Attachment 1 OTA Terms and Conditions.docx

W9124P229P001

Agreement No.: _______________

This Other Transaction Agreement (“OTA” or “Agreement”) is entered into between the United States of America, hereinafter called the “Government”, pursuant to and under U.S. Federal law and the Company.

Agreement Term: The term of this Agreement is _____________ from the Effective Date. The maximum value of the agreement to be awarded under the terms and conditions of this Agreement is ______________ .

Authority: Per 10 U.S.C. §4022(a), Prototype Project Transactions, Signature of Authorized Company Representative

Printed Name

Title

Date

Table of Contents

ARTICLE 1: SCOPE OF THE AGREEMENT

A. Background

This Other Transaction Agreement (OTA) is in support of a prototype agreement for the Platoon Bulk Charger (PBC). The PBC is man-portable platoon bulk charger that can charge a variety of batteries that the Soldier carries in austere environments. The PBC will facilitate a unit’s ability to operate self-sustained from battery resupply for operations up to and exceeding seventy-two (72) hours in duration.

B. Definitions

“Agreement” or "OTA" refers to this Other Transaction Agreement, as authorized under 10 U.S.C. 4022, between the Government and Company.

“Agreements Officer (AO)” is the United States Army Contracting Command – Aberdeen Proving Ground Contracting Activity warranted Agreements Officer authorized to execute the agreement on behalf of the Government.

“Agreements Officer’s Representative (AOR)” is the individual designated by the Government on a per project basis to monitor all technical aspects; the AOR shall only assist in agreement administration of the specific project to the extent expressly delegated such administration authority in writing in the Project Agreement by the responsible Agreements Officer.

“Company or Contractor or Prime Contractor” means the non-government organization awarded a Prototype or Production Other Transaction Agreement

“Contracting Activity” means an element of an agency designated by the agency head and delegated broad authority regarding acquisition functions. It also means elements of or another agency designated by the director of a defense agency which has been delegated contracting authority through its agency charter.

“Date of Completion” is the date on which all work is completed or the date on which the period of performance ends.

“Development” means the systematic use, under whatever name, of scientific and technical knowledge in the design, development, test, or evaluation of an existing or potential new technology, product, or service (or of an improvement in an existing technology, product or service) for the purpose of meeting specific performance requirements or objectives. Development includes the research functions of design engineering, prototyping, and engineering testing.

“Effective Date” means the date when this Agreement is signed and executed by the Agreements Officer for the Government.

“Equitable Adjustment” refers to a formal document submitted by a party, usually a company / contractor or subcontractor, to seek compensation or modification of the terms of a contract due to unforeseen changes or circumstances that have impacted the performance of the contract.

“Government” means the U.S. Government.

“Government Fiscal Year” means the period commencing on October 1 and ending September 30 of the following calendar year.

“Milestone” means a scheduled event signifying the completion of a major deliverable or a set of related deliverables as identified in the Statement of Work.

“Other Transactions Agreement (OTA)” is the term commonly used to refer to the 10 USC 4022 authority to enter into transactions other than contracts, grants or cooperative agreements. The Department of Defense (DoD) currently has authority to make awards that are directly relevant to enhancing the mission effectiveness of military personnel and the supporting platforms, systems, components, or materials proposed to be acquired or developed by the Department of Defense, or to improvement of platforms, systems, components, or materials in use by the armed forces. OTAs are acquisition instruments that generally, are not subject to the federal laws and regulations governing procurement (FAR based) contracts. As such, they are not required to comply with the Federal Acquisition Regulation (FAR), its supplements (i.e. DFARS) or laws that are limited in applicability to procurement contracts.

“Parties” means Government and the COMPANY by its authorized agent where collectively identified and “Party” where each entity is individually identified.

“Payable Milestone” means that once a milestone has been met (see definition of “milestone”), the Government can approve payment to the COMPANY of a predetermined dollar amount in relation to performance of a particular project under the Other Transaction Agreement.

“Program” means the overall effort to be funded by the Agreement, which is described in the Statement of Work appended to this Agreement as Attachment I.

“Signatory Authority” refers to the individual that has the authority to legally bind a party to an agreement.

C. Scope

The Scope of Work is attached to this agreement.

ARTICLE 2: TERM

A. The Term of this Agreement; Scope

This OTA has a twelve-month period of performance. Options if included will be exercised at the Government’s sole discretion by the AO only. The Government is not required to exercise any option or CLIN. Option CLINs maybe be exercised sooner or later than the estimated.

B. At the end of the prototyping phase, the Government intends to select one Offeror for a low-rate initial production (LRIP) award via a follow-on Production OTA. However, the Government reserves the right to down select to one Offeror at any time during the prototyping phase if:

· Both Offerors successfully conclude their contractual requirements before the end of the PoP or,

· One Offeror has been successful, and the other Offeror has been determined by the government to lack the ability to complete the required efforts within the allotted timeline.

C. Prototype Exit Criteria and Success Determination

1. A final report, accepted by the Government, showing that all PQT requirements have been met

2. Delivery of 10 fully functional prototypes.

B. Early Termination of Agreement Provision

The AO may unilaterally terminate performance of work under this OTA, in whole or part. The AO shall terminate by delivering to the COMPANY 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 COMPANY 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 the continued portion of the OTA.

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

(4) Assign to the Government, as directed by the AO, all right, title, and interest of the COMPANY under the orders terminated, in which case the Government shall have the right to settle or to pay any termination settlement proposal 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, transfer title to the following, where applicable, and deliver to the Government --

(i) The fabricated or unfabricated parts, work in process, completed work, supplies, and other material produced or acquired for the work terminated; and

(ii) The completed or partially completed plans, drawings, information, and other property that, if the order had been completed, would have been required to be furnished to the Government, with whatever rights would have been provided to the Government had the OTA been fully performed.

(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 property related to this project that is in the possession of the COMPANY and in which the Government has or may acquire an interest.

(9) Use commercially reasonable efforts to sell, as directed or authorized by the AO, any property of the types referred to under Article 2.B. Termination Provisions, (6)(i) and (ii).

The proceeds of any transfer or disposition of project property will be applied to reduce any payments to be made by the Government under this Agreement, including credited to the price or cost of the work, or paid in any other manner directed by the AO.

COMPANY shall settle with its suppliers/subcontractors in general conformity with the policies and principles relating to settlement of prime contracts in this Agreement within 90 calendar days. However, the basis and form of the subcontractor’s settlement proposal must be acceptable to the prime contractor or the next higher tier subcontractor. Each settlement must be supported by accounting data and other information sufficient for adequate review by the Government. In no event will the Government pay the prime contractor any amount for loss of anticipatory profits or consequential damages resulting from the termination of any subcontract.

The AO shall promptly examine each subcontract settlement received to determine that the subcontract termination was made necessary by the termination of the prime contract. The AO will also determine if the settlement was arrived at in good faith, is reasonable in amount, and is allocable to the terminated portion of the contract (or, if allocable only in part, that the proposed allocation is reasonable). In considering the reasonableness of any subcontract settlement, the AO shall generally be guided by the provisions of this Agreement.

In the event of a termination of this Agreement, the Government shall have patent rights as described in Article 9, Patent Rights, and rights in Data as described in Article 8, Data Rights. Failure of the Parties to agree to an equitable adjustment shall be resolved pursuant to Article 5, 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/agreement or default by the other party.

C. Stop Work Clause

As directed by the AO, the COMPANY shall stop all, or any part, of the work called for under this Agreement for a period of 90 days after the written order is delivered, and for any further period to which the parties may agree. The order shall be specifically identified as a stop-work order issued under this Article. Upon receipt of the order, the COMPANY 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 is delivered, or within any extension of that period to which the parties shall have agreed, the AO shall either:

(a) Cancel the stop-work order; or

(b) Terminate the work covered this Agreement.

If a stop work order issued under this clause is canceled, the COMPANY shall resume work.

The Government shall make an equitable adjustment in the delivery schedule or negotiated price, or both, and the Government’s share of 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 COMPANY 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 t may receive and act upon a proposal submitted at any time before final payment under this Agreement.

ARTICLE 3: AGREEMENT ADMINISTRATION

Unless otherwise provided in this Agreement, approvals permitted or required to be made by the ACC-APG Contracting Activity may be made only by the ACC-APG Contracting Activity Agreements Officer. Administrative and contractual matters under this Agreement shall be referred to the following representatives of the parties:

PM Soldier Warrior (SWAR)

Company:

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

ARTICLE 4: OBLIGATION AND PAYMENT

A. Obligation: Except as specified in Article 5: Disputes, the Government’s liability to make payments to the COMPANY is limited only to those funds obligated under this Agreement or by modification to the Agreement. The ACC-APG Contracting Activity may incrementally fund cost reimbursement type line items on Agreement if applicable. If modification becomes necessary in performance of this Agreement, pursuant to Article 4 of this Agreement, the AO and the COMPANY may establish and execute a mutually agreed to revised Schedule of Payable Milestones consistent with the current Project Plan.

B. Payment: Payment will be made using the Wide Area Workflow (WAWF) system, according to the guidelines set forth in DFARS Subpart 232.70 and DFARS 252.232-7003 Electronic Submission of Payment Requests and Receiving Reports.

1. To access WAWF:

a. Have a designated electronic business point of contact in the System for Award Management at https://www.acquisition.gov; and

b. Be registered to use WAWF at https://wawf.eb.mil/ following the step-by-step procedures for self- registration available at this Web site.

2. WAWF training. Company should follow the training instructions of the WAWF Web-Based Training Course and use the Practice Training Site before submitting payment requests through WAWF. Both can be accessed by selecting the “Web Based Training” link on the WAWF home page at https://wawf.eb.mil/.

3. WAWF methods of document submission. Document submissions may be via Web entry, Electronic Data Interchange, or File Transfer Protocol.

4. WAWF payment instructions. Company shall use the information from “C. Payment” when submitting payment requests and receiving reports in WAWF for this agreement/order.

5. Document type. Company shall use the following document type(s): Combo Invoice/Receiving Report or Cost Voucher

6. Inspection/acceptance location. Company shall select the following inspection/acceptance location(s) in WAWF:

Inspection at DESTINATION / Acceptance at DESTINATION

7. Document routing. Company shall use the information in the Routing Data Table below only to fill in applicable fields in WAWF when creating payment requests and receiving reports in the system.

Routing Data Table* Field Name in WAWF Data to be entered in WAWF Pay Official DODAAC: HQ0490 Issue By DODAAC: W91CRB Admin DODAAC: W91CRB Inspect By DODAAC: W91231 Accept By: DODAAC: W91231

8. Payments. Payments will be made by Defense Finance and Accounting Service (DFAS):

Cognizant Defense Finance and Accounting Services (DFAS):

DFAS –INDY VP GFEBS

8899 E. 56th Street Indianapolis, IN 46249-3800

D. Electronic Fund Transfer (EFT):

Company shall be enrolled in EFT by contacting the paying office designated in the Agreement and requesting form SF 3881, Automated Clearing House (“ACH”) Vendor/Miscellaneous Payment Enrollment Plan. This form must be completed by Company’s financial institution and returned to the paying office. The paying office will complete the process and notify the AOR, as agent of Company, that EFT enrollment is complete. All payments under this agreement will be held until the AO provides the required EFT enrollment information for the Company.

Registration in the System Award for Management (SAM) is mandatory. https://www.sam.gov/SAM/

E. Limitation of Funds:

Except as set forth in Article 4, the Government's financial liability will not exceed the amount obligated under this Agreement in accordance with the corresponding Contract Line Item Numbers.

For cost reimbursement type line items only, the Company shall notify the Agreements Officer in writing whenever it has reason to believe that the costs it expects to incur under this agreement in the next sixty (60) days, when added to all costs previously incurred, will exceed 75 percent of the total amount so far obligated under this agreement. The notice shall state the estimated period remaining funds will continue to cover performance.

F. Financial Records and Reports:

Company shall maintain adequate records consistent with Company’s Generally Accepted Accounting Principles (GAAP), to account for Federal funds received under this Agreement. Company relevant financial records are subject to examination or audit on behalf of the Government for a period not to exceed three (3) years after expiration of the term of the Agreement. The Government shall have direct access to sufficient records and information from Company 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 Government using Government auditors or, at the request of Company, Company' external CPA accounting firm at the expense of Company with Government consent.

Company, shall maintain adequate records to account for:

A. Federal Funds Received B. Member Funding (if Cost Sharing Procedures are Implemented)

Company, shall have an accounting system that:

C. Complies with Generally Accepted Accounting Principles (GAAP) D. Complies with the Requirements of this Agreement

Controls & Documents All Cash Receipts and Disbursements Properly

G. Payment Schedule:

Payments shall be made in accordance with the payable milestones. Company shall invoice, and the Government shall make payment upon delivery of or completion (as applicable) of each payable milestone depending on Supplemental Agreement agreed to deliverables. Company shall have successfully completed each Line Item when it demonstrates the Line Item delivered/completed substantially meets the description of each Line Item as set forth in this agreement and associated Supplemental Agreements. If the Government determines the Company has not substantially met the relevant success criteria, then Company shall be given a detailed description explaining the Government’s reasons why it believes it has failed to substantially meet such relevant success criteria. Company shall be given a reasonable opportunity to cure stated deficiencies or otherwise demonstrate substantial compliance.

ARTICLE 5: DISPUTES

A. General

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

B. Dispute Resolution Procedures

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

Whenever disputes, disagreements, or misunderstandings arise, the Parties shall attempt to resolve the issue(s) involved by discussion and mutual agreement as soon as practicable. In no event shall a dispute, disagreement or misunderstanding which arose more than three (3) months prior to the notification made under this article constitute the basis for relief under this article unless the Chief of the Contracting Office, ACC-APG in the interest of justice waives this requirement.

Failing resolution by mutual agreement, the aggrieved Party shall document the dispute, disagreement, or misunderstanding by notifying the other Party through the cognizant AO in writing documenting the relevant facts, identifying unresolved issues, specifying the clarification or remedy sought, and documenting the rationale as to why the clarification/remedy is appropriate. Within ten (10) working days after providing notice to the other Party, the aggrieved Party may, in writing, request a decision by the Chief of the Contracting Office, ACC-APG. The other Party shall submit a written position on the matter(s) in dispute within thirty (30) calendar days after being notified that a decision has been requested. The Chief of the Contracting Office, ACC-APG, will conduct a review of the matter(s) in dispute and render a decision in writing within thirty (30) calendar days of receipt of such position. Any such decision is final and binding, unless a Party shall, within thirty (30) calendar days request further review as provided by this article.

If requested within thirty (30) calendar days of the decision by the Chief of the Contacting Office, ACC-APG, further review will be conducted by the Chief Operating Officer of the COMPANY and the ACC-APG Senior Contracting Official (SCO). In the event of a decision, or in absence of a decision within sixty (60) calendar days of referral to the President of the COMPANY Board and the ACC-APG Director of Contracting (or such other period as agreed to by the parties), either party may pursue any right or remedy provided by law.

C. Limitation of Liability and Damages

In no event shall the liability of the COMPANY for their performance of this Agreement exceed the total funding received. The Government’s liability shall not exceed the amount of funds obligated to this agreement. Neither Party shall be liable to the other Party for consequential, punitive, special and incidental damages or other indirect damages, whether arising in contract/agreement (including warranty), tort (whether or not arising from the negligence of a Party) or otherwise, except to the extent such damages are caused by a Party's willful misconduct. Notwithstanding the foregoing, claims for contribution toward third-party injury, damage, or loss are not limited, waived, released, or disclaimed.

ARTICLE 6: CONFIDENTIAL INFORMATION

“Confidential Information” means information or materials in whatever form which are designated by the Government as Controlled Unclassified Information, Secret, or Top Secret or designated by the COMPANY as Trade Secret, Proprietary, or Confidential Commercial and/or Financial Information. Designation may be made by cover letter to the material, or stamp or legend on the material or where the confidential nature of the information is reasonably obvious from the content of information and context of the disclosure. Either party may retroactively designate any information or materials as “Confidential Information” by notifying the other Party in writing within 30 calendar days following the initial disclosure. Such notification shall reasonably describe the information or material and indicate the basis for the designation. Any disclosure by a Party prior to the receipt of the retroactive designation shall not constitute a breach of the agreement.

Notwithstanding any provision in this agreement, the designation of any Government information or material designated as Controlled Unclassified Information, Secret, or Top Secret shall be consistent with law, regulation and formal policy including but not limited to Executive Order 13556, 32 C.F.R. Part 117, 32 C.F.R. Part 2002, and Department of Defense Instruction 5200.48. Notwithstanding any provision of this agreement, the designation of any COMPANY information or material as Trade Secret, Proprietary, or Confidential Commercial and/or Financial Information shall be consistent with Exemption 4(b) of the Freedom of Information Act (5 U.S.C. § 552(b)(4)), the Trade Secrets Act (18 U.S.C. §1905), and the Economic Espionage Act (18 U.S.C. §1831 et seq.)

In accordance with the terms of this agreement, the Government may disclose Confidential Information to the COMPANY and its subcontractors from time to time. The COMPANY agrees to handle and protect the Confidential Information in accordance with 32 C.F.R. Part 117, 32 C.F.R. Part 2002, and Department of Defense Instruction 5200.48 and any other applicable law, regulation, or policy. The COMPANY agrees to insert terms that conforms in substance to this clause in all subcontracts, teaming or joint venture agreements, or any other agreement which require access to Confidential Information provided by the Government.

In accordance with the terms of this agreement, the COMPANY may disclose Confidential Information to the Government. The Government will protect and handle the Confidential Information in accordance with the Freedom of Information Act (5 U.S.C. § 552)), the Trade Secrets Act (18 U.S.C. §1905), the Economic Espionage Act (18 U.S.C. §1831 et seq.), the Procurement Integrity Act (41 U.S.C. §423), Executive Order 126000 and any other law, regulation, and requirement applicable to the Government.

ARTICLE 8: INTELLECTUAL PROPERTY AND DATA RIGHTS

Intellectual property (IP) is defined to include, but not limited to, inventions, reports, and data (including but not limited to technical data, software, firmware, computer codes, know-how, and trade secrets).

Background IP and Materials. The COMPANY and the Government each retain any IP rights to their own materials, data, technology, information, documents, or know-how—or potential rights, such as issued patents, patent applications, invention disclosures, or other written documentation—that exist prior to execution of this Agreement (Background IP).

Executive Order No. 9424 of 18 February 1944 requires all executive Departments and agencies of the Government to forward through appropriate channels to the Commissioner of Patents and Trademarks, for recording, all Government interests in patents or applications for patents.

A. Data and Software Rights:

Data and Software rights are covered under Defense Federal Acquisition Regulation Supplement (DFARS) clauses including, but not limited to: 252.227-7013, Rights in Technical Data - Non-commercial Items; 252.227-7014, Rights in Noncommercial Software and Noncommercial Computer Software Documentation; 252.227-7015, Technical Data – Commercial Items; 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends; 252.227-7027, Deferred Ordering of Technical Data or Computer Software; and 252.227-7030, Technical Data – Withholding of Payment.

At least the following types of data generated or developed by the Awardee while performing under this Agreement shall be provided to the Government with Unlimited Rights: form, fit, and function data, interface control documents, application program interfaces; data necessary for operation, maintenance, installation, interfacing, or training purposes; studies, analyses, test data, or similar data; and computer software documentation.

B. Data/Software Rights Assertions:

Pursuant to the content and formatting requirements for Data and Software Rights Assertions set forth in DFARS 252.227-7017, Offerors are required to specifically identify Data/Software Rights Assertions related to all technical data and software deliverables (at the base contract level and task order level). However, in addition to the content and formatting requirements set forth in DFARS 252.227-7017, the Awardee’s Data Rights Assertions table shall list Data items that the Awardee intends to furnish to the Government with and without license restrictions. Thus, the Data/Software Rights Assertions table shall also include technical data and software items that are to be provided to the Government with an “unlimited rights” license.

As indicated in DFARS 252.227-7017(e), an Offeror's failure to submit, complete, or sign the aforementioned Data and Software Rights Assertions with its offer may render the offer ineligible for award.

CONTRACTOR'S IDENTIFICATIONS AND ASSERTIONS PURSUANT TO DFARS 252.227-7017

This provision documents the fact that the Contractor has provided the identification and assertion appended hereto as an Attachment prior to the award of this Agreement. The Government makes no comment regarding the correctness of the contents of that appendix in light of DFARS 252.227-7013, DFARS 252.227-7014, DFARS 252.227-7015 and DFARS 252.227-7018, one or more of which are incorporated into this Agreement, and which the Parties hereto agree will govern the Government's rights in technical data and computer software delivered hereunder along with any other/special provisions incorporated in this Agreement. Notwithstanding the foregoing, the Parties recognize that the Government has relied to its detriment on the completeness and accuracy of this appendix. In addition, the Government reserves the right to challenge the Contractor's Data and Software Rights Assertions, in accordance with DFARS 252.227-7019 and DFARS 252.227-7037.

C. Marking Requirements:

All non-commercial technical data and software deliverables shall be properly marked in accordance with the marking requirements set forth in DFARS 252.227-7013(f) and DFARS 252.227-7014(f), respectively. Technical data and software deliverables with non-conforming restrictive markings shall be rejected and corrected by the COMPANY at the COMPANY's expense, in accordance with DFARS 252.227-7013(h)(2) and DFARS 252.227-7014(h)(2), respectively.

D. Commercial Software Licenses:

The Government's rights in commercial software are governed by the licensor's commercial software license agreements. However, the Government will not agree to commercial software license terms that are inconsistent with Federal procurement law or do not otherwise satisfy user needs, in accordance with DFARS 227.7202-1(a).

Specifically, the COMPANY shall not award any contract (or order) unless the corresponding commercial software license agreements are reviewed and approved by the Agreements Officer. Commercial Software License terms that are unacceptable to the Government include (but are not limited to) indemnification provisions (and other types of provisions that include unauthorized or unbudgeted funding obligations), attorney's fees provision, state or foreign choice of law/jurisdiction provisions, binding arbitration provisions, and injunctive relief provisions.

E. Patent Rights:

FAR clauses 52.227-1 ALT I, Authorization and Consent; 52.227-2, Notice and Assistance Regarding Patent and Copyright Infringement; 52.227-3, Patent Indemnity; 52.227-6, Royalty Information; and 52.227-9, Refund of Royalties; as well as FAR clause 52.227-11, Patents Rights - Ownership by the COMPANY, and DFARS clauses 252.227- 7038, Patents Rights--Ownership by the COMPANY (Large Business), and 252.227-7039 – Reporting of Subject Inventions, cover patent rights.

F. Copyright:

Works created solely by COMPANY: COMPANY retains all ownership to copyrights for original works of authorship created solely by COMPANY’s employee(s) in the course of performance of work under this Agreement. COMPANY grants to the Government a fully paid up, royalty-free, nonexclusive, irrevocable, worldwide license to use, modify reproduce, distribute, perform, release, or display all works created solely by COMPANY’s employee(s).

Jointly Created Works: Ownership to copyrights for original works of authorship created jointly by a Government employee and a COMPANY employee during performance of work under this Agreement is vested in COMPANY. COMPANY grants to the Government a fully paid up, royalty-free, nonexclusive, irrevocable, worldwide license to use, modify, reproduce, distribute, perform, release, or display all jointly created works.

Copyright Statement: COMPANY shall include the following statement on any text, drawing, mask work or other work of authorship that may be copyrighted under Title 17 of the US Code, which is created in the performance of this Agreement: “The U.S. Government has a copyright license in this work pursuant to Agreement number stated herein.

G. Indemnity:

The COMPANY shall indemnify the Government and its officers, employees, and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark, or copyright, arising out of performance of this Agreement, provided the Awardee is reasonably notified of such claims and proceedings.

H. Flow Down:

The COMPANY shall include this Article in all subawards issued in performance of this Agreement.

I. General Terms:

Relative to all the FAR and DFARS clause references throughout this section/Article/Agreement, the term “contract” shall read “Agreement”, the term “contractor” shall read “Vendor or Awardee”, and the term “Contracting Officer” shall read “Agreements Officer.”

The terms and conditions of the following data rights / intellectual property FAR / DFARS clauses stated below are in full force and effect, and are incorporated into this Agreement.

FAR 52.227-1 ALT I

FAR 52.227-2

FAR 52.227-3

FAR 52.227-6

FAR 52.227-9

FAR 52.227-11

FAR 52.232-39

DFARS 252.227-7019

DFARS 252.227-7039

DFARS 252.227-7025

DFARS 252.227- 7027

DFARS 252.227- 7028

DFARS 227.7202-1(a)

DFARS 252.227-7014

DFARS 252.227-7030

DFARS 252.227-7015

DFARS 252.227-7037

DFARS 252.227-7016

DFARS 252.227-7017

DFARS 252.227-7038

ARTICLE 9: RESERVED

ARTICLE 10: FOREIGN ACCESS TO TECHNOLOGY AND EXPORT CONTROL

1. Foreign Access to Technology

This Article 10 shall remain in effect during the term of this Agreement.

A. Definition

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

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

c) “Technology” means discoveries, innovations, Know-How and inventions, whether patentable or not, including computer software, recognized under U.S. law as intellectual creations to which rights of ownership accrue, including, but not limited to, patents, trade secrets, mask works, and copyrights developed under this Agreement.

B. 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 Regulation (22 CFR Part 121 et seq.), the DoD Industrial Security Regulation (DoD 5220.22-R) and the Department of Commerce Export Regulation (15 CFR Part 770 et seq.)

C. Restrictions on Sale or Transfer of Technology to Foreign Firms or Institutions

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

(i) sales of products or components, or

(ii) licenses of software or documentation related to sales of products or components, or

(iii) transfer to foreign subsidiaries of the COMPANY member entities for purposes related to this Agreement, or

(iv) 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.

(v) releases pursuant to Article 7 hereof ("Publication and Academic Rights")

b) The COMPANY shall provide timely notice to the Government of any proposed transfers 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 COMPANY 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 COMPANY.

c) In any event, the COMPANY shall provide written notice to the Government AO’s Representative and AO of any proposed transfer to a foreign firm or institution 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 COMPANY’s written notification, the Government AO shall advise the COMPANY whether it consents to the proposed transfer. In cases where the Government does not concur or if within sixty (60) calendar days after its receipt the Government has provided no decision, the COMPANY may utilize the procedures under Article 5, Disputes. No transfer shall take place until a decision is rendered.

d) In the event a transfer of Technology to Foreign Firms or Institutions which is NOT approved by the government takes place, the COMPANY shall (a) refund to the Government those funds paid under this OTA for the development of the Technology and (b) provide to the Government a non-exclusive, nontransferable, irrevocable, paid-up license to practice or have practiced on behalf of the United States the Technology throughout the world for Government and any and all other purposes, particularly to effect the intent of this Agreement. Upon request of the Government, the COMPANY shall obtain and provide written confirmation of such licenses.

D) Lower Tier Agreements The COMPANY shall include this Article, suitably modified, to identify the Parties, in all Project Agreements or lower tier agreements, regardless of tier, for experimental, developmental, or research work.

2. Export Control

A. Export Compliance.

Each Party agrees to comply with U.S. Export regulations including, but not limited to, the requirements of the Arms Export Control Act, 22 U.S.C. § § 2751-2794, including the International Traffic in Arms Regulation (ITAR), 22 C.F.R. § 120 et seq.; and the Export Administration Act, 50 U.S.C. app. § 2401- 2420. Each party is responsible for obtaining from the Government export licenses or other authorizations/approvals, if required, for information or materials provided from one party to another under this Agreement. Accordingly, the COMPANY shall not export, directly, or indirectly, any products and/or technology, Confidential Information, Trade Secrets, or Classified and Unclassified Technical Data in violation of any U.S. Export laws or regulations.

B. Flowdown.

The COMPANY shall include this Article, suitably modified, to identify all parties in all lower tier agreements. This Article shall, in turn, be included in all sub-tier subcontracts or other forms of lower tier agreements, regardless of tier.

ARTICLE 11: RESERVED

ARTICLE 12: TITLE AND DISPOSITION OF PROPERTY

A) Definitions

In this Article, “property” means any tangible personal property other than property actually consumed during the execution of work under this Agreement.

B) Title to Property

No significant items of property are expected to be acquired under this Agreement by the COMPANY. Title to any item of property valued $10,000 or less that is acquired by the COMPANY in performance of the Prototype Project covered by this Agreement shall remain with the COMPANY with no further obligation of the Parties unless otherwise determined by the AO. Should any item of property with an acquisition value greater than $10,000 be required, the COMPANY shall obtain prior written approval of the AO. Title to this property shall also remain with the COMPANY. The COMPANY shall be responsible for the maintenance, repair, protection, and preservation of all such property at its own expense. Property acquired pursuant to this clause shall not be considered as in exchange for services in performance of the project but shall be considered a Government contribution to the project.

ARTICLE 13: GOVERNING LAW AND JURISDICTION

A) This Agreement shall be construed and enforced in accordance with the laws of the United States in a Federal Court with competent jurisdiction. Any dispute arising under this Agreement shall first be handled in accordance with Article 5: Disputes of this Agreement.

B) In the event that any provisions contained in this Agreement or any part thereof shall for any reason be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, to such extent such provision shall be deemed null and void and severed from this Agreement, and the remainder of this Agreement shall remain in full force and effect. The headings appearing at the beginning of the sections contained in this Agreement have been inserted for identification and reference purposes only and shall not be used in the construction and interpretation of this Agreement.

ARTICLE 14: GOVERNMENT FURNISHED PROPERTY

The follow conditions will be applicable to any Agreement awarded should Government Furnish Property become necessary. These can be found at https://acquisition.gov

The Government-Furnished Property (GFP) Module, hosted within the DoD’s Procurement Integrated Enterprise Environment (PIEE), is an application that supports management and control of government property in the hands of contractors, promoting visibility of the government property throughout its lifecycle from initial authorization, through provisioning, to updates, returns, and disposal. The GFP Module is integrated with Component Accountable Property Systems of Record and contractor property management systems to enable accountability in compliance with the FMR. Use of the GFP Module and the Component’s accountable property system is required when the government provides property to an OT awardee for performance of that OT. This includes, but is not limited to, spares and property furnished for repair, maintenance, overhaul, or modification.

52.245-1 Government Property 252.245-7003 Contractor Property Management System Administration.

252.245-7005 MANAGEMENT AND REPORTING OF GOVERNMENT PROPERTY (JAN 2024)

See link for further information: DoD Procurement Toolbox

The System for Award Management (SAM) is a centralized web-based tool used by the federal government’s executive agencies as the authoritative source for federal awardee data. SAM’s Entity Information module maintains annually self-reported entity information including address and contact information, banking information, and representations and certifications. This supports various reporting requirements, supports proper payment of awardees, and can be used as a market intelligence research tool. Companies and other organizations who are awardees for OT agreements must register in SAM for the purpose of “All Awards” and maintain an Active registration status.

Wide Area Workflow (WAWF), hosted within PIEE, is the DoD enterprise system for processing invoices and receiving reports. It utilizes a standards-based architecture to support the statutory requirements to receive and process invoices and supporting documents electronically. Agreements Officers (AOs) shall use WAWF to document the receipt and acceptance of any goods or services provided under an Other Transaction. Include in the OT awards the requirement for and instructions on how to use WAWF. Components will use a term(s) substantially the same as those found at DFARS 252.232-7003 and 252.232-7006

ARTICLE 15: ASSIGNMENT AND TRANSFER

Neither Party may assign, reassign, or transfer such Party’s rights and obligations under this Agreement without the prior written consent of the other Party, provided that (1) the Government may delegate or transfer its administrative authority over this Agreement to a different Agreements Officer within the U.S. Department of Defense, and (2) nothing herein shall be construed to preclude Company from assigning proceeds under this Agreement in accordance with the Assignment of Claims Act.

ARTICLE 16: FORCE MAJEURE

No failure or omission by the Company in the performance of any obligation of this Agreement shall be deemed a breach of this Agreement or create any liability if the same shall arise from any cause or causes beyond the control of the Parties, including but not limited to, the following: acts of God; Acts or omissions of any Government; Any rules, regulations or orders issued by any Governmental authority or by any officer, department, and agency or instrumentality thereof; fire; storm; flood; earthquake; accident; war; rebellion; insurrection; riot; pandemic; and invasion and provided that such failure or omission resulting from one of the above causes is cured as soon as is practicable after the occurrence of one or more of the above mentioned causes.

ARTICLE 17: ORDER OF PRECEDENCE

In the event of any inconsistency between the terms of this Agreement, the inconsistency shall be resolved by giving precedence in the following order:

1. This Agreement No. __________ to include Standard Form 26 and OTA

2. Attachment #1: PBC SOW

3. Attachment #2: PBC Performance Specification

4. Attachment #3: Agreement Data Requirements List (ADRLs)

5. Attachment #4: Assertions and Other Applicable Clauses

6. All other attachments incorporated into the Agreement

Attachments:

The attachment listed below are hereby incorporated to the Agreement unless otherwise indicated below:

Attachment #1: PBC SOW Attachment #2: PBC Performance Specification Rev 1 Attachment #3: Agreement Data Requirements List (ADRLs) Attachment #4: Assertions and Other Applicable Clauses

ARTICLE 18: MODIFICATIONS

All Agreement modifications, except for minor, administrative corrections or updates, shall be made by mutual agreement of the Parties and shall be subject to negotiations between the Parties. Minor administrative Agreement modifications (e.g. changes in paying office or appropriation data, changes to the Government personnel identified in the Agreement, changes in funding, etc.) may be unilaterally modified by the Government. The Government will be responsible for effecting all modifications to this Agreement. The Agreement shall not be considered modified unless there is a formal written modification to the Agreement signed by the Selectee and the Agreements Officer.

ARTICLE 19: EXECUTION

This Agreement constitutes the entire agreement of the Parties and 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 by written consent of the Company and the ACC-APG Agreements Officer designated in this Agreement.

ARTICLE 20: PUBLIC RELEASE OR DISSEMINATION OF INFORMATION

1. There shall be no dissemination or publication, except within and between the Company and any subcontractors, of any information developed under this Agreement or contained in the reports 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 Company. 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 Company and any subcontractor(s), of any information developed under this agreement without first obtaining approval for public release from the cognizant Public Affairs (PA) office. Papers prepared in response to academic requirements which are not intended for public release outside the academic institution are exempt from pre-publication control.

2. The Company 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.