Attachment_4_-_CRD_Model_Agreement.docx

OTHER TRANSACTION AGREEMENT

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-19-9-XXXX Total Amount of the Agreement: $XXXXX.XX Authority: 10 U.S.C. § 2371b, Section 815 of the 2016 National Defense Authorization Act, P.L 114-92

TABLE OF CONTENTS

ARTICLE I: SCOPE OF THE AGREEMENT

A. Background

United States military operations take place worldwide and in all types of terrains as well as under various environmental conditions. The use of Remote Weapon Stations (RWS) provides both lethality and survivability to the warfighter who can remain under armor in a safe environment while operating the RWS. The Remote Weapon Station M153 CRD system provides pertinent data to the safe operation of the RWS. The CRD system allows the user to operate the RWS and fully utilize the thermal and day camera by being able to view the video on the display. RWS diagnostic functions and system settings will be accessible via the CRD system as well.

Follow on Production Award

“In accordance with 10 U.S.C. 2371b(f), and upon a determination that the prototype project was successfully completed under this competitively awarded OTA, a follow-on production contract or OTA may be awarded without the use of competitive procedures.”

Successful completion means the Company has delivered three CRD systems which meet Factor 1 – Prototype Testing Results; technical attributes 9-17 see (Section 4.3.2).

The follow-on production award, if the Government chooses to, may be awarded to one Company without further competition. The follow-on production award is planned to be an Indefinite Delivery / Indefinite Quantity contract with Firm Fixed Price Delivery Orders up to five years or a P-OTA. The production award may include up to 300 CRD systems. Initial production quantities of 50 CRDs are expected to be delivered within 6 months after award, with a minimum of 50 CRD systems delivered per month. The value of this follow - on production is estimated to be $1,302,000.00 for a quantity of 300 with a maximum value of $13,020,000 for up to 3,000 CRD systems.

Definitions

“Agreement” The mutually agreed terms and conditions of the parties to an Other Transaction for Prototype Project. Absent exceptional circumstances, it will take the form of a legally binding written instrument.

“Agreements Officer (AO)” is the United States Army Contracting Command – New Jersey Contracting Activity warranted Officer with authority to enter into, administer, change or terminate other transactions agreements.

“Agreements Specialist (AS)” is the United States Army Contracting Command – New Jersey Contracting Activity Specialist and designee of the AO for executing modifications, administrative matters, and financial aspects of the Agreement.

“Cost Share” includes any costs a reasonable person would incur to carry out (necessary to) Statements of Work not directly paid for by the Government.

“CROWS Ruggedized Display System” includes a functional ruggedized display and any special tools required to install or uninstall the system.

“Fixed Amount” means an OTA under which an awardee agrees to complete a prototype project for an agreed upon total price and where payments are not based on amounts generated from the awardee’s financial or cost records.

“Innovative” means any new technology, process, material, or method, including research and development; or any new application of an existing technology, process, material, or method as defined by the DoD OTA Guide. Examples of what might be considered a significant contribution include supplying new key technology or products, accomplishing a significant amount of the effort, or in some other way causing a material reduction in the cost or schedule or increase in performance.

“Nonprofit Research Institution” means a nonprofit institution, as defined in 15 U.S.C. 3703, and includes federally funded research and development centers, as identified by the National Scientific Foundation in accordance with the Government wide Federal Acquisition Regulation issued in accordance with section 1303(a)(1) of title 41 (or any successor regulation thereto).

“Nontraditional Defense Contractor” as the term is defined in section 2302(9) of title 10, United States Code with respect to applicable authority, means an entity that is not currently performing and has not performed, for at least the one-year period preceding the solicitation of sources by the Department of Defense for the procurement or transaction, any contract or subcontract for the Department of Defense that is subject to full coverage under the cost accounting standards prescribed pursuant to section 1502 of title 41 and the regulations implementing such section (see 10 U.S.C. 2302(9)).

"Other Transaction for Prototype Projects” refers to this type of OTA. This type of OTA is authorized by 10 U.S.C. § 2371b for prototype projects directly relevant to enhancing the mission effectiveness of military personnel and the supporting platforms, systems, components, or materials proposed to be acquired or developed by the DoD, or for the improvement of platforms, systems, components, or materials in use by the armed forces. This type of OTA is treated by DoD as an acquisition instrument, commonly referred to as an "other transaction" for a prototype project or a Section 2371b "other transaction".

“Significant Participant” means an entity that makes a significant contribution to the prototype project. Examples of what might be considered a significant contribution include supplying new key technology or products, accomplishing a significant amount of the effort, or in some other way causing a material reduction in the cost or schedule, or increase in performance.

“Small Business” as defined by the DoD OTA Guide means a small business concern as defined under section 3 of the Small Business Act (15 U.S.C. 632).

“Technical Exchanges” means communications between the Government and the Offeror after proposal submission.

C. STATEMENT OF WORK (SOW)

2.1 Statement of Work

2.1.1 Background: The United States military operations take place worldwide and in all types of terrains as well as under various environmental conditions. The use of Remote Weapon Stations (RWS) provides both lethality and survivability to the warfighter who can remain under armor in a safe environment while operating the RWS. The CRD system provides pertinent data to the safe operation of the RWS.

The CRD system will allow the user to operate the RWS and fully utilize the thermal and day camera by being able to view the video on the display. The CRD system will fit onto the platform vehicle utilizing the described mounting positions as outlined below. The diagnostic functions and system settings of the RWS will be accessible by the CRD system as well for the user to utilize the graphical user interface to change and adjust settings as required. The CRD system will allow the user to identify targets via the thermal and/or day camera on the RWS therefore increasing lethality and survivability. The CRD system will be capable to allow the user to remotely operate the RWS and fully utilize the thermal and day camera by being able to view the video on the display. RWS diagnostic functions and system settings will be accessible via the CRD system as well.

2.1.1.1 Objective: The objective is to acquire three CRD systems in order to demonstrate and prove out a technology for defense purposes that will address the Government requirements. The CRD system will be subject to further testing and evaluation to determine the best CRD system that offers the greatest value to the Government. With the intent of reducing the critical weight and meeting a wide variety of applications for the Army ground environments.

2.2 Schedule / Period of Performance

The schedule is for delivery of three CRD systems per Offeror 120 days OTA award.

2.3 Place of Performance

The primary place of performance shall be at the Awardee’s facility. Government testing of the CRD systems will be at Aberdeen Test Center at APG, Maryland.

CRD systems shall be delivered to:

US ARMY Picatinny Arsenal

ATTN: ANAND BAHADUR

BUILDING 3305 SUITE 105

MAIN ST, PICATINNY ARSENAL, NJ 07806

DoDAAC: W15BW9

2.4 Payment

Payment will be made upon each delivery of CRD systems.

2.5 Packaging and Marking

Commercial packaging is acceptable.

ARTICLE II: TERM

A. The Term of this Agreement

This OTA will be available for use up to XX years 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.

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:

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

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

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

(4) 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.

(5) 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.

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

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

(ii) 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.

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

(8)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.

(9) Use its best efforts to sell, as directed or authorized by the AO, any property of the types referred to under Article II.B. Termination Provisions, (6)(i) and (ii).

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.

As part of the termination settlement, the Government reserves the right to recollect any unused project payments made to the COMPANY in the performance of this Agreement.

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 the Agreement 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:

(a) Cancel the stop-work order; or

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

D. Government Data

Upon completion or termination of this Agreement, the COMPANY shall ensure that the Government has continuous, uninterrupted access (i.e. copies) to the Government Data, as defined in Article VIII, Data Rights, and, if the Government Data resides in the COMPANY's hardware, the COMPANY shall destroy the Government Data and provide certified notification that the Government Data has been destroyed to the AO.

ARTICLE III: AGREEMENT ADMINISTRATION

Unless otherwise provided in this Agreement, approvals permitted or required to be made by the ACC-NJ Agreements Activity may be made only by the ACC-NJ Agreements Activity Agreements Officer. Administrative and other matters under this Agreement shall be referred to the following representatives of the parties:

ACC-NJ:

Anthony R. Aurillo Agreements Officer United States Army Agreements Command – New Jersey Soldier Weapons Building 9 Phipps Road Picatinny Arsenal, NJ 07806-5000 Commercial Phone: (973) 724-2024 Email: anthony.r.aurillo.civ@mail.mil

ACC-NJ:

Robert Phelan Agreements Specialist United States Army Agreements Command – New Jersey Soldier Weapons Building 9 Phipps Road Picatinny Arsenal, NJ 07806-5000 Commercial Phone: (973) 724-4894 Email: robert.c.phelan4.civ@mail.mil

Technical Representative: Anand Bahadur, Systems Acquisition Engineer Building 3305 Suite 105 Picatinny Arsenal, NJ 07806-5000 Commercial Phone (973)-724-8894 Email: anand.bahadur.civ@mail.mil

Administrative Office: ACC-NJ

Cognizant Defense Finance and Accounting Service Office:

TBD

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. 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 bi-lateral modification to revise Schedule of Payable Milestones.

B. Payable Milestones: The total price of this Agreement shall be obligated at the time of award.

C. 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 its accounting system is appropriate for tracking cost share contributions as 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.

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/.

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

3. All payment requests shall include an invoice (COMPANY’s format is acceptable) to include at a minimum, invoice number, milestone payment number, and Agreement number. Note, all invoices shall be for exact payment amount as agreed upon in the milestone payment schedule with the COMPANY before award of OTA. Partial milestones shall not be submitted.

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

Technical Agreements Representatives:

anand.bahadur.civ@mail.mil

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

E. 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: XXXXX; DUNS number: XXXXXXXXX. Registration in the System Award for Management (SAM) is mandatory.

F. 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.

G. 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 Agreements 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 3 months prior to the notification made under this article constitute the basis for relief under this article unless the Chief of the Agreements 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 10 working days after providing notice to the other Party, the aggrieved Party may, in writing, request a decision by the Chief of the Agreements Office, ACC-NJ. The other Party shall submit a written position on the matter(s) in dispute within 30 calendar days after being notified that a decision has been requested. The Chief of the Agreements Office, ACC-NJ, will conduct a review of the matter(s) in dispute and render a decision in writing within 30 calendar days of receipt of such position. Any such decision is final and binding, unless a Party shall, within 30 calendar days request further review as provided by this article.

If requested within 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 Agreements. In the event of a decision, or in absence of a decision within 60 calendar days of referral to the President of the COMPANY Board and the ACC-NJ Director of Agreements (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 COMPANY’s liability for damages exceed the payments made to the COMPANY pursuant to Article IV: Obligation and Payment in 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 the Agreement (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: COMPETITIVE INFORMATION

A. Definitions

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

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

“Competitive Information” means any commercial or financial information or material that the owner has (i) taken reasonable measures to keep from public disclosure, (ii) such information or material derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public and (iii) disclosure of such information may cause harm to the Disclosing party if released without authorization Disclosing Party shall designated such information with the legend “COMPETITIVE INFORMATION, 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 Competitive Information 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 Competitive, 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. Notwithstanding the provisions in this Article, any Competitive Information that is also deemed Data as defined in Articles VIII Data Rights and IX shall be marked and handled according to the terms under such Articles which shall take precedence over any inconsistencies in marking and handling Data.

B. Exchange of Information: The Government may from time to time disclose Government Competitive 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 Competitive Information to the Government in connection with the OTA or performance thereunder. Neither the Government nor COMPANY or its subcontractors or suppliers shall be obligated to convey any rights, title or interest to the Competitive Information that is independently developed by the Government or the COMPANY or its subcontractors or suppliers, absent an express written agreement between the Parties providing the terms and conditions for such disclosure or conveyance.

C. Authorized Disclosures: The Receiving Party agrees, to the extent permitted by law, that Competitive Information 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, Competitive Information 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 “Competitive Information” shall not extend to materials or information that:

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

(b) Are not identified with a suitable notice or legend,

(c) 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,

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

(e) Are received by the Receiving Party from a third party, and having no obligation of keeping such information in confidence,

(f) Are developed independently by the Receiving Party without use of Competitive Information as evidenced by written records,

(g) 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. The Parties shall be bound to protect such information from disclosure as provided in any such protective order or similar directive.

D. Return of Proprietary Information: Upon the request of the Disclosing Party, the Receiving Party shall promptly return all copies and other tangible manifestations of the Competitive Information disclosed where such information or material is not a required element of performance. 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, the obligations of the Receiving Party under this Article with respect to Competitive Information shall survive 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 Competitive Information under this OTA.

ARTICLE VII: PUBLICATION AND RELEASE OF INFORMATION

A. Use of Information: The Parties shall have only the right to use, disclose, and exploit any Data and Competitive Information in accordance with the rights held by them under this Agreement.

B. Classified Research Projects: If a release of Competitive Information 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.

(a) At least 30 days prior to the scheduled release date, COMPANY shall submit to the AO two copies of the information, and such material shall be routed by the Government for review and approval.

(b) COMPANY shall not refer to this Agreement in commercial advertising or similar promotions in such a manner as to state or imply that the product or service provided is endorsed by the Government. Any action construed as an advertisement or any other type of publicity identifying the Government as a customer must obtain the AO’s approval prior to such activity.

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

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

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

(c) Further, during the course of any such 30 calendar day period, the COMPANY shall notify the AO and the Government if it believes any of its Competitive Information has been included in the proposed publication or disclosure and shall identify the specific Competitive Information 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 Competitive Information so identified by the COMPANY.

ARTICLE VIII: COMPUTER SOFTWARE AND DATA RIGHTS

A. Definitions

1. “Data” as used in this Article of this Agreement, means computer software, computer software documentation, and technical data as defined in the clauses incorporated below.

B. Incorporated Clauses Rights, identification, validation, and handling of any data under this Agreement shall be subject to the clauses below and its modifications which are hereby incorporated into this Agreement as if set forth in its entirety. All clauses shall be modified to replace the terms “contractor” with “COMPANY”, “contracting officer” with “Agreements Officer” and “contract” with Agreement”.

1. DFARS 252.227-7013 (Feb. 2014) Rights in Technical Data – Noncommercial Items.

a. Further modified as follows:

i. DFARS 252.227-7013(b)(2) mixed funding determination shall be made down to the lowest practicable segregable item, component, or process.

ii. The COMPANY’s assertions shall include any patents or pending patent applications on the Assertions Table. Such information shall include the patent number or application serial number, inventor name(s), assignee names (if any), title, and filing date. The Government shall not be restricted or incur any liability for the disclosure and use of any Data that is 1) not identified on the required assertion table and 2) marked with a suitable notice or legend.

1 If the assertion is applicable to items, components, or processes developed at private expense, identify both the data and each such item, component, or process.

2 Generally, the development of an item, component, or process at private expense, either exclusively or partially, is the only basis for asserting restrictions on the Government's rights to use, release, or disclose technical data pertaining to such items, components, or processes. Indicate whether development was exclusively or partially at private expense. If development was not at private expense, enter the specific reason for asserting that the Government's rights should be restricted.

3 Enter asserted rights category (e.g., government purpose license rights from a prior contract/agreement, rights in SBIR data generated under another contract/agreement, limited or government purpose rights under this or a prior contract/agreement, or specifically negotiated licenses).

4 Corporation, individual, or other person, as appropriate.

2. DFARS 252.227-7014 (Feb. 2014) Rights in noncommercial computer software and noncommercial computer software documentation.

a. Further modified as follows:

i. DFARS 252.227-7014(b)(2) mixed funding determination shall be made down to the lowest practicable segregable component level such as module or subroutine level.

ii. The COMPANY’s assertions shall include any patents or pending patent applications on the Assertions Table. Such information shall include the patent number or application serial number, inventor name(s), assignee names (if any), title, and filing date. The Government shall not be restricted or incur any liability for the disclosure and use of any Data that is 1) not identified on the required assertion table and 2) marked with a suitable notice or legend.

1 Generally, development at private expense, either exclusively or partially, is the only basis for asserting restrictions on the Government's rights to use, release, or disclose computer software.

2 Indicate whether development was exclusively or partially at private expense. If development was not at private expense, enter the specific reason for asserting that the Government's rights should be restricted.

3 Enter asserted rights category (e.g., restricted or government purpose rights in computer software, government purpose license rights from a prior contract/agreement, rights in SBIR software generated under another contract/agreement, or specifically negotiated licenses).

4 Corporation, individual, or other person, as appropriate.

3. DFARS 252.227-7015 (Feb. 2014) Technical Data – Commercial Items

4. DFARS 252.227-7016 (Jan 2011) Rights in bid or proposal information.

5. DFARS 252.227-7017 (Jan. 2011) Identification and assertion of use, release, or disclosure restrictions. (Jan. 2011).

a. Further modified as follows:

i. The COMPANY’s assertions shall include any patents or pending patent applications on the Assertions Table. Such information shall include the patent number or application serial number, inventor name(s), assignee names (if any), and filing date. The Government shall not be restricted or incur any liability for the disclosure and use of any Data that is 1) not identified on the required assertion table and 2) marked with a suitable notice or legend.

1 For technical data (other than computer software documentation) pertaining to items, components, or processes developed at private expense, identify both the deliverable technical data and each such item, component, or process. For computer software or computer software documentation identify the software or documentation.

2 Generally, development at private expense, either exclusively or partially, is the only basis for asserting restrictions. For technical data, other than computer software documentation, development refers to development of the item, component, or process to which the data pertain. The Government's rights in computer software documentation generally may not be restricted. For computer software, development refers to the software. Indicate whether development was accomplished exclusively or partially at private expense. If development was not accomplished at private expense, or for computer software documentation, enter the specific basis for asserting restrictions.

3 Enter asserted rights category (e.g., government purpose license rights from a prior contract/agreement, rights in SBIR data generated under another contract/agreement, limited, restricted, or government purpose rights under this or a prior contract/agreement, or specially negotiated licenses).

4 Corporation, individual, or other person, as appropriate.

5 Enter “none” when all data or software will be submitted without restrictions.

6. DFARS 252.227-7019 (Sept. 2011) Validation of asserted restrictions – Computer Software.

7. DFARS 252.227-7025 (May 2013) Limitations on the Use or Disclosure of Government Furnished Information Marked with Restrictive Legends.

8. DFARS 252.227-7026 (April 1988) Deferred delivery of technical data or computer software.

9. DFARS 252.227-7027 (April 1988) Deferred ordering of technical data or computer software.

10. DFARS 252.227-7028 (June 1995) Technical data or computer software previously delivered to the government.

11. DFARS 252.227-7030 (Mar. 2000) Technical data – withholding of payment.

12. DFARS 252.227-7032 (Jun 1975) Rights in Technical Data and Computer Software (Foreign).

13. DFARS 252.227-7037 (Jun. 2013) Validation of restrictive markings on technical data.

C. Government Furnished Information The Government may furnish to the COMPANY, Data or information which existed prior to or was produced outside of the OTA for the COMPANY to perform its obligations and responsibilities to the OTA. Should the Government furnish such Data or information to the COMPANY, the Government hereby grants to the COMPANY rights to use, modify, reproduce, perform, or display such Data or information only for the purposes of performing its obligations and responsibilities under the OTA. The Government shall mark such Data or information with a suitable notice or legend and the COMPANY and/or its subcontractors shall agree to sign a non-disclosure agreement to protect such Data or information. The COMPANY shall not release or disclose such Data to any unauthorized persons/entity without the expressed written permission of the OTA Acquisition Officer. Upon completion of activities under the OTA, such Data or information shall be returned to the Government and/or disposed of as requested by the Government. COMPANY shall provide a written certification of such disposal or destruction.

D. 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, irrevocable, non-transferable, royalty-free, fully paid-up license to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, for governmental purposes, any copyrighted materials developed under this Agreement to which it owns the copyright, and to authorize others to do so.

E. 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.

F. Survival Rights Provisions of this Article shall survive termination of this Agreement.

ARTICLE IX: INVENTIONS AND PATENT RIGHTS

A. Incorporated Clauses Any inventions that was conceived or first reduced to actual practice in the performance of work under this Agreement shall be subject to the clauses below and its noted modifications which are hereby incorporated into this Agreement as if set forth in its entirety. All clauses shall be modified to replace the terms “contractor” with “COMPANY”, “contracting officer” with “Agreements Officer” and “contract” with Agreement”.

1. FAR 52.227-1 Authorization and Consent (Dec. 2007)

2. FAR 52.227-2 Notice and Assistance Regarding Patent and Copyright Infringement (Dec 2007).

3. FAR 52.227-3 Patent Indemnity.

4. FAR 52.227-11 Patent Rights – Ownership by the Contractor.

a. Further modified as follows:

i. Deleted in its entirety: (h) March-in rights.

ii. Deleted in its entirety: (i) Special provisions for contracts with non-profit organizations.

5. DFARS 252.227-7039 Patents – reporting of subject invention

B. Joint Inventions For any invention that is jointly made by federal employee inventors and COMPANY employee inventors under this Agreement, the Government and COMPANY shall jointly hold title to such invention(s). The COMPANY shall have the first option to seek patent protection to such joint invention and the Government shall have the option to seek patent protection only if the COMPANY declines to exercise its option. Responsibilities for all costs and fees shall be borne solely by the party seeking patent protection. If the COMPANY declines to pursue patent protection or discontinues its pursuit of patent protection, it shall provide notice in accordance with FAR 52.227-11(c). Should the Government seek patent protection, the COMPANY agrees to assign its ownership rights in such invention to the Government and retains for itself a non-exclusive, nontransferable, non-sublicenseable, irrevocable, royalty-free, paid-up license to practice the patent invention worldwide. Upon written request, the Government may assign all its rights, title and interest to a joint invention created under this Agreement for reasonable consideration and retain for itself a non-exclusive, nontransferable, non-sublicenseable, irrevocable, royalty-free, paid-up license to practice the patented invention throughout the world for government purposes.

C. Report of Inventions Disclosure of all inventions shall be made on a DD882 form. The completed form shall be sent to the Agreements Officer.

ARTICLE X: CONTRACTOR USE OF GOVERNMENT UNIQUE MARKS

A. Definitions:

1. “Government Unique Mark” means any mark ( e.g. product or program names, acronyms, or model designations) first used by the Government and such mark is used or intended to be used to identify and distinguish goods, programs, or products developed or manufactured in performance of a Government contract or that identifies and distinguishes services first rendered in performance of a Government contract or agreement.

2. “Background Trademark” means any mark, service mark, or trade name whether or not registered that is i) not a Government Unique Mark or derived from a Government Unique Mark and ii) that is related to the goods and services provided under this Agreement, and iii) is owned or controlled by the Contractor.\

B. The Government has a right to assert rights in or register Government Unique Mark and preclude others, including the Contractor, from using any Government Unique Mark. The Contractor is authorized to use the Government Unique Mark solely in the performance of this Agreement and no other purpose. To the extent any rights accrue from the contractor’s use of the Government Unique Mark in performance of this Agreement, those rights inure to the benefit of the Government. Use of the Government Unique Mark in any published material shall comply with the publications requirements under Article VII(C). Company shall list any marks it identifies as its Background Trademark and such list shall be updated and provided to the Agreements Officer on an annual basis.

a) The Contractor shall not:

1) Seek to develop any rights independent of the Government to the Government Unique Mark.

2) Assert any ownership rights or any interest in, or seek royalties against the Government or its supplier chain for use of the Government Unique Mark.

3) Undertake any acts that will or may invalidate or jeopardize the Government’s rights, if any, in the Government Unique Mark.

4) Apply for, or obtain or assist any person in applying for or obtaining any registration to the Government Unique Mark or any trademarks, service mark, or trade name, or other indicia confusingly similar to the Government Unique Mark.

5) Use any other Government Unique Mark such as Army or DoD logo, insignia, seal, heraldic emblem, mark, or distinctive unit identifier for any purpose without prior written authorization from the appropriate Government Trademark Licensing Program Office.

b) Nothing contained in this clause affects the Contractor’s or the Government’s rights in any marks other than Government Unique Mark.

ARTICLE XI: FOREIGN ACCESS TO TECHNOLOGY AND EXPORT CONTROL

1. Foreign Access to Technology

This Article XI shall remain in effect during the term of this Agreement.

A. Definition

a) “Foreign Firm or Institution” means 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.

b) “Know-How” means 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.

c) “Technology” means 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, mask works, and copyrights developed under this Agreement.

B. 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 Regulation (22 CFR Part 121 et seq.), the DoD Industrial Security Regulation (DoD 5220.22-R) and the Department of Commerce Export Regulation (15 CFR Part 770 et seq.)

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

a) 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 C(b), C(c), and C(d) 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:

(i) Sales of products or components, or

(ii) Licenses of software or documentation related to sales…