Volume VI - Draft Other Transaction (OT) Agreement.pdf

Other Transaction for Prototype Agreement

AGREEMENT

BETWEEN

(INSERT PERFORMER AND ADDRESS)

AND

SPACE DEVELOPMENT AGENCY

3030 DEFENSE PENTAGON

WASHIINGTON, DC 220301-0001

CONCERNING

Tranche 1 Tracking Layer

Agreement No.: HQ0850-22-9-XXXX Purchase Requisition No.:

Total Amount of the Agreement: $ Funds Obligated: $ Authority: 10 U.S.C. § 2371b Effective Date:

Line of Appropriation:

AA $

This Agreement is entered into between the United States of America, hereinafter called the Government, represented by the Space Development Agency (SDA), and (INSERT COMPANY NAME) pursuant to and under United States Federal law.

FOR (INSERT COMPANY NAME) FOR THE

SPACE DEVELOPMENT AGENCY

(Signature) (Signature)

(Name, Title) (Date) (Name, Title) (Date)

TABLE OF CONTENTS

ARTICLES

ARTICLE I Scope of the Agreement ARTICLE II Term ARTICLE III Management of the Project ARTICLE IV Agreement Administration ARTICLE V Obligation and Payment ARTICLE VI Disputes ARTICLE VII Patent Rights ARTICLE VIII Data Rights ARTICLE IX Foreign Access to Technology ARTICLE X Safeguarding Controlled Unclassified Information and Controlled Technical

Information and Cyber Incident Reporting ARTICLE XI Follow-On Production Contracts or Other Transactions ARTICLE XII Title to and Disposition of Property ARTICLE XIII Civil Rights Act ARTICLE XIV Security ARTICLE XV Public Release or Dissemination of Information ARTICLE XVI Order of Precedence ARTICLE XVII Execution ARTICLE XVIII Prohibition on Contracting for Certain Telecommunications and Video

Surveillance Services or Equipment ARTICLE XIX Ensuring Adequate Covid-19 Safety Protocols for Federal Contractors

ATTACHMENTS

ATTACHMENT 1 Statement of Work (CUI; Bidders Library) ATTACHMENT 2 Schedule of Milestones and Payments ATTACHMENT 3 Government Furnished Equipment & Information (GFE/GFI) ATTACHMENT 4 Agreements Officer’s Representative ATTACHMENT 5 CSDR Plan ATTACHMENT 6 DD Form 254 ATTACHMENT 7 Data Assertions Table

*Bidders Library provided upon request by email to osd.pentagon.ousd-r-e.mbx.SDA-PS-22- 02@mail.mil. Email subject shall contain “SDA-PS-22-02 T1TRK Bidders Library Request” along with Offeror’s CAGE code.

mailto:osd.pentagon.ousd-r-e.mbx.SDA-PS-22-02@mail.mil mailto:osd.pentagon.ousd-r-e.mbx.SDA-PS-22-02@mail.mil

ARTICLE I: SCOPE OF THE AGREEMENT

A. Background

With this Agreement SDA and the Performer seek to establish the foundation for Tranche 1 (T1), the Initial Warfighting Capability Tranche, of the National Defense Space Architecture (NDSA). The NDSA’s operational utility is predicated on the availability of a ubiquitous data and communications Tracking Layer provided by a proliferated constellation of relatively small, mass-producible space vehicles (SVs) in low Earth orbit (LEO). The T1 Tracking Layer prototyping effort will accelerate the capability to provide global, persistent indications, detection, warning, tracking, and identification of advanced missile threats, including hypersonic missile systems.

B. Definitions

In this Agreement, the following definitions apply:

Agreement: The body of this Agreement and Attachments 1-5, which are expressly incorporated in and made a part of the Agreement.

Commercial Computer Software: Software developed or regularly used for non-governmental purposes which: (1) Has been sold, leased, or licensed to the public; (2) Has been offered for sale, lease, or license to the public; (3) Has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this agreement; or (4) would satisfy at least one of the above three criteria and would require only minor modification to meet the requirements of this agreement

Data: Recorded information, regardless of form or method of recording, which includes but is not limited to, technical data, noncommercial computer software, maskworks, and trade secrets. The term does not include financial, administrative, cost, pricing or management information and does not include subject inventions, included in Article VII.

Foreign Firm or Institution: A firm or institution organized or existing under the laws of a country other than the United States, its territories, or possessions. The term includes, for purposes of this Agreement, any agency or instrumentality of a foreign government; and firms, institutions or business organizations which are owned or substantially controlled by foreign governments, firms, institutions, or individuals.

Government: The United States of America, as represented by SDA.

Government Purpose Rights: The rights to use, duplicate, or disclose Data, in whole or in part and in any manner, for Government purposes only, and to have or permit others to do so for Government purposes only.

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

Know-How: All information including, but not limited to discoveries, formulas, materials, inventions, processes, ideas, approaches, concepts, techniques, methods, software, programs, documentation, procedures, firmware, hardware, technical data, specifications, devices, apparatus and machines.

Limited Rights: The rights to use, modify, reproduce, release, perform, display, or disclose technical 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 technical data outside the Government, use the technical data for manufacture, or authorize the technical 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 it is necessary for emergency repair and overhaul or if the release or disclosure is to a covered Government support contractor in performance of its covered Government support contract.

Made: Relates to any invention means the conception or first actual reduction to practice of such invention.

Noncommercial Computer Software: Software that does not qualify as Commercial Computer Software.

Party: Includes the Government (represented by SDA), or the Performer, or both.

Performer: COMPANY NAME.

Person: An individual, corporation, company, association, authority, firm, partnership, society, State, and local government, regardless of whether such entity is operated for profit, or not for profit.

Practical application: To manufacture, in the case of a composition of product; to practice, in the case of a process or method, or to operate, in the case of a machine or system; and, in each case, under such conditions as to establish that the invention is capable of being utilized and that its benefits are, to the extent permitted by law or Government regulations, available to the public on reasonable terms.

Program: Research and development being conducted by the Performer, as set forth in Article I, paragraph C.

Property: Any tangible personal property other than property actually consumed during the execution of work under this agreement. For purposes of this article, "property" does not include the deliverable prototype which is the Tranche 1 Tracking Layer Space Vehicles.

Restricted Rights: Applies only to noncommercial computer software and means the Government’s right to use, modify, reproduce, perform, display, release disclose or transfer computer software are restricted, except that the Government may use a computer program on a limited number of computers and make the minimum number of copies of the computer software required for safekeeping (archive), backup, or modification purposes. The Government will not transfer the software outside of the Government or for any purpose other than the Goblin program, except that the Government may allow the use of the noncommercial computer software outside of the Government under a limited set of circumstances, including use by a covered Government support contractor in performance of its covered Government support contract (management and administrative support), and after the contractor or subcontractor asserting the restriction is notified in writing as far in advance as practicable that a release or disclosure to particular contractors or subcontractor is planned to be made.

Subject Invention: Any invention conceived or first actually reduced to practice in the performance of work under this Agreement.

Technology: Discoveries, innovations, Know-How and inventions, whether patentable or not, including computer software, recognized under U.S. law as intellectual creations to which rights of ownership accrue, including, but not limited to, patents, trade secrets, maskworks and copyrights developed under this Agreement.

Unlimited Rights: Rights to use, duplicate, release, or disclose, Data in whole or in part, in any manner and for any purposes whatsoever, and to have or permit others to do so.

C. Scope

1. This Agreement is an other transaction pursuant to 10 U.S.C. § 2371b. The principal purpose of this Agreement is to engage in a research and development program for the development of a Tranche 1 Tracking Layer (T1Trk) prototype constellation. This prototype will strengthen deterrence and Warfighting capabilities in space to support a stressing regional conflict.

2. COMPANY NAME (Performer) shall be responsible for performance of the work set forth in the Statement of Work (SOW) incorporated in this Agreement as Attachment 1.

3. The Performer shall be paid a fixed amount for each milestone accomplished in accordance with the Schedule of Milestones and Payments set forth in Attachment 2 and the procedures of Article V. The Schedule of Milestones and Payments may be revised or updated in accordance with Article III.

4. The Government will have continuous involvement with the Performer. The Government will obtain access to Program results and certain rights in patents and data pursuant to Articles VII and VIII. SDA and the Performer are bound to each other by a duty of good faith in achieving the Program objectives.

ARTICLE II: TERM

A. Term of this Agreement

The Program commences upon the date of the last signature hereon and continues for (INSERT NUMBER OF MONTHS) ( ) months. Provisions of this Agreement, which, by their express terms or by necessary implication, apply for periods of time other than specified herein, shall be given effect, notwithstanding this Article.

B. Termination Provisions

The Government may terminate this Agreement by written notice to the Performer, provided that such written notice is preceded by consultation between the Parties. The Performer may request Agreement termination by giving the Government sixty (60) days written notification of their intent to do so. If the Performer decides to request termination of this Agreement, the Government may, at its discretion, agree to terminate. The Government and the Performer should negotiate in good faith a reasonable and timely adjustment of all outstanding issues between the Parties as a result of termination, which may include non-cancelable commitments In the event of a termination of the Agreement, the Government shall have paid-up rights in Data as described in Article VIII, Data Rights. Failure of the Parties to agree to an equitable adjustment shall be resolved pursuant to Article VI, Disputes.

C. Extending the Term

The Parties may extend by mutual written agreement the term of this Agreement if research opportunities within the vision statement set forth in Article I reasonably warrant. Any extension shall be formalized through modification of the Agreement by the Agreements Officer (AO) and the Performer Administrator.

ARTICLE III: MANAGEMENT OF THE PROJECT

A. Management and Program Structure

The Performer shall be responsible for the overall technical and program management of the Program, and technical planning and execution shall remain with the Performer. The SDA Agreements Officer’s Representative (AOR), in consultation with the SDA Program Manager (PM), shall provide recommendations to Program developments and technical collaboration and be responsible for the review and verification of the milestones.

B. Modifications

1. As a result of meetings, reviews, or at any time during the term of the Agreement, research progress or results may indicate that a change in the SOW and/or the Schedule of Milestones and Payments would be beneficial to program objectives. Recommendations for modifications, including justifications to support any changes to the SOW and/or the Schedule of Milestones and Payments will be documented in writing and submitted by the Performer to the SDA AOR with a copy to the SDA AO.

This documentation will detail the technical, chronological, and financial impact of the proposed modification to the research program. The SDA AO and the Performer shall approve any Agreement modification. The Government is not obligated to pay for additional or revised future milestones until the Schedule of Milestones and Payments (Attachment 2) is formally revised by the SDA AO and made part of this Agreement.

2. The SDA AOR shall be responsible for the review and verification of any recommendations to revise or otherwise modify the SOW, prospective milestones, or other proposed changes to the terms and conditions of this Agreement.

3. For minor or administrative Agreement modifications (e.g. changes in the paying office or appropriation data, changes to Government or the Performer’s personnel identified in the Agreement, etc.) no signature is required by the Performer.

4. The SDA AO will be responsible for instituting all modifications to this Agreement.

C. Key Personnel

The following individuals are designated as Key Personnel for the Agreement:

Key Personnel Job Title/Role Company

1. The key personnel identified above shall be furnished for the entire term of the Agreement, unless the Performer has requested in writing substitution of the key personnel and demonstrated to the satisfaction of the Agreements Officer that the qualifications of the proposed substitute key personnel are comparable or better than the qualifications of the personnel being replaced. The Agreement Officer’s approval for the substitution of key personnel shall not be unreasonably withheld and, if approved, shall be documented by modification to the Agreement made in accordance with the procedures outlined in paragraph B above.

ARTICLE IV: AGREEMENT ADMINISTRATION

Unless otherwise provided in this Agreement, approvals permitted or required to be made by SDA may be made only by the SDA AO. Administrative and contractual matters under this Agreement shall be referred to the following representatives of the parties:

A. Government Points of Contact:

Agreements Officer (AO):

(NAME)

(TITLE)

(PHONE NUMBER)

(EMAIL)

SDA Program Manager (PM):

(NAME)

(TITLE)

(PHONE NUMBER)

(EMAIL)

Agreements Officer’s Representative (AOR):

(NAME)

(TITLE)

(PHONE NUMBER)

(EMAIL)

Administrative Agreements Officer (AAO):

(NAME)

(ADDRESS)

(TITLE)

(PHONE NUMBER)

(EMAIL)

B. Performer Points of Contact

Performer’s Administrative/Contracting:

(NAME)

(TITLE)

(PHONE NUMBER)

(EMAIL)

Performer’s Program Manager:

(NAME)

(TITLE)

(PHONE NUMBER)

(EMAIL)

Each party may change its representatives named in this Article by written notification to the other party.

The Government will affect the change as stated in Article III, subparagraph B.3. above.

ARTICLE V: OBLIGATION AND PAYMENT

A. Obligation

1. The Government’s liability to make payments to the Performer is limited to only those funds obligated under the Agreement or by modification to the Agreement. SDA may obligate funds to the Agreement incrementally.

2. If modification becomes necessary in performance of this Agreement, pursuant to Article III, Paragraph B, the SDA AO and the Performer Administrator shall execute a revised Schedule of Milestones and Payment for prospective milestones consistent with Attachment 2.

B. Payments

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

These payments reflect value received by the Government toward the accomplishment of the research goals of this Agreement.

2. The Performer shall document the accomplishments of each milestone and submit one (1) copy of all invoices to the AO for payment approval. After written verification of the accomplishment of the milestone by the SDA AOR, and approval by the AO, the Performer will submit their invoice through Wide Area Work Flow (WAWF), as detailed in paragraph B.4. of this Article.

3. Limitation of Funds: In no case shall the Government’s financial liability exceed the amount obligated under this Agreement.

4. Payments will be made by the Defense Finance and Accounting Services office, as indicated below, within thirty (30) calendar days of an accepted invoice in WAWF. WAWF is a secure web-based system for electronic invoicing, receipt and acceptance. The WAWF application enables electronic form submission of invoices, government inspection, and acceptance documents in order to support DoD’s goal of moving to a paperless acquisition process. Authorized DoD users are notified of pending actions by e-mail and are presented with a collection of documents required to process the contracting or financial action. It uses Public Key Infrastructure (PKI) to electronically bind the digital signature to provide non-refutable proof that the user electronically signed the document with the contents. Benefits include online access and full spectrum view of document status, minimized re-keying and improving data accuracy, eliminating unmatched disbursements and making all documentation required for payment easily accessible.

5. The Performer is required to utilize the WAWF system when processing invoices and receiving reports under this Agreement. The Performer shall (i) ensure an Electronic Business Point of Contact is designated in System for Award Management (SAM) at http://www.sam.gov and (ii) register to use WAWF–RA at the https://wawf.eb.mil site, within ten (10) calendar days after award of this Agreement. Step-by-step procedures to register are available at the https://wawf.eb.mil site. The Performer is directed to use the 2-in-1 format when processing invoices. The Performer should submit a copy of the AOR approval of the milestone with each invoice.

http://www.sam.gov/ https://wawf.eb.mil/ https://wawf.eb.mil/

a. For the Issue By DoDAAC, enter HQ0850.

b. For the Admin DoDAAC, enter TBD.

c. For the Service Acceptor AOR fields, enter the Service Acceptor AOR DoDAAC.

d. Leave the Inspect by DoDAAC, Ship From Code DoDAAC, Service Approver, and LPO

DoDAAC fields blank unless otherwise directed by the Agreements Officer.

e. The following guidance is provided for invoicing processed under this Agreement through

WAWF:

• The AOR identified in Article IV, "Agreement Administration" shall continue to formally inspect and accept the deliverables/ milestones. To the maximum extent practicable, the AOR shall review the deliverable(s)/ milestone report(s) and either: 1) provide a written notice of rejection to the Performer which includes feedback regarding deficiencies requiring correction, or 2) written notice of acceptance to the SDA PM and Agreements Officer.

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

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

WAWF).

• Payments shall be made by DFAS-(INSERT APPROPRIATE DFAS OFFICE NAME

AND DODAAC).

• The Performer agrees, when entering invoices entered in WAWF to utilize the contracting line item number (CLIN) and accounting classification reference number (ACRN) associated with each milestone as delineated at Attachment 3. The description of the CLIN shall include reference to the associated milestone number along with other necessary descriptive information. The Performer agrees that the Government may reject invoices not submitted in accordance with this provision

Note for DFAS: The Agreement shall be entered into the DFAS system by CLIN as delineated at Attachment 2. Because each CLIN contains multiple payable milestones, the Performer may partially invoice against the Firm Fixed Price CLINs in amounts corresponding to each payable milestone amount shown in Attachment

2. The “quantities” for each CLIN will equal the total number of payable milestones associated with each CLIN. See Attachment 2.

f. Payee Information: As identified at SAM.

• Cage Code:

• DUNS:

• TIN:

6. Payments shall be made in the amounts set forth in Attachment 3, provided the SDA

AOR has verified the accomplishment of the milestones.

7. Financial Records and Reports:

a. The Performer shall maintain adequate records to account for all funding under this Agreement. The Performer’s relevant financial records are subject to examination or audit on behalf of SDA by the Government for a period not to exceed three (3) years after expiration of the term of this Agreement. The AO or designee shall have direct access to sufficient records and information of the Performer, to ensure full accountability for all funding under this Agreement. Such audit, examination, or access shall be performed during business hours on business days upon prior written notice and shall be subject to the security requirements of the audited party.

b. To the extent that the total government payments under the Agreement exceed

$5,000,000, the Comptroller General of the United States, in its discretion, shall have access to and the right to examine records of any party to the Agreement or any entity that participates in the performance of this Agreement that directly pertain, to and involve transactions relating to, the Agreement for a period of three (3) years after final payment is made. This requirement shall not apply with respect to any party to this Agreement or any entity that participates in the performance of the Agreement, or any subordinate element of such party or entity, that, in the year prior to the date of the Agreement, has not entered into any other contract, grant, cooperative agreement, or other transaction agreement that provides for audit access to its records by a government entity in the year prior to the date of this Agreement. This paragraph only applies to any record that is created or maintained in the ordinary course of business or pursuant to a provision of law.

The terms of this paragraph shall be included in all sub-agreements/contracts to the Agreement.

ARTICLE VI: DISPUTES

A. General

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

B. Dispute Resolution Procedures

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

2. Whenever disputes, disagreements, or misunderstandings arise, the Parties shall attempt to resolve the issue(s) involved by discussion and mutual agreement as soon as practicable. In no event shall a dispute, disagreement or misunderstanding which arose more than three (3) months prior to the notification made under subparagraph B.3 of this article constitute the basis for relief under this article unless the SDA Director in the interests of justice waives this requirement.

3. Failing resolution by mutual agreement, the aggrieved Party shall document the dispute, disagreement, or misunderstanding by notifying the other Party in writing of the relevant facts, identify unresolved issues, and specify the clarification or remedy sought. Within five (5) working days after providing notice to the other Party, the aggrieved Party may, in writing, request a joint decision by the SDA Deputy Director and senior executive, no lower than (INSERT A LEVEL OF EXECUTIVE FAR

ENOUGH REMOVED FROM THE PROGRAM TO MAINTAIN A GREATER LEVEL OF

IMPARTIALITY) level, appointed by the Performer. The other Party shall submit a written position on the matter(s) in dispute within thirty (30) calendar days after being notified that a decision has been requested. The SDA Deputy Director and the senior executive shall conduct a review of the matter(s) in dispute and render a decision in writing within thirty (30) calendar days of receipt of such written position. Any such joint decision is final and binding.

4. In the absence of a joint decision, upon written request to the SDA Director, made within thirty (30) calendar days of the expiration of the time for a decision under subparagraph B.3 above, the dispute shall be further reviewed. The SDA Director may elect to conduct this review personally or through a designee or jointly with a senior executive, no lower than (INSERT A LEVEL OF EXECUTIVE

FAR ENOUGH REMOVED FROM THE PROGRAM TO MAINTAIN A GREATER LEVEL OF

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

C. Limitation of Damages

Claims for damages of any nature whatsoever pursued under this Agreement shall be limited to direct damages only up to the aggregate amount of SDA funding disbursed as of the time the dispute arises. In no event shall SDA be liable for claims for consequential, punitive, special and incidental damages, claims for lost profits, or other indirect damages.

ARTICLE VII: PATENT RIGHTS

A. Allocation of Principal Rights

1. Unless the Performer shall have notified SDA, in accordance with subparagraph B.2 below, that the Performer does not intend to retain title, the Performer shall retain the entire right, title, and interest throughout the world to each Subject Invention consistent with the provisions of this Article.

2. With respect to any Subject Invention in which the Performer retains title, SDA shall have a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced 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 Performer shall disclose each Subject Invention to SDA within four (4) months after the inventor discloses it in writing to his company personnel responsible for patent matters. The disclosure to SDA shall be in the form of a written report and shall identify the Agreement and circumstances under which the Invention was made and the identity of the inventor(s). It shall be sufficiently complete in technical detail to convey a clear understanding, to the extent known at the time of the disclosure, of the nature, purpose, operation, and the physical, chemical, biological, or electrical characteristics of the Invention. The disclosure shall also identify any publication, sale, or public use of the invention and whether a manuscript describing the Invention has been submitted and/or accepted for publication at the time of disclosure.

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

3. The Performer shall file its initial patent application on a Subject Invention to which it elects to retain title within one (1) year after election of title or, if earlier, prior to the end of the statutory period wherein valid patent protection can be obtained in the United States after a publication, or sale, or public use. The Performer may elect to file patent applications in additional countries, including the European Patent Office and the Patent Cooperation Treaty, within either ten (10) months of the corresponding initial patent application or six (6) months after the date permission is granted by the Commissioner for Patents to file foreign patent applications, where such filing had previously been prohibited by a Secrecy Order.

4. The Performer shall notify SDA 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.

5. Requests for extension of the time for disclosure election, and filing under Article VII, may be granted at SDA’s discretion after considering the circumstances of the Performer and the overall effect of the extension.

6. The Performer shall submit to SDA annual listings of Subject Inventions. At the completion of the Agreement, the Performer shall submit a comprehensive listing of all subject inventions identified during the course of the Agreement and the current status of each.

C. Conditions When the Government May Obtain Title

Upon SDA’s written request, the Performer shall convey title to any Subject Invention to SDA under any of the following conditions:

1. If the Performer fails to disclose or elects not to retain title to the Subject Invention within the times specified in Paragraph B of this Article; however, SDA may only request title within sixty (60) calendar days after learning of the failure of the Performer to disclose or elect within the specified times;

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

3. In any country in which the Performer 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 Performer and Protection of the Performer’s Right to File

1. The Performer shall retain a nonexclusive, royalty-free license throughout the world in each subject invention to which the Government obtains title, except if the Performer fails to disclose the Subject Invention within the times specified in Paragraph B of this Article. The Performer’s license extends to its domestic subsidiaries and affiliates, including Canada, if any, and includes the right to grant licenses of the same scope to the extent that the Performer was legally obligated to do so at the time the Agreement was awarded. The license is transferable only with the approval of SDA, except when transferred to the successor of that part of the business to which the Subject Invention pertains. SDA approval for license transfer shall not be unreasonably withheld.

2. The Performer’s domestic license may be revoked or modified by SDA 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 C.F.R. Part 404. This license shall not be revoked in that field of use or the geographical areas in which the Performer 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 SDA to the extent the Performer, 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, SDA shall furnish the Performer a written notice of its intention to revoke or modify the license, and the Performer 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 Performer agrees to execute or to have executed and promptly deliver to SDA all instruments necessary to (i) establish or confirm the rights the Government has throughout the world in those Subject Inventions to which the Performer elects to retain title, and (ii) convey title to SDA when requested under Paragraph C of this Article and to enable the Government to obtain patent protection throughout the world in that Subject Invention.

2. The Performer agrees to require by written agreement with 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 Performer each Subject Invention made under this Agreement in order that the Performer can comply with the disclosure provisions of Paragraph B of this Article. The Performer shall instruct employees, through employee agreements or other suitable educational programs, on the importance of reporting inventions in sufficient time to permit the filing of patent applications prior to United States or foreign statutory bars.

3. The Performer 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.

HQ0850-22-9-XXXX, awarded by SDA. The Government has certain rights in the invention.

F. Lower Tier Agreements

The Performer shall include this Article, suitably modified, in all subcontracts or lower tier agreements, regardless of tier, for experimental, developmental, or research work.

G. Reporting on Utilization of Subject Inventions

1. The Performer agrees to submit, during the term of the Agreement, an annual report on the utilization of a Subject Invention or on efforts at obtaining such utilization that are being made by the Performer or its licensees or assignees. Such reports shall include information regarding the status of development, date of first commercial sale or use, gross royalties received by the Performer, and such other data and information as the agency may reasonably specify. The Performer also agrees to provide additional reports as may be requested by SDA in connection with any march-in proceedings undertaken by SDA in accordance with Paragraph I of this Article. SDA agrees it shall not disclose such information to persons outside the Government without permission of the Performer, unless required by law.

2. All required reporting shall be submitted to the AO and Administrative Agreements Officer (AAO), where one is appointed.

H. Preference for American Industry

Notwithstanding any other provision of this clause, the Performer agrees that it shall not grant to any person the exclusive right to use or sell any Subject Invention in the United States unless such person agrees that any product embodying the Subject Invention or produced through the use of the subject invention shall be manufactured substantially in the United States. However, in individual cases, the requirements for such an agreement may be waived by SDA upon a showing by the Performer that reasonable but unsuccessful efforts have been made to grant licenses on similar terms to potential licensees that would be likely to manufacture substantially in the United States or that, under the circumstances, domestic manufacture is not commercially feasible.

I. March-in Rights

The Performer agrees that, with respect to any Subject Invention in which it has retained title, SDA has the right to require the Performer, 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 Performer, assignee, or exclusive licensee refuses such a request, SDA has the right to grant such a license itself if SDA determines that:

1. Such action is necessary because the Performer 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 Performer, assignee, or their licensees;

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

4. Such action is necessary because the agreement required by Paragraph H of this Article has not been obtained or waived or because a licensee of the exclusive right to use or sell any Subject Invention in the United States is in breach of such Agreement.

ARTICLE VIII: DATA RIGHTS

A. Allocation of Principal Rights

1. The Parties agree that in consideration for Government funding, the Performer intends to reduce to practical application items, components and processes developed under this Agreement.

2. With respect to Data developed or generated under this Agreement, the Government shall receive Unlimited Rights, with the exception of those items identified in the Data Assertions Table (Attachment 7) for which either Government Purpose Rights, Limited Rights or Restricted rights will apply as indicated as defined in Article I, Paragraph B. Government Purpose Rights shall be applicable for a period of five (5) years, after which the Government shall have Unlimited Rights.

3. With respect to Data delivered pursuant to Attachment 1 under the Agreement, the

Government shall receive Unlimited Rights, with the exception of those items identified in the Data Assertions Table (Attachment 7) for which either Government Purpose Rights, Limited Rights or Restricted rights will apply as indicated. Notwithstanding the provision in A.4, the performer agrees, with respect to Data generated or developed under this Agreement, that the Government may, within three

(3) years after completion or termination of this Agreement, require delivery of data in accordance with the terms of this Agreement.

4. March-In Rights

(a) In the event the Government chooses to exercise its March-in Rights, as defined in

Article VII, Section I of this Agreement, the Performer agrees, upon written request from the Government, to deliver at no additional cost to the Government, all Data necessary to achieve practical application within sixty (60) calendar days from the date of the written request. The Government shall retain Unlimited Rights, as defined in Article I, Section B of this Agreement, to this delivered Data.

(b) To facilitate any potential deliveries, the Performer agrees to retain and maintain in good condition until three (3) years after completion or termination of this Agreement, all Data necessary to achieve practical application of any Subject Invention as defined in Article I, Section B of this Agreement.

B. Marking of Data

Pursuant to Paragraph A above, any Data delivered under this Agreement shall be marked with the following legend:

Use, duplication, or disclosure is subject to the restrictions as stated in Agreement HQ0850-22-9-XXXX between the Government and the Performer.

C. Lower Tier Agreements

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

ARTICLE IX: FOREIGN ACCESS TO TECHNOLOGY

This Article shall remain in effect during the term of the Agreement and for five (5) years thereafter.

A. General

The Parties agree that research findings and technology developments arising under this Agreement may constitute a significant enhancement to the national defense, and to the economic vitality of the United States. Accordingly, access to important technology developments under this Agreement by Foreign Firms or Institutions must be carefully controlled. The controls contemplated in this Article are in addition to, and are not intended to change or supersede, the provisions of the International Traffic in Arms Regulations (22 C.F.R. Part 120, et seq.), DoD Manual 5220.22, Volume 2 (August 1, 2018), and the Department of Commerce’s Export Administration Regulations (15 C.F.R. Part 730, et seq.).

B. Restrictions on Sale or Transfer of Technology to Foreign Firms or Institutions

1. In order to promote the national security interests of the United States and to effectuate the policies that underlie the regulations cited above, the procedures stated in subparagraphs B.2, B.3, and B.4 below shall apply to any transfer of Technology. For purposes of this paragraph, a transfer includes a sale of the company, and sales or licensing of Technology. Transfers do not include:

a. Sales of products or components; or

b. Licenses of software or documentation related to sales of products or components; or

c. Transfer to foreign subsidiaries of the Performer for purposes related to this Agreement; or

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

2. The Performer shall provide timely notice to SDA of any proposed transfers from the Performer of Technology developed under this Agreement to Foreign Firms or Institutions. If SDA determines that the transfer may have adverse consequences to the national security interests of the United States, the Performer, its vendors, and SDA shall jointly endeavor to find alternatives to the proposed transfer which obviate or mitigate potential adverse consequences of the transfer but which provide substantially equivalent benefits to the Performer.

3. In any event, the Performer shall provide written notice to the SDA AOR and the SDA AO of any proposed transfer to a Foreign Firm or Institution at least sixty (60) calendar days prior to the proposed date of transfer. Such notice shall cite this Article and shall state specifically what is to be transferred and the general terms of the transfer. Within thirty (30) calendar days of receipt of the Performer’s written notification, the SDA AO shall advise the Performer whether it consents to the proposed transfer. In cases where SDA does not concur or sixty (60) calendar days after receipt and SDA provides no decision, the Performer may utilize the procedures under Article VI, Disputes. No transfer shall take place until a decision is rendered.

4. In the event a transfer of Technology to Foreign Firms or Institutions which is NOT approved by SDA takes place, the Performer shall (a) refund to SDA funds paid for the development of the Technology and (b) the Government shall have a non-exclusive, nontransferable, irrevocable, paid-up license to practice, or to have practiced on behalf of the United States, the Technology throughout the world for Government and any and all other purposes, particularly to effectuate the intent of this

Agreement. Upon request of the Government, the Performer shall provide written confirmation of such licenses.

C. Lower Tier Agreements

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

ARTICLE X: SAFEGUARDING CONTROLLED UNCLASSIFIED INFORMATION AND

CONTROLLED TECHNICAL INFORMATION AND CYBER INCIDENT REPORTING

A. Background

Protection of Controlled Unclassified Information (CUI) and Controlled Technical Information (CTI) is of paramount importance to SDA and can directly impact the ability of SDA to successfully conduct its mission. Therefore, this Article requires the performer to protect CUI and CTI that resides on the performer’s information systems. This article also requires the performer to rapidly report any cyber incident involving CUI or CTI.

B. Safeguarding CUI and CTI

The performer shall implement the version of NIST Special Publication (SP) 800-171 in effect at the time the solicitation is issued or as authorized by the Agreements Officer for CUI and CTI that resides on the performer’s information systems. Consistent with NIST SP 800-171, implementation may be tailored to facilitate equivalent safeguarding measures used in the performer systems and organization. Any suspected loss or compromise of CUI or CTI that resides on the performer’s information systems shall be considered a cyber incident and require the performer to rapidly report the incident to SDA in accordance with paragraph C below.

The performer shall implement and maintain administrative, technical, and physical safeguards and controls with the security level and services required in accordance with the Cloud Computing Security Requirements Guide (SRG) (version in effect at the time the solicitation is issued or as authorized by the Contracting Officer) found at https://dl.cyber.mil/cloud/SRG/index.html, unless notified by the Contracting Officer that this requirement has been waived by the DoD Chief Information Officer.

C. Cyber Incident Reporting

Upon discovery of a cyber incident involving CUI or CTI, the performer shall take immediate steps to mitigate any further loss or compromise. The performer shall rapidly report the incident to SDA and provide sufficient details of the event—including identification of detected and isolated malicious software—to enable SDA to assess the situation and provide feedback to the performer regarding further reporting and potential mitigation actions. The performer shall preserve and protect images of all known affected information systems and all relevant monitoring/packet capture data for at least 90 days from reporting the cyber incident to enable SDA to assess the cyber incident. The performer agrees to rapidly implement security measures as recommended by SDA and to provide to SDA any additionally requested information to help the Parties resolve the cyber incident and to prevent future cyber incidents.

D. Public Release https://www.law.cornell.edu/definitions/index.php?width=840&height=800&iframe=true&def_id=19e6a61ba6e4c610a22b05ebe5719578&term_occur=999&term_src=Title:48:Chapter:2:Subchapter:H:Part:252:Subpart:252.2:252.239-7010 https://www.law.cornell.edu/definitions/index.php?width=840&height=800&iframe=true&def_id=19e6a61ba6e4c610a22b05ebe5719578&term_occur=999&term_src=Title:48:Chapter:2:Subchapter:H:Part:252:Subpart:252.2:252.239-7010 https://www.law.cornell.edu/definitions/index.php?width=840&height=800&iframe=true&def_id=77353b3a737508f2a1e6f568bb791c10&term_occur=999&term_src=Title:48:Chapter:2:Subchapter:H:Part:252:Subpart:252.2:252.239-7010

All information and data covered by this Article must be reviewed and approved by SDA prior to any public release. Submit any requests for review of information or data intended for public release to the Agreements Officer identified herein.

E. Lower Tier Agreements

The performer shall include this Article in all subcontracts or lower tier agreements, regardless of tier, for work performed in support of this Agreement.

F. Definitions

Compromise: Disclosure of information to unauthorized persons, or a violation of the security policy of a system, in which unauthorized intentional or unintentional disclosure, modification, destruction, or loss of an object, or the copying of information to unauthorized media may have occurred.

Controlled Technical Information (CTI): Technical information with military or space application that is subject to controls on the access, use, reproduction, modification, performance, display, release, disclosure, or dissemination. Controlled technical information would meet the criteria, if disseminated, for distribution statements B through F using the criteria set forth in DoD Instruction 5230.24, Distribution Statements on Technical Documents.

Controlled Unclassified Information (CUI): Unclassified information that requires safeguarding or dissemination controls, pursuant to and consistent with applicable law, regulations, and Government-wide policies. Instructions for the use, marking, dissemination, and storage of CUI can be found in DoD Instruction 5200.48, “Controlled Unclassified Information (CUI).”

Cyber Incident: Actions taken through the use of computer networks that result in a compromise or an actual or potentially adverse effect on an information system and/or the information residing therein.

Information System: A discrete set of information resources organized for the collection, processing, maintenance, use, sharing, dissemination, or disposition of information.

Rapidly Report: Report to SDA within 72 hours of discovery of any cyber incident.

ARTICLE XI: FOLLOW-ON PRODUCTION CONTRACTS OR OTHER TRANSACTIONS

In accordance with 10 U.S.C. § 2371b(f), the Government may award a follow-on production contract or Other Transaction (OT) to the Performer, or a recognized successor in interest to the OT, following the successful completion of this entire Agreement, as modified.

ARTICLE XII: TITLE TO AND DISPOSITION OF PROPERTY

A. Title to Property

Items of property with an acquisition value of $5,000 or greater are expected to be acquired under this Agreement. Title to each item of property acquired under this Agreement with an acquisition value of

$5,000 or less shall vest in the Performer upon acquisition with no further obligation of the Parties unless otherwise determined by the AO. Additional items of property with an acquisition value of $5,000 are anticipated to be acquired.