Attachment_0008_-_Use_and_Non-Disclosure_Agreement_-_CROWS.doc

Use and Non-Disclosure Agreement The undersigned, ---------------- (Insert Name) ----------------, an authorized representative of the ---------------- (Insert Company Name) ----------------, (hereinafter the “Recipient”) is a potential offeror under Solicitation No. W15QKN-17-R-0016 (“Solicitation”), issued by the Army Contracting Command – New Jersey (ACC-NJ), on behalf of Project Manager Soldier Weapons (PM SW).

Recipient requests the Government to provide to Recipient certain noncommercial technical data or computer software (hereinafter “Data”) in which the Government’s rights to use, modify, reproduce, release, perform, display or disclose such Data are restricted. The Data to which this Use and Non-Disclosure Agreement (hereinafter “Agreement”) applies are identified in an attachment to this Agreement and are marked with the “Special License Rights” legends prescribed by the contact clauses at 48 CFR (DFARS) 252.227-7013(f)(4) and DFARS 252.227-7014(f)(4). In consideration for disclosure of such Data to Recipient, Recipient agrees to comply strictly and in good faith with all of the requirements and restrictions contained in this Agreement.

1. Recipient shall only use Data received under this Agreement to determine whether to submit an offer in response to the Solicitation; and, if Recipient decides to submit such an offer, to prepare and submit Recipient’s offer to the Government. Recipient shall not use, nor shall Recipient allow others to use Data for any other purpose. If the Data includes any computer software, Recipient shall not enhance, decompile, disassemble, or reverse engineer such computer software for any reason.

2. Recipient shall maintain all Data received under this Agreement in strict confidence and safeguard such data from any disclosure or use not otherwise permitted under this Agreement. All such Data marked with a “Special License Rights” legend consist of trade secrets and copyrighted material that is confidential and proprietary to Kongsberg Defence & Aerospace AS (“Kongsberg”) or its licensors and which has been disclosed to the U.S. Government under a Special License Agreement under DFARS 252.227-7013(b)(4) and DFARS 252.227-7014(b)(4). Recipient agrees to adopt, establish, and maintain operating procedures and physical security measures designed to protect these Data from release or disclosure to unauthorized third parties. Such operating procedures and security measures shall protect Data from improper release or disclosure using at least the same degree of care Recipient uses to protect its own proprietary information, but in no event less than reasonable care. Recipient shall not remove all or any portion of the “Special License Rights” legends, copyright notices, or any other protective markings contained on the Data nor alter such markings in any way.

3. Recipient shall disclose Data within its own business unit only to those employees possessing a “need to know” the Data to perform their roles in the performance of the requirements of the Contract and shall only disclose to each employee such Data as is reasonably necessary to enable such employee to perform his or her specific tasks and responsibilities with respect to Recipient’s determination, preparation, or submission of its offer. Prior to disclosing any Data to an employee, Recipient shall ensure that each such employee to whom disclosure of any Data is intended is informed of the terms of this Agreement and has signed a confidentiality agreement with Recipient that, by its terms, subjects the employee to the requirements and restrictions of this Agreement pertaining to such Data.

4. Recipient may disclose portions of the Data to a prospective or actual subcontractor or supplier for the purpose of obtaining proposals or quotations from such prospective subcontractor or supplier for use by Recipient in its own proposal for submission in response to the Solicitation. Recipient shall release to each such prospective or actual subcontractor or supplier only such portion of the Data that is necessary for such subcontractor or supplier to provide to Recipient the information necessary for Recipient to prepare its proposal for submission to the Government. Prior to such disclosure, Recipient shall obtain from each such prospective subcontractor or supplier a Use and Non-Disclosure Agreement executed by such prospective subcontractor or supplier which contains the same requirements and restrictions as are imposed upon Recipient by this Agreement, modified as necessary to identify properly the parties thereto. Recipient shall notify [the Contracting Officer responsible for the administration of the prime contract / higher-tier contractor/subcontractor or supplier from whom Recipient obtained the Data] of the identity of each subcontractor or supplier to whom a release or disclosure of any portion of the data has been made and the specific contents of such release or disclosure. Upon request, Recipient shall also provide a copy of the Use and Non-Disclosure Agreement executed by such subcontractor or supplier.

5. Recipient agrees to destroy these Data, and all copies of the Data in its possession, no later than 30 calendar days after a) the date that Recipient is informed by the Government that a contract will not be awarded to Recipient in the procurement through which the disclosure governed by this Agreement was made; b) the date that such procurement has been canceled by the Government; or c) if a contract has been awarded to the Recipient, the date of final acceptance by the Government of all items and services required under the Contract that require use of all or part of the Data. This date may be extended until the date that is 30 calendar days after the resolution of any dispute arising between Recipient and the Government pertaining to the award or performance of the Contract where all or part of the Data is required to help resolve such dispute. Recipient shall ensure that all persons or entities to whom it released the Data, whether such persons are Recipient’s employees or employees of other entities to whom disclosure by Recipient was authorized under this Agreement, certify such destruction by the date required above, and notify the owner/licensor of such Data, Kongsberg Defence & Aerospace AS (“Kongsberg”), that the Data have been destroyed. If a release or disclosure has been made by Recipient to any prospective subcontractor or supplier and such prospective subcontractor or supplier is not awarded a subcontract or order, Recipient shall ensure that such prospective subcontractor or supplier certifies to Recipient that all Data it received has been destroyed by the date that is 30 calendar days after the date that such prospective subcontractor or supplier was informed that no award would be made, notifies Kongsberg that such Data have been destroyed, and, upon Kongsberg’s request, provides a copy of the Use and Non-disclosure Agreement executed by such prospective subcontractor or supplier to Kongsberg.

6. Information provided to Recipient under this Agreement shall not be subject to any limitations on its use or disclosure if Recipient can demonstrate that any one or more of the following conditions exists:

a. Recipient knew the information and held it without restriction as to further disclosure when the disclosing party disclosed the information under this Agreement.

b. Recipient developed the information independently.

c. Another source lawfully disclosed the information to Recipient and did not restrict Recipient on its further use or disclosure.

d. The information was already in the public domain when the disclosing party disclosed it to Recipient, entered into the public domain after the disclosing party disclosed it under this Agreement through no fault of the receiving party, or became generally known through no fault of Recipient.

e. The information was ascertained by proper means other than through disclosure under this Agreement.

f. The information is required to be disclosed by Recipient by a government agency or law, so long as Recipient promptly provides Kongsberg with written notice of the required disclosure in order to allow the disclosing party to participate in objecting to production of the information.

7. Recipient agrees to accept these Data “as is” without any Government representation as to suitability for intended use or warranty whatsoever.

8. Recipient may enter into any agreement directly with Kongsberg with respect to the use, modification, reproduction, release, performance, display, or disclosure of these Data.

9. Recipient agrees to indemnify and hold harmless the Government, its agents, and employees from every claim or liability, including attorneys fees, court costs, and expenses arising out of, or in any way related to, the misuse or unauthorized modification, reproduction, release, performance, display, or disclosure of Data received from the Government with restrictive legends by the Recipient or by any person to whom the Recipient has released or disclosed the Data.

10. Recipient is executing this Agreement for the benefit of Kongsberg. Kongsberg is a third party beneficiary of this Agreement who, in addition to any other rights it may have, is intended to have the rights of direct action against Recipient or any other person to whom Recipient has released or disclosed the Data, to seek damages from any breach of this Agreement or to otherwise enforce this Agreement.

11. This Agreement shall be effective for the period commencing with the Recipient’s execution of this Agreement and ending upon Recipient’s certification to Kongsberg that all Data received by Recipient under this Agreement have been destroyed. Recipient’s rights to use the Data are subject to termination upon written notice from the Government or Kongsberg if Recipient materially breaches this Agreement. The obligations imposed upon Recipient by this Agreement shall survive the expiration or termination of the Agreement.

12. Neither this Agreement, nor any interest hereunder, may be assigned by either party without the written consent of the other party.

13. If any portion of this Agreement shall be held to be or becomes illegal or unenforceable, the remaining portions of this Agreement shall continue to be binding and enforceable. The failure of either party herein to enforce any provision contained herein shall not be deemed a waiver of any provision contained herein.

14. This Agreement may be executed in one or more counterparts, which together constitute one and the same instrument, and may be executed by facsimile or digital signature, each of which shall be deemed original signatures.

15. Any required notices to or communications with Kongsberg shall be sent to:

Attn: Mr. Harald Sørensen; Harald.Sorensen@kongsberg.com; KONGSBERG DEFENCE & AEROSPACE A/S, KIRKEGRDSV 45, P.O. Box 1003, Kongsberg 3601, Norway.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their authorized representatives.

FOR [Recipient's Business Name]

By___________________________

Date:____________________

Authorized Representative

Representative's Typed Name_______________________

Title_____________________________________

FOR [Higher-tier offeror or contractor, as applicable]

By___________________________

Date:____________________

Authorized Representative

Representative's Typed Name ________ and Title_______________________

FOR [U.S. Government Agency, as applicable]

By___________________________

Date:____________________ Gherin Fracasso, Contracting Officer, U.S. Army Contracting Command - New Jersey, ATTN: ACC-NJ-SW, Bldg. 9, Mailstop: Bldg 10B, Picatinny Arsenal, NJ 07806-5000. gherin.fracasso.civ@mail.mil; 973-724-2775.