Attachment_0010_-_Non_disclosure_Agreement_(NDA)-for_ICD_W909MY-17-R-0016.pdf

TECHNICAL DATA USE, DISTRIBUTION AND NON-DISCLOSURE AGREEMENT (NDA)

For “Interface Control Document for the ESM 313 Second Source Payload Shadow AV Payload Mechanical and Electrical ICD” Technical Data with Government Purpose Rights (For Offerors to the United States Government)

DISTRIBUTION STATEMENT- Technical data associated with the “Interface Control Document for the ESM 313 Second Source Payload EOIR AV Payload Mechanical and Electrical ICD” (hereinafter “EOIR Data”) is authorized for distribution in accordance with Distribution Statement D (DoD Directive 5230.24, August 23, 2012): “Distribution authorized to the Department of Defense and U.S. DoD contractors only; Administrative or Operational Use, 27 Dec 99;

Other requests shall be referred to: Ground Maneuver Product Manager, SFAE-AV-UAS-GM, PEO Aviation Redstone Arsenal, AL 35898-7459.”

WARNING - This document 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 EOIR Data in accordance with provisions of DoD Directive 5230.25.

This Agreement (hereinafter “Agreement”) is entered into this _____ day of __________, by and between the United States Government (hereinafter “Government”); and _________________________, with its principal place of business at _________________________________________________ (hereinafter “Recipient”), separately “Party” and together, “Parties”.

WHEREAS, for the purpose of preparing and submitting an offer to the Government for Solicitation No. W909MY-17-R-

0016 (hereinafter “Solicitation”) (hereinafter collectively the “Purpose”) and subject to approval at the sole discretion of the Product Manager Electro Optical Infrared under Program Manager Terrestrial Sensors (hereinafter “PdM EOIR”), Recipient will have access to the technical data contained within the document entitled “Interface Control Document for the ESM 313 Second Source Payload EOIR AV Payload Mechanical and Electrical ICD” (hereinafter “EOIR Data”, that is supplied and disclosed by PdM EOIR to Recipient solely for the Purpose and as subject to the limitations and obligations described herein; and

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

1. Recipient is aware and will ensure that the Recipient and its employees and prospective or current subcontractors to be designated to the Purpose (hereinafter such employees and subcontractors are “Users”) agree that the EOIR Data is to be considered “For Official Use Only”/“FOUO” and shall protect, safeguard and hold the same in confidence, shall not use the EOIR Data other than for the Purpose, and shall disclose EOIR Data only to those Users with a specific need to know. Recipient and its Users will not disclose, publish, communicate or otherwise in any form or format reveal any of the EOIR Data received from PdM EOIR to any other party whatsoever. If the Recipient’s subcontractors need access to the EOIR Data, in whole or in part, the Recipient must include the terms of this Agreement in its subcontractor contracts prior to disclosing or releasing the EOIR Data in order to ensure the Recipient’s subcontractors comply with the terms of this Agreement. The Recipient must also notify PdM EOIR of the name, address and designated representative of its subcontractor to which the EOIR Data is provided. In addition, the Recipient agrees to maintain or adopt operating procedures and physical security measures designed to protect the EOIR Data from inadvertent release or disclosure to unauthorized third parties and require its subcontractors to do the same.

2. The EOIR Data in tangible form received from PdM EOIR includes copyright notices and restrictive markings (as prescribed under DFARS 252.227-7013). The aforementioned tangible EOIR Data shall not be duplicated by Recipient except as reasonably needed for the Purpose. Upon the request of PdM EOIR or within seven (7) days of the End Date as defined in Paragraph 27, whichever is earlier, Recipient shall destroy, and will ensure that its subcontractors will destroy, all EOIR Data received in written or tangible form, including copies, or reproductions or other media containing such EOIR Data within seven (7) days of such request or End Date; if the EOIR Data is in a tangible format, the EOIR Data must be destroyed by shredding or tearing to make unreadable. Recipient’s Security Officer shall provide a written certificate to PdM EOIR regarding destruction within seven (7) days thereafter. A failure to destroy the EOIR Data will constitute a breach of this Agreement and may result in prosecution of the Government’s rights in the applicable forum.

3. The EOIR Data shall not be re-distributed, sold, or used for commercial purposes, in whole or in part, by Recipient or its Users. Recipient may make a reasonable number of copies of the EOIR Data for use within Recipient’s organization, for the Purpose. A copy of this Agreement shall be provided and maintained with each authorized copy of the EOIR Data and Users shall be briefed regarding this Agreement’s requirements. Recipient shall be responsible for compliance with this Agreement related to all authorized copies.

4. The EOIR Data will be used only in accordance with this Agreement. The use of the EOIR Data is limited to the Purpose. The EOIR Data will not be modified, adapted, or otherwise altered. However, should any corrections or changes be made to the EOIR Data, under DFARS 252.227-7013(b)(1)(vi), the Government shall have an “unlimited rights” license (as defined in DFARS 252.227-7013) to any corrections or changes made to the EOIR Data. The Recipient has an obligation to deliver any corrections, or changes to the EOIR Data to PdM EOIR no later than seven

(7) days after the End Date as defined in Paragraph 27, unless otherwise indicated by PdM EOIR. If PdM EOIR does not receive the corrections, or changes made to EOIR Data in a timely manner and with an “unlimited rights” license, such failure will be deemed a breach of this Agreement and may result in prosecution of the Government’s rights in the applicable forum.

5. The Recipient agrees to accept these EOIR Data “as is” without any Government representation as to suitability for intended use or warranty whatsoever. This disclaimer does not affect any obligation the Government may have regarding EOIR Data specified in a contract for the performance of that contract.

6. The Recipient may enter into any agreement directly with the contractor whose name appears in the restrictive legend

(hereinafter the “Contractor”) with respect to the use, modification, reproduction, release, performance, display, or disclosure of these EOIR Data.

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

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

9. PdM EOIR may unilaterally revoke permission or hereinafter make permission subject to additional conditions as dictated by Government interests.

10. The individual who will act as recipient of the EOIR Data on behalf of Recipient must be a U.S. citizen.

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

12. Unless distribution is permitted herein and by applicable, corresponding regulations, Recipient will not provide access to the EOIR Data, to include its employees or persons acting on its behalf, without the express, written permission of the controlling Government office.

13. 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.

14. Other Information: Recipient shall have no obligation under this Agreement with respect to the EOIR 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 PdM EOIR; or is developed by Recipient without breach of this Agreement; provided, however, such EOIR Data shall not be disclosed until thirty (30) days after written notice of intent to disclose is given to PdM EOIR along with the asserted grounds for disclosure.

15. 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 EOIR Data when Recipient is required by law, judicial action, government department or agency or other regulatory authority to disclose the EOIR Data, in which event Recipient shall promptly notify PdM EOIR in writing prior to making any such disclosure in order to facilitate PdM EOIR seeking a protective order or other appropriate remedy from the proper authority. Recipient agrees to cooperate with PdM EOIR in seeking such order or remedy. Recipient agrees that if PdM EOIR is not successful in precluding the requesting legal body from requiring the disclosure, Recipient will furnish only that portion of the EOIR Data requested. For the avoidance of doubt, the provisions of this clause shall survive any expiration or termination of this Agreement.

16. Liability: Recipient expressly agrees, to the extent authorized under the constitution and laws of the United States of America, to waive any and all claims for damages, or other relief, resulting from the negligent acts of Recipient or Recipient’s employees or Government or Government’s employees in the performance of any of the terms or conditions of those obligations enumerated herein.

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

18. 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, the Government may obtain, in addition to any other legal remedies which may be available, such equitable relief as may be necessary to protect the Government against such breach or threatened breach.

19. 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 both Parties may modify this Agreement.

20. No Assignment: Recipient may not assign this Agreement or any obligation herein without the express prior written consent of the Government.

21. 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.

22. Notices: Any notice to either Party as 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 to:

If to PdM EOIR:

ATTN: Ms. Shahaadah Nalls [Mailing Address]_______________________________________

If to Recipient:

[Org/POC/Mailing Address]_______________________________

23. No Implied Waiver: Any Party’s failure to insist in any one or more instances upon strict performance by the 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.

24. The EOIR Data shall be handled and maintained in accordance with For Official Use Only, Export Control and Army

Regulation 380-5 “Department of the Army Information Security Program” requirements.

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

5230.25.

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

27. Effective Date and End Date: This Agreement becomes effective upon the date of the last approving signature below and will end concurrently with the closing date of the Solicitation (hereinafter “End Date”), unless modified by written, mutual agreement of both Parties.

28. Acceptance of Agreement: In witness whereof, the Parties have caused this Agreement to be executed by their duly authorized representatives as follows:

For Government: For Recipient:

Name: Shahaadah Nalls Name: ___________________ ______________

Title: Contracting Officer Title: __________________________________

Gov’t Agency: Army Contracting Command – APG Belvoir Recipient Organization: ____________________

Tel: 703-704-0833 Tel: ____________________________________

Email: shahaadah.c.nalls.civ@mail.mil Email: __________________________________

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