Attachment 0006 FMS-ACES_OTA__Terms_and_Conditionsv02.docx

INSTRUCTIONS:

1. YELLOW highlighted text must be updated by the Offeror (identified herein as Performer).

2. TEAL (this color) highlighted text will be updated by the Government.

3. If the Performer requests ANY other minor revisions, the Performer shall ensure ‘track changes’ are shown, and that each change is accompanied by a Comment (MS Word Review / Add Comment function) providing sufficient rationale for the desired revision.

4. Other than updating the YELLOW Text, requested changes without a Comment containing rationale may be rejected. Do not remove the highlight from the text prior to submission. The Government will delete this Instruction and all highlights prior to award finalization.

OTHER TRANSACTION FOR PROTOTYPE AGREEMENT

between The United States Government Army Contracting Command – Rock Island (CCRI-TFA) ATTN: Ms. Ashley C. Smith, Agreements Officer Strategic IT & Cyber Directorate, Branch TFA 3055 Rodman Avenue Rock Island, IL 61299-8000 and Company Name Company Address City, ST, Zip

(xxx) xxx-xxxx UEI Number: CAGE:

Concerning Company Name’s response to the OT Announcement W519TC-23-R-ACES

Agreement No.: W519TC-23-9-XXXX Total Ceiling Amount of the Agreement: $X,XXX,XXX.00 Total Amount of the Agreement Currently Funded: $X,XXX,XXX.00 Authority: 10 U.S.C. § 4022 Effective Date: (date of award)

This Agreement is entered into between the United States of America, represented by The Army Contracting Command – Rock Island, hereinafter called the Government and Company Name, hereinafter called the Performer, pursuant to 10 U.S.C.§ 4022 and under United States Federal law.

TABLE OF CONTENTS

Page xxi

ARTICLE I: SCOPE OF THE AGREEMENT

A. Background This Agreement is a 10 U.S.C. § 4022 prototype Other Transaction (OT) award for the Foreign Military Sales – Army Case Execution System (FMS-ACES) prototype project. This award is the result of a competitive process based on the proposal provided by the Performer, dated DD Month YYYY.

B. Scope

1. This Agreement is an OT Agreement pursuant to 10 U.S.C. § 4022. The principal purpose of this Agreement is to conduct a prototype project per the attached Performance Work Statement (PWS).

2. Company Name (Performer) shall be responsible for performance of the work set forth in the proposed PWS, as agreed upon by the parties. The Performer shall provide all documentation required in accordance with the Deliverables table set forth in the PWS.

3. The Performer shall be paid a fixed amount for each milestone accomplished in accordance with the Schedule of Milestones and Payments set forth in Attachment 0003, and the procedures of Article IV.

4. Prototype projects in nature require an iterative approach. Therefore, it is a reasonable expectation the PWS may be modified in accordance with procedures outlined in Article III, paragraph B, based on lessons learned within the prototype project and external circumstances (ex. developments in a technology area outside of this Agreement or availability of Government funding).

C. Scope/ Objectives

1. The Scope/Objectives of this Agreement is/are outlined in Section 3, Scope of the PWS inclusive of the sub-sections 3.1 – 3.9.

2. The Government will have continuous collaboration with the Performer. The Government will obtain access to Program results and rights in patents and data pursuant to Articles VI and VII. The Government and the Performer agree to act in good faith to achieve the Program objectives.

D. Potential for Follow-On Production

1. 10 U.S.C. § 4022(f) authorizes the Department of Defense (DoD) to structure OT prototype agreements with the potential to award a follow-on production contract or transaction to the participants in the transaction, without further competition. In order to do so, two criteria must be met: 1) competitive procedures must be used to select the performer and 2) the participants must have successfully completed the prototype project provided for in the transaction. This award was the result of competitive procedures through OT Announcement W519TC-23-R_ACES

2. In accordance with 10 U.S.C. § 4022(f), this competitively awarded Agreement may lead to a follow-on production contract or transaction if: (1) the Key Technical Goals, as defined in the PWS, are met; (2) the Success Metrics in defined in the PWS are met; or (3) in the event that a particularly favorable or unexpected result is accomplished that justifies transition to production.

ARTICLE II: TERM OF AGREEMENT AND TERMINATION

A. Term of this Agreement The term of this agreement commences upon the ‘Effective Date’ and continues as defined in the PWS. Provisions of this Agreement, which, by their express terms or by necessary implication, apply for periods of time other than specified herein, shall be given effect, notwithstanding this Article.

The Parties may extend, by mutual written agreement, the term of this Agreement if opportunities within the scope set forth in Article I reasonably warrant. Any extension shall be formalized through modification of the Agreement by the Agreements Officer (AO) and the Performer Administrator and in accordance with procedures outlined in Article III, paragraph B, Modifications.

B. Termination Provisions Subject to a reasonable determination that the program will not produce beneficial results commensurate with the expenditure of resources, the Government may terminate performance of work under this OT, in whole or in part, if the AO determines that a termination is in the Government’s interest. The AO shall terminate by delivering to the Performer a Notice of Termination specifying the extent of termination and the effective date.

After receipt of a Notice of Termination, and except as directed by the AO, the Performer shall immediately proceed with the following obligations, regardless of any delay in determining or adjusting any amounts due:

(1) Stop work and direct its subcontractors/vendors/suppliers/partners to stop work as specified in the notice.

(2) Place no further orders for materials, services, or facilities, except as necessary to complete any portion of the OT not terminated.

(3) Terminate all orders to the extent they relate to the work terminated.

(4) Assign to the Government, if directed by the AO, all right, title, and interest of the Performer under the orders terminated, in which case the Government shall have the right to settle or to pay any termination settlement arising out of those terminations.

(5) With approval or ratification to the extent required by the AO, settle all outstanding liabilities and termination settlement proposals arising from the termination of orders; the approval or ratification will be final for purposes of this clause.

(6) As directed by the AO, where applicable, deliver to the Government

(i) The work in process, completed work, artifacts, and other software or data produced or for the work terminated; and

(ii) The completed or partially completed plans, software architecture drawings, information, and data that, if the work had been completed, would have been required to be furnished to the Government.

(7) Complete performance of any work not terminated, if applicable.

(8) Take any action that may be necessary, or that the AO may direct, for the protection and preservation of the data, artifacts or software related to this effort that is in the possession of the Performer and in which the Government has or may acquire an interest.

(9) In the event of a termination of this Agreement,

(i) The Government shall have rights as described in Article VII, Patent Rights (Not used for Phase 1), and in Article VII, Data Rights.

(ii) Failure of the Parties to agree to an equitable adjustment shall be resolved pursuant to Article V, Disputes.

Nothing in this section shall be construed as a limitation of the rights of either party in the event of a breach of contract or default by the other party.

C. Stop Work Clause If directed by the AO, the Performer shall stop all, or any part, of the work called for under this Agreement for a period of 90 days after the written stop-work order is delivered, and for any further period as determined necessary by the AO. The order shall be specifically identified as a stop-work order issued under the authority of this Article. Upon receipt of the stop-work order, the Performer shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Within a period of 90 days after a stop-work order is delivered, or within any extension of that period the AO determines necessary, the AO shall either:

(1) Cancel the stop-work order; or

(2) Terminate the work covered by this Agreement.

If a stop-work order issued under this clause is canceled, the Performer shall resume work. The Government may make an equitable adjustment in the delivery schedule or negotiated price, or both, and the Government’s obligation under this Agreement shall be modified, in writing, accordingly, if—

(1) The stop-work order results in an increase in the time required for, or in the cost properly allocable to, the performance of any part of this Agreement; and

(2) The Performer asserts its right to the adjustment within 30 days after the end of the period of work stoppage; provided, that, if the Government decides the facts justify the action, the Government may receive and act upon a proposal submitted at any time before final payment under this Agreement.

D. Special Termination Clause In the event the Government is made aware of any “outside investor” in violation of the Committee on Foreign Investment in the United States (CFIUS) or The Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA), this Agreement will be subject to immediate termination without notification pursuant to paragraph B. of this article. The Performer is required to disclose outside investor activity so that the Government can perform a risk assessment of critical technology and national defense.

ARTICLE III: MANAGEMENT, ADMINISTRATION AND MODIFICATION

A. Management and Program Structure The Performer shall be responsible for the overall technical and program management, technical planning, and execution of the Program. The Government Agreements Officer Representative (AOR), in consultation with other members of the Government team, shall provide recommendations regarding Program developments and technical collaboration and be responsible for the review and verification of the completed Milestones in accordance with the PWS.

B. Modifications

1. Recommendations for modifications, including justifications to support any changes to the PWS and terms of this Agreement may originate with a written request from the Performer to the AOR and AO, or from the Government through the AO. Any change request from the Performer must detail the technical, chronological, and financial impact of the proposed modification to the program. The Government is not obligated to pay for additional or revised future milestones until the Milestone Payment chart in Supplement 2, within this Agreement is formally revised and approved by the AO.

2. The AO shall be responsible for the review and verification of any recommendations to modify the PWS, or other proposed changes to the terms and conditions of this Agreement. If additional terms and conditions are required to be included to address any required work under this Agreement, they will be incorporated by formal unilateral or bilateral written modification to this Agreement.

3. For minor or administrative Agreement modifications only (e.g., incremental funding, changes in the paying office or appropriation data, changes to Government or the Performer's personnel identified in the Agreement) no signature is required by the Performer. Modifications of this nature may be unilaterally executed by the AO.

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

ARTICLE IV: OBLIGATION AND PAYMENT

A. Obligation Except as specified in Article V: Disputes, the Government’s liability to make payments to the Performer is limited only to those funds obligated under this Agreement. The ACC-RI Contracting Activity may incrementally fund this Agreement. If modification becomes necessary in performance of this Agreement, pursuant to Article III of this Agreement, the AO and the Performer shall establish and execute a mutually agreed upon Schedule of Payable Milestones (invoices) in Attachment 0003, that is consistent with the current PWS.

B. Payments

1. Payments will be made upon acceptance (written or otherwise) of completed Milestones.

2. After acceptance (written or otherwise) of the accomplishment of the milestone by the AOR, the Performer will submit their invoice through a Government provided invoicing and payment system, as detailed in Supplement 2.

3. Limitation of Funds: Except as set forth in Article V, Disputes, in no case shall the Government's financial liability exceed the amount obligated under this Agreement.

4. Payments will be made by the cognizant Defense Finance and Accounting Services office, as indicated below, in accordance with the Prompt Payment Act. Supplement 2 details how to submit and process invoices.

5. Payments shall be made in the amounts set forth in the PWS, provided the AOR has verified the completion of the milestones.

6. The Performer shall maintain adequate records to account for all funding under this Agreement.

C. Comptroller Access Financial Records and Reports:

The Performer shall maintain adequate records to account for Federal funds received and for Performer provided funding under this Agreement. The Performer’s relevant financial records are subject to examination or audit by or on behalf of the Comptroller General, the cognizant AO, or other Government Official for a period not to exceed three (3) years after expiration of the term of this Agreement. The AO or designee or Comptroller General, shall have direct access to sufficient records and information of any party to this agreement or any entity that participates in the performance of this agreement to ensure full accountability for all funding under this Agreement. Such audit, examination, or access shall be performed during business hours on business days upon prior written notice and shall be subject to the security requirements of the audited party. Any audit required during the course of the program may be conducted by the Comptroller General or other Government Official using Government auditors. Any administrative support costs incurred may be at the expense of the Performer. If an audit is requested by the Performer's external CPA accounting firm, it will be at the expense of the Performer.

D. Lower Tier Agreements The Performer shall include this Article, suitably modified to identify the Parties, in all subcontracts or lower tier agreements entered into in connection with this Agreement.

ARTICLE V: DISPUTES

A. General The Performer and the Government, herein “the Parties” shall communicate with one another in good faith and in a timely and cooperative manner when raising issues under this Article.

B. Dispute Resolution Procedures

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

2. Whenever disputes, disagreements, or misunderstandings arise, either Party shall attempt to resolve the issue(s) involved by discussion and mutual agreement as soon as practicable. In no event shall a dispute, disagreement, or misunderstanding that arose more than three months prior to the notification made under this Article, as was known to one or more parties, constitute the basis for relief under this Section unless the AO, in the interest of justice, waives this requirement.

3. Failing resolution by mutual agreement, the aggrieved Party shall document the dispute, disagreement or misunderstanding by notifying the other Party in writing documenting the relevant facts, identifying unresolved issues, specifying the corrective action or remedy sought and documenting the rationale as to why the corrective action/remedy is appropriate. Within 10 working days after providing notice to the other Party, the aggrieved Party may, in writing, request a decision by from a position at least one level above the AO.

4. The aggrieved Party shall submit a written position on the matter(s) in dispute within 30 calendar days after being notified that a decision has been requested. A Government representative will be appointed to conduct a review of the matter(s) in dispute and render a decision in writing within thirty calendar days of receipt of such position. Any such decision is final and binding, unless a Party(ies) shall, within thirty calendar days request further review by an Agreement Holder Executive and the Government Executive equivalent. In the event of an adverse decision, or in the absence of a decision, within sixty calendar days of such referral for further review (or such other period as agreed to by the Parties), any party may pursue any right or remedy provided by law in a court of competent jurisdiction as authorized by 28 USC 1491, including but not limited to the right to seek extraordinary relief under Public Law 85-804. Alternatively, the parties may agree to explore and establish an Alternate Disputes Resolution procedure to resolve this dispute.

ARTICLE VI: PATENT RIGHTS

Not applicable for Step 1 thru Step 4, reserved for Step 5

ARTICLE VII: DATA RIGHTS

Note to Vendor: Please complete the table in Supplement 4 indicating any limitations on data rights in your solution.

A. Allocation of Principal Rights The Government seeks sufficient data rights to receive a good value on resources expended in addition to protecting future national security interests. As such, deliverables provided to the government in association with this agreement will be granted the data rights consistent with the agreement and marked accordingly.

B. Definitions The following definitions serve as a common vocabulary for data rights but are not intended to limit or constrain the nature of the rights on which the Parties ultimately agree.

“Commercial Computer Software” means software developed or regularly used for non-governmental purposes which -

i. has been sold, leased, or licensed to the public;

ii. has been offered for sale, lease, or license to the public;

iii. has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this Agreement.

“Commercial Computer Software License” means the license terms under which Commercial Computer Software is sold or offered for sale, lease or license to the general public.

“Computer Data Base” as used in this agreement, means a collection of data recorded in a form capable of being processed by a computer. The term does not include computer software.

“Computer program” as used in this agreement means a set of instructions, rules, or routines in a form that is capable of causing a computer to perform a specific operation or series of operations.

“Computer software” as used in this agreement means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae and related material that would enable the software to be reproduced, recreated or recompiled. Computer software does not include Computer Data Bases or computer software documentation.

“Computer software documentation” means owner’s manuals, user’s manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.

“Covered Government Support Contractor” means a contractor under a government contract whose primary purpose is to provide independent advice or impartial technical assistance to assist the government in overseeing or managing a program or effort. The covered government support contractor must not be a direct competitor of the Performer in furnishing end items or services of the type developed or produced under this agreement and have executed a non-disclosure agreement with the Government prior to receiving Performer’s Data.

“Data” as used in this Article of this Agreement, means computer software, computer software documentation, and technical data as defined in this Article.

“Government Purpose Rights” (GPR) means the rights to use, modify, reproduce, release, perform, display or disclose the Technical Data by the Government or authorize others to do so on the Government’s behalf for United States Government purposes only, pursuant to an executed non-disclosure agreement. United States Government purposes include Foreign Military Sales purposes and competitive re-procurement.

“Limited Rights” (LR) means the rights to use, modify, reproduce, release, perform, display, or disclose technical data, in whole or in part, only within the Government and for Covered Government Support Contractors the rights to use, modify or reproduce the technical data pursuant to the Covered Government Support contract. Government shall not provide such technical data to third parties unless written permission is granted by Performer prior to such release. Written permission is not necessary for emergency repair and maintenance.

“Restricted Rights” (RR) means the rights to use the non-commercial computer software only for the government’s own internal purposes and for the purposes of receiving support services by Covered Government Support Contractors. The government may make a minimum number of copies for backup or archive purposes only and modify the software for the purposes of making a minimum number of copies. The Government will not make all or part of any computer software available to third parties except under the following situations:

i. necessary for backup or archive;

ii. necessary to correct deficiencies in a computer software; or

iii. necessary to enable a computer software to be combined with, adapted to another computer software; or

iv. necessary to merged with other computer software; or

v. necessary to respond to emergency repair or maintenance situations.

Any disclosure provided to third parties shall have a non-disclosure agreement executed with such third party where such third party is prohibited from decompiling, disassembling, or reverse engineering the software, or using the computer software for any other purpose other than to fulfil the third party’s contractual obligations to the government. The government shall give notice to the Performer of any disclosure to third parties.

“Specially Negotiated License Rights” rights specifically negotiated between the Government and the Performer. Any Specially Negotiated License Rights shall be expressly identified as such and memorialized in writing executed by the AO.

“Technical Data” means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software.

“Unlimited rights” (UR) means the rights to use, modify, reproduce, release, perform, display, or disclose the software to anyone without restriction.

C. Non-Commercial Data Rights “Government Purpose Rights” Unless greater rights apply under a separate agreement or contract, the Performer shall grant to the Government a royalty free, world-wide, nonexclusive, irrevocable license for Government Purpose Rights (GPR) in the Data that is developed or generated under this agreement.

“Limited Rights” Unless greater rights apply under a separate agreement or contract, the Performer shall grant to the Government a royalty free, world-wide, and nonexclusive, irrevocable license for Limited Rights to Technical Data and computer software documentation that is developed independent of this agreement or developed entirely at private expense.

“Restricted Rights” Unless greater rights apply under a separate agreement or contract, the Performer shall grant to the Government a royalty free, world-wide, and nonexclusive irrevocable license for Restricted Rights to Computer Software developed independent of this agreement or developed entirely at private expense.

D. Marking of Data Performer shall provide labels on any Data Deliverable (PWS Tables 1 and 2) the data protection associated with the content. The following is an example:

Marking Legend for Deliverables:

Example: “FMS-ACES Proprietary Information” Agreement Number: W519TC-23-9-XXXX

Company Name:

Address:

Insert the Performer’s brief description of as appropriate.

E. Commercial Licenses

1. In the performance of this agreement, Performer may select and utilize commercial computer software, products or computer services containing commercial licenses (e.g., EULAs, SaaS, etc.). Such licenses may contain terms that conflict with federal law. The Government, as the beneficiary to such third-party developer or vendor’s commercial licenses, agrees and accepts to be bound by such terms and conditions to the extent such terms and conditions are consistent with federal law.

2. All commercial computer software, product or service subject to a commercial license agreement by a third-party developer or vendor that Performer intends to utilize in performance of this agreement shall be identified in Supplement 5, Data Assertion List, and a copy of the commercial license shall be provided to the AO. The AO shall be notified immediately of any changes to the Data Assertion List, including substitution or changes to a developer, vendor or license within a reasonable time prior to such change. The Performer shall also provide notice of any updates and renewal obligations for each commercial license in a reasonable time prior to the update or expiration date of the renewal obligation.

3. Any term or condition in a commercial license that conflicts with or is inconsistent with this agreement, shall be deemed stricken as it is applied to the Government and the term or condition in this agreement shall take precedence and supersede any such conflicting or inconsistent term or condition. For the benefit of clarity, the following terms shall take precedence over the terms in any commercial license agreement even if the government is deemed to have agreed to such terms:

i. “Click-Wrap” Any agreement invoking an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), shall not be binding against the Government or any Government end user, even if such user purportedly accepted such agreements. Such a click box agreement or its terms is only deemed accepted if incorporated as a written document (either as bilateral attachment or as a bilateral modification) into this agreement.

ii. “Law and Jurisdiction” Any language purporting to subject the Government to the laws of a U.S. state, U.S. territory, district, or municipality, or a foreign nation, except where federal law expressly provides for the application of such laws, is hereby deleted. Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable federal law is hereby deleted. Any language prescribing a time period for bringing an action that is different than that prescribed by applicable federal law in relation to a dispute is hereby deleted.

iii. “Disputes” Liability for any breach or claim to any Vendor’s terms or conditions shall be determined under the Federal Tort Claims Act (28 U.S.C. §§ 1346, 2401-2402, 2671-72, 2674-2680), Article V: Disputes, Anti-Deficiency Act (31 U.S.C. §1341, 31 U.S.C. §1517), or other governing federal authority.

iv. “Additional Terms” Any term or conditions incorporated into the license and or this agreement (either through incorporation by reference, click box, amendments etc.) shall be deemed not binding against the Government or Government end users unless such term or condition is expressly agreed in writing by an authorized AO and expressly incorporated as a modification to this agreement.

v. “No automatic renewals” Any term or condition subjecting the Government to automatic renewal of payment terms is void and shall be deemed not binding against the Government.

vi. “Payment Terms” Any references to payment terms, including taxes and surcharges, are void and shall be deemed not binding against the Government as such terms are covered under a separate agreement between the Performer and the developer or vendor.

vii. “Representation” Any term or condition requiring a non-government entity to defend the Government in contravention of 28 U.S.C. 516 is deemed void and not binding against the Government. The U.S. Department of Justice has the sole right to represent the United States in accordance with 28 U.S.C. § 516.

viii. “Indemnification & Liability” Any terms or conditions requiring the Government to indemnify the party shall be deemed void and not binding against the Government. The Government agrees to pay for any loss, liability or expense, which arises out of or relates to the Government’s acts or omissions with respect to its obligations subject to a final determination of liability on the part of the Government as established by a court of law having competent jurisdiction or where settlement has been agreed to by the Government agency with, and where appropriate, coordination of the Department of Justice. This provision shall not be construed to limit the Government’s rights, claims or defenses which arise as a matter of law or pursuant to any other agreement.

ix. Government Audits. Any terms permitting auditing of the Government’s compliance with license usage shall be deemed not binding against the Government. The Government will agree to the following audit terms. The Government will perform an internal audit of software quantities in use not more than once a year and will use its best efforts to keep full and accurate accounts that may be used to properly ascertain and verify numbers of licenses and authorized use. Upon the Performers’ written request, the Government may provide audit reports from the Government’s internal audit records not more than once a year as the sole means of satisfying the request for audit.

x. Right of Entry. Any provisions granting right of access by third parties to Government facilities is hereby deleted and not binding against the Government. Any request for access by third parties to Government facilities shall be made to the Performer which will coordinate with the Government.

xi. Termination. Any commercial software license termination terms are void and shall not apply to the Government. Termination shall be governed by Article II, B of this Agreement.

4. The Performer warrants that the commercial computer software, product, or service selected by the Performer permits access and use by the Government for the purposes identified under this agreement. The Performer further warrants that it has obtained all the necessary rights from the developer or vendor to use and incorporate its software, product or service into the deliverables under this Agreement.

F. Copyright Performer shall grant rights to works that are subject to copyright protection concurrent with the level of rights granted for Data in section C above.

G. Government Unique Marks “Government Unique Mark” means any mark (e.g., words, product or program names, acronyms, or model designations) first used by the Government and such mark is used or intended to be used to identify and distinguish goods, programs, or products developed or manufactured in performance of a Government contract or that identifies and distinguishes services first rendered in performance of a Government contract or agreement.

“Background Trademark” means any mark, service mark, or trade name whether or not registered that is i) not a Government Unique Mark or derived from a Government Unique Mark and ii) that is related to the goods and services provided under this agreement, and iii) is owned or controlled by the Performer.

“Department of Defense and Military Seals” are protected by law from unauthorized use, and these seals may NOT be used for non-official purposes. Performers are advised to not use official DoD seals and other protected logos, insignia and marks of the DoD and Military Services, etc. in Performer marketing materials unless approved in writing. Information on the process of use of Department of Defense and Military Service Seals is at:

DoD Branding and Trademarks Guide: Available at:

https://www.defense.gov/Resources/Branding-and-Trademarks/DOD-Trademark-Licensing-Guide/

DoD Instruction 5535.12 “DoD Branding and Trademark Licensing Program Implementation” dated September 13, 2013, Incorporating Change 1, April 29, 2020, Available at:

https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/553512p.pdf

Nothing contained in this clause affects the Performer’s or the Government’s rights in any marks other than Government Unique Mark.

H. Government Owned Data

All Government furnished Controlled Unclassified Information (CUI) and Classified information and/or data is the exclusive property of the Government and no rights expressed or implied are granted to use such data except for the express purposes identified in this Agreement. Performer shall return or dispose of all Government CUI and Classified Government furnished data in accordance with the terms of this agreement or by written instructions from the AO.

“Government Personnel Data” means any Personally Identifiable Information (PII), Protected Health Information (PHI) and must be protected in accordance with the applicable Federal Information Laws.

“Government Content” means any Government Data (as defined below) that is provided or uploaded by the Government (including Government authorized users and third parties) for transactions, transmission, storage, integration, import, display, distribution, or use in or through the Performer’s Products (as defined below).

“Government Data” means any analogue or digital data in any format (i.e. transactional data, individual facts, statistics, personal information (e.g. Personally Identifiable Information (PII) or Protected Health Information (PHI)) or items of information that is expressed as quantities, characters, images, or symbols on which operations are performed by a computer; being stored and transmitted in the form of electrical signals and recorded on any physical media provided by the Government, Government authorized user, or a third party for entry, storage or transmission in government systems, including any such Computer Data that is inputted by Government Authorized Users, or located in any data files, tables, objects or any storage medium developed or maintained by the Performer, including data that is an improvement, modification, adaptation, translation or derivation of the Computer Data. Government Data does not include Performer provided: Software, Software as a Service, third Party Licensed Software that comprise of the FMS-ACES Solution, or Commercial Software, as defined herein.

I. Lower Tier Agreements

The Performer shall include this Article, suitably modified to identify the Parties, in all subcontracts or lower tier agreements entered into in connection with this Agreement.

ARTICLE VIII: FOREIGN ACCESS TO TECHNOLOGY

This Article shall remain in effect during the term of the Agreement and for five years thereafter.

A. General The Parties agree that research findings and technology developments arising under this Agreement may constitute a significant enhancement to the national defense, and to the economic vitality of the United States. Accordingly, access to important technology developments under this Agreement by Foreign Firms or Institutions must be carefully controlled. The controls contemplated in this Article are in addition to, and are not intended to change or supersede, the provisions of the International Traffic in Arms Regulations (22 C.F.R. Part 120, et seq.), the National Security Program Operating Manual (NISPOM) (DoD 5220.22-M), and the Department of Commerce's Export Administration Regulations (15 C.F.R. Part 730, et seq.).

B. Restrictions on Sale or Transfer or Technology to Foreign Firms or Institutions

1. In order to promote the national security interests of the United States and to effectuate the policies that underlie the regulations cited in paragraph J. above, the procedures stated below shall apply to any transfer of Technology. For purposes of this paragraph, a transfer includes a sale of the Performer, and sales or licensing of Technology. Transfers do not include:

a. Sales of products or components; or

b. Licenses of the software or documentation related to sales of products or components; or

c. Transfer to foreign subsidiaries of the Performer for purposes related to this Agreement; or

d. Transfer which provides access to Technology to a Foreign Firm or Institution which is an approved source of supply or source for the conduct of research under this Agreement provided that such transfer shall be limited to that necessary to allow the firm or institution to perform its approved role under this Agreement.

2. The Performer shall provide timely notice to the Government of any proposed transfers from the Performer of Technology developed under this Agreement to Foreign Firms or Institutions. If the Government determines that the transfer may have adverse consequences to the national security interests of the United States, the Performer, its vendors, and the Government shall jointly endeavor to find alternatives to the proposed transfer which obviate or mitigate potential adverse consequences of the transfer, but which provide substantially equivalent benefits to the Performer.

3. In the case of any proposed transfer to a foreign firm or institution the Performer shall provide written notice to the AO of at least sixty (60) calendar days prior to the proposed date of transfer. Such notice shall cite this Article and shall state specifically what is to be transferred and the general terms of the transfer. Within thirty (30) calendar days of receipt of the Performer's written notification, the AO shall advise the Performer whether it consents to the proposed transfer. In cases where the Government does not concur or sixty (60) calendar days after receipt and the Government provides no decision, the Performer may utilize the procedures under Article VI, Disputes. No transfer shall take place without written approval from the AO.

4. If a transfer of Technology to Foreign firms or Institutions that is NOT approved by the Government takes place, the Performer shall (a) refund to the Government funds paid for the development of the Technology and (b) the Government shall have a non-exclusive, nontransferable, irrevocable, paid-up license to practice, or to have practiced on behalf of the United States the Technology throughout the world for Government and any and all other purposes, particularly to effectuate the intent of this Agreement. Upon request of the Government, the Performer shall provide written confirmation of such licenses.

C. Lower Tier Agreements The Performer shall include this Article, suitably modified to identify the Parties, in all subcontracts or lower tier agreements entered into in connection with this Agreement.

ARTICLE IX: TITLE TO AND DISPOSITION OF PROPERTY

Not applicable to Step 1 thru Step 4. Reserved for consideration in Step 5.

ARTICLE X: STATUTORY AUTHORITY

Public Law 117-263, Title 10 U.S.C. § 4001. Research and development projects; § 4021: Research projects: transactions other than contracts and grants; and § 4022: Authority of the Department of Defense to carry out certain prototype projects.

ARTICLE XI: PUBLIC RELEASE OR DISSEMINATION OF INFORMATION

1. There shall be no dissemination or publication, except within and between the Performer and any subcontractors, of information developed under this Agreement or contained in the deliverables or artifacts to be furnished pursuant to this Agreement without prior written approval of the AOR or AO. All technical reports will be given proper review by the AOR to determine which Distribution Statements in accordance with DoDI 5230.24 "Distribution Statements on Technical Documents" are to be applied prior to the initial distribution of these reports by the Performer. Only Unclassified patent related documents are exempt from prepublication controls and this review requirement. There shall be no dissemination or publication, except within and between the Performer and any subcontractor(s), of information developed under this effort without first obtaining approval for public release from the cognizant Public Affairs (PA) office.

2. The Performer shall submit all proposed public releases for review and approval as instructed by the AOR and AO. The Government will be reasonable in its review and work in good faith to enable publication when able. Public releases include press releases, specific publicity or advertisement, and publication or presentation, but exclude those relating to the open sourcing or licensing, sales or other commercial exploitation of products, services or technologies. In addition, articles for publication or presentation will contain a statement on the title page worded substantially as follows:

“This research was, in part, funded by the U.S. Government. The views and conclusions contained in this document are those of the authors and should not be interpreted as representing the official policies, either expressed or implied, of the U.S. Government.”

3. In compliance with reporting statutes, this agreement will be posted in Government electronic notice forums to include, but not limited to SAM.gov and FPDS.gov. At a minimum the Government will post: Name of Vendor as registered in SAM, the amount awarded, and the date of the award. Additionally, the Government will need to comply with all obligatory reporting channels.

The Performer shall flow down these requirements to its partners and team members at all tiers.

ARTICLE XII: ORDER OF PRECEDENCE

In the event of any inconsistency between the terms of this Agreement, the language set forth in the Supplements, and the Performer's proposal, the inconsistency shall be resolved by giving precedence in the following order: (1) The Agreement, (2) The PWS at Supplement 1 of the Agreement, to include Enclosures, (3) Supplement 2 through 7, and (4) the Performer’s Proposal.

ARTICLE XIII: EXECUTION

This Agreement supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions among the Parties, whether oral or written, with respect to the subject matter hereof. This Agreement may be revised only in accordance with Article III. By executing this agreement, the Performer affirms that it is:

and, as a result, is eligible to be awarded this Agreement.

Note to Offeror: Select one of the options highlighted above to identify by which means you as the Prime Performer are eligible for award of an OTA IAW 10 USC 4022. This note will be deleted prior to Agreement award.

ARTICLE XIV: NON-ASSIGNMENT

This Agreement may not be assigned by any Party without written approval from the AO.

ARTICLE XV: FORCE MAJEURE

Neither Party shall be in breach of this Agreement for any failure of performance caused by any event beyond its reasonable control and not caused by the fault or negligence of that Party. If such a force majeure event occurs, the Party unable to perform shall promptly notify the other Party and shall in good faith maintain such partial performance as is reasonably possible and shall resume full performance as soon as is reasonably possible.

ARTICLE XVI - RESOURCE SHARE - OUTSIDE FUNDING

Resource Share - Outside Funding reserved for Step 5

ARTICLE XVII: CONFIDENTIAL INFORMATION

A. Definitions

“Disclosing Party” means Performer, or their subcontractors or suppliers, or the Government who discloses Confidential Information as contemplated by the subsequent Paragraphs.

“Receiving Party” means Performer, or their subcontractors or suppliers, or the Government who receives Confidential Information disclosed by a Disclosing Party.

“Confidential Information” means information and materials of a Disclosing Party that are designated as confidential or as a Trade Secret in writing by such Disclosing Party, whether by letter or by use of an appropriate stamp or legend, prior to or at the same time any such information or materials are disclosed by such Disclosing Party to the Receiving Party. Notwithstanding the foregoing, materials and other information which are orally, visually, or electronically disclosed by a Disclosing Party, or are disclosed in writing without an appropriate letter, stamp, or legend, shall constitute Confidential Information or a Trade Secret if such Disclosing Party, within thirty (30) calendar days after such disclosure, delivers to the Receiving Party a written document or documents describing the material or information and indicating that it is confidential or a Trade Secret, provided that any disclosure of information by the Receiving Party prior to receipt of such notice shall not constitute a breach by the Receiving Party of its obligations under this Paragraph. “Confidential Information” includes any information and materials considered a Trade Secret by the Performer on its own behalf or on behalf of their subcontractors or suppliers.

“Trade Secret” means all forms and types of financial, business, scientific, technical, economic, or engineering or otherwise proprietary information, including, but not limited to, patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if:

(a) The owner thereof has taken reasonable measures to keep such information secret; and

(b) The information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public.

B. Exchange of Information: The Government may from time to time disclose Government Confidential Information to the Performer and its subcontractors or suppliers, in connection with a particular project, and the Performer and its subcontractors or suppliers, may from time to time disclose information that is Trade Secret or Confidential Information to the Government in connection with the OT or performance thereunder. Neither the Government nor Performer or their subcontractors or suppliers shall be obligated to transfer Confidential Information or Trade Secrets independently developed by the Government or the Performer or their subcontractors or suppliers, absent an express written agreement between the Parties providing the terms and conditions for such disclosure.

C. Confidentiality and Authorized Disclosure: The Receiving Party agrees, to the extent permitted by law, that Confidential Information and Trade Secrets shall remain the property of the Disclosing Party (no one shall disclose unless they have the right to do so), and that, unless otherwise agreed to by the Disclosing Party, Confidential Information and Trade Secrets shall not be disclosed, divulged, or otherwise communicated by it to third parties or used by it for any purposes other than in connection with specified project efforts and the licenses granted in Article VI, Patent Rights, and Article VII, Data Rights, provided that the duty to protect such “Confidential Information” and “Trade Secrets” shall not extend to materials or information that:

(a) Are received or become available without restriction to the Receiving Party under a proper, separate agreement,

(b) Are not identified with a suitable notice or legend per Article [Add ## Confidential Information] titled "Confidential Information" herein,

(c) Are lawfully in possession of the Receiving Party without such restriction to the Receiving Party at the time of disclosure thereof as demonstrated by prior written records,

(d) Are or later become part of the public domain through no fault of the Receiving Party,

(e) Are received by the Receiving Party from a third party having no obligation of confidentiality to the Disclosing Party that made the…