Attachment 2 DRAFT NSWC-PHD_OTA_Base_Agreement_for_Consortium Management Firm.pdf

Attachment 2: DRAFT NSWC-PHD Other Transaction Authority Base Agreement for Consortium Manager, Maritime Advanced Technology Accelerator Consortium (MATAC), Naval Surface Warfare Center, Port Hueneme Division

1. Parties

The parties to this Agreement are the Naval Surface Warfare Center, Port Hueneme Division (NSWC-PHD or Government) and [each member of the Consortium] identified on the cover page, as represented by [the Consortium Manager] (CM or Consortium Manager).

2. Order of Precedence

The order of precedence is as follows:

a) This Agreement

b) Any attachments to this Agreement

c) Project Agreements executed under this Agreement

d) Any attachments to Project Agreements executed under this Agreement

3. Scope

The Government will only issue prototype and production projects to a consortium member determined to be within the scope of the Technical Areas of this Agreement. Prototype and production projects awarded to consortium members under this Agreement will also comply with all the requirements of 10 U.S.C. § 4022. Prototype and production projects awarded under this Agreement are subject to the terms and conditions of this Agreement.

4. Definitions

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

“Agreements Officer (AO)” means an individual with authority to enter into, administer, or terminate this Agreement or any Project Agreements executed under this Agreement, on behalf of the Government. Individuals must be granted specific authority (via modification) to award projects under this Base OT.

“Agreements Officer’s Representative (AOR)” means an individual designated and authorized in writing by the Agreements Officer to perform specific technical or administrative functions on behalf of the Government. At the Government’s discretion, multiple AORs may be designated in writing at either the Agreement level or on a per-project basis.

“Cost Sharing” means cash or in-kind resources expended during a prototype award by the Consortium Member or lower tier Sub-contractors that are necessary and reasonable for accomplishment of the project.

“Cost and Pricing Data” means all facts that, as of the date of price agreement, or, if applicable, an earlier date agreed upon between the parties that is as close as practicable to the date of

Maritime Advanced Technology Accelerator Consortium (MATAC), agreement on price, prudent buyers and sellers would reasonably expect to affect price negotiations significantly.

“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 databases 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 provides instructions for using the software.

“Covered Government support Contractor” means a Contractor under a contract, the primary purpose of which is to furnish independent and impartial advice or technical assistance directly to the Government in support of the Government’s management and oversight of a program or effort (rather than to directly furnish an end item or service to accomplish a program or effort), provided that the Contractor—

(i) Is not affiliated with the prime Contractor or on the program or effort, or with any direct competitor of such prime Contractor or any such first-tier Sub-contractor in furnishing end items or services of the type developed or produced on the program or effort; and

(ii) Receives access to technical data or computer software for performance of a Government contract that contains the clause at Department of Defense Federal Acquisition Regulation Supplement (DFARS) 252.227-7025, Limitations on the Use or Disclosure of Government- Furnished Information Marked with Restrictive Legends.

“Consortium” means the legal entity that is a party to this Agreement that is composed of traditional small business and non-traditional defense Contractors, as well as academia and non-profits, that is legally bound to operate in accordance with a Consortium Membership Agreement.

“Consortium Manager (CM)” is the organization acting on behalf of the NSWC-PHD Maritime Advanced Technology Accelerator Consortium (MATAC) to execute and administer the efforts under this Other Transaction Agreement. The CM is prohibited from performing prototype projects under this Agreement.

“Consortium Membership Agreement (CMA)” means the Agreement governing the rights and obligations of the Consortium member entities, also may be known as “Articles of Collaboration.”

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

Maritime Advanced Technology Accelerator Consortium (MATAC), “DoD Component” includes the following: OSD; the Chairman, Joint Chiefs of Staff and the Joint Staff; the DoD Inspector General; the Military Departments including the Coast Guard when assigned to the Department of the Navy; the Defense Agencies; DoD Field Activities;

the Combatant Commands; Washington Headquarters Services (WHS), the Uniformed Services University of the Health Sciences (USUHS), and all non-appropriated fund instrumentalities.

“Fixed-price Agreement” is an Agreement where a vendor is paid a negotiated amount regardless of incurred expenses.

“Freight on Board (FOB) Destination” means seller will incur the delivery expense to get the goods to the destination. With terms of FOB destination, the title to the goods usually passes from the seller to the buyer at the destination.

“Freight on Board (FOB) Origin” means that the buyer must pay to get the goods delivered.

(The buyer will record freight-in and the seller will not have any delivery expense.) With terms of FOB origin, the title to the goods usually passes to the buyer at the shipping point.

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

“Government” means the United States of America, as represented by an Agreements Officer.

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

Within a specific, agreed-upon timeframe “Government Purpose Rights” (“GPR”) may evolve into “Unlimited Rights” (as defined later in this section). GPR means the rights to:

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

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

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

Maritime Advanced Technology Accelerator Consortium (MATAC), “Limited Rights” means the rights to use, modify, reproduce, release, perform, display, or disclose data, in whole or in part, within the Government. The Government may not, without the written permission of the party asserting limited rights, release or disclose the data outside the Government, use the data for manufacture, or authorize the data to be used by another party, except that the Government may reproduce, release, or disclose such data or authorize the use or reproduction of the data by persons outside the Government if-

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

(A) Necessary for emergency repair and overhaul; or

(B) A release or disclosure to-

(1) A Covered Government Support Contractor in performance of its covered Government support contract for use, modification, reproduction, performance, display, or release or disclosure to a person authorized to receive Limited Rights data; or

(2) A foreign Government, of data other than detailed manufacturing or process data, when use of such data by the foreign Government is in the interest of the Government and is required for evaluation or informational purposes;

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

(iii) The Consortium Member, or sub-agreement holder asserting the restriction is notified of such reproduction, release, disclosure, or use.

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

“Non-traditional Defense Contractor” means, per 10 U.S.C. § 3014, “an entity that is not currently performing and has not performed, for at least the one-year period preceding the solicitation of sources by DoD for the procurement or transaction, any contract or subcontract for DoD that is subject to full coverage under the cost accounting standards prescribed pursuant to 41 U.S.C. § 1502 and the regulations implementing such section.”

“Project Agreement” means any individual OT prototype project awarded to Consortium Members.

“Prototype” means a physical or virtual model used to evaluate the technical or manufacturing feasibility or military utility of a technology, process, concept, end item, or

Maritime Advanced Technology Accelerator Consortium (MATAC), system.

“Project” means a prototype or production-level contractor selected by the Government for a Prototype or Production Award under this Agreement.

“Project Recipient” means any business unit that is the direct recipient of an OT Agreement.

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

“Sub-agreement” means any Agreement or contract executed between a Consortium Member and another entity in performance of a Project Agreement.

“Sub-contractor” means a business or person that carries out work for a company as part of a larger project.

“Subject Invention” means those inventions conceived or first actually reduced to practice under this Agreement.

“System for Award Management (SAM)” means the Federal repository into which an entity must provide information required for the conduct of business as a Consortium.

Additional information about registration procedures may be found at the SAM Internet site (currently at http://www.sam.gov ).

“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.

“The Parties” means the Consortium Manager (on behalf of the Consortium) and the Government.

“Unlimited rights,” means rights to use, modify, reproduce, perform, display, release, or disclose Data in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so, for an unlimited time. As defined above, “Unlimited Rights” may evolve from “GPR” after a specified, agreed-upon date, however, “Unlimited Rights” may also be directly conferred by agreement.

5. Agreement Duration

(a) The Government may issue prototype and/or production projects from the date of this http://www.sam.gov/

Maritime Advanced Technology Accelerator Consortium (MATAC), Agreement for 72 months. Further, the Government reserves the right to extend this Agreement for an additional 48 months with concurrence of the Consortium Manager. The total duration of this Agreement shall not exceed 120 months.

(b) Any prototype project issued during the Period of Performance for this Agreement and not completed within that period shall be completed by the Consortium member within the time specified in the prototype project.

6. Consortium Administration

(a) The Government and the Consortium, through the CM, are bound to each other by a duty of good faith and best effort to achieve the objectives of this Agreement. This Agreement is not intended to be, nor shall it be construed as, by implication or otherwise, a partnership, a corporation, or other business organization.

(b) The CM shall establish a CMA with each consortium member and operate in accordance with its terms and conditions.

(c) In accordance with the Consortium’s CMA, or any other administration agreement between the Consortium, its members, and its CM of record, the CM will act on behalf of the Consortium in executing this Agreement, and any future modifications to it. All financial transactions between the Government and the Consortium, including payment, will be made via the CM. The CM will subsequently disburse funds to the prototype project recipient.

(d) The CM shall accomplish the overall management, including reporting, financial and administrative matters, of the coordinated prototype program established under this Agreement. The CM shall be responsible for the overall day-to-day management of Government- selected projects and all prototype projects issued to the Consortium under this Agreement. The CM shall also be responsible for resolving performance issues that occur during performance of this Agreement.

(e) The CM shall develop or provide an interactive database platform to track the status of all potential and ongoing projects and requirements related to the Consortium. The Government shall have the ability to access the platform, and the Government and CM should utilize the platform as the primary tracking mechanism for all projects. The platform should contain a clear dashboard to monitor all relevant details of all projects, and should have the capability to easily generate reports on all relevant data and information for ongoing and completed projects. The platform should also be readily adaptable and with the ability to reflect changes to the format or method in which project data and information is tracked and stored based on Government requirements throughout the duration of this Agreement.

(f) If changes are made to the CMA that substantially alter the relationship of the MATAC

Maritime Advanced Technology Accelerator Consortium (MATAC), (e.g., any restriction of access to prospective prototype project participants (either current or prospective consortium members), the CM shall notify the Agreements Officer prior to a substantial change has occurred and provide a copy of the CMA for review and concurrence. The Agreements Officer has the right to reject substantial changes to CMA.

7. Appropriate Use of Other Transaction Authority

(a) This Agreement is executed in accordance with the authority provided in 10 U.S.C.

§ 4022. All Project Agreements executed under this Agreement must comply with 10 U.S.C.§ 4022, including, that they must be directly relevant to enhancing the mission effectiveness of military personnel and the supporting platforms, systems, components, or materials proposed to be acquired or developed by the DoD, or the improvement of platforms, systems, components, or materials in use by the armed forces. Each Project Agreement must also be supported by a determination and findings as required by 10 U.S.C.§ 4022.

(b) All competitively awarded prototype projects may lead to a single award follow-on projects for production efforts and executed under this Agreement in accordance with 10 U.S.C. § 4022.

(c) Throughout the period of performance of any Project Agreement, the Agreements Officer, CM, and AOR will actively monitor all projects to ensure compliance with the 10 U.S.C. § 4022 statutory requirement. Any Consortium Member whose Project Agreement is found to be non-compliant with the statute must become compliant. Failure to comply may result in termination of the Project Agreement and removal from consideration for future Project Agreements.

8. Prototype Technology Areas

(a) Technology Areas covered under this Agreement are as follows:

(1) Rapid Installation

(2) Cyber Security/Warfare/Defense

(3) Data Analytics

(4) Machine Learning

(5) Directed Energy Science and Engineering (including electrical power management)

(6) Advanced Computing and Software Engineering

(7) Autonomous and Uncrewed Systems

(8) Sensor Systems

(9) Gun and Weapons Systems Interface

(10) Digital Engineering

(11) Human Systems Integration

(12) Predictive/Remote/Corrective Diagnostics

(13) Threat Engineering

(14) Mission Engineering and Analysis

(15) Integrated Warfare Systems

Maritime Advanced Technology Accelerator Consortium (MATAC),

(16) Virtualization

(17) Asymmetric Warfare

(18) Manufacturing

(19) Lethality

(20) Surface Offensive and Defensive Engagements

(21) Launcher/Missile/Radar Technology

(22) Advanced Manufacturing to include 3D manufacturing, robotics, and advanced materials

(23) Advanced Materials to include nanotechnology and biomaterials

(24) Missile Defense

(25) Command and Control

(26) Air Defense

(27) Rapid Prototyping

(28) Model Based Systems Engineering

(29) Virtual/Augmented Reality

(30) Hypersonic Vehicles/Capabilities

(31) Advanced Research Target Vehicles

(32) Land-Based Launchers

9. Prototype Project Process

(a) At a minimum, on an annual basis, the Government will seek prototype projects by issuing requests for white papers via the Consortium Manager, as well as in SAM.gov, detailing mission needs and prototype objectives. The Government may seek white papers on potential prototype projects more frequently than the annual cycle after notification to the Consortium.

(b) Each request for white papers will include a description of the prototype project, the funding anticipated for the award, the timeframe and basis for selection, and the post-selection schedule.

(c) The CM shall publicize the request for white papers to consortium members and other potential new members with relevant capabilities and technologies to the requested prototype projects. Publication shall be to the broadest audience practicable.

(d) Specific instructions for responding to each request for prototype projects will be included in the request itself.

(e) The CM shall assist Consortium Members in administrative aspects of preparation and submission of white papers, if necessary.

(f) The Government will perform an evaluation of each submitted white paper, and request further proposals based on this evaluation. The Government will identify the basis for evaluation in each request.

(g) The Government will request proposals, via the CM, tailored to each individual prototype requirement, for each selected white paper. These proposals may be written, oral, or both, as

Maritime Advanced Technology Accelerator Consortium (MATAC), specified in each individual request.

(h) The Government will then evaluate submitted proposals based on the identified parameters in the request. At minimum technical approach and the proposed cost/price will be evaluated. The CM will perform a detailed cost and/or price analysis of the submitted cost proposal and will provide the results to the Government Agreement Officer. This effort may entail the CM requesting additional information from the Offeror to complete the detailed cost and/or price analysis. The Government Agreements Officer is responsible for final review of the cost and price analysis to determine whether the offeror’s total evaluated cost/price is fair and reasonable.

(i) Awards may be made for Project Agreements based on these evaluations. In no way does selection of a white paper guarantee award of the related prototype project.

(j) The Government reserves to the right to keep proposals for each prototype requirement for up to 36 months after submission of the proposal. These proposals may be funded at any time during the 36 month period after the Government has reconfirmed validity of the proposal.

10. Pricing Arrangement for Prototype Projects

Prototype projects awarded under the Agreement will be awarded on a fixed price or cost reimbursement basis, depending on the nature of each specific prototype project.

11. Status Reporting

Consortium members executing Project Agreements issued under this Agreement shall provide status reporting as specified in each prototype project. This status reporting will, at a minimum, require a monthly status report and, upon completion of the project, a final report that provides a recap of the program that may be used for public release purposes.

12. Reporting to FPDS

Prototype projects awarded under this Agreement will be reported by the Government to the Federal Procurement Data System-Next Generation (FPDS-NG), located at https://www.fpds.gov.

13. Agreements Officer’s Representative

The Government will designate an AOR for each prototype project awarded under this Agreement. The designation will be included in each prototype project, and will include the extent of the AOR’s authority to act on behalf of the Agreements Officer. The AOR is not authorized to make any commitments or changes that will affect price, quality, quantity, delivery, or any other term or condition of the Agreement.

14. Industry Days and Reviews http://www.fpds.gov/

Maritime Advanced Technology Accelerator Consortium (MATAC), Annually, the Government, with assistance from the CM, will organize a Maritime Advanced Technology Accelerator Industry Day, a collaboration event designed to bring government, academia, and Industry together around mission needs and potential solutions.

The Maritime Advanced Technology Accelerator Industry Day will be advertised in SAM.gov and through the consortium website and other communication channels. The purpose of these Industry Days is to allow the Government to share its mission needs, and consortium members to share their state-of-the art technologies and technical solutions.

For each of the Industry Days, the Government will develop and share a Maritime Advanced Technology Accelerator Prototype Program Plan in advance that provides a draft schedule of upcoming prototype projects, including forecasted spending. The Government Program/Technical Manager will prepare the first Maritime Advanced Technology Accelerator Program Plan within 45 days of award of this Agreement, which will be presented at the first Maritime Advanced Technology Accelerator Industry Day. The Industry Day may be held in-person and/or conducted virtually depending on travel restrictions.

Additionally, the Government and the CM will establish a schedule of annual technical collaboration meetings, limited to Government and Consortium members who are engaged in active prototype projects to discuss the status, progress, and results of the prototype projects.

The Government may require the CM to provide an annual review of the overall performance of all Project Agreements executed under this Agreement. The review shall consist of a brief status report of the performance of each Project Agreement in that given year, as well as the aggregate performance under this Agreement, including a percentage of projects on schedule and within budget and those that have deviated from planned schedule and cost.

15. Patents

The Consortium Manager agrees with the following rights and responsibilities with respect to any Subject Invention or Prototype which is the principal objective of a prototype project executed under this Agreement. The Consortium Manager shall require that each Consortium member awarded a project hereunder also agrees to be bound by the following rights and responsibilities.

(a) Allocation of Principal Rights

1) The responsible Consortium Member shall retain ownership throughout the world to each Subject Invention consistent with the provisions of this section and 35 U.S.C. § 202, provided the Consortium Member has timely pursued a patent application and maintained any awarded patent and has not notified the Government (in accordance with the subparagraph B below) that the Consortium member does not intend to retain title.

2) The Consortium Member shall retain ownership throughout the world to background inventions. Any invention related to, conceived of, or first reduced to practice in

Maritime Advanced Technology Accelerator Consortium (MATAC), support of a Consortium Member’s internal development milestone shall be a background invention of Consortium Member and shall not be classified as a Subject Invention, provided that an invention conceived of in support of an internal development milestone that is first reduced to practice under this Agreement in support of other than internal development milestones shall be considered a Subject Invention.

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

(b) Invention Disclosure, Election of Title, and Filing of Patent Application

1) The Consortium Member shall disclose each subject invention to the Agreements

Officer on a DD Form 882 within eight (8) months after the inventor discloses it in writing to the Prototype Inventor’s personnel responsible for patent matters.

2) If the Consortium Member determines that it does not intend to retain title to any

Subject Invention, the Consortium Member shall notify the Agreements Officer, in writing, within eight (8) months of disclosure to the Government. However, in any case where publication, sale, or public use has initiated the one (1)-year statutory period wherein valid patent protection can still be obtained in the United States, the period for such notice is shortened to at least sixty (60) calendar days prior to the end of the statutory period.

(c) Upon the Agreements Officer’s written request, the Consortium Member shall convey title to any Subject Invention to the Government under any of the following conditions:

1) If the Consortium Member fails to disclose or elects not to retain title to the subject invention within the times specified in Paragraph B of this section;

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

2) In those countries in which the Consortium Member fails to file patent applications within the times specified in Paragraph B of this section ; provided, that if the Consortium Member has filed a patent application in a country after the times specified in Paragraph (b) of this section , but prior to its receipt of the written request by the Government, , the Consortium Member shall continue to retain title in that country; or

3) In any country in which the Consortium Member 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.

(d) Minimum Rights to the Consortium and/or Consortium Member and Protection of

Maritime Advanced Technology Accelerator Consortium (MATAC), the Consortium and/or Consortium Member's Right to File.

1) The Consortium Member shall retain a nonexclusive, royalty-free license throughout the world in each Subject Invention to which the Government obtains title, except if the Consortium Member fails to disclose the Subject Invention within the times specified in Paragraph (b) of this section. The Consortium Member’s license extends to the domestic (including Canada) subsidiaries and affiliates, if any, within the corporate structure of which the Consortium Member is a party and includes the right to grant licenses of the same scope to the extent that the Consortium Member was legally obligated to do so at the time the prototype project 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 Subject Invention pertains. The Government's approval for license transfer shall not be unreasonably withheld.

2) The Consortium Member’s domestic license, as described above, may be revoked or modified by the Government to the extent necessary to achieve expeditious practical application of the Subject Invention pursuant to an application for an exclusive license submitted consistent with appropriate provisions at 37 CFR Part 404. This license shall not be revoked in that field of use or the geographical areas in which the Consortium Member has achieved practical application and continues to make the benefits of the Subject 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 Consortium Member, its licensees, or the subsidiaries or affiliates have failed to achieve practical application in that foreign country.

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

(e) Action to Protect the Government’s Interest

1) The Consortium Member agrees to execute or to have executed and promptly deliver to the Agreements Officer all instruments necessary to (i) establish or confirm the rights the Government has throughout the world in those Subject Inventions to which the Consortium Member elects to retain title, and (ii) convey title to the Government when requested under paragraph C of this section and to enable the Government to obtain patent protection throughout the world in that Subject Invention.

2) The Consortium Member agrees to require, by written agreement, its employees, other than clerical and non-technical employees, to disclose promptly in writing to personnel identified as responsible for the administration of patent matters and in a format suggested by the Consortium Member each Subject Invention made under this Agreement in order that the Consortium Member can comply with the disclosure

Maritime Advanced Technology Accelerator Consortium (MATAC), provisions of paragraph (b) of this section. The Consortium Member shall instruct employees, through employee agreements or other suitable educational programs, on the importance of reporting Subject Inventions in sufficient time to permit the filing of patent applications prior to U.S. or foreign statutory bars.

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

4) The Consortium Member 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. N63394-25-9-0001, awarded by the Naval Surface Warfare Center.

The Government has certain rights in the Invention."

(f) The Consortium Member agrees that, with respect to any Subject Invention in which it has retained title, the Government has the right to require the Prototype Inventor, an assignee, or exclusive licensee of a Subject Invention to grant a non-exclusive license to a responsible applicant or applicants, upon terms that are reasonable under the circumstances, and if the Consortium Member, assignee, or exclusive licensee refuses such a request, the Government has the right to grant such a license itself if the Agreements Officer determines that:

1) Such action is necessary because the Consortium Member or assignee has not taken effective steps, consistent with the intent of this Agreement, to achieve practical application of the Subject Invention;

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

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

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

(h) Notice and Assistance

1) The Consortium Member shall report to the Agreements Officer, promptly and in reasonable written detail, each notice or claim of patent or copyright infringement based on the performance of this Agreement of which the Consortium Member has knowledge.

2) In the event of any claim or suit against the Government on account of any alleged

Maritime Advanced Technology Accelerator Consortium (MATAC), patent or copyright infringement arising out of the performance of this Agreement or out of the use of any supplies furnished or work or services performed under this Agreement, the Consortium Member shall furnish to the Government, when requested by the Agreements Officer, all evidence and information in the Consortium Member's possession pertaining to such claim or suit. Such evidence and information shall be furnished at the expense of the Government except where the Consortium Member has agreed to indemnify the Government.

1) The Consortium Member shall include this section, suitably modified, to identify the

Parties, in all sub-agreements or lower tier Agreements, regardless of tier, for experimental, developmental, or research work.

2) The obligations of the Government and the Consortium Member under this section shall survive after the expiration or termination of this Agreement.

16. Rights in Technical Data

(a) The Government shall have Government Purpose Rights (GPR) in Technical data, Computer Software, and Computer Software Documentation developed under this OT Agreement, except as provided in paragraphs b, c, and d of this section. Unless otherwise specified in Project Agreements,

(b) The Government shall have Unlimited Rights in data for the following:

(1) Form, fit, and function data;

(2) Corrections or changes to data furnished to the Consortium and Consortium Member by the Government;

(3) Data otherwise publicly available or have been released or disclosed by the Consortium, Consortium Member, or sub-agreement holder without restrictions on further use, release or disclosure, other than a release or disclosure resulting from the sale, transfer, or other assignment of interest in the data to another party or the sale or transfer of some or all of a business entity or its assets to another party;

(4) Studies, analyses, test data, or similar data produced for this Agreement, when the study, analysis, test, or similar work was specified as an element of performance, excluding Consortium or Consortium Member's internal development milestones;

(5) Data necessary for operation, maintenance, installation, or training; and

(6) Computer software documentation required to be delivered under this Agreement;

(c) The DFARS provision 252.227-7017 Identification and Assertion of Use, Release, or Disclosure Restrictions is incorporated into this Agreement by reference, with all mention of Offeror understood to mean the Consortium Member and all mention of Contracting Officer understood to mean Agreements Officer. Consortium Members are subject to this provision

Maritime Advanced Technology Accelerator Consortium (MATAC), for each Project Agreement.

(d) Data or Computer Software that will be delivered, furnished, or otherwise provided to the Government under this Agreement, in which the Government has previously obtained rights, shall be delivered, furnished, or provided with the pre-existing rights, unless the parties have agreed otherwise in a Project Agreement, or any restrictions on the Governments rights to use, modify, reproduce, display or disclose the data have expired or no longer apply.

(e) The Consortium Member awarded a project, their sub-agreement holders, and suppliers are not required to provide the Government additional rights to use, modify, reproduce, release, perform, display, or disclose data furnished to the Government with other than Unlimited Rights. However, if the Government desires to obtain additional rights in data in which it has other than Unlimited Rights, the Consortium Member agrees to promptly enter into negotiations with the Agreements Officer to determine whether there are acceptable terms for transferring such rights. All data in which the Consortium Member has granted the Government additional rights shall be listed or described in a license agreement made part of the Agreement or a part of a Project Agreement. The license shall enumerate the additional rights granted the Government in such data.

(f) Except for data covered under paragraph g below, and data delivered with unlimited rights, data to be delivered under this Agreement subject to restrictions on use, duplication or disclosure shall be marked with the following legend:

Agreement No.

Consortium Member Name

Consortium Member Contact

Information Expiration Date

The Government’s rights to use, modify, reproduce, release, perform, display, or disclose these technical data are restricted by paragraph (c) of the Rights in Technical data section contained in the above identified Agreement. No restrictions apply after the expiration date shown above. Any reproduction of technical data or portions thereof marked with this legend must also reproduce the markings."

(g) Pre-existing data markings: If the terms of a prior contract or license permitted the Consortium Member to restrict the Government’s rights to use, modify, reproduce, release, perform, display, or disclose data deliverable under this Agreement, and those restrictions are still applicable, the Consortium Member may mark such data with the appropriate restrictive legend for which the data qualified under the prior contract or license unless the Government receives such data with less restrictions under this Agreement.

(h) The Government shall have unlimited rights in all unmarked data. In the event

Maritime Advanced Technology Accelerator Consortium (MATAC), that the Consortium or Consortium Member learns of a release to the Government of its unmarked data that should have contained a restricted legend, the Consortium or Consortium Member will have the opportunity to cure such omission going forward by providing written notice to the Agreements Officer within one (1) year of the erroneous release.

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

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

(2) Information contained in any data for which disclosure and use is restricted under the Security Requirements section of this Agreement, 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 Consortium Member is required to furnish to the Government without restriction on disclosure and use.

(j) Validation of Restrictive Markings on Technical Data

(1) Title 10, Subpart D, Chapter 275 - Validation of proprietary data restriction is incorporated into this Agreement by reference, with all mention of Department of Defense or Secretary of Defense to mean the Government; Contractor understood to mean the Consortium, Consortium members, and/or sub-team members; and all mention of Contracting Officer understood to mean Agreements Officer.

(2) Unjustified data markings: The rights and obligations of the parties regarding the validation of restrictive markings on data furnished or to be furnished under this Agreement are contained in the Validation of Restrictive Markings on Technical data section of this Agreement. Notwithstanding any provision of this Agreement concerning inspection and acceptance, the Government may ignore or, at the Consortium Member awarded a project’s expense, correct or strike a marking if, in accordance with the procedures in the Validation of Restrictive Markings section of this Agreement, a restrictive marking is determined to be unjustified.

(3) A nonconforming marking is a marking placed on data delivered or otherwise furnished to the Government under this Agreement that is not in the format authorized by this Agreement. Correction of nonconforming markings is not subject to the Validation of Restrictive Markings section of this Agreement. If the Agreements Officer notifies the Consortium Member awarded a project of a nonconforming marking and the that Consortium Member fails to remove or correct such marking within sixty (60) days, the Government may ignore or, at that Consortium Member’s expense, remove or correct any nonconforming marking.

Maritime Advanced Technology Accelerator Consortium (MATAC),

(4) Throughout performance of this Agreement, the Consortium shall require that each Consortium Member awarded a project, and its sub-agreement holders or suppliers that will deliver data with other than unlimited rights, shall-

Have, maintain, and follow written procedures sufficient to assure that restrictive markings are used only when authorized by the terms of this section;

and

(5) Maintain records sufficient to justify the validity of any restrictive markings on data delivered under this Agreement.

(k) The Consortium Member reserves the right to protect by copyright original works developed under this Agreement. All such copyrights will be in the name of the Consortium Member. The Consortium Member hereby grants to the U.S. Government a non-exclusive, non-transferable, royalty-free, fully paid-up license to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, for Governmental purposes, any copyrighted materials developed under this Agreement and any prototype project executed under this Agreement, and to authorize others to do so, subject to the limitations on disclosure contained in this Agreement.

(l) In the event data is exchanged with a notice indicating that the data is protected under copyright as a published, copyrighted work and it is also indicated on the data that such data existed prior to, or was produced outside of this Agreement, the Party receiving the data and others acting on its behalf may reproduce, distribute, and prepare derivative works for the sole purpose of carrying out that Party's responsibilities under this Agreement and any prototype project executed under this Agreement with the written permission of the Copyright holder.

(m) The Consortium Member shall not, without the written approval of the Agreements Officer, incorporate any copyrighted data in the data to be delivered under this Agreement unless the Consortium or Consortium Member is the copyright owner or has obtained for the Government the license rights necessary to perfect a license or licenses in the deliverable data of the appropriate scope set forth in this section , and has affixed a statement of the license or licenses obtained on behalf of the Government and other persons to the data transmittal document.

(n) Except that copyrighted data that existed or was produced outside of this Agreement and is unpublished - having only been provided under licensing Agreement with restrictions on its use and disclosure - and is provided under this Agreement shall be marked as unpublished copyright in addition to the appropriate license rights legend restricting its use, and treated in accordance with such license rights legend markings restricting its use.

(o) The Consortium Member are responsible for affixing appropriate markings indicating the rights of the Government on all data delivered under this Agreement.

(p) The Government agrees not to remove any copyright notices placed on data and to

Maritime Advanced Technology Accelerator Consortium (MATAC), include such notices on all reproductions of the data.

(q) In addition to data specified in any prototype project executed under this Agreement to be delivered hereunder, the Government may, at any time during the performance of the Project Agreement or within a period of three (3) years after acceptance of all items (other than data) to be delivered under the Project Agreement or the termination of the Project Agreement, order any data generated under this Project Agreement or any sub-agreement hereunder, except for data related to the Consortium Member's internal development milestones (as defined in the Statement of Work). When the data is ordered, the Consortium Member shall be compensated for converting the data into the prescribed form, for reproduction and delivery. The obligation to deliver the data of a sub-agreement holder and pertaining to an item obtained from the Sub-contractor shall expire three (3) years after the date the Consortium Member accepts the last delivery of that item from that sub-agreement holder under the Project Agreement.

(r) The Government shall retain its rights in the unchanged portions of any computer software or computer software documentation delivered under the Project Agreement that the Consortium Member uses to prepare, or includes in, derivative computer software or computer software documentation.

(s) The CM and Consortium Members shall include this section, suitably modified to identify the parties, in all sub-agreements or lower tier Agreements, regardless of tier, for developmental prototype work.

(t) The obligations of the Government and the Consortium and Consortium Member under this section shall survive after the expiration or termination of this Agreement.

17. Right to Develop Independently

Nothing in this Agreement will impair any Party’s right to independently acquire, license, develop or have developed, utilize or otherwise exploit information and technology with the same or similar uses or functions as the information or technology that is the subject of the Agreement’s Technical Areas or any prototype project issued pursuant to this

18. Inspection and Acceptance

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

(b) If the Government performs inspection or tests on the premises of the Consortium Member or sub-agreement holder engaged in a prototype project performance, the Consortium Member shall furnish and shall require sub-agreement holders to furnish all reasonable facilities and

Maritime Advanced Technology Accelerator Consortium (MATAC), assistance for the safe and convenient performance of these duties.

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

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

(e) This section applies in the same manner and to the same extent to corrected or replacement materials or services as to materials and services originally delivered under the Project Agreement.

19. Shipping Provisions

(a) Specific shipping instructions will be included in Project Agreements executed under this Agreement.

(b) All deliveries shall be FOB Destination, unless otherwise stated in Project Agreements.

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

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

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

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

https://wawf.eb.mil/xhtml/unauth/h…