ALD_Terms_and_Conditions_FINAL.pdf

AGREEMENT BETWEEN

UNITED STATES ARMY CONTRACTING COMMAND – NEW JERSEY

PICATINNY ARSENAL, NJ 07806-5000

AND

COMPANY NAME

STREET ADDRESS

CITY, STATE ZIP CODE

Agreement No.: W15QKN-XX-9-XXXX Total Amount of the Agreement: $ Authority: 10 U.S.C. § 2371b, Section 815 of the 2018 National Defense Authorization Act, P.L 114-92

TABLE OF CONTENTS

ARTICLES PAGE

ARTICLE I Scope of the Agreement 3 ARTICLE II Term 4 ARTICLE III Agreement Administration 6 ARTICLE IV Obligation and Payment 7 ARTICLE V Disputes 9 ARTICLE VI Confidential Information 10 ARTICLE VII Publication and Academic Rights 11 ARTICLE VIII Data Rights 12 ARTICLE IX Patent Rights 16 ARTICLE X Foreign Access to Technology and Export Control 19

ARTICLE XI OPSEC 21

ARTICLE XII Title and Disposition of Property 22 ARTICLE XIII Safeguarding Covered Defence Information and Cyber Incident Reporting 25 ARTICLE XIV Indemnity 30 ARTICLE XV Governing Law and Jurisdiction 31 ARTICLE XVI Software License 31 ARTICLE XVII Execution 33

ARTICLE I: SCOPE OF THE AGREEMENT

(a) Background

This Other Transaction Agreement (OTA) is awarded based upon the prototype project proposed by INSERT COMPANY NAME, hereinafter referred to as “The Company” in response to the Prototype Project Opportunity Notice Number W15QKN-18-X-XXXX. The principle purpose of this OTA will be to BRIEFLY SUMMARIZE THE PROTOTYPE PROJECT

(b) Definitions

“Agreement” or "OTA" refers to the Other Transaction Agreement, as authorized under 10 U.S.C. 2371b, between the Government and INSERT COMPANY NAME Agreement No. W15QKN-FY-9-XXXX.

“Agreements Officer (AO)” is the United States Army Contracting Command – New Jersey Contracting Activity warranted Contracting Officer authorized to sign the final agreement for the Government.

“Agreements Officer’s Representative (AOR)” is the individual designated by the Government on a per project basis to monitor all technical aspects; the AOR shall only assist in agreement administration of the specific project to the extent expressly delegated such administration authority in writing in the Project Agreement by the responsible Agreements Officer.

“Contracting Activity” means an element of an agency designated by the agency head and delegated broad authority regarding acquisition functions. It also means elements or another agency designated by the director of a defense agency which has been delegated contracting authority through its agency charter.

“Date of Completion” is the date on which all work is completed or the date on which the 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 this Agreement is signed and executed by the Agreements Officer for the Government.

“Government” means the U.S. Government.

“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 Statement of Work

“Other Transactions Agreement (OTA)” is the term commonly used to refer to the 10 USC 2371b authority to enter into transactions other than contracts, grants or cooperative agreements. The Department of Defense (DoD) currently has authority to make awards that are directly relevant to enhancing the mission effectiveness of military personnel and the supporting platforms, systems, components, or materials proposed to be acquired or developed by the Department of Defense, or to improvement of platforms, systems, components, or materials in use by the armed forces. OTAs are acquisition instruments that generally, are not subject to the federal laws and regulations governing procurement (FAR based) contracts. As such, they are not required to comply with the Federal Acquisition Regulation (FAR), its supplements (i.e. DFARS) or laws that are limited in applicability to procurement contracts.

“Parties” means Government and the COMPANY by its authorized agent where collectively identified and “Party” where each entity is individually identified.

“Payable Milestone” means that once a milestone has been met (see definition of “milestone”), the Government can approve payment to the COMPANY of a predetermined dollar amount in relation to performance of a particular project under the Other Transaction Agreement.

“Program” means the overall effort to be funded by the Agreement, which is described in the Statement of Work appended to this Agreement as Attachment I.

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

(c) Scope

See Attachment, ALD_Statement_Of_Work

ARTICLE II: TERM

(a) The Term of this Agreement

This OTA will be available for use for a period of up to twelve (12) months from the date the OTA is awarded. Provisions of this Agreement, which, by their express terms or by necessary implication, apply for periods of time other than specified in Article II herein, shall be given effect, notwithstanding this Article.

(b) Early Termination of Agreement Provision

(1) Subject to a reasonable determination that the program, or a project funded under the program, will not produce beneficial results commensurate with the expenditure of resources, the Government may terminate performance of work under this OTA, in whole or in part, if the AO determines that a termination is in the Government’s interest. The AO shall terminate by delivering to the COMPANY a Notice of Termination specifying the extent of termination and the effective date.

(b) After receipt of a Notice of Termination, and except as directed by the AO, the COMPANY shall immediately proceed with the following obligations, regardless of any delay in determining or adjusting any amounts due:

(i) Stop work and direct it subcontractors/vendors/suppliers/partners to stop work as specified in the notice.

(ii) Place no further orders for materials, services, or facilities, except as necessary to complete the continued portion of the OTA.

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

(iv) Assign to the Government, as directed by the AO, all right, title, and interest of the COMPANY under the orders terminated, in which case the Government shall have the right to settle or to pay any termination settlement proposal arising out of those terminations.

(v) With approval or ratification to the extent required 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.

(vi) As directed by the AO, transfer title to the following, where applicable, and deliver to the Government --

(A) The fabricated or unfabricated 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 property that, if the order had been completed, would have been required to be furnished to the Government.

(vii) Complete performance of any work not terminated, if applicable.

(viii) Take any action that may be necessary, or that the AO may direct, for the protection and preservation of the property related to this project that is in the possession of the COMPANY and in which the Government has or may acquire an interest.

(ix) 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, (vi), (A) and (B).

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

In the event of a termination of this Agreement, the Government shall have patent rights as described in Article IX, Patent Rights, and 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 V, Disputes.

Nothing in this section shall be construed as a limitation of the rights of either party in the event of a breach of contract or default by the other party.

(c) Stop Work Clause

As directed by the AO, the COMPANY shall stop all, or any part, of the work called for under this Agreement for a period of 90 days after the written order is delivered, and for any further period to which the parties may agree. The order shall be specifically identified as a stop-work order issued under this Article. Upon receipt of the order, the COMPANY shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Within a period of 90 days after a stop-work is delivered, or within any extension of that period to which the parties shall have agreed, the AO shall either:

(1) Cancel the stop-work order; or

(2) Terminate the work covered this Agreement.

If a stop work order issued under this clause is canceled, the COMPANY shall resume work. The Government shall make an equitable adjustment in the delivery schedule or negotiated price, or both, and the Government’s share of this Agreement shall be modified, in writing, accordingly, if—

(1) The stop-work order results in an increase in the time required for, or in the cost properly allocable to, the performance of any part of this Agreement; and

(2) The COMPANY 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 t may receive and act upon a proposal submitted at any time before final payment under this Agreement.

ARTICLE III: AGREEMENT ADMINISTRATION

Unless otherwise provided in this Agreement, approvals permitted or required to be made by the ACC-NJ Contracting Activity may be made only by the ACC-NJ Contracting Activity Agreements Officer.

Administrative and contractual matters under this Agreement shall be referred to the following representatives of the parties:

ACC-NJ:

Thomas A. Dougherty

Agreements Officer United States Army Contracting Command - New Jersey

ACC-NJ

Picatinny Arsenal, NJ 07806

(973) 724-7484 thomas.a.dougherty24.civ@mail.mil

Melissa Chant Agreements Specialist United States Army Contracting Command – New Jersey

ACC-NJ

Picatinny Arsenal, NJ 07806

(973) 724-2886 melissa.e.chant.civ@mail.mil

AOR: Mary Harvey Agreements Officer Representative PEO Enterprise Information Systems 9350 Hall Rd, Ste 232A Fort Belvoir, VA 22060

(703) 806-0098 mary.b.harvey8.civ@mail.mil

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

Cognizant Defense Contract Management Agency Office:

INSERT DCMA OFFICE

CITY, STATE ZIP+4

Cognizant Defense Finance and Accounting Service Office:

INSERT DFAS OFFICE

CITY, STATE ZIP+4

ARTICLE IV: OBLIGATION AND PAYMENT

(a) Obligation: Except as specified in Article V: Disputes, the Government’s liability to make payments to the COMPANY is limited only to those funds obligated under this Agreement or by modification to the Agreement. The ACC-NJ Contracting Activity may incrementally fund this Agreement. If modification becomes necessary in performance of this Agreement, pursuant to Article IV of this Agreement, the AO and the COMPANY shall establish and execute a mutually agreed to revised Schedule of Payable Milestones consistent with the current Project Plan.

(b) Project Payments: INSERT MILESTONE PAYMENT SCHEDULE.

(c) Payments: RELEVANT TO 1/3 COST SHARE ONLY. In addition to any other financial reports provided or required, the COMPANY shall notify the ACC-NJ Contracting Activity AO and the VRA OTA Manager immediately if any contribution from the COMPANY is not made as required.

(d) Accounting System Requirements: RELEVANT TO 1/3 COST SHARE ONLY: Prior to the submission of invoices, the COMPANY shall have and maintain an established accounting system which complies with Generally Accepted Accounting Principles (GAAP) and the requirements of this Agreement. The COMPANY shall provide independent verification from a third-party auditor that their accounting system is appropriate for tracking cost share contributions made by the COMPANY.

Consistent with this stipulation, an acceptable accounting system will be one in which all cash receipts and disbursements are controlled and documented properly.

(e) Payable Milestones: The COMPANY shall submit invoices for processing according to the milestone payment schedule via the Invoice, Receipt, Acceptance, and Property Transfer (iRAPT) application of the Wide Area Work Flow (WAWF) system, according to the guidelines set forth below. Payments will be made by Defense Finance and Accounting Service, INSERT COGNIZANT DFAS OFFICE

INFORMATION

(1) The WAWF system is the method to electronically process vendor payment requests and receiving reports. To access WAWF, the COMPANY shall have a designated electronic business point of contact in the System for Award Management at https://www.acquisition.gov; and be registered to use WAWF at https://wawf.eb.mil/ following the step-by-step procedures for self-registration available at this web site. The COMPANY shall follow the training instructions of the WAWF Web- Based Training Course and use the Practice Training Site before submitting payment requests through WAWF. Both can be accessed by selecting the “Web Based Training” link on the WAWF home page at https://wawf.eb.mil/.

https://www.acquisition.gov/ https://wawf.eb.mil/ https://wawf.eb.mil/

(2) The COMPANY shall submit a Combo request through WAWF utilizing the following Routing Data to fill in the applicable fields in WAWF when creating payment requests in the system.

Routing Data Table

Field Name in WAWF Data to be entered in WAWF Pay Official DoDAAC TBD Issue By DoDAAC W15QKN Admin DoDAAC W15QKN Inspect By DoDAAC W81FUJ Accept at Other DoDAAC W81FUJ

(3) All payment requests shall include an invoice (contractor’s format is acceptable) to include at a minimum, invoice number, milestone payment number and contract number. Note, all invoices shall be for exact payment amount as referenced B. Partial milestones shall not be submitted.

(4) The COMPANY shall include the following WAWF email notifications when submitting invoices to assure payment approval:

Agreements Officer: thomas.a.dougherty24.civ@mail.mil AOR: mary.b.harvey8.civ@mail.mil

(5) For technical WAWF help, contact the WAWF helpdesk at 866-618-5988.

(f) Electronic Fund Transfer: COMPANY must be enrolled in EFT by contacting the paying office designated in the Agreement and requesting Form SF 3881, Automated Clearing House (ACH) Vendor/Miscellaneous Payment Enrollment Plan. This form must be completed by the COMPANY and the COMPANY's financial institution, and returned to the paying office. The paying office will complete the process and notify the COMPANY that EFT enrollment is complete. All payments under this agreement will be held until the COMPANY provides the required EFT enrollment information.

The CAGE Code and DUNS number for the COMPANY are as follows: CAGE Code: INSERT CAGE CODE; DUNS number: INSERT DUNS. Registration in the System Award for Management (SAM) is mandatory.

(g) Limitation of Funds: Except as set forth in Article V, the Government's financial liability will not exceed the amount obligated under this Agreement and available for payment.

(h) Financial Records and Reports: The COMPANY shall maintain adequate records to account for

Federal funds received under this Agreement and shall maintain adequate records to account for COMPANY Project Agreement funding provided under this Agreement, should cost sharing procedures be implemented for funding a particular project. COMPANY relevant financial records are subject to examination or audit by or on behalf of the Comptroller General, ACC-NJ Contracting Activity, or other Government Official for a period not to exceed three (3) years after expiration of the term of the Agreement. The Comptroller General, AO or designee shall have direct access to sufficient records and information of any party to this agreement or any entity that participates in the performance of this agreement to ensure full accountability for all funding under this Agreement. Such audit, examination or access shall be performed during business hours on business days upon prior written notice and shall be subject to the security requirements of the audited party. Any audit required during the course of the program may be conducted by the Comptroller General or other Government Official using Government auditors or, at the request of COMPANY's external CPA accounting firm at the expense of the COMPANY. This requirement shall not apply with respect to a party or entity, or a subordinate element of a party or entity, that has not entered into any other agreement that provides for audit access by a Government entity in the year prior to the date of the agreement.

ARTICLE V: 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

Any disagreement, claim or dispute between the ACC-NJ and the COMPANY 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.

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 this article constitute the basis for relief under this article unless the Chief of the Contracting Office, ACC-NJ in the interest of justice waives this requirement.

Failing resolution by mutual agreement, the aggrieved Party shall document the dispute, disagreement, or misunderstanding by notifying the other Party through the cognizant AO in writing documenting the relevant facts, identifying unresolved issues, specifying the clarification or remedy sought, and documenting the rationale as to why the clarification/remedy is appropriate. Within ten (10) working days after providing notice to the other Party, the aggrieved Party may, in writing, request a decision by the Chief of the Contracting Office, ACC-NJ. 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 Chief of the Contracting Office, ACC-NJ, will conduct a review of the matter(s) in dispute and render a decision in writing within thirty (30) calendar days of receipt of such position. Any such decision is final and binding, unless a Party shall, within thirty (30) calendar days request further review as provided by this article.

If requested within thirty (30) calendar days of the decision by the Chief of the Contacting Office, ACC- NJ, further review will be conducted by the President of the COMPANY Board and the ACC-NJ Director of Contracting. In the event of a decision, or in absence of a decision within sixty (60) calendar days of referral to the President of the COMPANY Board and the ACC-NJ Director of Contracting (or such other period as agreed to by the parties), either party may pursue any right or remedy provided by law.

Alternatively, the parties may agree to explore and establish an Alternate Disputes Resolution procedure to resolve this dispute.

(c) Limitation of Liability and Damages

In no event shall the liability of the COMPANY exceed the funding received for their performance of this Agreement.

No Party shall be liable to any other Party for consequential, punitive, special and incidental damages or other indirect damages, whether arising in contract (including warranty), tort (whether or not arising from the negligence of a Party) or otherwise, except to the extent such damages are caused by a Party's willful misconduct; Notwithstanding the foregoing, claims for contribution toward third-party injury, damage, or loss are not limited, waived, released, or disclaimed.

ARTICLE VI: CONFIDENTIAL INFORMATION

(a) Definitions

“Disclosing Party” means COMPANY, or their subcontractors or suppliers, or the Government who discloses Confidential Information as contemplated by the subsequent Paragraphs.

“Receiving Party” means COMPANY, or their subcontractors or suppliers, or the Government who receives Confidential Information disclosed by a Disclosing Party.

“Confidential Information” means information and materials of a Disclosing Party which are designated as confidential or as a Trade Secret in writing by such Disclosing Party, whether by letter or by use of an appropriate stamp or legend, prior to or at the same time any such information or materials are disclosed by such Disclosing Party to the Receiving Party. Notwithstanding the foregoing, materials and other information which are orally, visually, or electronically disclosed by a Disclosing Party, or are disclosed in writing without an appropriate letter, stamp, or legend, shall constitute Confidential Information or a Trade Secret if such Disclosing Party, within thirty (30) calendar days after such disclosure, delivers to the Receiving Party a written document or documents describing the material or information and indicating that it is confidential or a Trade Secret, provided that any disclosure of information by the Receiving Party prior to receipt of such notice shall not constitute a breach by the Receiving Party of its obligations under this Paragraph. “Confidential Information” includes any information and materials considered a Trade Secret by the COMPANY on its own behalf or on behalf of their subcontractors or suppliers.

“Trade Secret” means all forms and types of financial, business, scientific, technical, economic, or engineering or otherwise proprietary information, including, but not limited to, 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 may from time to time disclose Government Confidential

Information to the COMPANY and its subcontractors or suppliers, in connection with a particular project, and the COMPANY and its subcontractors or suppliers, may from time to time disclose information that is Trade Secret or Confidential Information to the Government in connection with the OTA or performance thereunder. Neither the Government nor COMPANY or their subcontractors or suppliers shall be obligated to transfer Confidential Information or Trade Secrets independently developed by the Government or the COMPANY or their subcontractors or suppliers, absent an express written agreement between the Parties providing the terms and conditions for such 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

(no one shall disclose unless they have the right to do so), and that, unless otherwise agreed to by the Disclosing Party, Confidential Information and Trade Secrets shall not be disclosed, divulged, or otherwise communicated by it to third parties or used by it for any purposes other than in connection with specified project efforts and the licenses granted in Article IX, Patent Rights, and Article VIII, Data Rights, provided that the duty to protect such “Confidential Information” and “Trade Secrets” shall not extend to materials or information that:

(1) Are received or become available without restriction to the Receiving Party under a proper, separate agreement,

(2) Are not identified with a suitable notice or legend per Article entitled "Confidential

Information" herein,

(3) Are lawfully in possession of the Receiving Party without such restriction to the Receiving

Party at the time of disclosure thereof 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 use of Confidential Information or Trade Secrets as evidenced by written records,

(7) Are required by law or regulation to be disclosed; provided, however, that the Receiving Party has provided written notice to the Disclosing Party promptly so as to enable such Disclosing Party to seek a protective order or otherwise prevent disclosure of such information.

(d) Return of Proprietary Information: Upon the request of COMPANY, the Government shall promptly return all copies and other tangible manifestations of the Confidential Information or Trade Secrets disclosed. Upon request by the Government, COMPANY shall promptly return all copies and other tangible manifestations of the Confidential Information disclosed by the Government. As used in this section, tangible manifestations include human readable media as well as magnetic and digital storage media.

(e) Term: Except to the extent covered by and subject to other provisions of this Agreement or the specific Project Agreement, the obligations of the Receiving Party under this Article shall continue for a period of five (5) years after the expiration or termination of this Agreement.

The Government and the COMPANY shall flow down the requirements of this Article VI to their respective personnel, agents, partners, and team members receiving such Confidential Information or Trade Secrets under this OTA.

ARTICLE VII: PUBLICATION AND ACADEMIC RIGHTS

(a) Use of Information: Subject to the provisions of Article VI, Confidential Information, and Article VII, Publication and Academic Rights at paragraph 9.2, the COMPANY and the Government shall have the right to publish or otherwise disclose information and/or data developed by the Government and/or the respective COMPANY under this Agreement. The COMPANY and the Government (and its employees) shall include an appropriate acknowledgement of the sponsorship of the Research Projects by the Government and the COMPANY in such publication or disclosure. The Parties shall have only the right to use, disclose, and exploit any such data and Confidential Information or Trade Secrets in accordance with the rights held by them pursuant to this Agreement. Notwithstanding the above, the Parties shall not be deemed authorized by this paragraph 9.1, alone, to disclose any Confidential Information or Trade Secrets of the Government or the COMPANY.

(b) Classified Research Projects: If a release of Confidential Information or Trade Secrets is for a classified Research 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. The Government will be responsible for the completion of the DD Form 254. The COMPANY member must complete the DD Form 441 and SF 328 and provide them to the Government through for review by the proper Government representatives, the Industrial Security Representative at the cognizant Defense Security Service (DSS) office for DD Form 441 and SF 328 and the VRA’s local Security office for the DD Form 254.

(c) Review or Approval of Technical Information for Public Release.

(1) At least 30 days prior to the scheduled release date, COMPANY shall submit to the AO and AOR two copies of the information to be released, who will route the information to the appropriate parties for review and approval.

(2) Where the COMPANY has Academic Research Institutions performing fundamental research on campus, the COMPANY shall require the same to provide papers and publications for provision to the AOR, through the AO, for review and comment 30 days prior to formal paper/publication submission. However, if that Academic Research Institution incorporates into its research results or publications artifacts produced by and provided to these institutions by the COMPANY on behalf of other non-educational institutions or has authors listed on the paper who are not employees or students of the Academic Research Institution then the procedures in PARAGRAPH (a) ABOVE must be followed.

(3) Parties to this Agreement are responsible for assuring that an acknowledgment of government support will appear in any publication of any material based on or developed under this OTA, using the following acknowledgement terms:

“Effort sponsored by the U.S. Government under Other Transaction number W15QKN-FY-9-xxx between the INSERT COMPANY NAME and the Government. The U.S. Government is authorized to reproduce and distribute reprints for Governmental purposes notwithstanding any copyright notation thereon.”

(4) Parties to this Agreement are also responsible for assuring that every publication of material based on or developed under this project 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.”

The COMPANY shall flow down these requirements to its partners and team members, at all tiers.

(d) Filing of Patent Applications. During the course of any such thirty (30) calendar day period, the

COMPANY and/or the Government shall provide notice to the AO as to whether it desires that a patent application be filed on any invention disclosed in such materials. In the event that a COMPANY and/or the Government desires that such a patent be filed, the COMPANY or the

Government proposing to publish or disclose such materials agrees to withhold publication and disclosure of such materials until the occurrence of the first of the following:

(1) Filing of a patent application covering such invention, or

(2) Written agreement, from the AO and the COMPANY that no patentable invention is disclosed in such materials.

(3) Further, during the course of any such thirty (30) calendar day period, the COMPANY shall notify the AO and the Government if it believes any of its Confidential Information or Trade Secrets have been included in the proposed publication or disclosure and shall identify the specific Confidential Information or Trade Secrets that need to be removed from such proposed publication. The Government and the COMPANY agree to remove from the proposed publication or disclosure all such Confidential Information or Trade Secrets so identified by the COMPANY.

ARTICLE VIII: DATA RIGHTS

“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 contract; or

(4) Satisfies a criterion expressed in paragraph (1), (2) or (3) of this definition and would require only minor modification to meet the requirements of this contract.

“Commercial Computer Software License” means the license terms under which Commercial Computer Software is sold or offered for sale, lease or license to the general public.

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

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

“Computer software” as used in this Agreement means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae and related material that would enable the software to be reproduced, recreated or recompiled. Computer software does not include computer data bases or computer software documentation.

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

“Data” as used in this Article of this Agreement, means computer software, computer software documentation, form, fit and function data, and technical data as defined in this Article.

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

“Government purpose rights” means the rights to use, modify, duplicate or disclose the “Data” licensed with such rights under this Agreement within the Government for United States Government purposes only; and to release or disclose data outside the Government to any authorized persons pursuant to an executed non-disclosure agreement for such persons’ use, modification, or reproduction for United States Government purposes only. United States Government purposes include Foreign Military Sales purposes and competitive re-procurement.

“Limited rights” means 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—

(1) The reproduction, release, disclosure, or use is—

(i) Necessary for emergency repair and overhaul; or

(ii) A release or disclosure to—

(A) A covered Government support contractor in performance of its covered Government support contract for use, modification, reproduction, performance, display, or release or disclosure to a person authorized to receive limited rights technical data; or

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

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

(3) The contractor or subcontractor asserting the restriction is notified of such reproduction, release, disclosure, or use

“Restricted rights” apply only to noncommercial computer software and mean the Government's rights to—

(1) Use a computer program with one computer at one time. The program may not be accessed by more than one terminal or central processing unit or time shared unless otherwise permitted by this contract;

(2) Transfer a computer program to another Government agency without the further permission of the

Contractor if the transferor destroys all copies of the program and related computer software documentation in its possession and notifies the licensor of the transfer. Transferred programs remain subject to the provisions of this clause;

(3) Make the minimum number of copies of the computer software required for safekeeping (archive), backup, or modification purposes;

(4) Modify computer software provided that the Government may—

i. Use the modified software only as provided in paragraphs (1) and (3) of this definition; and

ii. Not release or disclose the modified software except as provided in paragraphs (2), (5), (6) and (7) of this definition;

(5) Permit contractors or subcontractors performing service contracts in support of this or a related contract to use computer software to diagnose and correct deficiencies in a computer program, to modify computer software to enable a computer program to be combined with, adapted to, or merged with other computer programs or when necessary to respond to urgent tactical situations, provided that—

i. The Government notifies the party which has granted restricted rights that a release or disclosure to particular contractors or subcontractors was made;

ii. Such contractors or subcontractors are subject to the use and non-disclosure agreement at 227.7103-7 of the Defense Federal Acquisition Regulation Supplement (DFARS) or are Government contractors receiving access to the software for performance of a Government contract that contains the clause at DFARS 252.227- 7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends;

iii. The Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(15)(iv) of this clause, for any other purpose; and

iv. Such use is subject to the limitations in paragraphs (a)(15)(i) through (iii) of this clause;

(6) Permit contractors or subcontractors performing emergency repairs or overhaul of items or components of items procured under this or a related contract to use the computer software when necessary to perform the repairs or overhaul, or to modify the computer software to reflect the repairs or overhaul made, provided that—

i. The intended recipient is subject to the use and non-disclosure agreement at DFARS

227.7103-7 or is a Government contractor receiving access to the software for performance of a Government contract that contains the clause at DFARS 252.227- 7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends;

ii. The Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (4) of this definition, for any other purpose; and

iii. Such use is subject to the limitations in paragraphs (1) through (3) of this definition;

and

(7) Permit covered Government support contractors in the performance of covered Government support contracts that contain the clause at 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends, to use, modify, reproduce, perform, display, or release or disclose the computer software to a person authorized to receive restricted rights computer software, provided that—

i. The Government shall not permit the covered Government support contractor to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (4) of this definition, for any other purpose; and

ii. Such use is subject to the limitations in paragraphs (1) through (4) of this definition.

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

“Technical data” means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or data incidental to contract administration, such as financial and/or management information.

“Unlimited rights” means the rights to use, modify, duplicate, release, or disclose Data, in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.

(b) Data Categories:

(1) Category A is Data developed and paid for totally by non-governmental funds, whether pre-existing or concurrently developed proprietary data, trade secret data, or data related to COMPANY products. The COMPANY retains all rights to Category A Data.

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

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

(4) Category D is third party proprietary data used in performance of work under this Agreement, including but not limited to, technical data, software, trade secrets and mask works.

Any Data developed outside of this Agreement with Government funding in whole or in part under a Government agreement, contract or subcontract shall have the rights negotiated under such prior agreement, contract or subcontract; the Government shall get no additional rights in such Data under this Agreement.

(c) Allocation of Principal Rights

(1) The parties agree that in consideration for the Government’s funding, and in lieu of any Government rights to Category A, B or D data (except as contained in paragraph 4 below), the COMPANY intends to reduce to practical application materials and processes developed under this Agreement.

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

http://www.acq.osd.mil/dpap/dars/dfars/html/current/252227.htm#252.227-7025

(3) The Government shall have immediate and irrevocable Government Purpose Rights to all

Category C Data.

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

(5) Data that will be delivered, furnished, or otherwise provided to the Government under this

Agreement, in which the Government has previously obtained rights, shall be delivered, furnished, or provided with the pre-existing rights, unless (a) the parties have agreed otherwise, or (b) any restrictions on the Government’s rights to use, modify, reproduce, release, perform, display, or disclose the data have expired or no longer apply.

(d) Identification of Principal Rights. Identify Data Rights Assertions below

Data to be provided with Restrictions

Data Rights Category Patent Information (If applicable)

(LIST) (LIST) (INSERT)

(EACH) (EACH) (PATENT #/ENTITY

IDENTIFIER)

(ITEM) (ITEM) (DATE AND TYPE OF

(INDIVIDUALLY) (INDIVIDUALLY) APPLICATION)

(e) Marking of Data: Any Data delivered under this Agreement shall be marked with the following legend: “This data is being delivered as Category (insert category) Data, as defined in Agreement ENTER AGREEMENT NUMBER. Use, duplication, or disclosure is subject to the restrictions as stated in Agreement ENTER AGREEMENT NUMBER between the COMPANY and the Government.”

In the event that the COMPANY learns of a release to the Government of its unmarked Data that should have contained a restricted legend, the COMPANY will have the opportunity to cure such omission going forward by providing written notice to the AO within six (6) months of the erroneous release.

(f) Prior Technology

(1) In the event it is necessary for the COMPANY to furnish the Government with Data which existed prior to, or was produced outside of this Agreement, and such Data embodies trade secrets or comprises commercial or financial information which is privileged or confidential, and such Data is so identified with a suitable notice or legend, the Data will be maintained in confidence and disclosed and used by the Government and such Government Contractors or contract employees that the Government may hire on a temporary or periodic basis only for the purpose of carrying out the Government’s responsibilities under this Agreement. Data protection will include proprietary markings and handling, and the signing of nondisclosure agreements by such Government Contractors or contract employees. The COMPANY shall not be obligated to provide Data that existed prior to, or was developed outside of this Agreement to the Government. Upon completion of activities under this Agreement, such Data will be disposed of as requested by the

COMPANY.

(2) Oral and Visual Information: If information which the COMPANY considers to embody trade secrets or to comprise commercial or financial information which is privileged or confidential is expressly disclosed orally or visually directly to the Government, the exchange of such information must be memorialized in tangible, recorded form and marked with a suitable notice or legend, and furnished to the Government within thirty (30) calendar days after such oral or visual disclosure, or the Government shall have no duty to limit or restrict, and shall not incur any liability for any disclosure and use of such information. If the Government reasonably determines that the memorialization of the exchange is insufficiently detailed to enable it to identify the privileged or confidential information, COMPANY shall provide addition detail at the Government’s request, subject to restrictions on use and disclosure.

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

i. Data not identified with a suitable notice or legend as set forth in this Article; nor

ii. Information contained in any Data for which disclosure and use is restricted, if such information is or becomes generally known without breach of the above, is properly known to the Government or is generated by the Government independent of carrying out responsibilities under this Agreement, is rightfully received from a third party without restriction, or is included in Data which the COMPANY has furnished, or is required to furnish to the Government without restriction on disclosure and use.

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

(g) Copyright

The COMPANY reserves the right to protect by copyright works developed under this Agreement. All such copyrights will be in the name of the COMPANY or the author, as determined by COMPANY policies. The COMPANY hereby grants to the U.S. Government a non-exclusive, non-transferable, royalty-free, fully paid-up license to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, for governmental purposes, any copyrighted materials developed (excluding Data) under this Agreement to which it owns the copyright, and to authorize others to do so.

(h) Lower Tier Agreements

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

(i) Survival Rights

Provisions of this Article shall survive termination of this Agreement.

ARTICLE IX: PATENT RIGHTS

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

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

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

“Subject invention” means any invention of the COMPANY conceived or first actually reduced to practice in the performance of work under this Agreement.

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

(b) Allocation of Principal Rights

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

(c)…