Articles of Collaboration Revision 1 Fully Executed 07AUG20.pdf

Revision 1, dated December 6, 2019

ADVANCED COMPOSITES CONSORTIUM

ARTICLES OF COLLABORATION

BETWEEN

National Aeronautics and Space Administration (NASA) Federal Aviation Administration (FAA)

General Electric Company Lockheed Martin Corporation

National Institute of Aerospace Associates The Boeing Company

United Technologies Corporation Aurora Flight Sciences Corporation

Spirit AeroSystems, Inc.

ATK Space Systems, Inc.

Collier Research and Development Corporation University of South Carolina

Wichita State University for the

Advanced Composites Consortium (ACC) Public-Private Partnership

PREFACE

P.1 These Articles of Collaboration (hereinafter referred to as “the Agreement” or “this Agreement”) are entered into by and among the following public and private partners who may be referred to individually as “Consortium Member” or collectively as “Consortium Members:”

The National Aeronautics and Space Administration (NASA) Langley Research Center (LaRC), located in Hampton, Virginia, operating under the authority of and in accordance with the National Aeronautics and Space Act (51 U.S.C. § 20113).

The Federal Aviation Administration (FAA) William J. Hughes Technical Center, located in Atlantic City, NJ, operating under the authority of and in accordance with the Federal Aviation Act of 1958 (49 U.S.C. 106(l) and 106(m)), the Economy Act (31 U.S.C 1535).

Selected Partner/Tier I Member, General Electric Company, a corporation organized and existing under the laws of the State of New York, acting by and through its division GE Aviation with offices in Evendale, OH (hereinafter GE).

Selected Partner/Tier I Member, Lockheed Martin Corporation, a corporation organized and existing under the laws of the State of Maryland, acting by and through its division Lockheed Martin Aeronautics with offices in Palmdale, CA (hereinafter LM Aero).

Tier II Member, National Institute of Aerospace Associates (NIAA) dba National Institute of Aerospace, a 501(c)3 non-profit organized and existing under the laws of the State of Virginia, with offices in Hampton, VA (hereinafter NIA).

Selected Partner/Tier I Member, The Boeing Company, a corporation organized and existing under the laws of the State of Delaware, acting by and through its division

Boeing Research & Development (BR&T) with offices in St. Louis, MO (hereinafter Boeing).

Selected Partner/Tier I Member, United Technologies Corporation, a corporation organized and existing under the laws of the State of Delaware, acting by and through its division Pratt & Whitney with offices in East Hartford, CT (hereinafter UTC).

Tier I Member, Aurora Flight Sciences Corporation, a corporation organized and existing under the laws of the State of Delaware with offices in Manassas, VA (hereinafter Aurora).

Tier 1 Member, Spirit AeroSystems, Inc., a corporation organized and existing under the laws of the State of Delaware, with offices in in Wichita, KS (hereinafter Spirit).

Tier II Member, ATK Space Systems, Inc., ., a wholly owned subsidiary of Northrop Grumman Innovation Systems, Inc. organized and existing under the laws of the State of Delaware with offices in Clearfield, UT, Iuka, MS and Dayton, OH (hereinafter ATK).

Tier II Member, Collier Research and Development Corporation, a corporation organized and existing under the laws of the State of Virginia with offices Newport News, VA (hereinafter Collier).

Tier II Member, University of South Carolina, a public university organized and existing under the laws of the State of South Carolina, with its main campus in Columbia, SC (hereinafter USC).

Tier II Member, Wichita State University, a state educational institute of Kansas, with its campus in Wichita, KS (hereinafter WSU).

P.2 Definitions:

The term “ACC” as used herein shall refer to the Advanced Composites Consortium comprised of signatories to these Articles of Collaboration.

The term “ACCP” as used herein shall refer to the Advanced Composites Consortium Program.

The term “Consortium Members” as used herein shall refer, individually and collectively, to the signatories to these Articles of Collaboration as set forth above.

The term “Cooperative Agreement” (CA) as used herein refers to the Agreement negotiated between NASA and each Recipient, on behalf of the ACC, to execute Projects under the ACCP.

The term “Cooperative Research Team” (CRT) as used herein shall refer collectively to the entities responsible for performing a particular Project, with each such entity individually being referred to as a “CRT Member.”

The term “Executive Steering Committee” (ESC) as used herein shall refer to the committee of senior-level representative designated by each of the Consortium Members respectively, together with NASA and FAA representatives so designated by NASA and the FAA.

The term “Industry” as used herein shall refer to non-Government Consortium Members, including, but not limited to, educational institutions.

The term “Memorandum of Understanding” as used herein refers to the Memorandum of Understanding that NASA executed with each entity that NASA selected based on proposals received in response to a partnering synopsis that NASA issued to identify original members of the ACC formed by these Articles of Collaboration.

The term “NASA Agreement Officer” as used herein shall refer to a Government employee (usually a Contracting Officer) who has been delegated the authority to negotiate, award, or administer the Cooperative Agreements.

The term “NASA Technical Officer” as used herein shall refer to the official of the cognizant NASA office who is responsible for monitoring the technical aspects of the work under the CAs.

The terms “Project” and “Projects” as used herein shall refer to discrete research and development tasks performed under these Articles of Collaboration. Each Project will be performed by a Cooperative Research Team.

The term “Project Work Plan” as used herein shall refer to the document describing a

Work Activity under the Cooperative Agreements or Project under the Articles of

Collaboration, to include a description of the activity, identification of the Consortium

Members who will participate in the conduct of the activity, the total cost estimate and cost sharing among the Consortium Members including delineation of cash and non-cash contributions, reporting and documentation requirements, delivery requirements (if any) and any other information deemed necessary by the TOC and ESC.

The term “Quorum” as used herein means a majority of the members of the applicable committee or group.

The term “Recipient” as used herein refers to each Consortium Member having a CA with NASA to perform work under these Articles of Collaboration.

The term “Selected Partners” as used herein means the entities responding to the NASA Partnering Synopsis who were chosen to be the initial members of the Advanced Composites Consortium (ACC).

The term “Technical Oversight Committee” (TOC) as used herein shall refer to the committee of technical-level representatives properly designated by each of the Consortium Members respectively to serve on this committee, together with NASA and FAA representatives so designated by NASA and the FAA.

The term “Tier I Member” as used herein refers to membership as defined by Article 3.2.

The term “Tier II Member” as used herein refers to membership as defined by Article 3.3.

The term “Work Activity” as used herein means a Project that is performed using NASA funds and/or non-cash contributions under the CAs.

P.3 Background:

NASA LaRC has publicly sought Consortium Members via release of a Partnering Synopsis in order to identify and team with partners who have complementary capabilities, technologies, backgrounds and experience, interests, and funding to form a Consortium to advance the state of the art in composites development, integration and certification thereby significantly reducing the time to develop and integrate composites into aircraft.

NASA LaRC has executed a Memorandum of Understanding with each of these selected Partners in order to support collaborative development of these Articles of Collaboration.

The Consortium Members have complementary interests and expertise and wish to form an ACC to perform research with and for NASA as well as for the Consortium Members with the goal of significantly shortening the development and certification cycle for advanced composites on aircraft.

The Consortium Members wish to set forth their understanding and agreements with respect to the manner in which the ACC is conducted, including the technical effort, governance, administration, funding, and the rights and obligations of the Consortium Members relating to information, know-how and intellectual property which may be developed and/or exchanged in support of the ACCP.

Each Recipient will enter into a CA with NASA for work to be performed under Work Activities with one or more Consortium Member(s).

ARTICLE 1 - PURPOSE AND SCOPE

1.1 Consortium Members agree to participate in a collaborative effort supported by NASA and by the other Consortium Members to conduct coordinated research and technology development projects to achieve the goals of the ACCP. The focus is primarily advancing the use of composite materials and structures into aerospace applications (i.e., airframe and engine applications). The Consortium Members acknowledge that their agreement to participate in this ACC is based upon NASA’s execution of a CA with each Recipient. The provisions of the CA apply only to receivers of NASA funding and/or non-cash contributions provided via the CA and only for Work Activities under the CA.

1.2 These Articles of Collaboration do not preclude any Consortium Member from developing technology, independently of and/or in competition with the ACC or the Consortium Members.

1.3 Nothing in these Articles of Collaboration requires any Consortium Member to provide funds or non-cash contributions or to participate in any specific work activity conducted by the

ACC.

ARTICLE 2 - ADMINISTRATIVE REQUIREMENTS

NASA will execute a CA with each Recipient. The CA contains the duties and obligations of the Recipient. The CA, including all attachments thereto, incorporates these Articles of Collaboration by reference, and will, subject to Article 13.5, be binding upon the Consortium Members to these Articles of Collaboration as if fully set forth herein. In the event of a conflict between the terms of these Articles of Collaboration and the CA and/or its Attachments, the following shall be the order of precedence, in descending order:

(a) The CA;

(b) The Exhibits to the CA;

(c) These Articles of Collaboration.

ARTICLE 3 - MEMBERSHIP

3.1. The ESC shall control the size and composition of the ACC by a vote of two-thirds of its members assuming a quorum is achieved. From time to time at its discretion, the ESC may open membership to additional Consortium Members consistent with the criteria below. An ACC objective is to retain a reasonable number of Tier I and Tier II Members. After these Articles of Collaboration are executed, termination of membership shall be governed by Article 11 of these Articles of Collaboration.

3.2. Tier I Members: Tier I Members consist of NASA, the FAA, and the Selected Partners. The ESC may admit new Tier I members based on the following guidelines:

(a) Technical expertise in design and manufacture of composites for aerospace applications.

(b) Funding willingness and ability to engage in cost sharing on collaborative research projects undertaken by the ACC.

(c) Certification experience in successfully certifying aeronautics vehicles or components that include composites with the Federal Aviation Administration (FAA) or Department of Defense (DoD) certification offices.

(d) Focus technology experience including, but not limited to, one or more of the following:

1. Material development and qualification leading to the creation of standard material databases;

2. Progressive damage modeling;

3. Design coupled to manufacturing (including incorporating metrics of throughput, quality, and cost);

4. Bonding and bond qualification;

5. Manufacturing tooling and molds;

6. Accelerated certification approaches and processes (to include issues with metal and composites mixed within a system);

7. Material durability and aging; and

8. Education of workforce.

(e) Partnership experience that demonstrates successful experience in Public Private Partnerships (PPP) or similar relevant collaborative partnerships.

Tier I Members may be members of the ESC and the TOC.

3.3 Tier II Members: Tier II Members are U.S. incorporated entities selected by the ESC, using the criteria in Paragraph 3.2 for consideration. Tier II Members do not have to meet all of the criteria of Tier I membership.

Tier II Members may be Members of the TOC, but not Members of the ESC.

3.4 Any vote by the ESC not to admit a new Tier I or Tier II member may be overridden by

NASA at its sole discretion.

ARTICLE 4 - STATEMENT OF WORK, SCHEDULE AND DELIVERABLES

Each CRT shall perform its Projects in accordance with the Statement of Work (SOW), attached to and incorporated in the applicable Work Activity. Subject to the availability of funding, each member of the CRT agrees to expend reasonable efforts to achieve the Projects assigned to it, as set forth in the expenditure limitations of the Cost Matching Summary and Schedule, attached to and incorporated in its CA or work funded by the Consortium that is not incorporated into a CA.

ARTICLE 5 - PROHIBITED ACTIVITIES

No Consortium Member shall utilize the ACC for any activities not related to the purpose and scope of the ACC, prohibited by law, or for the exchange of information among competitors relating to costs, sales, profitability, prices, marketing, or distribution of any product, process, material or service except for that which is reasonably necessary to conduct the research and development that is the limited purpose of these Articles of Collaboration. No Consortium Member shall utilize the ACC for any of the following:

(a) exchanging information among competitors relating to costs, sales, profitability, prices, marketing, or distribution of any product, process, or service if such information is not reasonably required to carry out the purpose of the ACC,

(b) entering into any agreement or engaging in any other conduct restricting, requiring, or otherwise involving the marketing, distribution, or provision by any Consortium Member of any product, process, or service, other than— (1)the distribution among Consortium Members, in accordance with such venture, of a product, process, or service produced by such venture, or (2)the licensing, conveying, or transferring of intellectual property, such as patents and trade secrets, developed through the ACC,

(c) entering into any agreement or engaging in any other conduct—

(1)to restrict or require the sale, licensing, or sharing of inventions, developments, products, processes, or services not developed through, or produced by, the ACC, or

(2)to restrict or require participation by any Consortium Member in other research and development activities, that is not reasonably required to prevent misappropriation of proprietary information contributed by any Consortium Member or which results from ACC activity,

(d) entering into any agreement or engaging in any other conduct allocating a market with a competitor,

(e) exchanging information among competitors relating to production (other than production by the ACC) of a product, process, or service if such information is not reasonably required to carry out the purpose of the ACC,

(f) entering into any agreement or engaging in any other conduct restricting, requiring, or otherwise involving the production (other than the production by the ACC) of a product, process, or service,

(g) using existing facilities for the production of a product, process, or service by the ACC unless such use involves the production of a new product or technology, and

(h) except as provided in paragraphs (b), (c), and (f), entering into any agreement or engaging in any other conduct to restrict or require participation by any Consortium Member, in any unilateral or joint activity that is not reasonably required to carry out the purpose of such venture.

ARTICLE 6 - CAPACITY OF THE PARTIES AND TAX STATUS

6.1 These Articles of Collaboration are entered into by the Consortium Members, a group of United States companies acting together as a group of independent contractors, along with NASA and the FAA, to accomplish the objectives authorized by these Articles of Collaboration.

Since the relationship of the Industry Consortium Members is that of separate, independent contractors, all persons supplied by the Consortium Members to perform work under these Articles of Collaboration will remain the supplying Consortium Member's employees and will in no sense be employees of any of the other Consortium Members. Further, none of the Consortium Members will act as the agent or legal representative of the others.

6.2 By these Articles of Collaboration, the Consortium Members have created the ACC, entered into as a conduit for the administration and allocation of funds to support coordinated research efforts to be performed separately by the various Consortium Members pursuant to the terms of these Articles of Collaboration. These Articles of Collaboration represent a "joint undertaking merely to share expenses" and does not qualify for tax purposes or otherwise as a "partnership," "trust," "association taxable as a corporation," "joint venture," or "formal business organization” among the Consortium Members as those terms are defined in the regulations under Section 7701 of the Internal Revenue Code of 1986, as amended. Nothing herein shall be construed as providing for the sharing of profits or losses arising out of the efforts of any of the Consortium Members in relation to the Consortium Members' efforts under these Articles of Collaboration.

ARTICLE 7 - PROGRAM AND PROJECT MANAGEMENT

7.1. The ESC and TOC shall make all programmatic decisions pursuant to the ACCP Operating Plan (POP) and the Project Evaluation Process (PEP) attached to and incorporated in each CA.

7.2 Governance bodies: The ACCP shall be directed by an ESC and a TOC, with research conducted by CRTs, as described below:

(a) ESC: The ESC shall approve programmatic decisions of the ACCP. Each Tier I Consortium Member will be entitled to appoint one voting representative as a member of the ESC. Each Tier I Consortium Member shall designate its ESC representative and alternate in writing. The ESC shall consist of, at a minimum, senior-level representatives, including one (1) from each of the participating Tier I Consortium Members, one (1) NASA employee, and one (1) FAA employee. A chairperson shall be selected from the ESC representatives, alternating annually, between NASA and industry. The initial ESC chairperson will be a NASA employee. The chairperson shall break a tie vote of the ESC on any actions under its governance. The ESC shall hold meetings, as often as necessary to conduct ACC business, but in no event less than two (2) times a year. For purposes of meetings of the ESC, a quorum shall consist of a majority of the members of the ESC. The ESC shall develop and maintain a POP.

Any Consortium Member at any Tier may decline to participate in and/or commit funds to any Project.

(b) TOC: The TOC shall consist of senior technical representatives from Consortium

Members, with representation from NASA, from the FAA, and from Industry Tier I and Tier II Members.

(1) The TOC shall include the following:

(i) One designated representative from each Industry Tier I Member;

(ii) One designated representative from each Tier II Member, not to exceed eight (8) representatives. If the number of Tier II members exceeds eight, then eight Tier II representatives shall be nominated by majority vote from the entire Tier 2 membership. In such case, each Tier II representative shall serve a term of two (2) years on the TOC, such term to be staggered so that half of the Tier II representatives’ terms will expire in one (1) year, and the other half of the Tier II representatives’ terms will expire in the following year;

(iii) One NASA representative; and

(iv) One FAA representative.

(2) Each representative shall have one vote.

(3) A chairperson shall be selected from the TOC representatives, alternating bi-annually between NASA and Industry ACC Members. The initial TOC chairperson will be an Industry representative. The chairperson shall break a tie vote of the TOC on any actions under its governance. The TOC shall hold meetings, as often as necessary to conduct consortium business, but in no event less than four (4) times a year. For purposes of meetings of the

TOC, a quorum shall consist of a majority of the members of the TOC. The TOC shall:

(i) Develop technology roadmaps that establish specific ACCP goals and their time-phasing as needed to clarify ACCP vision, mission, and quest for meaningful Projects,

(ii) Develop and maintain a PEP;

(iii) Manage the overall ACCP activity in an effort to achieve its goals;

(iv) Manage the integration of the individual technical efforts into the ACCP with strong interaction between Projects;

(v) Facilitate communication between the ACCP technical efforts;

(vi) Assess progress and provide the necessary redirection in order to achieve the ACCP goals; and

(vii) Attempt to resolve issues raised by the CRTs.

7.3 CRT: Each CRT may consist of NASA, FAA and Industry ACC Member personnel, and will be formed to conduct research and technology development Projects. CRTs will be formed in response to ACC directed work and in response to work that NASA directs to the ACC. CRT Members shall propose research Projects to the TOC and identify a CRT lead for the Project.

The CRTs will be responsible for Project execution as well as resource and financial management of the Project. The CRT leaders shall report Project execution to the TOC. The CRT Members and CRT Project plans (including cost share and IP issues) shall be approved by the TOC and ESC prior to implementation.

ARTICLE 8 - FINANCIAL MATTERS

8.1 Except as specified herein or in a Work Activity, each Consortium Member is responsible for all costs which it incurs to fulfill the requirements of its Projects and the requirements of these Articles of Collaboration.

8.2 No Government Funding under These Articles of Collaboration: There will be no transfer of U.S. Government funds under these Articles of Collaboration and each Consortium Member will fund its own participation in the ACC. All activities under or pursuant to these Articles of Collaboration are subject to the availability of funds, and no provision of these Articles of Collaboration shall be interpreted to require obligation or payment of funds in violation of the Anti- Deficiency Act, (31 U.S.C. § 1341). Each Consortium Member’s participation in any particular activity that is funded by NASA in furtherance of the ACCP is subject to the availability of adequate funding appropriated by NASA under the CA with that Consortium Member. When NASA makes funds available to the ACC, it will do so by making funds available to Recipients through the CA with that Consortium Member.

8.3 Invoices: Each Industry Consortium Member will submit monthly invoices to NASA together with appropriate documentation as required by NASA and in accordance with the terms of its CA with NASA. Costs shall be reported in invoices in accordance with each Consortium Member’s cost accounting practices. No Consortium Member shall be obligated to incur costs or be directed to perform work so as to incur costs in excess of the Project allotted funding, and NASA shall be under no obligation to reimburse any such costs incurred.

8.4 Accounting System: Prior to submission of invoices, each Industry Consortium Member shall have and maintain an acceptable accounting system that complies with Generally-Accepted Accounting Principles (GAAP) and with the requirements of these Articles of Collaboration, and shall ensure that appropriate arrangements have been made for receiving, distributing, and accounting for federal funds. An acceptable accounting system will be one in which all cash receipts and disbursements are controlled and documented properly.

8.5 Government Audit: Each Industry Consortium Member shall maintain adequate records to account for federal funds received under the ACCP, and shall maintain adequate records to account for ACC funding. Each Consortium Member’s relevant financial records are subject to examination or audit by the Government for a period not to exceed three (3) years after expiration or earlier termination of the ACCP. The NASA Agreement Officer or Government designee shall have access to books and records of the Consortium Members to ensure full accountability for all Government funds paid under the ACCP. Such audit, examination, or access shall be performed during normal business hours and upon reasonable prior written notice, and shall be subject to the safety and security requirements of each Consortium Member’s respective facility or facilities.

In the event a Consortium Member shall elect not to provide access to the NASA Agreement Officer, or Government designee, in order to perform such examination or audit, the Consortium Member may engage the services of an independent auditor acceptable to NASA in order to perform such audit or examination and report the results to NASA without disclosing sensitive, proprietary, or other information of the Consortium Member. The costs of this independent auditor shall be paid for by the Consortium Member.

8.6. CRT Member Contributions:

(a) The CRT Members will provide contributions (monetary or non-monetary), the type and value of which are subject to advance approval by NASA when NASA funds work under the CAs:

(1) CRT Members will provide cost share relative to work that is funded and/or provided as non-cash contributions by NASA under the CAs. Cost sharing under the CAs will be in the types and amounts specified for the Work Activities that are funded under the CAs.

(2) CRT Members will provide contributions to the ACC for use by the ACC outside of CA activities.

(3) If NASA decides not to participate in a Project or Work Activity (i.e., elects not to provide funding and/or non-cash contributions for that Project or Work Activity), and a Consortium Member desires a specific service from NASA, that Consortium Member may enter into a Space Act Agreement on a reimbursable or non-reimbursable basis, as that Consortium Member and NASA agree, which shall not be governed by these Articles of Collaboration.

In such event, the terms of the Space Act Agreement shall govern the rights and responsibilities of the Parties entering into the Space Act Agreement, to include intellectual property rights and responsibilities in the event of a dispute between the Parties to the Space Act Agreement.

(4) No Consortium Member may be required to participate in or fund a CRT, Project or Work Activity if it elects not to do so.

(b) In addition to the work to be performed by the CRT Members which is funded or contributed to in part by NASA under the CAs with NASA, the CRT Members collectively will contribute other resources to the ACC up to the level of contribution specified by Work Activities that are established by NASA. The CRT Members will participate in discussions with NASA on the general funding requirements.

8.7 Financial Reporting: Each Consortium Member shall provide NASA with a cost proposal which contains a summary of that Consortium Member’s proposed contributions together with a valuation of the contributions. For accounting purposes, each Consortium Member shall identify to NASA its contributions to the ACC, and shall provide a quarterly report of all contributions in a form comparable to that Consortium Member’s cost proposal. If a Consortium Member is not meeting its contribution obligations as outlined in its Work Activity, that Consortium Member shall submit a recovery plan to NASA showing plans and expenditures to accomplish proposed contributions by the end of the current funding period. If it is subsequently identified as a result of an audit of the ACCP described in Paragraph 8.5, that a Consortium Member has not made any portion of its stated contribution as defined in its Work Activity, such Consortium Member must make alternate contributions acceptable to NASA within the period set by that Consortium Member’s Work Activity. In the event a Consortium Member withdraws from the ACCP, the withdrawing Consortium Member shall make a contribution to the ACCP for any previous contributions disallowed by NASA under its CA with NASA through that Consortium Member’s period of performance.

ARTICLE 9 - CONFIDENTIALITY

9.1 While Consortium Members are not obligated to disclose Proprietary Information, the Consortium Members acknowledge that it may be desirable in the performance of these Articles of Collaboration to disclose to another Consortium Member information, not limited to any specific form, media or method of recording, or under its CA with NASA which the disclosing Consortium Member considers proprietary (hereinafter “Proprietary Information”). Accordingly, each Consortium Member hereby agrees to identify, in writing, any information disclosed to another Consortium Member that is to be treated as its Proprietary Information under these Articles of Collaboration. Proprietary Information supplied in written or electronic form shall be marked as proprietary by an appropriate legend which identifies it as proprietary at the time of disclosure of the information and identifies the source (Consortium Member) of the information. If Proprietary Information is disclosed in spoken or visual form, the disclosing Consortium Member shall notify the receiving Consortium Member at the time of disclosure that the information is proprietary and the information shall be reduced to a written or electronic medium, appropriately marked, and provided to the receiving Consortium Member within fifteen (15) calendar days of disclosure. In the event any Consortium Member furnishes drawings or other documents containing Proprietary Information by electronic means between computers in any machine readable form (other than facsimile), hereafter “Electronic Data,” the sending Consortium Member shall identify within the electronic communication that the drawings or other documents provided in the electronic communication contain Proprietary Information, and mark the information, in the body of the drawing or document, as Proprietary Information, such marking to be displayed in human readable form. In the event any Consortium Member discloses Proprietary Information by delivery of an electronic storage medium or memory device, the disclosing Consortium Member shall mark the storage medium or memory device itself as containing Proprietary Information and electronically mark the stored information as proprietary, such marking to be displayed in human readable form along with any display of the Proprietary Information. In the event the receiving Consortium Member converts any of the Electronic Data to any other tangible form, said Consortium Member shall identify the information, using any reasonable and prominent means, as Proprietary Information which is subject to the restrictions delineated herein.

9.2 (a) The receiver of Proprietary Information disclosed under these Articles of Collaboration shall not remove any markings thereon without the prior written permission of the disclosing Consortium Member, and shall treat such Proprietary Information with the same degree of care, but not less than a reasonable degree of care, as the receiving Consortium Member normally uses to protect and maintain the confidential nature of its own similar Proprietary Information.

Upon receipt of Proprietary Information, the receiving Consortium Member will limit the copying and distribution of such Proprietary Information to the extent necessary to use it as authorized herein. Except as otherwise specified in Article 10, the receiving Consortium Member may use the disclosing Consortium Member’s Proprietary Information solely for the performance of the applicable Project under which the Proprietary Information was disclosed or as otherwise mutually agreed to by the disclosing and receiving Consortium Members. In the event it becomes necessary for the purpose of fulfilling the requirements of these Articles of Collaboration for the receiving Consortium Member to disclose such Proprietary Information to another CRT Member on the same Project under which disclosure was initially made or another Consortium Member, such disclosure shall be undertaken only after obtaining the prior written approval of the disclosing Consortium Member of the Proprietary Information.

(b) In the event it becomes necessary for the purpose of fulfilling the requirements of these Articles of Collaboration to disclose Proprietary Information to a third party, such disclosure may be made subject to receiving prior written approval from the disclosing Consortium Member of the Proprietary Information, which has a right to refuse disclosure at its sole discretion. If prior written approval is provided by the original disclosing Consortium Member of the Proprietary Information, the Consortium Member that desires to disclose the Proprietary Information to a third party shall, prior to disclosure to the third party, obtain an executed written agreement with the third party inclusive of restrictions on disclosure and use that are the same as, or equivalent to, those provided in these Articles of Collaboration, wherein the original disclosing Consortium Member of the Proprietary Information is a third party beneficiary to the written agreement and shall provide a copy of the executed written agreement to the original disclosing Consortium Member of the Proprietary Information.

9.3 Disclosure of Proprietary Information within the organization of each Consortium Member shall be limited to only those employees having a need to know the Proprietary Information for purposes of fulfilling the requirements of these Articles of Collaboration.

9.4 A Consortium Member shall only use and disclose Proprietary Information as authorized or licensed by the terms of these Articles of Collaboration. Nothing in these Articles of Collaboration shall affect a Consortium Member’s right to use and/or disclose Proprietary Information that it receives from another Consortium Member:

(a) If, at the time of disclosure, the information is already in, or later falls into, the public domain through no act or omission on the part of the receiving Consortium Member, its directors, officers, employees or agents;

(b) If the receiving Consortium Member, upon reasonable documentation, can show that it lawfully knew of such information prior to the receipt of the information from the other Consortium Member or developed the same information independent of any Proprietary Information received hereunder, without restriction;

(c) If the receiving Consortium Member, upon reasonable documentation, can show that it lawfully obtained the information from a third party, without restriction, not in breach of any other agreement;

(d) If the receiving Consortium Member obtains prior written consent from the disclosing party to use the subject Proprietary Information or disclose it; or

(e) If the information is not identified as proprietary.

9.5 Proprietary Information shall remain the property of the disclosing Consortium Member.

9.6 A Consortium Member may disclose another Consortium Member’s Proprietary Information it receives if necessary to comply with a valid court order. Any Consortium Member intending to disclose another Consortium Member’s Proprietary Information pursuant to this Paragraph shall, prior to such delivery or disclosure, promptly inform the disclosing Consortium Member, who shall have the right to take appropriate action in an effort to defend the Proprietary Information from disclosure.

9.7 Data or information made available directly or indirectly hereunder may fall under the export laws of the United States, or may be classified or regulated by the laws or regulations of the United States. Each Consortium Member agrees that in the performance of these Articles of Collaboration it will use its reasonable efforts to comply with all applicable laws and regulations, including the export laws of the United States, which relate to the data or information under these Articles of Collaboration.

9.8 Dissolution or termination of the ACCP or these Articles of Collaboration shall not affect the rights and obligations of the Consortium Members with respect to Proprietary Information received under the ACCP or these Articles of Collaboration.

9.9 The Consortium Members expressly agree that they will be under no obligation to provide any other Consortium Member to these Articles of Collaboration, other than NASA, any financial data deemed to be competition sensitive or proprietary and/or trade secret. All such data, to include but not be limited to, labor rates and indirect cost burdens shall only be made available to NASA for Work Activities funded and/or supported with non-cash contributions by NASA.

9.10 If a Consortium Member receives information having a marking that is ambiguous or appears to be unauthorized, the receiving Consortium Member shall inform the disclosing Consortium Member and, if the marking indicates a restriction, the receiving Consortium Member shall protect the information until resolution is reached.

9.11 Notwithstanding the above provisions of this Article 9, Proprietary Information furnished under or developed under the CAs shall be governed by and treated in accordance with the CAs and shall be appropriately marked in accordance with the CAs.

ARTICLE 10 - OWNERSHIP AND LICENSE RIGHTS IN PATENTS AND OTHER

PROPRIETARY INFORMATION

10.1 For purposes of equitably sharing knowledge resulting from the coordinated research performed under these Articles of Collaboration, the Consortium Members agree to the following, regarding intellectual property and the licensing thereof.

10.2 Definitions:

(a) “Technology” shall mean technical data, information, know-how, and trade secrets as embodied in specifications, drawings, reports, computer software, or any other format and recorded in any electronic or tangible medium, whether or not patentable.

(b) “Invention” shall mean any invention or discovery which is or may be patentable (whether or not patented) under Title 35 of the United States Code.

(c) “Project Technology” shall mean Technology created by a CRT Member (or his or her agent, subcontractor, or other business affiliate) in performance of a Project.

(d) “Project Invention” shall mean an Invention conceived or first actually reduced to practice by one or more CRT Members in performance of a Project.

(e) “Project Patent” shall mean a patent or pending patent application on any Project Invention.

(f) “Background Technology” shall mean:

(1) Technology in existence prior to commencement of any work performed under a Project pursuant to the ACCP, or

(2) Technology developed independently of a CRT Member’s performance of a

Project pursuant to the ACCP.

(g) “Background Patent” shall mean a patent or pending patent application on any

Invention that is not a Project Invention.

(h) “Contributed Background Technology” shall be defined as Background Technology, Background Patents and Background Copyrights which the owning CRT Member elects to incorporate within an item or process developed under a Project pursuant to the ACCP, which will be made available to other CRT Members under Paragraphs

10.4 and 10.6 of these Articles of Collaboration.

(i) “Reserved Background Technology” shall be defined as Background Technology, Background Patents and Background Copyrights which the owning CRT Member elects to incorporate within an item or process developed under a Project pursuant to the ACCP, which is made available subject to limitations on the use, manufacture, or practice of such Background Technology under Paragraph 10.5 of these Articles of Collaboration.

(j) “Copyright” shall be defined as the following:

(1) all rights in any original work of authorship fixed in any tangible medium of expression under Title 17 of the United States Code, whether or not registered; and Wx

(2) all registrations and applications for registration of any such copyright in the United States of America or any other country, including registrations, recordings, supplemental registrations and pending applications for registration in the United States Copyright Office.

(k) “Project Copyright” shall be defined as any Copyright which is first created in the performance of a Project.

(l) “Background Copyright” shall be defined as any Copyright that is not a Project Copyright.

10.3 Rights In Project Technology, Project Copyrights, Project Inventions, and Project Patents:

(a) A CRT Member shall own the entire right, title, and interest in any Project Copyright, Project Technology, Project Invention, or Project Patent created, conceived, or first actually reduced to practice solely by such CRT Member in the performance of a Project.

(b) Each Project Copyright, Project Technology, or Project Invention that is created, conceived, or first actually reduced to practice (as applicable) in the performance of a Project jointly by employees of two or more CRT Members (hereinafter “Joint Project Copyright,” “Joint Project Technology,” and “Joint Project Invention,” respectively ) shall be the joint property of such CRT Members (hereinafter “Joint Owners”), and any Project Patent granted on a Joint Invention shall be jointly owned by the inventive CRT Members (hereinafter “Joint Project Patent”). Unless otherwise agreed to in writing by the Joint Owners, the cost of obtaining and maintaining any such Joint Project Patent shall be shared equally by all such Joint Owners subject to the availability of funds if the Government is an owner per the CAs with NASA. Each Joint Owner shall have the right to decline to participate in the cost of obtaining or maintaining any Joint Patent and, in such event, with the exception of NASA or the FAA, if either Agency is a Joint Owner, such patent shall be the property of the Joint Owner(s) paying the cost of obtaining or maintaining such Joint Patent, subject to retention by the other CRT Members of the rights to license contained in these Articles of Collaboration. Notwithstanding the foregoing, the Joint Owners will use reasonable efforts to report, and cooperate in obtaining, a Joint Project Patent, regardless of whether a Joint Owner declines participation in the costs of obtaining or maintaining the Joint Project Patent. Any Copyright, Technology, or Invention that is created, conceived, or first actually reduced to practice by a non-CRT Member that is outside the performance of a Project, but within the scope of a Project, and jointly with one or more CRT Members, such non- CRT Member shall be a joint owner with such CRT Members and any Project Patent granted on a Joint Invention shall be jointly owned by the inventive CRT and non-CRT Members. Such CRT Member(s) and non-CRT Member(s) shall negotiate the respective rights and responsibilities regarding such Copyright, Technology, Invention, or Project Patent.

(c) Project Technology shall be provided to other Industry CRT Members in sufficient detail and within a reasonable period of time. Subject to any obligations of confidentiality established pursuant to Article 9, each Industry CRT Member hereby grants, to the extent it has the right to do so, the other Industry CRT Members a non-exclusive, irrevocable, royalty-free, paid-up, worldwide license, including a license to:

(1) use Project Technology for any purpose;

(2) make, have made, use, sell, offer to sell, and import Project Invention(s);

and

(3) reproduce, make derivative works thereof, distribute, publicly display, and publicly perform any Project Copyright.

(d) Project Technology may be disclosed to a party that is not another CRT Member only after (i) obtaining written approval from all Industry CRT Members, which may be conditioned on restrictions on use and disclosure, and (ii) executing a written agreement with the receiving party that includes restrictions on use and disclosure that are at least as restrictive as those provided in these Articles of Collaboration for Proprietary Information, except that use need not be restricted to collaborative efforts under the ACCP, together with any restrictions on disclosure or use required by any other Industry CRT Member as a condition of disclosure approval.

(e) The right to grant sublicenses to Project Patents, Project Copyrights or Project Technology, shall be negotiated with the owner of the Project Patents, Project Copyrights, or Project Technology.

(f) It is recognized and understood that each Consortium Member is free to enter into any contract or agreement, or to perform any work related to a Project performed pursuant to the ACCP, provided that such contract, agreement, or work is not in violation of any of the licensing provisions in these Articles of Collaboration, including the license granted to certain Consortium Members in Paragraphs 10.3 (c) and (d), and the right to grant sublicenses in Paragraph 10.3(e).

(g) In the event a CRT Member seeks an exception to the provisions of Paragraphs (c),

(d) or (e) of this Article 10.3, such exception must be agreed to by a two-thirds majority of each of the TOC and the ESC prior to approval of any Project and included in the Project Work Plan.

10.4 Rights in Background Patents, Background Copyrights, and Contributed Background

Technology:

(a) Consortium Members are not obligated to disclose Background Technology or grant licenses to Background Technology except as provided herein.

(b) Contributed Background Technology necessary to make use of the Project

Technology, Project Inventions, or Project Patents shall be provided to other CRT Members in sufficient detail and within a reasonable period of time. Subject to any obligations of confidentiality established pursuant to Article 9, each CRT Member hereby grants, to the extent it has the right to do so, the other CRT Members a non-exclusive, irrevocable, royalty-free, paid-up, worldwide license, including a license to Contributed Background Technology solely as necessary to enjoy the rights granted in Paragraphs 10.3(c), (d) and (e).

10.5 Rights in Reserved Background Technology:

(a) Any CRT Member seeking to incorporate Reserved Background Technology shall identify that particular Reserved Background Technology to the TOC, and notify the TOC of any limitations on availability, use, manufacture, or practice thereof prior to its introduction. Subject to any obligation of confidentiality established pursuant to Article 9, opportunity shall be given to the TOC to review the proposed Reserved Background Technology for sufficiency of disclosure. If a CRT Member does not believe sufficient disclosure is being offered, the CRT Member seeking to introduce the Reserved Background Technology has the option of making further disclosure or withdrawing it from the ACCP. The TOC shall decide whether disclosure is satisfactory.

10.6 Additional Rights in Background Technology, Background Copyrights and Background Patents:

(a) Upon request, and at the completion of a Project, each Industry CRT Member agrees to grant a royalty-bearing, non-exclusive license to the other Industry CRT Members to use and further disclose any Reserved Background Technology to the extent reasonably necessary to make the license or sublicenses described in Paragraph 10.3(c) or (e) effective. The licenses of this clause shall:

(1) include an option to acquire the right to grant necessary sublicenses; and

(2) be on commercially reasonable terms and conditions including a commercially competitive rate.

(b) As part of this license under Paragraph 10.6(a), the licensing Industry CRT Member shall provide the Reserved Background Technology in sufficient detail to the other Industry CRT Member within a reasonable period of time.

(c) Upon timely request, a Government CRT Member may, at its sole discretion and subject to an irrevocable, royalty-free right of the U.S. Government to practice Government Background Technology or have it practiced on behalf of the United States or on behalf of any foreign government or international organization pursuant to any existing or future treaty or agreement with the United States, use reasonable efforts to grant other CRT Members, under 37 C.F.R. Part 404, non- exclusive negotiated license(s) to Government Background Technology.

10.7 A CRT Member seeking to introduce any Technology owned by a third party shall use reasonable efforts to ascertain and report to the other CRT Members what limitations or necessary licenses, if any, exist on the use of such Technology at present, and potentially in the future. To the extent that Technology belonging to a third party utilized in the performance of a Project performed pursuant to the ACCP may later be necessary to make, have made, or use

Project Technology, or products embodying or disclosing Project Technology, each CRT Member agrees to refrain from further utilization of such Technology under these Articles of Collaboration, unless the other CRT Members unanimously agree to such use of Technology owned by a third party under any applicable limitations and any required licenses are obtained.

10.8 Any Project Technology, Project Inventions, Project Patents or Project Copyrights acquired or to be acquired by an Industry CRT Member from a subcontractor performing work under a Project performed pursuant to the ACCP shall be acquired with rights in such Project Technology, Project Inventions, Project Patents or Project Copyrights consistent with the acquiring Industry CRT Member’s licensing obligations under this Article 10.