Attachment 5 - DRAFT OTA NVD-N.docx

OTHER TRANSACTION AGREEMENT BETWEEN

The United States of America

AND

COMPANY

Agreement No.: W91CRB-24-9-XXXX

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 COMPANY, hereinafter called the Company or _____, with an address at __________________.

Agreement Term: The term of this Agreement is _______ months from the Effective Date. The maximum value of the Prototype Project to be awarded under the terms and conditions of this Agreement is $_____________.

Authority: 10 U.S.C. § 4022, Section 815, Amendments to Other Transaction for Prototype Agreement, of the National Defense Authorization Act (NDAA) for Fiscal Year 2018 which inserted Section 4022, Authority of the Department of Defense to carry out Prototype Projects and as further amended up to the date of execution of this Agreement.

Check one:

Company __ IS/__IS NOT a NON-TRADITIONAL DEFENSE CONTRACTOR. As per 10 USC 4022 a Non-Traditional Defense Contractor (NTDC) is an entity that is not currently performing and has not performed, for at least the one-year period preceding the solicitation of sources by the Department of Defense for the procurement or transaction, any contract or subcontract for the Department of Defense that is subject to full coverage under the cost accounting standards prescribed pursuant to section 1502 of title 41 and the regulations implementing such section.

Signature of Authorized Company Representative

Printed Name

Title

Date

TABLE OF CONTENTS

ARTICLE I: SCOPE OF THE AGREEMENT

A. Background:

This Other Transaction Agreement (OTA) is awarded to Company hereinafter referred to as ''the Company" or “____”. The objective of the Night vision Device-Next (NVD-N) prototype is to develop, produce, and field a low-cost solution for a helmet-mounted, low light level amplification, binocular night vision device.

B. Definitions:

"Agreement" or "OTA" refers to the Other Transaction Agreement, as authorized under 10 U.S.C. 4022, between the Government and ____, Agreement No. W91CRB-24-9-XXXX.

"Agreements Officer (AO)" is the United States Army Contracting Command - APG Activity warranted Contracting Officer authorized to sign the final agreement for the Government.

"Agreements Officer's Representative (AOR)" is the individual designated by the Government to monitor all technical aspects; the AOR shall only assist in agreement administration of the NVD-N Prototype Program to the extent expressly delegated such administration authority in writing in the Agreement by the responsible Agreements Officer.

"Contracting Activity" means an element of an agency designated by the agency head and delegated broad authority regarding acquisition functions. It also means elements, 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 after signature by the authorized COMPANY official.

"Government" means the U.S. Government operating through the United States Army Contracting Command – Aberdeen Proving Ground (“ACC-APG”).

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

"Other Transactions Agreement (OTA)" is the term commonly used to refer to the 10 USC 2371b 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.

“Option” means a unilateral right in a contract by which, for a specified time, the Government may elect to purchase additional supplies or services called for by the contract or may elect to extend the term of the contract.

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

"Program" means the overall effort to be funded by the Agreement, which is described in the Proposal.

"Signatory Authority" refers to the individual that has the authority to legally bind a Party to an agreement.

C. Agreement Administration:

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

Company: ______________

Cognizant Defense Finance and Accounting Services (DFAS):

DFAS –INDY VP GFEBS

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

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

D. Scope:

The scope of this program is described in this agreement, and its associated attachments incorporated into the agreement (See Section J - List of Attachments).

ARTICLE II: TERM

A. Term of Agreement:

The term of this OTA is a period of ___ months from the Effective Date of the OTA.

Provisions of this Agreement, which, by their express terms or by necessary implication, apply for periods of time other than specified in Article II herein, shall be given effect, notwithstanding this Article.

B. Early Termination of Agreement Provision:

Subject to a reasonable determination that the program, or a project funded under the program, will not produce beneficial results commensurate with the expenditure of resources, the Government may terminate performance of work under this OTA, in whole or in part, and/or the AO determines that a termination is in the Government’s interest. 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.

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:

1. 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 by this Agreement in accordance with paragraph B.1 above

2. 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--

a. 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

b. 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 may receive and act upon a proposal submitted at any time before final payment under this Agreement.

ARTICLE III: OBLIGATION AND PAYMENT

A. Definitions:

“Department of Defense Activity Address Code (DoDAAC)” is a six position code that uniquely identifies a unit, activity or organization.

“Document type” means the type of payment request or receiving report available for creation in Wide Area Work Flow (WAWF).

“Local processing office (LPO)” is the office responsible for payment certification when payment certification is done external to the entitlement system.

“Option” A unilateral right in the Agreement by which, within a specified period, the Government may elect to purchase additional supplies or services called for by the Agreement and represented as an unfunded line item.

B. Obligation:

Except as specified in Article IV: Disputes, the Government's liability to make payments to the COMPANY is limited only to those funds obligated under this Agreement or funds obligated by modification to the Agreement.

C. Payment:

The COMPANY shall submit invoices for processing as outlined below via The Invoice, Receipt, Acceptance, and Property Transfer (iRAPT) application of the Wide Area Work Flow (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, the COMPANY shall--

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. The 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. The COMPANY must use the following information when submitting payment requests and receiving reports in WAWF for this agreement/order:

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

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

Inspection at DESTINATION / Acceptance at DESTINATION

7. Document routing. The 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: TBD Accept By: TBD Ship To Code: TBD Ship From Code: TBD

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

DFAS – INDY VP GFEBS

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

D. Electronic Fund Transfer:

COMPANY must 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 the COMPANY and the COMPANY's financial institution and returned to the paying office. The paying office will complete the process and notify the AOR, as agent of the 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.

E. Limitation of Funds:

Except as set forth in Article IV, the Government's financial liability will not exceed the amount obligated under this Agreement in accordance with Contract Line Item Numbers 0001 – 0009.

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:

The COMPANY shall maintain adequate records consistent with the COMPANY’s generally accepted accounting principles, 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 of the 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's external CPA accounting firm at the expense of the COMPANY.

G. Payment Schedule:

Payments shall be made in accordance with the Line Item structure. COMPANY shall invoice, and the Government shall pay COMPANY upon receipt and acceptance of invoices.

H. Options:

Contract Line Item Numbers identified as an option item/unfunded line item, in the quantity and at the price stated in the Schedule. The Government may unilaterally exercise the option by notifying the COMPANY within sixty (60) calendar days prior to the performance start date of the option to be exercised or earlier; provided, however, the Parties may mutually agree to exercise the option at any time notwithstanding the Government’s failure to timely exercise its unilateral option rights. Performance shall continue at the same rate that like items are called for under the contract unless the parties otherwise agree.

ARTICLE IV: 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 Government 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.

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 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, which waiver shall not be unreasonably withheld.

3. Failing resolution by mutual agreement, the aggrieved Party shall document the dispute, disagreement, or misunderstanding by notifying the other Party (through the respective 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.

4. 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 a senior official of the COMPANY and the ACC-APG Senior Contracting Official. In the event of a decision, or in absence of a decision within sixty (60) calendar days of referral to the senior official of the COMPANY and the ACC-APG Senior Contracting Official (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 COMPANY exceed the funding received by COMPANY for its 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 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.

ARTICLE V: CONFIDENTIAL INFORMATION

A. Definitions:

"Disclosing Party" means either the COMPANY, or its subsidiaries, affiliates, their subcontractors or suppliers, or the Government that discloses Confidential Information to the other Party as contemplated by the subsequent paragraphs.

"Receiving Party" means either the COMPANY, or its subsidiaries, affiliates, their subcontractors or suppliers, or the Government that receives Confidential Information disclosed by a Disclosing Party.

"Confidential Information" means information and materials of a Disclosing Party which are designated as confidential or as a Trade Secret in writing by such Disclosing Party, whether by letter or by use of an appropriate stamp or legend, prior to or at the same time any such information or materials are disclosed by such Disclosing Party to the Receiving Party. Confidential Information incudes, but is not limited to Data which existed prior to, or was produced outside of this Agreement which embodies trade secrets or comprises commercial or financial information which is privileged or confidential. "Confidential Information" also includes any information and materials considered a Trade Secret by the COMPANY on its own behalf or on behalf of its subcontractors or suppliers. Notwithstanding the foregoing, materials and other information which are orally, visually, or electronically disclosed by a Disclosing Party, or are disclosed in writing without an appropriate letter, stamp, or legend, shall constitute Confidential Information or a Trade Secret if such Disclosing Party, within thirty (30) calendar days after-such disclosure, delivers to the Receiving Party a written document or documents describing the material or information and indicating that it is confidential or a Trade Secret, provided that any disclosure of information by the Receiving Party prior to receipt of such notice shall not constitute a breach by the Receiving Party of its obligations under this Paragraph. If the receiving party reasonably determines that the memorialization of the exchange is insufficiently detailed to enable it to identify the privileged or confidential information, the disclosing party shall provide addition detail at the receiving party's request, subject to restrictions on use and disclosure.

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

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

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

B. Exchange of Information:

The Government may from time to time disclose Government Confidential Information to the COMPANY, its subsidiaries, affiliates, and its subcontractors or suppliers, in connection with the OPSEC requirements and similar processes or particular projects, and the COMPANY, its subsidiaries, affiliates, their subcontractors or suppliers, may from time to time disclose information that is Trade Secret or Confidential Information to the Government in connection with the OTA, an OTA proposal, Payment Instruction; Agreement, or performance thereunder. Neither the Government nor COMPANY, its subsidiaries, affiliates, or their subcontractors or suppliers, nor the AO shall be obligated to transfer Confidential Information or Trade Secrets independently developed by the Government or by the COMPANY, its subsidiaries, affiliates, or their subcontractors or suppliers, absent an express written agreement between the Parties providing the terms and conditions for such disclosure.

C. Confidentiality and Authorized Disclosure:

The Receiving Party agrees, to the extent permitted by law, that Confidential Information and Trade Secrets shall remain the property of the Disclosing Party (the Receiving Party shall not disclose the Disclosing Party’s Confidential Information and Trade Secrets unless it has the right to do so), and that, unless otherwise agreed to by the Disclosing Party, Confidential Information and Trade Secrets shall not be disclosed, divulged, or otherwise communicated by the Receiving Party to third Parties or used by the Receiving Party for any purposes other than in connection with specified Program efforts and the licenses granted in Article VIII, Patent Rights, and Article VII, Data Rights, provided that the-duty to protect such "Confidential Information" and "Trade Secrets" shall not extend to materials or information that:

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

2. Are not identified with a suitable notice or legend per Article entitled "Confidential Information" herein

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

4. Are or later become part of the public domain through no fault of the Receiving Party,

5. Are received by the Receiving Party from a third Party having no obligation of confidentiality to the Disclosing Party that made the disclosure,

6. Are developed independently by the Receiving Party without use of Confidential Information or Trade Secrets as evidenced by written records, or

7. Are required by law or regulation to be disclosed; provided, however, that the Receiving Party has provided written notice to the Disclosing Party promptly so as to enable such Disclosing Party to seek a protective order or otherwise prevent disclosure of such information.

D. Return of Confidential Information:

Upon the request of COMPANY, the Government shall promptly return all copies and other tangible manifestations of the Confidential Information or Trade Secrets disclosed. Upon request by the Government, COMPANY shall promptly return all copies and other tangible manifestations of the Confidential Information disclosed by the Government. As used in this section, tangible manifestations include human readable media as well as magnetic and digital storage media.

E. Term:

Except to the extent covered by and subject to other provisions of this Agreement, the obligations of the Receiving Party under this Article shall continue after the expiration or termination of this Agreement.

F. Requirements Flow-down:

The Government and the COMPANY shall flow down the requirements of this Article V to their respective personnel, agents, partners, and team members receiving such Confidential Information or Trade Secrets under this OTA.

G. Restriction of Work Assignments:

Neither party is required to restrict work assignments of representatives who have had access to Confidential Information. The parties agree that use of information in representatives’ unaided memories in the development or deployment of our respective products or services does not create liability under this agreement or trade secret law, and the parties agree to limit what they disclose to the other accordingly.

ARTICLE VI: PUBLICATION

A. Use of Information:

Subject to review and mutual agreement by both Parties, the provisions of Article V, Confidential Information, Article VI, Publication, and classified information, the COMPANY and the Government shall have the right to publish or otherwise disclose information and/or data developed by the Government and/or the respective COMPANY with respect to the unique NVD-N features developed under this Agreement. The COMPANY and the Government (and its employees) shall include an appropriate acknowledgement of consent by the Government and the COMPANY in such publication or disclosure. The Parties shall have only the right to use, disclose, and exploit any such data and Confidential Information or Trade Secrets in accordance with the rights held by them pursuant to this Agreement. Notwithstanding the above, the Parties shall not be deemed authorized by this paragraph VI.A, alone, to disclose any Confidential Information or Trade Secrets of the other Party, or to limit disclosure of a Party’s own Confidential or Trade Secrets by that Party.

B. Classified Research Projects:

If a release of Confidential Information or Trade Secrets is for a classified Research Project, the provisions of the DoD Security Agreement (DD Form 441), Certificate Pertaining to Foreign Interests (SF 328), and the DoD Contract Security Classification Specification (DD Form 254) apply. The Government will be responsible for the completion of the DD Form 254. The COMPANY member must complete the DD Form 441 and SF 328 and provide them to the Government through for review by the proper Government representatives, the Industrial Security Representative at the cognizant Defense Security Service (DSS) office for DD Form 441 and SF 328 and the VRA's local Security office for the DD Form 254.

C. Review or Approval of Technical Information for Public Release:

1. At least 30 days prior to the scheduled release date, COMPANY shall submit to the AO two copies of the information to be released along with Clearance of Technical Information for Public Release Form INME-PIC-IM Form 3002, 1 MAR 2011, who will route the information to the AOR and other appropriate Parties for review and approval. The AOR is hereby designated as the approval authority for the AO for such releases.

2. Parties to this Agreement are responsible for assuring that an acknowledgment of government support will appear in any publication of any Category C material developed under this OTA, using the following acknowledgement terms:

"Effort sponsored by the U.S. Government under Other Transaction number W91CRB-24-9-XXXX between _____ Network & Imaging Systems, LLC and the Government. The U.S. Government is authorized to reproduce and distribute reprints for Governmental purposes notwithstanding any copyright notation thereon."

3. Parties to this Agreement are also responsible for assuring that every publication of Category C data developed under this program contains the following disclaimer:

"The views and conclusions contained herein are those of the authors and should not be interpreted as necessarily representing the official policies or endorsements, either expressed or implied, of the U.S. Government."

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

5. The COMPANY, and its major suppliers, shall not discuss or display the NVD-N solution/system, in a public forum such as a Conference, Industry symposium, Workshop without the consent of the AO.

D. Filing of Patent Applications:

During the course of any such thirty (30) calendar day period, the COMPANY and/or the Government shall provide notice to the AO as to whether it desires that a patent application classified as Category C Data be filed on any invention disclosed in such materials. In the event that a COMPANY and/or the Government desires that such a patent be filed, the COMPANY or the Government proposing to publish or disclose such materials agrees to withhold publication and disclosure of such materials until the occurrence of the first of the following:

1. Filing of a patent application covering such invention, or

2. Written agreement, from the AO and the COMPANY that no patentable invention is disclosed in such materials.

3. Further, during the course of any such thirty (30) calendar day period, the COMPANY shall notify the Government if it believes any of its Confidential Information or Trade Secrets have been included in the proposed publication or disclosure and shall identify the specific Confidential Information or Trade Secrets that need to be removed from such proposed publication. The Government and the COMPANY agree to remove from the proposed publication or disclosure all such Confidential Information or Trade Secrets so identified by the COMPANY.

4. For the avoidance of doubt, COMPANY retains the entire right, title, and interest throughout the world for each Invention whose Data is classified as Category A or B regardless of whether a patent application has been filed, retains sole discretion whether to file a patent application, and does not require notification or prior agreement from GOVERNMENT.

ARTICLE VII: DATA RIGHTS

A. Definitions:

"Commercial Computer Software" as used in the Article is defined in DFARS 252-227-70l4(a)(1) (Jun 1995).

"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.

"Data" as used in this Article of this Agreement, means computer software, computer software documentation, form, fit and function data, and technical data as defined in this Article.

"Form, fit and function data" means technical data that describes the required overall physical, functional and performance characteristics (along with the qualification requirements, if applicable) of an item, component, or process to the extent necessary to permit identification of physically and functionally interchangeable items.

"Government purpose rights" means the rights to use, modify, duplicate or disclose the "Data" licensed with such rights under this Agreement within the Government for United States Government purposes only; and to release or disclose data outside the Government to any authorized persons pursuant to an executed non-disclosure agreement for such persons' use, modification, or reproduction for United States Government purposes only. United States Government purposes include Foreign Military Sales purposes and competitive re-procurement.

"Technical data" means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including Computer Data Base, mask works, chip circuit designs and tapeouts, and computer software documentation). The term does not include computer software or data incidental to agreement administration, such as financial and/or management information.

B. Data Categories:

1. Category A is Data developed and paid for totally by non-governmental funds, whether pre- existing or concurrently developed, and including, but not limited to, proprietary data, trade secret data, or data related to COMPANY products. The COMPANY retains all rights to Category A Data. Items classified as Category A Data under this Agreement are set forth in the Data Rights Assertion section of the Proposal.

2. Category B is any Data developed under this Agreement, using Government funds, which cannot be disclosed without compromising the Category A data. Items classified as Category B Data under this Agreement are set forth in the Data Rights Assertion section of the Proposal.

3. Category C is any COMPANY developed Data, excluding Category A and B data, developed during the performance of work under this Agreement. Items classified as Category C Data under this Agreement are set forth in the Data Rights Assertion section of the Proposal.

4. Category D is third Party proprietary data used in performance of work under this Agreement, including but not limited to, technical data, software, trade secrets and mask works.

5. Any Data developed outside of this Agreement with Government funding in whole or in part under a Government agreement, contract or subcontract shall have the rights negotiated under such prior agreement, contract or subcontract; the Government shall get no additional rights in such Data under this Agreement.

C. Allocation of Principal Rights:

1. The Parties agree that in consideration for the Government's funding, and in lieu of any Government rights to Category A, B or D data (except as contained in paragraph 4 below), the COMPANY intends to reduce to practical application materials and processes developed under this Agreement. For the avoidance of doubt, COMPANY retains the entire right, title, and interest throughout the world for each invention whose Data is classified as Category A or B regardless of whether a patent application has been filed, retains sole discretion whether to file a patent application, and does not require notification or prior agreement from Government.

2. No deliveries to the Government of Category A and B data are contemplated or required under this Agreement. The Government reserves the right to negotiate certain rights in Category A and B data with the owner of the data. The existence and use of Category A or B data will be as set forth in the Data Rights section of the Proposal.

3. The Government shall have immediate and irrevocable Government Purpose Rights to all Category C Data described in the Data Rights section of the Proposal.

4. The COMPANY shall deliver, or assist the Government in it obtaining, third-Party computer software, Category D data, as required for the performance or operation of other computer software required to be delivered as described in the Proposal, with such rights as it is able to negotiate with the software vendor. The COMPANY shall use reasonable efforts in such negotiations to obtain rights adequate for the Government's purposes and shall provide to the Government the details as set forth in the Data Rights section of the Proposal.

5. Data that will be delivered, furnished, or otherwise provided to the Government under this Agreement, in which the Government has previously obtained rights under a separate Government-funded agreement, shall be delivered, furnished, or provided with the pre-existing rights, unless (a) the Parties have agreed otherwise, or (b) any restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose the data have expired or no longer apply.

D. Marking of Data:

Any Data delivered under this Agreement with Category C Data Rights, shall be marked with the following legend:

"This data is being delivered as Category C Data, as defined in Agreement W91CRB-24-9-XXXX. Use, duplication, or disclosure is subject to Government Purpose Rights in accordance with Agreement W91CRB-24-9-XXXX between the COMPANY and the Government."

In the event that the COMPANY learns of a disclosure to the Government of its unmarked Data that should have contained a restricted legend, the COMPANY will have the opportunity to cure such omission going forward by providing written notice to the AO within six (6) months of the erroneous disclosure.

E. Copyright:

The COMPANY reserves the right to protect by copyright works developed under this Agreement. All such copyrights will be in the name of the COMPANY or the author, as determined by COMPANY policies. The COMPANY hereby grants to the U.S. Government a non-exclusive, non-transferable, royalty-free, fully paid-up license to reproduce, prepare derivative works, distribute copies, and perform and display, , any copyrighted materials classified as Category C Data which was developed and delivered under this Agreement.

F. Lower Tier Agreements:

The COMPANY shall include this Article, suitably modified to identify the Parties, in all, subcontracts or lower tier agreements, regardless of tier, or experimental, developmental, or research work.

G. Commercial Off The Shelf Manuals:

The Government shall have a non-exclusive, limited right to use, reproduce and distribute as necessary for DOD training purposes any commercial off-the-shelf manuals provided as part of this Program.

H. Survival Rights:

Provisions of this Article shall survive termination of this Agreement.

I. Identifications and Assertions This provision documents the fact that the Contractor has provided the identification and assertion appended hereto as 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, and which the Parties hereto agree will govern the Government's rights in technical data and computer software delivered hereunder along with any special provisions incorporated in Section H of this contract. 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.

The following are incorporated by reference:

-DFARS 252.227-7013 Rights in Technical Data—Other Than Commercial Products and Commercial Services -DFARS 252.227-7014 Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation -DFARS 252.227-7015 Technical Data - Commercial Products and Commercial Services -DFARS 252.227-7018 Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research (SBIR) Program -DFARS 252.227-7019 Validation of Asserted Restrictions—Computer Software -DFARS 252.227-7037 Validation of Restrictive Markings on Technical Data

ARTICLE VIII: 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.

"Subject Invention" means any invention of the COMPANY conceived or first actually reduced to practice in the performance of work under this Agreement which pertains to an item, component or process whose Data is classified as Category C Data.

"Background Invention" means any invention made by the COMPANY, 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 COMPANY 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 COMPANY retains title, the Government shall have a non-exclusive, nontransferable, irrevocable, paid-up license to practice the Subject Invention for internal evaluation purposes of the deliverable under this Agreement only throughout the world. The COMPANY 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 COMPANY shall disclose each Subject Invention to the AO (in a format determined by the COMPANY) within four (4) months after the inventor discloses it in writing to his company personnel responsible for patent matters. The disclosure to the Government 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.

2. If the COMPANY determines that it does not intend to retain title to any such invention, regardless of whether the COMPANY has decided to file or not file a patent application the COMPANY shall notify the AO, in writing, within nine (9) months of disclosure of the Subject Invention to the Government Contracting Activity. 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 COMPANY shall file its initial patent application on a Subject Invention to which it has decided to file a patent application within one (1) year after any publication, or sale, or public use. The COMPANY may elect to file patent applications in additional countries (including the European Patent Office and the Patent Cooperation Treaty) within the time frames required by those countries and subject to any time requirements where 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 COMPANY, a request for extension of the time for disclosure, and filing under this Article VIII, paragraph C, may be approved by the Government, which Government approval shall not be unreasonably withheld.

5. The Government agrees to execute or to have executed and promptly deliver to the COMPANY all instruments necessary to establish or confirm the rights the COMPANY has throughout the world, and to obtain patent protection throughout the world, in inventions of the COMPANY conceived or first actually reduced to practice in the performance of work under this Agreement, including, but not limited, to assignments and declarations.

D. Conditions When the Government May Obtain Title:

Upon the Government's written request, the COMPANY shall convey title to any Subject Invention to the Government under any of the following conditions:

If the COMPANY elects not to retain title to the Subject Invention within the times specified in Article VIII, paragraph C.2.; provided, that the Government may only request title within sixty (60) calendar days after learning of the failure of the COMPANY electing not to retain title. For the sake of clarity, COMPANY deciding to not pursue a patent application on a Subject Invention is not the same as COMPANY electing not to retain title to the Subject Invention.

E. Minimum Rights to the COMPANY and Protection of the COMPANYs Right to File:

The COMPANY shall retain a nonexclusive, irrevocable, royalty free sublicensable license, to make, have made, use, sell, offer for sale, or import, throughout the world in each Subject Invention to which the Government obtains title. The COMPANY license extends to the domestic (including Canada) subsidiaries and affiliates, if any, within the corporate structure of which the COMPANY is a Party and includes the right to grant licenses of the same scope to the extent that the COMPANY 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.

F. Action to Protect the Governments Interest:

1. The COMPANY agrees to execute or to have executed and promptly deliver to the Government all instruments necessary to: I. establish or confirm the rights the Government has throughout the world in those Subject Inventions to which the COMPANY elects to retain title; and 2.