Atch 2 - Advanced NAV-WAR Open Air (ANOA) System-Articles.pdf

DEPARTMENT OF THE AIR FORCE

HEADQUARTERS AIR FORCE MATERIEL COMMAND

WRIGHT-PATTERSON AIR FORCE BASE OHIO

One AFMC…Powering the World’s Greatest Air Force

14 APR 26

FROM: AFMC/AFTC/PZIA (Arnold) 100 Kindel Drive Arnold AFB, TN 37389-1332

SUBJECT: Agreement Articles: Advanced NAV-WAR Open Air (ANOA) System

Article Definitions

As used throughout this Agreement, the following terms shall have the meanings set forth below:

• Acceptance: The Government's formal, written acknowledgement that a prototype, deliverable, or milestone has been successfully demonstrated to meet the pre-defined Acceptance Criteria.

• Acceptance Criteria: The specific, measurable, and testable requirements that a prototype, deliverable, or milestone must meet to be accepted by the Government, as detailed in the

Acceptance Test Plan or Statement of Work.

• Agreement: This Other Transaction (OT) Agreement, executed under the authority of 10 U.S.C. §

4022, including all attachments and subsequent modifications.

• Agreements Officer (AO): The Government official with the authority to enter into, administer, and modify this Other Transaction Agreement on behalf of the Government.

• Consequential Damages: Indirect, special, incidental, or punitive damages, including but not limited to, lost profits, loss of use, loss of revenue, or loss of data.

• Contractor / Performer/ Vendor: The non-government party to this Agreement.

• Controlled Unclassified Information (CUI): Information the Government creates or possesses, or that an entity creates or possesses for or on behalf of the Government, that a law, regulation, or

Government-wide policy requires or permits an agency to handle using safeguarding or dissemination controls.

• Cure Notice: A written notice from the non-breaching Party that details a material failure of performance and provides the breaching Party with a specified period to correct the failure.

• Cyber Incident: An action taken through the use of computer networks that results in a compromise or an actual or potentially adverse effect on an information system or the Controlled

Unclassified Information (CUI) residing therein.

• Cybersecurity Maturity Model Certification (CMMC): The DoD's framework for verifying that a

Performer has implemented the required cybersecurity standards to protect CUI.

• Direct Damages: The damages that arise naturally and foreseeably from a breach of this

Agreement in the usual course of events. This does not include Consequential Damages as defined above.

• Equitable Settlement: A negotiated amount intended to fairly compensate a Party for work performed and costs incurred, particularly in the event of a termination.

• Force Majeure: An event beyond the reasonable control of a Party and without their fault or negligence that delays or prevents performance of an obligation under this Agreement. Such events may include, but are not limited to, acts of God, acts of a public enemy, acts of the

Government in its sovereign capacity, fires, floods, epidemics, quarantine restrictions, strikes, and freight embargoes.

• Government Purpose Rights: The right for the Government to use, modify, reproduce, and disclose technical data or computer software within the Government without restriction; and to release or disclose it outside the Government and permit its use for U.S. Government purposes only.

• Latent Defect: A hidden defect in a delivered item that existed at the time of acceptance but was not discoverable through a reasonable inspection or the execution of the Acceptance Criteria.

• Limited Rights (for Technical Data): The right for the Government to use, modify, and reproduce technical data within the Government only. The Government may not disclose the data outside the Government or use it for manufacturing without the Performer’s express written permission.

• Milestone: A specific, demonstrable event or accomplishment defined in the "Milestone and

Payment Schedule" that, upon successful completion and acceptance, triggers a payment to the

Performer.

• Milestone and Payment Schedule: The structure to this Agreement that details all payable milestones, the specific completion criteria for each, and the corresponding payment amounts.

• Modification: A formal, written change to this Agreement that is signed by the authorized representatives of both Parties.

• Party / Parties: The Government and the Performer, individually or collectively.

• Restricted Rights (for Computer Software): The right for the Government to use computer software within the Government only. The Government may not decompile, reverse engineer, or disclose the software outside the Government without the Performer’s express written permission.

• Statement of Objectives (SOO) / Statement of Work (SOW): The attachment to this Agreement that describes the scope of work, tasks, and deliverables required of the Performer.

• Unlimited Rights: The right for the Government to use, modify, reproduce, disclose, perform, display, or release technical data or computer software in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.

Article: Demonstration and Acceptance

A. Inspection and Conformance Verification

1. Conformance to Requirements: The Performer shall be responsible for ensuring all delivered hardware, software, and data strictly conform to the requirements outlined in Atch 1 - Advanced

Nav-War Open Air (ANOA)- Performance Parameters and the Government-approved Statement of Work (SOW) delivered under the Business Process Prototype. All verification activities will be conducted in accordance with the Performer’s Government-approved quality plan.

2. Government Inspection: The Government reserves the right to inspect any or all deliverables under this agreement at the Performer’s facility, at the destination, or at designated test and evaluation sites. The Performer shall provide and maintain an inspection and test system acceptable to the Government.

3. Notification of Readiness: For any deliverables or milestones requiring Government source inspection or witnessing of tests prior to acceptance, the Performer shall notify the Agreements

Officer in writing at least fifteen (15) days in advance of the items being ready for inspection or test.

4. Records of Inspection and Test: The Performer shall maintain records of all inspection work and tests, including material certifications, software scans, and dimensional/performance verifications, and shall make them available to the Government upon request.

B. Acceptance

Final acceptance for this prototype project is contingent upon the achievement of the key outcomes that define each successful prototype phase. Acceptance shall be granted only after the conditions for each phase, as defined below, are met to the satisfaction of the Government. The Agreements Officer (or a designated representative) will provide formal written notice of acceptance for each milestone.

1. Acceptance of Business Process Prototype: Acceptance of this prototype shall be granted upon the Government's formal written determination that the Performer's delivered Statement of Work

(SOW) is complete, actionable, clearly defines the execution plan for the project, and is in accordance with Atch 1 - Advanced Nav-War Open Air (ANOA)- Performance Parameters.

2. Acceptance of Proof of Concept Prototype: Acceptance of this prototype shall be granted upon the Government’s formal written determination that the Performer has successfully:

• Completed all design reviews (10%, 60%, 100%).

• Delivered one (1) functional ANOA system in accordance with the approved SOW.

• Demonstrated through Government-witnessed testing that the delivered system meets the performance parameters defined in Atch 1.

3. Acceptance of Operational Utility Prototype: Acceptance of the Operational Utility Prototypes applies to the physical hardware delivered under the operational utility milestone options (7 additional systems and 2 spares). Acceptance for each delivered system is contingent upon:

• The successful completion of destination inspection and testing by the Government, verifying that the delivered system conforms to the approved SOW and Atch 1.

• The Government's formal acceptance of all accompanying inspection, test, and certification records provided by the Performer.

Final acceptance of each delivered system will be documented in writing by a designated Government representative.

Article: Assignment of Payments

The Performer may assign its rights to receive payments due under this Agreement to a bank, trust company, or other financing institution. Any such assignment must be made in writing and provided to the Agreements Officer and the designated payment office.

However, the Performer may not assign its rights to receive payment if such payment is made directly by a third party.

Article: Agreement Modifications

A. Mutual Agreement for Changes

Either Party may propose changes to the scope, schedule, price, or other material terms of this Agreement.

All such changes shall be subject to negotiation between the Parties.

B. Formalization of Changes

No change shall be effective until it is captured in a formal, written modification to this Agreement, signed by the authorized representatives of both the Government and the Performer.

C. Administrative Changes

Purely administrative changes, such as updating points of contact or correcting accounting information, may be made unilaterally by the Government’s Agreements Officer via written notice to the Performer.

Article: Collaborative Dispute Resolution

A. Guiding Principles

The Parties shall engage in timely, cooperative, and good-faith communication to resolve any dispute, claim, or disagreement arising from or related to this Agreement. All disputes, including but not limited to allegations of breach, shall be first resolved exclusively under the procedures set forth in this Article.

B. Resolution Process

1. Initial Resolution: When disputes, misunderstandings, or disagreements arise, the Parties agree to make reasonable efforts to resolve them through discussion and mutual agreement at the earliest opportunity between their respective Project Managers.

2. Senior-Level Escalation: If the Parties are unable to reach a mutually agreed solution within fifteen (15) business days, the matter shall be considered a conflict to be resolved between the

Government's Agreements Officer and Legal Team and the Performer’s designated senior leadership and Legal Team.

3. Formal Notice: If the conflict remains unresolved by mutual agreement, the aggrieved Party shall formally document the dispute by notifying the other Party through the cognizant Agreements

Officer. The notification shall include the relevant facts, the unresolved issues, the clarification or remedy sought, and the rationale for why the requested remedy is appropriate.

4. Written Response: The Party receiving the notice shall provide a written response detailing its position and a proposed resolution within thirty (30) business days.

5. Seeking Further Relief: Upon the issuance of the final decision, and only after the escalation procedures above have been exhausted, the aggrieved Party may pursue any available relief. The

Performer acknowledges that state courts and agencies lack jurisdiction over the Federal

Government. Therefore, any litigation shall be brought exclusively in a United States Federal

Court of competent jurisdiction. The Contract Disputes Act shall not apply to this Agreement.

Nothing in this Agreement shall be construed as a waiver of the Government’s sovereign immunity or consent to suit except as otherwise authorized by law

C. Alternative Dispute Resolution (ADR)

At any stage, the Parties may mutually agree in writing to utilize an ADR procedure to resolve a dispute.

• Selection of Neutral: Any appointed mediator or arbitrator shall be mutually agreed upon by both

Parties. If the Parties cannot agree on a neutral party within thirty (30) days, they shall request a list of qualified neutrals from a reputable ADR organization (such as the American Arbitration

Association or JAMS) to facilitate the selection.

• Costs: Unless otherwise agreed to in writing, the costs of arbitration or mediation shall be shared equally by both Parties.

Article: Excusable Delays

A. Definition

Neither the Government nor the Performer shall be considered in breach or default of this Agreement for a failure or delay in performance caused by an event beyond their reasonable control and without their fault or negligence. Such events, often referred to as Force Majeure, may include, but are not limited to:

acts of God, acts of a public enemy, acts of the Government in its sovereign capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, or unusually severe weather.

B. Notification and Mitigation

The Party affected by such an event shall provide prompt written notice to the other Party, describing the event, its cause, and its anticipated impact on performance. The affected Party shall also make all reasonable efforts to mitigate the effects of the event and minimize any delay.

C. Agreement Adjustment

Upon receipt of the notice, the Parties shall promptly consult to determine the appropriate path forward. If the event results in a material impact on the Agreement's cost or schedule, the Parties shall negotiate an equitable adjustment to the relevant terms of the Agreement, to be captured in a formal modification.

Article: Intellectual Property Indemnification

A. Indemnification

The Performer shall defend and indemnify the Government and its officers, employees, and agents against liability, including costs, for any claim of patent, trademark, or copyright infringement arising from the prototype or services delivered under this Agreement (the "Claim").

B. Exceptions to Indemnification

This indemnification shall not apply to any Claim to the extent it arises from:

1. The Performer’s compliance with specific, detailed written specifications or design direction provided by the Government;

2. The use of Government-Furnished Information, software, or property; or

3. A modification to the prototype or service made by the Government without the Performer’s consent.

C. Procedure

In the event of a Claim:

1. The Government shall provide prompt written notice of the Claim to the Performer.

2. Once the Performer has indemnified the Government, the Performer shall have the right to control the defense and settlement of the Claim.

3. The Government shall provide reasonable information and assistance to the Performer, at the

Performer’s expense, in the defense of the Claim.

4. The Performer shall not agree to any settlement that imposes a financial obligation or admits liability on the part of the Government without the Government’s prior written consent, which shall not be unreasonably withheld.

Article: Payment and Invoicing

A. Basis for Payment

The Government shall pay the Performer on a Firm-Fixed-Price (FFP) basis for the successful completion of each prototype milestone defined in this Agreement. Payment is strictly contingent upon the Government's formal written acceptance of each prototype milestone as defined in the "Demonstration and Acceptance" Article.

B. Invoicing Instructions

Upon receiving the Government's formal written notice of acceptance for a specific prototype milestone, the Performer is authorized to submit a proper invoice for the FFP amount associated with that accepted milestone. Each invoice must, at a minimum, reference this Agreement number and clearly identify the specific milestone being invoiced

(e.g., "Business Process Prototype," "Proof of Concept Prototype"). For any deliverables under the Operational Utility Prototype options, the invoice must also reference the specific

Agreement modification that exercised the option. Invoices shall be submitted electronically in accordance with the instructions provided by the Agreements Officer.

C. Payment Terms

The Government shall make payment within thirty (30) days of receiving a proper and accurate invoice.

D. Overpayments and Other Debts

1. Overpayments: If the Government has made an overpayment or duplicate payment, the Performer shall promptly remit the excess amount to the payment office cited in this Agreement. The remittance shall include a description of the overpayment, the

Agreement number, and the affected milestone.

2. Other Debts: Any amount payable from the Performer to the Government shall be considered a debt. The Parties shall first seek to resolve any debts by mutual agreement. If unresolved, amounts due to the Government may accrue interest in accordance with applicable U.S. Treasury regulations.

E. Invoicing

The contractor shall submit invoices through Wide Area Workflow (WAWF), https://wawf.eb.mil/, and incorporate the data from the table below:

Invoice Type: Combo

Pay Official DoDAAC: F03000

Issue By DoDAAC: FA9101

Admin DoDAAC: FA9101

Inspect By DoDAAC: TBD

Ship To Code: FY1476

WAWF POC:

disa.global.servicedesk.mbx.eb

- ticket-requests@mail.mil

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

Article: Risk of Loss

The Performer shall bear all risk of loss or damage to the prototype and any other items delivered under this Agreement until they are formally accepted by the Government, as defined in the "Testing, Demonstration, and Acceptance" article.

mailto:ticket-requests@mail.mil

The Performer's responsibility includes the safe transport and delivery of all items to the destination(s) specified in this Agreement, including Arnold Air Force Base, TN.

Article: Taxes and Duties

The Performer is responsible for identifying and paying all applicable Federal, State, and local taxes and duties associated with its performance under this Agreement.

The mutually agreed-upon price of this Agreement is all-inclusive, and the Government shall not be responsible for, nor shall the price be adjusted to accommodate, such taxes or duties.

Article: Termination for Convenience

A. Government's Right to Terminate

The Government may terminate this Agreement, in whole or in part, for its convenience by providing written notice to the Performer.

B. Performer's Obligations

Upon receipt of the termination notice, the Performer shall:

1. Immediately cease all work as directed in the notice.

2. Place no further subcontracts or orders for materials or services, except as necessary for completing the non-terminated portion of the Agreement.

3. Take all reasonable steps to minimize costs allocable to the work covered by the notice.

C. Settlement and Payment

Following termination, the Parties shall negotiate a fair and equitable settlement. The Government shall pay the Performer for:

1. All work acceptably performed and milestones completed prior to the effective date of termination.

2. Reasonable, demonstrable costs incurred by the Performer as a direct result of the termination, such as costs for settling subcontracts.

For the purpose of this settlement, the Performer is not required to comply with the Cost Accounting

Standards or the cost principles of the Federal Acquisition Regulation (FAR). However, the Government reserves the right to audit only those records necessary to verify the specific costs claimed as part of the termination settlement. The Performer shall not be paid for any costs that could have been reasonably avoided.

Article: Termination for Default

A. General Default and Cure Notice

For any failure by the Performer to perform a material obligation under this Agreement, the Government may provide a written "cure notice" to the Performer. The notice shall describe the failure in reasonable detail and state the Government’s intent to terminate this Agreement for default if the failure is not corrected. The Performer shall have thirty (30) days from receipt of the notice (or a longer period if mutually agreed in writing) to cure the failure to the Government’s reasonable satisfaction. If the

Performer fails to cure the material failure within the specified period, the Government may terminate this

Agreement for default, in whole or in part.

Material failures for this project include, but are not limited to:

• Failure to deliver an acceptable Statement of Work for the Business Process Prototype.

• Failure to meet a scheduled design review or deliver a functional system for the Proof of Concept

Prototype.

• Failure of a delivered system to conform to the requirements of Atch 1 - Advanced Nav-War

Open Air (ANOA)- Performance Parameters or the approved SOW.

• Failure to meet agreed-upon delivery schedules for any prototype milestone.

B. Immediate Termination for Critical Breach

Notwithstanding the cure period described in Section A, the Government may terminate this Agreement for default, effective immediately upon written notice, for any breach that is of such a serious nature that it is not susceptible to cure. Such breaches include, but are not limited to, fraud, willful misconduct, or a systemic failure of the Performer’s quality management system that demonstrates a disregard for the

Government's technical requirements.

C. Rights and Remedies upon Termination

In the event of a termination for default under either Section A or B:

1. The Government shall pay the Performer the agreed-upon Firm-Fixed-Price for any prototype milestones that have been formally accepted by the Government prior to the effective date of termination. No payment shall be made for partially completed milestones.

2. The Government may require the Performer to deliver to the Government any completed or partially completed deliverables, data, or work in progress. The Performer shall be compensated for such items in an amount mutually agreed upon by both Parties, which shall not exceed the proportional value of the work performed.

3. The rights and remedies of the Government in this article are in addition to any other rights and remedies provided by law or under this Agreement.

Article: Title and Ownership

A. Title to Deliverables

Title to the prototype and any other physical items delivered by the Performer under this Agreement shall pass to the Government upon the Government’s formal written acceptance of those items. This transfer of title is effective regardless of when or where the Government takes physical possession.

B. Title to Government Property

Title to any property furnished by the Government to the Performer for use under this Agreement

("Government-Furnished Property") shall remain with the Government at all times.

Article: Limited Warranty

A. Scope of Warranty

The Performer warrants that each functional ANOA system delivered under this Agreement will be free from defects in material and workmanship and will conform to the technical and performance requirements outlined in Atch 1 - Advanced Nav-War Open Air (ANOA)- Performance Parameters and the Government-approved Statement of Work (SOW).

B. Warranty Period

This warranty shall apply to the Proof of Concept Prototype and each system delivered under the

Operational Utility Prototype options. The warranty shall remain in effect for a period of one (1) year from the date of the Government's formal acceptance of each individual system.

C. Remedy

Should any system fail to conform to this warranty within its specified warranty period, the Government shall provide written notice to the Performer. The Performer shall, at its own expense and election, promptly repair or replace the defective system or its non-conforming components. The Performer shall be responsible for all costs associated with returning the repaired or replaced system to the Government-designated destination.

D. Exclusions

This warranty does not extend to any defect or failure resulting from:

1. Normal wear and tear from operational use;

2. Improper installation, maintenance, or modification performed by the Government or its agents;

3. Accidental or intentional damage caused by the Government after acceptance; or

4. Operation of the system by the Government in a manner or environment inconsistent with the operational parameters specified in Atch 1 and the approved SOW.

Article: Limitation of Liability

A. Disclaimer of Consequential Damages

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT,

SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN

CONNECTION WITH THIS AGREEMENT...

B. Cap on Direct Damages

Except for the obligations set forth in the "Intellectual Property Indemnification" article and liability for willful misconduct, each Party's total cumulative liability to the other for direct damages arising from or related to this Agreement shall not exceed the total price of this Agreement. For the purposes of this article, the "total price" is defined as the sum of all funds paid or obligated to be paid by the Government for the base effort and any options that have been formally exercised.

Article: Compliance with Law and Agreement Status

A. General Compliance

The Performer shall comply with all Federal, State, and local laws that are generally applicable to commercial businesses operating within the United States.

B. Status of this Agreement

The Parties agree and acknowledge that this Agreement is an Other Transaction executed under the authority of 10 U.S.C. § 4022. It is not a procurement contract and is therefore not subject to the Federal

Acquisition Regulation (FAR) or its supplements, except for any law or regulation that is made specifically applicable to Other Transactions by Federal statute.

Article: Specific Statutory Requirements

A. Agreement Status

The Parties acknowledge that this Agreement is an Other Transaction executed under the authority of 10

U.S.C. § 4022 and is not a Federal procurement contract. As such, it is not subject to the laws and regulations specifically applicable to procurement contracts.

B. Applicable Statute

The Performer agrees to comply with 31 U.S.C. § 1352, “Limitation on use of appropriated funds to influence certain Federal contracting and financial transactions,” which is made applicable to this

Agreement by law. This statute requires the Performer to certify that it has not and will not use federally appropriated funds to lobby any Federal agency or Congress in connection with the award or modification of this Agreement.

Article: Third-Party Terms of Service (TOS) and End User License Agreements (EULAs)

A. Context

The Parties acknowledge that performance under this Agreement may require the use of commercial products or services (e.g., software, cloud services) that are subject to a provider’s standard EULA or

TOS.

B. Unenforceable Provisions

The U.S. Government is prohibited by Federal law (including the Anti-Deficiency Act, 31 U.S.C. § 1341) from agreeing to certain terms commonly found in commercial EULAs and TOS. Accordingly, any provision that would create an open-ended or undefined financial obligation for the Government, including but not limited to clauses requiring indemnification of the provider, is unenforceable against the

Government and shall be deemed stricken from such EULA or TOS.

C. Acceptance of Terms

No action by a Government employee or authorized end-user, including the act of clicking "I agree" to a

"click-wrap" or "browse-wrap" agreement, shall be construed as binding the Government to any unenforceable provision as described in Paragraph B.

D. Exception

This article does not apply to any indemnification by the Government that is expressly authorized by a separate Federal statute.

Article: Limitation of Obligation and Milestone Funding

A. Incremental Funding

This Agreement is/may be incrementally funded. The total estimated value of the Agreement is $[Total

Estimated Value]; however, only a portion of this amount is currently available for performance. The

Government’s total liability under this Agreement is limited to the amount of funds allotted.

B. Funds Currently Allotted

The total amount of funds currently allotted and available for payment by the Government under this

Agreement is $[Amount Currently Allotted].

C. Performer's Obligation to Limit Work

The Performer is authorized to perform work and incur costs up to the total amount of funds currently allotted. The Performer is not authorized, and agrees it shall not, continue work or incur costs beyond this point. The Government will not be obligated to reimburse the Performer for any costs incurred in excess of the funds allotted.

D. Notification Requirement

The Performer shall monitor its expenditures and shall notify the Agreements Officer in writing at least sixty (60) days before it anticipates that its costs will exceed 80% of the currently allotted funds. This notification shall include an estimate of the additional funding and the date required to continue performance without interruption.

E. Funding of Future Work

The Government anticipates allotting additional funds for subsequent milestones as work progresses and subject to the availability of appropriations. The allotment of any additional funds shall be made via a formal, written modification to this Agreement signed by both Parties. Nothing in this Article shall be construed as obligating the Government to allot additional funds at any time.

Article: Intellectual Property Rights

A. Guiding Principles

In accordance with the Performer’s proposal and the terms of the Request for Whitepaper (RWP) under which this Agreement was awarded, the Government shall receive Unlimited Rights to all technical data and computer software first produced, conceived, or reduced to practice in the performance of this

Agreement. This structure ensures the Government has the unrestricted rights necessary for the operation, maintenance, and sustainment of the ANOA system.

B. Definitions

1. "Unlimited Rights": The rights of the Government to use, disclose, reproduce, prepare derivative works, distribute, and perform publicly and display publicly, in any manner and for any purpose whatsoever, and to have or permit others to do so.

2. "Background IP": All technical data and computer software developed exclusively at private expense and not first produced, conceived, or reduced to practice in the performance of this

Agreement.

3. "Foreground IP": All technical data and computer software first produced, conceived, or reduced to practice in the performance of this Agreement. This includes, but is not limited to, all data, software, designs, and processes delivered as part of the Business Process Prototype, Proof of

Concept Prototype, and any optional Operational Utility Prototypes.

C. Allocation of Rights for This Agreement

1. Background IP: Ownership of Background IP shall remain with the Performer. The Performer is not required to deliver its Background IP to the Government. However, the Performer warrants that the Government's Unlimited Rights in the Foreground IP are sufficient to allow for the use, modification, and sustainment of the delivered systems without reliance on any Performer

Background IP.

2. Foreground IP: The Government shall receive Unlimited Rights for all Foreground IP. The

Performer agrees to provide all Foreground IP to the Government upon request or at the conclusion of the Agreement.

D. Marking of Data

The Performer shall not place any restrictive markings on any Foreground IP delivered under this

Agreement. Any technical data or computer software asserted to be Background IP and delivered to the

Government must be clearly marked with an appropriate restrictive legend and identified in an attachment to this Agreement prior to delivery. Any technical data or software delivered without an approved restrictive marking shall be presumed to have been delivered with Unlimited Rights.

E. Sub-agreements

The Performer shall include this Article, suitably modified to identify the parties, in all sub-agreements at any tier to ensure the Government acquires Unlimited Rights in all Foreground IP developed by subcontractors in the performance of this Agreement.

Article: Stop-Work Order

A. Issuance of Order

The Agreements Officer (AO) may, at any time, by written order to the Performer, require the Performer to stop all, or any part, of the work required by this Agreement for a specified period. Upon receipt of the order, the Performer 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.

B. Action Following Stoppage

Upon the conclusion of the stop-work period, the AO shall either:

1. Cancel the Stop-Work Order and direct the Performer to resume work; or

2. Terminate the work covered by the order in accordance with the "Termination" article of this

Agreement.

C. Equitable Adjustment

If a Stop-Work Order is canceled and the Performer resumes work, the Parties shall negotiate an equitable adjustment to the delivery schedule, price, or any other term of the Agreement affected by the work stoppage, provided that:

1. The stop-work order resulted in an increase in the time or cost required for the performance of any part of this Agreement; and

2. The Performer notifies the AO of its intent to seek an adjustment within thirty (30) days after the work resumes.

Article: Delivery

A. Delivery Responsibility

The Performer shall be responsible for all costs and arrangements related to the packaging, transportation, and delivery of all items and deliverables to the destination(s) specified in this Agreement, including Holloman Air Force Base, NM.

B. Risk of Loss

Risk of loss or damage to all items and deliverables shall remain with the Performer until the

Government's formal written acceptance of those items, as further defined in the "Testing, Demonstration, and Acceptance" article.

C. Good Order and Condition

All items shall be delivered in good order and condition, conforming to the requirements of this

Agreement. The Performer shall provide the Government with a delivery schedule and necessary shipping documentation.

Article: Defense Priorities and Allocation System (DPAS)

This Agreement is a rated order, certified for national defense, emergency preparedness, and energy program use under the Defense Priorities and Allocations System (DPAS). The Performer shall comply with all applicable requirements of the DPAS regulation (15 CFR Part 700).

Article: System for Award Management (SAM)

The Performer shall maintain an active registration in the System for Award Management (SAM) for the purposes of entity validation and electronic payment processing. This registration must be maintained throughout the entire period of performance of this Agreement, including through final payment.

The Parties agree that this requirement is for administrative and payment purposes only and does not incorporate the standard Federal Acquisition Regulation (FAR) "Representations and Certifications" from the SAM.gov portal into this Other Transaction Agreement. The Performer's binding representations for this Agreement are exclusively those stated in the "Performer Representations" article.

Article: Country of Origin

A. Policy

It is the policy of the Department of Defense to prioritize products and components manufactured in the

United States or its qualifying countries.

B. Performer Representation

The Performer represents that, to the best of its ability and knowledge, the end products delivered under this Agreement will be manufactured in the United States or a "qualifying country." For the purposes of this article, a "qualifying country" is defined as a country that has a reciprocal defense procurement memorandum of understanding or international agreement with the United States. As of the date of this

Agreement, these countries include: Australia, Austria, Belgium, Canada, Czech Republic, Denmark, Egypt, Estonia, Finland, France, Germany, Greece, Israel, Italy, Japan, Latvia, Lithuania, Luxembourg, Netherlands, Norway, Poland, Portugal, Slovenia, Spain, Sweden, Switzerland, Turkey, and the United

Kingdom.

C. Waiver

The Government's Agreements Officer may authorize the acquisition of products from other countries if it is determined to be in the Government's best interest for the successful execution of this prototype project.

Article: Cyber Incident Reporting and Response

A. Definition of Cyber Incident

For the purposes of this article, a "Cyber Incident" is an action taken through the use of computer networks that results in a compromise or an actual or potentially adverse effect on the Performer's information system or the Controlled Unclassified Information (CUI) residing therein.

B. Incident Reporting Requirement

1. Rapid Reporting: When the Performer discovers a Cyber Incident, it shall rapidly report the incident (within 72 hours) to the Department of Defense at the DIBNet portal: https://dibnet.dod.mil.

2. Access Certificate: The Performer is responsible for obtaining and maintaining the required DoD-approved medium assurance certificate to access the DIBNet portal for reporting.

C. Post-Incident Cooperation

Following a Cyber Incident report, the Performer shall:

1. Preserve Data: Preserve and protect images of all known affected information systems and all relevant monitoring and packet capture data for at least 90 days from the submission of the report.

2. Provide Access: Upon request from the Agreements Officer, provide the Government with access to additional information or equipment necessary to conduct a forensic analysis and damage assessment.

3. Submit Malicious Software: Submit any malicious software discovered in connection with the incident to the DoD Cyber Crime Center (DC3) in accordance with their instructions.

D. Protection of Performer Information

The Government shall protect any of the Performer's confidential or proprietary information that is shared during an incident investigation to the maximum extent permitted by law, including through the exercise of applicable Freedom of Information Act (FOIA) exemptions.

E. Sub-agreements

The Performer shall flow down the substance of these reporting and cooperation requirements to all sub-agreements where CUI is handled. The Performer shall require its subcontractors to rapidly report any

Cyber Incident directly to the Performer, who is then responsible for reporting to the DoD in accordance with this article.

Article: Prohibited Sources

A. Prohibition on Certain Telecommunications and Video Surveillance Equipment (Section 889)

In accordance with Section 889 of the National Defense Authorization Act for Fiscal Year 2019, the

Performer is prohibited from providing or using telecommunications or video surveillance equipment or services produced or provided by Huawei Technologies Company, ZTE Corporation, Hytera https://www.google.com/url?q=https%3A%2F%2Fdibnet.dod.mil

Communications Corporation, Hangzhou Hikvision Digital Technology Company, Dahua Technology

Company, or their subsidiaries.

B. Prohibition on Covered Defense Telecommunications Equipment or Services (Section 1656)

In accordance with Section 1656 of the National Defense Authorization Act for Fiscal Year 2018, the

Performer is prohibited from providing any equipment, system, or service that uses telecommunications equipment or services from The People’s Republic of China or The Russian Federation in systems supporting DoD's nuclear deterrence or homeland defense missions.

C. Prohibition on Kaspersky Lab Products and Services (Section 1634)

In accordance with Section 1634 of the National Defense Authorization Act for Fiscal Year 2018, the

Performer is prohibited from providing to the Government, or using in the performance of this

Agreement, any hardware, software, or service developed or provided, in whole or in part, by Kaspersky

Lab or its affiliates.

D. Prohibition on Certain Items from Communist Chinese Military Companies (Section 1261)

In accordance with Section 1261 of the National Defense Authorization Act for Fiscal Year 2021, the

Performer is prohibited from acquiring any items covered by the United States Munitions List (USML) or the "600 series" of the Commerce Control List (CCL), directly or indirectly, from any entity identified as a "Communist Chinese military company" by the Department of Defense.

E. Performer Representation

By executing this Agreement, the Performer represents that it will not provide or use any items, equipment, or services prohibited by the statutes referenced in Paragraphs A, B, C, and D.

F. Reporting and Flowdown

The Performer shall promptly report any discovery of such prohibited equipment, products, or services to the Agreements Officer and shall flow down the substance of this entire article to all sub-agreements.

Article: Prohibition on ByteDance Covered Applications

A. Prohibition

In accordance with the "No TikTok on Government Devices Act," the Performer is prohibited from having or using a "covered application" on any "project information technology."

B. Definitions

1. Covered Application: Means the social networking service TikTok or any successor application or service developed or provided by ByteDance Limited or its affiliates.

2. Project Information Technology: Means any information technology (including computers, mobile devices, and software) used by the Performer or its employees in the performance of this

Agreement. This also includes any information technology owned or managed by the

Government that the Performer may use.

C. Exception

This prohibition does not apply if the Agreements Officer provides prior written notification to the

Performer that a mission-critical exception has been granted in accordance with Federal policy.

D. Sub-agreements

The Performer shall flow down the substance of this article to all sub-agreements at any tier.

Article: Comptroller General Access to Records

In accordance with 10 U.S.C. § 4022(c)(1), the Comptroller General of the United States, or an authorized representative, shall have access to and the right to examine any records of the Performer, or any of its subcontractors, that directly pertain to this Agreement. This right of access shall exist for a period of three

(3) years after final payment under this Agreement.

Article: Duty-Free Entry

A. Policy and Purpose

To reduce the cost of performance, the Government will assist the Performer in obtaining duty-free entry for qualifying foreign supplies that are imported into the United States for the sole purpose of performing work under this Agreement.

B. Performer Responsibilities

1. Pricing: The Performer represents that the price of this Agreement excludes any U.S. customs duties for items it intends to import under this provision.

2. Notification: The Performer shall provide written notification to the Agreements Officer (AO) for any foreign supplies it intends to import duty-free. This notification must be provided with sufficient lead time for the Government to execute the necessary documentation.

3. Administration: The Performer is responsible for preparing and processing all necessary U.S.

Customs and shipping documentation. When shipping items directly to a U.S. military installation, then at least two elements are required related to Duty-Free Entry, as follows:

- Duty-Free Entry should be listed in the shipping documents

- Include the notation “UNITED STATES GOVERNMENT, DEPARTMENT OF DEFENSE

Duty-Free Entry to be claimed pursuant to Section XXII, Chapter 98, Subchapter VIII, Item

9808.00.30 of the Harmonized Tariff Schedule of the United States. Upon arrival of shipment at the appropriate port of entry, District Director of Customs, please release shipment under 19 CFR

Part 142 and notify Commander, Defense Contract Management Agency (DCMA), St. Louis, MO, ATTN: Duty Free Entry Team, 1222 Spruce Street, Room 9.300, St. Louis, MO 63103-

2812, for execution of Customs Form 7501, 7501A, or 7506 and any required duty-free entry certificates.”

C. Government Responsibilities

Upon request from the Performer, the Government's authorized representative will execute the necessary

Duty-Free Entry Certificates and provide reasonable assistance to the Performer in coordinating with U.S.

Customs.

D. Improper Use

The Performer shall be solely responsible for and agrees to pay any and all customs duties if items imported duty-free under this provision are used for any purpose other than the performance of this

Agreement.

E. Flowdown

The Performer shall flow down the substance of this article to all sub-agreements where foreign supplies may be imported for the performance of this Agreement.

Article: Phased Execution and Optional Milestones

A. Phased Approach

This prototype effort shall be executed in sequential phases. The mandatory portion of this Agreement is comprised of the following milestones:

• Milestone 1: Business Process Prototype

• Milestone 2: Proof of Concept Prototype

The subsequent phase, defined as the Operational Utility Prototype, consists of optional milestones for the delivery of seven (7) additional ANOA systems and two (2) spares.

B. Exercise of Options

1. Nature of Options under this Agreement: For the purposes of this Agreement, an "Option" refers to the potential work described under the Operational Utility Prototype. The Parties explicitly agree that these are not "options" as defined in the Federal Acquisition Regulation (FAR). The

Government does not possess a unilateral right to exercise them. The exercise of any Option is contingent upon the successful completion of the preceding mandatory milestones.

2. Bilateral Modification Required: The Government may initiate the process to exercise an Option by providing written notice to the Performer. The exercise of any Option shall be finalized only through a formal, bilateral written modification to this Agreement, signed by the authorized representatives of both Parties. This modification will confirm the scope, schedule, and final price for the systems being acquired under the Option.

C. No Obligation

The Government is under no obligation to exercise any or all of the Options for the Operational Utility

Prototype. The Performer acknowledges that the Firm-Fixed-Price for the mandatory Business Process and Proof of Concept prototypes is not contingent on the Government's decision to exercise any future

Options.

Article: Government Property

A. Government-Furnished Property (GFP)

The Government does not anticipate providing any Government-Furnished Property (GFP) under this

Agreement.

B. Title to Deliverables

1. Proof of Concept and Operational Utility Prototypes: Title to the functional ANOA system(s) delivered under the Proof of Concept Prototype and any exercised Operational Utility Prototype options shall pass to the Government upon formal written acceptance and final payment for that specific milestone or deliverable.

2. Business Process Prototype: Title and all rights to the Statement of Work and any other data or documentation delivered as the Business Process Prototype shall pass to the Government upon acceptance and payment for that milestone, in accordance with the "Intellectual Property Rights" article of this Agreement.

3. Risk of Loss: Prior to the Government's formal written acceptance of a physical deliverable, the

Performer shall bear all risk of loss or damage. The Performer shall be responsible for insuring the deliverable until acceptance occurs. Following acceptance, the risk of loss or damage shall transfer to the Government.

Article: Order of Precedence

In the event of any inconsistency, ambiguity, or conflict among the documents comprising this

Agreement, the inconsistency shall be resolved by giving precedence in the following order:

1. Formal Modifications to this Agreement: Any bilateral, written modification signed by the authorized representatives of both Parties, including modifications exercising an Option, shall take precedence over all other documents.

2. The Body of this Agreement: The terms and conditions contained within the main body of this

Agreement (these Articles) shall take precedence over all attachments and referenced documents.

3. The Performer's Government-Approved Statement of Work (SOW): The detailed SOW, delivered by the Performer and formally accepted by the Government as the "Business Process Prototype," shall take precedence over all documents listed below it.

4. Atch 1 - Advanced Nav-War Open Air (ANOA)- Performance Parameters: The performance parameters document defines the core technical requirements for the system and shall take precedence over the documents listed below.

5. The Request for Whitepaper (RWP): The Government's RWP shall be used to provide overarching context for the project's intent and structure.

6. The Performer's Final Accepted Whitepaper: The Performer's final whitepaper response, as accepted by the Government, is incorporated by reference. Its primary purpose is to provide context for the award and the Performer's foundational technical approach, but it shall not override any of the documents listed above.