Attachment 15 - PGS Model OTA DRAFT 23JAN2026.docx

TERMS AND CONDITIONS

OTHER TRANSACTION FOR PROTOTYPE AGREEMENT

between The United States Government The Army Contracting Command – New Jersey Building 9, Phipps Road Picatinny Arsenal, NJ 07806-5000 And

COMPANY NAME

STREET ADDRESS

CITY, STATE ZIP CODE

PHONE

UEI Number:

CAGE:

Concerning Awardee's response to the PPON: W15QKN-26-9-XXX

Agreement No.: W15QKN-26-9-XXX Total Ceiling Amount of the Agreement: $ Total Amount of the Agreement Currently Funded: $ Government share: $ Recipient share (if applicable): N/A Authority: 10 U.S.C § 4022 Effective Date: XX MONTH 2026

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

TABLE OF CONTENTS

OTHER TRANSACTION FOR PROTOTYPE AGREEMENT

ARTICLE I: SCOPE OF THE AGREEMENT

ARTICLE II: TERM OF AGREEMENT AND TERMINATION

ARTICLE III: MANAGEMENT, ADMINISTRATION AND MODIFICATION ARTICLE IV: OBLIGATION AND PAYMENT

ARTICLE V: DISPUTES ARTICLE VI: PATENT RIGHTS ARTICLE VII: DATA RIGHTS

ARTICLE VIII: FOREIGN ACCESS TO TECHNOLOGY ARTICLE IX: TITLE TO AND DISPOSITION OF PROPERTY ARTICLE X: STATUTORY AUTHORITY ARTICLE XI: PUBLIC RELEASE OR DISSEMINATION OF INFORMATION ARTICLE XII: ORDER OF PRECEDENCE

ARTICLE XIII: EXECUTION ARTICLE XIV: NON-ASSIGNMENT ARTICLE XV: FORCE MAJEURE

ARTICLE XVI - COST SHARE - OUTSIDE FUNDING ( If applicable) ARTICLE XVII: SAFEGUARDING COVERED DEFENSE INFORMATION AND CYBER INCIDENT REPORTING

ARTICLE XIX: CONFIDENTIAL INFORMATION

ARTICLE XX: GOVERNING LAW, SEVERABILITY AND JURISDICTION

ARTICLE XXI: PROHIBITION ON THE USE OF CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT

ARTICLE XXII: GOVERNMENT FURNISHED PROPERTY

ARTICLE XXIII: SAFEGUARDING SENSITIVE CONVENTIONAL ARMS, AMMUNITIONS, AND EXPLOSIVES (Subject to Change based upon solution and final Award) ARTICLE XXIV: TRANSPORTATION PROVISIONS ARTICLE XXV: SECTION 806 DETERMINATION ARTICLE XXVI: PUBLICATION AND ACADEMIC RIGHTS

SUPPLEMENTS:

SUPPLEMENT 1: INVOICING AND PAYMENT INSTRUCTIONS SUPPLEMENT 2: DEFINITIONS

SUPPLEMENT 3: AGREEMENT ADMINISTRATION SUPPLEMENT 4: DATA ASSERTIONS LIST

SUPPLEMENT 5: OUTSIDE FUNDING SUMMARY AND SCHEDULE (If applicable)

ARTICLE I: SCOPE OF THE AGREEMENT

A. Background This Agreement is a 10 U.S.C. § 4022 prototype Other Transaction (OT) award for the Precision Grenadier System (PGS). This award is the result of a competitive process based on the proposal provided by the Performer, dated XX Month 2026.

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 Statement of Work (SOW).

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

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 the SOW, under Section C of the Agreement, and the procedures of Article IV.

4. Prototype projects in nature require an iterative approach. Therefore, it is a reasonable expectation the SOW 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).

C. Goals / Objectives

1. The goal(s) of this Agreement is/are outlined in the Objective paragraph (1.0) of the Statement of Work.

2. The Government will have continuous involvement 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 are bound to each other by a duty of good faith in achieving 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: i. met key technical goals, ii. satisfied metrics incorporated into the prototype OT, iii. and /or accomplished a particularly favorable or unexpected result that justifies the transition. This award was the result of competitive procedures through Commercial Solutions Opening W15QKN-25-X-XXXX and the Precision Grenadier System (PGS).

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

3. The Follow-on Production agreement(s) can scale to provide support to up to all of the Department of Defense (DoD). The potential Follow-on Production has an estimated unit quantity of 11,000 weapons and fire controls; 15,000,000 rounds of ammunition, spare parts, tools/gauges/accessories, and engineering support. The maximum ceiling amount is estimated at $255,531,000.

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 Statement of Work. 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.

B. Termination Provisions

1. 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, as 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 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 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 property related to this effort that is in the possession of the Performer and in which the Government has or may acquire an interest.

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

The proceeds of any transfer or disposition of 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.

In the event of a termination of this Agreement, the Government shall have patent rights as described in Article VI, Patent Rights, and rights in Data as described in Article VII, Data Rights. 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 As 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 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 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 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 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. The Government may terminate this Agreement by written notice to the Performer, provided that such written notice is preceded by consultation between the Parties.

D. Special Termination Clause In the event the Government is made aware of “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 encouraged to disclose outside investor activity in order for the government to perform 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 development and technical collaboration and be responsible for the review and verification of the completed Milestones in accordance with the SOW.

B. Modifications

1. Recommendations for modifications, including justifications to support any changes to the SOW and terms of this Agreement may originate with either a request from the Performer to the AOR and AO, or from the Government through the AO. This documentation will detail the technical, chronological, and financial impact of the proposed modification to the program. The AO and the Performer shall approve any Agreement modification. The Government is not obligated to pay for additional or revised future milestones until the Milestone Payment chart in the SOW is formally revised and made a part of this Agreement.

2. The AO shall be responsible for the review and verification of any recommendations to modify the SOW, or other proposed changes to the terms and conditions of this Agreement. If additional terms and conditions are required to be included to address work that may be required under this Agreement, they will be included by formal 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, etc.) 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 instituting all modifications to this Agreement.

ARTICLE IV: OBLIGATION AND PAYMENT

A. Obligation

1. 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 or by modification to the Agreement. The ACC-NJ 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 revised Schedule of Payable Milestones consistent with the current SOW.

B. Payments

1. The Parties agree that payments will be made upon acceptance of completed Milestones. These payments reflect value received by the Government toward the accomplishment of the prototype project goals of this Agreement.

2. After verification (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 1.

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.

If at any time the Performer has reason to believe that the total estimated cost which will accrue in the performance of this Agreement in the next succeeding thirty (30) days, when added to all other payments previously accrued, will exceed seventy-five (75) percent of the then-current total obligated funding, the Performer shall notify the Government to that effect, advising the estimate of additional funds required for the period specified. The Performer is not obligated to continue performance under this Agreement (including actions under the Termination clause of this Agreement) or otherwise incur costs in excess of the amount obligated under the 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 1 details how to submit and process invoices.

5. Payments shall be made in the amounts set forth in the SOW, 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 under this Agreement and shall maintain adequate records to account for Performer Agreement funding provided under this Agreement. Performer relevant financial records are subject to examination or audit by or on behalf of the Comptroller General, Contracting Activity AO, or other Government Official for a period not to exceed three (3) years after expiration of the term of the Agreement. The Comptroller General, AO or designee 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 or, at the request of Performer's external CPA accounting firm at the expense of the Performer.

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

D. Close-out Procedures If a Performer fails to comply with any necessary close-out documents or procedures within the timeframes required, the Government may unilaterally close-out the Agreement. Such a failure shall equate to the Performer’s express agreement that the amounts paid prior to close-out constitute the full, complete and final extent of any further financial obligation to the Performer.

Fixed Price Agreements: When a Project Agreement is completed, the Government shall initiate close-out procedures within sixty (60) calendar days after Government acceptance of the Final Report (or after termination procedures have concluded), or within any extension of that period to which the parties have agreed. Disposition instructions for any Government property will be provided, in accordance with Article IX. To the maximum extent practicable, close-out procedures similar to FAR 42.708 (Quick-Closeout Procedures) will be followed.

E. Electronic Fund Transfer (ETF) The Performer must enroll 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 the Performer and the Performer's financial institution and returned to the paying office. The paying office will complete the process and notify the Performer that EFT enrollment is complete. All payments under this Agreement will be held until the Performer provides the required EFT enrollment information. The CAGE Code and DUNS number for the Performer are as follows: CAGE Code: XXXX; UEI number: XXX. Registration in the System Award for Management (SAM) is mandatory. The Performer is required to maintain an active SAM registration.

ARTICLE V: 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

1. Any disagreement, claim or dispute between the ACC-NJ and the Performer 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.

2. 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-NJ 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 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-NJ. 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-NJ, 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.

4. If requested within thirty (30) calendar days of the decision by the Chief of the Contacting Office, ACC-NJ, further review will be conducted by a representative authorized to negotiate on behalf of the Performer and the ACC-NJ Director of Contracting. In the event of a decision, or in absence of a decision within sixty (60) calendar days of referral to a representative authorized to negotiate on behalf of the Performer and the ACC-NJ Director of Contracting (or such other period as agreed to by the parties), either party may pursue any right or remedy provided by law. Alternatively, the parties may agree to explore and establish an Alternate Disputes Resolution procedure to resolve this dispute.

C. Limitation of Liability and Damages

1. In no event shall the liability of the Performer exceed the funding received for their performance of this Agreement.

2. No Party shall be liable to any other Party for consequential, punitive, special and incidental damages or other indirect damages, whether arising in contract (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 VI: PATENT RIGHTS

A. Definitions “Invention” means any invention or discovery which is or may be patentable or otherwise protectable under Title 35 of the United States Code.

“Made” when used in relation to any invention means the conception or first actual reduction to practice of such invention.

“Practical application” means to manufacture, in the case of a composition of product; to practice, in the case of a process or method, or to operate, in the case of a machine or system; and in each case, under such conditions as to establish that the invention is capable of being utilized and that its benefits are, to the extent permitted by law or Government regulations, available to the public on reasonable terms.

“Subject invention” means any invention of the Performer conceived or first actually reduced to practice in the performance of work under this Agreement.

"Background Invention" means any invention made by the Performer, or their subcontractors of any tier, prior to performance of the Agreement or outside the scope of work performed under this Agreement.

B. Allocation of Principal Rights The Performer shall retain the entire right, title, and interest throughout the world to each subject invention consistent with the provisions of this Article, and 35 U.S.C § 202. With respect to any subject invention in which the Performer retains title, the Government shall have a non-exclusive, nontransferable, irrevocable, paid-up license to practice or have practiced on behalf of the United States the subject invention throughout the world. The PERFORMER may elect to provide full or partial rights that it has retained to other parties.

C. Invention Disclosure, Election of Title, and Filing of Patent Application

1. The Performer shall disclose each subject invention to the AO within four (4) months after the inventor discloses it in writing to the Performer personnel responsible for patent matters. The disclosure to the AO shall be in the form of a written report and shall identify the Agreement under which the invention was made and the identity of the inventor(s). It shall be sufficiently complete in technical detail to convey a clear understanding to the extent known at the time of the disclosure, of the nature, purpose, operation, and the physical, chemical, biological or electrical characteristics of the invention. The disclosure shall also identify any publication, sale, or public use of the invention and whether a manuscript describing the invention has been submitted for publication and, if so, whether it has been accepted for publication at the time of disclosure. Disclosure of any Subject Invention shall be done on form DD882.

2. If the Performer determines that it does or does not intend to retain title to any such invention, the Performer shall notify the AO, in writing, within nine (9) months of disclosure to the AO. However, in any case where public disclosure by the inventor has initiated the one (1) year statutory period wherein valid patent protection can still be obtained in the United States, the period for such notice shall be in no event less than 60 days prior to the one (1) year statutory bar date.

3. The Performer shall file its initial patent application on a subject invention to which it elects to retain title within one (1) year after election of title or, if earlier, prior to a publication, or sale, or public use. The Performer may elect to file patent applications in additional countries (including the European Patent Office and the Patent Cooperation Treaty) within either ten (10) months of the corresponding initial patent application or six (6) months from the date permission is granted by the Commissioner of Patents and Trademarks to file foreign patent applications, where such filing has been prohibited by a Secrecy Order.

4. After considering the position of the Performer, a request for extension of the time for disclosure election, and filing under this Article VI, paragraph C, may be approved by ACC- NJ Contracting Activity, which ACC-NJ approval shall not be unreasonably withheld.

D. Conditions When the Government May Obtain Title Upon the Government’s written request, the Performer shall convey title to any Subject Invention to the Government under any of the following conditions:

1. If the Performer fails to disclose (and does not correct such failure within thirty (30) days after notice of such failure from the Government) or elects not to retain title to the Subject Invention within the times specified in Article VI, paragraph C.; provided, that the Government may only request title within sixty (60) calendar days after learning of the failure of the Performer to disclose or elect within the specified times.

2. In those countries in which the Performer fails to file patent applications within the times specified in Article VI. paragraph C; provided, that if the Performer has filed a patent application in a country after the times specified in Article VI, paragraph C, but prior to its receipt of the written request by the Government, the Performer shall continue to retain title in that country; or

3. In any country in which the Performer decides not to continue the prosecution of any application for, to pay the maintenance fees on, or defend in reexamination or opposition proceedings on, a patent on a Subject Invention.

E. Minimum Rights to the Performer and Protection of the Performer’s Right to File:

1. The Performer shall retain a nonexclusive, royalty-free license throughout the world in each Subject Invention to which the Government obtains title. The Performer license extends to the domestic (including Canada) subsidiaries and affiliates, if any, within the corporate structure of which the Performer is a party and includes the right to grant licenses of the same scope to the extent that the Performer was legally obligated to do so at the time the Agreement was awarded. The license is transferable only with the approval of the Government, except when transferred to the successor of that part of the business to which the invention pertains. The Government approval for license transfer shall not be unreasonably withheld.

2. The Performer domestic license may be revoked or modified by the Government to the extent necessary to achieve expeditious practical application of the Subject Invention pursuant to an application for an exclusive license submitted consistent with appropriate provisions at 37 CFR Part 401. This license shall not be revoked in that field of use or the geographical areas in which the Performer has achieved practical application and continues to make the benefits of the invention reasonably accessible to the public. The license in any foreign country may be revoked or modified at the discretion of the Government to the extent the Performer, its licensees, or the subsidiaries or affiliates have failed to achieve practical application in that foreign country.

3. Before revocation or modification of the license, the Government shall furnish the Performer a written notice of its intention to revoke or modify the license, and the Performer shall be allowed thirty (30) calendar days (or such other time as may be authorized for good cause shown) after the notice to show cause why the license should not be revoked or modified.

F. Action to Protect the Government’s Interest:

1. The Performer agrees to execute or to have executed and promptly deliver to the Government all instruments necessary to: 1. establish or confirm the rights (e.g. confirmatory license) the Government has throughout the world in those Subject Inventions to which the Performer elects to retain title; and 2. convey title to the Government when requested under this Article and to enable the Government to obtain patent protection throughout the world in that Subject Invention.

2. The Performer agrees to require, by written agreement, its employees, other than clerical and nontechnical employees, to disclose promptly in writing to personnel identified, as responsible for the administration of patent matters, and in a format suggested by the Performer, each Subject Invention made under this Agreement in order that the Performer can comply with the disclosure provisions under this Article. The Performer shall instruct employees, through employee agreements or other suitable educational programs, on the importance of reporting inventions in sufficient time to permit the filing of patent applications prior to U. S. or foreign statutory bars.

3. The Performer shall notify the Government of any decisions not to continue the prosecution of a patent application, pay maintenance fees, or defend in a reexamination or opposition proceedings on a patent, in any country, not less than sixty (60) calendar days before the expiration of the response period required by the relevant patent office.

4. The Performer shall include, within the specification of any United States patent application and any patent issuing thereon covering a Subject Invention, the following statement:

“This invention was made with Government support under Agreement No. W15QKN-26-9- XXXX awarded by ACC-NJ. The Government has certain rights in the invention.”

G. Lower Tier Agreements: The Performer shall include this Article, suitably modified, to identify the Parties, in all subcontracts or lower tier agreements, regardless of tier, for experimental, developmental, or research work.

H. Reporting on Utilization of Subject Inventions: The Performer agrees to submit, during the term of the Agreement, an annual report on the utilization of a Subject Invention or on efforts at obtaining such utilization that are being made by the Performer or licensees or assignees of the inventor. Such reports shall include information regarding the status of development, date of first commercial sale or use, gross royalties received by the Performer, and such other data and information as the agency may reasonably specify. The Performer also agrees to provide additional reports as may be requested by the Government in connection with any march-in proceedings undertaken by the Government in accordance with paragraph G of this Article. Consistent with 35 U.S.C. 206, the Government agrees it shall not disclose such information to persons outside the Government without permission of the Performer.

I. Preference for American Industry: Notwithstanding any other provision of this Article, the Performer agrees that it shall not grant to any person the exclusive right to use or sell any Subject Invention in the United States or Canada unless such person agrees that any product embodying the Subject Invention or produced through the use of the Subject Invention shall be manufactured substantially in the United States or Canada. However, in individual cases, the requirements for such an agreement may be waived by the Government upon a showing by the Performer that reasonable but unsuccessful efforts have been made to grant licenses on similar terms to potential licensees that would be likely to manufacture substantially in the United States or that, under the circumstances, domestic manufacture is not commercially feasible.

ARTICLE VII: DATA RIGHTS

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 constitute the data rights assertion the Government intends to identify in the SOW.

“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; or

“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:

necessary for backup or archive;

necessary to correct deficiencies in a computer software; or necessary to enable a computer software to be combined with, adapted to another computer software; or necessary to merged with other computer software; or necessary to respond to emergency repair or maintenance situations;

provided any disclosure 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 that is developed independent of this agreement or developed entirely at private expense.

D. Marking of Data Performer shall provide a Data deliverable table identifying the deliverable and the rights associated with such deliverable (see SOW). Any Data that is intended to be delivered with less than Government Purpose Rights shall be identified in the Data Assertion List, Supplement 4. Performer shall not deliver any Data with less than Government Purpose Rights unless such Data is listed on the Data Assertion List, Supplement 4. In addition, any delivered Data shall be marked with the appropriate data rights markings and the Performer's name and address and include the following legend:

For Government Purpose Rights:

GOVERNMENT PURPOSE RIGHTS

Agreement Number: W15QKN-26-9-XXX Contractor Name:

Contractor Address:

The government’s rights to use, modify, reproduce, release, perform, display or disclose these data or authorize others to do the same are for government purposes only. Any reproduction of data or portions thereof marked with this legend must also reproduce the markings.

For Limited Rights:

LIMITED PURPOSE RIGHTS

Agreement Number: W15QKN-26-9-XXX Contractor Name:

The government’s rights to use, modify, reproduce, release, perform, display or disclose these data are subject to limitations and restrictions. Any reproduction of data or portions thereof marked with this legend must also reproduce the markings.

For Restricted Rights:

GOVERNMENT PURPOSE RIGHTS

Agreement Number: W15QKN-26-9-XXX Contractor Name:

The government’s rights to use, modify, reproduce, release, perform, display or disclose these data are subject to restrictions. Any reproduction of data or portions thereof marked with this legend must also reproduce the markings.

Each page of the deliverable shall be conspicuously and legibly mark with at least one of the above legends. Failure to mark the deliverable with an appropriate legend will be presumed by the government to mean Unlimited Rights are granted for that deliverable. If a page contains mixed rights, indications such as scoring, highlighting, or circling with a note or other indicator shall be made to appropriately identify the level of rights associated with the legends within that page. For example, if a page contains both Government Purpose Rights legend and Limited Rights legend, then the paragraphs corresponding to Government Purpose Rights shall be indicated as such and another set of paragraphs shall be separately indicated so that those paragraphs are associated with Limited Rights.

Performer shall use restrictive markings in accordance with the terms of this agreement and shall maintain records sufficient to justify the validity of any restrictive markings on Data delivered under this agreement. The Government reserves the right to seek validation of restrictive markings on any delivered Data.

E. Commercial Licenses 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.

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 4, 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.

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 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 Agreements Officer 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. Audits. Any terms permitting auditing of the Government’s compliance shall be deemed not binding against the Government. The Government shall agree to the following audit terms: “Notwithstanding the developer’s audit provisions or practices to the contrary, the Government agrees it 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 developers’ written request, the Government may provide audit reports to the developer from the Government’s internal audit records not more than once a year as the sole means of satisfying the request for audit.”

x. Use of Government Logos or Name and Publicly. Any terms permitting use of the Government’s name, logos, or any appearance of endorsement by the Government for the Performer’s product or service shall be deemed void and deleted. The Performer shall not be permitted to identify the Government by name or use a Government logo, in its website, sales and marketing materials, or press releases or any publicity without obtaining the separate written consent of the Government. Any request may be made to the Agreements Officer.

xi. 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 access by third parties to Government facilities shall be made to the Performer which will coordinate with the Government.

xii. Termination. Any commercial software license termination terms are void and shall not apply to the Government. Termination between the Performer and the Government shall be governed by this Agreement.

The Performer warrants that the commercial computer software, product, or service selected by the Performer permits access…