Draft_F-16 Wire Harness Special License Agreement with USG 08252020.doc

SPECIAL LICENSE AGREEMENT

Effective as of the last date of execution written below, LOCKHEED MARTIN CORPORATION, a Maryland corporation, acting by and through Lockheed Martin Aeronautics Company (LM Aero), with offices at One Lockheed Boulevard, Fort Worth, TX 76101 FILLIN \* MERGEFORMAT

FILLIN \* MERGEFORMAT

FILLIN \* MERGEFORMAT , and Hill AFB F-16 SPO, a(n) Federal Agency, Hill AFB F-16 SPO with multiple offices at Hill AFB, 84056 and the contracting office at 6072 Fir Ave., Building 1233, Hill AFB, 84056, agree to the following terms and conditions for the protection, use and disclosure of Proprietary Information. LM Aero and Hill AFB F-16 SPO each a “Party” to this Agreement and, collectively, the “Parties.”

1.

Purpose. In order that Hill AFB F-16 SPO may receive Proprietary Information from LM Aero and disclose such LM Aero Proprietary Information to potential contractors for purposes only in support of a competitive Request for Proposal and associated award(s)/delivery order(s) to be issued by Hill AFB F-16 SPO for the F-16 Program captioned F-16 Harness Multiple Award IDIQ RFP (RFP # TBD) that is to be released in FY20 or FY21, this Agreement provides for the protection against unauthorized use and disclosure of Proprietary Information which will be disclosed by LM Aero as follows:

LM Aero Proprietary Information: F-16 Wiring Harness Documents 16PR15634B, 16PR15635D, and 16PR15636C.

2.

Identification of Proprietary Information. To the extent that information is transmitted by LM Aero to Hill AFB F-16 SPO, and LM Aero deems such information proprietary, such information shall be protected under the terms of this Agreement: (a) if it is disclosed in writing, and LM Aero marks it on its face as proprietary; or, (b) if it is disclosed orally or visually, and LM Aero identifies it as proprietary at the time of disclosure and then reduces it to writing, marks it as proprietary, and delivers it to the Hill AFB F-16 SPO within fifteen (15) days of the non-written disclosure; or, (c) if it is disclosed by electronic transmission (e.g., facsimile, electronic mail, etc.) in either human readable form or machine readable form, and LM Aero marks it electronically as proprietary within the electronic transmission, such marking to be displayed in human readable form along with any display of the Proprietary Information; or, (d) if it is disclosed by delivery of an electronic storage medium or memory device, and LM Aero marks the storage medium or memory device itself as containing Proprietary Information and electronically marks the stored information as proprietary, such marking to be displayed in human readable form along with any display of the Proprietary Information. LM Aero shall mark the information as proprietary by an appropriate legend, stamp, or other marking. Information not in fact proprietary to LM Aero (or to another for which the Party is acting) shall not be so claimed or marked.

3.

Disclosure/Receipt Responsibility. Each Party agrees to designate in writing a specific individual(s) as the point of contact for disclosing and/or receiving written Proprietary Information transmitted between the Parties. The point of contact for each Party is as follows:

For LM Aero:

Kameron Turner, 817-655-8915, kameron.m.turner@lmco.com For Hill AFB F-16 SPO:

Corey Muir, 801-586-2649

Laurie Auernig, 801-586-3442

4.

Protection of Proprietary Information. The receiving Party shall use Proprietary Information received from the disclosing Party under this Agreement only in support of the purpose stated in paragraph 1, and shall preserve and protect such information from disclosure to any person or persons, other than employees, consultants, and contracted staff of the Hill AFB F-16 SPO with a need to know, through an exercise of care equivalent to the degree of care it uses to preserve and protect its own Proprietary Information, but, in any event, with no less than a reasonable standard of care for protection running in perpetuity. Such protection shall include, inter alia, encryption of Proprietary Information (i) if transmitted via the Internet, and (ii) during electronic storage if potentially accessible by the Internet or otherwise by non-authorized users. Upon termination of this Agreement, the Proprietary Information received hereunder may be retained by Hill AFB F-16 SPO for legal archived purposes only or, at the request of LM Aero, returned or destroyed and a certificate of destruction provided to LM Aero. Use of the Proprietary Information after termination of this Agreement is prohibited. This provision shall survive termination of this Agreement.

5.

Permissible Disclosure to F-16 Harness Multiple Awarded IDIQ Potential Contractors and Awardee(s) Only. Hill AFB F-16 SPO may disclose LM Aero Proprietary Information only to potential contractors/awardees in support of a competitive Request for Proposal to be issued by Hill AFB F-16 SPO for the F-16 Program captioned F-16 Harness Multiple Award IDIQ RFP (RFP # TBD) that is to be released in FY20 or FY21 by uploading same to a “bidders library” and further subject to the following: (1) Hill AFB F-16 SPO shall retain all Proprietary Information markings contained on the Proprietary Information as well as all copies thereof which will be distributed; (2) if only a subset of LM Aero Proprietary Information received hereunder is to be uploaded to the “bidders library” and such subset does not contain a Proprietary Information marking, then Hill AFB F-16 SPO shall include the following marking on the subset of Proprietary Information to be disclosed “Lockheed Martin Proprietary Information”; and (3) the potential contractor executes a Special License Agreement in the format included as Attachment 1 hereto and Hill AFB F-16 SPO provides an executed copy of same to LM Aero.

6.

Duration and Termination. This Agreement shall terminate on 30 September 2031, unless sooner terminated by a Party by giving thirty (30) days written notice to the other Party. Termination shall not, however, affect the rights and obligations contained herein with respect to Proprietary Information supplied hereunder prior to termination.

7.

Licenses. Neither the execution of this Agreement nor the furnishing of any information hereunder shall be construed as granting, either expressly or by implication, estoppel or otherwise, any license under any invention or patent or other intellectual property now or hereafter owned by or controlled by the disclosing Party. None of the information which may be submitted or exchanged by the Parties shall constitute any representation, warranty, assurance, guarantee, or inducement by a Party to the other Party or Parties with respect to the infringement of patents, copyrights, trademarks, trade secrets, or any other rights of third persons.

8.

Relationship of Parties. Nothing in this Agreement shall grant to a Party the right to make commitments of any kind for, or on behalf of, another Party. This Agreement is not intended to be, nor shall it be construed as, a joint venture, teaming relationship, partnership, or other formal business arrangement, and no Party shall have the right or obligation to share any of the profits or bear any of the losses of another Party under any contract or subcontract performed in conjunction herewith. This Agreement shall not be construed in any manner to be an obligation to enter into a subcontract or contract or to result in any claim whatsoever by one Party against another for reimbursement of cost for any effort expended.

9.

Security Requirements. Any classified information disclosed under this Agreement shall be handled in accordance with the requirements of the National Industrial Security Program Operating Manual (NISPOM) (DoD 5220.22-M), as applicable, and supplements thereto.

10.

Compliance with Export Control Laws. Each Party acknowledges that information disclosed hereunder may be technical data subject to export control, that compliance with U.S. Government law and regulations is required, and that it may be necessary to obtain required approvals before disclosing such information to foreign persons, businesses or governments. The Parties agree to comply with all applicable U.S. export control laws and regulations, including but not limited to the requirements of Arms Export Control Act, 22 U.S.C.2751-2794, including the International Traffic in Arms Regulation (ITAR), 22 CFR 120 et. seq.; the Export Administration Act, 50 U.S.C. App. 2401-2420, including the Export Administration Regulations, 15 C.F.R. 730-774; and the requirement for obtaining any export license or agreement, if applicable. Without limiting the foregoing, the receiving Party agrees that it shall not transfer any export controlled item, data, information or services, to include transfer to foreign persons, including those foreign persons employed by or associated with, or under contract to the receiving Party, without the authority of an applicable export license, agreement, or applicable exemption or exception.

11.

Applicable Law. This Agreement shall be interpreted and construed in accordance with the Federal laws and regulations of the United States. This Agreement shall not be varied, amended, or supplemented except by a writing of subsequent or even date executed by both Parties.

12.

Limitation of Liability. Any and all costs or expense incurred by a Party arising from its performance of this Agreement shall be borne by the Party which incurred same, and no Party shall be liable or obligated to another Party for said cost or expense. No claims arising under or relating to this Agreement, including, but not limited to, the performance of work, shall be made by any Party against another Party, except for claims relating to the violation of obligations under this Agreement. In the event any proceeding or lawsuit is brought by a Party against another Party for violation of obligations under this Agreement, the prevailing Party shall be entitled to seek recovery of its costs and reasonable attorneys’ fees from the other Party. In no event shall any multiple or punitive damages apply to any action arising in connection with this agreement.

13.

Construction. Failure by either Party at any time to enforce any of the provisions of this Agreement shall not be construed as a waiver by such Party of any such provisions, nor in any way affect the validity of this Agreement, or any part thereof.

To the extent that any provision of this Agreement may be held to be illegal, invalid or unenforceable, such provision shall be modified to the extent necessary to avoid such violation, illegality, invalidity or unenforceability, without effect on the validity or enforceability of the remainder of this Agreement, unless such modification, in the judgment of either Party, substantially impairs this Agreement as a whole or in any material part. If any provision of this Agreement is reasonably susceptible to more than one interpretation, only such interpretations as would permit such provision to be legal, valid and enforceable shall be considered in construing this Agreement.

IN RECOGNITION OF THE ABOVE, the Parties have caused this Agreement to be executed on the dates set forth below.

LOCKHEED MARTIN CORPORATION

Hill AFB F-16 SPO Contracting Office Lockheed Martin Aeronautics Company

By:

By:

Name:

Name:

Corey Muir

Title:

Title:

Contracting Officer

Date:

Date:

ATTACHMENT 1

SPECIAL LICENSE AGREEMENT

Effective as of the last date of execution written below, [INSERT COMPANY NAME], which is hereinafter referred to as the “Recipient”, requests the U.S. Government to provide the Recipient with technical data (hereinafter “Data”) in which the Government’s use, modification, reproduction, release, performance, display or disclosure rights are limited.

The Data is as follows: F-16 Wiring Harness Documents 16PR15634B, 16PR15635D, and 16PR15636C, all owned by Lockheed Martin Corporation.

In consideration for receiving such Data, the Recipient agrees to use the Data strictly in accordance with this Agreement:

1. The Recipient shall only review the Data for the purposes of preparing a bid to submit to the U.S. Government for a competitive Request for Proposal to be issued by the U.S. Government for the F-16 Program captioned F-16 Harness Multiple Award IDIQ RFP (RFP # TBD) that is to be released in FY20 or FY21 and for contractual requirements associated with award(s)/delivery order(s) under the F-16 Harness Multiple Award IDIQ only and for no other purpose.

2. The Recipient shall not duplicate (in whole or in part), copy, release, display, or disclose the Data without the express written permission of Lockheed Martin Corporation.

3. The Recipient shall not use the Data for manufacturing purposes other than instructions for fiber optic termination and assembly, instructions for assembly and installation of fiber optic harnesses, and in-process fiber testing for contractual requirements associated with award(s)/delivery order(s) under the F-16 Harness Multiple Award IDIQ.

4. The Recipient agrees to adopt or establish operating procedures and physical security measures designed to protect the Data from inadvertent release or disclosure to unauthorized third parties.

5. The Recipient agrees to accept the Data “as-is” without any U.S. Government or Lockheed Martin Corporation representation as to suitability for intended use or warranty whatsoever.

6. The Recipient agrees to indemnify and hold harmless Lockheed Martin Corporation and its employees from every claim or liability, including attorney’s fees, court costs, and expenses arising out of, or in any way related to, the misuse or unauthorized modification, reproduction, release, performance, display, or disclosure of the Data received from the U.S. Government.

7. I understand that my employer and I indemnify and fully hold harmless USAF and the US Government from any harm that may result from such use, retention, and/or disclosure of any and all relevant information made available to me in support of the Acquisition Function identified above.

8. The Recipient is executing this Agreement for the benefit of Lockheed Martin Corporation. Lockheed Martin Corporation is a third party beneficiary of this Agreement who, in addition to any other rights it may have, is intended to have the rights of direct action against the recipient or any other person to whom the Recipient has released or disclosure the Data, to seek damages from any breach of this Agreement or to otherwise enforce this Agreement.

9. The Recipient agrees to destroy the Data, and all copies of the Data in its possession, whichever comes sooner, no later than thirty (30) days after notification by the U.S. Government that Recipient has not been awarded the prime contract or thirty (30) days after the Recipient’s final completion date of prime award/last delivery order to which the Request for Proposal identified above relates and to notify Lockheed Martin Corporation that the Data has been destroyed and provide a certificate of destruction to Lockheed Martin Corporation at the following address:

LOCKHEED MARTIN AERONAUTICS COMPANY

F-16 Contracts One Lockheed Martin Boulevard Fort Worth, TX 76101 Attn: Sr. Manager, Contracts

10. I understand that the unauthorized release of information may result in civil liability or criminal prosecution.

11. This Agreement shall be effective for the period commencing with the Recipient’s execution of this Agreement and ending upon thirty (30) days after the Recipient’s final completion date of prime award/last delivery order.

The obligations imposed by this Agreement shall survive the expiration or termination of the Agreement.

Recipient’s Business Name: _______________________________________

By: ___________________________________________________________

Authorized Representative

Date:_____________________________________

Representative’s Typed Name and Title: __________________________________________

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�Lockheed will want to address the marking IAW the DFARS instead of using proprietary information throughout the entire document.

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�This concept captures the following bulletpoint from USG’s proposed PIA: I understand that the terms of this NDA will continue to apply to me even after I am no longer performing work in support of the Acquisition Function identified above. However, because LM desires to have this PIA apply to bidders for bidding process only, it does not address performance of work in support of the issued Prime Contract. A separate PIA will be needed with the awardee.