Base Agreement_RFI DRAFT.pdf

DRAFT

Other Transaction Authority

AGREEMENT BETWEEN

THE UNITED STATES GOVERNMENT

REPRESENTED BY

Naval Undersea Warfare Center

1176 Howell St.

Bldg 1320/204

Newport, RI 02841

AND

COMPANY NAME

STREET ADDRESS

CITY, STATE ZIP CODE

Agreement No.: N66604-FY-9-XXXX Total Amount of the Agreement: $

Authority: 10 U.S.C. § 4022

Contents

ARTICLE I: SCOPE OF THE AGREEMENT

ARTICLE II: STATEMENT OF WORK (SOW)

ARTICLE III: SECURITY REQUIREMENTS

ARTICLE IV: TERM

ARTICLE V: AGREEMENT ADMINISTRATION

ARTICLE VI: INSPECTION AND ACCEPTANCE

ARTICLE VII: SHIPPING

ARTICLE VIII: OBLIGATION AND PAYMENT

ARTICLE IX: ALLOWABLE COSTS

ARTICLE X: INCREMENTAL FUNDING

ARTICLE XI: ACCEPTABLE COST SHARE

ARTICLE XII: AGREEMENT CLOSE-OUT

ARTICLE XIII: REGISTRATION IN THE SYSTEM FOR AWARD MANAGEMENT

ARTICLE XIV: COMPLIANCE WITH LAWS UNIQUE TO GOVERNMENT PROCUREMENT

ARTICLE XV: DISCLOSURE OF INFORMATION

ARTICLE XVI: CHANGES

ARTICLE XVII: ORGANIZATIONAL CONFLICTS OF INTEREST

ARTICLE XVIII: LIMITATION OF LIABILITY

ARTICLE XIX: DUTY FREE

ARTICLE XX: CONTRACTOR COMPLIANCE WITH THE CYBERSECURITY MATURITY MODEL

ARTICLE XXI: DISPUTES

ARTICLE XXII: CONFIDENTIAL INFORMATION

ARTICLE XXIII: PUBLICATION AND ACADEMIC RIGHTS

ARTICLE XXIV: DATA RIGHTS

ARTICLE XXV: PATENT RIGHTS

ARTICLE XXVI: FOREIGN ACCESS TO TECHNOLOGY AND EXPORT CONTROL

ARTICLE XXVII: TITLE AND DISPOSITION OF PROPERTY

ARTICLE XXVIII: GOVERNING LAW AND JURISDICTION

ARTICLE XXIX: SAFEGUARDING COVERED DEFENSE INFORMATION AND CYBER INCIDENT

REPORTING 30

ARTICLE XXX: SOFTWARE LICENSE

ARTICLE XXXI: INDEMNITY

ARTICLE XXXII: ASSIGNMENT AND TRANSFER

ARTICLE XXXIII: FORCE MAJEURE

ARTICLE XXXIV: ORDER OF PRECEDENCE

ARTICLE XXXV: EXECUTION

ARTICLE I: SCOPE OF THE AGREEMENT

A. Background

The Naval Undersea Warfare Center (NUWC) is responsible for delivering undersea warfare (USW) capability that enables decisive warfighting advantage to the Fleet. NUWC is expanding Tactical Oceanography (TAC-O) prototyping efforts under the Commercial Solutions Opening (CSO) to demonstrate its military effectiveness as described in paragraph C of this article. This Other Transaction Agreement (OTA) is awarded based upon the prototype project proposed by INSERT COMPANY NAME, hereinafter referred to as “The Company” in response to NUWC’s Commercial Solutions Offering (CSO) under the INSERT AREA OF INTEREST NAME.

B. Definitions

“Agreement” or "OTA" refers to the Other Transaction Agreement, as authorized under 10 U.S.C. 4022, between the Government and INSERT COMPANY NAME Agreement No. N66604-FY-9-XXXX.

“Agreements Officer (AO)” is the warranted Agreements Officer authorized to sign the final agreement for the Government.

“Agreements Officer’s Representative (AOR)” is the individual designated by the Government on a per project basis to monitor all technical aspects and approve invoices; the AOR shall only assist in agreement administration of the specific project to the extent expressly delegated such administration authority in writing in the Project Agreement by the responsible Agreements Officer.

“Contracting Activity” means an element of an agency designated by the agency head and delegated broad authority regarding acquisition functions. It also means elements or another agency designated by the director of a defense agency which has been delegated contracting authority through its agency charter.

“Date of Completion” is the date on which all work is completed or the date on which the period of performance ends.

“Development” means the systematic use, under whatever name, of scientific and technical knowledge in the design, development, test, or evaluation of an existing or potential new technology, product or service (or of an improvement in an existing technology, product or service) for the purpose of meeting specific performance requirements or objectives. Development includes the research functions of design engineering, prototyping, and engineering testing.

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

“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.

“Other Transactions Agreement (OTA)” is the term commonly used to refer to the 10 USC § 4022 authority to enter into transactions other than contracts, grants or cooperative agreements. The Department of Defense (DoD) currently has authority to make awards that are directly relevant to enhancing the mission effectiveness of military personnel and the supporting platforms, systems, components, or materials proposed to be acquired or developed by the Department of Defense, or to improvement of platforms, systems, components, or materials in use by the armed forces. OTAs are acquisition instruments that generally are not subject to the federal laws and regulations governing procurement (FAR based) contracts. As such, they are not required to comply with the Federal Acquisition Regulation (FAR), its supplements (i.e. DFARS) or laws that are limited in applicability to procurement contracts.

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

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

“Period of Performance” refers to the duration of the prototype project from the award effective date until final payment tasking is accomplished determined in the Statement of Work (SOW)

C. Follow-on Production

Follow-on production efforts may be executed under this agreement in accordance with 10 U.S.C. § 4022.

ARTICLE II: STATEMENT OF WORK (SOW)

INSERT AGREED TO SCOPE OF WORK HERE. SCOPE TO INCLUDE

DELIVERABLES/REPORTS.

ARTICLE III: SECURITY REQUIREMENTS

All Contractor personnel shall adhere to the Security provisions of 32 CFR Part 117 – National Industrial Security Program Operating Manual (NISPOM) and the security requirements of the attached DD254 (if included). While performing work at a Government Facility, Contractor personnel shall comply with the security regulations of the host facility. Applicable FAR, DFARS, NMCARS clauses, and NAVSEA text shall be adhered to in the performance of this contract. Security incidents shall be promptly reported through the companies Facility Security Officer (FSO), to the Contracting Officer’s Representative (COR), Technical Point of Contact (TPOC), and the Cognizant Security Office to NUWCDIVNPT Security.

Controlled Unclassified Information (CUI) including Legacy FOUO and Covered Defense Information (meeting the definition of 48 CFR 252.204–7012(a)) generated and/or provided under this contract shall be marked and safeguarded as specified in DoD Instruction 5200.48, CUI available at:

https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/520048p.PDF. Any product containing Covered Defense Information shall be assigned a distribution statement (distribution statements B through F) in accordance with DoDI 5230.24 (Distribution Statements on Technical Documents); and DoDI 5230.24, Enclosure 3 Procedures, available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/523024p.pdf

INFORMATION SECURITY: If the work is performed at the Contractor's facility, the Contractor shall implement and maintain security procedures and controls to prevent unauthorized disclosure of classified information and controlled unclassified information (CUI) and to control distribution of CUI in accordance with National Industrial Security Program Operating Manual (NISPOM) codifying 32 CFR Part 117, NISPOM Rule, and SECNAV M-5510.36B. If the work is performed at the Government's facility, the Contractor shall comply with facility policy.

CUI INCIDENT REPORTING AND RESPONSE: The Contractor shall promptly report any unauthorized, inadvertent, or illegal release or disclosure of CUI to the Contracting Officer’s Representative / Technical Point of Contact (TPOC), Procuring Contracting Officer, and the Security Office. Contractor personnel shall coordinate this effort through the relevant industry site FSO.

PUBLIC RELEASE: Any controlled unclassified information pertaining to this contract shall not be released for public dissemination, including posting to any social media sites such as Facebook or Twitter, unless it has been approved for public release by appropriate U.S. Government authority. Proposed public releases shall be submitted for approval prior to release through the appropriate U.S. Government Office.

ARTICLE IV: TERM

A. The Term of this Agreement

This OTA will be available for a period as annotated in the SOW. Provisions of this Agreement, which, by their express terms or by necessary implication, apply for periods of time other than specified in Article II herein, shall be given effect, notwithstanding this Article.

B. Early Termination of Agreement Provision

Subject to a reasonable determination that the program, or a project funded under the program, will not produce beneficial results commensurate with the expenditure of resources, the Government may terminate performance of work under this OTA, in whole or in part, if the AO determines that a termination is in the Government’s interest. The AO shall terminate by delivering to the COMPANY a Notice of Termination specifying the extent of termination and the effective date.

After receipt of a Notice of Termination, and except as directed by the AO, the COMPANY shall immediately proceed with the following obligations, regardless of any delay in determining or adjusting any amounts due:

(1) Stop work and direct it subcontractors/vendors/suppliers/partners to stop work as specified in the notice.

(2) Place no further orders for materials, services, or facilities, except as necessary to complete ongoing tasking commensurate with the SOW.

(3) Terminate all orders to the extent they relate to the work terminated.

(4) Assign to the Government, as directed by the AO, all right, title, and interest of the COMPANY under the orders terminated, in which case the Government shall have the right to settle or to pay any termination settlement proposal arising out of those terminations.

(5) With approval or ratification to the extent required by the AO, settle all outstanding liabilities and termination settlement proposals arising from the termination of orders; the approval or ratification will be final for purposes of this clause.

(6) As directed by the AO, transfer title to the following, where applicable, and deliver to the Government --

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

(ii) The completed or partially completed plans, drawings, information, and other property that, if the order had been completed, would have been required to be furnished to the Government.

(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)(i) and (ii).

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

In the event of a termination of this Agreement, the Government shall have patent rights as described in Article XXV, ‘Patent Rights’, and rights in Data as described in Article VIII, ‘Data Rights’. Failure of the Parties to agree to an equitable adjustment shall be resolved pursuant to Article V, Disputes.

Nothing in this section shall be construed as a limitation of the rights of either party in the event of a breach of contract or default by the other party.

C. Stop Work Clause

As directed by the AO, the COMPANY shall stop all, or any part, of the work called for under this Agreement for a period as determined at time of written order is delivered, and for any further period to which the parties may agree. The order shall be specifically identified as a stop-work order issued under this Article. Upon receipt of the order, the COMPANY shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Within the prescribed period as determined in the stop-work is delivered, or within any extension of that period to which the parties shall have agreed, the AO shall either:

(a) Cancel the stop-work order; or

(b) Terminate the work covered 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, and 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 cost properly allocable to, the performance of any part of this 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 this Agreement.

ARTICLE V: AGREEMENT ADMINISTRATION

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

NUWCDIVNPT:

INSERT NAME

Agreements Officer

Naval Undersea Warfare Center 1176 Howell St.

Bldg 1320/204 Newport, RI 02841 Phone E-mail

INSERT NAME

Agreements Specialist

Naval Undersea Warfare Center 1176 Howell St.

Bldg 1320/204 Newport, RI 02841 Phone E-mail

AOR: NAME

Agreements Officer Representative Organization Office Address

Phone E-mail

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

Cognizant Defense Contract Management Agency Office:

DCMA OFFICE

STREET ADDRESS

CITY, STATE ZIP+4

Cognizant Defense Finance and Accounting Service Office:

DFAS OFFICE

STREET ADDRESS

CITY, STATE ZIP+4

ARTICLE VI: INSPECTION AND ACCEPTANCE

(a) The Government has the right to inspect and test all materials furnished and services performed under this agreement, to the extent practicable at all places and times, including the period of performance, and in any event before acceptance. The Government may also inspect the plant or plants of the COMPANY or any subagreement holder engaged in prototype project performance. The Government will perform inspections and tests in a manner that will not unduly delay the work.

(b) If the Government performs inspection or tests on the premises of the COMPANY or subagreement holder engaged in a prototype project performance, the COMPANY shall furnish and shall require subagreement holders to furnish all reasonable facilities and assistance for the safe and convenient performance of these duties.

(c) Unless otherwise specified in project agreements, the Government will accept or reject deliveries as promptly as practicable after delivery.

(d) If the COMPANY fails to proceed with reasonable promptness to perform required replacement or correction, the Government may terminate the prototype project.

(e) This clause applies in the same manner and to the same extent to corrected or replacement materials or services as to materials and services originally delivered under the project agreement.

ARTICLE VII: SHIPPING

(a) Specific shipping instructions will be included in project agreements executed under this agreement.

(b) All deliveries shall be FOB Destination, unless otherwise stated in project agreements.

(c) Risk of loss or damage to the supplies provided under prototype projects executed under this agreement shall remain with the COMPANY executing said project until, and shall pass to the Government upon:

(1) Delivery of the supplies to a carrier, if transportation is f.o.b. origin; or

(2) Delivery of the supplies to the Government at the destination specified in the contract, if transportation is f.o.b. destination.

(d) Unless otherwise specified in project agreements, all hardware shall be packaged in accordance with the COMPANY’s commercial best practice to ensure undamaged arrival at destination. At the time of delivery, the COMPANY shall prepare and furnish to the Government a receiving report in Wide Area Work Flow (WAWF).

ARTICLE VIII: OBLIGATION AND PAYMENT

A. Project Payments:

See Statement of Work

B. Accounting System Requirements:

Relevant to all cost share and cost reimbursement arrangements: 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 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.

C. Payments:

(a) The Government’s liability to make payments is limited only to those funds obligated under project agreements executed under this agreement. The Government may incrementally fund projects in accordance with the Incremental Funding clause. If a modification becomes necessary in performance of project agreements the Agreements Officer shall establish and execute a revised payment consistent with the current project plan.

(b) The COMPANY shall submit invoices for processing according to the milestone payment schedule via the Procurement Integrated Enterprise Environment application of the Wide Area Work Flow (WAWF) system, according to the guidelines set forth below. Payments will be made by Defense Finance and Accounting Service, INSERT COGNIZANT DFAS OFFICE INFORMATION

(c) All schedules of Payments for project agreements will include the applicable negotiated Line Items for each selected and funded prototype. For fixed price prototype projects payments will be based on the completed tasking performed by the COMPANY, and for cost type prototype projects, payments will be based on actual costs incurred.

(d) Any costs incurred prior to the execution of any project agreement will be the sole responsibility of the COMPANY and will not be used as the basis of a claim against or construed as an obligation to the Government.

D. Payment Terms:

Payment terms are Net 30 days from receipt of an acceptable invoice from the COMPANY. Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C. 3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR part 1315.

(a) Definitions. As used in this clause—

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

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

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

“Payment request” and “receiving report” are defined in the clause at 252.232-7003, Electronic Submission of Payment Requests and Receiving Reports.

(b) Electronic invoicing. The WAWF system provides the method to electronically process vendor payment requests and receiving reports, as authorized by Defense Federal Acquisition Regulation Supplement (DFARS) 252.232-7003, Electronic Submission of Payment Requests and Receiving Reports.

(c) WAWF access. To access WAWF, the Contractor shall—

(1) Have a designated electronic business point of contact in the System for Award Management at https://www.sam.gov; and

(2) Be registered to use WAWF at https://wawf.eb.mil/ following the step-by-step procedures for self-registration available at this web site.

(d) WAWF training. The Contractor 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/

(e) WAWF methods of document submission. Document submissions may be via web entry, Electronic Data Interchange, or File Transfer Protocol.

(f) WAWF payment instructions. The Contractor shall use the following information when submitting payment requests and receiving reports in WAWF for this contract or task or delivery order:

(1) Document type. The Contractor shall submit payment requests using the following document type(s):

(i) For cost-type line items, including labor-hour or time-and-materials, submit a cost voucher.

(ii) For fixed price line items—

(A) That require shipment of a deliverable, submit the invoice and receiving report specified by the Contracting Officer.

(Contracting Officer: Insert applicable invoice and receiving report document type(s) for fixed price line items that require shipment of a deliverable.)

(B) For services that do not require shipment of a deliverable, submit either the Invoice 2in1, which meets the requirements for the invoice and receiving report, or the applicable invoice and receiving report, as specified by the Contracting Officer.

(Contracting Officer: Insert either “Invoice 2in1” or the applicable invoice and receiving report document type(s) for fixed price line items for services.

(iii) For customary progress payments based on costs incurred, submit a progress payment request.

(iv) For performance based payments, submit a performance based payment request.

(v) For commercial financing, submit a commercial financing request.

(2) Fast Pay requests are only permitted when Federal Acquisition Regulation (FAR) 52.213-1 is included in the contract.

(3) Document routing. The Contractor shall use the information in the Routing Data Table below only to fill in applicable fields in WAWF when creating payment requests and receiving reports in the system.

Routing Data Table

Field Name in WAWF Data to be entered in

WAWF

Pay Official DoDAAC HQ0338

Issue By DoDAAC N66604

Admin DoDAAC TBD

Inspect By DoDAAC N66604

Ship To Code N66604

Ship From N/A

Mark for Code N/A

Service Approver (DoDAAC) N/A

Service Acceptor (DoDAAC) N/A

Accept at Other DoDAAC N/A

LPO DoDAAC N/A

DCAA Auditor DoDAAC N/A

Other DoDAAC(s) N/A

(4) Payment request. The Contractor shall ensure a payment request includes documentation appropriate to the type of payment request in accordance with the payment clause, contract financing clause, or Federal Acquisition Regulation 52.216-7, Allowable Cost and Payment, as applicable.

(5) Receiving report. The Contractor shall ensure a receiving report meets the requirements of DFARS Appendix F.

(g) WAWF point of contact.

(1) The Contractor may obtain clarification regarding invoicing in WAWF from the following contracting activity’s WAWF point of contact.

N/A

(2) Contact the WAWF helpdesk at 866-618-5988, if assistance is needed.

NOTE: WAWF Email Notification- The contractor shall enter the email address identified below in the “Send additional email notifications” field of WAWF once a document is submitted in the system.

elizabeth.v.miller3.civ@us.navy.mil

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

H. Comptroller Access Financial Records and Reports (the following is applicable only in the event the award is subject to ‘cost sharing’ and the award is over $5,000,000.00). 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. COMPANY relevant financial records are 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 expiration of the term of the Agreement. The Comptroller General, AO or designee shall have direct access to sufficient records and information of any party to this agreement or any entity that participates in the performance of this agreement to ensure full accountability for all funding under this Agreement. Such audit, examination or access shall be performed during business hours on business days upon prior written notice and shall be subject to the security requirements of the audited party. Any audit required during the course of the program may be conducted by the Comptroller General or other Government Official using Government auditors or, at the request of COMPANY's external CPA accounting firm at the expense of the

COMPANY.

ARTICLE IX: ALLOWABLE COSTS

(a) Federal funds and any cost sharing funds are to be used only for costs that a reasonable and prudent person would incur in carrying out the project agreement.

(b) No project award will be made under this agreement on a cost reimbursement basis unless the COMPANY performing under the project agreement has an accounting system that:

(1) is capable of identifying and segregating costs to individual agreements

(2) provides for an equitable allocation of indirect costs.

(c) When a COMPANY performing under a project agreement has a system capable of identifying the amounts/costs, the COMPANY will identify the basis for determining actual costs.

(d) If a COMPANY performing under a project agreement is subject to Contract Accounting Standards on other agreements or contracts, then the allowable costs for project awards executed under this agreement on a cost reimbursement basis are only allowable for reimbursement subject to the cost principles of Federal Acquisition Regulation (FAR) Part 31, Defense Federal Acquisition Regulation Supplement (DFARS) Part 231, and Navy and Marine Corps Acquisition Regulation Supplement (NMCARS) Part 5231, with all mention of Contractor understood to mean the COMPANY and all mention of Contracting Officer understood to mean Agreements Officer.

ARTICLE X: INCREMENTAL FUNDING

If a prototype project executed under this agreement is incrementally funded, then the Government is not obligated to reimburse the COMPANY for costs incurred in excess of the total amount allotted by the Government to the prototype project and the COMPANY is not obligated to continue performance on the prototype project (including actions under the Termination clause of this agreement) or otherwise incur costs in excess of --

(a) The amount then allotted to the prototype project by the Government or;

(b) If the prototype project involves cost-sharing, the amount then allotted by the Government to the prototype project plus the COMPANY’s corresponding share, until the Contracting Officer notifies the COMPANY in writing that the amount allotted by the Government has been increased and specifies an increased amount, which shall then constitute the total amount allotted by the Government to the prototype project.

ARTICLE XI: ACCEPTABLE COST SHARE

An acceptable Cost Share must be verifiable from financial records and must not be included as a cost sharing contribution for any other Federal Government contract vehicle. Cost Share cannot be paid by the Federal Government under another contract vehicle, except that Independent Research and Development (IR&D) costs that otherwise meet the Cost Share requirements of 10 U.S.C. § 4022 are allowable subject to the cost principles of FAR 31.205-18 applicable to IR&D costs.

RELEVANT TO ALL COST SHARE AND COST REIMBURSEMENT ARRANGEMENTS: In addition to any other financial reports provided or required, the COMPANY shall notify the AO immediately if any cost share contribution is not made as required.

ARTICLE XII: AGREEMENT CLOSE-OUT

(a) The COMPANY shall, at least 60 days prior to the expiration date of the prototype project award, contact the Agreements Officer to establish:

(1) All steps needed to close out the award;

(2) A schedule for completing those steps.

(b) The following provisions shall apply to the closeout:

(1) The Agreements Officer and Payment Office shall expedite completion of steps needed to close out awards and make prompt final payments to COMPANY.

(2) The COMPANY shall account for any real property and personal property acquired with Federal funds or received from the Federal Government in accordance with the terms of the agreement.

(c) The closeout of this Agreement does not affect any of the following:

(1) Any specified audit requirements.

(2) Any specified property management requirements.

(3) Records retention as required by the agreement.

(d) After closeout of this Agreement, a responsibility or requirement created under this Agreement may be modified or ended in whole or in part with the consent of the Agreements Officer, including those for property management as applicable, are considered and provisions are made for continuing responsibilities of the COMPANY, as appropriate.

ARTICLE XIII: FOLLOW-ON PRODUCTION

Follow-on production efforts may be executed under this agreement in accordance with 10 U.S.C. § 4022.

ARTICLE XIV: REGISTRATION IN THE SYSTEM FOR AWARD MANAGEMENT

The COMPANY shall hold a current, valid registration in the System for Award Management (SAM) throughout the life of this Agreement.

ARTICLE XV: COMPLIANCE WITH LAWS UNIQUE TO GOVERNMENT

PROCUREMENT

The COMPANY agrees to comply with 31 U.S.C. § 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. § 431 relating to officials not to benefit; 40 U.S.C. chapter 37, Contract Work Hours and Safety Standards; 41 U.S.C. chapter 87, Kickbacks; 41 U.S.C. § 4712 and 10 U.S.C. § 2409 relating to whistleblower protections; 49

U.S.C. § 40118, Fly American; 41 U.S.C. chapter 21 relating to procurement integrity; and 22

U.S.C. Chapter 78 relating to Combating Trafficking in Persons.

ARTICLE XVI: DISCLOSURE OF INFORMATION

(a) COMPANYs shall not release to anyone outside the COMPANY's organization any unclassified information, regardless of medium (e.g., film, tape, document), pertaining to any part of any project agreement or any program related to a project agreement, unless—

(1) The Agreements Officer has given prior written approval;

(2) The information is otherwise in the public domain before the date of release; or

(3) The information results from or arises during the performance of a project that involves no covered defense information (as defined in the clause at DFARS 252.204-7012) and has been scoped and negotiated by the contracting activity with the contractor and research performer and determined in writing by the contracting officer to be fundamental research (which by definition cannot involve any covered defense information), in accordance with National Security Decision Directive 189, National Policy on the Transfer of Scientific, Technical and Engineering Information, in effect on the date of contract award and the Under Secretary of Defense (Acquisition, Technology, and Logistics) memoranda on Fundamental Research, dated May 24, 2010, and on Contracted Fundamental Research, dated June 26, 2008 (available at DFARS PGI 204.4).

(b) Requests for approval under paragraph (a)(1) shall identify the specific information to be released, the medium to be used, and the purpose for the release. The COMPANY shall submit its request to the Agreements Officer at least 10 business days before the proposed date for release.

(c) COMPANYs agree to include a similar requirement, including this paragraph (c), in each subagreement under any project agreement. Subagreement holders shall submit requests for authorization to release through the COMPANY to the Agreements Officer.

ARTICLE XVII: CHANGES

Changes in the terms and conditions of this agreement or any prototype projects executed under this Agreement, except for minor or administrative corrections, may only be made by written agreement between the COMPANY and the Agreements Officer.

ARTICLE XVIII: ORGANIZATIONAL CONFLICTS OF INTEREST

(a) Throughout performance, the COMPANY shall monitor all potential conflicts of interest, to include conflicts between its members and the contractors currently developing for and operating the targeted prototype or information systems.

(b) The COMPANY shall ensure prototype-level performance does not conflict with system development or enhancement being performed under other agreements or contracts.

(c) The COMPANY shall immediately report all potential conflicts of interest to the Government.

All white papers and proposals will address potential conflicts of interest and any proposed mitigation. The COMPANY agrees to include in all subagreements a clause requiring all subagreement holders to report all potential or real Organizational Conflict of Interests to the Government.

(d) The Government has the right to limit involvement under this Agreement or other action to mitigate Organizational Conflicts of Interest. In the event the COMPANY believes that the OCI can be mitigated, the COMPANY shall submit to the Agreements Officer an OCI mitigation plan.

ARTICLE XIX: LIMITATION OF LIABILITY

(a) With regard to the activities undertaken pursuant to this Agreement, no Party shall make any claim against the other, employees of the other, the others’ related entities (e.g. contractors, subcontractors), or employees of the others’ related entities for any injury to or death of its own employees or employees of its related entities, or for damage to or loss of its own property or that of its related entities, whether such injury, death, damage or loss arises through negligence or otherwise, except in the case of willful misconduct. .

(b) The Parties shall not be liable to each other for consequential, punitive, special and incidental damages or other indirect damages, whether arising in contract (including warranty), tort (whether or not arising from the negligence of a Party) or otherwise, except to the extent such damages are caused by a Party's willful misconduct.

(c) In no event shall the liability of the COMPANY exceed the funding received for their performance of this Agreement.

ARTICLE XX: DUTY FREE

DFARS Clause 252.225-7013 Duty-Free Entry is hereby incorporated by reference in its entirety.

ARTICLE XXI: CONTRACTOR COMPLIANCE WITH THE CYBERSECURITY

MATURITY MODEL

DFARS Clause 252.204-7021 Contractor Compliance With the Cybersecurity Maturity Model Certification Level Requirements is hereby incorporated by reference in its entirety

ARTICLE XXII: DISPUTES

A. General

The Parties shall communicate with one another in good faith and in a timely and cooperative manner when raising issues under this Article.

B. Dispute Resolution Procedures

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, and, whether or not involving an alleged breach of this Agreement, may be raised only under this Article.

Whenever disputes, disagreements, or misunderstandings arise, the Parties shall attempt to resolve the issue(s) involved by discussion and mutual agreement as soon as practicable. In no event shall a dispute, disagreement or misunderstanding which arose more than three (3) months prior to the notification made under this article constitute the basis for relief under this article unless the Director of Contracting, DIU in the interest of justice waives this requirement.

Failing resolution by mutual agreement, the aggrieved Party shall document the dispute, disagreement, or misunderstanding by notifying the other Party through the cognizant AO in writing documenting the relevant facts, identifying unresolved issues, specifying the clarification or remedy sought, and documenting the rationale as to why the clarification/remedy is appropriate. Within ten (10) working days after providing notice to the other Party, the aggrieved Party may, in writing, request a decision by the Director of Contracting, DIU. The other Party shall submit a written position on the matter(s) in dispute within ten (10) calendar days after being notified that a decision has been requested. The Director of Contracting, DIU, will conduct a review of the matter(s) in dispute and render a decision in writing within ten (10) calendar days of receipt of such position. Any such decision is final and binding, unless a Party shall, within ten (10) calendar days request further review as provided by this article.

If requested within thirty (30) calendar days of the decision by the Director of Contracting, DIU, further review will be conducted by the COMPANY Chief Executive Officer and the DIU 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 Board and the DIU 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.

ARTICLE XXIII: CONFIDENTIAL INFORMATION

A. Definitions

“Disclosing Party” means COMPANY, or their subcontractors 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 of a Disclosing Party which are designated as confidential or as a Trade Secret in writing by such Disclosing Party, whether by letter or by use of an appropriate stamp or legend, prior to or at the same time any such information or materials are disclosed by such Disclosing Party to the Receiving Party. Notwithstanding the foregoing, materials and other information which are orally, visually, or electronically disclosed by a Disclosing Party, or are disclosed in writing without an appropriate letter, stamp, or legend, shall constitute Confidential Information or a Trade Secret if such Disclosing Party, within thirty (30) calendar days after such disclosure, delivers to the Receiving Party a written document or documents describing the material or information and indicating that it is confidential or a Trade Secret, provided that any disclosure of information by the Receiving Party prior to receipt of such notice shall not constitute a breach by the Receiving Party of its obligations under this Paragraph. “Confidential Information” 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, or engineering or otherwise proprietary information, including, but not limited to, patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if:

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

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

B. Exchange of Information:

The Government may from time to time disclose Government Confidential Information to the COMPANY and its subcontractors or suppliers, in connection with a particular project, and the COMPANY and its subcontractors or suppliers, may from time to time disclose information that is a 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 such disclosure.

C. Confidentiality and Authorized Disclosure:

The Receiving Party agrees, to the extent permitted by law, that Confidential Information and Trade Secrets shall remain the property of the Disclosing Party (no one shall disclose unless they have the right to do so), and that, unless otherwise agreed to by the Disclosing Party, Confidential Information and Trade Secrets shall not be disclosed, divulged, or otherwise communicated by it to third parties or used by it for any purposes other than in connection with specified project efforts and the licenses granted in Article XXVI, Patent Rights, and Article XXV, Data Rights, provided that the duty to protect such “Confidential Information” and “Trade Secrets” shall not extend to materials or information that:

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

(b) Are not identified with a suitable notice or legend per Article entitled "Confidential Information" herein,

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

(d) Are or later become part of the public domain through no fault of the Receiving Party,

(e) Are received by the Receiving Party from a third party having no obligation of confidentiality to the Disclosing Party that made the disclosure,

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

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

D. Return of Proprietary Information:

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

E. Term:

Except to the extent covered by and subject to other provisions of this Agreement 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 XXIIII to their respective personnel, agents, partners, team members, subcontractors and suppliers receiving such Confidential Information or Trade Secrets under this OTA.

ARTICLE XXIV: PUBLICATION AND ACADEMIC RIGHTS

A. Use of Information:

Subject to the provisions of Article XXIII, Confidential Information, and Article XXIV, Publication and Academic Rights at paragraph 9.2, 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 such publication or disclosure. The Parties shall have only the right to use, disclose, and exploit any such data and Confidential Information or Trade Secrets in accordance with the rights held by them pursuant to this Agreement. Notwithstanding the above, the Parties shall not be deemed authorized by this paragraph, alone, to disclose any Confidential Information or Trade Secrets of the Government or the COMPANY. The Parties shall provide the opportunity to review, comment, and concur on non-sensitive information disclosed to 3rd parties (e.g. media outlets). Concurrence can be assumed if after seven (7) days the receiving party does not provide objection to the information being disclosed to the 3rd party. In the event the receiving party objects to the disclosing parties disclosure prior to the seven-day period, the parties will agree to work together to develop the information.

B. Classified Research Projects:

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

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

(a) At least 30 days prior to the scheduled release date, COMPANY shall submit to the AO two copies of the information, who will route the information to the AOR and other appropriate parties for review and approval.

(b) 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 AO, for review and comment 30 days prior to formal paper/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 institutions or has authors listed on the paper who are not employees or students of the Academic Research Institution then the procedures in PARAGRAPH (a) ABOVE must be followed.

(c) 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:

“Effort sponsored by the U.S. Government under Other Transaction number N66604-FY- 9-xxxx between the INSERT COMPANY NAME and the Government. The U.S.

Government is authorized to reproduce and distribute reprints for Governmental purposes notwithstanding any copyright notation thereon.”

(d) Parties to this Agreement are also responsible for assuring that every publication of material based on or developed under this project 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 flow down these requirements to its partners and team members, at all tiers.

ARTICLE XXV: DATA RIGHTS

A. Definitions

“Commercial Computer Software” means software developed or regularly used for non-governmental purposes which -

(i) Has been sold, leased, or licensed to the public;

(ii) Has been offered for sale, lease, or license to the public;

(iii) Has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this contract; or

(iv) Satisfies a criterion expressed in paragraph (a)(1) (i), (ii), or (iii) of this clause and would require only minor modification to meet the requirements of this contract.

“Commercial Computer Software License” means the license terms under which Commercial Computer Software is sold or offered for sale, lease or license to the general public.

“Computer Data Base” as used in this Agreement, means a collection of data recorded in a form capable of being processed by a computer. The term does not include computer software.

“Computer program” as used in this Agreement means a set of instructions, rules, or routines in a form that is capable of causing a computer to perform a specific operation or series of operations.

“Computer software” as used in this Agreement means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae and related material that would enable the software to be reproduced, recreated or recompiled. Computer software does not include computer data bases or computer software documentation.

“Computer software documentation” means owner’s manuals, user’s manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.

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

“Form, fit and function data” means technical data that describes the required overall physical, functional and performance characteristics (along with the qualification…