MADO - OTA.pdf

OTA FOR PROTOTYPE AGREEMENT

OTHER TRANSACTION FOR PROTOTYPE AGREEMENT

Cyber Procurement Office

9800 Savage Road

Fort George G. Meade, MD 20755-6936

IN SUPPORT OF

MARITIME DONCASTER (MADO)

OTHER TRANSACTION AUTHORITY: 10 U.S.C. §2371b

This Agreement is entered into between the United States of America, hereinafter called the Government, represented by the USCYBERCOM – Acquisition Division (J9) and Company pursuant to and under U.S. Federal

Law.

ARTICLE 1: DEFINITIONS AND SCOPE OF AGREEMENT

DEFINITIONS

PROJECT SCOPE

ARTICLE 2: PROJECT MANAGEMENT

INSIGHT AND OVERSIGHT PROVISIONS

MODIFICATIONS TO THE AGREEMENT

TERM

TERMINATION AND ENFORCEMENT

DISPUTES

PROGRAMATIC REPORTING

PUBLICATION AND ACADEMIC RIGHTS

GOVERNMENT PROPERTY

POST AWARD ADMINISTRATION

ARTICLE 3: FUNDING

AGREEMENT TYPE

INVOICE REQUIREMENTS/PAYMENTS

WITHOLDING OF PAYMENTS

ARTICLE 4: ACCESS TO DATA

USE OF OTHER GOVERNMENT PERSONNEL

FOREIGN ACCESS TO TECHNOLOGY:

FINANCIAL RECORDS AND REPORTS

ARTICLE 5: INTELLECTUAL PROPERTY RIGHTS

DATA AND SOFTWARE RIGHTS

Identification of Principal Rights

NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT

ARTICLE 6: REPRESENTATIONS AND CERTIFICATIONS

ARTICLE 7: NATIONAL ASSURANCES

ARTICLE 8: EVALUATION OF AWARD

ARTICLE 9: PREPERATION AND SUBMISSION INSTRUCTIONS

ARTICLE 1: DEFINITIONS AND SCOPE OF AGREEMENT

This Agreement, including the Attachments, constitutes the entire Agreement of the Parties and supersedes all prior agreements, understandings, negotiations and discussions among the parties, whether oral or written. The principle purpose of this OTA will be to provide system development services to achieve and maintain superiority in the cyberspace domain, deliver strategic and operational advantages for the Joint Force, and defend and advance our national interests. In order to achieve this United States Cyber Command (USCYBERCOM) has developed a strategic plan to provide a joint cyber warfare architecture that includes operations platforms. As a means to develop the underpinning infrastructure to deliver the operations platforms USCYBERCOM has authorized an Wide Area Network (WAN) ring that will serve as foundational infrastructure for follow on services and capabilities to utilize. This agreement is subject to the availability of funds.

DEFINITIONS

Administrative Data: as used here in shall include information incidental to Agreement administration, such as financial, administrative, cost, or management information.

Administrative data shall not be subject to restrictive markings.

Affiliates: as used herein shall mean associated business concerns or individuals if, directly or indirectly, either one controls or can control the other, or a third party controls or can control both, where “control” means having the ability (including, without limitation, by means of majority voting rights or the right to appoint or remove a majority of the board of directors), to control the management and policies of an entity.

Agreement or OTA: as used herein shall mean these Articles and Attachments hereto.

Company or Vendor: as used herein shall mean “awardee.”

Customer: as used herein shall mean USCYBERCOM and all affiliated Government Agencies listed in the Scope of Agreement, Section 2: OBJECTIVES AND SCOPE.

J9 Agreement Officer or AO: as used herein shall mean the employee of the J9 with the authority to legally bind the Government by singing this Agreement, and who is legally authorized to amend, administer, and/or terminate this Agreement. The J9 Agreement Officer is listed in the executed

Agreement.

Program Manager: as used herein shall mean the employee of USCYBERCOM providing technical direction to the company on behalf of the Government. The Program Manager is listed in Attachment 4 of this Agreement.

Data: means recorded information of a scientific or technical nature regardless of form or the media on which it may be recorded. The term does not include devices or methods that are subject inventions. The term includes technical data, computer software, computer software documentation, and computer databases.

Government: as used herein shall mean the United States of America, as represented by the J9 –

Acquisition Division (J9). The definition, when dealing with patent or data rights, shall extend to all Government Agencies.

Government-Furnished Data: as used herein shall mean data that is identified by the Government as being provided to the company under this Agreement and that is not otherwise available to the company through legal means.

Invoice: as used herein shall mean a written document submitted by the company through Wide

Area Workflow (WAWF) that requests payment.

Other Government Personnel: Personnel who support the J9 Program Manager. Personnel may include Systems

Engineering Technical Assistant Contractors who have approved non-disclosure agreements in place.

Parties: as used herein shall mean the COMPANY and the Government.

Property: as used herein shall mean material, equipment, special tooling, special testing equipment, machine tools, for use in the performance of work under this Agreement.

Sponsoring Government Activity: as used herein shall mean the J9 – Acquisition.

Supplier: as used herein means a third party from whom the COMPANY obtains services or supplies that do not require the disclosure to such Third Party of specific data or information that could provide such a party with substantial insight into the sensitive nature of the Government activity being conducted by the COMPANY under this Agreement.

Technical Report: as used herein shall mean the deliverable (draft and comprehensive) technical reports identified in Attachments 1.

Third Party: as used herein shall mean any person or entity other than the COMPANY and the

Government.

PROJECT SCOPE

This Agreement is an Other Transaction pursuant to 10 U.S.C. § 2371b. The principal purpose of this Agreement is to The principle purpose of this OTA will be to to provide system development services to achieve and maintain superiority in the cyberspace domain, influence behavior, deliver strategic and operational advantages for the Joint Force, and defend and advance our national interests. In order to achieve this United States Cyber Command (USCYBERCOM) has developed a strategic plan to provide a joint cyber warfare architecture that includes operations platforms. As a means to develop the underpinning infrastructure to deliver the operations platforms

USCYBERCOM has authorized an Wide Area Network (WAN) ring that will serve as foundational infrastructure for follow on services and capabilities to utilize.

ARTICLE 2: PROJECT MANAGEMENT

INSIGHT AND OVERSIGHT PROVISIONS

The Government and the COMPANY are bound to each other by duty of good faith and best effort in achieving the goals of the project. The COMPANY is responsible for the overall management of the project, including the technical, programmatic, reporting, financial and administrative matters. The Government provides collaboration and fully participates in technical and project status meetings. Other Government personnel, as deemed appropriate by the Government, may also participate in technical meetings and project status meetings.

Through the period of performance of the Agreement, the COMPANY shall maintain consistent communications with the Government concerning progress against the deliverables established within Attachment 2. The Government shall oversee progress and provide Government

Information and Government Furnished Data to further the objectives established within the scope of this Agreement.

MODIFICATIONS TO THE AGREEMENT

This agreement may only be modified by written consent of the Parties.

Recommendations for modifications, including justifications to support any changes to the production OTA and terms of this agreement may originate with either a request from the

COMPANY to the AOR and AO, or the Government through the AO. This documentation will detail the technical, chronological, and financial impact of the proposed modification to the program. The AO and the COMPANY shall approve any Agreement modification. The

Government is not obligated to pay for additional or revised future milestones until the Milestone

Payment chart in any ensuing task order is formally revised and made part of this Agreement.

The J9 Agreements Officer is the only individual who can amend the Agreement or commit the

Government to the expenditure of public funds. A commitment by other than the J9 Agreements

Officer, either explicit or implied is invalid.

The J9 Agreements Officer may unilaterally issue administrative amendments to this agreement

(e.g. changes in the paying office, appropriation data, or changes to the Government personnel identified in the Agreement). The COMPANY is not required to sign administrative amendments.

TERM

The Agreement commences upon the date of the last signature hereon and shall extend up to 6 months from award, unless otherwise modified. Any extension or reduction of such term shall be by mutual agreement of the Parties and effected through a bilateral modification or in accordance with the Termination and Enforcement provision.

TERMINATION AND ENFORCEMENT

Upon making a reasonable determination that the Project Scope will not produce beneficial results commensurate with the expenditure of resources, the Parties terminate this Agreement after upon mutual consent among both Parties. Should the Parties mutually terminate the agreement; the

Government will have no obligation to pay the COMPANY beyond the last completed deliverable.

Upon any termination or expiration of this Agreement, all rights granted to the Government hereunder shall terminate and the Government shall cease all use of the Service and

Documentation.

This award may be terminated in whole or in part by the J9 Agreements Officer, if the Company materially fails to comply with the terms and conditions of the award the J9 Agreements Officer, after issuance of a cure notice and failure of the Company to cure the defect within ten (10) calendar days or the time allowed by the J9 Agreements Officer after Company’s receipt of the cure notice, whichever is longer, may take one or more of the following actions as appropriate:

i) temporarily withhold payments pending correction of the deficiency,

ii) disallow all or part of the cost of the activity or action not in compliance,

iii) wholly or partly suspend or terminate this Agreement,

iv) withhold further funding, or

v) take any other legally available remedies.

NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY AMOUNTS IN

EXCESS OF THE AMOUNT PAID UNDER THIS AGREEMENT, WHETHER IN

CONTRACT, TORT, OR OTHERWISE. All claims for damages of any nature whatsoever pursued under this Agreement by either party shall be limited to direct damages only up to the aggregate amount of Government funding disbursed as of the time the dispute arises. In no event shall the either party be liable for claims for consequential, punitive, special, or incidental damages, claims for lost profits, or other indirect damages, EVEN IF AWARDEE HAS BEEN

ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, ALL

INFORMATION PROVIDED BY THE SERVICE IS PROVIDED “AS-IS” AND AWARDEE

SHALL NOT BE LIABLE FOR, AND GOVERNMENT ASSUMES ALL RISK OF,

DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO GOVERNMENT’S USE

THEREOF, INCLUDING ANY RELIANCE THEREON.

DISPUTES

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

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

(2) Whenever disputes, disagreements, or misunderstandings arise, the Parties shall attempt to resolve the issue(s) involved by discussion and mutual agreement as soon as practicable.

In no event shall a dispute, disagreement or misunderstanding which arose more than three

(3) months prior to the notification made under subparagraph 3 of this Article constitute the basis for relief under this Article unless the UNITED STATES CYBER COMMAND

Command Acquisition Executive (CAE) in the interests of justice waives this requirement.

(3) Failing resolution by mutual agreement, the aggrieved Party shall document the dispute, disagreement, or misunderstanding by notifying the other Party (through the J9 Agreement

Officer) in writing of the relevant facts, identify unresolved issues, and specify the clarification or remedy sought. Within five (5) working days after providing notice to the other Party, the aggrieved Party may, in writing, request a joint decision by the Head of

Contracting for the UNITED STATES CYBER COMMAND and the COMPANY delegate. The other Party shall submit a written position on the matter(s) in dispute within thirty (30) calendar days after being notified that a decision has been requested. The Head of Contracting for the UNITED STATES CYBER COMMAND and the COMPANY delegate shall conduct a review of the matter(s) in dispute and render a decision in writing within thirty (30) calendar days of receipt of such written position. Any such joint decision is final and binding.

(4) In absence of a joint decision, upon written request to the CAE, made within thirty (30) calendar days of the expiration of the time for a decision under subparagraph 3 above, the dispute shall be further reviewed. The CAE may elect to conduct this review personally or through a designee or jointly with the COMPANY’s delegate (no lower than a Vice

President level). Following the review, the CAE or designee will resolve the issue(s) and notify the Parties in writing. Such resolution is not subject to further administrative review and, to the extent permitted by law, shall be final and binding.

(5) In the event of a decision, either party may within thirty (30) calendar days of receipt of the notice in subparagraph 4 above may pursue any right or remedy provided by law in a court of competent jurisdiction as authorized by 28 U.S.C. 1491. Alternately, the parties may agree to explore and establish and Alternate Disputes Resolution procedure to resolve this dispute.

PROGRAMATIC REPORTING

In addition to the reports establish in the deliverables, the COMPANY shall provide special report

(verbal or written communications) of the following events for the J9 Agreements Officer and J9

Program Manager as soon as they occur:

1. Developments that have a significant favorable impact on the project, such as significant target accomplishments, significant tests, or experiments;

2. Problems, delays, or adverse conditions which materially impair the COMPANY’s ability to meet the objectives of the award. For example, the COMPANY must report any of the following incidents and include the anticipated impact and remedial action to be taken to correct or resolve the problem/condition:

a. Any incident which is anticipated to cause a significant schedule slippage;

b. Any other incident that has the potential for high visibility in the media.

Pursuant to PL 89-272, as amended, and Executive Order 13101, the Solid Waste Disposal Act, requires the COMPANY to use recycled paper for all reports submitted to the J9 Agreements

Officer.

PUBLICATION AND ACADEMIC RIGHTS

The COMPANY and the Government shall have the right to publish or otherwise disclose information and/or data developed by the Government and/or the respective COMPANY under this Agreement. The Parties shall have only the right to use, disclose, and exploit any such data in accordance with the rights held by them pursuant to the Agreement.

GOVERNMENT PROPERTY

Property: as used herein means tangible personal property acquired or fabricated under this award, other than property actually consumed during the execution of work under this agreement.

If the COMPANY will acquire property with an acquisition value greater than $5,000.00 under this Agreement, they must not acquire the property without the written consent from the J9

Agreements Officer. Title to acquired property will determined at time of request. Title to any other items of property acquired under this Agreement with an acquisition value of $5,000.00 or less shall vest in the COMPANY upon acquisition with no further obligation of the Parties unless otherwise determined by the J9 Agreements Officer. The COMPANY shall be responsible for the maintenance, repair, protection, and preservation of all property.

At the completion of the term of this Agreement, items of property with a per unit fair market value greater than $5,000.00 shall be disposed of in accordance with the disposition requirements of 32 CFR 34.21(e).

POST AWARD ADMINISTRATION

Post award administration shall be maintained by the J9 – Cyber Procurement Office.

During the course of performance, if inconsistencies are noted among the terms and conditions within the Agreement and the associated Attachments or collateral documents, the Agreement shall take precedence. Applicable laws, regulations, and departmental guidelines shall be used in resolving any inconsistencies.

It shall be the responsibility of the COMPANY to maintain the currency of the applicable

Representation and Certifications provided prior to the Award of the Agreement through the entire period of performance. The COMPANY shall maintain compliance with all Federal statutes, Executive orders, or regulations applicable to operating under a Partnership Intermediary

ARTICLE 3: FUNDING

AGREEMENT TYPE

The Government and the COMPANY shall enter into a Prototype Other Transaction Authority.

Please refer to executed agreement for accounting data.

INVOICE REQUIREMENTS/PAYMENTS

All invoices shall be submitted electronically in accordance with 52.232-33 SYSTEM FOR

AWARD MANAGEMENT (JUL 2013) and 252.204-7006 BILLING INSTRUCTIONS (OCT

2005).

WITHOLDING OF PAYMENTS

Pursuant to 32 CFR §34.12 (g), or unless otherwise required by statute, the J9 Agreements Officer may not withhold for proper charges made by the COMPANY during the project period for reasons other than the following:

1. A recipient has failed to comply with project objectives, the terms and conditions of the award, or Federal reporting requirements, in which case the J9 Agreements Officer may suspend payments in accordance with § 34.52;

2. The recipient is delinquent on a debt to the United States (see definitions of “debt” and

“delinquent debt” in 32 CFR 22.105). In that case, the J9 Agreements Officer may, upon reasonable notice, withhold payments for obligations incurred after a specified date, until the debt is resolved.

ARTICLE 4: ACCESS TO DATA

USE OF OTHER GOVERNMENT PERSONNEL

The J9 reserves the right to use technical assistance contractors to assess the COMPANY’s deliverables, reports and documentation of its accomplishments, where such reports and documentation may include proprietary information. Any such technical assistance contractor will be required to have executed, in advance of any such disclosure, an appropriate non-disclosure agreement with J9, requiring it to protect proprietary information from unauthorized use and disclosure, and to refrain from using such information for any purpose other than that for which it was furnished.

FOREIGN ACCESS TO TECHNOLOGY:

Foreign Firm or Institution: used herein means a firm or institution which is organized or existing under the laws of a country other than the United States, its territories, or possessions; is not an identified approved subawardee to this project; and is not a subsidiary or Affiliate within the corporate structure of which the COMPANY is a party. The term includes, for purposes of this

Article, any agency or instrumentality of a foreign government; and firms, institutions or business organizations which are owned or substantially controlled by foreign governments, firms, institutions, or individuals.

Know-How: used herein means all information including, but not limited to discoveries, formulas, materials, inventions, processes, ideas, approaches, concepts, techniques, methods, Software, programs, documentation, procedures, firmware, hardware, Data, specifications, devices, apparatus and machines.

Technology: used herein means discoveries, innovations, Know-How and Inventions, whether patentable or not, including Software, recognized under U.S. law as intellectual creations to which rights of ownership accrue, including, but not limited to, patents, trade secrets, maskworks, and copyrights developed under this Agreement.

General

The Parties agree that research findings and technology developments arising under this

Agreement may constitute a significant enhancement to the national defense, and to the economic vitality of the United States. Accordingly, access to important technology developments under this

Agreement by Foreign Firms or Institutions must be carefully controlled. The controls contemplated in this Article are in addition to, and are not intended to change or supersede, the provisions of the International Traffic in Arms Regulation (22 CFR Part 121 et seq.), the DoD

Industrial Security Regulation (DoD 5220.22-R) and the Department of Commerce Export

Regulation (15 CFR Part 770 et seq.)

Restrictions on Sale and Transfer of Technology to Foreign Firms or Institutions

a) In order to promote the national security interests of the United States and to effectuate the policies that underlie the regulations cited above, the procedures stated in subparagraphs (b), (c), and (d) below shall apply to any transfer of Technology. For purposes of this paragraph, a transfer includes a sale of the company, and sales or licensing of Technology. Transfers do not include:

(i) sales of products or components, or

(ii) licenses of software or documentation related to sales of products or components, or

(iii) transfer to foreign subsidiaries of the COMPANY member entities for purposes related to this Agreement, or

(iv) transfer which provides access to Technology to a Foreign Firm or Institution which is an approved source of supply or source for the conduct of research under this Agreement provided that such transfer shall be limited to that necessary to allow the firm or institution to perform its approved role under this Agreement.

b) The COMPANY shall provide timely notice to the Government of any proposed transfers of

Technology developed as a result this Agreement to Foreign Firms or Institutions. If the

Government determines that the transfer may have adverse consequences to the national security interests of the United States, the COMPANY and the Government shall jointly endeavor to find alternatives to the proposed transfer which obviate or mitigate potential adverse consequences of the transfer but which provide substantially equivalent benefits to the COMPANY.

c) In any event, the COMPANY shall provide written notice to the Government AO’s

Representative and AO of any proposed technology transfer to a foreign firm or institution at least sixty (60) calendar days prior to the proposed date of transfer. Such notice shall cite this Article and shall state specifically what is to be transferred and the general terms of the transfer. Within thirty (30) calendar days of receipt of the COMPANY’s written notification, the Government AO shall advise the COMPANY whether it consents to the proposed transfer. In cases where the

Government does not concur or if within sixty (60) calendar days after its receipt the Government has provided no decision, the COMPANY may utilize the procedures under Article 2, Subsection:

Disputes. No transfer shall take place until a decision is rendered.

d) In the event a transfer of Technology to Foreign Firms or Institutions which is NOT approved by the government takes place, the COMPANY shall (a) refund to the Government those funds paid under this OTA for the development of the Technology and (b) provide to the Government a non-exclusive, nontransferable, irrevocable, paid-up license to practice or have practiced on behalf of the United States the Technology throughout the world for Government and any and all other purposes, particularly to effectuate the intent of this Agreement. Upon request of the Government, the COMPANY shall obtain and provide written confirmation of such licenses.

Export Controls

Each Party agrees to comply with U.S. Export regulations including, but not limited to, the requirements of the Arms Export Control Act, 22 U.S.C. § § 2751-2794, including the International

Traffic in Arms

Regulation (ITAR), 22 C.F.R. § 120 et seq. ; and the Export Administration Act, 50 U.S.C. app. §

2401-

2420. Each party is responsible for obtaining from the Government export licenses or other authorizations/approvals, if required, for information or materials provided from one party to another under this Agreement. Accordingly, the COMPANY shall not export, directly, or indirectly, any products and/or technology, Confidential Information, Trade Secrets, or Classified and Unclassified Technical Data in violation of any U.S. Export laws or regulations.

FINANCIAL RECORDS AND REPORTS

The COMPANY shall maintain adequate records to account for Federal funds received under this

Agreement and shall maintain adequate records to account for COMPANY Project Agreement funding provided under this Agreement. The J9 Agreements Officer, the J9 Inspector General, and the Comptroller of the United States, or any duly authorized representatives, shall have direct access to sufficient records and information of the COMPANY to ensure full accountability for all funding under this Agreement. Such audit, examination or access shall be performed during business hours on business days upon prior written notice and shall be subject to the security requirements of the audited party. Any audit required during the course of the program may be conducted by the Comptroller General or other Government Official using Government auditors, at the request of the COMPANY’s external CPA accounting form at the expense of the

COMPANY.

ARTICLE 5: INTELLECTUAL PROPERTY RIGHTS

DATA AND SOFTWARE RIGHTS

A. Definitions

Commercial Computer Software Commercial Computer Software” as used in the Article means—

a. Has been sold, leased, or licensed to the public; b. Has been offered for sale, or license to the public; c. Has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, license, or license in time to satisfy the delivery requirements of this

Agreement; or d. Satisfies a criterion expressed in paragraphs a through c of this clause and would require only minor modification to meet the requirements of this Agreement.

Commercial Computer Software License means the license terms under which Commercial

Computer Software is sold or offered for sale, lease or license to the general public.

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

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

Computer software as used in this Agreement means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae and related material that would enable the software to be reproduced, recreated or recompiled.

Computer software does not include computer data bases or computer software documentation.

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

Data means recorded information, regardless of form or the media on which it may be recorded.

The term includes technical data and computer software. The term does not include information incidental to agreement administration, such as financial, administrative, cost or pricing, or management information.

Form, fit and function data means technical 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 purpose rights means the rights to use, modify, duplicate or disclose the “Data” licensed with such rights under this Agreement within the Government for United States

Government purposes only; and to release or disclose data outside the Government to any authorized persons pursuant to an executed non-disclosure agreement for such persons’ use, modification, or reproduction for United States Government purposes only. United States

Government purposes include Foreign Military Sales purposes and competitive re-procurement.

Limited rights as used in this Article is as defined in DFARS 252.227-7013(a)(14).

Restricted rights as used in this Article is as defined in DFARS 252.227-7014(a)(15).

Specially Negotiated License Rights are those rights to Data that have been specifically negotiated between the Government and the COMPANY.

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

Unlimited rights means the rights to use, modify, duplicate, 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.

B. Data Categories:

1. Category A is Data developed and paid for totally by non-governmental funds, whether pre-existing or concurrently developed proprietary data, trade secret data, or data related to

COMPANY products. The COMPANY retains all rights to Category A Data.

2. Category B is any Data developed under this Agreement, using Government funds, which cannot be disclosed without compromising the Category A data.

3. Category C is any COMPANY developed Data, excluding Category A and B data, developed during the performance of work under this Agreement.

4. Category D is third party proprietary data used in performance of work under this Agreement, including but not limited to, technical data, software, trade secrets and mask works. Any Data developed outside of this Agreement with Government funding in whole or in part under a

Government agreement, contract or subcontract shall have the rights negotiated under such prior agreement, contract or subcontract; the Government shall get no additional rights in such Data under this Agreement.

C. Allocation of Principal Rights

1. No deliveries to the Government of Category A and B data are contemplated or required under this Agreement. The Government reserves the right to negotiate certain rights in Category A and

B data with the owner of the data. Any changes to the data rights and restrictions herein will utilize the procedure set forth in Article 2, Subsection: Modifications to the Agreement.

2. The Government shall have immediate and irrevocable Government Purpose Rights, subject to the restrictions herein, to all Category C Data.

3. The COMPANY shall deliver third-party computer software, Category D data, as required for the performance or operation of other computer software required to be delivered in the performance of this Agreement, with such rights as it is able to negotiate with the software vendor.

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

Agreement, in which the Government has previously obtained explicit rights, shall be delivered, furnished, or provided with the preexisting rights, unless (a) the parties have agreed otherwise, or

(b) any restrictions on the Government’s rights to use, modify, reproduce, release, perform, display, or disclose the data have expired or no longer apply.

A. Marking of Data: Any Reports delivered under this Agreement shall be marked with the following legend: "This data is being delivered as Category (insert category) Data, as defined in Agreement HB0001-20-X-XXX. Use, duplication, or disclosure is subject to the restrictions as stated in Agreement HB0001-20-X-XXX between the

COMPANY and the Government."

The Government acknowledges that the other party’s software, the data provided via the software, and associated documentation, including but limited to graphical user interfaces and screen displays, are protected works, confidential and contain valuable proprietary information of the other party. Furthermore, these materials are not subject to the marking requirements herein.

B. Prior Technology

1. In the event it is necessary for the COMPANY to furnish the Government with Data which existed prior to, or was produced outside of this Agreement, and such Data embodies trade secrets or comprises commercial or financial information which is privileged or confidential, and such Data is so identified with a suitable notice or legend, the Data will be maintained in confidence and disclosed, or provided via the

COMPANY’S Services, and used by the Government and such Government

Contractors or contract employees that the Government may hire on a temporary or periodic basis only for the purpose of carrying out the Government's responsibilities under this Agreement. Data protection will include proprietary markings and handling, and the signing of nondisclosure agreements by such Government Contractors or contract employees. The COMPANY shall not be obligated to provide Data that existed prior to, or was developed outside of this Agreement to the Government. Upon completion of activities under this Agreement, such Data will be disposed of as requested by the COMPANY.

2. Oral and Visual Information: If information which the COMPANY considers to embody trade secrets or to comprise commercial or financial information which is privileged or confidential is expressly disclosed orally or visually directly to the

Government, the exchange of such information must be memorialized in tangible, recorded form and marked with a suitable notice or legend, and furnished to the

Government within thirty (30) calendar days after such oral or visual disclosure, or the

Government shall have no duty to limit or restrict, and shall not incur any liability for any disclosure and use of such information. If the Government reasonably determines that the memorialization of the exchange is insufficiently detailed to enable it to identify the privileged or confidential information, COMPANY shall provide addition detail at the Government's request, subject to restrictions on use and disclosure.

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

a. Unless otherwise provided for herein, 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, 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

COMPANY has furnished, or is required to furnish to the Government without restriction on disclosure and use.

Notwithstanding 3.(a) of this Article above, if the COMPANY cures the omission of the suitable notice or legend, the restrictions, and related liability for disclosure and use of such information shall apply after cure unless it is then unrestricted under 3(b) of this Article.

LICENSE RIGHTS

A. License and Support

Subject to the terms, conditions and restrictions set forth in this Agreement, including payment of the Subscription Fees, Awardee hereby grants, and Customer hereby accepts, a non-exclusive , non-transferable, right and license, to access and use, solely for its internal business purposes, (i) the Subscription Service identified in the Statement of Objectives above form (the "Service"), on a hosted basis, in accordance with the user documentation provided with the Service ("Documentation), and (ii) the Documentation, each for the Subscription

Term set forth in in the Statement of Work above. Use of the Service is restricted and subject to the number of users and other limitations based on what the Customer orders. During the

Subscription Term Awardee will support the Service in accordance with the Statement of

Work.

B. Restrictions; Proprietary Rights

Customer shall not (and shall not allow any third party to): (i) decompile, disassemble, reverse engineer or attempt to deconstruct, identify or discover any source code, underlying ideas or other technology, user interface techniques or algorithms of the Service; (ii) encumber, transfer, distribute, sell, disclose, sublicense, assign, provide, lease, lend, use for timesharing or service bureau purposes, or use for the benefit of any third party (including to or for any Customer affiliate or subsidiary), or otherwise use (except as expressly permitted herein) any part of the Service or Documentation; (iii) copy, modify, adapt, translate, incorporate into or with other software, or create a derivative work of any part of the Service or Documentation; (iv) attempt to circumvent any user limits, timing or use restrictions that are built into the Service; (v) use the Service or Documentation in the development or marketing of any software, service or other offering that is similar to or competes with any

Awardee offering; (vi) interfere with or disrupt the Service or related servers or networks;

(vii) perform, or publish or otherwise disclose the results of, any benchmarking, availability or performance testing or analyses of the Service or Customer’s use thereof; or (viii) use the product in any harmful or unlawful ways, including but not limited to misuse of credit card information or other personal information, violation of any data privacy or computer laws and regulations, or distribution or use in violation of Awardee’s Acceptable Use Policy, or any U.S. export controls, economic sanctions, or anticorruption laws or regulations. All acts and omissions of Customer’s employees and other personnel will be deemed to be those of

Customer, and Customer shall be responsible therefor.

The Service is the proprietary intellectual property of Awardee that contains trade secrets and is protected by copyright law.

Subject to any license granted hereunder, Awardee retains sole and exclusive ownership of all right, title, and interest in and to the Service and any other technology used to provide it.

Any and all enhancements, modifications, corrections and derivative works that are made to the Service hereunder will be considered part of the Service for the purposes of this

Agreement and will be owned by Awardee. Awardee shall own all rights, title and interest in any deliverables created by Awardee under a SOO or Order Form, but all such deliverables shall be licensed to Customer for use in connection with Customer’s use of the Service hereunder (as if such deliverables were part of the “Service” hereunder). Notwithstanding the foregoing, Customer retains all rights, title and interest in and to Customer’s own information and data, including Customer’s ideas, processes, standards, practices, and management policies and procedures, that is input by Customer into the Service or supplied to Awardee

(“Customer Data”). Awardee may use Customer Data to provide the Service, develop and improve its offerings, and otherwise in its business.

C. Indemnification

NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT

A. Definitions

"Invention" means any invention or discovery which is or may be patentable or otherwise protectable under Title 35 of the United States Code.

"Made" when used in relation to any invention means the conception or first actual reduction to practice of such invention.

"Practical application" means to manufacture, in the case of a composition of product; to practice, in the case of a process or method, or to operate, in the case of a machine or system;

and in each case, under such conditions as to establish that the invention is capable of being utilized and that its benefits are, to the extent permitted by law or Government regulations, available to the public on reasonable terms.

"Subject invention" means any invention of the COMPANY conceived or first actually reduced to practice in the performance of work specifically related to this Agreement.

"Background Invention" means any invention made by the COMPANY, or their subcontractors of any tier, prior to performance of the Agreement or outside the scope of work performed under this Agreement.

B. Allocation of Principal Rights

The COMPANY shall retain the entire right, title, and interest throughout the world to each subject invention consistent with the provisions of this Article, and 35 U.S.C § 202. With respect to any subject invention in which the COMPANY retains title, the Government shall have a non-exclusive, nontransferable, irrevocable, paid-up license to practice or have practiced on behalf of the United States the subject invention throughout the world. The

COMPANY may elect to provide full or partial rights that it has retained to other parties.

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

1. The COMPANY shall disclose each subject invention to the Government within four (4) months after the inventor discloses it in writing to his company personnel responsible for patent matters. The disclosure to the Government shall be in the form of a written report and shall identify the Agreement under which the invention was made and the identity of the inventor(s). It shall be sufficiently complete in technical detail to convey a clear understanding to the extent known at the time of the disclosure, of the nature, purpose, operation, and the physical, chemical, biological or electrical characteristics of the invention. The disclosure shall also identify any public action, sale, or public use of the invention and whether a manuscript describing the invention has been submitted for publication and, if so, whether it has been accepted for publication at the time of disclosure.

2. If the COMPANY determines that it does not intend to retain title to any such invention, the COMPANY shall notify the AO, in writing, within nine (9) months of disclosure to the USCYBERCOM – Acquisition Division (J9). However, in any case where public disclosure by the inventor 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 shall be in no event less than 60 days prior to the one (1) year statutory bar date.

3. The COMPANY shall file its initial patent application on a subject invention to which it elects to retain title within one (1) year after election of title or, if earlier, prior to a publication, or sale, or public use. The COMPANY may elect to file patent applications in additional countries (including the European Patent Office and the Patent Cooperation Treaty) within either ten (10) months of the corresponding initial patent application or six (6) months from the date permission is granted by the Commissioner of Patents and Trademarks to file foreign patent applications, where such filing has been prohibited by a Secrecy Order.

4. After considering the position of the COMPANY, a request for extension of the time for disclosure election, and filing under this Article IX, paragraph C, may be approved by USCYBERCOM – Acquisition Division (J9), which USCYBERCOM – Acquisition

Division (J9) approval shall not be unreasonably withheld.

D: Conditions When the Government May Obtain Title

Upon the Government's written request, the COMPANY shall convey title to any Subject

Invention to the Government under any of the following conditions:

1. If the COMPANY fails to disclose (and does not correct such failure within thirty (30) days after notice of such failure from the Government) or elects not to retain title to the Subject

Invention within the times specified in Article IX, paragraph C.; provided, that the

Government may only request title within sixty (60) calendar days after learning of the failure of the COMPANY to disclose or elect within the specified times.

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

3. In any country in which the COMPANY 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.

E: Minimum Rights to the COMPANY and Protection of the COMPANYs Right to File:

1. The COMPANY shall retain a nonexclusive, royalty-free license throughout the world in each Subject Invention to which the Government obtains title. The COMPANY license extends to the domestic (including

Canada) subsidiaries and affiliates, if any, within the corporate structure of which the COMPANY is a party and includes the right to grant licenses of the same scope to the extent that the COMPANY 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 approval for license transfer shall not be unreasonably withheld.

2. The COMPANY domestic license 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 401. This license shall not be revoked in that field of use or the geographical areas in which the COMPANY 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 COMPANY, 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 Government shall furnish the COMPANY a written notice of its intention to revoke or modify the license, and the COMPANY 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.

F. Action to Protect the Governments Interest:

1. The COMPANY agrees to execute or to have executed and promptly deliver to the Government all instruments necessary to: 1. establish or confirm the rights the Government has throughout the world in those

Subject Inventions to which the COMPANY elects to retain title; and 2.

convey title to the Government when requested under this Article and to enable the Government to obtain patent protection throughout the world in that Subject Invention.

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

COMPANY, each Subject Invention made under this Agreement in order that the COMPANY can comply with the disclosure provisions under this

Article. The COMPANY 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 COMPANY shall notify the Government 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 COMPANY 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. HB0001-20-X-XXX awarded by USCYBERCOM – Acquisition Division (J9). The

Government has certain rights in the invention."

G. Lower Tier Agreements: The COMPANY shall include this Article, suitably modified, to identify the Parties, in all subcontracts or lower tier agreements, regardless of tier, solely for experimental, developmental, or research work directly related to the agreement.

H. Reporting on Utilization of Subject Inventions: The COMPANY agrees to submit, during the term of the Agreement, upon request, an annual report on the utilization of a Subject Invention or on efforts at obtaining such utilization that are being made by the COMPANY or licensees or assignees of the inventor. Such reports shall include information regarding the status of development, date of first commercial sale or use, gross royalties received by the COMPANY, and such other data and information as the agency may reasonably specify.