B08_W15P7T-21-R-0001_NGLDM_SOLICITATION_NDA_v3_20 Oct 2020.docx

SOFTWARE USE, DISTRIBUTION AND NON-DISCLOSURE AGREEMENT (NDA)

(For United States Government Contractors)

DISTRIBUTION STATEMENT- The NGLD-M (“Next Generation Load Device – Medium”) technical data, software, and associated software documentation (hereinafter “NGLD-M Software”) is authorized for distribution in accordance with Distribution Statement D (DoD Instruction 5230.24, October 15, 2018). “DISTRIBUTION STATEMENT D: Distribution authorized to Department of Defense and U.S. DoD contractors only Critical Technology, Export Controlled (April 2019). Other requests for this document shall be referred to Program Executive Office Command, Control, Communications - Tactical, Project Manager Tactical Radios, 6560 Surveillance Loop, Building 6007, Aberdeen Proving Ground, MD 21005.”

WARNING - This Agreement refers to technical data, the export of which is restricted by the Arms Export Control Act (Title 22, U.S.C., Sec 2751, and et seq.) or the Export Administration Act of 1979 (Title 50, U.S.C., and App. 2401 et seq.) as amended. Violations of these export laws are subject to severe criminal penalties. Disseminate the NGLD-M Software in accordance with provisions of DoD Directive 5230.25.

This Agreement is entered into this _____ day of __________, by and between the United States Government, as represented by Army Contracting Command – APG; and ___________________________________________, with its principal place of business at _________________________________________________ (hereinafter referred to as “Recipient”).

WHEREAS, for the purpose of preparing a proposal in response to Solicitation No. W15P7T-21-R-0001 and subject to approval at the sole discretion of Program Executive Office Command, Control, Communications - Tactical, Project Manager Tactical Radios (hereinafter referred to as “PM TR”), Recipient will have access to the NGLD-M Software (in source code format, executable code format, and software documentation) supplied and disclosed by PM TR to Recipient for the purpose of preparing a proposal in response to Solicitation No. _____________ (hereinafter “the Solicitation”); and

NOW, THEREFORE, the parties have agreed to the following terms and conditions:

1. Recipient is aware and will ensure that the employees designated to this task agree that the NGLD-M Software is to be considered “FOUO” and shall protect, safeguard and hold the same in confidence, shall not use the NGLD-M Software other than for the purpose of preparing a proposal in response to the Solicitation, and shall disclose it only to those Recipient individuals and organizational elements with a specific need to know. Recipient or the designated employees will not disclose, publish, communicate or otherwise in any form or format reveal any of the NGLD-M Software received from PM TR to any other party whatsoever, including the Recipient’s subcontractors. If the Recipient’s subcontractors need access to the NGLD-M Software, these subcontractors must receive permission from PM TR and must also agree to the terms of the Agreement, before being permitted to access the NGLD-M Software. In addition, the Recipient agrees to maintain or adopt operating procedures and physical security measures designed to protect data from inadvertent release or disclosure.

2. The NGLD-M Software in tangible form received from PM TR includes copyright notices and restrictive markings (prescribed under DFARS 252.227-7014). Aforementioned tangible NGLD-M Software shall not be duplicated by Recipient except for purposes of preparing a proposal in response to the Solicitation. Upon the request of PM TR, Recipient shall destroy all NGLD-M Software received in written or tangible form, including copies, or reproductions or other media containing such NGLD-M Software, within seven (7) days of such request; if the NGLD-M Software is in a tangible format, the NGLD-M Software must be destroyed by shredding or tearing to make unreadable. Recipient’s Security Officer shall provide a written certificate to PM TR regarding destruction within seven (7) days thereafter.

3. The NGLD-M Software shall not be re-distributed, sold, or used for commercial purposes by Recipient, in whole or in part, without the expressed permission of the PM TR except as set forth herein. Recipient may copy the NGLD-M Software for use within the recipient’s organization, for the purpose stated within this Agreement. A copy of this Agreement shall be provided and maintained with each authorized copy of the NGLD-M Software and appropriate personnel shall be briefed regarding the Agreement requirements. Recipient shall be responsible for compliance with this Agreement related to all authorized copies.

4. The NGLD-M Software will be used only in accordance with this Distribution Agreement. Recipient agrees that it will not reverse engineer the NGLD-M Software. The permitted purpose for using the software is limited to preparing a proposal in response to the Solicitation. The NGLD-M Software and data will not be modified, adapted, or otherwise altered, except as required for the prior approved purpose.

5. The NGLD-M Software may be distributed with software from other DoD and DoD Contracting agencies. Additional restrictions may apply to software not owned or controlled by PM TR (see documentation provided with the software).

6. Recipient will, and will ensure that its contractor (and its sub-contractors) will, destroy all NGLD-M Software no later than seven (7) days from the date of contract award (for the contract resulting from the Solicitation). If the NGLD-M Software is in a tangible format, the NGLD-M Software must be destroyed by shredding or tearing to make unreadable. Recipient’s Security Officer shall provide a written certificate to PM TR regarding destruction within seven (7) days thereafter. A failure to destroy the NGLD-M Software will constitute a breach of this agreement and may result in prosecution of the U.S. Government’s rights in the applicable forum.

7. PM TR may revoke permission or hereinafter make permission subject to additional conditions as dictated by Government interests.

8. The individual who will act as recipient of the NGLD-M Software on behalf of Recipient must be a U.S. citizen.

9. Recipient acknowledges its responsibilities under the U.S. export control laws and regulations and agrees that it will not disseminate any export-controlled material subject to this Agreement in a manner that would violate applicable export control laws and regulations.

10. Unless dissemination is permitted herein and by applicable regulations, Recipient will not provide access to the NGLD-M Software other than to its employees or persons acting on its behalf without permission of the controlling DoD office.

11. Term: The obligations (including, but not limited to, the confidentiality and non-disclosure obligations) of Recipient herein shall be effective in perpetuity. Further, the obligation not to disclose shall not be affected by bankruptcy, receivership, assignment, attachment or seizure procedures, whether initiated by or against any party to this Agreement.

12. Other Information: Recipient shall have no obligation under this Agreement with respect to the NGLD-M Software which is or becomes publicly available without breach of this Agreement by Recipient; or is rightfully received by Recipient without Proprietary/Confidentiality obligations; provided, however, such NGLD-M Software shall not be disclosed until thirty (30) days after written notice of intent to disclose is given to PM TR along with the asserted grounds for disclosure.

13. No Publicity: Recipient agrees not to disclose its participation in this undertaking, the existence or terms and conditions of this Agreement, or the fact that Recipient is a party hereto, unless required to do so as a result of a legal proceeding or appropriate court order, or by separate written agreement executed by all parties herein. Recipient shall have no duty to keep confidential NGLD-M Software when Recipient is required by law, judicial action, government department or agency or other regulatory authority to disclose the NGLD-M Software, in which event Recipient shall promptly notify PM TR in writing prior to making any such disclosure in order to facilitate PM TR seeking a protective order or other appropriate remedy from the proper authority. Recipient agrees to cooperate with PM TR in seeking such order or remedy. Recipient agrees that if PM TR is not successful in precluding the requesting legal body from requiring the disclosure, it will furnish only that portion of the NGLD-M Software requested. For the avoidance of doubt, the provisions of this Clause shall survive any termination of the Agreement.

14. Liability: Recipient expressly agrees, to the extent authorized under the constitution and laws of the United States of America, to waive any and all claims for damages, or other relief, resulting from the negligent acts of Recipient and their employees in the performance of any of the terms or conditions of those obligations enumerated herein.

15. No License: Nothing contained herein shall be construed as implying, granting or conferring any rights by license or otherwise in any NGLD-M Software disclosed or obtained pursuant to the terms and conditions of this Agreement.

16. Governing Law and Equitable Relief: This Agreement shall be governed and construed in accordance with the laws of the United States and the parties herein consent to the exclusive jurisdiction of the U.S. federal courts for any dispute arising out of this Agreement. Recipient agrees that in the event of any breach or threatened breach by Recipient of the terms and conditions of this Agreement, any party may obtain, in addition to any other legal remedies which may be available, such equitable relief as may be necessary to protect any party against such breach or threatened breach.

17. Final Agreement: This Agreement constitutes the entire Agreement between the parties and terminates and supersedes all prior understandings or agreements on the subject matter hereof. Only a further writing that is duly executed by all parties may modify this Agreement.

18. No Assignment: Recipient may not assign this Agreement or any interest herein without the express prior written consent of all parties to this Agreement.

19. Severability: If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.

20. Notices: Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services.

If to PM TR:

ATTN: SFAE-CCC-TRC

Project Manager Tactical Radios 6560 Surveillance Loop, Bldg 6007 Aberdeen Proving Ground, MD 21005

If to Recipient:

21. No Implied Waiver: Any party’s failure to insist in any one or more instances upon strict performance by the any other party of any of the terms of this Agreement shall not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof.

22. The NGLD-M Software shall be handled and maintained in accordance with For Official Use Only, Export Control and AR 380-5 requirements.

23. In order to retain or to be eligible to receive the NGLD-M Software, Recipient may not 1) be debarred, suspended or otherwise determined ineligible by any agency of the U.S. Government to perform on U.S. Government contracts; 2) have been convicted of export control law violations; 3) or have been disqualified under the provisions of DoD Directive 5230.25.

24. In order to operate and maintain the NGLD-M Software in accordance with the security accreditation, the recipient must also acknowledge, agree and adhere to all information security related procedures and controls. Specific instances of these information assurance related controls are:

a. Personnel Security – Users / Receiving organizations are responsible for ensuring personnel with access to the NGLD-M Software have the appropriate security clearances and need to know for the classification level of the information being processed. Users are responsible for controlling access to the system and assigning accounts to authorized individuals.

b. Data Marking – Users / Receiving organizations are responsible for correctly marking all documents and media with the correct classification labels in accordance with Classified National Security Information, Executive Order 13526. If the NGLD-M Software disclosed pursuant to this Agreement is reproduced in whole or in part, the reproduction shall carry the same marking as that which appears on the original.

c. Enclave Boundaries – Users / Receiving organizations are responsible for implementing boundary protection mechanisms in accordance with DoD and Army Information Assurance policies and regulations.

d. Interconnections – If the NGLD-M Software is used in an environment with interconnections to other systems, the user / receiving organization is responsible for establishing an agreement between the Designated Approval Authorities (DAAs) of all systems involved.

e. Audit Data Management – The Users / Receiving organization is responsible for developing and executing policies and procedures to back-up, restore and analyze audit data. Any security vulnerabilities detected with the NGLD-M Software will be reported by the user to PM TR.

f. Physical and Environmental – The User / Receiving organization is responsible for physical and environmental security mechanisms as required by DoD and Army Information Assurance policies and regulations, including the following:

i. Cleaning and sanitizing media

ii. Emergency lighting

iii. Fire detection, inspection, and suppression

iv. Temperature and humidity controls

v. Master power switch and voltage regulation

vi. Physical protection

vii. Workplace security procedures

viii. Storage and destruction

ix. Environmental security testing

x. Visitor and maintenance personnel control

25. Headings: Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or content.

26. Effective Date: This Agreement becomes effective upon the date of the last approving signature below and will remain in effect indefinitely until superseded, rescinded, or modified by written, mutual agreement of both parties.

27. Acceptance of Agreement: In witness whereof, the parties have caused this Agreement to be executed by their duly authorized representatives as follows:

ACKNOWLEDGMENT SHEET- CONTRACTOR USERS

(Required for Contractor Users)

REQUESTING ORGANIZATION AUTHORIZED POINT OF CONTACT (POC):

NAME (Print): __________________________________________ DATE: _____________________ TELEPHONE: __________________________________________ E-MAIL:_____________________ ORGANIZATION: _______________________________________________________________________

ADDRESS: _______________________________________________________________________

I ACKNOWLEDGE THAT I UNDERSTAND AND AGREE TO COMPLY WITH THE TERMS AND CONDITIONS OF THE ATTACHED NON-DISCLOSURE AGREEMENT. I UNDERSTAND THAT PROCESSING OR TRANSMITTING THIS EXPORT CONTROLLED MATERIAL VIA ANY PUBLIC ELECTRONIC MEDIUM IS STRICTLY PROHIBITED.

Name: ___________________________________ SIGNATURE: __________________________________

Name: ___________________________________ SIGNATURE: __________________________________

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