Standard Clauses for “Space Authorities Agreements Guide” Chapter 2: Agreements with Domestic Nongovernmental Entities and State and Local Government Entities

This list of standard clauses is intended for use in conjunction with the “Space Authorities Agreements Guide” (SAAG), which is a NASA Advisory Implementing Instruction (NAII) document (NAII 1050-1) developed in accordance with NASA Policy Directive 1050.7, “Authority to Enter into Partnership Agreements.”

TITLE

2.2.1.1 TITLE (NONREIMBURSABLE)

NONREIMBURSABLE [SUBTITLE AS APPROPRIATE] SPACE ACT AGREEMENT

BETWEEN

THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

AND [PARTNER NAME]

FOR [BRIEF DESCRIPTION]

2.2.1.2 TITLE (REIMBURSABLE)

REIMBURSABLE [SUBTITLE AS APPROPRIATE] SPACE ACT AGREEMENT

BETWEEN

THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

[CENTERNAME]

AND [PARTNER NAME]

FOR [BRIEF DESCRIPTION].

2.2.1.3 TITLE (NONREIMBURSABLE UMBRELLA)

NONREIMBURSABLE [SUBTITLE AS APPROPRIATE] SPACE ACT UMBRELLA AGREEMENT

BETWEEN

THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

AND [PARTNER NAME]

FOR [BRIEF DESCRIPTION].

2.2.1.4 TITLE (REIMBURSABLE UMBRELLA)

REIMBURSABLE [SUBTITLE AS APPROPRIATE] SPACE ACT UMBRELLA AGREEMENT

BETWEEN

THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

AND [PARTNER NAME]

FOR [BRIEF DESCRIPTION].

2.2.1.5 TITLE (ANNEX)

ANNEX

BETWEEN

THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION AND

[PARTNER NAME]

UNDER SPACE ACT UMBRELLA AGREEMENT

NO. [UMBRELLAAGREEMENTNUMBER], DATED [UMBRELLAAGREEMENTSIGNEDDATE] (ANNEX NUMBER [ANNEXNUMBER]).

2.2.1.6 TITLE (UNFUNDED)

UNFUNDED [SUBTITLE AS APPROPRIATE] SPACE ACT AGREEMENT

BETWEEN

THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

[CENTERNAME]

AND [PARTNER NAME]

FOR [BRIEF DESCRIPTION].

2.2.1.7 TITLE (FUNDED)

FUNDED [SUBTITLE AS APPROPRIATE] SPACE ACT AGREEMENT

BETWEEN

THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

[CENTERNAME]

AND [PARTNER NAME]

FOR [BRIEF DESCRIPTION].

AUTHORITY AND PARTIES

2.2.2 AUTHORITY & PARTIES

In accordance with the National Aeronautics and Space Act (51 U.S.C. § 20113(e)), this Agreement is entered into by the National Aeronautics and Space Administration, located at [CENTERADDRESS] (hereinafter referred to as [CENTER]) and [PARTNERNAME] located at [PARTNERADDRESS] (hereinafter referred to as “Partner” or “[PARTNERSHORTNAME]”). NASA and Partner may be individually referred to as a “Party” and collectively referred to as the “Parties.”

2.2.2.1 AUTHORITY & PARTIES (CRADA)

In accordance with the Federal Technology Transfer Act (FTTA), 15 U.S.C. § 3710(a), this Cooperative Research and Development Agreement (CRADA) is entered into by the National Aeronautics and Space Administration [CENTERNAME], located at [CENTERADDRESS] (hereinafter referred to as [CENTER]) and [PARTNERNAME] located at [PARTNERADDRESS] (hereinafter referred to as “Partner” or “[PARTNERSHORTNAME]”). NASA and Partner may be individually referred to as a “Party” and collectively referred to as the “Parties.”

PURPOSE

2.2.3.1 PURPOSE

[DESCRIPTION]

2.2.3.2 PURPOSE & IMPLEMENTATION (UMBRELLA)

This Umbrella Agreement (hereinafter referred to as the “Agreement” or “Umbrella Agreement”) shall be for the purpose of [DESCRIPTION]

The Parties shall execute one (1) Annex Agreement (hereinafter referred to as the “Annex”) concurrently with this Umbrella Agreement. The Parties may execute subsequent Annexes under this Umbrella Agreement consistent with the purpose and terms of this Umbrella Agreement. This Umbrella Agreement shall govern all Annexes executed hereunder; no Annex shall amend this Umbrella Agreement. Nevertheless, Annexes may include an additional sentence to Article 8.C. (titled “Liability”), in standard approved form, which shall be applicable solely to the activities conducted under such Annex. Each Annex will detail the specific purpose of the proposed activity, responsibilities, schedule and milestones, and any personnel, property or facilities to be utilized under the task. This Umbrella Agreement takes precedence over any Annexes. In the event of a conflict between the Umbrella Agreement and any Annex concerning the meaning of its provisions, and the rights, obligations and remedies of the Parties, the Umbrella Agreement is controlling.

2.2.3.3 PURPOSE (ANNEX)

This Annex shall be for the purpose of [DESCRIPTION].

2.2.3.4 PURPOSE & BACKGROUND (UNFUNDED & FUNDED)

Purpose:

[DESCRIPTION]

Background:

[BACKGROUND]

RESPONSIBILITIES

2.2.4.1 RESPONSIBILITIES

A. NASA [Center initials] will use reasonable efforts to:

[Center responsibilities]

B. Partner will use reasonable efforts to:

[Partner responsibilities]

2.2.4.2 RESPONSIBILITIES (UMBRELLA)

A. NASA [Center initials] will use reasonable efforts to:

1. Provide support of projects undertaken in any Annex;

2. Provide internal coordination of approvals for Annexes;

3. Provide for a single point of contact for Annex development and operations.

B. Partner will use reasonable efforts to:

1. Provide support of projects undertaken in any Annex;

2. Provide internal coordination of approvals for Annexes;

3. Provide for a single point of contact for Annex development and operations.

2.2.4.3 RESPONSIBILITIES (ANNEX)

A. NASA [Center initials] will use reasonable efforts to:

[Center responsibilities]

B. Partner will use reasonable efforts to:

[Partner responsibilities]

SCHEDULE AND MILESTONES

2.2.5.1 SCHEDULE & MILESTONES

The planned major milestones for the activities defined in the “Responsibilities” Article are as follows:

[state milestones]

2.2.5.2 SCHEDULE & MILESTONES (UMBRELLA)

The planned major milestones for the activities defined in the “Responsibilities” Article are as follows:

[state milestones]

2.2.5.3 SCHEDULE & MILESTONES (ANNEX)

The planned major milestones for the activities for this Annex defined in the “Responsibilities” Article are as follows:

[state milestones]

2.2.5.4 SCHEDULE & MILESTONES (FUNDED)

The scheduled milestones, acceptance criteria, and payments for each milestone are identified in Appendix A to this Agreement:

[state milestones]

FINANCIAL OBLIGATIONS

2.2.6.1 FINANCIAL OBLIGATIONS (NONREIMBURSABLE)

There will be no transfer of funds between the Parties under this Agreement and each Party will fund its own participation. All activities under or pursuant to this Agreement are subject to the availability of funds, and no provision of this Agreement shall be interpreted to require obligation or payment of funds in violation of the Anti-Deficiency Act, (31 U.S.C. § 1341).

2.2.6.2 FINANCIAL OBLIGATIONS (REIMBURSABLE)

A. Partner agrees to reimburse NASA an estimated cost of $[Totaldollars] for NASA to carry out its responsibilities under this Agreement. In no event will NASA transfer any U.S. Government funds to Partner under this Agreement. Payment must be made by Partner in advance of initiation of NASA’s efforts on behalf of the Partner.

[Lumpsum]

B. Payment shall be payable to the National Aeronautics and Space Administration through the NASA Shared Services Center (NSSC) (choose one form of payment):

(1) U.S. Treasury FEDWIRE Deposit System, Federal Reserve Wire Network Deposit System;

(2) pay.gov at https://www.nasa.gov/specials/nssc-pay/ and select the appropriate NASA Center for the agreement from the drop down; or

(3) check. A check should be payable to NASA and sent to:

NASA Shared Services Center

FMD – Accounts Receivable For the Accounts of:[Centername]

Building 1111,

Jerry Hlass Rd.,

Stennis Space Center, MS 39529

Payment by electronic transfer (#1 or #2, above), is strongly encouraged, and payment by check is to be used only if circumstances preclude the use of electronic transfer. All payments and other communications regarding this Agreement shall reference the Center name, title, date, and number of this Agreement.

C. NASA will not provide services or incur costs beyond the existing payment. Although NASA has made a good faith effort to accurately estimate its costs, it is understood that NASA provides no assurance that the proposed effort under this Agreement will be accomplished for the above estimated amount. Should the effort cost more than the estimate, Partner will be advised by NASA as soon as possible. Partner shall pay all costs incurred and has the option of canceling the remaining effort, or providing additional funding in order to continue the proposed effort under the revised estimate. Should this Agreement be terminated, or the effort completed at a cost less than the agreed-to estimated cost, NASA shall account for any unspent funds within [insert timeframe, cannot exceed one (1) year] after completion of all effort under this Agreement, and promptly thereafter return any unspent funds to Partner. Return of unspent funds will be processed via Electronic Funds Transfer (EFT) in accordance with 31 C.F.R. Part 208 and, upon request by NASA, Partner agrees to complete the Automated Clearing House (ACH) Vendor/Miscellaneous Payment Enrollment Form (SF 3881).

D. Notwithstanding any other provision of this Agreement, all activities under or pursuant to this Agreement are subject to the availability of funds, and no provision of this Agreement shall be interpreted to require obligation or payment of funds in violation of the Anti-Deficiency Act, (31 U.S.C. § 1341).

2.2.6.3 FINANCIAL OBLIGATIONS (REIMBURSABLE UMBRELLA)

A. Partner agrees to reimburse NASA as set forth in each Annex for NASA to carry out its responsibilities under this Agreement. Partner shall make payment in advance of initiation of NASA’s efforts on behalf of the Partner. Advance payments shall be scheduled to ensure that funds are resident with NASA before Federal obligations are incurred in support of work on behalf of the Partner.

B. Payment shall be payable to the National Aeronautics and Space Administration through the NASA Shared Services Center (NSSC) (choose one form of payment):

(1) U.S. Treasury FEDWIRE Deposit System, Federal Reserve Wire Network Deposit System;

(2) pay.gov at https://www.nasa.gov/specials/nssc-pay/ and select the appropriate NASA Center for the agreement from the drop down; or

(3) check. A check should be payable to NASA and sent to:

NASA Shared Services Center

FMD – Accounts Receivable For the Accounts of:[Centername] [At the time of payment, please indicate which NASA Center for the Umbrella Agreement or annex, as appropriate]

Building 1111,

Jerry Hlass Rd.,

Stennis Space Center, MS 39529

Note that Annexes may originate from different Centers. Each payment shall be properly identified by Center. Payment by electronic transfer [#1 or #2, above], is strongly encouraged, and payment by check is to be used only if circumstances preclude the use of electronic transfer. Return of unspent funds will be processed via Electronic Funds Transfer (EFT) in accordance with 31 C.F.R. Part 208 and, upon request by NASA, Partner agrees to complete the Automated Clearing House (ACH) Vendor/Miscellaneous Payment Enrollment Form (SF 3881). All payments and other communications regarding this Agreement shall reference the Center name, title, date, and number of this Agreement.

C. Notwithstanding any other provision of this Agreement, all activities under or pursuant to this Agreement are subject to the availability of funds, and no provision of this Agreement shall be interpreted to require obligation or payment of funds in violation of the Anti-Deficiency Act, (31 U.S.C. § 1341).

2.2.6.4 FINANCIAL OBLIGATIONS (REIMBURSABLE ANNEX)

A. Partner agrees to reimburse NASA an estimated cost of $[Totaldollars] for NASA to carry out its responsibilities under this Annex.

[Lumpsum]Each payment shall be marked with [insert Center and Annex number].

B. NASA will not provide services or incur costs beyond the current funding. Although NASA has made a good faith effort to accurately estimate its costs, it is understood that NASA provides no assurance that the proposed effort under this Annex will be accomplished for the estimated amount. Should the effort cost more than the estimate, Partner will be advised by NASA as soon as possible. Partner shall pay all costs incurred and have the option of canceling the remaining effort, or providing additional funding in order to continue the proposed effort under the revised estimate. Should this Annex be terminated, or the effort completed at a cost less than the agreed-to estimated cost, NASA shall account for any unspent funds within [insert timeframe, cannot exceed one year] after completion of all effort under this Annex, and promptly thereafter, at Partner’s option return any unspent funds to Partner or apply any such unspent funds to other activities under the Umbrella Agreement. Return of unspent funds will be processed via Electronic Funds Transfer (EFT) in accordance with 31 C.F.R. Part 208 and, upon request by NASA, Partner agrees to complete the Automated Clearing House (ACH) Vendor/Miscellaneous Payment Enrollment Form (SF 3881).

2.2.6.5 FINANCIAL OBLIGATIONS (UNFUNDED)

2.2.6.6 FINANCIAL OBLIGATIONS (FUNDED)

A. Obligation

NASA’s liability to make payments to the Partner is limited to only those funds obligated annually under this Agreement. NASA may obligate funds to the Agreement incrementally at its sole discretion.

B. Acceptance and Payment for Milestones

(1) Partner shall notify the NASA principal points of contact, listed in “POINTS OF CONTACT” at least 30 calendar days prior to the completion of any milestone to arrange for the NASA Technical Contact or designee to witness the event or accept delivery of documents. NASA shall have 5 calendar days to determine whether Milestone 1 meets its corresponding acceptance criteria as described in Appendix A of this Agreement and shall provide written notice to Partner’s Principal Points of Contact of NASA’s acceptance or non-acceptance within 5 calendar days of that determination. For all other milestones, NASA shall have 30 calendar days to determine whether the milestone event meets its corresponding acceptance criteria as described in Appendix A of this Agreement and shall provide written notice to Partner’s Principal Points of Contact of NASA’s acceptance or non-acceptance within 10 calendar days of that determination. Acceptance of milestones will be at NASA’s sole discretion.

(2) Partner shall submit a written invoice requesting payment from NASA within 5 calendar days of notification of acceptance by NASA of each milestone. The amount of the submitted invoice may not differ from the mutually agreed upon amounts described in Appendix A of this Agreement. Partner shall submit all invoices utilizing Treasury’s Invoice Processing Platform (IPP). For instructions on submitting invoices through IPP, reference: https://www.nssc.nasa.gov/vendorpayment. After receipt and review of the invoice, the NASA Administrative Contact will prepare a written determination of milestone completion and authorize payment.

(3) The following information shall be included on each Partner invoice to NASA:

(a) Agreement Number;

(b) Invoice Number;

(d) Terms of Payment;

(e) Payment Office; and

(f) Amount of the fixed contribution claimed.

(4) Financial Records and Reports: Except as otherwise provided in this Agreement, the Partner’s relevant financial records associated with this Agreement shall not be subject to examination or audit by NASA.

(5) Comptroller General Access to Records: The Comptroller General, at its discretion and pursuant to applicable regulations and policies, shall have access to and the right to examine records of any Party to the Agreement or any entity that participates in the performance of this Agreement that directly pertain to and involve transactions relating to the Agreement for a period of three (3) years after the Government makes the final milestone payment under this Agreement. This paragraph only applies to any record that is created or maintained in the ordinary course of business or pursuant to a provision of law. The terms of this paragraph shall be included in any subcontracts or other arrangements in excess of $5,000,000.00, which the Partner has or may enter into related to the execution of the milestone events in this Agreement.

(6) Notwithstanding any other provision of this Agreement, all activities under or pursuant to this Agreement are subject to the availability of funds, and no provision of this Agreement shall be interpreted to require obligation or payment of funds in violation of the Anti-Deficiency Act, (31 U.S.C. § 1341).

PRIORITY OF USE

2.2.7 PRIORITY OF USE

Any schedule or milestone in this Agreement is estimated based upon the Parties’ current understanding of the projected availability of NASA goods, services, facilities, or equipment. In the event that NASA’s projected availability changes, Partner shall be given reasonable notice of that change, so that the schedule and milestones may be adjusted accordingly. The Parties agree that NASA’s use of its goods, services, facilities, or equipment shall have priority over the use planned in this Agreement. Should a conflict arise, NASA in its sole discretion shall determine whether to exercise that priority. Likewise, should a conflict arise as between two or more non-NASA Partners, NASA, in its sole discretion, shall determine the priority as between those Partners. This Agreement does not obligate NASA to seek alternative government property or services under the jurisdiction of NASA at other locations.

NONEXCLUSIVITY

2.2.8.1 NONEXCLUSIVITY (REIMBURSABLE)

This Agreement is not exclusive; accordingly, NASA may enter into similar agreements for the same or similar purpose with other private or public entities.

2.2.8.2 NONEXCLUSIVITY (NONREIMBURSABLE; UNFUNDED & FUNDED)

This Agreement is not exclusive; accordingly, either Party may enter into similar agreements for the same or similar purpose with other private or public entities.

LIABILITY

2.2.9.1.1 LIABILITY (CROSS-WAIVER)

A. Each Party hereby waives any claim against the other Party or one or more of its Related Entities (defined below) for any injury to, or death of, the waiving Party or one or more of its Related Entities, or for damage to, or loss of, the waiving Party’s property or the property of its Related Entities arising from or related to activities conducted under this Agreement, whether such injury, death, damage, or loss arises through negligence or otherwise, except in the case of willful misconduct.

B. Partner further agrees to extend this waiver to its related entities by requiring them, by contract or otherwise, to waive all claims against NASA and its Related Entities for injury, death, damage, or loss arising from or related to activities conducted under this Agreement. For purposes of this Agreement, “Related Entities” shall mean contractors and subcontractors of a Party at any tier; grantees, investigators, customers, and users of a Party at any tier and their contractors or subcontractor at any tier; or, employees of the Party or any of the foregoing.

C. Notwithstanding the other provisions of this Article, the waivers of liability set forth in this section shall not be applicable to:

i. Claims between a Party and its own Related Entity or between its own Related Entities;

ii. Claims made by a natural person, his/her estate, survivors, or anyone claiming by or through him/her (except when such person or entity is a Party to this Agreement or is otherwise bound by the terms of this waiver) for bodily injury to, or other impairment of health of, or death of, such person;

iii. Claims for damage caused by willful misconduct;

iv. Intellectual property claims;

v. Claims for damage resulting from a failure of a Party to extend the waiver of liability to its Related Entities, pursuant to paragraph B of this Article; or

vi. Claims by a Party arising out of or relating to another Party’s failure to perform its obligations under this Agreement.

2.2.9.1.2 LIABILITY (CROSS-WAIVER INVOLVING ISS)

A. The objective of this Article is to establish a cross-waiver of liability in the interest of encouraging participation in the exploration, exploitation, and use of outer space through the International Space Station (ISS). The Parties intend that the cross-waiver of liability be broadly construed to achieve this objective.

B. For the purposes of this Article:

1. The term “Damage” means:

a. Bodily injury to, or other impairment of health of, or death of, any person;

b. Damage to, loss of, or loss of use of any property;

c. Loss of revenue or profits; or

d. Other direct, indirect, or consequential Damage.

2. The term “Launch Vehicle” means an object, or any part thereof, intended for launch, launched from Earth, or returning to Earth which carries Payloads, persons, or both.

3. The term “Partner State” includes each Contracting Party for which the Agreement Among the Government of Canada, Governments of Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America concerning Cooperation on the Civil International Space Station (IGA) has entered into force, pursuant to Article 25 of the IGA or pursuant to any successor agreement. A Partner State includes its Cooperating Agency. It also includes any entity specified in the Memorandum of Understanding (MOU) between NASA and the Government of Japan to assist the Government of Japan’s Cooperating Agency in the implementation of that MOU.

4. The term “Payload” means all property to be flown or used on or in a Launch Vehicle or the ISS.

5. The term “Protected Space Operations” means all Launch Vehicle or Transfer Vehicle activities, ISS activities, and Payload activities on Earth, in outer space, or in transit between Earth and outer space in implementation of this Agreement, the IGA, MOUs concluded pursuant to the IGA, and implementing arrangements. It includes, but is not limited to:

a. Research, design, development, test, manufacture, assembly, integration, operation, or use of Launch Vehicles or Transfer Vehicles, the ISS, Payloads, or instruments, as well as related support equipment and facilities and services; and

b. All activities related to ground support, test, training, simulation, or guidance and control equipment and related facilities or services.

“Protected Space Operations” also includes all activities related to evolution of the ISS, as provided for in Article 14 of the IGA.

“Protected Space Operations” excludes activities on Earth which are conducted on return from the ISS to develop further a Payload’s product or process for use other than for ISS-related activities in implementation of the IGA.

6. The term “Related Entity” means:

a. A contractor or subcontractor of a Party or a Partner State at any tier;

b. A user or customer of a Party or a Partner State at any tier; or

c. A contractor or subcontractor of a user or customer of a Party or a Partner State at any tier.

The terms “contractor” and “subcontractor” include suppliers of any kind.

The term “Related Entity” may also apply to a State, or an agency or institution of a State, having the same relationship to a Partner State as described in paragraphs B.6.a. through B.6.c. of this Article or otherwise engaged in the implementation of Protected Space Operations as defined in paragraph B.5. above.

7. The term “Transfer Vehicle” means any vehicle that operates in space and transfers Payloads or persons or both between two different space objects, between two different locations on the same space object, or between a space object and the surface of a celestial body. A Transfer Vehicle also includes a vehicle that departs from and returns to the same location on a space object.

C. Cross-waiver of liability:

1. Each Party agrees to a cross-waiver of liability pursuant to which each Party waives all claims against any of the entities or persons listed in paragraphs C.1.a. through C.1.d. of this Article based on Damage arising out of Protected Space Operations. This cross-waiver shall apply only if the person, entity, or property causing the Damage is involved in Protected Space Operations and the person, entity, or property damaged is damaged by virtue of its involvement in Protected Space Operations. The cross-waiver shall apply to any claims for Damage, whatever the legal basis for such claims, against:

a. Another Party;

b. A Partner State other than the United States of America;

c. A Related Entity of any entity identified in paragraph C.1.a. or C.1.b. of this Article; or

d. The employees of any of the entities identified in paragraphs C.1.a. through C.1.c. of this Article.

2. In addition, each Party shall, by contract or otherwise, extend the cross-waiver of liability, as set forth in paragraph C.1. of this Article, to its Related Entities by requiring them, by contract or otherwise, to:

a. Waive all claims against the entities or persons identified in paragraphs C.1.a. through C.1.d. of this Article; and

b. Require that their Related Entities waive all claims against the entities or persons identified in paragraphs C.1.a. through C.1.d. of this Article.

3. For avoidance of doubt, this cross-waiver of liability includes a cross-waiver of claims arising from the Convention on International Liability for Damage Caused by Space Objects, which entered into force on September 1, 1972, where the person, entity, or property causing the Damage is involved in Protected Space Operations and the person, entity, or property damaged is damaged by virtue of its involvement in Protected Space Operations.

4. Notwithstanding the other provisions of this Article, this cross-waiver of liability shall not be applicable to:

a. Claims between a Party and its own Related Entity or between its own Related Entities;

b. Claims made by a natural person, his/her estate, survivors or subrogees (except when a subrogee is a Party to this Agreement or is otherwise bound by the terms of this cross-waiver) for bodily injury to, or other impairment of health of, or death of, such person;

c. Claims for Damage caused by willful misconduct;

d. Intellectual property claims;

e. Claims for Damage resulting from a failure of a Party to extend the cross-waiver of liability to its Related Entities, pursuant to paragraph C.2. of this Article; or

f. Claims by a Party arising out of or relating to another Party’s failure to perform its obligations under this Agreement.

5. Nothing in this Article shall be construed to create the basis for a claim or suit where none would otherwise exist.

D. To the extent that activities under this Agreement are not within the definition of “Protected Space Operations,” defined above, the following unilateral waiver of claims applies to activities under this Agreement.

1. Partner hereby waives any claims against NASA, its employees, its related entities, (including, but not limited to, contractors and subcontractors at any tier, grantees, investigators, customers, users, and their contractors and subcontractors, at any tier) and employees of NASA’s related entities for any injury to, or death of, Partner employees or the employees of Partner’s related entities, or for damage to, or loss of, Partner’s property or the property of its related entities arising from or related to activities conducted under this Agreement, whether such injury, death, damage, or loss arises through negligence or otherwise, except in the case of willful misconduct.

2. Partner further agrees to extend this unilateral waiver to its related entities by requiring them, by contract or otherwise, to waive all claims against NASA, its related entities, and employees of NASA and employees of NASA’s related entities for injury, death, damage, or loss arising from or related to activities conducted under this Agreement.

2.2.9.1.3 LIABILITY (CROSS-WAIVER FOR LAUNCH AGREEMENTS UNRELATED TO ISS)

A. The objective of this Article is to establish a cross-waiver of liability in the interest of encouraging participation in the exploration, exploitation, and use of outer space. The Parties intend that the cross-waiver of liability be broadly construed to achieve this objective.

B. For purposes of this Article:

1. The term “Damage” means:

a. Bodily injury to, or other impairment of health of, or death of, any person;

b. Damage to, loss of, or loss of use of any property;

c. Loss of revenue or profits; or

d. Other direct, indirect, or consequential Damage.

2. The term “Launch Vehicle” means an object, or any part thereof, intended for launch, launched from Earth, or returning to Earth which carries Payloads, persons, or both.

3. The term “Payload” means all property to be flown or used on or in a Launch Vehicle.

4. The term “Protected Space Operations” means all Launch Vehicle or Transfer Vehicle activities and Payload activities on Earth, in outer space, or in transit between Earth and outer space in implementation of an agreement for launch services. Protected Space Operations begins at the signature of this Agreement and ends when all activities done in implementation of this Agreement are completed. It includes, but is not limited to:

a. Research, design, development, test, manufacture, assembly, integration, operation, or use of Launch Vehicles or Transfer Vehicles, Payloads, or instruments, as well as related support equipment and facilities and services; and

b. All activities related to ground support, test, training, simulation, or guidance and control equipment and related facilities or services.

“Protected Space Operations” excludes activities on Earth that are conducted on return from space to develop further a Payload’s product or process for use other than for the activities within the scope of an agreement for launch services.

5. The term “Related Entity” means:

a. A contractor or subcontractor of a Party at any tier;

b. A user or customer of a Party at any tier; or

c. A contractor or subcontractor of a user or customer of a Party at any tier.

The terms “contractor” and “subcontractor” include suppliers of any kind.

The term “Related Entity” may also apply to a State, or an agency or institution of a State, having the same relationship to a Party as described in paragraphs B.5.a. through B.5.c. of this Article, or otherwise engaged in the implementation of Protected Space Operations as defined in paragraph B.4. above.

6. The term “Transfer Vehicle” means any vehicle that operates in space and transfers Payloads or persons or both between two different space objects, between two different locations on the same space object, or between a space object and the surface of a celestial body. A Transfer Vehicle also includes a vehicle that departs from and returns to the same location on a space object.

C. Cross-waiver of liability:

a. The other Party;

b. A party to another NASA agreement that includes flight on the same Launch Vehicle;

c. A Related Entity of any entity identified in paragraphs C.1.a. or C.1.b. of this Article; or

d. The employees of any of the entities identified in paragraphs C.1.a. through C.1.c. of this Article.

2. In addition, each Party shall extend the cross-waiver of liability, as set forth in paragraph C.1. of this Article, to its own Related Entities by requiring them, by contract or otherwise, to:

a. Waive all claims against the entities or persons identified in paragraphs C.1.a. through C.1.d. of this Article; and

b. Require that their Related Entities waive all claims against the entities or persons identified in paragraphs C.1.a. through C.1.d. of this Article.

4. Notwithstanding the other provisions of this Article, this cross-waiver of liability shall not be applicable to:

a. Claims between a Party and its own Related Entity or between its own Related Entities;

b. Claims made by a natural person, his/her estate, survivors, or subrogees (except when a subrogee is a Party to this Agreement or is otherwise bound by the terms of this cross-waiver) for bodily injury to, or other impairment of health of, or death of, such person;

c. Claims for Damage caused by willful misconduct;

d. Intellectual property claims;

e. Claims for Damage resulting from a failure of a Party to extend the cross-waiver of liability to its Related Entities, pursuant to paragraph C.2. of this Article; or

f. Claims by a Party arising out of or relating to another Party’s failure to perform its obligations under this Agreement.

5. Nothing in this Article shall be construed to create the basis for a claim or suit where none would otherwise exist.

2.2.9.2.1.1 LIABILITY (UNILATERAL WAIVER)

A. Partner hereby waives any claims against NASA or one or more of its Related Entities for any injury to, or death of, Partner or one or more of its Related Entities, or for damage to, or loss of, Partner’s property or the property of its Related Entities, arising from or related to activities conducted under this Agreement, whether such injury, death, damage, or loss arises through negligence or otherwise, except in the case of willful misconduct. For purposes of this Agreement, “Related Entities” shall mean contractors and subcontractors of a Party at any tier; grantees, investigators, customers, and users of a Party at any tier and their contractors or subcontractor at any tier; or, employees of the Party or any of the foregoing.

B. Partner further agrees to extend this unilateral waiver to its related entities by requiring them, by contract or otherwise, to waive all claims against NASA and its Related Entities for injury, death, damage, or loss arising from or related to activities conducted under this Agreement. In the event the U.S. Government incurs any liability based upon Partner’s failure to provide for the waiver by Partner’s Related Entities set out above, Partner agrees to indemnify and hold the U.S. Government harmless against such liability, including costs and expenses incurred by the U.S. Government in defending against any suit or claim for liability by Partner’s Related Entities.

C. In the event U.S. Government property is damaged as a result of activities conducted under this Agreement, except in the case of gross negligence or willful misconduct by NASA, Partner shall be solely responsible for the repair and restoration of such property subject to NASA direction. Prior to issuing such direction, NASA will consider input from Partner and other factors such as the extent to which damage was attributable to the activity and the respective responsibilities of each party as described in the agreement.

D. Notwithstanding the other provisions of this Article, the waiver of liability set forth in this section shall not be applicable to:

i. Claims between Partner and its own Related Entity or between its own Related Entities;

iii. Claims for damage caused by willful misconduct;

iv. Intellectual property claims;

v. Claims for damage resulting from a failure of Partner to extend the waiver of liability to its Related Entities, pursuant to paragraph B of this Article; or

vi. Claims by Partner arising out of or relating to NASA’s failure to perform its obligations under this Agreement.

2.2.9.2.1.2 LIABILITY (UNILATERAL WAIVER PARTNER LIABILITY CAP)

C. In the event U.S. Government property is damaged as a result of activities conducted under this Agreement except in the case of gross negligence or willful misconduct by NASA, Partner shall be solely responsible for the repair and restoration of such property subject to NASA direction. Prior to issuing such direction, NASA will consider input from Partner and other factors such as the extent to which damage was attributable to the activity and the respective responsibilities of each party as described in the agreement. Partner’s liability for such repair and restoration shall not exceed $[TBD].

D. Notwithstanding the other provisions of this Article, the waiver of liability set forth in this section shall not be applicable to:

i. Claims between Partner and its own Related Entity or between its own Related Entities;

iii. Claims for damage caused by willful misconduct;

iv. Intellectual property claims;

v. Claims for damage resulting from a failure of Partner to extend the waiver of liability to its Related Entities, pursuant to paragraph B of this Article; or

vi. Claims by Partner arising out of or relating to NASA’s failure to perform its obligations under this Agreement.

2.2.9.2.1.3 LIABILITY (ANNEX, UNILATERAL WAIVER PARTNER LIABILITY CAP)

For the responsibilities and activities conducted under this Annex, and any claims arising thereunder, the following sentence shall be added to the end of Paragraph C, Article 8 (titled “Liability”) of the Umbrella Agreement:

Partner’s liability for such repair and restoration shall not exceed $TBD.

PRODUCT LIABILITY

2.2.9.3.1 PRODUCT LIABILITY

With respect to products or processes resulting from a Party’s participation in an SAA, each Party that markets, distributes, or otherwise provides such product, or a product designed or produced by such a process, directly to the public will be solely responsible for the safety of the product or process.

2.2.9.3.2 PRODUCT LIABILITY INDEMNIFICATION

In the event the U.S. Government incurs any liability based upon Partner’s, or Partner’s Related Entity’s, use or commercialization of products or processes resulting from a Party’s participation under this Agreement, Partner agrees to indemnify and hold the U.S. Government harmless against such liability, including costs and expenses incurred by the U.S. Government in defending against any suit or claim for such liability.

LIABILITY – INSURANCE FOR DAMAGE TO NASA PROPERTY

2.2.9.4.1 LIABILITY (INSURANCE FOR DAMAGE TO NASA PROPERTY LOW-RISK ACTIVITIES)

A. Partner shall, at no cost to NASA, maintain throughout the term of the Agreement, insurance covering claims for bodily injury, personal injury, death, property damage, or other loss or damages arising from any activities conducted under this Agreement at such limits and upon such terms as are acceptable to NASA in its reasonable discretion, and shall provide NASA acceptable evidence of such insurance. Policy(ies) for property insurance must cover the cost of repair or replacement (as reasonably determined by NASA) of any U.S. Government property (real or personal) damaged as a result of activities conducted under this Agreement.

B. By signing this Agreement, Partner certifies that all insurance required under this Agreement is in effect, and is issued by companies with a credit rating of at least “A-” and a financial size category of at least “VIII” in the current edition of Best’s Insurance Reports (or its equivalent successor, or, if there is no equivalent successor rating, otherwise mutually acceptable to the Parties) and are licensed to do and doing business in all states in which activities will be conducted under the Agreement. NASA is not obligated to provide access to its facilities or equipment under this Agreement until and unless the insurance required by this section is in effect. Any deductibles selected by Partner for any insurance coverage shall be the sole responsibility of Partner.

2.2.9.4.2 LIABILITY (INSURANCE FOR DAMAGE TO NASA PROPERTY HIGHER-RISK ACTIVITIES)

A. Insurance to be Provided. Partner shall, at all times during the term of this Agreement and at Partner’s sole cost and expense, obtain and keep in force the insurance coverages and amounts set forth in this section:

1. Partner shall maintain commercial general liability insurance, including coverages for contractual liability covering Partner’s obligations under the Agreement, broad form property damage, fire legal liability, premises and operations, products and completed operations, and medical payments, with limits acceptable to NASA and on a per occurrence basis, but shall not exceed five-hundred million ($500,000,000.00) aggregate, and shall insure against claims for bodily injury, personal injury, death, property damage, or other loss or damages arising from any activities conducted under this Agreement, but excluding loss or damage caused by the U.S. Government’s willful misconduct. Any general aggregate shall apply on a per location basis. “Damage,” for the purposes of this section, shall mean damage to, loss of, or loss of use of any property; soil, sediment, surface water, ground water, or other environmental contamination or damage; other direct damages; or any indirect, or consequential damage arising therefrom.

The policy must cover the cost of replacing or repairing (payable on a “full replacement value” basis, as reasonably determined by NASA) any property (real or personal) damaged as a result of any activities conducted under this Agreement. The policy shall contain an exception to any pollution exclusion and insure damage or injury arising out of pollution, environmental effects, heat, smoke or fumes from a hostile fire.

2. Partner shall maintain business auto liability insurance with limits not less than one million dollars ($1,000,000.00) per accident covering any vehicle that Partner uses in connection with the activities conducted under this Agreement.

3. Partner shall maintain, and shall cause Partner’s Related Entities to maintain, worker’s compensation insurance in statutory limits as required by state law, and such other forms of insurance as may from time to time be required by applicable law or may otherwise be reasonably necessary to protect the U.S. Government from claims of any person who may at any time work for Partner under this Agreement, whether as a servant, agent, or employee of Partner, Partner’s Related Entities, or otherwise. In addition, Partner shall maintain employer’s liability insurance that affords coverage of not less than five hundred thousand dollars ($500,000.00) per occurrence.

4. Partner shall maintain all other insurance that Partner customarily maintains, consistent with Partner’s insurance program for other similar activities. NASA may from time to time request such reasonable evidence that such activities are being so insured by Partner.

B. Use of Proceeds. In addition to the other conditions and requirements for insurance policies set forth in this Article, Partner’s insurance policies shall satisfy the following conditions: The policy or policies evidencing property insurance shall provide that, in the event U.S. Government property is damaged as a result of activities conducted under this Agreement, the proceeds of the policy or policies shall be payable to Partner to be used solely for the repairs or replacement of the property damaged or destroyed, and Partner shall be solely responsible for the repair and restoration of such property subject to NASA direction, and any balance of the proceeds not required for such repairs or replacement shall remain with Partner. Nothing herein contained shall be construed as an obligation upon NASA to perform construction, improvements, repairs, or replacement of any property damaged in connection with the conduct of activities under this Agreement.

C. Insurance Requirements.

1. All insurance and all renewals thereof shall be issued by companies with a credit rating of at least “A-” and a financial size category of at least “VIII” in the current edition of Best’s Insurance Reports (or its equivalent successor, or, if there is no equivalent successor rating, otherwise mutually acceptable to the Parties) and be licensed to do and doing business in all states in which activities will be conducted under the Agreement.

2. Each policy shall be endorsed to provide that the policy shall not be canceled or materially altered without thirty (30) days prior written notice to NASA and shall remain in effect notwithstanding any such cancellation or alteration until such notice shall have been given to NASA and such period of thirty (30) days shall have expired; provided, however, if any insurance company of Partner agrees only to “endeavor” to notify NASA of cancellation or alteration of any such insurance policy, then it shall be the responsibility of Partner to notify NASA at least twenty (20) days prior to such cancellation or alteration of insurance coverage. Unless Partner provides evidence that such a condition in an insurance policy is not available at a reasonable premium, the insurance policy shall provide for the right of the U.S. Government to settle reasonably a claim after consultation with Partner and its underwriters.

3. The commercial general liability and any automobile liability insurance shall be endorsed to name NASA, and NASA’s Related Entities (and any other parties reasonably designated by NASA), as an additional insured and shall be primary and noncontributing with any insurance which may be carried by NASA or other such additional insureds, and shall afford coverage for all claims based on any act, omission, event or condition that occurred or arose (or the onset of which occurred or arose) during the policy period.

4. Partner shall deliver certificates of insurance and endorsements, acceptable to NASA, to NASA before the commencement of activities under this Agreement and at least ten (10) days before expiration of each policy. Such documents shall be delivered to the address for certificate holder set forth below. Each certificate of insurance shall list the certificate holder as follows:

National Aeronautics and Space Administration

Attn: Associate General Counsel (Commercial and Intellectual Property Law), Washington, D.C. 20546

Or, [Chief Counsel’s Office, where appropriate]

NASA shall be under no obligation to commence activities under the Agreement until Partner has obtained the insurance required by this section and NASA has accepted it.

5. If NASA at any time believes that the limits or extent of coverage or deductibles with respect to any of the insurance required in this Agreement are insufficient, NASA may determine the proper and reasonable limits and extent of coverage and deductibles for such insurance and such insurance shall thereafter be carried with the limits and extent of coverage and deductibles as so determined until further change pursuant to the provisions of this Agreement. Failure of NASA to demand certificate(s) or other evidence of full compliance with these insurance requirements or failure of NASA to identify a deficiency from evidence that is provided shall not be construed as a waiver of Partner’s obligation to maintain such insurance.

6. No approval by NASA of any insurer, or the terms or conditions of any policy, or any coverage or amount of insurance, or any deductible amount shall be construed as a representation by NASA of the solvency of the insurer or the sufficiency of any policy or any coverage or amount of insurance or deductible. By requiring insurance, NASA makes no representation or warranty that coverage or limits will necessarily be adequate to protect Partner, and such coverage and limits shall not be deemed as a limitation on Partner’s liability under any indemnities granted to NASA in this Agreement. Partner shall assess its own risks and if it deems appropriate and/or prudent, maintain higher limits and/or broader coverages.

D. Miscellaneous.

1. Partner’s insurance to be provided herein shall not be the exclusive recourse of the United States in the event damages exceed the amount of coverage. The United States reserves the right to bring an action against any responsible party for liability incurred by the United States under domestic or international law. All deductibles under any insurance policy described in this section shall be paid by Partner.

2. Each Party agrees to cooperate with the other in obtaining any information, data, reports, contracts, and similar materials in connection with the presentation or defense of any claim by either Party under any policy of insurance purchased to meet the requirements of this Article.

3. Partner shall procure from each of the insurers under all such policies of insurance a waiver of all rights of subrogation which the insurer might otherwise, if at all, have to any claims of Partner against the U.S. Government, its contractors or subcontractors at any tier, or Related Entities.

4. In the event Partner is unable to obtain one or more insurance coverages required hereunder, the Parties agree to consider, subject to review, approval and written agreement by NASA, alternative methods of mitigating risks (e.g., by acceptable self-insurance or purchase of an appropriate bond). An insurance policy whose terms and conditions are reviewed and approved by NASA, or an agreement on an alternative method of protection, is a condition precedent to Partner’s access to or use of U.S. Government property or U.S. Government services under this Agreement.

2.2.9.4.3 LIABILITY (PARTNER’S SELF-INSURANCE)

A. Partner shall submit, in writing, information on its proposed self-insurance program to NASA and obtain NASA’s approval of the program. The submission shall be by segment or segments of the Partner’s business to which the program applies and shall include:

1. A complete description of the program, including any resolution of the board of directors authorizing and adopting coverage, including types of risks, limits of coverage, assignments of safety and loss control, and legal service responsibilities;

2. If available, the corporate insurance manual and organization chart detailing fiscal responsibilities for insurance;

3. The terms regarding insurance coverage for any Government property;

4. The Partner’s latest financial statements;

5. Any self-insurance feasibility studies or insurance market surveys reporting comparative alternatives;

6. Loss history, premiums history, and industry ratios;

7 A formula for establishing reserves, including percentage variations between losses paid and losses reserved;

8. Claims administration policy, practices, and procedures;

9. The method of calculating the projected average loss; and

10. A disclosure of all captive insurance company and reinsurance agreements, including methods of computing cost.

B. Programs of self-insurance covering Partner’s insurable risks, including the deductible portion of purchased insurance, may be approved when examination of a program indicates that its application is in NASA’s interest.

C. Once NASA has approved a program, the Partner must submit to that official for approval any major proposed changes to the program. Any program approval may be withdrawn if NASA finds that either:

1. Any part of a program does not comply with the requirements of this Article; or

2. Conditions or situations existing at the time of approval that were a basis for original approval of the program have changed to the extent that a program change is necessary.

INTELLECTUAL PROPERTY RIGHTS – DATA RIGHTS

2.2.10.1.2 DATA RIGHTS WITH PROPRIETARY DATA EXCHANGE

A. General

1. “Contributing Entity” means a contractor, subcontractor, or other entity having a legal relationship with NASA or Partner that is assigned, tasked, or contracted to perform activities under this Agreement.

2. “Data” means recorded information, regardless of form, the media on which it is recorded, or the method of recording.

3. “Proprietary Data” means Data developed at private expense that embody trade secrets or are commercial or financial and confidential or privileged, and that includes a restrictive notice, unless the Data is:

a. known or available from other sources without restriction;

b. known, possessed, or developed independently;

c. made available by the owners to others without restriction; or

d. required by law or court order to be disclosed without restriction.

4. “Background Data” means Partner’s Proprietary Data developed outside of this Agreement.

5. “Third Party Proprietary Data” means Proprietary Data of third parties that disclosing Party has agreed to protect or where the Government is required to protect under federal law (e.g., 18 U.S.C. §1905).

6. “Controlled Government Data” means information the United States Government creates or possesses that requires safeguarding or dissemination controls.

7. Data exchanged under this Agreement is exchanged without restriction except as otherwise provided herein.

8. Notwithstanding any restrictions provided in this Article, the Parties are not restricted in the use, disclosure, or reproduction of Data provided under this Agreement that meets one of the exceptions in 3., above. If a Party believes that any exceptions apply, it shall notify the other Party before any unrestricted use, disclosure, or reproduction of the Data.

9. If the Parties exchange Data having a notice that the receiving Party deems is ambiguous or unauthorized, the receiving Party shall notify the disclosing Party. If the notice indicates a restriction, the receiving Party shall protect the Data under this Article until otherwise directed in writing by the disclosing Party.

10. The Data rights herein apply to the employees and Contributing Entities of Partner. Partner shall ensure that its employees and Contributing Entity employees know about and are bound by the obligations under this Article.

11. Disclaimer of Liability: Neither Party is restricted in, or liable for, the use, disclosure, or reproduction of Proprietary Data without a restrictive notice. NASA is not restricted in, or liable for, the use, disclosure, or reproduction of Data Partner gives, or is required to give, the U.S. Government without restriction.

12. Partner may use the following or a similar restrictive notice:

Proprietary Data Notice

The data herein include Proprietary Data and are restricted under the Intellectual Property – Data Rights provisions of Space Act Agreement [provide applicable identifying information].

Partner should also mark each page containing Proprietary Data with the following or a similar legend: “Proprietary Data – Use And Disclose Only Under the Notice on the Title or Cover Page.”

B. Data First Produced by Partner Under this Agreement

If Data first produced by Partner or its Contributing Entities under this Agreement is given to NASA, and the Data is Proprietary Data, and it includes a restrictive notice, NASA will use reasonable efforts to protect it. The Data will be disclosed and used (under suitable protective conditions) only for U.S. Government purposes.

C. Data First Produced by NASA Under this Agreement

If Partner requests that Data first produced by NASA under this Agreement be protected, and NASA determines it would be Proprietary Data if obtained from Partner, NASA will both mark it with a restrictive notice and use reasonable efforts to protect it for [insert a period of up to five years, typically one or two years] after its development. During this restricted period the Data may be disclosed and used (under suitable protective conditions) for U.S. Government purposes only, and thereafter for any purpose. Partner must not disclose the Data without NASA’s written approval during the restricted period. The restrictions placed on NASA do not apply to Data disclosing a NASA owned invention for which patent protection is being considered.

D. Publication of Results

The National Aeronautics and Space Act (51 U.S.C. § 20112) requires NASA to provide for the widest practicable and appropriate dissemination of information concerning its activities and the results thereof. As such, NASA may publish unclassified and non-Proprietary Data resulting from work performed under this Agreement. The Parties will coordinate publication of results allowing a reasonable time to review and comment.

E. Data Disclosing an Invention

If the Parties exchange Data disclosing an invention for which patent protection is being considered, and the disclosing Party identifies the Data as such when providing it to the receiving Party, the receiving Party shall withhold it from public disclosure for a reasonable time (one (1) year unless otherwise agreed or the Data is restricted for a longer period herein).

F. Copyright

Data exchanged with a copyright notice and with no restrictive notice is presumed to be published. The following royalty-free licenses apply:

1. If indicated on the Data that it was produced outside of this Agreement, it may be reproduced, distributed, and used to prepare derivative works only for carrying out the receiving Party’s responsibilities under this Agreement.

2. Data without the indication of F.1. is presumed to be first produced under this Agreement. Except as otherwise provided in paragraph E. of this Article, and in the Invention and Patent Rights Article of this Agreement for protection of reported inventions, the Data may be reproduced, distributed, and used to prepare derivative works for any purpose.

G. Data Subject to Export Control

Whether or not marked, data subject to the export laws and regulations of the United States provided to Partner under this Agreement must not be given to foreign persons or transmitted outside the United States without proper U.S. Government authorization.

H. Handling of Background, Third Party Proprietary, and Controlled Government Data

1. NASA or Partner (as disclosing Party) may provide the other Party or its Contributing Entities (as receiving Party) any Background Data, Controlled Government Data, and/or Third Party Proprietary Data, subject to the following conditions:

a. Background Data, Third Party Proprietary Data, and Controlled Government Data provided by disclosing Party to receiving Party shall be marked by disclosing Party with a restrictive notice; and

b. Background Data, Third Party Proprietary Data, and Controlled Government Data shall be identified in a separate technical document. The technical document should be comprehensive, should be kept current, and does not supersede any restrictive notice on the Data.

2. Notwithstanding H.3., NASA software and related Data will be provided to Partner under a separate Software Usage Agreement (SUA). Partner shall use and protect the software and related Data in accordance with the SUA. The NASA software and related Data expected to be provided is:

[insert name and NASA Case No. of the software; if none, insert “None.”]

3. For such Data identified with a restrictive notice pursuant to H.1, receiving Party shall:

a. Use, disclose, or reproduce such Data only as necessary under this Agreement;

b. Safeguard such Data from unauthorized use and disclosure;

c. Allow access to such Data only to its employees and any Contributing Entity requiring access under this Agreement, or as required by law or court order to be disclosed;

d. Except as otherwise indicated in 3.c., preclude disclosure outside receiving Party’s organization;

e. Notify its employees with access about their obligations under this Article and ensure their compliance, and notify any Contributing Entity with access about their obligations under this Article; and

f. Dispose of such Data as disclosing Party directs.

I. Oral and visual information

If either Party discloses Proprietary Data or Controlled Government Data orally or visually, the other Party will have no duty to restrict, or liability for disclosure or use, unless the disclosing party:

1. Orally informs the other Party before initial disclosure that the Data is Proprietary Data or Controlled Government Data, and

2. Reduces the Data to tangible form with a restrictive notice and gives it to the other Party within ten (10) calendar days after disclosure.

J. Classified Material

If classified material is used under this Agreement, Partner must provide a completed Contract Security Classification Specification (DD Form 254 or equivalent) to the NASA Point of Contact. Handling of classified material must be consistent with NASA and U.S Federal Government statutes, regulations, and policies.

2.2.10.1.2.U DATA RIGHTS WITH PROPRIETARY DATA EXCHANGE (UMBRELLA)

A. General

2. “Data” means recorded information, regardless of form, the media on which it is recorded, or the method of recording.

a. known or available from other sources without restriction;

b. known, possessed, or developed independently;

c. made available by the owners to others without restriction; or

d. required by law or court order to be disclosed without restriction.

4. “Background Data” means Partner’s Proprietary Data developed outside of this Agreement.

6. “Controlled Government Data” means information the United States Government creates or possesses that requires safeguarding or dissemination controls.

7. Data exchanged under this Agreement is exchanged without restriction except as otherwise provided herein.

12. Partner may use the following or a similar restrictive notice:

Proprietary Data Notice

The data herein include Proprietary Data and are restricted under the Intellectual Property – Data Rights provisions of Space Act Agreement [provide applicable identifying information].

Partner should also mark each page containing Proprietary Data with the following or a similar legend: “Proprietary Data – Use And Disclose Only Under the Notice on the Title or Cover Page.”

B. Data First Produced by Partner Under this Agreement

If Data first produced by Partner or its Contributing Entities under this Agreement is given to NASA, and the Data is Proprietary Data, and it includes a restrictive notice, NASA will use reasonable efforts to protect it. The Data will be disclosed and used (under suitable protective conditions) only for U.S. Government purposes.

C. Data First Produced by NASA Under this Agreement

If Partner requests that Data first produced by NASA under this Agreement be protected, and NASA determines it would be Proprietary Data if obtained from Partner, NASA will both mark the Data with a restrictive notice and use reasonable efforts to protect it for the period of time specified in the Annex under which the Data is produced. During this restricted period the Data may be disclosed and used (under suitable protective conditions) for U.S. Government purposes only, and thereafter for any purpose. Partner must not disclose the Data without NASA’s written approval during the restricted period. The restrictions placed on NASA do not apply to Data disclosing a NASA owned invention for which patent protection is being considered.