifying such problems as may have been encountered, and establishing goals and objectives requiring further effort. The ultimate responsibility for timely completion of said reports shall be ARDEC' s principal investigator.


If, however, the work under this AGREEMENT extends beyond one year from the date of this AGREEMENT, ARDEC and MPHASE. shall prepare annual interim reports describing the technical progress made, identifying such problems as may have been encountered, and establishing goals and objectives requiring further effort. The ultimate responsibility for timely completion of said reports shall be ARDEC' s principal investigator.


Article 4. Financial Obligation


4.1

No Cost Option . The performance of research by ARDEC under this AGREEMENT is not conditioned on the payment of a sum certain by the MPHASE. 7


Article 5. Title to Property


5.1

Equipment . Title to all equipment acquired prior to or during this AGREEMENT shall remain the property of the party, which purchased the same unless otherwise transferred, in writing. Any Government Furnished Equipment (GFE) made available to MPHASE under this AGREEMENT shall remain the property of the government and be used solely for the performance of the effort contemplated by this AGREEMENT. MPHASE shall own co-developed equipment. Upon completion of research under this AGREEMENT, MPHASE shall be responsible for all costs attendant to the maintenance, removal, storage, and shipping of their equipment to MPHASE.


5.2

Disposal of Toxic or Other Waste . The responsibility for proper disposal at completion or termination of this AGREEMENT of any equipment or materials that an originating party transfers to the facilities of a receiving party and which constitute hazardous, toxic or other waste shall remain with the originating party.


Article 6. Software


6.1

Prior Software . The Parties agree that all software, software databases and/or software documentation created prior to this AGREEMENT shall remain the property of the party, which owned or controlled such material prior to execution of this AGREEMENT.


6.2

Reporting . The Parties have no expectation that any " Subject Software" will be created during the term of this AGREEMENT. If, however, any Subject Software is created during the performance of the AGREEMENT, title shall be held jointly, unless the Parties otherwise agree, in which case a written modification to this AGREEMENT must evidence such accord.


6.3

Limits on Rights to Software . ARDEC does not own all software resident in its computers that may be used in the course of work under this AGREEMENT, and characteristically is the licensee of such software. Consequently, in such instances ARDEC will not provide software, nor rights to software to MPHASE. ARDEC will only demonstrate the software on ARDEC computer systems. It will be the responsibility of MPHASE to obtain the appropriate hardware and software rights to run the Technology developed under this AGREEMENT. In cases where ARDEC doe not own the software, ARDEC will use best effort to notify MPHASE of who owns the software so MPHASE can try and obtain a license from 3rd party vendor if required.
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Article 7. Inventions and Patents


7.1

Prior Patents . The Parties hereto agree that neither party shall have rights in any invention made by the other before the date of this AGREEMENT, except for those rights provided by law or under specific agreement. The Parties additionally agree that for this AGREEMENT "Excluded Subjects" shall mean any invention, technique, device, discovery or procedure, whether or not patentable and whether or not patented, conceived or first actually reduced to practice by MPHASE Technologies, Inc. prior to the date of this Agreement, and all rights and title in and to the foregoing, including the following patents/patent applications relating to the design, fabrication and implementation of nanostructured material know-how are considered prior inventions by MPHASE Technologies, Inc.:

"Method And Apparatus For Variably Controlling The Movement Of A
Liquid On A Nanostructured Surface", Kornblit, Kroupenkine, Mandich,
Schneider, Taylor, Yang, 10/403159, 03/31/2003

"Method And Apparatus For Reducing Friction Between A Fluid And A
Body", Kornblit, Kroupenkine, Mandich, Schneider, Taylor, Weiss, Yang,
10/649285, 08/27/2003

"Reversible Transitions On Dynamically Tunable Nanostructured Or
Microstructured Surfaces", Hodes, Kolodner, Kroupenkine, Lyons, Mandich,
Taylor", 10/674448, 09/30/2003

"Battery Having A Nanostructured Electrode Surface", Kroupenkine,
Taylor, Weiss, 10/716084, 11/18/2003 9


"Tunable Liquid Microlens with Lubrication Assisted Electrowetting",
Kroupenkine, Yang, 6,545,815, 4/8/03

"Nanostructured Battery Having End of Life Cells", Krupenkine, Lyons,
Simon, 2/20/2004


" Magnetometer Having An Electromechanical Resonator" , Greywall 37, 10/889,977, 07/13/2004


7.2

Reporting . The Parties shall promptly report to each other any Subject Invention made.


7.3

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