Attachment 7 - CTSO INC1 OTA Terms and Conditions - 2DEC21.docx

AGREEMENT BETWEEN

UNITED STATES ARMY CONTRACTING COMMAND – NEW JERSEY

EMERGING TECHNOLOGIES DIVISION

CCNJ-ET/BUILDING 9

PICATINNY ARSENAL, NJ 07806-5000

AND

COMPANY NAME

STREET ADDRESS

CITY, STATE, ZIP CODE

Agreement No.: W15QKN-22-9-XXXX

Total Amount of the Agreement: TBD

Authority: 10 U.S.C. § 2371b, Section 815 of the 2018 National Defense Authorization Act, P.L 114-92

TABLE OF CONTENTS

ARTICLE I: SCOPE OF THE AGREEMENT

A. Overview

This Other Transaction Agreement (OTA) is awarded based upon the prototype proposed by [INSERT COMPANY NAME], hereinafter referred to as “The COMPANY” in response to Prototype Project Opportunity Notice Number W15QKN-22-9-XXXX. The principle purpose of this OTA will be the development of the CTSO Increment 1 Common Anti-Vehicle Munition (CAVM) Based Top Attack (TA) system, hereafter also referred to as CTSO INC1. The design will provide an U.S. Landmine Policy compliant TA capability to address the Army’s directed close tactical obstacle capability gap as an enduring solution. The CTSO INC1 system will include an anti-vehicle TA with standoff capability. The system will also employ modular open systems architecture, cyber, command, control, communications, and computer (C5) capabilities, and displays authoritative safety information to the operator to enable a disarmed safe state (on-off-on).

B. Definitions “Agreement” or "OTA" refers to the Section 815 Other Transaction Agreement between the Government and The COMPANY, Agreement No. W15QKN-22-9-CXXX. The Agreement is the mutually agreed terms and conditions of the parties to an Other Transaction (OT). Absent exceptional circumstances, it will take the form of a legally binding written instrument.

“Agreements Officer (AO)” is the United States Army Contracting Command – New Jersey (ACC-NJ) warranted Contracting Officer authorized to enter into, administer, or terminate OTAs.

“Agreements Officer’s Representative (AOR)” is the individual designated by the Government to monitor all technical aspects of this Agreement, to the extent expressly delegated in writing in the Appointment Letter by the responsible Agreements Officer, and cannot contractually bind the Government.

“Agreements Specialist (AS)” is the U.S. Army Contracting Command – New Jersey’s Contracting Specialist assigned to assist the Agreements Officer with execution of the final agreement.

“Awardee” is any responsible entity that is a signatory to an OT agreement. A sub-awardee is any responsible entity performing effort under the OT agreements, other than the awardee.

“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.

“Cost Share”, also referred to as “Resource Sharing”, occurs when a portion of the total cost of the project is to be paid out of funds provided by sources other than the Federal Government. Contributions can be in cash or non-cash form, and costs can be either direct or indirect, so long as contributions are allowable, allocable, reasonable, and consistently accounted for by the awardee. This may include labor, materials, equipment, usage rights in Intellectual Property, and facilities costs, as well as independent R&D costs that may be reimbursed later by DoD through overhead rates on other awarded efforts. Forfeiture of fee, profit, or cost of money would not be consistent with general cost principles and should not be included in any resource-shared arrangement. Further information can be located on the following website: https://aaf.dau.mil/ot-guide/admin/ under Resource Sharing.

“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.

“Directly Relevant” Under the authority of 10 USC §2371b, prototype projects must be 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 DoD, or to improvement of platforms, systems, components, or materials in use by the armed forces. In this context, the phrase “directly relevant” focuses on the agency determination of the direct relationship of the prototype project (as opposed to a tangential association) with the DoD mission.

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

“Government” means the U.S. Government.

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

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

“Nonprofit Research Institution” means, as defined in 15 U.S.C. 3703, a nonprofit institution means an organization owned and operated exclusively for scientific or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual; and includes federally funded research and development centers, as identified by the National Scientific Foundation in accordance with the government wide Federal Acquisition Regulation issued in accordance with section 1303(a)(1) of title 41 (or any successor regulation thereto).

“Nontraditional Defense Contractor (NDC)” An entity that is not currently performing and has not performed, for at least the one-year period preceding the solicitation of sources by DoD for the procurement or transaction, any contract or subcontract for the DoD 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 (see 10 U.S.C. 2302(9)).

Note: Per the statutory definition, NDCs are all entities that have not performed under a narrowly defined set of circumstances within one year of solicitation of the current OT opportunity. In order for an entity to not qualify for NDC status, it would need to meet all elements of the prescribed definition within that time period. This includes performance of a DoD contract or subcontract subject to full cost accounting standards (CAS) coverage within one year prior to solicitation of the Prototype OT opportunity. The effect of this narrow definition, is that a large number of entities will fall into the NDC category, including nearly all small business concerns, and even those firms that work exclusively with DoD. This is in part due to the exemptions to CAS coverage under 41 U.S.C. § 1502 and FAR Part 30, which exempt commercial contracts, Firm Fixed Price contracts based on adequate price competition, and any contract or subcontract with a small business concern, amongst other exemptions. Further, even where an entity is not outright exempt from CAS coverage, the entity may not have been subject to “full” CAS coverage. This is because full CAS coverage only applies to firms that receive a single CAS-covered contract award of $50 million or more; or received $50 million or more in net CAS-covered awards during its preceding cost accounting period.

“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 are generally not subject to the federal laws and regulations governing procurement contracts. As such, they are not required to comply with the Federal Acquisition Regulation (FAR), its supplements (i.e. DFARS) or laws that are limited in applicability to procurement contracts.

“Parties” means the Government and the COMPANY, and “Party” where each entity is individually identified.

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

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

“Prototype Project”, in the context of an OT, 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. Although assistance terms are generally not appropriate in OT agreements, ancillary work efforts that are necessary for completion of the prototype project, such as test site training or limited logistics support, may be included in prototype projects. A prototype may be physical, virtual, or conceptual in nature. A prototype project may be fully funded by DoD, jointly funded by multiple federal agencies, cost-shared, funded in whole or part by third parties, or involve a mutual commitment of resources other than an exchange of funds.

“Selection Announcement Letter” means the Government letter to be issued to the COMPANY, documenting the Government's evaluation feedback and selection decision for the offeror’s evaluated proposal.

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

“Significant Participant” means an entity that makes a significant contribution to the prototype project. Examples of what might be considered a significant contribution include supplying new key technology or products, accomplishing a significant amount of the effort, or in some other way causing a material reduction in the cost or schedule, or increase in performance.

“Small Business” as defined by 10 U.S.C. 2371b means a small business concern as defined under section 3 of the Small Business Act (15 U.S.C. 632).

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

“Technical Exchanges” means correspondence between the Government and the Offeror after proposal submission.

“United States Army Contracting Command – New Jersey (ACC-NJ)” means the Government contracting activity that is designated as the lead Government organization in charge of executing the contractual obligations of the OTA.

B. Scope

See Attachment 1, Statement of Work

ARTICLE II: TERM OF THE AGREEMENT

A. The Term of the Agreement

This OTA will be available for use for a period of XX months from the date of execution. 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. Termination Provisions

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, in its sole discretion, may terminate performance of work under this OTA or a specific project, in whole or in part, if the AO determines that a termination is in the Government’s best interest. The AO shall terminate by delivering to the COMPANY a Notice of Termination specifying the extent of the 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/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, a transfer of title to the following where applicable and deliver to the Government:

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

(b) 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.

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

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

As part of the termination settlement, the Government reserves the right to recollect any unused project payments made to the COMPANY in the performance of this Agreement.

In the event of a termination of the Agreement, the Government shall retain or assume all patent rights as described in Article VIII, Patent Rights, and all rights in data as described in Article X, Data Rights. Failure of the parties to agree to an equitable adjustment shall be resolved pursuant to Article V, Disputes.

C. Stop Work Clause

As directed by the Agreements Officer, the COMPANY, may, at any time, 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 stop work 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 stop work order during the period of work stoppage. Within the period of 90 days after the stop work order is delivered or within any extension of that period to which the parties have agreed, the AO shall either:

(1) Cancel the stop work order, or

(2) Terminate, in whole or in part, the work covered by this Agreement.

If a stop work order issued under this clause is canceled, the COMPANY shall resume work. The Government shall make an equitable adjustment in the delivery schedule or negotiated price, or both. The Government’s share of this Agreement shall be modified, in writing, accordingly, if:

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

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

If a stop work order is not canceled and the work covered by this Agreement is terminated in accordance with Article II, the AO shall work with the COMPANY to negotiate an equitable reimbursement in accordance with Article II.B, Termination Provisions.

ARTICLE III: AGREEMENT ADMINISTRATION

Unless otherwise provided in this Agreement, approvals permitted or required to be made by ACC-NJ shall be made only by an ACC-NJ Agreements Officer.

Cognizant Defense Contract Audit Agency Office:

[GOVERNMENT TO INSERT DCMA OFFICE, STREET ADDRESS, CITY, STATE ZIP+4]

Cognizant Defense Finance and Accounting Service Office:

[GOVERNMENT TO INSERT DFAS OFFICE, STREET ADDRESS, CITY, STATE ZIP+4]

Agreements Officer:

[GOVERNMENT TO INSERT NAME, ORGANIZATION, EMAIL, AND PHONE]

Agreements Specialist:

[GOVERNMENT TO INSERT NAME, ORGANIZATION, EMAIL, AND PHONE]

Agreements Officer’s Representative (AOR):

[GOVERNMENT TO INSERT NAME, ORGANIZATION, EMAIL, AND PHONE]

Alternate AOR:

[GOVERNMENT TO INSERT NAME, ORGANIZATION, EMAIL, AND PHONE]

ARTICLE IV: OBLIGATION AND PAYMENT

A. Obligation

Except as specified in Article V, Disputes, the Government’s liability to make payments to the COMPANY is limited only to those funds obligated under this Agreement. ACC-NJ may incrementally fund this Agreement by modification. If modification becomes necessary in performance of this Agreement, pursuant to Article V of this Agreement, the Agreements Officer and the COMPANY shall establish and execute a mutually agreed upon revised Schedule of Payable Milestones upon vetting the revised schedule through the AOR for concurrence.

B. Payments (Note: Relevant to Cost Share Only)

In addition to any other financial reports provided or required, the COMPANY shall immediately notify the Agreements Officer if any contribution from the COMPANY is not made as required.

C. Accounting System Requirements: (Note: Relevant to Cost Share Only)

Prior to the submission of invoices, the COMPANY, shall have and maintain an established accounting system which complies with Generally Accepted Accounting Principles (GAAP) and the requirements of this Agreement. The COMPANY shall ensure that appropriate arrangements have been made for receiving, distributing and accounting for Federal Funds under this Agreement. The COMPANY shall provide independent verification from a third party auditor that their accounting system is appropriate for tracking cost share contributions made by the COMPANY.

Consistent with this stipulation, an acceptable accounting system will be one in which all cash receipts and disbursements are controlled and documented properly.

D. Payable Milestones

The COMPANY shall submit invoices for processing according to the milestone payment schedule in the Statement of Work 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. Payments will be made by Defense Finance and Accounting Service, [GOVERNMENT TO INSERT COGNIZANT DFAS OFFICE INFORMATION].

Management at https://acquisition.gov; and be registered to use WAWF at https://wawf.eb.mil/ following the step by step procedures for self-registration available at this website. The COMPANY shall 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/.

Amount per CLIN as identified in the CLIN structure in Section B of this Agreement. Partial milestones shall not be submitted.

4. The COMPANY shall include the following WAWF email notifications when submitting invoices to assure payment approval:

Alternate AOR: [TO BE COMPLETED BY GOVERNMENT]

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

E. Electronic Fund Transfer (EFT)

The COMPANY, must enrollment 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 COMPANY that EFT enrollment is complete. All payments under this Agreement will be held until the COMPANY provides the required EFT enrollment information. The CAGE Code and DUNS number for the COMPANY are as follows: CAGE Code: [INSERT CAGE CODE]; DUNS number: [INSERT DUNS]. Registration in the System Award for Management (SAM) is mandatory.

F. Limitation of Funds

Except as set forth in Article V, Disputes, the Government's financial liability will not exceed the amount obligated under this Agreement and available for payment.

G. Financial Records and Reports

The COMPANY, shall maintain adequate records to account for Federal funds received under this Agreement, and shall maintain adequate records to account for COMPANY Project Agreement funding provided under this Agreement if cost sharing procedures are implemented for funding on a particular project. The COMPANY relevant financial records are available and subject to examination or audit by or on behalf of the Comptroller General, ACC-NJ Contracting Activity, or other Government Official for a period not to exceed three (3) years after final payment. The Comptroller General, Agreements Officer, or designee, shall have direct access to sufficient records and information of any part to this agreement or any entity that participates in the performance of this agreement to ensure full accountability for all funding under this Agreement. Such audit, examination or access shall be performed during business hours on business days upon prior written notice and shall be subject to the security requirements of the audited party. Any audit required during the course of this Agreement may be conducted by the Comptroller General other Government Official using Government auditors or, at the request of COMPANY’s external CPA accounting firm at the expense of the COMPANY. This requirement shall not apply with respect to a party or entity, or a subordinate element of a party or entity that has not entered in to any other agreement that provides for audit access by a Government entity in the year prior to the date of the agreement.

ARTICLE V: DISPUTES

The Parties shall communicate with one another in good faith and in a timely and cooperative manner when raising issues under this Article. Any disagreement, claim or dispute between the ACC-NJ and the COMPANY concerning questions of fact or law arising from or in connection with this Agreement, whether or not it involves an alleged breach of this Agreement, shall be raised only under this Article.

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

Failing resolution by mutual agreement, the aggrieved Party shall document the disagreement, dispute or misunderstanding by notifying the other Party through the cognizant AO in writing regarding 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) business days after providing this written notice to the other Party, the aggrieved Party may, in writing, request a decision by the Chief of the Contracting Office, ACC-NJ. The other Party shall submit a written position on the matters in dispute within thirty (30) calendar days after being notified that a decision has been requested. The Chief of the Contracting Office, ACC-NJ will conduct a review of the matter in dispute and render the decision in writing within thirty (30) calendar days of receipt of the other Party’s written position. Any such decision is final and binding, unless a Party shall, within thirty (30) calendar days of the decision request further review as provided by this Article.

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

In no event shall the COMPANY’s liability for damages exceed the payments made to the COMPANY pursuant to Article IV: Obligation and Payment in performance of this Agreement.

No Party shall be liable to any other Party for consequential, punitive, special and incidental damages or other indirect damages, whether arising in the Agreement (including warranty), tort (whether or not arising from the negligence of a Party) or otherwise, except to the extent such damages are caused by a Party's willful misconduct; Notwithstanding the foregoing, claims for contribution toward third-party injury, damage, or loss are not limited, waived, released, or disclaimed.

ARTICLE VI: CONFIDENTIAL INFORMATION

A. Definitions

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

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

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

“Trade Secret” means all forms and types of financial, business, scientific, technical, economic, 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, regardless of how it is stored, compiled, or memorialized, including physically, electronically, graphically, photographically, or in writing if:

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

(2) 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 and its subcontractors or suppliers, in connection with the a particular project and the COMPANY and its subcontractors or suppliers, may from time to time disclose information that is Trade Secret or Confidential Information to the Government in connection with the OTA or performance thereunder. Neither the Government nor COMPANY or their subcontractors or suppliers shall be obligated to transfer Confidential Information or Trade Secrets independently developed by the Government or the COMPANY or their subcontractors or suppliers, absent an express written agreement between the Parties providing the terms and conditions for the 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, and that, unless otherwise agreed by the Disclosing Party, Confidential Information and Trade Secrets shall not be disclosed, divulged, or otherwise communicated by it to third parties or used by for any purposes other than in connection with specified project efforts and the licenses granted in Article VIII, Patent Rights, and Article X, Data Rights provided that the duty to protect such “Confidential Information” and “Trade Secrets” shall not extend to information or materials 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 VI entitle “Confidential Information: herein;

(3) Are lawfully in possession of the Receiving Party without such restriction to the Receiving Party at the time of disclosure, 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 given written notice to the Disclosing Party promptly so as to enable such Disclosing Party to seek a protective order or otherwise prevent further disclosure of such information.

D. Return of Proprietary Information

Upon the request of either Party, the other Party shall promptly return all copies and other tangible manifestations of the Confidential Information or Trade Secrets that were disclosed. 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 or the specific Project Agreement, the obligations of the Receiving Party under this Article shall continue for a period of five (5) years after the expiration or termination of this Agreement.

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

ARTICLE VII: PUBLICATION AND ACADEMIC RIGHTS

A. Use of Information

Subject to the provisions of Article VI, Confidential Information and Article VII Publication and Academic Rights, 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 under this Agreement. The COMPANY and the Government (and its employees) shall include an appropriate acknowledgement of the sponsorship of the Research Projects by the Government and the COMPANY in any such publications or disclosures. 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 alone, to disclose any Confidential Information or Trade Secrets of the Government or the COMPANY.

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 must complete the DD Form 441 and SF 328 and provide them to the Government 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 local Security office for the DD Form 254.

C. Review or Approval of Technical Information for Public Release

At least thirty (30) calendar days prior to the scheduled release date, COMPANY, shall submit to the Agreements Officer two copies of the information to be released who will route the information to the appropriate parties for review and approval.

Where the COMPANY has Academic Research Institutions performing fundamental research on campus, the COMPANY shall require the same to provide papers and publications for provision to the AOR, through the Agreements Officer, for review and comment at least thirty (30) days prior to the formal paper or publication submission. However, if that Academic Research Institution incorporates into its research results or publications artifacts produced by and provided to these institutions by the COMPANY on behalf of other non-educational institution or has authors listed on the paper who are not employees or students of the Academic Research Institution, then the procedures in the preceding paragraph above shall be followed.

Parties to this Agreement are responsible for assuring that an acknowledgment of Government support will appear in any publication of any material based on or developed under this OTA, using the following acknowledgement terms:

“This effort was sponsored by the U.S. Government under Other Transaction number W15QKN-22-9-XXXX between the [INSERT COMPANY NAME] and the U.S. Government. The U.S. Government is authorized to reproduce and distribute reprints for Governmental purposes notwithstanding any copyright notation herein.”

Parties to this Agreement are also responsible for assuring that every publication of material based on or developed under this OTA 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.”

The COMPANY shall not refer to this Agreement in commercial advertising or similar promotions in such a manner as to state or imply that the product or service provided is endorsed by the Government. Any action construed as an advertisement or any other type of publicity identifying the Government as a customer must obtain the AO’s approval prior to such activity.

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

D. Filing of Patent Applications

During the course of the aforementioned thirty (30) calendar day period, the COMPANY, and/or the Government shall provide notice to the Agreements Officer as to whether it desires that a patent application be filed on any invention potentially disclosed in the materials. In the event that the 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 is withheld until the occurrence of the first of the following:

(1) Filing of a patent application covering the invention;

(2) Written agreement, from the Agreements Officer and the COMPANY, that no patentable invention is disclosed in such materials; or

(3) Written agreement, from the Agreements Officer and the COMPANY, that all potentially patentable information is removed from the proposed publication.

ARTICLE VIII: PATENT RIGHTS

“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 of first actual reduction to practice of such invention.

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

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

“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.

C. Patent Reports

All Agreements shall require the use of DD Form 882, Report of Inventions and Subcontracts, to file an invention report. The COMPANY, shall provide the Agreements Officer with a completed form.

D. Final Payment

Final payment of this Agreement cannot be made until the COMPANY delivers to the Government all disclosures of subject inventions and confirmatory instruments required by this Agreement.

E. 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, for experimental, development, or research work performed under this Agreement.

The provisions of this Article shall survive termination of this Agreement under Article II.

ARTICLE IX: DATA RIGHTS AND COPYRIGHTS

“Government Purpose” means any activity in which the Government is a party. Government purposes include competitive procurement, but do not include the rights to use, modify, reproduce, release, perform, display, or disclose technical data for commercial purposes or authorize others to do so.

“Government Purpose Rights” means the right to use, modify, reproduce, release, perform, display, or disclose technical data within the Government without restriction; and to 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 Government purposes. This is a middle path unique to defense contracts that allows contractors to have the exclusive right to use the technical data in the commercial market. Unless otherwise agreed, Government Purpose Rights convert to Unlimited Rights five years after execution of the contract.

“Limited Rights” means the right to use, modify, reproduce, release, perform, display, or disclose technical data, in whole or in part, within the Government. The Government may not, without the written permission of the party asserting limited rights, release or disclose the technical data outside the Government, use the technical data for manufacture, or authorize the technical data to be used by another party. However, the Government may reproduce, release, or disclose such data or authorize the use or reproduction of the data by persons outside the Government if it is necessary for emergency repair and overhaul, or a release or disclosure to a covered Government support contractor in performance of its covered Government support contract (management and administrative support). The recipient of the technical data is subject to prohibition on the further reproduction, release, disclosure, or use of the technical data, and the contractor or subcontractor asserting the restriction shall be notified of such reproduction, release, disclosure, or use.

“Restricted Rights” applies only to noncommercial computer software and means the Government’s right to use a computer program on a limited number of computers, and make the minimum number of copies of the computer software required for safekeeping (archive), backup, or modification purposes. However, the Government may allow the use of the noncommercial computer software outside of the Government under a limited set of circumstances, including use by a covered Government support contractor in performance of its covered Government support contract (management and administrative support), and after the contractor or subcontractor asserting the restriction is notified.

“Specifically Negotiated License Rights” means any modification by mutual agreement to the standard DFARS noncommercial data rights categories (Unlimited Rights, Government Purpose Rights, Limited/Restricted Rights) laid out in this Article that the parties consider appropriate to the specific contract action, but shall not provide rights less than that provided by Limited Rights. Any rights so negotiated shall be identified in a license agreement written into or made part of the Task Assignment.

“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 administration, such as financial or management information.

“Unlimited Rights” means the right to use, modify, reproduce, perform, display, release, or disclose technical data in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.

B. Allocation of Principle Rights

Technical Data and Computer Software Rights under this Agreement shall be determined in accordance with DFARS 252-227-7013 (Rights in Technical Data—Noncommercial Items) and DFARS 252.227-7014 (Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation), except at otherwise specified in this Article.

C. Copyrights

The COMPANY, reserves the right to protect by copyright original 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 Government a non-exclusive, non-transferable, royalty-free, fully paid-up license to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, for Governmental purposes, any copyrighted materials developed (excluding data) under this Agreement to which it owns the copyright and to authorize others to do so.

In the event that information is exchanged with a notice indicating that it is protected under copyright as a published, copyrighted work, and it is also indicated that such information existed prior to, or was produced outside of this Agreement, the Party receiving the information and others acting on its behalf may reproduce, distribute, and prepare derivative works for the sole purpose of carrying out that Party’s responsibilities under this Agreement.

D. Handling of Data

The COMPANY shall clearly identify the technical data and computer software (and the items, components or processes to which they pertain) that will have asserted restrictions in the Statement of Work prior to award.

Data First Produced by the Government: Technical data and computer software first produced by the Government under this Agreement that would embody trade secrets or would comprise commercial or financial information that is privileged or confidential if obtained from the COMPANY will, to the extent permitted by law, be appropriately marked with a suitable notice or legend and maintained in confidence and disclosed and used by the COMPANY only for the purpose of carrying out their responsibilities under this Agreement.

Prior Technology: If the Government furnishes the COMPANY with technical data or computer software that existed prior to or was produced outside of this Agreement, and that data or software is identified with a suitable notice or legend, then that data and software shall be maintained in confidence and disclosed and used by the COMPANY only for the purpose of carrying out their responsibilities under this Agreement. Data and software protection will include proprietary markings and handling, and the signing of non-disclosure agreements by the COMPANY. Upon completion of activities under this Agreement the aforementioned data and software shall be disposed of as requested by the Government.

Oral and Visual Information: If information which the COMPANY considers to embody trade secrets or to comprise commercial or financial information which is privileged or confidential is disclosed orally or visually to the Government, the exchange of such information must be reduced to a tangible, recorded form and marked with a suitable notice or legend, and furnished to the Government within ten (10) calendar days after such oral or visual disclosure, or the Government shall have no duty to limit or restrict, and shall not incur any liability for any disclosure and use of such information.

Disclaimer of Liability: Notwithstanding the above, the Government shall not be restricted in, nor incur any liability for, the disclosure and use of:

(1) Data or software not identified with a suitable notice or legend as set forth in this Article; nor

(2) Information contained in any data or software for which disclosure and use is restricted under Article VI, Confidential Information, if such information is or becomes generally known without breach of the above, is known to or is generated by the Government independently of carrying out responsibilities under this Agreement, is rightfully received from a third party without restriction, or is included in data or software which the COMPANY has or is required to furnish to the Government without restriction on disclosure and use.

E. Marking of Data

Except for technical data and computer software developed or delivered with Unlimited Rights, all technical data and computer software developed or delivered under this Agreement shall have appropriate Data Rights Markings in accordance with DFARS 252.227-7013(f) and 252.227-7014(f). The Government will have Unlimited Rights to all unmarked technical data or computer software. In the event that unmarked data or software should have contained a restrictive legend, the COMPANY, can cure the omission by providing written notice to the Agreements Officer within thirty (30) calendar days of the erroneous disclosure. The Government will not be responsible for any additional disclosures of the inappropriately marked data or software prior to that written notice.

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, development, or research work performed…