Attachment A- Draft Model FSAA.pdf

Attachment A: Draft Funded Space Act Agreement Commercial Destinations - Development and Demonstration Objectives (C3DO)

ATTACHMENT A: DRAFT FUNDED SPACE ACT AGREEMENT

(FSAA)

The following is a draft FSAA for the Commercial Destinations-Development and Demonstration Objectives (C3DO). This draft will be the subject of final negotiations between NASA and a participant and establishes the basic parameters of the agreement between the parties. Questions or comments on the draft SAA may be submitted to the Commercial Low Earth Orbit (LEO) Development Program (CLDP) Agreements Officer.

As per the instructions in Section 5.0 of the Announcement, the participants are asked to complete the milestone table and other participant-unique sections of this draft Space Act Agreement (SAA) and submit the entire SAA with proposed modifications and rationale for such modifications with their proposal.

FUNDED SPACE ACT AGREEMENT NO.__________

BETWEEN

THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

LYNDON B. JOHNSON SPACE CENTER

AND

<XYZ>

FOR

COMMERCIAL DESTINATION - DEVELOPMENT & DEMONSTRATION

OBJECTIVES (C3DO)

This document has been approved for public release via the Scientific, Technical and Research Information DiscoVEry System (STRIVES) 20250008826 Process. It has been reviewed for Proprietary, CUI, and Export Control (ITAR/EAR) and has been determined to be non-sensitive.

This document has been approved for public release per STI 20250008826

Contents

BACKGROUND

ARTICLE 1. AUTHORITY AND PARTIES

ARTICLE 2. PURPOSE

ARTICLE 3. RESPONSIBILITIES

ARTICLE 4. SCHEDULE AND MILESTONES

ARTICLE 5. FINANCIAL OBLIGATIONS

ARTICLE 6. PRIORITY OF USE

ARTICLE 7. NONEXCLUSIVITY

ARTICLE 8. LIABILITY AND RISK OF LOSS

ARTICLE 9, INSURANCE FOR THIRD PARTY CLAIMS

ARTICLE 10. CREW CODE OF CONDUCT

ARTICLE 11. PARTNER USE OF GOVERNMENT ASTRONAUTS AND

EQUIPMENT

ARTICLE 12. PRODUCT LIABILITY

ARTICLE 13. INTELLECTUAL PROPERTY RIGHTS - DATA RIGHTS

ARTICLE 14. INTELLECTUAL PROPERTY RIGHTS - INVENTION AND PATENT

RIGHTS

ARTICLE 15. USE OF PARTIES’ NAME AND IDENTIFIERS

ARTICLE 16. RELEASE OF GENERAL INFORMATION TO THE PUBLIC AND

MEDIA

ARTICLE 17. DISCLAIMER OF WARRANTY

ARTICLE 18. DISCLAIMER OF ENDORSEMENT

ARTICLE 19. COMPLIANCE WITH LAWS, REGULATIONS, AND POLICY

ARTICLE 20. TERM OF AGREEMENT

ARTICLE 21. TERMINATION

ARTICLE 22. CONTINUING OBLIGATIONS

ARTICLE 23. POINTS OF CONTACT

ARTICLE 24. DISPUTE RESOLUTION

ARTICLE 25. INVESTIGATIONS OF MISHAPS AND CLOSE CALLS

ARTICLE 26. MODIFICATIONS

ARTICLE 27. ASSIGNMENT

ARTICLE 28. APPLICABLE LAW

ARTICLE 29. INDEPENDENT RELATIONSHIP

ARTICLE 30. GOVERNMENT PROPERTY

ARTICLE 31. TITLE AND RIGHTS IN REAL AND PERSONAL PROPERTY

ARTICLE 32. NASA FURNISHED INFORMATION AND SERVICES

ARTICLE 33: COOPERATIVE DATA SHARING FOR FUTURE NASA

CERTIFICATION

ARTICLE 34. INDEMNIFICATION

ARTICLE 35. SIGNATORY AUTHORITY

APPENDIX 1: Executive Summary APPENDIX 2: C3DO Payment Milestones APPENDIX 3: C3DO Insight Plan APPENDIX 4: Applicable Documents (if required)

BACKGROUND

This effort is a collaboration between NASA and industry partners to develop United States (U.S.) Commercial LEO Destination Systems (CLDS) that could eventually lead to the availability of U.S. commercially offered end-to-end CLDS services for both commercial and Government customers. The CLDS is a free flying LEO platform that supports crew and cargo transportation services, utilization services, and ground and mission systems. This collaboration will facilitate industry’s design, development, testing and crewed demonstration of an integrated CLDS not later than 2030, in furtherance of the goal to maintain a U.S. human presence in LEO beyond ISS that advances human space exploration, scientific discoveries, and U.S. economic competitiveness using U.S. commercial investment and participation.

The CLDS (as shown in Figure 1 below) is defined as the sum of all hardware, software, facilities, personnel, products, processes, and procedures required to build, integrate, test, launch, operate, return, maintain, and sustain a human presence and research capability in

LEO.

The CLDS includes:

• Commercial LEO Destination (CLD) vehicle (which can include tug vehicles, remote service vehicles, and any other vehicles/elements interfacing with the CLD for on-orbit configuration needs that is NOT a transportation vehicle/element).

• Launch Assembly/Ascent Vehicle (LAV),

• Crew Visiting Vehicle (CVV), with Crew return,

• Cargo Visiting Vehicle (CaVV), may include return capability,

• Each of these vehicles receive support from and depend on services that include a:

o Ground System (GS), and o Mission System (MS).

• When a visiting vehicle is mated to its launch vehicle, this configuration is defined as the Integrated Stack (IS). When a destination vehicle is mated to its launch vehicle, this configuration is defined as the CLD Integrated Stack (IS).

FIGURE 1, CLDS COMPONENTS

This CD3O Funded Space Act Agreement (FSAA) represents <XYZ>’s and NASA’s commitment to the <XYZ>’s design, development and demonstration phase to develop the vehicles, systems, and operations needed to deploy and operate free-flying LEO destinations that meet potential future needs of various customers including the U.S.

Government.

ARTICLE 1. AUTHORITY AND PARTIES

In accordance with the National Aeronautics and Space Act (51 U.S.C. § 20113(e)), this Agreement is entered into by the National Aeronautics and Space Administration Lyndon B. Johnson Space Center, located at 2101 E. NASA Parkway, Houston, Texas 77058 (hereinafter referred to as "NASA" or "NASA JSC") and <XYZ> located at <XYZ>, <XYZ>, <XYZ> 00000-0000 (hereinafter referred to as "Partner" or "<XYZ>"). NASA and Partner may be individually referred to as a "Party" and collectively referred to as the "Parties."

ARTICLE 2. PURPOSE

The purpose of this Agreement is to facilitate the Partner’s maturation of the design, development, testing and crewed demonstration of a commercially owned and operated CLDS that includes integrated capabilities for a free flying LEO platform that supports crew and cargo transportation services, crew habitation and operation, utilization services, and ground and mission systems. This activity is expected to result in significant maturation of commercial destination capabilities and an orbital crewed demonstration mission desired not later than 2030. As part of the work in this Agreement, the Parties may work in collaboration in some areas as may be mutually agreed during implementation of this Agreement and documented in a Technical Implementation Plan

(TIP).

{Participant to complete this section with their capabilities to describe their architecture, evolvable or scalable plans, utilization capabilities and overall plans to align with the C3DO goals defined in the AFP Section 3.1}

ARTICLE 3. RESPONSIBILITIES

A. NASA will use reasonable efforts to:

(1) Provide a point of contact for Partner within the CLDP within thirty (30) days after the effective date of this Agreement.

(2) Participate in the Partner’s quarterly status reviews.

(3) Appoint a NASA representative to participate in each review board described in

Appendix 2, C3DO Payment Milestones.

(4) Review insight and milestone data provided by Partner and provide analysis, tests, integration activities, and assessments at NASA’s discretion.

(5) Attend and observe Partner milestones, at NASA’s discretion and after coordination with Partner.

(6) Provide milestone payments to Partner upon Partner’s successful completion of each milestone;

(7) Provide use of facilities, equipment, and/or services as identified and described in a TIP to be developed by the Parties as needed.

(8) Provide access to requested NASA technical data, lessons learned, expertise support, and NASA-developed technologies, on a non-interference basis as resources permit.

B. Partner will use reasonable efforts to:

(1) Conduct design, development, testing, and crewed demonstration of <XYZ>’s

CLDS according to the milestones identified in Appendix 2, C3DO Payment

Milestones and provide NASA with data to demonstrate that Milestone entrance and success criteria have been successfully completed.

(2) Hold a checkpoint meeting with NASA one month prior to milestone data delivery to review entrance/success criteria and traceability of the data to each entrance/success criteria, discuss execution of the milestone, review the agenda, and review data availability and schedule. Milestone data should be provided to NASA at least twenty (20) days prior to Milestone execution.

(3) Conduct quarterly Program Management Reviews (PMR).

(4) Designate at least one seat for a NASA representative on each review board for major milestones.

(5) Provide equipment as identified and described in the TIP. All equipment provided by Partner to NASA shall include documentation stating build, revision, and traceability information.

(6) Fulfill its obligations in the TIP.

(7) Provide NASA Insight Data as defined in the Appendix 3, Insight Plan throughout the project lifecycle.

(8) Provide a signed evidence of completion memo at the completion of each milestone. The memo should provide a short summary of the milestone completed, listing of any products provided, validation of entrance and success criteria being met including any open actions/Review Item Discrepancies (RIDs) with forward work and estimated completion dates, and assertion that Partner has approved the milestone.

(9) Provide one (1) dedicated office and accommodations for NASA personnel at the Partner’s primary assembly and/or integration facility and provide hoteling accommodations at other locations for other NASA support, as negotiated.

ARTICLE 4. SCHEDULE AND MILESTONES

The milestones listed in Appendix 2, Base Period Performance Milestones, form the awarded effort under this Agreement. Milestones in Appendix 2, Optional Period Performance Milestones, are optional performance milestones related to Partner efforts. These optional milestones create no obligation for either party unless the Government subsequently provides specific written authorization and funding and the Parties agree to exercise the milestones. If, during the Term of the Agreement, NASA determines to exercise any of the optional milestones to the Agreement, NASA will provide written notice to the Partner. At that time, the Parties will negotiate a completion date and funding amount for the optional milestone, not to exceed the amount of that milestone as listed in Appendix 2 at the time of the Agreement award. Final awarded milestone amounts are subject to the availability of appropriated funds.

Quarterly Project Management Reviews (QPMR)

Partner <XYZ> shall conduct quarterly project status briefings with NASA. Progress made shall be estimated and reported in a mutually agreed to quantifiable performance method. The briefings shall describe: the technical progress made on the integrated CLDS, milestone expectations for upcoming quarter, delivery and review of current risk assessments, discussion of financial activities such as investments and customer acquisition, and any life cycle cost change since the last report; delivery and review of updates to Partner Integrated Master schedule at a sub system level, plans forward; and any difficulties encountered. The Integrated Master Schedule (IMS) should be in the native file format (no modifications needed) and include tasks and milestones from subcontractors and commercial launch vehicle providers, tasks or activities which have a dependency on USG delivery or approval, the critical path and any schedule margin.

Additionally, Partner <XYZ> shall provide a status of: Planned Manufacturing events for critical hardware, closure status of action items, Testing, Long Lead Parts, Safety and Mission Assurance items, Progress on contracts and agreements, key personnel, and any other items the Partner finds relevant to NASA's understanding of the project’s current status. NASA will provide status on any government provided services or equipment or open work associated with resource requests and the TIP.

ARTICLE 5. FINANCIAL OBLIGATIONS

A. Obligation

NASA's liability to make payments to the Partner <XYZ> is limited to only those funds obligated under this Agreement or by amendment to the Agreement. NASA may obligate funds to the Agreement incrementally at its sole discretion.

B. Acceptance and Payment for Milestones

(1) Partner shall notify the NASA principal points of contact, listed in Article 23, Points of Contact, at least thirty (30) calendar days prior to the completion of any milestone to arrange for the NASA Technical Contact or designee to witness the event or accept delivery of documents. NASA shall have thirty (30) calendar days from the delivery of evidence of completion memo as described in Appendix 2, C3DO Payment Milestones of this Agreement to determine whether the milestone event meets its corresponding acceptance criteria and shall provide written notice to Partner's Principal Points of Contact of NASA's acceptance or non-acceptance within ten (10) calendar days of that determination. Acceptance of milestones will be at NASA's sole discretion. NASA may determine at its sole discretion that a milestone is partially complete and may decide to make partial payments for the completed portion of the milestone. NASA will provide written notice to the Partner's Principal Points of Contact of NASA's partial acceptance within ten (10) calendar days of that determination. Under a partial acceptance, the Partner will be required to provide a revised milestone completion memo detailing a plan to revise its approach to completing the milestone criteria previously not met.

(2) Partner shall submit a written invoice requesting payment from NASA within five

(5) calendar days of notification of acceptance by NASA of each milestone. The amount of the submitted invoice may not differ from the mutually agreed upon amounts described in Appendix 2 of this Agreement. Partner shall submit all invoices utilizing Treasury's Invoice Processing Platform (IPP). For instructions on submitting invoices through IPP, reference:

https://www.nssc.nasa.gov/vendorpayment. After receipt and review of the invoice, the NASA Administrative Contact will prepare a written determination of milestone completion and authorize payment.

(3) The following information shall be included on each Partner invoice to NASA:

(a) Agreement Number;

(b) Invoice Number;

(c) A description of Milestone event;

(d) Terms of Payment;

(e) Payment Office; and

(f) Amount of the fixed contribution claimed.

(4) Financial Records and Reports: Except as otherwise provided in this Agreement, the Partner's relevant financial records associated with this Agreement shall not be subject to examination or audit by NASA.

(5) Comptroller General Access to Records: The Comptroller General, at its discretion and pursuant to applicable regulations and policies, 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 the Government makes the final milestone payment under 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 any subcontracts or other arrangements in excess of $5,000,000.00, which the Partner has or may enter into related to the execution of the milestone events in this Agreement.

(6) Notwithstanding any other provision of this Agreement, all activities under or pursuant to this Agreement are subject to the availability of funds, and no provision of this Agreement shall be interpreted to require obligation or payment of funds in violation of the Anti-Deficiency Act, (31 U.S.C. § 1341).

https://www.nssc.nasa.gov/vendorpayment

ARTICLE 6. PRIORITY OF USE

If NASA goods, services, facilities, or equipment are provided by NASA in support of the activities under this Agreement, any schedule or milestone in this Agreement is estimated based upon the Parties' current understanding of the projected availability of NASA goods, services, facilities, or equipment. In the event that NASA's projected availability changes, Partner shall be given reasonable notice of that change, so that the schedule and milestones may be adjusted accordingly. The Parties agree that NASA's use of its goods, services, facilities, or equipment shall have priority over the use planned in this Agreement. Should a conflict arise, NASA in its sole discretion shall determine whether to exercise that priority. Likewise, should a conflict arise as between two or more non-NASA Partners, NASA, in its sole discretion, shall determine the priority as between those Partners. This Agreement does not obligate NASA to seek alternative government property or services under the jurisdiction of NASA at other locations.

Partner remains responsible for meeting their milestones even if availability of NASA goods, services, facilities, or equipment changes.

ARTICLE 7. NONEXCLUSIVITY

This Agreement is not exclusive; accordingly, either Party may enter into similar agreements for the same or similar purpose with other private or public entities, except that Partner may not receive funding from another U.S. Government agency for the same activities as this Agreement.

ARTICLE 8. LIABILITY AND RISK OF LOSS

A. The objective of this Article is to establish a cross-waiver of liability in the interest of encouraging participation in the exploration, exploitation, and use of outer space. The Parties intend that the cross-waiver of liability be broadly construed to achieve this objective.

B. For purposes of this Article:

(1) The term "Damage" means:

a. Bodily injury to, or other impairment of health of, or death of, any person;

b. Damage to, loss of, or loss of use of any property;

c. Loss of revenue or profits; or

d. Other direct, indirect, or consequential Damage.

(2) The term "Launch Vehicle" means an object, or any part thereof, intended for launch, launched from Earth, or returning to Earth which carries Payloads, persons, or both.

(3) The term "Payload" means all property to be flown or used on or in a Launch

Vehicle.

(4) The term "Protected Space Operations" means all Launch Vehicle or Transfer

Vehicle activities, activities on or related to a Destination, and Payload activities on Earth, in outer space, or in transit between Earth and outer space in implementation of this Agreement. Protected Space Operations begins at the signature of this Agreement and ends when all activities done in implementation of this Agreement are completed. It includes, but is not limited to:

(a) Research, design, development, test, manufacture, assembly, integration, operation, or use of Launch Vehicles or Transfer Vehicles, Destinations, Payloads, or instruments, as well as related support equipment and facilities and services; and

(b) All activities related to ground support, test, training, simulation, or guidance and control equipment and related facilities or services.

"Protected Space Operations" excludes activities on Earth that are conducted on return from space to develop further a Payload's product or process for use other than for the activities within the scope of this Agreement.

(5) The term "Related Entity" means:

(a) A contractor or subcontractor of a Party at any tier;

(b) A user or customer of a Party at any tier; or

(c) A contractor or subcontractor of a user or customer of a Party at any tier.

The terms "contractor" and "subcontractor" include suppliers of any kind.

The term "Related Entity" may also apply to a State, or an agency or institution of a State, having the same relationship to a Party as described in paragraphs B.5.a.

through B.5.c. of this Article, or otherwise engaged in the implementation of Protected Space Operations as defined in paragraph B.4. above.

For avoidance of doubt, non-Government Astronauts (as defined in 51 U.S.C.

50902) that are involved in activities on or related to the CLDS are considered “Related Entities.”

(6) The term "Transfer Vehicle" means any vehicle that operates in space and transfers Payloads or persons or both between two different space objects, between two different locations on the same space object, or between a space object and the surface of a celestial body. A Transfer Vehicle also includes a vehicle that departs from and returns to the same location on a space object.

C. Cross-waiver of liability:

(1) Each Party agrees to a cross-waiver of liability pursuant to which each Party waives all claims against any of the entities or persons listed in paragraphs C.1.a.

through C.1.d. of this Article based on Damage arising out of Protected Space Operations. This cross-waiver shall apply only if the person, entity, or property causing the Damage is involved in Protected Space Operations and the person, entity, or property damaged is damaged by virtue of its involvement in Protected Space Operations. The cross-waiver shall apply to any claims for Damage, whatever the legal basis for such claims, against:

(a) The other Party;

(b) A party to another NASA agreement or contract that includes flight on the same Launch Vehicle, or to the same Destination;

(c) A Related Entity of any entity identified in paragraphs C.1.a. or C.1.b. of this Article; or

(d) The employees of any of the entities identified in paragraphs C.1.a.

through C.1.c. of this Article.

(2) In addition, each Party shall extend the cross-waiver of liability, as set forth in paragraph C.1. of this Article, to its own Related Entities by requiring them, by contract or otherwise, to:

(a) Waive all claims against the entities or persons identified in paragraphs

C.1.a. through C.1.d. of this Article; and

(b) Require that their Related Entities waive all claims against the entities or persons identified in paragraphs C.1.a. through C.1.d. of this Article.

(3) For avoidance of doubt, this cross-waiver of liability includes a cross-waiver of claims arising from the Convention on International Liability for Damage Caused by Space Objects, which entered into force on September 1, 1972, where the person, entity, or property causing the Damage is involved in Protected Space Operations and the person, entity, or property damaged is damaged by virtue of its involvement in Protected Space Operations.

(4) Notwithstanding the other provisions of this Article, this cross-waiver of liability shall not be applicable to:

(a) Claims between a Party and its own Related Entity or between its own Related Entities;

(b) Claims made by a natural person, his/her estate, survivors, or subrogees (except when a natural person is non-Government Astronauts (as defined in 51 U.S.C. 50902) or their estate, survivors, or subrogees, and except when a subrogee is a Party to this Agreement or is otherwise bound by the terms of this cross-waiver) for bodily injury to, or other impairment of health of, or death of, such person;

(c) Claims for Damage caused by willful misconduct;

(d) Intellectual property claims;

(e) Claims for Damage resulting from a failure of a Party to extend the cross-waiver of liability to its Related Entities, pursuant to paragraph C.2. of this Article; or

(f) Claims by a Party arising out of or relating to another Party's failure to perform its obligations under this Agreement.

(5) Nothing in this Article shall be construed to create the basis for a claim or suit where none would otherwise exist.

(6) This cross-waiver shall not be applicable to the extent the cross-waiver for activities licensed by the FAA under to 51 U.S.C. Chapter 509 applies to the activities under this Agreement.

D. To the extent that activities under this Agreement are not within the definition of

"Protected Space Operations," defined above, the following unilateral waiver of claims applies to activities under this Agreement.

(1) Partner hereby waives any claims against NASA, its employees, its Related

Entities, and employees of NASA's Related Entities for any injury to, or death of, Partner employees or the employees of Partner's Related Entities, or for damage to, or loss of, Partner's property or the property of its related entities arising from or related to activities conducted under this Agreement, whether such injury, death, damage, or loss arises through negligence or otherwise, except in the case of willful misconduct.

(2) Partner further agrees to extend this unilateral waiver to its Related Entities by requiring them, by contract or otherwise, to waive all claims against NASA, its Related Entities, and employees of NASA and employees of NASA's related entities for injury, death, damage, or loss arising from or related to activities conducted under this Agreement.

E. Partner shall obtain a written and signed acknowledgement from all non-

Government Astronauts that NASA is not providing oversight or certification for the launch or crew transportation vehicles, or for the CLDS, as safe for carrying non-Government Astronauts.

ARTICLE 9, INSURANCE FOR THIRD PARTY CLAIMS

This clause applies to Third Party claims that arise out of the conduct of or performance of activities under this Agreement including activities of Partner, Private Astronauts, Transportation Provider, and its related entities to the extent such activities are not covered by an FAA license pursuant to 51 U.S.C. § 50901 et seq.

(A) Definitions for purposes of this clause:

(1) Damage(s):

(a) Bodily injury or death; or

(b) Damage to or loss of any real or personal property;

(2) Related Party:

(a) Any of the Parties’ directors, officers, agents, or employees.

(b) Any of the Parties’ contractors, subcontractors, or suppliers at any tier involved directly or indirectly in the performance of this Agreement.

(c) Any entity having any right, title or interest, whether through sale, lease or service arrangement or otherwise, directly or indirectly, in the activities under this Agreement.

(d) Any of the Parties’ customers or users at any tier and the contractors, subcontractors, or suppliers of said customers or users at any tier.

(3) Third Party: Any person or entity other than the Parties and their Related Parties.

(B) Insurance for Liability to Third Parties

(1) Partner is not required to acquire insurance to compensate, for claims by Third

Parties for Damages arising as a result of activities under this Agreement, except as otherwise required by law.

(2) However, it is strongly advised that Partner make its own assessment of the risks and determine its insurance needs to ensure coverage for all claims covered under the terms of this Agreement based on any act, omission, event or condition that could occur or arise as a result of the activities of Partner or its Related Parties during the term of the Agreement. NASA makes no representation or warranty that coverage or limits will be adequate to protect Partner from losses, financial or otherwise, and such coverage and limits shall not be deemed as representing maximum potential exposure for activities under this Agreement and outside of the terms of this Agreement Partner shall procure additional insurance to cover such claims that Partner deems commercially responsible.

ARTICLE 10. CREW CODE OF CONDUCT

Partner shall provide a code of conduct for CLDS crew to NASA for review. At a minimum, the code of conduct will address the following:

(1) Establish a clear chain of command on-orbit; establish a clear relationship between ground and on-orbit management; and establish a management hierarchy;

(2) Set forth standards for work and activities in space, and, as appropriate, on the ground;

(3) Establish responsibilities with respect to elements and equipment;

(4) Establish physical and information security guidelines; and

(5) Define the commander's authority and responsibility.

ARTICLE 11. PARTNER USE OF GOVERNMENT ASTRONAUTS AND

EQUIPMENT

In the event that Government Astronauts (as defined in 51 U.S.C. 50901) or significant Government equipment (as determined and documented by NASA) are requested by the Partner and provided by the Government to support Partner activities under this Agreement, the following additional requirements shall apply:

(A) Informed Consent, Assumption of Risk, and Release of Claims.

The Partner shall inform each non-Government Astronaut (as defined in 51 U.S.C. 50902) involved in Protected Space Operations (as defined in paragraph (B)(5) Article 8, Liability and Risk of Loss) in writing about the risks of spaceflight and on-orbit operations, including operations on or involving the CLDS, and require the non-Government Astronauts to release NASA from liability resulting from the Protected Space Operations.

The Partner shall certify to NASA prior to commencement of non-Government Astronaut training that Partner has obtained a written statement, signed individually by each non-Government Astronaut, that evidences that each non- Government Astronaut has been informed of, understands and assumes all risks associated with spaceflight and on-orbit operations, and other Protected Space Operations, including on the CLDS, and activities supporting the CLDS activities.

The Partner shall make its own assessment of the risks and determine the appropriate information to provide to ensure that the non-Government Astronauts are fully informed of the risks associated with Protected Space Operations. At a minimum, the Partner will require the following:

(1) a release to the U.S., its officers, agents and employees from any and all causes of action, claims, demands or suits arising directly or indirectly, in whole or in part, from personal injury or property damage the non-Government Astronaut may suffer for all CLDS activities. This release should bind each non-Government Astronaut, the non-Government Astronaut’s estates, survivors, subrogees or anyone claiming by or through them and their heirs and assigns, and does not replace the flow down requirements of paragraphs A through D of Article 8, Liability and Risk of Loss.

(2) an acknowledgement that NASA is not providing oversight or certification for the launch or crew transportation vehicles, or for the CLDS, as safe for carrying non- Government Astronauts;

(3) an acknowledgement that the Partner, not NASA, is responsible for all activities associated with CLDS execution, including but not limited to: selection, training, and medical qualification of non-Government Astronauts; providing necessary supplies, life support, and medical care for non-Government Astronauts during all phases of flight; CLDS non-Government Astronaut safety for all phases of the mission; and nominal and off-nominal Launch and landing operations, including emergency rescue; and

(4) an agreement that federal laws of the United States of America shall apply to determine the validity of the release.

(5) possible additional requirements (TBD-1)

NASA makes no representation or warranty that the above will be adequate to fully inform non-Government Astronauts of the risks associated with Protected Space Operations.

(B) Crew Code of Conduct.

Partner shall provide a draft code of conduct for CLDS crew to NASA for review, as required by Article 10, Crew Code of Conduct and the Parties will coordinate to jointly agree to a final code of conduct.

(C) Insurance for Damage to Government property.

At NASA’s discretion, at no cost to NASA, and notwithstanding the waiver of claims in Article 8, Liability and Risk of Loss the Partner shall maintain insurance, or demonstrate financial capability to compensate for, damages (as defined in Article 8, Liability and Risk of Loss) to U.S. Government property resulting from activities under this Agreement at such limits as reasonably determined by NASA. NASA will notify Partner in writing of Government property to which this requirement applies and the amount of required insurance.

The waiver of claims in Article 8, Liability and Risk of Loss will apply only above the insured amount. In the event U.S. Government property for which insurance is required is damaged as a result of activities of the Partner and its Related Entities (including non-Government Astronauts) under this Agreement, the Partner shall be solely responsible for the repair and restoration of such property subject to NASA direction. Partner’s liability for such repair and restoration, however, shall not exceed the agreed insurance amount.

The Government may request that all insurance proceeds be made payable directly to the party making the repairs or providing a replacement. Such repair or replacement shall be to the satisfaction of the Government. If losses or damages exceed available insurance, the Government shall have the right to prioritize the application of insurance proceeds.

The required insurance policy(ies) shall provide that the insurer waives its right as a subrogee against U.S. Government contractors, subcontractors, or other Related Entities for damages. The insurance policy shall specifically include a statement that excludes any claim by the insurer for subrogation against the Government by reason of any payment under the policy.

The Partner shall provide acceptable evidence of the insurance or financial capability to the Agreement Officer, subject to Agreement Officer approval.

(D) The above list may not be complete. Additional terms and conditions may apply when Government Astronauts or property are provided in support of activities under this Agreement. Such additional terms and conditions will be documented in writing and agreed to by the Parties’ authorized representatives.

(E) For avoidance of doubt, the above requirements are in addition to other requirements in this Agreement, including those set forth in Article 8, Liability and Risk of Loss.

ARTICLE 12. PRODUCT LIABILITY

With respect to products or processes resulting from a Party’s participation in an SAA, each Party that markets, distributes, or otherwise provides such product, or a product designed or produced by such a process, directly to the public will be solely responsible for the safety of the product or process.

ARTICLE 13. INTELLECTUAL PROPERTY RIGHTS - DATA RIGHTS

A. General

(1) "Contributing Entity" as used in this Data Rights Article, means a contractor, subcontractor, grantee, or other entity having a legal relationship with NASA or Partner that is assigned, tasked, or contracted with to perform activities under this

(2) "Data" means recorded information, regardless of form, the media on which it is recorded, or the method of recording.

(3) "Proprietary Data" means Data embodying trade secrets or commercial or financial information that is privileged or confidential, and that includes a restrictive notice, unless the Data is:

(a) known or available from other sources without restriction;

(b) known, possessed, or developed independently, and without reference to the Proprietary Data;

(c) made available by the owners to others without restriction; or

(d) required by law or court order to be disclosed.

(4) “Background Data” means Partner’s Proprietary Data developed outside of this

(5) “Third Party Proprietary Data” means Proprietary Data of third parties that disclosing Party has agreed to protect or where the Government is required to protect under federal law (e.g., 18 U.S.C. §1905).

(6) “Controlled Government Data” means information the United States Government creates or possesses that requires safeguarding or dissemination controls.

(7) "Practical Application," as used in this Data Rights Article, means to:

(a) manufacture, in the case of a composition or product;

(b) practice, in the case of a process or method; or

(c) operate, in case of a machine or system;

and, in each case, under conditions establishing the invention, hardware, software, or service is being used, and its benefits are publicly available on reasonable terms, as permitted by law.

(8) Data exchanged between NASA and Partner under this Agreement will be exchanged without restriction except as otherwise provided herein.

(9) Notwithstanding any restrictions provided in this Article, the Parties are not restricted in the use, disclosure, or reproduction of Data provided under this Agreement that meets one of the exceptions in item 3, above. If a Party believes that any exceptions apply, it shall notify the other Party before any unrestricted use, disclosure, or reproduction of the Data.

(10) The Parties will not exchange preexisting Proprietary Data under this Agreement unless authorized herein or in writing by the owner.

(11) If the Parties exchange Data having a notice that the Receiving Party deems is ambiguous or unauthorized, the Receiving Party shall tell the Providing Party. If the notice indicates a restriction, the Receiving Party shall protect the Data under this Article unless otherwise directed in writing by the Providing Party.

(12) The Data rights herein apply to the employees and Contributing Entities of

Partner. Partner shall ensure that its employees and Contributing Entity employees know about and are bound by the obligations under this Article.

(13) Disclaimer of Liability: Neither Party is restricted in, nor liable for, the use, disclosure, or reproduction of Proprietary Data without a restrictive notice. NASA is not restricted in, or liable for, the use, disclosure, or reproduction of Data Partner gives, or is required to give, the U.S. Government without restriction.

(14) Partner may use the following or a similar restrictive notice:

Proprietary Data Notice The data herein include Proprietary Data and are restricted under the Data

Rights provisions of Agreement [Agreement Number].

Partner should also mark each page containing Proprietary Data with the following or a similar legend: "Proprietary Data – Use And

Disclose Only Under the Notice on the Title or Cover Page."

B. Data First Produced by Partner under this Agreement

(1) If Data first produced by Partner or its Contributing Entities under this Agreement is given to NASA, and the Data is Proprietary Data, and it includes a restrictive notice, NASA will use reasonable efforts to protect it. Partner shall furnish such

Data to NASA upon request and NASA may disclose and use such Data (under suitable protective conditions) only for evaluating Partner's performance of its milestones; validating the objectives of CLDP under C3DO; and supporting future certification of destinations.

(2) Upon a successful completion by Partner of all milestones under this Agreement, NASA shall not assert rights in such Data or use such Data for any purpose except that NASA retains the right to:

(1) maintain a copy of such Data for archival purposes;

(2) use or disclose such archived data within the Government for continued validating and updating of the objectives of the CLDP;

(3) use or disclose such archived Data within the Government for supporting future certification of destinations; and

(4) may use or disclose such archived Data by or on behalf of NASA for

Government purposes in the event the NASA determines that:

(a) Such action is necessary because Partner, its assignee, or other successor has not taken, or is not expected to take within a reasonable time, effective steps to achieve practical application of inventions, hardware, software, or service related to such Data;

(b) Such action is necessary because Partner, its assignee, or other successor, having achieved practical application of inventions, hardware, software, or service related to such Data, has failed to maintain practical application;

(c) Such action is necessary because Partner, its assignee, or other successor has discontinued making the benefits of inventions, hardware, software, or service related to such Data available to the public or to the Federal Government;

(d) Such action is necessary to alleviate health or safety needs which are not reasonably satisfied by Partner, its assignee, or other successor; or

(e) Such action is necessary to meet requirements for public use specified by Federal regulations and such requirements are not reasonably satisfied by Partner, its assignee, or successor.

In the event NASA determines that one of the circumstances listed in subparagraphs (a)-(e) above exists, NASA shall provide written notification to the Partner's Administrative Point of Contact. Upon mailing of such determination, Partner shall have thirty (30) days to respond by providing its objection to the determination as a dispute under Article 24, Dispute Resolution of this Agreement. In the event that Partner does not respond in writing to NASA's determination, then such determination shall serve as a final agency decision for all purposes including judicial review.

(3) In the event NASA terminates this Agreement in accordance with Article 21, Termination, Section B, "Termination for Failure to Perform", NASA may in its sole discretion have the right to use, reproduce, prepare derivative works, distribute to the public, perform publicly, display publicly, or disclose Data first produced by Partner in carrying out Partner's responsibilities under this Agreement by or on behalf of NASA for Government purposes. The parties will negotiate rights in Data in the event of termination for any other reason.

C. Data First Produced by NASA under this Agreement

(1) As to Data first produced by NASA in carrying out NASA responsibilities under this Agreement that would be Proprietary Data if it had been obtained from Partner, such Data will be appropriately marked with a restrictive notice and NASA will use reasonable efforts to maintain it in confidence for five years after its development, with the express understanding that during the aforesaid restricted period such marked Data may be disclosed and used by NASA and any Contributing Entity of NASA (under suitable protective conditions) only for carrying out NASA's responsibilities under this Agreement, for validating and updating the objectives of CLDP under C3DO, and for supporting future certification of destinations, and thereafter for any purpose, except as set forth herein in paragraph C.2. Partner will use reasonable efforts not to disclose the Data without NASA's written approval during the restricted period. The restrictions placed on NASA do not apply to Data disclosing a NASA owned invention for which patent protection is being considered.

(2) Upon a successful completion by Partner of all milestones under this Agreement, NASA shall not assert rights in such Data or use such Data for any purpose except that NASA retains the right to:

(1) maintain a copy of such Data for archival purposes;

(2) use or disclose such archived data within the Government for continued validating and updating of the objectives of the CLDP;

(3) supporting future certification of destinations;

(4) disclose if and to the extent required by law; and

(5) may use or disclose such archived Data by or on behalf of NASA for

Government purposes in the event the NASA determines that:

(a) Such action is necessary because Partner, its assignee, or other successor has not taken, or is not expected to take within a reasonable time, effective steps to achieve practical application of inventions, hardware, software, or service related to such Data;

(b) Such action is necessary because Partner, its assignee, or other successor, having achieved practical application of inventions, hardware, software, or service related to such Data, has failed to maintain practical application;

(c) Such action is necessary because Partner, its assignee, or other successor has discontinued making the benefits of inventions, hardware, software, or service related to such Data available to the public or to the Federal Government;

(d) Such action is necessary to alleviate health or safety needs which are not reasonably satisfied by Partner, its assignee, or other successor; or

(e) Such action is necessary to meet requirements for public use specified by Federal regulations and such requirements are not reasonably satisfied by Partner, its assignee, or successor.

In the event NASA determines that one of the circumstances listed in subparagraphs (a)-(e) above exists, NASA shall provide written notification to the Partner's Administrative Point of Contact. Upon mailing of such determination, Partner shall have thirty (30) days to respond by providing its objection to the determination as a dispute under the Article 24, Dispute Resolution of this Agreement. In the event that Partner does not respond in writing to NASA's determination, then such determination shall serve as a final agency decision for all purposes including judicial review.

(3) In the event NASA terminates this Agreement in accordance with Article 21, Section B, "Termination for Failure to Perform", NASA may in its sole discretion have the right to use, reproduce, prepare derivative works, distribute to the public, perform publicly, display publicly, or disclose Data first produced by NASA in carrying out NASA's responsibilities under this Agreement by or on behalf of NASA for Government purposes during any remaining portion of the restricted period, and thereafter for any purpose. The parties will negotiate rights in Data in the event of termination for any other reason.

(4) NASA Contributing Entities may have rights in Data they produce in support of

NASA’s responsibilities under this Agreement or a under Reimbursable Space Act Agreement for use of Government resources. The rights and commitments provided to Partner by NASA are subject to the rights of NASA Contributing Entities as set forth in their respective contracts or agreements.

D. NASA-Provided Payload Data

(1) Under this Agreement, it is anticipated that NASA-provided sample payloads will be provided to the Partner and that Data will be generated by or about the payloads that the Government intends to control the release, publication, distribution and use thereof. Specifically, it is anticipated that the following type of payload-related Data will be produced:

(a) Payload Data: Data produced by or collected from a NASA-provided payload. This includes but is not limited to electronic data collected by individual investigations documenting the results of the sponsored experiment. This includes numerical values, images, videos, sound recordings, and the research sponsor hardware collects these data.

(b) Payload-Related Mission Data: Data collected describing conditions in a CLDS including, but not limited to temperature, humidity, time-resolved vehicle accelerations, magnetic field, acoustic, atmosphere composition, and radiation level. For the instruments collecting mission data, such data shall also include calibrations, coefficients, algorithms, instrument documentation, and any other ancillary information

(2) Notwithstanding the other terms of this Agreement, NASA and Partner will have the following rights in NASA-provided payload Data:

(a) Notwithstanding the terms of paragraphs (B) and (C) of this Article, for Payload Data, the Partner agrees to:

(1) use and disclose such Data only to the extent necessary to perform the work required under this Agreement, with particular emphasis on restricting disclosure of the Data to those persons who have a definite need for the Data in order to perform under this Agreement;

(2) not reproduce the Data unless reproduction of the Data is specifically permitted by the Agreement Officer;

(3) refrain from disclosing the Data to third parties without the written consent of the Agreement Officer; and

(4) return or deliver the Data including all copies thereof to the Agreement Officer or his designated recipient when requested by the Agreement Officer.

(b) Payload-Related Mission Data produced by the Partner under this Agreement will be disclosed and used by NASA under paragraph B of this Article.

E. Publication of Results

The National Aeronautics and Space Act (51 U.S.C. § 20112) requires NASA to provide for the widest practicable and appropriate dissemination of information concerning its activities and the results thereof. As such, NASA may publish unclassified and non-Proprietary Data resulting from work performed under this Agreement. The Parties will coordinate publication of results allowing a reasonable time to review and comment.

F. Data Disclosing an Invention

If the Parties exchange Data disclosing an invention for which patent protection is being considered, and the furnishing Party identifies the Data as such when providing it to the receiving Party, the receiving Party shall withhold it from public disclosure for a reasonable time (one (1) year unless otherwise agreed or the Data is restricted for a longer period herein).

G. Copyright

Data exchanged with a copyright notice and with no restrictive notice is presumed to be published. The following royalty-free licenses apply.

(1) If indicated on the Data that it was produced outside of this Agreement, it may be reproduced, distributed, and used to prepare derivative works only for carrying out the Receiving Party's responsibilities under this Agreement.

(2) Data without the indication of G.1. is presumed to be first produced under this

Agreement. Except as otherwise provided in paragraph F. of this Article, and in the Article 14, Intellectual Property Rights – Invention and Patent Rights of this Agreement for protection of reported inventions, the Data may be reproduced, distributed, and used to prepare derivative works for any purpose.

H. Data Subject to Export Control

Whether or not marked, technical data subject to the export laws and regulations of the U.S. provided to Partner under this Agreement must not be given to foreign persons or transmitted outside the United States without proper U.S. Government authorization.

I. Handling of Background, Third Party Proprietary and Controlled Government

Data

(1) NASA or Partner (as disclosing Party) may provide the other Party or its

Contributing Entities (as receiving Party) any Background Data, Controlled Government Data, and/or Third-Party Proprietary Data, subject to the following conditions:

(a) Background Data, Third Party Proprietary Data, and Controlled

Government Data provided by disclosing Party to receiving Party shall be marked by…