Attachment 6 - Articles.pdf

Attachment 6 Agreement Articles

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ARTICLES TABLE OF CONTENTS

ARTICLE 1 Introduction and General Definitions ARTICLE2 Scope of Agreement ARTICLE 3 Term of Agreement and Termination ARTICLE4 Management & Administration of the Agreement ARTICLE 5 Changes/Modifications ARTICLE6 Obligation and Payment ARTICLE 7 Data Rights & Intellectual Property ARTICLE 8 Proprietary Data ARTICLE9 Patent Rights ARTICLE 10 Security Requirements ARTICLE 11 Public Release or Dissemination oflnformation ARTICLE 12 Statutory Authority ARTICLE 13 Comptroller General Access ARTICLE 14 Disputes Resolution ARTICLE 15 Non-Assignment ARTICLE 16 Force Majeure ARTICLE 17 Order of Precedence ARTICLE 18 Execution ARTICLE 19 Limitation of Government’s Obligation ARTICLE 20 Government Furnished Property & Title to and Disposition of Property ARTICLE 21 Validation of Restrictive Markings on Technical Data ARTICLE 22 Severability ARTICLE 23 Prohibition on Contracting for Certain Telecommunications and Video

Surveillance Services or Equipment ARTICLE 24 Foreign Access to Technology ARTICLE 25 Counterfeit Electronic Part Detection ARTICLE 26 Export Controlled Items ARTICLE 27 Insurance-Liability to Third Persons ARTICLE 28 Safeguarding Covered Defense Information and Cyber Incident Reporting ARTICLE 29 Stop-Work Order ARTICLE 30 AFRL Wright Research Site Security Requirements ARTICLE 31 Prohibition on a ByteDance Covered Application ARTICLE 32 Fixed Fee ARTICLE 33 Limitation of Funds and Limitation of Cost

Agreement Articles

ARTICLE 1: INTRODUCTION AND GENERAL DEFINITIONS

1.1 Introduction

This Other Transaction Agreement for Prototype, hereinafter referred to as the "OT" or the "Agreement," is awarded pursuant to 10 U.S.C. §4022. This Agreement is entered into by XXXX referred to as the "Awardee" and the United States Air Force, Air Force Materiel Command (AFMC), Air Force Research Laboratory (AFRL), hereinafter referred to as the "Government" pursuant to and under U.S.

Federal Law.

1.2 General Definitions

When used in this Agreement, the following terms, whether used in the singular or plural, shall have the meanings set forth herein.

"Agreement" means the body of this Agreement and Attachments, which are expressly incorporated in and made a part of the Agreement.

"Agreements Administrator" (AA) means the person identified by the Government in this Agreement authorized to administer this Agreement, and in coordination with the Agreements Officer, make determination and findings related to delegated administration functions.

"Agreements Officer" (AO) means the person identified by the Government in this Agreement authorized to enter into, administer, modify, or terminate this Agreement.

"Agreements Specialist" means the person identified by the Government to assist the Agreements Officer.

"Administrative Change" means a unilateral Agreement change, in writing, that does not affect the substantive rights of the parties (examples of Administrative Changes include a change in named personnel or Agreement administrative information).

"Awardee" means the direct recipient of this Agreement.

"Awardee Program Manager" (APM) means the person identified by the Awardee charged with the Awardee's overall technical responsibility of managing the Agreement.

"Data" means recorded information, regardless of form or method of recording, which includes but is not limited to, technical data, computer software, computer software documentation, and mask works. The term does not include financial, administrative, cost, pricing or management information.

Draft Agreement Articles

FA239426RB003

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

"Government Purpose Rights" means the rights to--

(i) Use, modify, reproduce, release, perform, display, or disclose technical data within the Government without restriction; and

(ii) Release or disclose technical data outside the Government and authorize persons to whom release, or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose that data for United States government purposes.

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

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

"Made" means relates to any invention means the conception or first actual reduction to practice of such invention.

"Parties" mean the Government (represented by AFRL), or the Awardee, or both.

"Payable Milestones" means a structured schedule of observable achievements on the critical path to experiment success with a fixed amount to be paid to the Awardee at the start of each milestone, assuming milestone entry criteria has been met. The schedule of Payable Milestones for this Agreement is included as Attachment 3.

"Program Manager" (PM) means the person identified by the Government charged with the overall technical responsibility of managing the Agreement, to include approving Milestone Entry Criteria and acceptance of Agreement deliverables. The PM does not have authority to enter into, administer, modify or terminate this Agreement like the Agreements Officer.

"Prototype" means a prototype project addresses a proof of concept, model, reverse engineering to address obsolescence, pilot, novel application of commercial technologies for defense purposes, agile development activity, creation, design, development, demonstration of technical or operational utility, or combinations of the foregoing. A process, including a business process, may be the subject of a prototype project.

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

"Technical Data - Commercial Items" See Article 7

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

"Transferability" means the property of a system or subsystem component to be hosted on more than one type of vehicle platform with limited redesign of the system/subsystem.

ARTICLE 2: SCOPE OF AGREEMENT

2.1 Background:

The Government intends to enter into this Agreement under the authority of 10 U.S.C. § 4022 - Other Transaction for Prototype in accordance with the Open Two- Step Open Solicitation, FA239426RB003 under the FA239424RB003, Materials and Manufacturing Directorate (RX) Multiple Authority Announcement (MAA). The objective of this program is to XXXX.

2.2 Scope:

This prototype project will XXXX. XXXX will complete the following items. A more detailed description of the scope is found in the Statement of Work (Attachment 2).

ARTICLE 3: TERM OF THE AGREEMENT AND TERMINATION

3.1 Term of the Agreement:

The term of the Agreement from the time of award is X months, X months for technical performance and X additional months for preparation and review of the final report.

3.2 Termination Provisions:

Either party may unilaterally terminate this Agreement by written notice to the other party upon a finding that the other Party has failed to comply with the material provisions of this Agreement, provided that (a) such written notice is provided no less than (60) sixty calendar days prior to the planned termination date following consultation between the Parties, and (b) the noncompliant party failed to (1) remedy its noncompliance, or (2) provide a written plan outlining its path to return to full compliance, within 60 days of receipt of written notice of noncompliance from the other party.

3.3 Termination for Convenience:

With a minimum of forty-five (45) days’ written notice, the Agreements Officer may also unilaterally terminate performance of work under this Agreement, or a project funded under this Agreement, in whole or in part, based on a reasonable determination that the Agreement will not produce beneficial results commensurate with the expenditure of resources. The Government may terminate this Agreement, 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 Awardee a Notice of Termination specifying the extent of termination and the effective date.

3.4 Termination Cost:

The Parties will negotiate in good faith a fair and equitable reimbursement for work performed prior to termination, including a reasonable fee or profit. The Government will allow full credit for the agreement obligations, to include any work in progress, associated engineering costs, raw materials, agreement related services procured, and including title transfer, properly incurred by the Awardee prior to termination. Costs incurred by the Awardee during a suspension or after termination notification are not allowable unless the Agreements Officer expressly authorizes them in writing. Other costs incurred during a suspension or after termination which are necessary and reasonably unavoidable are allowable if the costs result from obligations which were properly incurred by the Awardee before the effective date of the suspension or termination, are not in anticipation of it, and in the case of a termination, are non-cancellable. Other costs incurred as a result of the termination which are necessary and reasonably unavoidable are allowable if the costs are within the minimum forty-five (45) day notification period. Failure of the Parties to agree to a reasonable adjustment will be resolved pursuant to Article 14, Dispute Resolution. The Government and the Awardee shall negotiate in good faith a reasonable and timely adjustment of all issues between the Parties as a result of termination.

3.5 Extending the Term:

The Parties may extend by mutual written Agreement the term of this Agreement if opportunities within the scope set forth in Article 2 reasonably warrant, subject to the availability of funding. Any extension shall be formalized through written modification of the Agreement, signed by the Agreements Officer and the duly authorized representative of the Awardee.

ARTICLE 4: MANAGEMENT & ADMINISTRATION OF THE AGREEMENT

Unless otherwise provided in this Agreement, approvals permitted or required to be made by the Government may be made only by the Government AO. Administrative and contractual matters under this Agreement shall be referred to the following representative of the parties:

4.1 Government Point of Contact (POC):

Program Manager (PM):

XXXX

XXX

XXX

Agreements Officer

(AO): XXXX

4.2 Agreements Administrator:

4.3 Payment Office:

4.4 Awardee Points of Contact: Awardee Technical POC:

Awardee Contractual POC:

Each party may change its representatives named in this Article by written notification to the other party. The Government will affect the change as stated in Article 5, Changes/Modifications below.

ARTICLE 5: CHANGES/MODIFICATIONS

5.1 Changes/Modifications to this Agreement:

Recommendations for modifications, including justifications to support any changes to the SOW (Attachment 2) shall be documented in a letter and submitted by the Awardee to the PM and the AO. This documentation will detail the technical, chronological, and financial impact of the proposed modification to the program. All modifications, except for administrative modifications, shall be made by mutual Agreement of the parties.

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 modification to this Agreement.

For minor or administrative Agreement modifications (e.g. changes in the paying office or appropriation data, changes to Government or the Awardee's personnel identified in the Agreement, etc.) no signature is required by the Awardee. Administrative modifications may be unilaterally executed by the AO.

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

ARTICLE 6: OBLIGATION AND PAYMENT

6.1 Obligation:

This Fixed Price (FP) Agreement is funded in the amount of $XX.XX In no case shall the Government's financial obligation for performance exceed the amount obligated on the Agreement or by amendment to this Agreement. The Government is not obligated to reimburse the Awardee for expenditures in excess of the amount of obligated funds allotted by the Government.

Or

This Cost Reimbursement Plus Fixed Fee Agreement is incrementally funded in the amount of $XX.XX. In no case shall the Government’s financial obligation for performance exceed the amount obligated on the Agreement or by amendment to this Agreement. The Total Amount/Price of this Agreement is $XX.XX. The Government is not obligated to reimburse the Awardee for expenditures in excess of the amount of obligated funds allotted by the Government.

6.2 Payment:

The Awardee will be paid when the PM validates the accomplishment of the elements as delineated in the Schedule of Payable Milestones included at Attachment 3 to this Agreement. The PM will accept or reject the Agreement deliverables within five (5) calendar days after submittal to the PM. Payment requests are to be submitted via Wide Area Workflow in accordance with the instructions below:

Or

The Awardee agrees to maintain an established accounting system, which complies with Generally Accepted Accounting Principles and the requirements of this Agreement and shall ensure that appropriate arrangements have been made for receiving, distributing and accounting for Federal funds. An acceptable accounting system is one in which all cash receipts and disbursements are controlled and documented properly.

The Government will make payments to the Awardee when requested as work progresses, but (except for small business concerns) not more often than once every 2 weeks, in amounts determined to be llowable by the Agreements Officer in effect on the date of this Agreement and the terms of this Agreement. The Awardee may submit to an authorized representative of the Agreements Officer, in such form and reasonable detail as the representative may require, an invoice or voucher supported by a statement of the claimed allowable cost for performing this Agreement. The FAR clause 52.216-7 “Allowable Cost and Payment” shall be used as a guide for submission and approval of payments in addition to Article 32, Fixed Fee.

The estimated expense and fee for this Agreement are shown below. The applicable fixed fee set forth below may be increased or decreased only by negotiation and modification of the Agreement for added or deleted work. As determined by the Agreements Officer, it shall be paid as it accrues, in regular installments based upon the percentage of completion of work.

Base Award:

Estimated Cost: $XX.XX Fixed Fee*: $XX.XX Total: $XX.XX

*Cost of Money NOT included in Fixed Fee Calculation The Awardee shall submit invoices reflecting a cost-based approach, which reimburse the Awardee for actual costs incurred from work on the project, plus a pro rata percentage of the Fixed Fee. After Agreement completion, the Awardee may submit additional invoices for closeout and to bill trailing costs, indirect rate variances, and remaining fixed fee.

6.3 Wide Area Workflow Payment Instructions:

WAWF access - To access WAWF, the Awardee shall be registered to use WAWF at https://wawf.eb.mil/ following the step-by-step procedures for self-registration available at this Web site.

WAWF training - The Awardee 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/.

WAWF payment instructions - The Awardee must use the following information when submitting payment requests and receiving reports in WAWF for this Agreement:

1) Document type. The Awardee shall use the following document type(s).

Grant Voucher https://wawf.eb.mil/ https://wawf.eb.mil/

2) Inspection/acceptance location. The Awardee shall select the following inspection/acceptance location(s) in WAWF, as specified by the Agreements Officer.

XXXXX

3) Document routing. The Awardee 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

Pay Official DoDAAC Issue By DoDAAC Admin DoDAAC Inspect By DoDAAC Ship To Code Ship From Code Mark For Code Service Approver (DoDAAC) Service Acceptor (DoDAAC) Accept at Other DoDAAC LPODoDAAC DCAA Auditor DoDAAC Other DoDAAC(s)

Data to be entered in WAWF

XXXX

XXXX

XXXX

XXXX

NIA

NIA

4) Payment request and supporting documentation. The Awardee shall ensure a payment request includes an appropriate line item and subline item descriptions of the work performed or supplies delivered, unit price/cost per unit, fee (if applicable), and all relevant back-up documentation, (e.g. timesheets) in support of each payment request.

5) WAWF email notifications. The Awardee shall enter the email address identified below in the "Send Additional Email Notifications" field of WAWF once a document is submitted in the system.

Program Manager: XXXX Agreements Officer: XXXX

6) The Awardee may obtain clarification regarding invoicing in WAWF from the following Agreement activity's administrative WAWF point of contact. - See Article 4 - Agreements Administrator information above.

For technical WAWF help, contact the WAWF helpdesk at 866-618-5988.

ARTICLE 7: DATA RIGHTS & INTELLECTUAL PROPERTY

7.1 Technical Data for Commercial Items shall be governed by the following:

7.1.1 (a) Definitions.

(1) "Commercial item" does not include commercial computer software.

(2) "Covered Government support Awardee" means an Awardee under an agreement, the primary purpose of which is to furnish independent and impartial advice or technical assistance directly to the Government in support of the Government's management and oversight of a program or effort (rather than to directly furnish an end item or service to accomplish a program or effort), provided that the Awardee-

(i) Is not affiliated with the prime Awardee or a first-tier sub-awardee on the program or effort, or with any direct competitor of such prime Awardee or any such first-tier sub-awardee in furnishing end items or services of the type developed or produced on the program or effort;

and

(ii) Receives access to technical data or computer software for performance of a Government award that contains a clause limiting the use or disclosure of Government-furnished information marked with restrictive legends.

(3) "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.

(4) The term "item" includes components or processes.

(5) "Technical data" means recorded information, regardless of the form or method of recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or data incidental to contract/Agreement administration, such as financial and/or management information.

7.1.2 (b) License.

(1) For this agreement, The Government shall have the right to use, reproduce, release, perform, display, or disclose technical data, and to permit in accordance with the Government purpose rights to do so, that-

(i) Have been provided to the Government or others without restrictions on use, modification, reproduction, release, or further disclosure other than a release or disclosure resulting from the sale, transfer, or other assignment of interest in the technical data to another party or the sale or transfer of some or all of a business entity or its assets to another party;

(ii) Are form, fit, and function data;

(iii) Are a correction or change to technical data furnished to the Awardee by the Government;

(iv) Are necessary for operation, maintenance, installation, or training (other than detailed manufacturing or process data); or

(v) Have been provided to the Government under a prior contract/Agreement or licensing agreement through which the Government has acquired the rights to use, modify, reproduce, release, perform, display, or disclose the data without restrictions.

(2) Except as provided in paragraph (b)(l) of this article, the Government may use, modify, release, perform, display, or disclose technical data within the Government only. The Government shall not-

(i) Use the technical data to manufacture additional quantities of the commercial items; or

(ii) Release, perform, display, disclose, or authorize use of the technical data outside the Government without the Awardee's written permission unless a release, disclosure, or permitted use is necessary for emergency repair or overhaul of the commercial items furnished under this contract, or for performance of work by covered Government support Awardees.

(3) The Awardee acknowledges that-

(i) Technical data covered by paragraph (b)(2) of this article is authorized to be released or disclosed to cover Government support Awardees.

(ii) The Awardee will be notified of such release or disclosure.

(iii) The Awardee (or the party asserting restrictions as identified in a restrictive legend) may require each such covered Government support Awardee to enter into a non-disclosure agreement directly with the Awardee (or the party asserting restrictions) regarding the covered Government support Awardee's use of such data, or alternatively, that the Awardee (or party asserting restrictions) may waive in writing the requirement for a non-disclosure agreement; and

(iv) Any such non-disclosure agreement shall address the restrictions on the covered Government support Awardee's use of the data. The non-disclosure agreement shall not include any additional terms and conditions unless mutually agreed to by the parties to the non-disclosure agreement.

(c) Additional license rights. The Awardee, its sub-Awardees, and suppliers are not required to provide the Government with additional rights to use, modify, reproduce, release, perform, display, or disclose technical data. However, if the Government desires to obtain additional rights in technical data, the Awardee agrees to promptly enter into negotiations with the Agreements Officer to determine whether there are acceptable terms for transferring such rights. All technical data in which the Awardee has granted the Government additional rights shall be listed or described in a special license agreement made part of this Agreement. The license shall enumerate the additional rights granted by the Government in such data.

(d) Release from liability. The Awardee agrees that the Government, shall have no liability for any release or disclosure of technical data that are not marked to indicate that such data are licensed data subject to use, modification, reproduction, release, performance, display, or disclosure restrictions.

(e) Applicability to sub-Awardees or suppliers.

(1) The Awardee shall recognize and protect the rights afforded its sub- Awardees and suppliers under 10 U.S.C. 3771-3775 and 10 U.S.C. 3781- 3786.

(2) Whenever any technical data related to commercial items developed in any part at private expense will be obtained from a sub-Awardee or supplier for delivery to the Government under Agreement, the Awardee shall use this same clause in the subcontract/Sub-Agreement or other contractual instrument, including subcontract/Sub- Agreements and other contractual instruments for commercial items, and require its sub- Awardees or suppliers to do so, without alteration, except to identify the parties. This article will govern the technical data pertaining to any portion of a commercial item that was developed exclusively at private expense, and Article 7.1 will govern the technical data pertaining to any portion of a commercial item that was developed in any part at Government expense.

ARTICLE 8: PROPRIETARY DATA

In the event the Awardee provides data or software as a courtesy to the Government to facilitate this effort, said data or software shall bear Awardee's proprietary legend and shall be protected by the Parties from unauthorized disclosure in accordance with 18 USC§ 1905.

ARTICLE 9: PATENT RIGHTS

9.1 Allocation of Principal Rights

Unless the Awardee shall have notified the Government, in accordance with subparagraph 9.2(2) below, that the Awardee does not intend to retain title, the Awardee shall retain the entire right, title, and interest throughout the world to each Subject Invention consistent with the provisions of this Article.

With respect to any Subject Invention in which the Awardee retains title, the Government shall receive a nonexclusive, nontransferable, irrevocable, paid-up license to practice, or to have practiced on behalf of the United States, the Subject Invention throughout the world.

9.2 Invention Disclosure, Election of Title, and Filing of Patent Application

The Awardee shall disclose each Subject Invention to the Government within six (6) 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 and circumstances 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 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 and/or accepted for publication at the time of disclosure.

If the Awardee determines that it does not intend to retain title to any such Invention, the Awardee shall notify the Government, in writing, within eight (8) months of disclosure to the Government. However, in any case where publication, sale, or public use has initiated the one-year statutory period wherein valid patent protection can still be obtained in the United States, the period for such notice may be shortened by the Government to a date that is no more than sixty (60) calendar days prior to the end of the statutory period.

The Awardee 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 the end of the statutory period wherein valid patent protection can be obtained in the United States after a publication, or sale, or public use. The Awardee 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 for Patents to file foreign patent applications, where such filing has been prohibited by a Secrecy Order.

The Awardee 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 thirty (30) calendar days before the expiration of the response period required by the relevant patent office.

Requests for extension of the time for disclosure election, and filing, may be granted at the Government's discretion after considering the circumstances of the Awardee and the overall effect of the extension.

The Awardee shall submit to the Government annual listings of subject inventions. At the completion of the Agreement, the Awardee shall submit a comprehensive listing of all subject inventions identified during the course of the Agreement and the current status of each.

9.3 Conditions When the Government May Obtain Title

Upon the Government's written request, the Awardee shall convey title to any subject invention to the Government under any of the following conditions:

1) If the Awardee fails to disclose or elects not to retain title to the subject invention within the times specified in Paragraph B of this Article; however, the Government may only request title within sixty (60) calendar days after learning of the failure of the Awardee to disclose or elect within the specified times.

2) In those countries in which the Awardee fails to file patent applications within the times specified in Paragraph B of this Article; however, if the Awardee has filed a patent application in a country after the times specified in paragraph B of this Article, but prior to its receipt of the written request by the Government, the Awardee shall continue to retain title in that country; or

3) In any country in which the Awardee 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.

9.4 Minimum Rights to the Awardee and Protection of the Awardee's Right to File

The Awardee shall retain a nonexclusive, royalty-free license throughout the world in each Subject Invention to which the Government obtains title, except if the Awardee fails to disclose the subject invention within the times specified in paragraph 9.2 of this Article. The Awardee's license extends to its domestic subsidiaries and affiliates, including Canada, if any, and includes the right to grant licenses of the same scope to the extent that the Awardee 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 subject invention pertains.

The Government approval for license transfer shall not be unreasonably withheld.

The Awardee's 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 C.F.R. Part 404. This license shall not be revoked in that field of use or the geographical areas in which the Awardee has achieved practical application and continues to make the benefits of the subject 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 Awardee, its licensees, or the subsidiaries or affiliates have failed to achieve practical application in that foreign country.

Before revocation or modification of the license, the Government shall furnish the Awardee a written notice of its intention to revoke or modify the license, and the Awardee 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.

9.5 Action to Protect the Government's Interest

The Awardee 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 Awardee elects to retain title, and (ii) convey title to the Government when requested under Paragraph 9.3 of this Article and to enable the Government to obtain patent protection throughout the world in that subject invention.

The Awardee agrees to require by written agreement with its employees, other than clerical and non- technical employees, to disclose promptly in writing to personnel identified as responsible for the administration of patent matters and in a format suggested by the Awardee each subject invention made under this Agreement in order that the Awardee can comply with the disclosure provisions of Paragraph B of this Article. The Awardee 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 United States or foreign statutory bars.

The Awardee 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. XXXX, awarded by the Government. The Government has certain rights in the invention.

9.6 Lower Tier Agreements

The Awardee shall include this Article, suitably modified, in all subcontract/Sub-Agreements or lower-tired agreements, regardless of tier, for experimental, developmental, or research work. The Awardee may modify this clause to consolidate subAwardee intellectual property rights in the Awardee when flowing this clause down in lower-tier agreements if the Awardee retains the Government's rights as between the Government and the subAwardee.

9.7 Reporting on Utilization of Subject Inventions

The Awardee 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 Awardee or its licensees or assignees. Such reports shall include information regarding the status of development, date of first commercial sale or use, gross royalties received by the Awardee, and such other data and information as the agency may reasonably specify. The Awardee 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 of this Article. The Government agrees it shall not disclose such information to people outside the Government without permission of the Awardee, unless required by law.

All required reporting shall be accomplished, to the extent possible, reporting to AFRL via email to afmclo.jaz@us.af.mil with the standard DD Form 882 "Report oflnventions and Subcontract/Sub- Agreements". To the extent such reporting cannot be carried out to AFRL Patents office, reports and communication shall be submitted to the PM and the AO.

9.8 Preference for American Industry

Notwithstanding any other provision of this article, the Awardee agrees that it shall not grant to any person the exclusive right to use or sell any subject invention in the United States 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. However, in individual cases, the requirements for such an agreement may be waived by the Government upon a showing by the Awardee 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.

9.9 March-in Rights

The Awardee agrees that, with respect to any subject invention in which it has retained title, the Government has the right to require the Awardee, an assignee, or exclusive licensee of a subject invention to grant a non- exclusive license to a responsible applicant or applicants, upon terms that are reasonable under the circumstances, and if the Awardee, assignee, or exclusive licensee refuses such a request, the Government has the right to grant such a license itself if the Government determines that:

1) Such action is necessary because the Awardee or assignee has not taken effective steps, consistent with the intent of this Agreement, to achieve practical application of the subject invention.

2) Such action is necessary to alleviate health or safety needs which are not reasonably satisfied by the Awardee, assignee, or their licensees.

3) Such action is necessary to meet requirements for public use and such requirements are not reasonably satisfied by the Awardee, assignee, or licensees; or mailto:afmclo.jaz@us.af.mil

4) Such action is necessary because the agreement required by Article 9 has not been obtained or waived or because a licensee of the exclusive right to use or sell any subject invention in the United States is in breach of such Agreement.

ARTICLE 10: SECURITY REQUIREMENTS

This article applies to the extent that this Agreement involves access to information classified "Confidential," "Secret," or "Top Secret."

The subject effort is classified at the XXXX level. The Awardee shall comply with --

1) The Security Agreement (DD Form 441), including the National Industrial Security Program Operating Manual (DoD 5220.22-M); and

2) Any revisions to that manual, notice of which has been furnished to the Awardee.

If, subsequent to the date of this Agreement, the security classification or security requirements under this Agreement are changed by the Government and if the changes cause an increase or decrease in security costs or otherwise affect any other term or condition of this Agreement, the Agreement shall be subject to an equitable adjustment as if the changes were directed under the Changes/Modifications article of this Agreement.

The Awardee agrees to insert terms that conform substantially to the language of this article, including this paragraph (d) but excluding any reference to the Changes/Modifications article of this Agreement, in all subcontract/Sub-Agreements under this Agreement involve access to classified information. The DD Form 254, if applicable, (Contract Security Classification Specification) governs the handling and storage of all classified information regarding this Agreement.

General Operations Security (OPSEC) procedures, policies and awareness are required in an effort to reduce program vulnerability from successful adversary collection and exploitation of critical information. OPSEC will be applied throughout the life cycle of the contract. The Critical Information List (CIL) will be provided upon request by RXOS Information Protection Office. While working on the government installation, OPSEC guidance will be provided by the RXOS Information Protection Office.

Communications Security (COMSEC) Monitoring - All communications with DoD organizations are subject to Communications Security (COMSEC) review. Awardee personnel will be aware that telecommunications networks are continually subject to interception by unfriendly intelligence organizations. The DoD has authorized the military departments to conduct COMSEC monitoring and recording of telephone calls originating from or terminating at DoD organizations. Therefore, civilian contractor personnel are advised that any time they place a call to or receive a call from a USAF organization they are subject to COMSEC procedures. The Awardee will assume the responsibility for ensuring wide and frequent dissemination of the above information to all employees dealing with official DoD information.

ARTICLE 11: PUBLIC RELEASE OR DISSEMINATION OF INFORMATION

11.1 There shall be no dissemination or publication, except within and between the Awardee and any subAwardees, of information developed under this Agreement or contained in the reports to be furnished pursuant to this Agreement without prior written approval of the AO. However, the Government reserves the right to disseminate information within the Government entities without Awardee approval. All technical reports will be given proper review by appropriate authority to determine which Distribution Statement is to be applied prior to the initial distribution of these reports by either party. Unclassified patent related documents are exempt from prepublication controls and this review requirement. There shall be no dissemination or publication, except within and between the Awardee and any subAwardee(s), of information developed under this effort without first obtaining approval for public release from the Agreements Officer and/or Program Manager who will obtain Air Force Office of Public Affairs approval. Papers prepared in response to academic requirements which are not intended for public release outside the academic institution are exempt from prepublication controls.

11.2 The Awardee shall submit all proposed public releases for review and approval as instructed by the Agreements Officer and/or Program Manager who will obtain Air Force Office of Public Affairs approval at least 45 business days prior to the scheduled release date. The submission will be reviewed, and if approved, sent to the Air Force Office of Public Affairs for release. Public releases include press releases, specific publicity or advertisement, and publication or presentation, but exclude those relating to the open sourcing or licensing, sales or other commercial exploitation of products, services or technologies.

11.3 The Government shall submit all proposed public releases which identify the Awardee or the subject of this Agreement to the Awardee for review and comment when the Government becomes aware of such planned release or no later than 10 days prior to release, whichever is later. Public releases include press releases, specific publicity or advertisement, and publication or presentation, but exclude those relating to the open sourcing or licensing, sales or other commercial exploitation of products, services or technologies.

ARTICLE 12: STATUTORY AUTHORITY

12.1 This Agreement is not a Federal procurement contract, grant or cooperative agreement.

Nothing in this Agreement will be construed as incorporating by reference or implication any provision of Federal acquisition law or regulation not specifically mentioned in this Agreement. The Awardee shall comply with Title VI of the Civil Rights Act of 1964 as amended (42 U.S.C. § 2000d) relating to nondiscrimination in federally assisted programs and shall provide a certification to that effect. Additionally, this Agreement is subject to the Trafficking Victims Protection Act of 2000, as amended (22 U.S.C.

chapter 78), Executive Order 13627, Strengthening Protections Against Trafficking in Persons in Federal Contracts, the International Traffic in Arms Regulations (22 C.F.R.

Part 120, et seq.), the National Security Program Operating Manual (NISPOM) (DoD 5220.22-M), the Department of Commerce's Export Administration Regulations (15 C.F.R. Part 730, et seq.), and the Federal Property and Administrative Services Act (40 U.S.C. chapter 5), to the extent applicable to the activities to be conducted under this Agreement. In addition, the Procurement Integrity Act (41 U.S.C. §2101-2107) shall apply to this Agreement.

ARTICLE 13: COMPTROLLER GENERAL ACCESS

13.1 The Comptroller General of the United States, or an authorized representative of the Comptroller General, shall have access to and right to examine any of the Awardee's directly pertinent records involving transactions related to this Agreement. The Comptroller General of the United States, or an authorized representative of the Comptroller General, at its discretion, shall have access to and the right to examine records of any party to the Agreement or any entity that participates in the performance of this Agreement that directly pertain to, and involve transactions relating to, the Agreement for a period of three (3) years after final payment is made. If this Agreement is completely or partially terminated, the records relating to the work terminated shall be made available for 3 years after any resulting final termination settlement. Records relating to appeals under the disputes article or to litigation or the settlement of claims arising under or relating to this Agreement shall be made available until such appeals, litigation, or claims are finally resolved.

13.2 This requirement shall not apply with respect to any party to this Agreement or any entity that participates in the performance of the Agreement, or any subordinate element of such party or entity, that, in the year prior to the date of the Agreement, has not entered into any other contract, grant, cooperative Agreement, or "Other Transaction" Agreement that provides for audit access to its records by a government entity in the year prior to the date of this Agreement. As used in this article, records include books, documents, accounting procedures and practices, and other data, regardless of type and regardless of form. This does not require the Awardee to create or maintain any record that the Awardee does not maintain in the ordinary course of business or pursuant to a provision of law. The terms of this paragraph shall be included in all sub-agreements/contracts to the Agreement.

ARTICLE 14: DISPUTES RESOLUTION

14.1 General:

The Parties shall communicate with one another in good faith and in a timely and cooperative manner when raising issues pertaining to this Agreement under this article, with the objective of resolving any misunderstanding, disagreement, claims, or disputes by mutual agreement.

14.2 Dispute Resolution Procedures:

14.2.1 Any disagreement, claim or dispute between the Government and the Awardee 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 only be raised under thisarticle.

14.2.2 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, with the goal of settlement within three (3) months of identification of the issue. Every reasonable attempt will be made to resolve all issues at the Agreements Officer's level. Alternative Dispute Resolution (ADR) procedures to include, but not limited to settlement negotiations, mediation and fact-finding, will be used to the maximum extent practicable. Whenever the Awardee submits, in writing, a claim or issue to the Government, the Agreements Officer shall consider the claim or issue and, within 60 calendar days of receipt of the claim or issue in dispute, either:

1) Prepare and transmit a written decision to the Awardee, which shall include the basis for the decision, and accordingly document the Agreement file or;

2) Notify the Awardee of a specific date when the Agreements Officer will render a decision if more time is needed for response. The notice will inform the Awardee of the reason for delaying the decision.

14.2.3 In the event the Awardee decides to appeal the decision, the Agreements Officer shall make every effort to encourage the Awardee to enter into ADR procedures with the Agreements Officer. The ADR procedure applicable to this Agreement expressed in subparagraphs below:

Failing resolution by mutual agreement, the Awardee shall document the dispute, disagreement, or misunderstanding and notify the Government, through the Agreements Officer or Awardee Administrator (as the case may be) in writing of the relevant facts, identify unresolved issues, and specify the clarifications or remedy sought. Within five

(5) business days after providing notice, the Awardee may, in writing, consult an ombudsman. An ombudsman has been appointed to hear and facilitate the resolution of concerns from offerors, potential offerors, and others for this acquisition. When requested, the ombudsman will maintain strict confidentiality as to the source of concern. The existence of the ombudsman does not affect the authority of the program manager, Agreements Officer, or source selection official.

Further, the ombudsman does not participate in the evaluation of proposals, the source selection process, or the adjudication of protests or formal contract/Agreement disputes. The ombudsman may refer the interested party to another official who can resolve the concern. If a resolution cannot be made by the Agreements Officer, the interested party may contact the ombudsman. Concerns, issues, disagreements, and recommendations that cannot be resolved at the Center/MAJCOM/DRU/SMC ombudsman level, may be brought by the interested party for further consideration to the Air Force ombudsman, Associate Deputy Assistant Secretary (ADAS) (Contracting), SAF/AQC, 1060 Air Force Pentagon, Washington DC 20330-1060, phone number (571) 256-2395, facsimile number (571) 256-2431. The ombudsman has no authority to render a decision that binds the agency. If the Awardee chooses not to participate in the Dispute Resolution Procedure or does not accept the results of the Dispute Resolution Procedure, the Awardee may bring a formal claim as authorized by 28 U.S.C. 1491 or other applicable statutes and pursue any right and remedy in a court of competent jurisdiction without being subject to an administrative exhaustion requirement under this agreement. The Parties' attempt to resolve issues through settlement, negotiations, mediation and fact-finding pursuant to Article 14 shall be non-binding and without prejudice to either Party.

14.3 Limitation of Damages:

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