NDA - TSS.docx

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

(For United States Government Contractors)

DISTRIBUTION STATEMENT - The SECURITY SURVEILANCE SYSTEM (SSS), formerly known as Tactical Security System (TSS) technical data and software including but not limited to SSS Technical Data Package (hereinafter “SSS Data”) is authorized for distribution in accordance with Distribution Statement DoD Directive 5230.24, August 23, 2012). DISTRIBUTION STATEMENT C: Distribution authorized to U.S Government Agencies and their contractor; Administrative or Operational use; July 24, 2014. Other requests for this document shall be referred to the Product Manager PM Force Protection Systems (FPS). ATT: SFAE-IEWS-TE, Fort Belvoir, VA 22060

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 SSS Data in accordance with provisions of DoD Directive 5230.25.

This Agreement is entered into this _____ day of __________, by and between the United States Government, as represented by Army Contracting Command – APG Belvoir; and ___________________________________________, with its principal place of business at _________________________________________________ (hereinafter referred to as “Recipient”).

WHEREAS, for the purpose of preparing a proposal in response to Solicitation No. _W909MY20R0011___________ and subject to approval at the sole discretion of Program Executive Office IEW&S, Project Manager Terrestrial Sensors, hereinafter referred to as “PM TS”, Recipient will have access to the SSS Data supplied and disclosed by PM TS to Recipient for the purpose of preparing a proposal in response to Solicitation No. _ W909MY20R0011____________ (hereinafter “the Solicitation”); 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 SSS Data is to be considered “CUI” and / or “FOUO” and shall protect, safeguard and hold the same in confidence, shall not use the SSS Data other than for the purpose of preparing a proposal in response 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 SSS Data received from PM TS to any other party whatsoever, including the Recipient’s subcontractors. If the Recipient’s subcontractors need access to the SSS Data, these subcontractors must receive permission from PM TS and must also agree to the terms of the Agreement, before being permitted to access the SSS Data. 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 SSS Data in tangible form received from PM TS includes copyright notices and restrictive markings (prescribed under DFARS 252.227-7013 and DFARS 252.227-7014. Aforementioned tangible SSS Data shall not be duplicated by Recipient except for purposes of preparing a proposal in response to the Solicitation. Upon the request of PM TS, Recipient shall destroy all SSS Data received in written or tangible form, including copies, or reproductions or other media containing such SSS Data within seven (7) days of such request; if the SSS Data is in a tangible format, the SSS Data must be destroyed by shredding or tearing to make unreadable. Recipient’s Security Officer shall provide a written certificate to PM TS regarding destruction within seven (7) days thereafter.

3. The SSS 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 PM TS except as set forth herein. Recipient may copy the SSS 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 SSS 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 SSS Data will be used only in accordance with this Distribution Agreement. The permitted purpose for using the SSS Data is limited to preparing a proposal in response to the Solicitation. The SSS Data will not be modified, adapted, or otherwise altered, except as required for the prior approved purpose.

5. Recipient will ensure that its contractor (and its sub-contractors) will, destroy all SSS Data no later than seven (7) days from the date of contract award (for the contract resulting from the Solicitation). If the SSS Data is in a tangible format, the SSS Data must be destroyed by shredding or tearing to make unreadable. Recipient’s Security Officer shall provide a written certificate to PM TS regarding destruction within seven (7) days thereafter. A failure to destroy SSS Data will constitute a breach of this agreement and may result in prosecution of the U.S. Government’s rights in the applicable forum.

6. PM TS may revoke permission or hereinafter make permission subject to additional conditions as dictated by Government interests.

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

8. 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.

9. Unless dissemination is permitted herein and by applicable regulations, Recipient will not provide access to SSS Data other than to its employees or persons acting on its behalf without permission of the controlling DoD office.

10. 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.

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

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

13. 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 and their employees in the performance of any of the terms or conditions of those obligations enumerated herein.

14. No License: Nothing contained herein shall be construed as implying, granting or conferring any rights by license or otherwise in any SSS 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 PM FPS:

ATTN: Thomas Clavin, SFAE-IEW-TF

5900 Putman Road

B365 STE1

Ft Belvoir, VA 22060-5420

If to Recipient:

20. 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.

21. The SSS Data shall be handled and maintained in accordance with Controlled Unclassified Information (CUI), For Official Use Only, Export Control and AR 380-5 requirements.

22. In order to retain or to be eligible to receive the SSS 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 SSS 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 SSS 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 SSS 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 SSS 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 SSS Data will be reported by the user to PM TS.

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.

25. Effective Date: This Agreement becomes effective upon the date of the last approving signature below and will remain in effect indefinitely until superseded, rescinded, or modified by written, mutual agreement of both parties.

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

ACKNOWLEDGMENT SHEET- CONTRACTOR USERS

(Required for Contractor Users)

REQUESTING ORGANIZATION AUTHORIZED POINT OF CONTACT (POC):

NAME (Print): __________________________________________ DATE: _____________________ TELEPHONE: __________________________________________ E-MAIL:_____________________ ORGANIZATION: _______________________________________________________________________

ADDRESS: _______________________________________________________________________

I ACKNOWLEDGE THAT I UNDERSTAND AND AGREE TO COMPLY WITH THE TERMS AND CONDITIONS OF THE ATTACHED NON-DISCLOSURE AGREEMENT. I UNDERSTAND THAT PROCESSING OR TRANSMITTING THIS EXPORT CONTROLLED MATERIAL VIA ANY PUBLIC ELECTRONIC MEDIUM IS STRICTLY PROHIBITED.

Name: ___________________________________ SIGNATURE: __________________________________

Name: ___________________________________ SIGNATURE: __________________________________

Name: ___________________________________ SIGNATURE: __________________________________

Name: ___________________________________ SIGNATURE: __________________________________

Name: ___________________________________ SIGNATURE: __________________________________

Name: ___________________________________ SIGNATURE: __________________________________

Name: ___________________________________ SIGNATURE: __________________________________

Name: ___________________________________ SIGNATURE: __________________________________

Name: ___________________________________ SIGNATURE: __________________________________

Name: ___________________________________ SIGNATURE: __________________________________

Name: ___________________________________ SIGNATURE: __________________________________

Name: ___________________________________ SIGNATURE: __________________________________

Name: ___________________________________ SIGNATURE: __________________________________

Name: ___________________________________ SIGNATURE: __________________________________

Name: ___________________________________ SIGNATURE: __________________________________

Name: ___________________________________ SIGNATURE: __________________________________

Name: ___________________________________ SIGNATURE: __________________________________

Name: ___________________________________ SIGNATURE: __________________________________

US GOVERNMENT SPONSORING ORGANIZATION:

Government Sponsor (Organization): Program Manager Terrestrial Sensor_________________________________ Government Contract Number: ________________________________________________________________ Contract Completion Date: ________________________________________________________________

REQUEST FOR RELEASE TO U.S. CONTRACTOR: (To Be Completed by USG Sponsoring Organization COTR or other authorized individual). It is requested that the SSS Data and associated documentation be released to the above-identified contractor for the purpose as stated. It is hereby certified that the contract number and completion date identified above are correct and the identified contractor requires the SSS Data for the purpose stated.

Date: _____________________ Name (Please Print): _______________________________________________________________________ Position: _____________________________________________________________________________________ Telephone: ________________________________________ E-mail: ____________________________

Authorized Signature: ___________________________________

U.S. GOVERNMENT DOD CONTROLLING OFFICE APPROVAL: The above request is approved for the purpose stated by the requester.

SSS Product Management Representative Date