230626 TOUA Distro A.docx

TERMS OF USE AGREEMENT (TOUA)

N00024-23-R-6304

IMPORTANT

Read this entire agreement before accessing any Program Executive Office Unmanned and Small Combatants (PEO USC) data. By accessing the data, you agree to be bound by the terms of use stated in this agreement. Do not access the data until you have carefully read, understood and agreed to the following terms of use. If you do not agree, do not request access to the data.

Article 1.0 – Definitions.

1.1. AGREEMENT: This Terms of Use Agreement, which applies to the DATA provided through the WEBSITE.

1.2. AUTHORIZED PARTIES: Other individuals, entities, or their agents and any successors or assignees who have access to the WEBSITE and the DATA.

1.3. DATA: The Government furnished information (GFI) or Government furnished property (GFP) provided to YOU by PEO USC via the WEBSITE.

1.4. WEBSITE: Department of Defense Secure Access File Exchange (DoD SAFE).

1.5. DoN PEO USC: The Department of the Navy’s Program Executive Office Unmanned and Small Combatants

1.6. GOVERNMENT: The Government of the United States of America

1.7. GOVERNMENT FURNISHED INFORMATION (GFI): any data owned by the Government

1.8. GOVERNMENT FURNISHED PROPERTY (GFP): property owned by the Government and subsequently furnished to the contractor for performance of a contract

1.9. 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 the DATA for commercial purposes or authorize others to do so.

1.10. YOU: The individuals, entities, or their agents and any successors or assignees who access the WEBSITE, obtain the DATA from the WEBSITE, and consent to this AGREEMENT as memorialized by viewing or downloading the DATA.

Article 2.0 – Introduction.

2.1 The WEBSITE is intended to provide a file exchange where the DATA can be accessed and downloaded by YOU and AUTHORIZED PARTIES.

2.2. The WEBSITE is operated and maintained and administered by DEPARTMENT OF DEFENSE, DEFENSE INFORMATION SYSTEMS AGENCY (DoD DISA). The DATA is transferred to YOU via the WEBSITE under the authorization of PEO USC.

2.3 The DATA is UNCLASSIFIED and released under Distribution Statement A (i.e., distribution authorized for public release: distribution unlimited) and may only be used for a GOVERNMENT PURPOSE. Prior to the GOVERNMENT providing YOU with access to the DATA, YOU must execute the below Use and Non-Disclosure Agreement and provide it to the Contracting Officer as directed by the Request For Information (RFI).

2.4 The GOVERNMENT wants to ensure that all versions of the DATA are made reasonably available to all AUTHORIZED PARTIES who may have potential to participate in a GOVERNMENT PURPOSE. However, the GOVERNMENT places the following limitations on the use of the DATA by YOU and AUTHORIZED PARTIES that access the DATA via the WEBSITE.

Article 3.0 – User Responsibilities.

3.1 YOU may download and use the DATA as a result of being granted access to it via the WEBSITE. However, the user shall flow down the AGREEMENT to any individual or entity to which it provides the DATA. The AGREEMENT shall apply to any entity that receives the DATA.

3.1.1 Notwithstanding the requirements of 3.1, the GOVERNMENT recognizes that YOU retain ownership of and copyright in any modifications to the DATA that you develop through derivation of the DATA. YOU retain your right to use, modify, release and display such modifications for your own purposes, subject to the requirement of the Agreement and Use and Non-Disclosure Agreement and its restrictions on the use of the DATA.

3.2 YOU may not modify the DATA in a manner that might: (i) create, or purport to create, any GOVERNMENT licensing obligations with respect to the modified DATA; or (ii) grant, or purport to grant, to any third party any rights to or immunities under GOVERNMENT rights in the DATA or other GOVERNMENT intellectual property.

3.3 YOU may use the DATA in the preparation of responses to the GOVERNMENT Request for Information. Please be advised, however, to the extent possible, that the GOVERNMENT has made and will make the same DATA available to all other eligible parties that are interested in responding to the RFI. With respect to GOVERNMENT contracts that already exist or may exist in the future, the DATA may be issued as Government Furnished Information or Government Furnished Property without prior notice to YOU.

3.4 The disclosure of the DATA to YOU does not imply any relinquishment of GOVERNMENT rights that the GOVERNMENT may have in such DATA. Your access to the DATA does not constitute a grant of any license, including any grant of license under any trademark, patent, or copyright on the DATA, or application for same.

3.5 YOU may NOT:

3.5.1 Duplicate, transmit, or post the DATA in a manner contrary to the guidance provided herein or the restrictive markings contained on and within the DATA.

3.5.2 Disclose the DATA to anyone without proper clearance.

3.5.3 Disclose the DATA to foreign nationals (regardless of clearance, export licenses, or international agreements) or transmit said enclosures outside the geographical bound or custom territory of the United States of America.

3.6 COPY LOG: In order to facilitate review, YOU are granted the authority to make copies of the DATA. YOU shall maintain a copy log of all produced copies, to whom and when the copies were distributed, and if applicable, date of destruction. YOU shall furnish these records upon demand of the Contracting Officer or other authorized GOVERNMENT security official.

Article 4.0 – General.

4.1 THE DATA IS PROVIDED TO YOU "AS IS" WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY THAT THE DATA WILL CONFORM TO SPECIFICATIONS, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR FREEDOM FROM INFRINGEMENT, ANY WARRANTY THAT THE DATA WILL BE ERROR FREE, OR ANY WARRANTY THAT DOCUMENTATION, IF PROVIDED, WILL CONFORM TO THE DATA. FURTHER, GOVERNMENT DISCLAIMS ALL WARRANTIES AND LIABILITIES REGARDING THIRD-PARTY SOFTWARE, IF PRESENT IN THE DATA.

4.2 The GOVERNMENT cannot and will not make determinations on whether or not third party modifications to the DATA that YOU originally developed and contributed to your RFI response rise to the level of a protectable copyright. By accessing the DATA via the WEBSITE, you agree to indemnify and hold the GOVERNMENT harmless against any claim, loss, or risk of loss for any infringement, including patent or copyright infringement, with respect to such third party modifications.

4.3 The AGREEMENT does not replace or supersede any other written contracts and/or written agreements that you have or will have with the GOVERNMENT. You shall provide written notice of any inconsistencies between the AGREEMENT and the terms and conditions of your other written contracts and/or written agreements with the GOVERNMENT in advance of accepting the AGREEMENT. The GOVERNMENT retains the sole ability to determine the precedence or impact of any inconsistencies.

4.4 The AGREEMENT constitutes the entire understanding of the parties with respect to the accessing and use of DATA. The GOVERNMENT may update the terms of the AGREEMENT from time to time without notice.

4.5 Nothing in THIS AGREEMENT releases you from performance of any contractual requirements in any contracts or other agreements with the GOVERNMENT.

4.6 If any provision of THIS AGREEMENT is held to be invalid or unenforceable under applicable law, it will not affect the validity or enforceability of the remainder of the terms of THIS AGREEMENT.

4.7 THIS AGREEMENT will be subject to the Federal laws of the United States for all purposes, including, but not limited to, determining the validity of THIS AGREEMENT, the meaning of its provisions and the rights, obligations and remedies of the parties

4.8 THIS AGREEMENT DOES NOT, IN ANY MANNER, CONSTITUTE AN ENDORSEMENT BY THE GOVERNMENT OF ANY RESULTS, RESULTING DESIGNS, HARDWARE, SOFTWARE OR ANY OTHER APPLICATIONS RESULTING FROM THE USE OF THE DATA UNDER THIS AGREEMENT. THIS AGREEMENT DOES NOT OBLIGATE THE GOVERNMENT IN ANY WAY, SHAPE OR FORM TO AWARD FUTURE PROCUREMENTS TO YOU. PROVIDING THE DATA DESCRIBED IN THIS AGREEMENT DOES NOT CONSTITUTE A REQUEST FOR PROPOSAL (RFP OR A PROMISE TO ISSUE AN RFP IN THE FUTURE). THIS AGREEMENT DOES NOT COMMIT THE GOVERNMENT TO CONTRACT FOR ANY SUPPLY OR SERVICE WHATSOEVER. FURTHER, THE GOVERNMENT IS NOT AT THIS TIME SEEKING PROPOSALS AND WILL NOT ACCEPT UNSOLICITED PROPOSALS. YOU ARE ADVISED THAT THE GOVERNMENT WILL NOT PAY FOR ANY INFORMATION OR COSTS INCURRED AS A RESULT OF YOU ENTERING THIS AGREEMENT AND/OR YOUR USE OF THE DATA. ALL COSTS ASSOCIATED WITH ENTERING THIS AGREEMENT AND/OR YOUR USE OF THE DATA IS SOLELY AT YOUR EXPENSE.

4.9 LIABILITY: YOU agree to assume all risks, direct or consequential, from your use, storage, distribution, and disposal of the DATA. YOU agree to defend, indemnify, and hold harmless the GOVERNMENT from any loss, claim, damage, or liability, of any kind, which may arise from your use, storage, distribution, and disposal of the DATA. Your entire liability is as stated in the Federal Tort Claims Act, 28 U.S.C. Section 2671 et seq.

Article 5.0 – Termination.

THIS AGREEMENT shall continue until terminated by the GOVERNMENT as provided in written notice to YOU. The written notice will provide instruction on further action if any, required by YOU in relation to the AGREEMENT and the DATA.

USE AND NON-DISCLOSURE AGREEMENT:

N00024-23-X-XXXX

Use and Non-Disclosure Agreement

The undersigned, __________(Insert Name)__________, an authorized representative of the __________(Insert Company Name)__________, (which is hereinafter referred to as the “Recipient”) requests the Government to provide the Recipient with PMS 406, Program Executive Office Unmanned and Small Combatants (PEO USC) Autonomy Software Information (hereinafter referred to as “Data”) in which the Government's use, modification, reproduction, release, performance, display or disclosure rights are restricted. In consideration for receiving such Data, the Recipient agrees to use the Data strictly in accordance with this Agreement:

(1) The Recipient shall—

Use, modify, reproduce, release, perform, display, or disclose Data marked with government purpose rights legends only for government purposes and shall not do so for any commercial purpose. The Recipient shall not release, perform, display, or disclose these Data, without the express written permission of the contractor whose name appears in the restrictive legend (the “Contractor”), to any person other than its subcontractors or suppliers, or prospective subcontractors or suppliers, who require these Data to submit offers for, or perform, contracts with the Recipient. The Recipient shall require its subcontractors or suppliers, or prospective subcontractors or suppliers, to sign a Use and Non-Disclosure Agreement prior to disclosing or releasing these Data to such persons. Such agreement must be consistent with the terms of this agreement.

(2) The Recipient agrees to adopt or establish operating procedures and physical security measures designed to protect these Data from inadvertent release or disclosure to unauthorized third parties.

(3) The Recipient agrees to accept these Data “as is” without any Government representation as to suitability for intended use or warranty whatsoever. This disclaimer does not affect any obligation the Government may have regarding Data specified in a contract for the performance of that contract.

(4) The Recipient may enter into any agreement directly with the Contractor with respect to the use, modification, reproduction, release, performance, display, or disclosure of these Data.

(5) The Recipient agrees to indemnify and hold harmless the Government, its agents, and employees from every claim or liability, including attorney’s fees, court costs, and expenses arising out of, or in any way related to, the misuse or unauthorized modification, reproduction, release, performance, display, or disclosure of Data received from the Government with restrictive legends by the Recipient or any person to whom the Recipient has released or disclosed the Data.

(6) The Recipient is executing this Agreement for the benefit of the Contractor. The Contractor is a third party beneficiary of this Agreement who, in addition to any other rights it may have, is intended to have the rights of direct action against the Recipient or any other person to whom the Recipient has released or disclosed the Data, to seek damages from any breach of this Agreement or to otherwise enforce this Agreement.

(7) The Recipient agrees to destroy these Data, and all copies of the Data in its possession, no later than 30 days after the date shown in paragraph (8) of this Agreement, to have all persons to whom it released the Data do so by that date, and to notify the Contractor that the Data have been destroyed.

(8) This Agreement shall be effective for the period commencing with the Recipient's execution of this Agreement and ending upon 60 days after the RFI closes. The obligations imposed by this Agreement shall survive the expiration or termination of the Agreement.

By____________________________ Authorized Representative Date