Attachment0010-Data_Tech_NDA_PSS-T.pdf

SOFTWARE USE, DISTRIBUTION AND NON-DISCLOSURE AGREEMENT (NDA)

Persistent Surveillance Systems – Tethered (PSS-T)

(For United States Government Contractors)

DISTRIBUTION STATEMENT- Technical data associated with the Persistent Surveillance Systems – Tethered (PSS-T)

(hereinafter “PSS-T Technical Data”) is authorized for distribution in accordance with Distribution Statement C (DoD Directive

5230.24, August 23, 2012). “Distribution Statement C: Distribution authorized to U.S. Government Agencies and their contractors (Reason: Critical Technology, Export Controlled) (Date of Determination: 8 APRIL 2015). Other requests for this document shall be referred to PD AEROSTATS, ATTN: SFAE-IEW-TA, Bldg. 6006, 2nd Floor, Aberdeen Proving Ground, MD

21005.”

WARNING - This Agreement refers to technical data, the export of which is restricted by the Arms Export Control Act (Title

22, U.S.C., Sec 2751, and et seq.) or the Export Administration Act of 1979 (Title 50, U.S.C., and App. 2401 et seq.) as amended.

Violations of these export laws are subject to severe criminal penalties. Disseminate the PSS-T Technical Data in accordance with provisions of DoD Directive 5230.25.

This Agreement is entered into this _____ day of __________, by and between U.S. Army Product Director (PD) Aerostats

(hereinafter referred to as “PD AEROSTATS”), located at Aberdeen Proving Ground, MD; and

______________________________, with its principal place of business at _________________________________________

(hereinafter referred to as “Recipient”).

WHEREAS, for the purpose of reviewing and responding to Solicitation No. W56KGY-15-R-0016 (hereinafter the

“Solicitation”), Recipient will designate employees, who have been approved/agreed upon by all parties, to perform on this task and will notify PD AEROSTATS with the names of those employees; and

WHEREAS, subject to approval at PD AEROSTATS’s sole discretion, Recipient will have access to PSS-T Technical Data (in

PDF file format) supplied and disclosed by PD AEROSTATS for the purpose of reviewing and responding to Solicitation No.

W56KGY-15-R-0016; and

NOW, THEREFORE, the parties have agreed to the following terms and conditions:

1. Recipient is aware and will ensure that the employees designated to this task agree that the PSS-T Technical Data is to be considered Confidential and shall protect, safeguard and hold the same in confidence, shall not use the PSS-T Technical

Data other than for the purposes of reviewing and responding to the Solicitation, and shall disclose it only to those Recipient individuals and organizational elements with a specific need to know. Recipient or the designated employees will not disclose, publish, communicate or otherwise in any form or format reveal any of the PSS-T Technical Data received from

PD AEROSTATS to any other party whatsoever, including all non-designated Recipient employees, without the specific prior written authorization of PD AEROSTATS. In addition, the Recipient agrees to maintain or adopt operating procedures and physical security measures designed to protect data from inadvertent release or disclosure.

2. The PSS-T Technical Data in tangible form received from PD AEROSTATS may include copyright notices and restrictive markings (prescribed under DFARS 252.227-7013). Aforementioned tangible PSS-T Technical Data shall not be duplicated by Recipient except for purposes of reviewing and responding to the Solicitation. Upon the request of PD AEROSTATS, Recipient shall delete or destroy all PSS-T Technical Data received in electronic or tangible form, including copies, or reproductions or other media containing such PSS-T Technical Data, within ten (10) days of such request; if the PSS-T

Technical Data is in a tangible format, the PSS-T Technical Data must be destroyed by shredding or tearing to make unreadable. Recipient’s Security Officer shall provide a written certificate to PD AEROSTATS regarding deletion and/or destruction within ten (10) days thereafter.

3. The PSS-T Technical Data shall not be re-distributed, sold, or used for commercial purposes by Recipient, in whole or in part, without the expressed permission of the PD AEROSTATS except as set forth herein. Recipient may copy the PSS-T

Technical Data for use within the recipient’s organization, for the purpose stated within this Agreement. A copy of this

Agreement shall be provided and maintained with each authorized copy of the PSS-T Technical Data and appropriate personnel shall be briefed regarding the Agreement requirements. Recipient shall be responsible for compliance with this

Agreement related to all authorized copies.

4. The PSS-T Technical Data will be used only in accordance with this Agreement. The PSS-T Technical Data, or elements thereof, may be incorporated into a proposal that is prepared in response to the Solicitation. The PSS-T Technical Data and data will not be modified, adapted, or otherwise altered, except as required for responding to the Solicitation.

5. If the Recipient’s sub-contractors need to access the PSS-T Technical Data for the purpose of facilitating the Recipient’s response to the Solicitation, the Recipient’s sub-contractors must receive the PSS-T Technical Data directly from PD

AEROSTATS, and the Recipient’s sub-contractors must also agree the terms and conditions of this Agreement before receiving access to PSS-T Technical Data.

6. Recipient will, and will ensure that its sub-contractors, destroy all PSS-T Technical Data no later than September 15, 2015 or the end of the Solicitation period, whichever comes later. If the PSS-T Technical Data is in a tangible format, the PSS-T

Technical Data must be destroyed by shredding or tearing to make unreadable. Recipient’s Security Officer shall provide a written certificate to PD AEROSTATS regarding destruction within ten (10) days thereafter. A failure to destroy the PSS-T

Technical Data will constitute a breach of this agreement and may result in prosecution of the U.S. Government’s rights in the applicable forum.

7. PD AEROSTATS may revoke permission or hereinafter make permission subject to additional conditions as dictated by

Government interests.

8. The individual who will act as recipient of the PSS-T Technical Data on behalf of Recipient must be a U.S. citizen.

9. Recipient acknowledges its responsibilities under the U.S. export control laws and regulations and agrees that it will not disseminate any export-controlled material subject to this Agreement in a manner that would violate applicable export control laws and regulations.

10. Unless dissemination is permitted herein and by applicable regulations, Recipient will not provide access to the PSS-T

Technical Data other than to its employees or persons acting on its behalf without permission of the controlling DoD office.

11. Term: The obligations (including, but not limited to, the confidentiality and non-disclosure obligations) of Recipient herein shall be effective in perpetuity. Further, the obligation not to disclose shall not be affected by bankruptcy, receivership, assignment, attachment or seizure procedures, whether initiated by or against any party to this Agreement.

12. Other Information: Recipient shall have no obligation under this Agreement with respect to the PSS-T Technical Data which is or becomes publicly available without breach of this Agreement by Recipient; is rightfully received by Recipient without Proprietary/Confidentiality obligations; is disclosed with the written permission of PD AEROSTATS; or is developed by Recipient without breach of this Agreement; provided, however, such PSS-T Technical Data shall not be disclosed until thirty (30) days after written notice of intent to disclose is given to PD AEROSTATS along with the asserted grounds for disclosure.

13. No Publicity: Recipient agrees not to disclose its participation in this undertaking, the existence or terms and conditions of this Agreement, or the fact that Recipient is a party hereto, unless required to do so as a result of a legal proceeding or appropriate court order, or by separate written agreement executed by all parties herein. Recipient shall have no duty to keep confidential PSS-T Technical Data when Recipient is required by law, judicial action, government department or agency or other regulatory authority to disclose the PSS-T Technical Data, in which event Recipient shall promptly notify

PD AEROSTATS in writing prior to making any such disclosure in order to facilitate PD AEROSTATS seeking a protective order or other appropriate remedy from the proper authority. Recipient agrees to cooperate with PD AEROSTATS in seeking such order or remedy. Recipient agrees that if PD AEROSTATS is not successful in precluding the requesting legal body from requiring the disclosure, it will furnish only that portion of the PSS-T Technical Data requested. For the avoidance of doubt, the provisions of this Clause shall survive any termination of the Agreement.

14. No License: Nothing contained herein shall be construed as implying, granting or conferring any rights by license or otherwise in any PSS-T Technical Data disclosed or obtained pursuant to the terms and conditions of this Agreement.

15. Governing Law and Equitable Relief: This Agreement shall be governed and construed in accordance with the laws of the

United States and the parties herein consent to the exclusive jurisdiction of the U.S. federal courts for any dispute arising out of this Agreement. Recipient agrees that in the event of any breach or threatened breach by Recipient of the terms and conditions of this Agreement, any party may obtain, in addition to any other legal remedies which may be available, such equitable relief as may be necessary to protect any party against such breach or threatened breach.

16. Final Agreement: This Agreement constitutes the entire Agreement between the parties and terminates and supersedes all prior understandings or agreements on the subject matter hereof. Only a further writing that is duly executed by all parties may modify this Agreement.

17. No Assignment: Recipient may not assign this Agreement or any interest herein without the express prior written consent of all parties to this Agreement.

18. Severability: If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.

19. Notices: Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services.

If to PD AEROSTATS:

ATTN: Kevin Kirkwood, Technical Director, PD AEROSTATS

Building 6006, Second FL

Aberdeen Proving Grounds, MD 21005

If to Recipient:

20. No Implied Waiver: Any party’s failure to insist in any one or more instances upon strict performance by any other party of any of the terms of this Agreement shall not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof.

21. The PSS-T Technical Data shall be handled and maintained in accordance with For Official Use Only, Export Control and

AR 380-5 requirements.

22. In order to retain or to be eligible to receive the PSS-T Technical Data, Recipient may not 1) be debarred, suspended or otherwise determined ineligible by any agency of the U.S. Government to perform on U.S. Government contracts; 2) have been convicted of export control law violations; 3) or have been disqualified under the provisions of DoD Directive 5230.25.

23. In order to operate and maintain the PSS-T Technical Data in accordance with the security accreditation, the recipient must also acknowledge, agree and adhere to all information security related procedures and controls. Specific instances of these information assurance related controls are:

a. Personnel Security – Users / Receiving organizations are responsible for ensuring personnel with access to the

PSS-T Technical Data have the appropriate security clearances and need to know for the classification level of the information being processed. Users are responsible for controlling access to the system and assigning accounts to authorized individuals.

b. Data Marking – Users / Receiving organizations are responsible for correctly marking all documents and media with the correct classification labels in accordance with Classified National Security Information, Executive Order

13526. If the PSS-T Technical Data disclosed pursuant to this Agreement is reproduced in whole or in part, the reproduction shall carry the same marking as that which appears on the original.

c. Enclave Boundaries – Users / Receiving organizations are responsible for implementing boundary protection mechanisms in accordance with DoD and Army Information Assurance policies and regulations.

d. Interconnections – If the PSS-T Technical Data is used in an environment with interconnections to other systems, the user / receiving organization is responsible for establishing an agreement between the Designated Approval

Authorities (DAAs) of all systems involved.

e. Audit Data Management – The Users / Receiving organization is responsible for developing and executing policies and procedures to back-up, restore and analyze audit data. Any security vulnerabilities detected with the

PSS-T Technical Data will be reported by the user to PD AEROSTATS.

f. Physical and Environmental – The User / Receiving organization is responsible for physical and environmental security mechanisms as required by DoD and Army Information Assurance policies and regulations, including the following:

i. Cleaning and sanitizing media

ii. Emergency lighting

iii. Fire detection, inspection, and suppression

iv. Temperature and humidity controls

v. Master power switch and voltage regulation

vi. Physical protection

vii. Workplace security procedures

viii. Storage and destruction

ix. Environmental security testing

x. Visitor and maintenance personnel control

24. Headings: Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or content.

REQUESTING ORGANIZATION NAME: _______________________________________________________

Specific Product(s), Component(s) or Configuration Baseline(s) being requested, and if one time or recurring. :

PSS-T Product(s): Description

PSS-T Technical Data Limited Technical Data Package related to PSS-T Major Components and supporting program documents (in PDF Format)

AUTHORIZED REPRESENTATIVE OF REQUESTING ORGANIZATION:

NAME (Print): _________________________________________ DATE: _____________________

TELEPHONE:_________________________________________ E-MAIL: _____________________

ORGANIZATION: ____________________________________________________________________

ADDRESS :__________________________________________________________________________

RECIPIENT HEREBY AGREES TO ALL CONDITIONS IDENTIFIED ON THIS DOCUMENT AND WILL

UTILIZE THE MATERIAL ONLY FOR THE PURPOSE/USE DESCRIBED ABOVE.

SIGNATURE: ___________________________________