1 - T3TRK Other Transaction Agreement (OTA).pdf

SDA-PS-25-02, T3 Tracking (T3TRK) Agreement Number: FA2401259XXXX

Other Transaction for Prototype Agreement

BETWEEN

<<Performer’s Company Name >> <<Address>>

AND

Space Development Agency

1670 Air Force Pentagon Washington, DC 20330

CONCERNING

Proliferated Warfighter Space Architecture (PWSA) Tranche 3 Tracking (T3TRK)

Agreement No.: FA2401259XXXX Total Amount of the Agreement (exercised): <<TBD>> Government Funds Obligated: <<TBD>> Options 1-X (unexercised): <<TBD>> Authority: 10 U.S.C. §4022 Effective Date: <<TBD>>

This Agreement is entered into between the United States of America, hereinafter called the Government, represented by the Space Development Agency (SDA), and <<Performer’s Company Name >> pursuant to and under United States Federal law.

This Agreement is an Other Transaction, and is therefore not a procurement contract, cooperative agreement or grant agreement. Accordingly, the provisions of the FAR or Department of Defense Federal Acquisition Regulations Supplement (DFARS) do not apply, unless explicitly included in this agreement.

FOR <<Performer’s Company Name >> FOR THE SPACE DEVELOPMENT AGENCY

<<Name>> <<Title>>

Christopher L. Glista Agreements Officer

Summary of Current Value and Funding of the Agreement

Mod PR CLIN SubCLIN ACRN CLIN Value Obligated Amount

BASIC 0001 TBD

BASIC TBD 000101 AA TBD

Funding Information

AA TBD

Purchase Requisition: TBD Line of Appropriation: TBD

Note for DFAS: Use oldest funds first.

TABLE OF CONTENTS

ARTICLES

Scope of the Agreement Term Management of the Project Agreement Administration

Obligation and Payment Agreement Change Proposals Disputes Patent Rights

Data Rights Foreign Access to Technology Safeguarding Covered Defense Information and Cyber Incident Reporting Follow-On Production Contracts Or Other Transactions Title To and Disposition of Property Civil Rights Act

Security Public Release Or Dissemination Of Information Prohibition on Contracting for Certain Telecommunications and Video

Surveillance Services or Equipment Prohibition On A Bytedance Covered Application

Associate Contractor Agreement Defense Priorities And Allocations System (DPAS) Rating

ARTICLE XXI: Duty Free Entry Order of Precedence Execution

ATTACHMENTS

ATTACHMENT 1a Statement of Work ATTACHMENT 1b Schedule of Milestones and Payments ATTACHMENT 1c Technical Data Requirements (& Classified Addendum) ATTACHMENT 1d Data Rights Assertions Table ATTACHMENT 1e Government Furnished Items/GFX ATTACHMENT 1f DD Form 254 ATTACHMENT 1g Cost and Software Data Reporting (CSDR) Plan ATTACHMENT 1h On Orbit Performance Plan

SCOPE OF THE AGREEMENT

A. Background

The purpose of the PWSA’s Tracking Layer is to provide low-latency, high-bandwidth communications between advanced sensors and in-theater weapons platforms in a highly contested environment facing a hostile near-peer power capable of bringing to bear the full spectrum of counterspace capabilities. The T3 Tracking Layer will expand upon the T2 and T1 Tracking Layer capabilities with targeted technology enhancements, expanded coverage, increased integration, established calibration processes, and greater production efficiencies. Each Tracking Layer space vehicle (SV) and communications systems will be interoperable with all PWSA SVs (i.e., Transport Layer SVs) and will operate in an integrated fashion through a common ground system. Thus, the T3 Tracking Layer will support the challenge of providing that low-latency data to in-theater weapon systems to ensure kill chain closure against stressing adversary weapon systems.

B. Definitions

In this Agreement, the following definitions apply:

Agreement: The body of this Agreement and its Attachments, which are expressly incorporated in and made a part of the Agreement.

Agreements Officer (AO): Means the SDA-warranted individual identified in Article IV(A) below who is authorized to sign this Agreement and approve modifications to it on behalf of the Government.

Agreement Officer Representative (AOR): AOR means the individual identified in Article IV(A), and who is an individual designated and authorized in writing by the AO to perform specific technical or administrative functions on behalf of the Government.

Commercial Computer Software: Software developed or regularly used for non-governmental purposes which: (1) Has been sold, leased, or licensed to the public; (2) Has been offered for sale, lease, or license to the public; (3) Has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this agreement; or (4) would satisfy at least one of the above three criteria and would require only minor modification to meet the requirements of this agreement.

Computer database: A collection of recorded data in a form capable of being processed by a computer.

The term does not include computer software.

Computer program: A set of instructions, rules, or routines, recorded in a form that is capable of causing a computer to perform a specific operation or series of operations.

Computer software: Computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the software to be reproduced, recreated, or recompiled. Computer software does not include computer databases or computer software documentation.

Computer software documentation: Owner's manuals, user's manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.

Covered Government support contractor: A contractor under a contract, the primary purpose of which is to furnish independent and impartial advice or technical assistance directly to the Government in support of the Government’s management and oversight of a program or effort (rather than to directly furnish an end item or service to accomplish a program or effort), provided that the contractor—

Is not affiliated with the prime contractor or a first-tier subcontractor on the program or effort, or with any direct competitor of such prime contractor or any such first-tier subcontractor in furnishing end items or services of the type developed or produced on the program or effort; and

Receives access to the technical data or computer software for performance of a Government contract that contains the clause at 252.227-7025, Limitations on the Use or Disclosure of Government- Furnished Information Marked with Restrictive Legends.

Developed:

(Applicable to technical data other than computer software documentation.) An item, component, or process, exists and is workable. Thus, the item or component must have been constructed or the process practiced. Workability is generally established when the item, component, or process has been analyzed or tested sufficiently to demonstrate to reasonable people skilled in the applicable art that there is a high probability that it will operate as intended. Whether, how much, and what type of analysis or testing is required to establish workability depends on the nature of the item, component, or process, and the state of the art. To be considered “developed,” the item, component, or process need not be at the stage where it could be offered for sale or sold on the commercial market, nor must the item, component or process be actually reduced to practice within the meaning of Title 35 of the United States Code;

A computer program has been successfully operated in a computer and tested to the extent sufficient to demonstrate to reasonable persons skilled in the art that the program can reasonably be expected to perform its intended purpose;

Computer software, other than computer programs, has been tested or analyzed to the extent sufficient to demonstrate to reasonable persons skilled in the art that the software can reasonably be expected to perform its intended purpose; or

Computer software documentation required to be delivered under a contract or agreement has been written, in any medium, in sufficient detail to comply with requirements under that contract.

Developed exclusively at private expense: Development was accomplished entirely with costs charged to indirect cost pools, costs not allocated to a government contract or agreement, or any combination thereof.

Private expense determinations should be made at the lowest practicable level.

Under fixed-price contracts or agreements, when total costs are greater than the firm-fixed-price or ceiling price of the contract or agreement, the additional development costs necessary to complete development shall not be considered when determining whether development was at government, private, or mixed expense.

Foreign Firm or Institution: A firm or institution organized or existing under the laws of a country other than the United States, its territories, or possessions. The term includes, for purposes of this Agreement, any agency or instrumentality of a foreign government; and firms, institutions or business organizations which are owned or substantially controlled by foreign governments, firms, institutions, or individuals.

Generated: Technical data or computer software first created in the performance of this contract.

Government: The United States of America, as represented by SDA.

Government Furnished Property: Means property in the possession of, or directly acquired by, the Government and subsequently furnished to the Performer for performance of this Agreement.

Government purpose: Any activity in which the United States Government is a party, including cooperative agreements with international or multi-national defense organizations or sales or transfers by the United States Government to foreign governments or international organizations. Government purposes include competitive procurement, but do not include the rights to use, modify, reproduce, release, perform, display, or disclose technical data or computer software for commercial purposes or authorize others to do so.

Government Purpose Rights: The rights to—

Use, modify, reproduce, release, perform, display, or disclose technical data or computer software within the Government without restriction; and

Release or disclose technical data or computer software outside the Government and authorize persons to whom release or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose that technical data or computer software for United States Government purposes.

Invention: Any invention or discovery which is or may be patentable or otherwise protectable under Title 35 of the United States Code.

Know-How: All information including, but not limited to discoveries, formulas, materials, inventions, processes, ideas, approaches, concepts, techniques, methods, software, programs, documentation, procedures, firmware, hardware, technical data, specifications, devices, apparatus and machines.

Limited Rights: The rights to use, modify, reproduce, release, perform, display, or disclose technical data, in whole or in part, within the Government. The Government may not, without the written permission of the party asserting limited rights, release or disclose the technical data outside the Government, use the technical data for manufacture, or authorize the technical data to be used by another party, except that the Government may reproduce, release, or disclose such data or authorize the use or reproduction of the technical data by persons outside the Government if it is necessary for emergency repair and overhaul or if the release or disclosure is to—

1. A covered Government support contractor in performance of its covered Government support contracts for use, modification, reproduction, performance, display, or release or disclosure to a person authorized to receive limited rights technical data; or

2. A foreign government, of technical data other than detailed manufacturing or process data, when use of such data by the foreign government is in the interest of the Government and is required for evaluation or informational purposes;

The recipient of the technical data is subject to a prohibition on the further reproduction, release, disclosure, or use of the technical data, and the Contractor or subcontractor asserting the restriction is notified of such reproduction, release, disclosure, or use.

Made: Relates to any invention means the conception or first actual reduction to practice of such invention.

Noncommercial Computer Software: Software that does not qualify as Commercial Computer Software.

Party: Includes the Government (represented by SDA), or the Performer, or both.

Performer: <<Performer’s Company Name, TBD>>

Performer Administrator: The individual identified in Article IV (B) below who holds the corporate authority to enter into contractually binding agreements on behalf of the Performer.

Person: An individual, corporation, company, association, authority, firm, partnership, society, State, and local government, regardless of whether such entity is operated for profit, or not for profit.

Practical application: To manufacture, in the case of a composition of product; to practice, in the case of a process or method, or to operate, in the case of a machine or system; and, in each case, under such conditions as to establish that the invention is capable of being utilized and that its benefits are, to the extent permitted by law or Government regulations, available to the public on reasonable terms.

Program: Research and development being conducted by the Performer, as set forth in Article I, paragraph C.

Property: Any tangible personal property other than property actually consumed during the execution of work under this agreement.

SBIR data rights: Rights in data and computer software as defined in DFARS 252.227-7018- Rights In Other Than Commercial Technical Data And Computer Software—Small Business Innovation Research (SBIR) Program (Nov 2023).

SDA Software Rights: Applies only to noncommercial computer software and means the Government’s right to use, modify, reproduce, perform, display, release disclose or transfer computer software are restricted. The Government may use a computer program on a limited number of computers and make the minimum number of copies of the computer software required for safekeeping (archive), backup, or modification purposes. The Government will not transfer the software outside of the Government or for any purpose other than the program, except that the Government may allow the use of the noncommercial computer software outside of the Government under a limited set of circumstances, including use by a Covered Government Support Contractor in performance of its covered Government support contract, and after the contractor or subcontractor asserting the restriction is notified in writing as far in advance as practicable that a release or disclosure to particular contractors or subcontractor is planned to be made.

Subject Invention: Any invention conceived or first actually reduced to practice in the performance of work under this Agreement.

Technical Data: Recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or data incidental to contract administration, such as financial and/or management information.

Technology: Discoveries, innovations, Know-How and inventions, whether patentable or not, including computer software, recognized under U.S. law as intellectual creations to which rights of ownership accrue, including, but not limited to, patents, trade secrets, maskworks and copyrights developed under this Agreement.

Unlimited Rights: Rights to use, duplicate, release, or disclose, technical data or computer software in whole or in part, in any manner and for any purposes whatsoever, and to have or permit others to do so.

C. Scope

3. This Agreement is an other transaction pursuant to 10 U.S.C. § 4022. The principal purpose of this Agreement is to engage in a research and development program for the development of the Tranche 3 Tracking (T3TRK).

4. The Performer shall be responsible for performance of the work set forth in the Statement of

Work (SOW) incorporated in this Agreement as Attachment 1a.

5. The Performer shall be paid a fixed amount for each milestone accomplished in accordance with the Schedule of Milestones and Payments set forth in Attachment 1b and the procedures of Article V. The Schedule of Milestones and Payments may be revised or updated in accordance with Article III.

6. The Government will have continuous involvement with the Performer. The Government will obtain access to Program results and certain rights in patents and data pursuant to Articles VII and VIII. SDA and the Performer are bound to each other by a duty of good faith in achieving the Program objectives.

TERM

A. Term of this Agreement

The Program commences upon the date of the last signature hereon and continues until the delivery date for the last milestone in Attachment 1b Schedule of Milestones and Payments. Provisions of this Agreement, which, by their express terms or by necessary implication, apply for periods of time other than specified herein, shall be given effect, notwithstanding this Article.

Some milestones are currently unexercised. The Government has the right to unilaterally exercise these milestones prior to the end of the Agreement, adding them to the scope of the Agreement at the amounts listed in Attachment 1b Schedule of Milestones and Payments. The Government will provide Performer a written notice of intent to exercise milestones 30 days prior to the end of the Agreement.

B. Termination Provisions

Either Party may terminate this Agreement by written notice given at least sixty (60) days prior to termination. The Parties should negotiate in good faith a reasonable and timely equitable adjustment of all outstanding issues between the Parties as a result of termination, which may include non-cancelable commitments, and shall be subject to the limitation in Article VII paragraph C.

In the event of a termination of the Agreement, the Government shall have paid-up rights in technical data or computer software as described in Article VIII, Data Rights. Failure of the Parties to agree to an equitable adjustment shall be resolved pursuant to Article VII, Disputes.

C. Extending the Term

The Parties may extend by mutual written agreement the term of this Agreement if research opportunities within the vision statement set forth in Article I reasonably warrant. Any extension shall be formalized through modification of the Agreement by the Agreements Officer (AO) and the Performer Administrator.

D. Force Majeure

Performer shall not be responsible for any losses resulting if the fulfillment of any of the terms of this Agreement is delayed or prevented by revolutions or other civil disorders, riots, wars, terrorism, acts of enemies, fires, snowstorms, floods, earthquakes, pandemics/epidemics/endemics, acts of God, or acts of any Government in its Sovereign capacity by the exercise of reasonable diligence, all items being hereinafter referred to as Force Majeure Events. Notice of an event giving rise to a purported event of Force Majeure shall be given to the Government within thirty (30) days after the occurrence of such event, or as soon as is reasonably practical in the event communications cannot be made in the 30-day period. The Performer shall use its best efforts to avoid, overcome, mitigate, and remove the cause of the event preventing or delaying performance, by using commercially reasonable alternate sources, workaround plans or other means, and the Performer shall continue to perform all of the remainder of its obligations under this Agreement where possible. The Government and Performer shall in good faith negotiate an equitable extension of time for completion, with price adjustment if any, of the whole or any part of the performance of this Agreement impacted by the occurrence of the Force Majeure Event, taking into account the reasons therefore and circumstances associated therewith.

MANAGEMENT OF THE PROJECT

A. Management and Program Structure

The Performer shall be responsible for the overall technical and program management of the Program, and technical planning and execution shall remain with the Performer. The SDA Agreements Officer’s Representative (AOR) shall provide recommendations to program developments and technical collaboration and be responsible for the review and verification of the milestones. The Performer agrees to work closely with Government personnel and Covered Government support contractors in performance of this agreement.

B. Modifications

1. As a result of meetings, reviews, or at any time during the term of the Agreement, research progress or results may indicate that a change in the SOW and/or the Schedule of Milestones and Payments would be beneficial to program objectives. Recommendations for modifications, including justifications to support any changes to the SOW and/or the Schedule of Milestones and Payments will be documented in writing and submitted by the Performer to the SDA AOR with a copy to the SDA AO. This documentation will detail the technical, chronological, and financial impact of the proposed modification to the research program. The SDA AO and the Performer shall approve any Agreement modification, except minor modifications pursuant to paragraph 3 below. The Government is not obligated to pay for additional or revised future milestones until the Schedule of Milestones and Payments (Attachment 1b) is formally revised by the SDA AO and made part of this Agreement.

2. The SDA AOR shall be responsible for the review and verification of any recommendations to revise or otherwise modify the SOW, prospective milestones, or other proposed changes to the terms and conditions of this Agreement.

3. For minor or administrative Agreement modifications (e.g. changes in the paying office or appropriation data, changes to Government or the Performer’s personnel identified in the Agreement, incremental funding, etc.) no signature is required by the Performer.

4. The SDA AO will be responsible for executing all modifications to this Agreement.

C. Key Personnel

1. The following Job Titles from the Performer and its Suppliers are designated as Key

Personnel for the Agreement:

Job Title/Role Company Program Manager Performer Chief Engineer Performer Chief Software Engineer Performer IR Mission Payload Lead Performer Assembly, Integration and Test (AI&T) Lead Performer Information Security Certified Professional Performer Subsystem Lead(s) Performer (If applicable) Program Manager Major Teammate Chief Engineer Major Teammate

2. The key personnel fulfilling the positions identified above shall be furnished for the entire term of the Agreement. Key Personnel names will be identified in writing to the AOR for each Job Title for the Performer at the award of the Agreement and for Suppliers as subcontracts are awarded.

Performer shall request in writing substitution of the key personnel and demonstrate to the satisfaction of the AOR that the qualifications of the proposed substitute key personnel are comparable or better than the qualifications of the personnel being replaced. The AOR’s approval for the substitution of key personnel shall not be unreasonably withheld.

AGREEMENT ADMINISTRATION

Unless otherwise provided in this Agreement, approvals permitted or required to be made by SDA may be made only by the SDA AO. Administrative and contractual matters under this Agreement shall be referred to the following representatives of the parties:

A. Government Points of Contact:

Agreements Officer (AO):

Christopher L. Glista Agreements Officer – SDA

(703) 217-4663 christopher.glista.civ@mail.mil

Agreements Officer’s Representative (AOR):

<<AOR Name TBD>> SDA, DoDAAC FA2401 <<AOR Phone Number>> <<AOR Email>>

Administrative Agreements Officer (AAO):

<<AAO Name>> Administrative Contracting Officer DCMA <<DCMA Local>>, DoDAAC <<DCMA DoDAAC>> <<AAO Phone Number>>> <<AAO Email>>

B. Performer Points of Contact

Performer’s Administrator:

<<Name>> <<Title>> <<Ph no>> <<Email>>

Performer’s Program Manager:

<<Name>> <<Title>> <<Ph no>> <<Email>>

Each party may change its representatives named in this Article by written notification to the other party.

OBLIGATION AND PAYMENT

A. Obligation

1. The Government’s liability to make payments to the Performer is limited to only those funds obligated under the Agreement at award or by modification to the Agreement. SDA may obligate funds to the Agreement incrementally.

2. If modification becomes necessary in performance of this Agreement, the AO shall execute a revised Schedule of Milestones and Payment for prospective milestones consistent with Attachment 1b in accordance with Article III paragraph B.

B. Payments mailto:christopher.glista.civ@mail.mil

1. The Parties agree that fixed payments will be made for the completion of milestones. These payments reflect value received by the Government toward the accomplishment of the research goals of this Agreement.

2. The Performer shall document the accomplishments of each milestone (consistent with SOW and

Schedule of Milestone and Payments) and submit one (1) copy of all invoices for payment approval. After written verification of the accomplishment of the milestone by the SDA AOR, the Performer will submit their invoice through Wide Area Work Flow (WAWF), as detailed in paragraph B.5. of this Article.

3. Limitation of Funds: In no case shall the Government’s financial liability exceed the amount obligated under this Agreement.

4. Payments will be made by the Defense Finance and Accounting Services office, as indicated below, within thirty (30) calendar days of an accepted invoice in WAWF. WAWF is a secure web-based system for electronic invoicing, receipt and acceptance. The WAWF application enables electronic form submission of invoices, government inspection, and acceptance documents in order to support DoD’s goal of moving to a paperless acquisition process.

Authorized DoD users are notified of pending actions by e-mail and are presented with a collection of documents required to process the contracting or financial action. It uses Public Key Infrastructure (PKI) to electronically bind the digital signature to provide non-refutable proof that the user electronically signed the document with the contents. Benefits include online access and full spectrum view of document status, minimized re-keying and improving data accuracy, eliminating unmatched disbursements and making all documentation required for payment easily accessible.

5. The Performer is required to utilize the WAWF system when processing invoices and receiving reports under this Agreement. The Performer shall (i) ensure an Electronic Business Point of Contact is designated in System for Award Management (SAM) at http://www.sam.gov and (ii) register to use WAWF at the https://piee.eb.mil site, within ten (10) calendar days after award of this Agreement. Step-by-step procedures to register are available at the https://piee.eb.mil site.

The Performer should submit a copy of the AOR approval of the milestone with each invoice.

a. Contract Type: Non-DoD Contract (Non-FAR)

b. Invoice Type: 2 in 1 Invoice (Services Only)

c. For the Issue By DoDAAC, enter FA2401.

d. For the Admin DoDAAC, enter <<DCMA DoDAAC>>.

e. For the Service Acceptor fields, enter FA2401

f. Leave the Inspect by DoDAAC, Ship From Code DoDAAC, Service Approver DoDAAC, and LPO DoDAAC fields blank unless otherwise directed by the Agreements Officer.

g. The following guidance is provided for invoicing processed under this Agreement through

WAWF:

• The AOR identified in Article IV, "Agreement Administration" shall continue to formally inspect and accept the deliverables/ milestones. To the maximum extent practicable, the AOR shall review the deliverable(s)/ milestone report(s) and either: 1) provide a written notice of rejection to the Performer which includes feedback regarding deficiencies requiring correction, or 2) written notice of acceptance to the AAO and AO.

• The Performer shall send an email notice to the AOR and upload the AOR approval as an attachment upon submission of an invoice in WAWF (this can be done from within

WAWF).

• Payments shall be made by DFAS – <<Paying Office DoDAAC>.

• The Performer agrees, when entering invoices entered in WAWF, to utilize the contracting line item number (CLIN) and accounting classification reference number (ACRN) associated with each milestone as delineated at Attachment 1b. The Performer agrees that the Government may reject invoices not submitted in accordance with this provision.

h. Payee Information:

• Cage Code: <<CAGE Code>>

• Unique Entity ID: <<UEID>>

6. Payments shall be made in the amounts set forth in Attachment 1b, provided the SDA AOR has verified the accomplishment of the milestones.

7. Financial Records and Reports:

a. The Performer shall maintain adequate records to account for all funding under this Agreement. The Performer’s relevant financial records are subject to examination or audit on behalf of SDA by the Government for a period not to exceed three (3) years after expiration of the term of this Agreement. The AO or designee shall have direct access to sufficient records and information of the Performer, to ensure full accountability for all funding under this Agreement. Such audit, examination, or access shall be performed during business hours on business days upon prior written notice and shall be subject to the security requirements of the audited party.

b. To the extent that the total government payments under the Agreement exceed $5,000,000, the Comptroller General of the United States, in its discretion, shall have access to and the right to examine records of any party to the Agreement or any entity that participates in the performance of this Agreement that directly pertain, to and involve transactions relating to, the Agreement for a period of three (3) years after final payment is made. This requirement shall not apply with respect to any party to this Agreement or any entity that participates in the performance of the Agreement, or any subordinate element of such party or entity, that, in the year prior to the date of the Agreement, has not entered into any other contract, grant, cooperative agreement, or other transaction agreement that provides for audit access to its records by a government entity in the year prior to the date of this Agreement. This paragraph only applies to any record that is created or maintained in the ordinary course of business or pursuant to a provision of law. The terms of this paragraph shall be included in all sub-agreements/contracts to the Agreement.

AGREEMENT CHANGE PROPOSALS

1. The Agreements Officer may ask the Performer to prepare proposals for technical, engineering, or other agreement changes within the scope of this agreement. Upon receipt of a written request from the Agreements Officer and in accordance with the Agreements Officer’s instructions, the Performer shall prepare and submit a proposal for the application of agreement change. The Performer may initiate change proposals for Government consideration when appropriate and PRIOR to incurring a change. Proposals submitted as a result of this Article shall not be considered an authorization to the Performer to exceed the value in the Agreement.

2. Agreement changes initiated by the Agreements Officer will, to the maximum extent practicable, be coordinated with the Performer prior to submission of the price proposal. The price of the development of a requested change proposal shall be authorized by the Agreements Officer prior to development.

3. The Agreements Officer may require re-submission of price proposals due to redirection after initial submission (i.e. 10% or more change in value). Otherwise, the parties will negotiate the changes affixing the price proposal during negotiations or as changes to the original change proposal.

4. If time will not permit the submission of a price proposal for the contemplated change, the Agreements Officer may authorize the Performer to submit a written ceiling rough order of magnitude (CROM) amount for the change. The Performer agrees that the CROM is the maximum adjustment to be made in the total agreement price (i.e. all price/fee), or in the delivery schedule (or time of performance) by reason of the change. Any such written agreement shall be cited in the Agreement Change, and upon it issuance, shall be a binding part of the Agreement.

In no instances shall the definitive change exceed the limitations of an authorization under a CROM undefinitized agreement change. The subsequent definitized Agreement must include the final modified technical parameters of the Agreement (e.g. statement of work, specifications, milestone payments) to reflect the totality of the change, including price and schedule, as appropriate.

5. The Performer agrees that price proposals submitted pursuant to this Article shall remain valid for a period of 90 days after submission and the CROMs submitted pursuant to this clause shall remain valid for a period of 30 days after submission. To support the negotiation of a change, the Agreements Officer may request other than cost or pricing data to support a determination of price reasonableness. The type and amount of data requested will depend on the nature of the change and whether or not the prime Performer is a Nontraditional Defense Contractor as defined at 10 U.S.C. §3014.

6. Because all changes must adhere to this Article, requests for equitable adjustments shall not be incurred and will not be considered.

DISPUTES

A. General

The Parties shall communicate with one another in good faith and in a timely and cooperative manner when raising issues under this Article.

B. Dispute Resolution Procedures

1. Any disagreement, claim or dispute between SDA and the Performer concerning questions of fact or law arising from or in connection with this Agreement, and, whether or not involving an alleged breach of this Agreement, may be raised only under this Article.

1. Whenever disputes, disagreements, or misunderstandings arise, the Parties shall attempt to resolve the issue(s) involved by discussion and mutual agreement as soon as practicable. In no event shall a dispute, disagreement or misunderstanding which arose more than three (3) months prior to the notification made under subparagraph B.3 of this article constitute the basis for relief under this article unless the SDA Contracts Director waives this requirement.

2. Failing resolution by mutual agreement, the aggrieved Party shall document the dispute, disagreement, or misunderstanding by notifying the other Party in writing of the relevant facts, identify unresolved issues, and specify the clarification or remedy sought. Within five (5) working days after providing notice to the other Party, the aggrieved Party may, in writing, request a joint decision by the SDA Agreements Officer and the Performer’s Representative/Executive, appointed by the Performer. The other Party shall submit a written position on the matter(s) in dispute within thirty (30) calendar days after being notified that a decision has been requested. The SDA Agreements Officer and the Performer Representative/Executive shall conduct a review of the matter(s) in dispute and render a bilaterally agreed upon decision in writing within thirty (30) calendar days of receipt of such written position. Any such joint decision is final and binding.

3. In the absence of a joint decision, upon written request to the SDA Contracts Director, made within thirty (30) calendar days of the expiration of the time for a decision under subparagraph B.3 above, the dispute shall be further reviewed. The SDA Contracts Director may elect to conduct this review personally or through a designee or jointly with a senior executive appointed by the Performer. Following the review, the SDA Contracts Director or designee will resolve the issue(s) and notify the Parties in writing. Such resolution is not subject to further administrative review and, to the extent permitted by law shall be the final and binding decision of the SDA.

4. For avoidance of doubt, nothing in this Agreement shall prohibit the Performer from bringing any legal action in a court of competent jurisdiction, to include an action challenging the resolution issued by the SDA Contracts Director or designee.

C. Limitation of Damages

1. To the extent consistent with federal law and regulations, claims by the Government for damages of any nature whatsoever pursued under this agreement shall be limited to direct damages and only up to the aggregate amount of Government funding for prototype development disbursed, pursuant to this agreement as of the time the dispute arises. Claims by the Performer for damages of any nature whatsoever pursued under this agreement shall be limited to direct damages only up to the aggregate amount of Government funding for prototype development obligated to this agreement and unspent as of the time the dispute arises. In no event shall either party be liable to the other party for consequential, punitive, special, and incidental damages or other indirect damages, whether arising in contract (including warranty), tort (whether or not arising from the negligence of a Party) or otherwise, except to the extent such damages are caused by a Party’s willful misconduct.

2. SDA assumes risk of loss for SVs while the Launch Services Provider has full control of the SVs until Launch Vehicle separation command initiation, at which point the Performer resumes risk of loss through acceptance of each plane at its respective Functional Acceptance Review. SDA acknowledges that the Agreement calls for a Class C mission and that on-orbit performance is not guaranteed. There is no requirement for warranty replacement for SVs.

5. In the event of a launch failure resulting from no fault of the Performer that prevents the Performer from executing to the Agreement, the Government and the Performer should negotiate a reasonable and timely adjustment of all outstanding issues between the Parties, which may include non-cancelable commitments.

D. Warranty

Performer makes no express or implied warranties whatsoever with respect to the deliverables hereunder, including any (a) implied warranty of fitness for a particular purpose or (b) implied warranty of merchantability.

PATENT RIGHTS

A. Allocation of Principal Rights

1. Unless the Performer shall have notified SDA, in accordance with subparagraph B.2 below, that the Performer does not intend to retain title, the Performer shall retain the entire right, title, and interest throughout the world to each Subject Invention consistent with the provisions of this Article.

2. With respect to any Subject Invention in which the Performer retains title, SDA shall have a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced on behalf of the United States the Subject Invention throughout the world.

B. Invention Disclosure

1. The Performer shall disclose each Subject Invention to SDA within four (4) months after the inventor discloses it in writing to his company personnel responsible for patent matters. The disclosure to SDA shall be in the form of a written report and shall identify the Agreement and circumstances under which the Invention was made and the identity of the inventor(s). It shall be sufficiently complete in technical detail to convey a clear understanding, to the extent known at the time of the disclosure, of the nature, purpose, operation, and the physical, chemical, biological, or electrical characteristics of the Subject Invention. The disclosure shall also identify any publication, sale, or public use of the invention and whether a manuscript describing the Invention has been submitted and/or accepted for publication at the time of disclosure.

2. If the Performer determines that it does not intend to retain title to any such Subject Invention, the

Performer shall notify SDA, in writing, within eight (8) months of disclosure to SDA. However, in any case where publication, sale, or public use has initiated the one-year statutory period wherein valid patent protection can still be obtained in the United States, the period for such notice may be shortened by SDA to a date that is no more than sixty (60) calendar days prior to the end of the statutory period.

3. The Performer shall file its initial patent application on a Subject Invention to which it elects to retain title within one (1) year after election of title or, if earlier, prior to the end of the statutory period wherein valid patent protection can be obtained in the United States after a publication, or sale, or public use. The Performer may elect to file patent applications in additional countries, including the European Patent Office and the Patent Cooperation Treaty, within either ten (10) months of the corresponding initial patent application or six (6) months after the date permission is granted by the Commissioner for Patents to file foreign patent applications, where such filing had previously been prohibited by a Secrecy Order.

4. The Performer shall notify SDA of any decisions not to continue the prosecution of a patent application, pay maintenance fees, or defend in a reexamination or opposition proceedings on a patent, in any country, not less than thirty (30) calendar days before the expiration of the response period required by the relevant patent office.

5. Requests for extension of the time for disclosure election, and filing under Article VII, may be granted at SDA’s discretion after considering the circumstances of the Performer and the overall effect of the extension.

6. The Performer shall submit to SDA annual listings of Subject Inventions. At the completion of the Agreement, the Performer shall submit a comprehensive listing of all Subject Inventions identified during the course of the Agreement and the current status of each.

C. Conditions When the Government May Obtain Title

Upon SDA’s written request, the Performer shall convey title to any Subject Invention to SDA under any of the following conditions:

1. If the Performer fails to disclose or elects not to retain title to the Subject Invention within the times specified in Paragraph B of this Article; however, SDA may only request title within sixty

(60) calendar days after learning of the failure of the Performer to disclose or elect within the specified times;

2. In those countries in which the Performer fails to file patent applications within the times specified in Paragraph B of this Article; however, if the Performer has filed a patent application in a country after the times specified in Paragraph B of this Article, but prior to its receipt of the written request by SDA, the Performer shall continue to retain title in that country; or

3. In any country in which the Performer decides not to continue the prosecution of any application for, to pay the maintenance fees on, or defend in reexamination or opposition proceedings on, a patent on a Subject Invention.

D. Minimum Rights to the Performer and Protection of the Performer’s Right to File

1. The Performer shall retain a nonexclusive, royalty-free license throughout the world in each subject invention to which the Government obtains title, except if the Performer fails to disclose the Subject Invention within the times specified in Paragraph B of this Article. The Performer’s license extends to its domestic subsidiaries and affiliates, including Canada, if any, and includes the right to grant licenses of the same scope to the extent that the Performer was legally obligated to do so at the time the Agreement was awarded. The license is transferable only with the approval of SDA, except when transferred to the successor of that part of the business to which the Subject Invention pertains. SDA approval for license transfer shall not be unreasonably withheld.

2. The Performer’s domestic license may be revoked or modified by SDA to the extent necessary to achieve expeditious practical application of the Subject Invention pursuant to an application for an exclusive license submitted consistent with appropriate provisions at 37 C.F.R. Part 404. This license shall not be revoked in that field of use or the geographical areas in which the Performer has achieved practical application and continues to make the benefits of the Subject Invention reasonably accessible to the public. The license in any foreign country may be revoked or modified at the discretion of SDA to the extent the Performer, its licensees, or the subsidiaries or affiliates have failed to achieve practical application in that foreign country.

3. Before revocation or modification of the license, SDA shall furnish the Performer a written notice of its intention to revoke or modify the license, and the Performer shall be allowed thirty (30) calendar days (or such other time as may be authorized for good cause shown) after the notice to show cause why the license should not be revoked or modified.

E. Action to Protect the Government’s Interest

1. The Performer agrees to execute or to have executed and promptly deliver to SDA all instruments necessary to (i) establish or confirm the rights the Government has throughout the world in those Subject Inventions to which the Performer elects to retain title, and (ii) convey title to SDA when requested under Paragraph C of this Article and to enable the Government to obtain patent protection throughout the world in that Subject Invention.

2. The Performer agrees to require by written agreement with its employees, other than clerical and non-technical employees, to disclose promptly in writing to personnel identified as responsible for the administration of patent matters and in a format suggested by the Performer each Subject Invention made under this Agreement in order that the Performer can comply with the disclosure provisions of Paragraph B of this Article. The Performer shall instruct employees, through employee agreements or other suitable educational programs, on the importance of reporting inventions in sufficient time to permit the filing of patent applications prior to United States or foreign statutory bars.

3. The Performer shall include, within the specification of any United States patent application and any patent issuing thereon covering a subject invention, the following statement:

This invention was made with Government support under Agreement <<Agreement Number>>, awarded by SDA. The Government has certain rights in the invention.

F. Lower Tier Agreements

The Performer shall include this Article, suitably modified, in all subcontracts or lower tier agreements, regardless of tier, for experimental, developmental, or research work.

G. Reporting on Utilization of Subject Inventions

1. The Performer agrees to submit, during the term of the Agreement, an annual report on the utilization of a Subject Invention or on efforts at obtaining such utilization that are being made by the Performer or its licensees or assignees. Such reports shall include information regarding the status of development, date of first commercial sale or use, gross royalties received by the Performer, and such other data and information as the agency may reasonably specify. The Performer also agrees to provide additional reports as may be requested by SDA in connection with any march-in proceedings undertaken by SDA in accordance with Paragraph I of this Article. SDA agrees it shall not disclose such information to persons outside the Government without permission of the Performer, unless required by law.

2. All required reporting shall be submitted to the AO and Administrative Agreements Officer

(AAO), where one is appointed.

H. Preference for American Industry

Notwithstanding any other provision of this clause, the Performer agrees that it shall not grant to any person the exclusive right to use or sell any Subject Invention in the United States unless such person agrees that any product embodying the Subject Invention or produced through the use of the subject invention shall be manufactured substantially in the United States. However, in individual cases, the requirements for such an agreement may be waived by SDA upon a showing by the Performer that reasonable but unsuccessful efforts have been made to grant licenses on similar terms to potential licensees that would be likely to manufacture substantially in the United States or that, under the circumstances, domestic manufacture is not commercially feasible.

I. March-in Rights

The Performer agrees that, with respect to any Subject Invention in which it has retained title, SDA has the right to require the Performer, an assignee, or exclusive licensee of a Subject Invention to grant a non-exclusive license to a responsible applicant or applicants, upon terms that are reasonable under the circumstances, and if the Performer, assignee, or exclusive licensee refuses such a request, SDA has the right to grant such a license itself if SDA determines that:

1. Such action is necessary because the Performer or assignee has not taken effective steps, consistent with the intent of this Agreement, to achieve practical application of the Subject Invention;

2. Such action is necessary to alleviate health or safety needs which are not reasonably satisfied by the Performer, assignee, or their licensees;

3. Such action is necessary to meet requirements for public use and such requirements are not reasonably satisfied by the Performer, assignee, or licensees; or

4. Such action is necessary because the agreement required by Paragraph H of this Article has not been obtained or waived or because a licensee of the exclusive right to use or sell any Subject Invention in the United States is in breach of such Agreement.

J. Authorization and Consent