LSA_OTA_Draft_RFP_Annex_C_-_Model_Agreement.pdf

DRAFT

Other Transaction (OT) Authority Agreement between

The United States Of America

SPACE & MISSILE SYSTEMS CENTER

483 N. AVIATION BLVD.

EL SEGUNDO, CA 90245-2808

and

[Participating Company] [Address]

[City, ST, Zip] [Phone (xxx) xxx-xxxx]

CAGE:

Concerning

Evolved Expendable Launch Vehicle (EELV) Launch Services Investment

Agreement No.: FA8811-17-9-00XX

Total Amount of the Agreement: $.00

Government share: $.00

Recipient share: $.00

Authority: 10 U.S.C. § 2371b

Effective Date:

Catalog of Federal Domestic Assistance number: 12.114

Notice: Solicitation Number: FA8811-16-9-00XX

For [Participant Company] For the United States of America

Name: DAVID SHARP Title: Agreements Officer

This Agreement is entered into between the United States of America, hereinafter called the

Government, represented by the Space and Missile Systems Center Launch Systems Enterprise

Directorate (SMC/LE), and [Participant Company Name] (hereinafter the Participant) (each a Party and collectively the Parties) pursuant to and under U.S. Federal law.

ARTICLE I: AUTHORITY

This Agreement is an "Other Transaction" pursuant to 10 U.S.C. § 2371b. This Agreement is not a procurement contract, cooperative agreement or grant agreement for purposes of FAR Subsection

31.205-18 or any other purpose. The provisions of the Federal Acquisition Regulations (FAR), Department of Defense Federal Acquisition Regulations Supplement (DFARS) and Air Force

Federal Acquisition Regulations Supplement (AFFARS) do not apply, unless explicitly included in this Agreement.

ARTICLE II: SCOPE OF THE AGREEMENT

Background

1. The mission of the EELV program is to deliver healthy satellites with high reliability into their intended orbits, on schedule, at a reasonable price. EELV launch systems must provide proven quality system performance to the required orbit while at the same time meeting designated thresholds and striving to meet the stated objectives for each mission. The United States

Government needs the capability to routinely deploy payloads and replenish expiring satellites on-orbit to meet peace and wartime requirements in a very predictable timeframe. The EELV program obtains this capability by purchasing launch services that meet National Security Space

(NSS) requirements. The goal of the Launch Service OT Agreement is to subsume the RPS development effort, as appropriate and expand investment to develop a launch system (LS) prototype. This will enable Government investment in industry’s commercial launch system through launch system development and certification.

2. A Launch Service Prototype "Other Transaction" agreement has been chosen as the most appropriate vehicle to execute the relevant sections of the National Defense Authorization Act

(NDAA) for FY 2015, 2016, and 2017. `

Scope

1. The purpose of this Agreement is to establish a partnership with the Participant through cost-sharing to develop an LS prototype that is a commercial domestically produced EELV-class launch system capable of meeting the EELV launch service requirements. The LS development effort shall be performed in accordance with the Statement of Work (SOW) provided in

Attachment 1.

2. This is a fixed price Agreement. The Participant shall be paid a fixed amount for each successfully completed and payable milestone accomplished in accordance with the Milestone

Payment Plan set forth in Attachment 2 and the procedures of Article VI Obligation and Payment

Schedule.

3. The intended cost share of the Government for the [Name] Prototype development effort is xx.x% of the total [Name] effort on this Agreement.

4. Regardless of the intended Government cost share percentage, Government investment will be a fixed dollar amount, not a percentage of costs incurred. Additionally, the Government requires that at least one third of the total cost of the prototype project be paid out of funds provided by parties to the project other than the Federal Government.

Objectives

1. The Air Force is seeking to enable, through cost-sharing with industry partners, the development of two domestic launch service providers each meeting the full spectrum of EELV requirements as soon as possible.

2. In support of this Air Force objective, the goal of this Agreement is the development of a prototype Launch System that is capable of lifting EELV-class payloads to the proper orbits (as defined in the SPRD Rev B and Article XX Not-To-Exceed Prices for Launch Services).

3. The Government will have continuous involvement with the Participant, in accordance with the attached Statement of Work. The Government will obtain access to project results, delivered in accordance with the Statement of Work and Milestone Payment Plan, and rights in patents and data pursuant to Articles XI, Patent Rights and XII, Data Rights. SMC/LE and the Participant are bound to each other by this Agreement and by a duty of good faith and best efforts in performance of the efforts of this Agreement.

Definitions

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

"Background Data" means Data that is not generated under this Agreement.

"Background Data Rights" means the rights to use, modify, reproduce, release, perform, display, or disclose Data, in whole or in part, within the Government for the purposes of the EELV program or successor program(s). The Government may not, without the written permission of the party asserting

Background Data Rights, release or disclose the Data outside the Government, use the Data for manufacture, or authorize the Data to be used by another party, except that the Government may reproduce, release, or disclose such Data or authorize the use or reproduction of the Data by persons outside the Government if –

(i) The reproduction, release, disclosure, or use is necessary for a release or disclosure to a

Covered Government Support Contractor in performance of its covered Government support contract in support of the EELV program or successor program(s) for use, modification, reproduction, performance, display, or release or disclosure to a person authorized to receive Background Data Rights Data; and

(ii) The recipient of the Data is subject to a prohibition on the further reproduction, release, disclosure, or use of the Data.

"Cash" means outlays of funds to perform the proposed LS prototype development effort; this includes labor, materials, new equipment, and relevant subcontractor efforts. Sources include, but are not limited to, new R&D funds, profit or fee from another contract, overhead or capital equipment expense pool.

"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.

"Controlled Unclassified Information" means any unclassified information that law, regulation, or government-wide policy requires to have safeguarding or disseminating controls. (See Attachment

3, DD254 Contract Security Classification Specification)

"Covered Government Support Contractors" means contractors covered under Article XVII, Enabling Aerospace Support and Article XVIII, Enabling Support Contractors.

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

"Form, fit and function Data" means Data that describes the required overall physical, functional and performance characteristics (along with the qualification requirements, if applicable) of an item, component, or process to the extent necessary to permit identification of physically and functionally interchangeable items.

"Government," means the United States of America, as represented by SMC/LE.

"Government Purpose" means any activity in which the United States Government is a party, including cooperative agreements with international or multi-national defense organizations, or sales or transfers by the United States Government to foreign governments or international organizations. Government purposes include competitive procurement, but do not include the rights to use, modify, reproduce, release, perform, display, or disclose Data for commercial purposes or authorize others to do so.

"Government Purpose Rights," means the rights to-

(a) Use, modify, reproduce, release, perform, display, or disclose Data within the Government without restriction; and

(b) Release or disclose Data outside the Government and authorize persons to whom release or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose that Data for United States Government Purposes.

"In-Kind" means reasonable value of equipment, materials or other property used in performance of the proposed LS prototype development effort.

"Invention," as used in this Agreement, means any innovation or discovery that is or may be patentable or otherwise protectable under title 35 of the United States Code (U.S.C.).

"Limited Rights" means the rights to use, modify, reproduce, release, perform, display, or disclose

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 Data outside the Government, use the Data for manufacture, or authorize the Data to be used by another party, except that the

Government may reproduce, release, or disclose such Data or authorize the use or reproduction of the Data by persons outside the Government if-

(i) The reproduction, release, disclosure, or use is-

(A) Necessary for emergency repair and overhaul; or

(B) A release or disclosure to-

(1) A Covered Government Support Contractor in performance of its covered

Government support contract for use, modification, reproduction, performance, display, or release or disclosure to a person authorized to receive Limited Rights

Data; or

(2) A foreign government, of Data other than detailed manufacturing or process data, when use of such data by the foreign government is in the interest of the

Government and is required for evaluation or informational purposes;

(ii) The recipient of the Data is subject to a prohibition on the further reproduction, release, disclosure, or use of the Data; and

(iii) The Participant or subcontractor asserting the restriction is notified of such reproduction, release, disclosure, or use.

"Made," as used in this Agreement in relation to any Invention, means the conception or first actual reduction to practice of such Invention.

“Made in the United States” means manufactured in the United States with the cost of domestic components exceeding 50 percent of the cost of all the components. For the purposes of determining whether or not a prototype is Made in the United States, refer to FAR 25.003 for further definitions.

"Participant," means [Company Name]

"Practical application," as used in this Agreement, means to manufacture, in the case of a composition or product; to practice, in the case of a process or method; or to operate, in case of a machine or system; and, in each case, under such conditions as to establish that the Invention, software, or related Data is being utilized and that its benefits are, to the extent permitted by law or Government regulations, available to the public or to the Federal Government on reasonable terms

"Proprietary Information" means information and materials which are designated as proprietary in writing by the Participant, 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 to the Government.

Notwithstanding the foregoing, materials and other information which are orally, visually, or electronically disclosed, or are disclosed in writing without an appropriate letter, stamp, or legend, shall constitute Proprietary Information if the Participant, within thirty (30) calendar days after such disclosure, delivers to the Government a written document or documents describing the material or information and indicating that it is proprietary, provided that any disclosure of information by the

Government prior to receipt of such notice shall not constitute a breach by the Government of its obligations to protect Proprietary Information.

"Subject Invention" means those inventions conceived or first actually reduced to practice Under this Agreement.

"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 Agreement administration, such as financial and/or management information.

"Under this Agreement" means within the scope of work to be performed as described in the

Statement of Work and Milestone Payment Plan.

"Unlimited Rights," means rights to use, modify, reproduce, perform, display, release, or disclose

Data in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.

ARTICLE III: APPLICABLE LAW AND SEVERABILITY

A. Applicable Law

U.S. Federal law governs this Agreement for all purposes, including, but not limited to, determining the validity of this Agreement, the meaning of its provisions, and the rights, obligations and remedies of the Parties.

B. Severability

If any portion of this Agreement is held invalid by a court of competent jurisdiction, the Parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement, unless applying such remaining portions would frustrate the purpose of this Agreement.

ARTICLE IV: TERM

A. Term of this Agreement

1. The LS prototype development effort consists of development and certification effort being performed against the Statement of Work (SOW) and Milestone Payment Plan. The effort commences upon the date of the last signature hereon and continues until [date.]

2. Provisions of this Agreement, which, by their express terms or by necessary implication, apply for periods of time other than specified herein, shall be given effect, notwithstanding this Article.

B. Termination Provisions

1. The Government may terminate this Agreement for any reason by written notice to the

Participant. The Participant may terminate this Agreement by written notice to the Government if the Participant determines that the expected commercial value of the prototype technology does not justify continued investment or the Government fails to provide funding in accordance with the Agreement. As limited by Article VII, Disputes and Liability, any adjustments resulting from termination shall be subject to negotiation. Failure of the Parties to agree to an equitable adjustment shall be resolved pursuant to Article VIII, Disputes and Liability.

2. The notices in paragraph 1 shall occur at least 15 days prior to Agreement termination.

3. In the event of a termination of the Agreement, the Government shall have paid-up rights in Data as described in Article XII Data Rights.

4. The Agreements Officer may, at any time, issue a Stop Work Order. This order will not require the Participant to stop work that is entirely funded by the Participant; however the Government will not be obligated to pay for work performed after the issuance of the Stop Work Order. The

Agreements Officer has 90 days from the issuance of the Stop Work Order, or for any further period to which the Parties may agree, to cancel the Stop Work Order or terminate the Agreement.

If the Stop Work Order is canceled or the period of the Stop Work Order or any extension thereof expires, the Participant shall resume work. As limited by Article VII, Disputes and Liability, any adjustments resulting from the issuance of a Stop Work Order shall be subject to negotiation.

C. Extending the Term

The Parties may extend by written mutual agreement the period of performance of this Agreement if prototype development opportunities exist within the scope and objectives set forth in Article IIB and IIC and are reasonably warranted. Likewise, the periods of performance set forth in IV.A. above may be extended or altered by written mutual agreement.

ARTICLE V: MANAGEMENT OF THE PROJECT

Management and Project Structure

The Participant shall be responsible for the overall technical management, project management, and execution of the LS Prototype development project in accordance with the Statement of Work. The review and verification of the completed milestones shall be accomplished in accordance with

Attachment 2, Milestone Payment Plan.

D. Modifications

1. All Agreement modifications, except for minor or administrative corrections, shall be made by mutual agreement of the Parties and be subject to negotiations. Minor or administrative

Agreement corrections (e.g., changes in the paying office or appropriation data, changes to

Government or the Participant personnel identified in the Agreement, changes in funding, etc.)

may be made unilaterally by the Government.

2. Recommendations for modifications by the Participant, including justifications to support any changes to the SOW and Milestone Payment Plan (Attachment 2) will be documented in a letter and submitted to the Agreements Officer. This documentation letter will detail the technical, schedule, and financial impact of the proposed modification to the prototype project. If the modification is mutually agreed to by the Parties, the Government is not obligated to pay for additional or revised future Payable Milestones until the Milestone Payment Plan (Attachment

2) is formally revised in writing by the Agreements Officer and made part of this Agreement.

3. The Government will be responsible for effecting all modifications to this Agreement. There is no modification unless there is a formal written modification to the Agreement by the

Agreements Officer.

ARTICLE VI: OBLIGATION PAYMENT AND SCHEDULE

Obligation

1. This Agreement is incrementally funded. The sum of [$____________] of the total amount of

[$___________] of Government funding to develop the prototypes is presently available for payment and obligated to this Agreement. The Agreement is funded through TBD.

2. Agreed to values are listed in the table below: TBD

3. The Government's liability to make payments to the Participant is limited to only those funds obligated under the Agreement or by modification to the Agreement. The Participant amounts in

Paragraph 2 are estimates; the exact amounts may vary within the parameters set forth in

Attachment 2, Milestone Payment Plan.

Basis of Payment

1. The Parties agree that fixed payments will be made for the completion of Milestones.

2. The basis of payment for this effort shall be a series of Milestones scheduled throughout the period of performance of this Agreement in accordance with Attachment 2, Milestone Payment

Plan.

Basis of Cost Share

1. The total investment from Non-Government sources must be at least 1/3 of the Total Cost. Only

Cash and In-Kind investment as private investment (non-Government funding source) shall be contributed by the Participant. All Cash or In-Kind cost sharing availability must be clearly and convincingly demonstrated by the Participant. No In-Kind investment will be considered for items designed or manufactured in the Russian Federation.

2. The Participant shall not include the following in their investment: sunk costs or costs incurred before Agreement award, unless notified by the AO that such costs are allowable; forgone fees or profits; forgone G&A or cost of money applied to a base of R&D; bid and proposal costs;

value claimed for intellectual property of prior or parallel research or investment; or off-budget resources e.g., goodwill.

3. Independent Research and Development (IR&D) funds included as part of the Participant's investment shall be documented and approved by the cognizant Divisional Administrative

Contracting Officer (DACO).

4. The rental equivalency value of Government property will be treated as In-Kind Government cost share. The rental equivalency is calculated as follows: the hourly rental charge is calculated by multiplying 2 percent of the acquisition cost by the hours of rental time, and dividing by 720.

Payable Milestones

See Attachment 2 for details of the Milestone Payment Plan, to include the description, payment amounts, expenditures, and payment dates.

Use of Funds

All funds, to include Government and Participant shared-costs, are to be used only for costs that a reasonable and prudent person would incur in carrying out the prototype project.

Wide Area Workflow

Payments will be made by the Defense Finance and Accounting Services (DFAS) office, as indicated below, within 30 (thirty) calendar days of an accepted invoice in Wide Area Workflow (WAWF).

The Participant is required to utilize the WAWF system when processing invoices and receiving reports under this Agreement. The Participant shall (i) ensure an Electronic Business Point of Contact is designated in System for Award Management at http://www.sam.gov and (ii) register to use

WAWF at the https://wawf.eb.mil site, within ten (10) calendar days after award of this Agreement.

Step by Step procedures to register are available at the https://wawf.eb.mil site. The Participant is directed to use the "Grant Voucher" format when processing invoices. The Participant should submit a copy of the Agreements Officer's Representative (AOR) approval of the milestone, as well as a copy of the milestone report, with each invoice.

a. For the Issue By DoDAAC, enter FA8811.

b. For the Admin DoDAAC, enter XXXXXX.

c. For the Grant Approver fields, enter XXXXXX.

d. The following guidance is provided for invoicing processed under this Agreement through WAWF:

1. The AOR shall formally inspect and accept the deliverables/payable milestones. To the maximum extent practicable, the AOR shall review the deliverable(s)/payable milestone report(s) and either: 1) provide a written notice of rejection to the Participant which includes feedback regarding deficiencies requiring correction, or 2) written notice of acceptance to the SMC/LE PM and Agreements Officer.

2. Acceptance within the WAWF system shall be performed by the AOR upon receipt of a confirmation email, or other form of transmittal, from the AOR.

3. The Participant shall send an email notice to the AOR and upload the AOR approval as an attachment upon submission of an invoice in WAWF (this can be done from within

WAWF).

4. Payments shall be made by DFAS - Columbus, West Entitlement Operations:

DFAS-Columbus

West Entitlement Operations

P.O. Box 182381

Columbus, OH 43218-2381

Code: HQ0339

5. The Participant agrees, when entering invoices in WAWF, to include reference to the associated milestone number along with other necessary descriptive information. The

Participant agrees that the Government may reject invoices not submitted in accordance with this provision.

Note for DFAS: The Agreement is to be paid out by oldest ACRN first.

e. Payee Information: As identified at the System for Award Management.

Cage Code:

DUNS:

TIN:

f. Payments shall be made in the amounts set forth in Attachment 2, provided the AOR has verified the completion of the Milestones.

ARTICLE VII: ACCOUNTING AND AUDIT ADMINISTRATION

A. Audits

The Agreements Officer, or an authorized representative, such as the Defense Contract Audit Agency

(DCAA), shall have the right to examine or audit the awardee records during the period of the agreement and for three years after final payment, unless notified otherwise by the Agreements

Officer at least ninety (90) days prior to the expiration of the three (3) year period for an extension of no greater than one (1) year. The Agreements Officer, or an authorized representative, such as

DCAA, shall have direct access only to sufficient records to ensure full accountability for all

Government funding or to verify statutorily required cost share under this Agreement. Such examination or access shall occur during business hours on business days upon prior written notice and shall be subject to the security requirements of the Participant.

B. Comptroller General Review

The Comptroller General of the United States, in its discretion, shall have access to and the right to examine records of any party to the Agreement or any entity that participates in the performance of this Agreement that directly pertain to, and involve transactions relating to, the Agreement for a period of three (3) years after final payment is made. This requirement shall not apply with respect to any party to this Agreement or any entity that participates in the performance of the Agreement, or any subordinate element of such party or entity, that, in the year prior to the date of the Agreement, has not entered into any other contract, grant, cooperative agreement, or "Other Transaction" agreement that provides for audit access to its records by a government entity in the year prior to the date of this Agreement.

C. Accounting System Requirements

The Participant shall ensure that appropriate arrangements have been made for receiving, distributing and accounting for Federal funds under this Agreement. Consistent with this stipulation, an acceptable accounting system will be one in which all cash receipts and disbursements are controlled and documented properly and which is capable of generating a cost element summary.

D. Flow-down

The Participant shall flow down the requirements of this Article to any subcontractors that are contributing to the Industry Cost Share.

ARTICLE VIII: DISPUTES AND LIABILITY

General

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

Dispute Resolution Procedures

1. Any dispute between the Government and Participant concerning questions of fact or law arising from or in connection with this Agreement, and, whether or not involving an alleged breach of this Agreement, may only be raised under this Article.

2. Whenever disputes arise, the Parties shall attempt to resolve the issue(s) involved by discussion and mutual agreement as soon as practicable. The Parties agree that the notification under subparagraph B.3 of this article shall not be made earlier than thirty (30) days from when the dispute arose. In no event shall a dispute that arose more than one hundred and eighty (180) calendar days prior to the notification made under subparagraph B.3 of this article constitute the basis for relief under this article unless the Agreements Officer waives this requirement in writing.

3. Failing resolution by mutual agreement, the aggrieved Party shall notify the other Party (through the Agreements Officer or Agreements Representative as the case may be) in writing of the relevant facts, identifying unresolved issues, and specifying the clarification or remedy sought.

The dispute will then be referred to the Director of the Launch Systems Enterprise and an executive of Participant, who shall meet in good faith to resolve the dispute.

4. If the Director of the Launch Systems Enterprise and an executive of Participant are not able to resolve the dispute within thirty (30) calendar days of the date the notice under subparagraph B.3 is received, the dispute will be referred to the Air Force Program Executive Officer for Space

(AFPEO/SP) and an executive of Participant, who shall meet in good faith to resolve the dispute.

5. If the AFPEO/SP and an executive of Participant are not able to resolve the dispute within sixty

(60) calendar days of the date the notice under subparagraph B.3 is received, then either Party may pursue any remedy under the law.

6. Pending resolution of any such dispute by settlement or by final judgment, the Parties shall each proceed diligently with performance, unless otherwise mutually agreed, or the Agreements

Officer issues a Stop Work Order, pursuant to Article IV, Term.

Limitations of Damages

Claims by the Government for damages of any nature whatsoever pursued under this Agreement shall be limited to direct damages only up to the aggregate amount of Government funding for LS development disbursed pursuant to this Agreement as of the time the dispute arises. Claims by the

Participant for damages of any nature whatsoever pursued under this Agreement shall be limited to direct damages only up to the aggregate amount of Government funding for LS development obligated to this Agreement as of the time the dispute arises. In no event shall either Party be liable to any other Party 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.

ARTICLE IX: UNALLOWABLE COSTS

A. Government-funded portions of the following cost items are expressly unallowable charges on any current or future Government contract:

1. Depreciation Expense Charges - If this Agreement results in equipment or other tangible capital assets that can be depreciated, then the Government-provided funding must be excluded from the value of the asset being depreciated. The amount funded by the

Government shall not be in any indirect cost pool or any direct cost calculation on any future

Government contract.

2. Independent Research and Development (IR&D) - The amount funded by the Government shall not be in any indirect cost pool or any direct cost calculation, as part of the Participant's

IR&D expense calculation, and will not be billable on any current or future Government contract.

B. Non-Duplication of Research: No research and development costs paid for by the Government on other contracts or agreements shall be included in either the Government or Industry cost share, in accordance with 10 U.S.C. § 2371(e)(1)(A).

ARTICLE X: PROPRIETARY AND CONTROLLED UNCLASSIFIED INFORMATION

Applicability:

This article, except for paragraph D, applies to information other than Data, which is addressed in

Article XII Data Rights. Paragraph D applies to all Controlled Unclassified information.

Exchange of Information:

The Government may from time to time disclose Controlled Unclassified Information to the

Participant and the Participant may from time to time disclose Proprietary Information to the

Government in connection with the Agreement. Neither the Government nor Participant shall be obligated to transfer Controlled Unclassified Information or Proprietary Information independently developed by either Party to any Party to this Agreement unless required as a part of a deliverable, or to otherwise satisfy the terms and conditions of this Agreement.

Treatment of Proprietary Information and Authorized Disclosure:

The Government agrees, to the extent permitted by law, that Proprietary Information shall remain the property of the Participant. Unless otherwise agreed to in writing by the Participant, the

Government shall not use Proprietary Information for any purposes other than in connection with the Agreement or as otherwise specified in Article XI, Patent Rights, and Article XII, Data Rights.

In the event Proprietary Information is required by law or regulation to be disclosed, the Government shall provide written notice to the Participant promptly so as to enable Participant to seek a protective order or otherwise prevent disclosure of such Proprietary Information. "Proprietary Information" shall not extend to materials or information that:

1. Are received or become available without restriction to the Government under this Agreement or a proper, separate agreement or contract,

2. Are not identified with a suitable notice or legend per the definition of Proprietary Information,

3. Are lawfully in possession of the Government without restriction at the time of disclosure thereof as demonstrated by prior written records,

4. Are or later become part of the public domain through no fault of the Government,

5. Are received by the Government from a third party having no obligation of confidentiality to the

Participant,

6. Are developed independently by the Government without use of Proprietary Information as evidenced by written records, or

7. Consist solely of Government funding or expenditure information regarding execution of this agreement.

Treatment of Controlled Unclassified Information

The Participant is required to treat Controlled Unclassified Information in accordance with

Attachment 3, DD 254 Contract Security Classification Specification.

Third Party Support

The Government anticipates third-party support from Covered Government Support Contractors on this Agreement. Interactions with Covered Government Support Contractors and their access to

Proprietary Information are subject to Article XVII, Enabling Aerospace Support and Article XVIII, Enabling Support Contractors.

Survival Rights

The obligations of the Government and the Participant under this Article shall survive after the expiration or termination of this Agreement.

Flow-down

The Participant shall flow down the requirements of this Article to its respective personnel, subcontractors, and agents receiving such Controlled Unclassified Information under this

Agreement.

ARTICLE XI: PATENT RIGHTS

Allocation of Principal Rights

1. The Participant shall retain ownership throughout the world to each Subject Invention consistent with the provisions of this article and 35 U.S.C. § 202, provided the Participant has timely pursued a patent application and maintained any awarded patent and has not notified the

Government (in accordance with the subparagraph XI.B below) that the Participant does not intend to retain title.

2. The Participant shall retain ownership throughout the world to background inventions (defined as any Inventions that are not Subject Inventions).

3. The Government is granted a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced for or on behalf of the United States the Subject Invention throughout the world.

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

1. The Participant shall disclose each Subject Invention to the Agreements Officer on a DD Form

882 within eight (8) months after the inventor discloses it in writing to the Participant's personnel responsible for patent matters.

2. If the Participant determines that it does not intend to retain title to any such Subject Invention, the Participant shall notify the Agreements Officer, in writing, within eight (8) months of disclosure to the Government. However, in any case where publication, sale, or public use has initiated the one (1)-year statutory period wherein valid patent protection can still be obtained in the United States, the period for such notice may be shortened by the Government to a date that is no more than sixty (60) calendar days prior to the end of the statutory period.

Conditions When the Government May Obtain Title

Upon the Agreements Officer's written request, the Participant shall convey title to any Subject

Invention to the Government under any of the following conditions:

1. If the Participant fails to disclose or elects not to retain title to the Subject Invention within the times specified in paragraph XI.B of this Article; provided, that the Government may only request title within sixty (60) calendar days after learning of the failure of the Participant to disclose or elect within the specified times.

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

3. In any country in which the Participant decides not to continue the prosecution of any application for, to pay the maintenance fees on, or defend in reexamination or opposition proceedings on, a patent on a Subject Invention.

Minimum Rights to the Participant and Protection of the Participant's Right to File

1. The Participant shall retain a nonexclusive, royalty-free license throughout the world in each

Subject Invention to which the Government obtains title, except if the Participant fails to disclose the Invention within the times specified in paragraph XI.B of this Article. The Participant's license extends to the domestic (including Canada) subsidiaries and affiliates, if any, within the corporate structure of which the Participant is a party and includes the right to grant licenses of the same scope to the extent that the Participant was legally obligated to do so at the time the Agreement was awarded. The license is transferable only with the approval of the Government, except when transferred to the successor of that part of the business to which the Invention pertains. The

Government's approval for license transfer shall not be unreasonably withheld.

2. The Participant's domestic license, as described above, may be revoked or modified by the

Government to the extent necessary to achieve expeditious practical application of the Subject

Invention pursuant to an application for an exclusive license submitted consistent with appropriate provisions at 37 CFR Part 404. This license shall not be revoked in that field of use or the geographical areas in which the Participant has achieved practical application and continues to make the benefits of the Invention reasonably accessible to the public. The license in any foreign country may be revoked or modified at the discretion of the Government to the extent the Participant, its licensees, or the subsidiaries or affiliates have failed to achieve practical application in that foreign country.

3. Before revocation or modification of the license, the Agreements Officer shall furnish the

Participant a written notice of its intention to revoke or modify the license, and the Participant shall be allowed thirty (30) calendar days (or such other time as may be authorized for good cause shown) after the notice to show cause why the license should not be revoked or modified.

E. Action to Protect the Government's Interest

1. The Participant agrees to execute or to have executed and promptly deliver to the Agreements

Officer all instruments necessary to (i) establish or confirm the rights the Government has throughout the world in those Subject Inventions to which the Participant elects to retain title, and (ii) convey title to the Government when requested under paragraph XI.C of this Article and to enable the Government to obtain patent protection throughout the world in that Subject

Invention.

2. The Participant agrees to require, by written agreement, its employees, other than clerical and non-technical employees, to disclose promptly in writing to personnel identified as responsible for the administration of patent matters and in a format suggested by the Participant each Subject

Invention made Under this Agreement in order that the Participant can comply with the disclosure provisions of paragraph IX.B of this Article. The Participant shall instruct employees, through employee agreements or other suitable educational programs, on the importance of reporting

Inventions in sufficient time to permit the filing of patent applications prior to U.S. or foreign statutory bars.

3. The Participant shall notify the Agreements Officer of any decisions not to continue the prosecution of a patent application, pay maintenance fees, or defend in a reexamination or opposition proceedings on a patent, in any country, not less than thirty (30) calendar days before the expiration of the response period required by the relevant patent office.

4. The Participant shall include, within the specification of any United States patent application and any patent issuing thereon covering a Subject Invention, the following statement: "This Invention was made with Government support under Agreement No. FA8811-16-9-0000, awarded by

SMC/LE. The Government has certain rights in the Invention."

F. Lower Tier Agreements

The Participant shall include this Article, suitably modified, to identify the Parties, in all subcontracts or lower tier agreements, regardless of tier, for experimental, developmental, or research work.

G. March-in Rights

The Participant agrees that, with respect to any Subject Invention in which it has retained title, the

Government has the right to require the Participant, an assignee, or exclusive licensee of a Subject

Invention to grant a non-exclusive license to a responsible applicant or applicants, upon terms that are reasonable under the circumstances, and if the Participant, assignee, or exclusive licensee refuses such a request, the Government has the right to grant such a license itself if the Agreements Officer determines that:

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

Invention;

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

3. Such action is necessary to meet requirements for public use and such requirements are not reasonably satisfied by the Participant, assignee, or licensees.

H. Authorization and Consent

The Government authorizes and consents to all use and manufacture of any invention described in and covered by a United States patent in the performance of this Agreement.

I. Notice and Assistance

1. The Participant shall report to the Agreements Officer, promptly and in reasonable written detail, each notice or claim of patent or copyright infringement based on the performance of this

Agreement of which the Participant has knowledge.

2. In the event of any claim or suit against the Government on account of any alleged patent or copyright infringement arising out of the performance of this Agreement or out of the use of any supplies furnished or work or services performed Under this Agreement, the Participant shall furnish to the Government, when requested by the Agreements Officer, all evidence and information in the Participant's possession pertaining to such claim or suit. Such evidence and information shall be furnished at the expense of the Government except where the Participant has agreed to indemnify the Government.

J. Survival Rights

The obligations of the Government and the Participant under this Article shall survive after the expiration or termination of this Agreement.

ARTICLE XII: DATA RIGHTS

Allocation of Principal Rights

1. The Government shall have <Offeror to insert level of rights, not less than Limited Rights> in

Data generated under this Agreement, except as provided in paragraph A.2, A.3, and A.4.

2. The Government shall have Unlimited Rights in Data for the following:

(a) Form, fit, and function Data that are generated Under this Agreement;

(b) Corrections or changes to Data furnished to the Participant by the Government;

(c) Data otherwise publicly available or have been released or disclosed by the Participant or subcontractor without restrictions on further use, release or disclosure, other than a release or disclosure resulting from the sale, transfer, or other assignment of interest in the Data to another party or the sale or transfer of some or all of a business entity or its assets to another party;

(d) Studies, analysis, test data, or similar data produce for this Agreement, when the study, analysis, test, or similar work was specified as an element of performance;

(e) Data necessary for operation, maintenance, installation, or training, if applicable; and

(f) Computer software documentation that are required to be delivered Under this Agreement;

3. Data that will be delivered, furnished, or otherwise provided to the Government under this

Agreement, in which the Government has previously obtained rights, shall be delivered, furnished, or provided with either the pre-existing rights or the rights specified in this Agreement, whichever is greater, or unlimited rights in the case where any restrictions on the Governments rights to use, modify, reproduce, display or disclose the data have expired or no longer apply.

4. The Government shall have Background Data Rights to Background Data.

Disclosure of Data to Covered Government Support Contractors

The Participant acknowledges that data with other than Unlimited Data Rights are authorized to be released or disclosed to Covered Government Support Contractors in accordance with Article XVII, Enabling Aerospace Support and Article XVIII, Enabling Support Contractors.

Purchase of Additional Rights

The Participant, its subcontractors, and suppliers are not required to provide the Government additional rights to use, modify, reproduce, release, perform, display, or disclose Data furnished to the Government with other than Unlimited Rights. However, if the Government desires to obtain additional rights in Data furnished under this Agreement, the Participant agrees to promptly enter into negotiations with the Agreements Officer to determine whether there are acceptable terms for transferring such rights. All Data in which the Participant has granted the Government additional rights shall be listed or described in a license agreement made part of the Agreement. The license shall enumerate the additional rights granted the Government in such Data.

Marking of Data

1. Except for Data covered under paragraph XII.D.2, and Data delivered with unlimited rights, Data to be delivered under this Agreement subject to restrictions on use, duplication or disclosure shall be marked with the following legend, as applicable:

“<Offeror to insert level of rights, not less than Limited Rights> Data: Use, duplication, or disclosure is subject to the restriction as stated in the Agreement between the U.S. Government and [Participant

Company], Agreement No. FA8811-17-9-000x.” or

“Background Data: Use, duplication, or disclosure is subject to the restriction stated in the

Agreement between the U.S. Government and [Participant Company], Agreement No. FA8811-17-

9-000x.”

2. Pre-existing Data markings: If the terms of a prior contract or license permitted the Participant to restrict the Government's rights to use, modify, reproduce, release, perform, display, or disclose Data deliverable under this Agreement, and those restrictions are still applicable, the

Participant may mark such Data with the appropriate restrictive legend for which the Data qualified under the prior contract or license unless such Data is granted a higher level of rights by this Agreement.

3. The Government shall have unlimited rights in all unmarked Data. In the event that the

Participant learns of a release to the Government of its unmarked Data that should have contained a restricted legend, the Participant will have the opportunity to cure such omission going forward by providing written notice to the Agreements Officer within the later of the one (1) year of the erroneous release.

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

(a) Data not identified with a suitable notice or legend as set forth in this article; nor,

(b) Information contained in any Data for which disclosure and use is restricted under Article X, Proprietary and Controlled Unclassified Information, if such information is or becomes generally known without breach of the above, is properly known to the Government or is generated by the Government independent of carrying out responsibilities under this

Agreement, is rightfully received from a third party without restriction, or is included in Data which the Participant is required to furnish to the Government without restriction on disclosure and use.

Validation of Restrictive Markings

1. The Validation of Contractor's Restrictive Markings on Technical Data will be determined in accordance with the delineation of Data Rights under this Agreement. The Government and the

Participant agree to use the process outlined in DFARS clause 252.227-7037 Validation of

Restrictive Markings on Technical Data, with all mention of Contractor understood to mean the

Participant and all mention of Contracting Officer understood to mean Agreements Officer.

2. Unjustified Data markings: The rights and obligations of the parties regarding the validation of restrictive markings on Data furnished or to be furnished under this Agreement are contained in the Validation of Restrictive Markings on Technical Data provision of this Agreement.

Notwithstanding any provision of this Agreement concerning inspection and acceptance, the

Government may ignore or, at the Participant's expense, correct or strike a marking if, in accordance with the procedures in the Validation of Restrictive Markings on Technical Data provision of this Agreement, a restrictive marking is determined to be unjustified.

3. Nonconforming Data markings: A nonconforming marking is a marking placed on Data delivered or otherwise furnished to the Government under this Agreement that is not in the format authorized by this Agreement. Correction of nonconforming markings is not subject to the

Validation of Restrictive Markings on Technical Data provision of this Agreement. If the

Agreements Officer notifies the Participant of a nonconforming marking and the Participant fails to remove or…