Appendix A - Project Articles 12Feb26.docx

Appendix A - Project Articles

RPP #

TABLE OF CONTENTS

ARTICLES

DISTRIBUTION STATEMENT A. Approved for public release: distribution unlimited.

ARTICLE I: PROTOTYPE PROJECT AGREEMENT GENERAL TERMS AND CONDITIONS

A. Background

In addition to the terms and conditions outlined in the Prototype Project Agreement (PPA), the terms and conditions of these Appendix A - Project Articles also apply to the awarded prototype project. The PPA is executed under the authority of 10 U.S.C. § 4022, which authorizes the Secretary of the Army to carry out prototype projects that are directly relevant to enhancing the mission effectiveness of personnel of the Department of Defense or improving platforms, systems, components, or materials proposed to be acquired or developed by the Department of Defense, or to improvement of platforms, systems, components, or materials in use by the armed forces.

B. Definitions

"Academic Research Institution" means accredited institutions (colleges, universities or other educational institutions) of higher learning in the U.S.

“Agreements Officer (AO)” is a United States Army Contracting Command – Detroit Arsenal (ACC- DTA) warranted Contracting Officer authorized to sign the agreement for the Government, or otherwise contractually bind the Government.

“Agreements Officer’s Representative (AOR)” is an individual designated by the Government on a per project basis to monitor all technical aspects of that project. The AOR shall only assist in administration of the specific project to the extent expressly delegated in writing in the Appointment Letter issued by the responsible AO and cannot contractually bind the Government.

“Closeout” means the process by which all work is completed or the date a modification thereto on which the period of performance ends.

“Date of Completion” is the date on which all work is completed or the date on which the PPA period of performance ends.

“Development” means the systematic use, under whatever name, of scientific and technical knowledge in the design, development, test, or evaluation of an existing or potential new technology, product or service (or of an improvement in an existing technology, product or service) for the purpose of meeting specific performance requirements or objectives. Development includes the research functions of design engineering, prototyping, and engineering testing.

“Effective Date” means the date when the Agreements Officer signs and executes a bilateral legally binding document for the Government, to include Prototype Project Agreements, and/or any other documents requiring bilateral signature.

“Expenditure-Based Projects” means projects where payments are exclusively or primarily based on amounts generated from the contractor’s financial or cost records.

“Fixed-Price Projects” means projects where the primary method of payment is not based on amounts generated from the contractor’s financial or cost records, including agreements where the price is fixed against established milestones and/or estimated level-of-effort.

“Government Fiscal Year” means the period commencing on October 1 and ending September 30 of the following calendar year.

“Milestone” means a scheduled event signifying the completion of a major deliverable or a set of related deliverables as identified in the Prototype Project Agreement.

“Nonprofit Research Institution” or “Nonprofit Organization” means a university or other institution of higher education or an organization of the type described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. § 501(c)) and exempt from taxation under section 501(a) of the Internal Revenue Code (26 U.S.C. § 501(a)), or any nonprofit scientific or educational organization qualified under a State nonprofit organization statute.

“Other Transaction Agreement (OTA)” is the term commonly used to refer to transactions other than contracts, grants or cooperative agreements entered into under the authority of 10 U.S.C. § 4022.

“Parties” means the Government and the contractor(s) where collectively identified, and “Party” where each entity is individually identified.

“Payable Milestone” means that once a milestone has been met, the Government can approve payment of a predetermined dollar amount in relation to performance of a particular project awarded under the OTA.

“Project Articles” means this document, which is Appendix A to every PPA, that establishes bilateral terms and conditions between the Government and the contractor.

“Prototype Project”, as defined in 10 U.S.C. § 4022, includes a project that addresses –

(A) a proof of concept, model, or process, including a business process;

(B) reverse engineering to address obsolescence;

(C) a pilot or novel application of commercial technologies for defense purposes;

(D) agile development activity;

(E) the creation, design, development, or demonstration of operational utility; or

(F) any combination of subparagraphs (A) through (E).

“Prototype Project Agreement (PPA)” refers to the bilaterally executed agreement between the Government and the contractor. The PPA contains the requirements for the individual prototype project and contains, at a minimum, the scope of work for the individual prototype project as well as the following attachments: Appendix A: Project Articles, Appendix B: Project Other Terms and Conditions, required deliverables, and any other project specific attachments.

“Resource Share” occurs when a portion of the total cost of the project is paid out of funds provided by sources other than the Federal Government. Contributions can be in cash or non-cash form, and costs can be either direct or indirect, so long as they are allowable, allocable, reasonable, and consistently accounted for by the performer.

“Signatory Authority” refers to the individual that has the authority to legally bind a party to an agreement.

“Solicitation” refers to a document that the Government develops which contains the request and instructions for contractors on how to submit information or proposals.

“Request for Prototype Proposal (RPP)” refers to a Government issued document requesting proposals against a prototype project requirement(s) in a designated Technology Area(s).

“United States Army Contracting Command – Detroit Arsenal (ACC-DTA)” means the Government contracting activity that is designated as the lead Government organization in charge of executing the contractual obligations of the OTA.

C. Freedom of Information Act (FOIA):

Upon negotiation for award of a PPA, the contractor may submit a FOIA objection that will be incorporated into the PPA as an attachment. Upon receipt of a FOIA request for the PPA, the parties shall follow the processes and requirements in 5 U.S.C. § 552 and DoD FOIA regulations.

D. Reports

The contractor shall maintain records of the activities performed and funds expended under the PPA. Additionally, the contractor, along with its subcontractors, shall submit a Subject Invention Report using DD Form 882 to the Government in accordance with (IAW) the PPA. In addition to the reporting contained within this section, all reporting requirements will be defined within each PPA.

E. Follow-On Production

In accordance with the provisions of 10 U.S.C. § 4022(f), the Government may award a follow-on production contract or transaction to the contractor without the use of competitive procedures, so long as 1) competitive procedures were used for the selection of the contractor for participation in the prototype project; and 2) the contractor successfully completed the prototype project.

The Government shall be solely responsible for documenting whether or not competitive procedures were utilized and whether or not a prototype project was successfully completed. The OTA will not be utilized to award any follow-on production efforts. Follow-on production efforts will be pursued outside of the OTA, and any subsequent award(s) will be entered into by the Government and the follow-on production contractor(s).

F. Prototype Project Agreement Modifications

The contractor shall submit any requests for modifications, including justification to support any changes to an awarded PPA, in writing to the AOR and AO. This request will detail the technical, schedule, and financial impact of the proposed modification. The Government will be responsible for review and approval.

The AO may, at any time, without notice to the parties, make changes in the work within the general scope of the PPA to: 1) Drawings, designs, or specifications when the supplies to be furnished are to be specially manufactured for the Government in accordance with the drawings, designs, or specifications, 2) Method of shipment or packing, and 3) Place of delivery. If any change under this article causes an increase or decrease in the contractor's cost of, or the time required for, the performance of any part of the work under this PPA, the AO shall make an equitable adjustment and modify the PPA in writing.

For minor or administrative PPA modifications (e.g., changes in the paying office or appropriation data, changes to Government representatives identified in the Agreement, etc.) the AO will issue a unilateral modification; no signature will be required by the contractor. All other PPA modifications shall be signed by the Government and the contractor.

ARTICLE II: STOP WORK, TERMINATION, AND CLOSEOUT

A. Stop Work Order

The Agreements Officer may, at any time, require the contractor to immediately stop all, or any part of the work called for under the PPA, for a period of 90 calendar days after the written Stop Work Order is delivered. Upon receipt of the Stop Work Order, the contractor shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the Stop Work Order during the period of work stoppage. Within the period of 90 calendar days after the Stop Work Order is delivered, or within an extension of that period to which the Government and the contractor agreed, the AO shall either:

(1) Cancel the stop work order, or

(2) Terminate, in whole or in part, the work covered by the PPA.

If a Stop Work Order issued under this Article is canceled, the AO will direct and require the contractor to resume work. The contractor may submit a detailed and supported proposal for an equitable adjustment in the delivery schedule or PPA cost or price, or both. The PPA shall be modified, in writing, accordingly, if:

(1) The Stop Work Order results in a change to the period of performance or cost, and

(2) The contractor asserts its right to the adjustment within 30 days after the end of the period of work stoppage; provided that, if the Government decides the facts justify the action, the Government may receive and act upon a proposal for adjustment submitted at any time before final payment is issued under the PPA.

If a Stop Work Order is not canceled and the work covered by the PPA is terminated, the contractor may submit to the AO a detailed and supported proposal for an equitable reimbursement in accordance with Article II.B, Termination Provisions.

B. Termination Provisions

If the AO determines that a termination of the PPA is in the best interests of the Government, the Government, in its sole discretion, may terminate performance of work, in whole or in part, under the PPA. The AO shall terminate by delivering a Notice of Termination to the contractor specifying the extent of the termination and the effective date.

After receipt of a Notice of Termination, the Government shall use its best efforts to facilitate negotiation of a termination settlement between the AO and the contractor.

After receipt of a Notice of Termination, and except as directed by the AO, the contractor shall immediately proceed with the following obligations:

(1) Stop work as specified in the notice.

(2) Not place any further orders for materials, services, or facilities, except as necessary to complete the continued existing portion of the PPA.

(3) Terminate all orders, to the extent they relate to the terminated work.

(4) With approval or ratification by the AO, settle all outstanding liabilities and termination settlement proposals arising from the termination of orders; the approval or ratification will be final for purposes of this clause.

(5) As directed by the AO, deliver to the Government, under the terminated portion of the PPA, where applicable, a transfer of title to the following:

(a) The fabricated or un-fabricated parts, work in process, completed work, supplies, and other material produced or acquired for the work terminated; and

(b) The completed or partially completed plans, drawings, information, and other technical data, computer software, and property and associated license rights and interests in subject inventions that, if the order had been completed, would have been required to be furnished to the Government.

(6) Ensure that any Government Furnished Property, Government Furnished Information, or Government Furnished Computer Software that has been provided under the PPA and is not directly addressed by these Termination Provisions, is returned to the Government.

(7) Complete performance of any work that is not terminated within the PPA.

(8) Take any action that the AO may direct, for the protection and preservation of the property that is in the possession of the contractor, in relation to the project, and in which the Government has or may acquire an interest.

(9) Use its best efforts to sell, as directed or authorized by the AO, any property of the types referred to under Article II.B, Termination Provisions, (5)(a) and (b); provided, however, that the contractor:

(a) Is not required to extend credit to any purchaser, and

(b) May arrange for any subcontractors, who were performing the terminated work, to acquire the property under the conditions prescribed by, and at prices approved by, the AO.

The proceeds of any transfer or disposition of project property will be applied to reduce any payments to be made by the Government under the PPA, including credited to the price or cost of work, or paid in any other manner directed by the AO.

In the event of a termination of the PPA, the Government shall retain or assume all patent rights as described in Article VIII, Patent Rights, and all rights in data as described in Article IX, Data Rights and Copyrights as specified within the PPA.

Failure of the parties to agree to an equitable adjustment shall be resolved pursuant to Article V, Prototype Project Agreement Disputes.

C. Termination Costs

The Government and the contractor will negotiate in good faith equitable reimbursement for work performed under the PPA. The Government will allow full credit for the Government share of obligations properly incurred by a contractor, prior to termination. Costs incurred by a contractor during a suspension or after termination of a prototype project are not allowable unless the AO expressly authorizes them in either the Stop Work Order, termination, or subsequently. Other contractor costs incurred during a suspension or after termination, which are necessary and not reasonably avoidable, are allowable if:

(1) The costs result from obligations which were properly incurred by the contractor before the effective date of the suspension or termination, are not in anticipation of it, and in the case of a termination, are non-cancellable; and

(2) The costs would be allowable if the PPA was not suspended or the award expired normally at the end of the funding period, in which the termination takes effect.

D. Material Breach

If the contractor materially fails to comply with the terms and conditions of the PPA or any attachments thereto, the AO may issue a Notice of Material Breach in writing to the contractor. The AO, after the issuance of the Notice of Material Breach, and after allowing a reasonable time to address the noncompliance may take one or more of the following actions:

(1) Withhold payments until the breach is corrected;

(2) Disallow all or part of the cost of the activity or action causing the breach;

(3) Terminate the PPA in whole or in part;

(4) Take any other legally available remedies.

E. Close-out Procedure

If an individual PPA is completed or terminated after the contractor has received Government funding, the following closeout procedures apply:

(1) Upon request, the Government shall make prompt payments to the contractor for allowable reimbursable costs under the PPA being closed out.

(2) The Government shall deobligate the balance of undisbursed cash that the Government has obligated and that is not authorized to be retained for use by the contractor in the performance of the PPA.

(3) The Government shall obtain from the contractor within ninety (90) calendar days after the Date of Completion of a PPA all financial, performance, and other reports required as a condition of the PPA. The Government may grant extensions when requested by the contractor.

(4) When authorized, the Government shall make a settlement for any upward or downward adjustments to the Government’s share of costs after these reports are received based on final, actual expenditures in accordance with Article II.C Termination Costs.

(5) Quick close-out procedures, as stated in Appendix B – Project Other Terms and Conditions shall be followed.

(6) The contractor shall account for any property received from the Government.

F. Force Majeure

No failure or omission by the Parties in the performance of any obligation under the PPA shall be deemed a breach of PPA or create any liability if the failure or omission shall arise from any cause or causes beyond the control of the Parties, including but not limited to, the following: acts of God or nature; acts or omissions of any Government; any rules, regulations or orders issued by any Governmental authority or by any officer, department, and agency or instrumentality thereof; fire; storm; flood; earthquake; accident; war; rebellion; insurrection; riot; pandemic and invasion and provided that such failure or omission resulting from one of the above causes is cured as soon as is practicable after the occurrence of one or more of the above stated causes.

ARTICLE III:OBLIGATION AND PAYMENT

A. Obligation

The Government’s liability to make payments to the contractor is limited only to those project funds obligated under tthis agreement. The Government intends to incrementally fund this agreement by modification.

If a modification becomes necessary in performance of this agreement, including but not limited to the situation in which there is Government-directed change or stop work, the AO and contractor shall establish and execute, through Modification, a mutually agreed upon revised Schedule of Payable Milestones contained within PPA after coordination with the AOR and contractor. In the event the parties cannot reach agreement, any party may pursue a Dispute in accordance with Article V, Prototype Project Agreement Disputes.

Except as noted in the preceding paragraphs of this Section, as consideration for the contractor's performance in accordance with the milestone and payment instructions contained within the PPA, the Government shall pay/reimburse the contractor in accordance with the terms established in the PPA. In no event, however, shall the Government be obligated to reimburse the contractor for an amount in excess of the total funded not-to-exceed amount of the PPA.

B. Payable Milestones

The contractor shall submit detailed invoices no more than monthly outlining all costs and applicable resource share for each payable milestone for processing in Area Workflow (WAWF). The contractor shall explicitly identify on its invoice the milestones for which it is invoicing. For Expenditure-Based Projects, the contractor shall segregate expenditures by the associated milestones and submit a monthly Cost Report that captures actual incurred costs. The contractor shall not invoice for partial milestones on Fixed-Price Projects.

C. Accounting System Requirements

Prior to submission of invoices, the contractor shall have and maintain an established accounting system which complies with Generally Accepted Accounting Principles (GAAP) and the requirements of the PPA. The contractor shall ensure that appropriate arrangements have been made for receiving, distributing, and accounting for Federal Funds under a PPA. Consistent with this stipulation, an acceptable accounting system will be one in which all cash receipts and disbursements are controlled and documented properly.

E. Limitation of Funds

The Government's financial liability will not exceed the funded not-to-exceed amount under a PPA. In addition, the contractor shall provide notice whenever it has reason to believe that the costs it expects to incur under an expenditure-based PPA, in the next 60 days, when added to all costs previously incurred, will exceed 75 percent of (1) the total amount allotted to the PPA by the Government or, (2) if this is a resource-sharing PPA, the amount allotted to the PPA by the Government plus the contractor’s corresponding resource share. The notice shall state the estimated amount of additional funds required to continue performance for the period specified in the Schedule of Payable Milestones.

F. Financial Records and Reports

The contractor shall maintain adequate records to account for Federal Funds received for specific PPAs and shall maintain adequate records to account for any applicable resource sharing implemented on a particular project. For each PPA, the contractor's relevant financial records are subject to examination or audit on behalf of the Government for a period not to exceed three (3) years after final payment of a PPA. The Government shall have direct access to sufficient records and information of the contractor to ensure full accountability for all funding for a PPA. Such audit, examination or access shall be performed during normal 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 a PPA may be conducted by the Government using Government auditors, or at the request of the contractor, by the contractor's external Certified Public Accountant (CPA) accounting firm at the sole expense of the contractor. This does not alleviate the requirements for financial reports in accordance with the reporting requirements in the PPA.

ARTICLE IV: APPROPRIATE USE OF OTHER TRANSACTION AUTHORITY

In accordance with the provisions of 10 U.S.C. § 4022(d) – Authority of the Department of Defense to carry out certain prototype projects, the contractor certified via Appendix C – Representations and Certifications, which condition of the Other Transaction Authority it will meet during the performance of the PPA.

If the contractor proposed to meet 10 U.S.C. § 4022(d) with condition (1)(C) “At least one third of the total cost of the prototype project is to be paid out of funds provided by sources other than the Federal Government” then the contractor shall submit a quarterly Resource Share Report, to the AO, beginning with the first full quarter after the period of performance commences

ARTICLE V: PROTOYPE PROJECT AGREEMENT DISPUTES

A. Dispute Resolution Procedures

The Parties shall communicate with one another in good faith and in a timely and cooperative manner when raising issues under this Article. Any disagreement, claim, or dispute between the Government the contractor concerning questions of fact or law arising from or in connection with this Agreement, whether or not it involves an alleged breach of this Agreement, shall be raised only under this Article.

Whenever disagreements, disputes or misunderstandings arise, the Parties shall attempt to resolve the issues by discussion and mutual agreement as soon as practicable. In no event shall a disagreement, dispute, or misunderstanding that arose more than three (3) months prior to the notification made under this Article constitute a basis for relief under this Article unless the Director, Combat Support and Services, ACC-DTA waives this requirement.

Failing resolution by mutual agreement, the aggrieved Party shall document the disagreement, dispute, or misunderstanding by notifying the other Party in writing regarding the relevant facts, identifying unresolved issues, specifying the clarification or remedy sought, and documenting the rationale as to why the clarification/remedy is appropriate. Ten (10) business days after providing this written notice to the other Party, the aggrieved Party may, in writing, request a decision. The other Party shall submit a written position on the matters in dispute within thirty (30) calendar days after being notified that a decision has been requested. The Director, ACC-DTA will conduct a review of the matter in dispute and render the decision in writing within thirty (30) calendar days of receipt of the other Party’s written position. Any such decision is final and binding, unless a Party shall, within thirty (30) calendar days of the decision request further review as provided by this Article.

If requested within thirty (30) calendar days of the Director, ACC-DTA’s decision, further review will be conducted by contractor and ACC Senior Contracting Official (SCO). In the event of a decision, or in absence of a decision within sixty (60) calendar days of referral to the contractor and ACC’s SCO (or such other period as agreed to by the parties), either Party may pursue any right or remedy provided by law, including but not limited to the right to seek extraordinary relief under Public Law 85-804. Alternatively, the Parties may agree to explore and establish an Alternate Disputes Resolution procedure to resolve this dispute.

ARTICLE VI: CONFIDENTIAL INFORMATION AND TRADE SECRET

A. Definitions

“Confidential Information” means trade secret or nonpublic information, whether or not the information has independent economic value, actual or potential. Confidential information may or may not include “Confidential” information—i.e., information subject to a classification designation consistent with this article and in accordance with DoDM 5200.01, Volume 1 (February 24, 2012).

A “designation” (or to “designate”) refers to use of a writing to provide, point out, or indicate something of significance. Designations may include letters, numbers, symbols, or a combination thereof. A stamp or legend may constitute a designation such as a stamp or legend which comprises the text “Confidential Information” or “TRADE SECRET.”

A designation label includes a designation and may include additional information such as an identifier of a source of the information and/or a warning. The following designation labels may be used, as appropriate.

TRADE SECRET

CONTROLLED BY: [insert Government Entity or Contractor entity], [insert date] WARNING: If you are not the intended recipient of this trade secret information, any disclosure, copying, or distribution is strictly prohibited. Please promptly contact the controlling entity listed above; instructions will be provided regarding returning, destroying, or otherwise dispositioning this information.

CONFIDENTIAL INFORMATION

CONTROLLED BY: [insert Government Entity or Contractor entity], [insert date] WARNING: If you are not the intended recipient of this Confidential Information, any disclosure, copying, or distribution is strictly prohibited. Please promptly contact the controlling entity listed above; instructions will be provided regarding returning, destroying, or otherwise dispositioning this Information.

“Disclosing Party” means the contractor or the Government who discloses Confidential Information as contemplated by the subsequent Paragraphs.

“Receiving Party” means the contractor or the Government who receives Confidential Information disclosed by a Disclosing Party.

A “writing” refers to printing, typing, or other intentional reduction of characters to tangible form; herein, a writing includes use of an electronic device or electronic messaging.

“Trade Secret(s)” is defined in 18 U.S.C. § 1831, et seq. Pub. L. 114–153 (May 11, 2016) as:

all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if-

a. the owner thereof has taken reasonable measures to keep such information secret; and

b. the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public.

B. Exchange of Information

The Government or contractors and/or their subcontractors or suppliers, respectively, shall designate, in writing, any information which it considers Confidential Information or Trade Secret prior to or at the same time such Confidential Information or Trade Secret is disclosed by a Disclosing Party to a respective Receiving Party. Each page of the writing shall clearly state the designation label.

In no case shall a contractor (and/or their subcontractors or suppliers) use the designation labels “Confidential Information” or “TRADE SECRET” on technical data or computer software intended to be a deliverable under a PPA. Instead, the contractor (and/or their subcontractors or suppliers) shall only use one of the enumerated markings set forth in Article IX. Data Rights and Copyrights, Section F.

Notwithstanding the foregoing, in the event of an oral, visual, electronic or unintentional disclosure, where information which a Party considers Confidential Information or Trade Secret is disclosed without a designation or designation label, the subject matter of the unintentional disclosure shall retain its status as Confidential Information or Trade Secret provided the Disclosing Party, within thirty (30) calendar days after such disclosure, delivers—in writing—to the Receiving Party a notice that identifies that the subject matter of the disclosure is Confidential Information or Trade Secret. In this instance, prior to receipt of such notice, any disclosure by the Receiving Party to a third party of the subject matter of the disclosure shall not constitute a breach of the PPA.

The Government may from time to time disclose Confidential Information or Trade Secrets to the contractor for use by the contractor, or their subcontractors or suppliers, in connection with performance under the PPA. The contractor, or their subcontractors or suppliers, may from time to time disclose information that is Confidential Information or Trade Secret to the Government in connection with the PPA. Neither Party shall be obligated to transfer Confidential Information or Trade Secret independently developed by the Government or independently developed by a contractor, or either the contractor’s respective subcontractor or supplier absent an express written agreement between the Parties providing the terms and conditions for the disclosure.

C. Confidentiality and Authorized Disclosure

The Receiving Party agrees, to the extent permitted by law, that Confidential Information and Trade Secrets shall remain the property of the Disclosing Party, and that, unless otherwise agreed by the Disclosing Party, Confidential Information and Trade Secrets shall not be disclosed, divulged, or otherwise communicated to third parties or used by third parties for any purposes other than in connection with specified prototype project efforts and the licenses granted in Article VIII, Patent Rights, and Article IX, Data Rights. The aforementioned shall not extend to information or materials that:

(1) Are received or become available to the Receiving Party with less restrictive terms or conditions under a proper, separate agreement;

(2) Are not identified with a suitable notice or legend;

(3) Are, at the time of disclosure, lawfully in possession of the Receiving Party absent such restrictive terms and conditions, as demonstrated by prior written records;

(4) Are or later become part of the public domain through no fault of the Receiving Party;

(5) Are received by the Receiving Party from a third party having no obligation of confidentiality to the Disclosing Party that made the disclosure;

(6) Are developed independently by the Receiving Party without the use of Confidential Information or Trade Secrets from the Disclosing Party, as evidenced by written records; or

(7) Are required by law, regulation, or a court of competent jurisdiction to be disclosed in camera only, provided, however, that the Receiving Party has given written notice to the Disclosing Party promptly so as to enable such Disclosing Party to seek a protective order or otherwise prevent further disclosure of the Confidential Information or Trade Secret.

D. Return of Confidential Information or Trade Secrets provided as Contractor Furnished Information (CFI) or provided as Government Furnished Information (GFI)

Upon the request of either Party, the other Party shall promptly return all copies and other tangible manifestations of the Confidential Information or Trade Secrets that were disclosed. As used in this section, tangible manifestations include computer-readable media and/or storage devices and human- readable media. Upon return of any computer-readable media and/or storage devices, any other copies of the Confidential Information or Trade Secrets which exist on the servers or storage devices of the other Party shall be irrecoverably deleted or destroyed, and the deleting Party shall provide written confirmation to the Party that provided the Confidential Information or Trade Secrets. Unless otherwise stipulated, Confidential Information or Trade Secrets that are used by the Receiving Party—but which are not embodied as part of a deliverable itself—shall be irrecoverably deleted or destroyed. In the event that return of all tangible manifestations is not practicable, either Party may propose an alternative process to ensure the verifiable destruction of such tangible manifestations. Such alternative process must be agreed upon in writing by both Parties prior to implementation.

E. Term

Except to the extent covered by and subject to other provisions of a specific PPA, the obligations of the Receiving Party under this Article shall continue for a period of five (5) years after the expiration or termination of the PPA (or any modifications thereof), unless another period is negotiated in the PPA.

The contractor shall flow down the requirements of this Article to their respective personnel, member entities, agents, and employees at all levels.

ARTICLE VII: PUBLICATION AND ACADEMIC RIGHTS

A. Use of Information

Subject to the provisions of Article VI, Confidential Information and Trade Secret, and other applicable provisions of this Agreement, the contractor shall have the right to publish or otherwise disclose information or data developed by the contractor under the PPA. The contractor shall include an appropriate acknowledgement of the sponsorship of the projects by the Government in any such publications or disclosures. The Government shall have the right to publish or otherwise disclose information or data developed and delivered under the PPA subject to the provisions in this Article VI, Confidential Information and Trade Secret and Article IX, Data Rights and Copyrights.

B. Classified Research Projects

If a desired publication includes information related to a Classified project, the provisions of the DoD Security Agreement (DD Form 441), Certificate Pertaining to Foreign Interests (SF 328), and the DoD Contract Security Classification Specification (DD Form 254) apply.

C. Review or Approval of Technical Information for Public Release

At least thirty (30) calendar days prior to the scheduled release date, the contractor shall submit to the AO two copies of the information to be released along with the Clearance of Technical Information for Public Release Form INME-PIC-IM Form 3002, 1 MAR 2011.. The review will undergo the Government’s formal OPSEC process.

Parties to this PPA are responsible for ensuring that an acknowledgment of Government support will appear in any publication of any material based on or developed under an individual PPA under the agreement, using the following acknowledgement terms:

“This effort was sponsored by the U.S. Government under Other Transaction number (insert agreement number) with (insert contractor name). The U.S. Government is authorized to reproduce and distribute reprints for Governmental purposes notwithstanding any copyright notation herein.”

Parties to this PPA are also responsible for ensuring that every publication of material based on or developed under a PPA under the agreement contains the following disclaimer:

“The views and conclusions contained herein are those of the authors and should not be interpreted as necessarily representing the official policies or endorsements, either expressed or implied, of the U.S. Government or any of its employees.”

D. Notices

To avoid disclosure of Confidential Information or Trade Secrets belonging to the Government or a contractor, or the loss of patent rights as a result of premature public disclosure of patentable subject matter, any contractor proposing to publish or disclose such information or data shall provide advance notice to the Government and identify such other parties thatmay have an interest in the said information or data. The contractor shall notify parties at least thirty (30) calendar days prior to any submission for publication or disclosure, together with any and all materials intended for publication or disclosure relating to technical reports, data, or information developed by the parties during the term of and pursuant to a PPA. The Government must notify the contractor of any objection to disclosure within the thirty (30) calendar day period, or the disclosing party, shall be deemed authorized to make the disclosure.

E. Filing of Patent Applications

During the course of the aforementioned thirty (30) calendar day period, the contractor, shall provide notice in a subject invention report to the AO as to whether it will be filing a patent application on any subject invention disclosed partially or wholly in the materials. In the event that the contractor, or any subcontractor or supplier of the prime contractor will be filing a patent application, the contractor shall ensure that the publication of the materials is withheld until the occurrence of the first of the following:

(1) Filing of a patent application covering the invention;

(2) Written agreement, from the AO with the authorization of the cognizant contractor (or any subcontractor or supplier of the contractor), that no patentable invention is disclosed in such materials; or

(3) Written agreement, from the AO with the authorization of the cognizant contractor (or any subcontractor or supplier of the contractor), that the proposed publication is devoid of data or disclosure that would erode the patentability of the proposed patent subject matter.

In addition, the contactor or its subcontractor shall not publish a subject invention—in whole or in part— without first notifying the Government of its publication intentions, wherein, in such circumstances, no publication shall occur until the details of the subject invention have been disclosed to the Government and the contractor or its subcontractor makes an election regarding title in accordance with Article VIII. In the event the contractor or its subcontractor does not elect to retain title, then the Government will be provided three (3) months to determine if the Government wishes to take title and, if so, prepare and file a patent application directed to the subject matter IAW Article VIII prior to any publication.

ARTICLE VIII: PATENT RIGHTS

A. Rights in Subject Inventions

Patent Rights under this agreement shall be as specified in DFARS 252.227-7038, Patent Rights—Ownership by the Contractor (Large Business) (JUN 2012), which is hereby incorporated by reference with the following modifications:

(1) As appropriate, replace “the agency” with “Government”; “contract” with “agreement”; and “Contracting Officer” with “Agreements Officer”.

(2) The Government shall have the option to retain title to each subject invention made jointly by the contractor and Government employees.

(3) The contractor shall elect in writing whether to retain ownership of any subject invention by notifying the Agreements Officer within six (6) months of disclosure. In any case where publication, on sale, or public use has initiated the 1-year statutory period during which valid patent protection can be obtained in the United States, the period of election of title shall be no later than 60 days prior to the end of the statutory period.

(4) The contractor may request an extension to the six (6) month period for ownership election. The Agreements Officer may, in their discretion, extend the ownership election period, but the ownership election period shall not exceed two (2) years from the disclosure of the subject invention.

B. Subject Invention Reports

The contractor shall submit interim and final subject invention reports IAW DFARS 252.227-7038 using DD Form 882, Report of Inventions and Subcontracts. Forms shall be submitted to the AO and AOR. In the case of no reportable subject inventions, negative subject invention reports are required.

C. Patent Licensing

In the event that the Government desires to grant the contractor (or its subcontractor or supplier) the right to make or use pre-existing subject matter claimed in a patent owned by the Government in the PPA, the Government and the contractor (or its subcontractor or supplier) shall enter into a Specially Negotiated License (SNL) for which the contractor (or its subcontractor or supplier) will exchange valuable consideration for the right to make and/or use the subject matter claimed in the Government’s patent. This SNL will be memorialized within the respective PPA or as a modification thereto. This patent license will expire at the Date of Completion of the PPA (unless the SNL explicitly so states) and does not include the rights to sell or to offer to sell any aspect of the claimed subject matter (unless the SNL explicitly so states).

D. Final Payment

Final payment will not be made until the contractor delivers to the Government all subject invention reports, all subject invention disclosures, and all confirmatory instruments required by this agreement.

E. Lower Tier Agreements

The contractor shall include this Article, suitably modified to identify the parties, in all lower tier agreements (such as subcontracts), regardless of tier, for experimental, developmental, or research work performed under the PPA.

F. Survival

The provisions of this Article shall survive termination provisions under Article II.

ARTICLE IX: DATA RIGHTS AND COPYRIGHTS

In the event any terms and conditions of the PPA conflicts with the terms and conditions of this Article (Article IX), the terms and conditions of the PPA or the like will control while all non-conflicting terms and conditions of this Article remain in effect and fully enforceable to the maximum allowable extent. Although this Article shall serve as the default and overarching terms and conditions for the handling of Data Rights and Copyrights, any specific Data Rights or Copyright terms and conditions in the PPA will control over this Article.

A. Definitions

“Access” refers to a right or license (i.e., an Access right or an Access license) that enables the Government to use, reproduce, perform, or display certain targeted technical data or computer software in one or more of the following ways: (i) to retrieve or otherwise obtain certain targeted technical data or computer software; (ii) to examine and/or inspect certain targeted technical data or computer software; (iii) to download, compile, and/or execute a third-party software (e.g., such as cybersecurity software) to scan certain targeted computer software for malicious code); or (iv) to make and/or use a temporary copy of certain targeted technical data or computer software for a predefined purpose. Access rights or an Access license shall state an intended purpose for the access. Following the retrieving/obtaining, examining/inspecting, or making/use of the temporary copy, the temporary copy is dispositioned in accordance with the terms and conditions of this agreement.

“Commercial computer software” means computer software as defined in DFARS 252.227-7014 (AUG 2025)

“Commercial license” means a license to use a commercial product or a commercial service under the terms set forth in that license, except to the extent that those terms violate applicable Federal law, regulation, or policy. Upon inclusion or execution of a commercial license, such violative terms will not bind the Government or any Government authorized end user to such terms.

"Commercial product" has the definition in FAR 2.101.

“Commercial service” has the definition in FAR 2.101.

“Computer database” means a collection of recorded data in a form capable of being processed by a computer. The term does not include computer software.

“Computer program” means a set of instructions, rules, or routines recorded in a form that is capable of causing a computer to perform a specific operation or series of operations.

“Computer software” 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 provide instructions for using the software.

“Covered Government support contractor” has the definition in DFARS 252.227-7013(a) (AUG 2025).

“Data” means commercial or other than commercial computer software and computer software documentation as defined in DFARS 252.227-7014 (AUG 2025) and technical data as defined in DFARS 252.227-7013 (AUG 2025).

“Data rights markings” serves an actual notice function and refers to text and/or symbols which identify to the bearer of certain technical data or computer software what rights the Government has in said technical data or computer software.

With respect to technical data, “detailed manufacturing or process data” has the definition in DFARS 252.227-7013(a) (AUG 2025).

With respect to technical data, “developed” has the definition in DFARS 252.227-7013(a) (AUG 2025).

With respect to computer software, “developed” has the definition in DFARS 252.227-7014(a) (AUG 2025)

“Developed exclusively at private expense” means development was accomplished entirely with costs charged to indirect cost pools, costs not allocated to a government contract or agreement, or any combination thereof; (i) private expense determinations should be made at the lowest practicable level (ii) under firm-fixed-price contracts or agreements, when total costs are greater than the firm-fixed-price or ceiling price of the contract or agreement, the additional development costs necessary to complete development shall not be considered when determining whether development was at government, private, or mixed expense.

“Developed exclusively with Government funds” (or “developed exclusively at Government expense”) means development was not accomplished exclusively or partially at private expense.

“Developed with mixed funding” (or “developed partially at private expense”) means development was accomplished partially with costs charged to indirect cost pools and/or costs not allocated to a government contract or agreement, and partially with costs charged directly to a government contract or agreement.

“Form, fit, and function data” (FFF 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 Data” means Data the Government has developed independent from the OTA or the OTA’s Follow-on Award.

“Government Furnished Information” (GFI) means data owned or controlled by the Government, which is furnished to the contractor or its subcontractor for the limited purpose of using that data to assist the contractor or its subcontractor to fulfill its obligations under the agreement. GFI includes—but is not limited to—computer software furnished to the contractor or its subcontractor by the Government (sometimes referred to as “Government Furnished Computer Software” (GFCS)), technical data furnished to the contractor or its subcontractor by the Government, or both.

“Government Purpose” (or “governmental purpose”) means…