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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)

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).

2.2.6.6 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;

(c) A description of milestone event;

(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: 

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. 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.

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.

2.2.9.2.1.1 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;

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 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)

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. 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;

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 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

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 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.

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.FR.ALT-PPD DATA RIGHTS WITH PROPRIETARY DATA EXCHANGE (ALTERNATE FOR FULLY REIMBURSABLE, WHERE NASA DETERMINES THAT THE DATA PRODUCED UNDER THE AGREEMENT WOULD NOT BE NEEDED FOR ANY CURRENT OR FUTURE NASA ACTIVITIES.)

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 maintain the Data in confidence. Unless greater rights are otherwise permitted by Partner in writing, such Data will be disclosed and used by NASA and any Contributing Entity of NASA (under suitable protective conditions) only for carrying out NASA responsibilities under this Agreement for the entire term of this Agreement, and thereafter only for U.S. Government purposes (should NASA still have possession of the Data). At Partner’s written request, when no longer needed by NASA for the purpose of carrying out NASA responsibilities under this Agreement, such marked Data (or any portion thereof) will be destroyed or otherwise disposed of at any time before expiration of the entire term of the agreement as directed by partner.

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] after its development. During the restricted period, unless greater rights are otherwise permitted in writing by Partner, the Data may be disclosed and used by NASA and any Contributing Entity of NASA (under suitable protective conditions) only for carrying out NASA responsibilities under this Agreement, and thereafter for any purpose (should NASA still have possession of the Data).  At Partner’s written request, when no longer needed by NASA for the purpose of carrying out NASA responsibilities under this Agreement, such marked Data (or any portion thereof) will be destroyed or otherwise disposed of at any time before expiration of the restricted period as directed by Partner.

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.FR.ALT-PPD DATA RIGHTS WITH PROPRIETARY DATA EXCHANGE (ALTERNATE UMBRELLA)

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 maintain the Data in confidence. Unless greater rights are otherwise permitted by Partner in writing, such Data will be disclosed and used by NASA and any Contributing Entity of NASA (under suitable protective conditions) only for carrying out NASA responsibilities under this Agreement for the entire term of this Agreement, and thereafter only for U.S. Government purposes (should NASA still have possession of the Data). At Partner’s written request, when no longer needed by NASA for the purpose of carrying out NASA responsibilities under this Agreement, such marked Data (or any portion thereof) will be destroyed or otherwise disposed of at any time before expiration of the entire term of the agreement as directed by partner.

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] after its development. During the restricted period, unless greater rights are otherwise permitted in writing by Partner, the Data may be disclosed and used by NASA and any Contributing Entity of NASA (under suitable protective conditions) only for carrying out NASA responsibilities under this Agreement, and thereafter for any purpose (should NASA still have possession of the Data).  At Partner’s written request, when no longer needed by NASA for the purpose of carrying out NASA responsibilities under this Agreement, such marked Data (or any portion thereof) will be destroyed or otherwise disposed of at any time before expiration of the restricted period as directed by Partner.

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.

2.2.10.1.3 DATA RIGHTS WITH PROPRIETARY DATA EXCHANGE (REIMBURSABLE & FOREIGN ENTITY BENEFIT)

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 one (1) year 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 for 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  

1. NASA may provide export controlled data to Partner only upon obtaining proper U.S. Government authorization and any required export license(s) in compliance with the export laws and regulations of the United States.

2. If NASA provides export controlled data to Partner, Partner may provide the export controlled data to its employees who need it to perform Partner’s responsibilities under this Agreement.

3. Whether or not marked, Partner shall not, without proper U.S. Government authorization, provide any export controlled data provided to Partner under this Agreement to any foreign persons other than its employees under paragraph G.2. above, or transmit such export controlled data outside the United States.

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.

2.2.10.1.3.FR.ALT-PPD DATA RIGHTS WITH PROPRIETARY DATA EXCHANGE (ALTERNATE & FOREIGN ENTITY BENEFIT)

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 to be 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 unless 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, nor 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 maintain the Data in confidence. Unless greater rights are otherwise permitted by Partner in writing, such Data will be disclosed and used by NASA and any Contributing Entity of NASA (under suitable protective conditions) only for carrying out NASA responsibilities under this Agreement for the entire term of this Agreement, and thereafter only for U.S. Government purposes (should NASA still have possession of the Data). At Partner’s written request, when no longer needed by NASA for the purpose of carrying out NASA responsibilities under this Agreement, such marked Data (or any portion thereof) will be destroyed or otherwise disposed of at any time before expiration of the entire term of the agreement as directed by partner.

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 (1) year after its development. During the restricted period, unless greater rights are otherwise permitted in writing by Partner, the Data may be disclosed and used by NASA and any Contributing Entity of NASA (under suitable protective conditions) only for carrying out NASA responsibilities under this Agreement, and thereafter for any purpose (should NASA still have possession of the Data).  At Partner’s written request, when no longer needed by NASA for the purpose of carrying out NASA responsibilities under this Agreement, such marked Data (or any portion thereof) will be destroyed or otherwise disposed of at any time before expiration of the restricted period as directed by Partner.  

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 for 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 Inventions 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  

1. NASA may provide export controlled data to Partner only upon obtaining proper U.S. Government authorization and any required export license(s) in compliance with the export laws and regulations of the United States.

2. If NASA provides export controlled data to Partner, Partner may provide the export controlled data to its employees who need it to perform Partner’s responsibilities under this Agreement.

3. Whether or not marked, Partner shall not, without proper U.S. Government authorization, provide any export controlled data provided to Partner under this Agreement to any foreign persons other than its employees under paragraph G.2. above, or transmit such export controlled data outside the United States.

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.

2.2.10.1.2.1 DATA RIGHTS WITH PROPRIETARY DATA EXCHANGE (ANNEX)

A.  Data produced under this Annex which is subject to paragraph C. of the Intellectual Property Rights – Data Rights Article of the Umbrella Agreement will be protected for the period of [insert a period of up to five years, typically one or two years].

B.  Under paragraph H. of the Intellectual Property Rights – Data Rights Article of the Umbrella Agreement, Disclosing Party provides the following Data to Receiving Party. The lists below may not be comprehensive, are subject to change, and do not supersede any restrictive notice on the Data provided.

1. Background Data:

The Disclosing Party’s Background Data, if any, will be identified in a separate technical document.

2. Third Party Proprietary Data:  

The Disclosing Party’s Third Party Proprietary Data, if any, will be identified in a separate technical document.

3. Controlled Government Data:  

The Disclosing Party’s Controlled Government Data, if any, will be identified in a separate technical document.

4. The following software and related Data will be provided to Partner under a separate Software Usage Agreement:  

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

2.2.10.1.5 DATA RIGHTS WITH PROPRIETARY DATA EXCHANGE (FUNDED)

A. General

1. “Contributing Entity” as used in this Data Rights Article, means a contractor, subcontractor, grantee, or other entity having a legal relationship with NASA or Partner that is assigned, tasked, or contracted with 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 embodying trade secrets or commercial or financial information that is privileged or confidential, 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, and without reference to the Proprietary Data;

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

d. required by law or court order to be disclosed.

4. “Practical Application,” as used in this Data Rights Article, means to:

a.   manufacture, in the case of a composition or product;

b. practice, in the case of a process or method; or

c. operate, in case of a machine or system;

and, in each case, under conditions establishing the invention, hardware, software, or service is being used, and its benefits are publicly available on reasonable terms, as permitted by law.

5. Data exchanged between NASA and Partner under this Agreement will be exchanged without restriction except as otherwise provided herein.

6. 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.

7. The Parties will not exchange preexisting Proprietary Data under this Agreement unless authorized herein or in writing by the owner.

8. If the Parties exchange Data having a notice that the Receiving Party deems is ambiguous or unauthorized, the Receiving Party shall tell the Providing Party. If the notice indicates a restriction, the Receiving Party shall protect the Data under this Article unless otherwise directed in writing by the Providing Party.

9. 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.

10. Disclaimer of Liability: Neither Party is restricted in, nor 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.

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

Proprietary Data Notice

The data herein include Proprietary Data and are restricted under the Data Rights provisions of 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

(1) 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. Partner shall furnish such Data to NASA upon request and NASA may disclose and use such Data (under suitable protective conditions) only for evaluating Partner’s performance of its milestones and validating the objectives of [PROJECT].

(2) Upon a successful completion by Partner of all milestones under this Agreement, NASA shall not assert rights in such Data or use such Data for any purpose except that NASA retains the right to: (1) maintain a copy of such Data for archival purposes; (2) use or disclose such archived data within the Government for continued validating and updating of the objectives of [PROJECT]; and (3) may use or disclose such archived Data by or on behalf of NASA for Government purposes in the event the NASA determines that:

(a) Such action is necessary because Partner, its assignee, or other successor has not taken, or is not expected to take within a reasonable time, effective steps to achieve practical application of inventions, hardware, software, or service related to such Data;

(b) Such action is necessary because Partner, its assignee, or other successor, having achieved practical application of inventions, hardware, software, or service related to such Data, has failed to maintain practical application;

(c) Such action is necessary because Partner, its assignee, or other successor has discontinued making the benefits of inventions, hardware, software, or service related to such Data available to the public or to the Federal Government;

(d) Such action is necessary to alleviate health or safety needs which are not reasonably satisfied by Partner, its assignee, or other successor; or

(e) Such action is necessary to meet requirements for public use specified by Federal regulations and such requirements are not reasonably satisfied by Partner, its assignee, or successor.

In the event NASA determines that one of the circumstances listed in subparagraphs (a)-(e) above exists, NASA shall provide written notification to the Partner’s Administrative Point of Contact. Upon mailing of such determination, Partner shall have thirty (30) days to respond by providing its objection to the determination as a dispute under the Article entitled “DISPUTE RESOLUTION” of this Agreement. In the event that Partner does not respond in writing to NASA’s determination, then such determination shall serve as a final agency decision for all purposes including judicial review.

(3) In the event NASA terminates this Agreement in accordance with “RIGHT TO TERMINATE” Section B, “Termination for Failure to Perform”, NASA may in its sole discretion have the right to use, reproduce, prepare derivative works, distribute to the public, perform publicly, display publicly, or disclose Data first produced by Partner in carrying out Partner’s responsibilities under this Agreement by or on behalf of NASA for Government purposes. The parties will negotiate rights in Data in the event of termination for any other reason.

C. Data First Produced by NASA under this Agreement

(1) As to Data first produced by NASA in carrying out NASA responsibilities under this Agreement that would be Proprietary Data if it had been obtained from Partner, such Data will be appropriately marked with a restrictive notice and NASA will use reasonable efforts to maintain it in confidence for [insert a period of up to five years] after its development, with the express understanding that during the aforesaid restricted period such marked Data may be disclosed and used by NASA and any Contributing Entity of NASA (under suitable protective conditions) only for carrying out NASA’s responsibilities under this Agreement, and thereafter for any purpose.  Partner will use reasonable efforts not to 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.

(2) Upon a successful completion by Partner of all milestones under this Agreement, NASA shall not assert rights in such Data  or use such Data for any purpose except that NASA retains the right to: (1) maintain a copy of such Data for archival purposes; (2) use or disclose such archived data within the Government for continued validating and updating of the objectives of [PROJECT]; and (3) may use or disclose such archived Data by or on behalf of NASA for Government purposes in the event the NASA determines that:

(a) Such action is necessary because Partner, its assignee, or other successor has not taken, or is not expected to take within a reasonable time, effective steps to achieve practical application of inventions, hardware, software, or service related to such Data;

(b) Such action is necessary because Partner, its assignee, or other successor, having achieved practical application of inventions, hardware, software, or service related to such Data, has failed to maintain practical application;

(c) Such action is necessary because Partner, its assignee, or other successor has discontinued making the benefits of inventions, hardware, software, or service related to such Data available to the public or to the Federal Government;

(d) Such action is necessary to alleviate health or safety needs which are not reasonably satisfied by Partner, its assignee, or other successor; or

(e) Such action is necessary to meet requirements for public use specified by Federal regulations and such requirements are not reasonably satisfied by Partner, its assignee, or successor.

In the event NASA determines that one of the circumstances listed in subparagraphs (a)-(e) above exists, NASA shall provide written notification to the Partner’s Administrative Point of Contact. Upon mailing of such determination, Partner shall have thirty (30) days to respond by providing its objection to the determination as a dispute under the Article entitled “DISPUTE RESOLUTION” of this Agreement. In the event that Partner does not respond in writing to NASA’s determination, then such determination shall serve as a final agency decision for all purposes including judicial review.

(3) In the event NASA terminates this Agreement in accordance with “RIGHT TO TERMINATE” Section B, “Termination for Failure to Perform”, NASA may in its sole discretion have the right to use, reproduce, prepare derivative works, distribute to the public, perform publicly, display publicly, or disclose Data first produced by NASA in carrying out NASA’s responsibilities under this Agreement by or on behalf of NASA for Government purposes during any remaining portion of the restricted period, and thereafter for any purpose. The parties will negotiate rights in Data in the event of termination for any other reason.

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 furnishing 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” 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, technical 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):

a. Proprietary Data developed at Disclosing Party’s expense outside of this Agreement (referred to as Background Data);

b. Proprietary Data of third parties that Disclosing Party has agreed to protect, or is required to protect under the Trade Secrets Act (18 U.S.C. § 1905) (referred to as Third Party Proprietary Data); and

c. U.S. Government Data, including software and related Data, Disclosing Party intends to control (referred to as Controlled Government Data).

2. All Background, Third-Party Proprietary, and Controlled Government Data provided by Disclosing Party to Receiving Party shall be marked by Disclosing Party with a restrictive notice and protected by Receiving Party in accordance with this Article.

3. Disclosing Party provides the following Data to Receiving Party. The lists below may not be comprehensive, are subject to change, and do not supersede any restrictive notice on the Data.

a. Background Data:

The Disclosing Party’s Background Data, if any, will be identified in a separate document.

b. Third Party Proprietary Data:

The Disclosing Party’s Third-Party Proprietary Data, if any, will be identified in a separate document.

c. Controlled Government Data:

The Disclosing Party’s Controlled Government Data, if any, will be identified in a separate document.

d. Notwithstanding H.4., NASA software and related Data will be provided to Partner under a separate Software Usage Agreement (SUA). Partner shall use and protect the related Data in accordance with this Article. Unless the SUA authorizes retention, or Partner enters into a license under 37 C.F.R. Part 404, the related Data shall be disposed of as NASA directs:

[Insert name and NASA Case # of the software; if none, insert “None.”]

4. For such Data identified with a restrictive notice pursuant to H.2., 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;

d. Except as otherwise indicated in 4.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 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, 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

2.2.10.1.4 FREE EXCHANGE OF DATA

Information and data exchanged under this Agreement is exchanged without restrictions unless required by national security regulations (e.g., classified information) or as otherwise provided in this Agreement or agreed to by the Parties for specifically identified information or data (e.g., information or data specifically marked with a restrictive notice).

2.2.10.2 RIGHTS IN RAW DATA

A.  Raw Data 

Raw data (i.e., unanalyzed data) and related Data produced under this Agreement is reserved to Principal Investigators (and Co-Investigators if any) named in this Agreement for scientific analysis and first publication rights for [insert a period of time generally not more than one year] beginning with receipt of the Data in a form suitable for analysis.  Subject to the provisions of the Intellectual Property Rights – Data Rights Article of this Agreement, NASA and Partner may also use the Data during the restricted period. This use will not prejudice the investigators’ first publication rights.

B.  Final Results

1. Final results shall be made available to the scientific community through publication in appropriate journals or other established channels as soon as practicable and consistent with good scientific practice.  Under the Publication of Results provision of the Intellectual Property Rights – Data Rights Article of this Agreement, the Parties shall coordinate proposed publications allowing a reasonable time for review and comment.   

2. NASA and Partner have a royalty-free right to reproduce, distribute, and use published final results for any purposes. Partner must notify publisher of NASA’s rights.

INTELLECTUAL PROPERTY RIGHTS – INVENTION AND PATENT RIGHTS

2.2.10.3.1 INVENTION & PATENT RIGHTS (LOW PROBABILITY OF INVENTION)

A.  “Contributing Entity” as used in this Invention and Patent Rights Article means a contractor, subcontractor, grantee, or other entity having a legal relationship with NASA or Partner assigned, tasked, or contracted with to perform activities under this Agreement.

B.  The invention and patent rights herein apply to 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.

C.  NASA has determined that 51 U.S.C. § 20135(b) does not apply to this Agreement.  Therefore, title to inventions made (conceived or first actually reduced to practice) under this Agreement remain with the respective inventing party(ies).  No invention or patent rights are exchanged or granted under this Agreement. NASA and Partner will use reasonable efforts to report inventions made jointly by their employees (including employees of their Contributing Entities). The Parties will consult and agree on the responsibilities and actions to establish and maintain patent protection for joint invention, and on the terms and conditions of any license or other rights exchanged or granted between them.

2.2.10.3.2 INVENTION & PATENT RIGHTS (HIGHER PROBABILITY OF INVENTION)

A.   General

1. NASA has determined that 51 U.S.C. § 20135(b) does not apply to this Agreement.  Therefore, title to inventions made (conceived or first actually reduced to practice) under this Agreement remain with the respective inventing party(ies). No invention or patent rights are exchanged or granted under this Agreement, except as provided herein.

2.  “Contributing Entity” as used in this Invention and Patent Rights Article means a contractor, subcontractor, grantee, or other entity having a legal relationship with NASA or Partner assigned, tasked, or contracted with to perform activities under this Agreement.

3. The invention and patent rights herein apply to 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.

B.  NASA Inventions 

NASA will use reasonable efforts to report inventions made under this Agreement by its employees.  Upon request, NASA will use reasonable efforts to grant Partner, under 37 C.F.R. Part 404, a negotiated license to any NASA invention made under this Agreement.  This license is subject to paragraph E.1. of this Article.

C.  NASA Contributing Entity Inventions 

NASA will use reasonable efforts to report inventions made under this Agreement by its Contributing Entity employees, or jointly between NASA and Contributing Entity employees, where NASA has the right to acquire title.  Upon request, NASA will use reasonable efforts to grant Partner, under 37 C.F.R. Part 404, a negotiated license to any of these inventions where NASA has acquired title.  This license is subject to paragraph E.2. of this Article.

D.  Joint Inventions With Partner 

The Parties will use reasonable efforts to report, and cooperate in obtaining patent protection on, inventions made jointly between NASA employees, Partner employees, and employees of either Party’s Contributing Entities.  Upon timely request, NASA may, at its sole discretion and subject to paragraph E. of this Article:

1. refrain from exercising its undivided interest inconsistently with Partner’s commercial business; or

2. use reasonable efforts to grant Partner, under 37 C.F.R. Part 404, an exclusive or partially exclusive negotiated license.

E.  Rights to be Reserved in Partner’s License 

Any license granted Partner under paragraphs B., C., or D. of this Article is subject to the following:

1. For inventions made solely or jointly by NASA employees, NASA reserves the irrevocable, royalty-free right of the U.S. Government to practice the invention or have it practiced on behalf of the United States or on behalf of any foreign government or international organization pursuant to any existing or future treaty or agreement with the United States.

2. For inventions made solely or jointly by employees of a NASA Contributing Entity, NASA reserves the rights in 1. above, and a revocable, nonexclusive, royalty-free license retained by the Contributing Entity under 14 C.F.R. § 1245.108 or 37 C.F.R. § 401.14 (e).

F.  Protection of Reported Inventions 

For inventions reported under this Article, the Receiving Party shall withhold all invention reports or disclosures from public access for a reasonable time (1 year unless otherwise agreed or unless restricted longer herein) to facilitate establishment of patent rights.

G.  Patent Filing Responsibilities and Costs 

1. The invention and patent rights herein apply to any patent application or patents covering an invention made under this Agreement.  Each Party is responsible for its own costs of obtaining and maintaining patents covering sole inventions of its employees. The Parties may agree otherwise, upon the reporting of any invention (sole or joint) or in any license granted. 

2. Partner shall include the following in patent applications for an invention made jointly between NASA employees, its Contributing Entity employees and Partner employees:

The invention described herein may be manufactured and used by or for the U.S. Government for U.S. Government purposes without the payment of royalties thereon or therefore.

[Note: Partner should be informed that it can locate NASA technology available for licensing by visiting the following website address – http://technology.nasa.gov.]

2.2.10.3.3 INVENTION & PATENT RIGHTS (TITLE TAKING)

A.  Definitions

1. “Administrator” means the Administrator of the National Aeronautics and Space Administration (NASA) or duly authorized representative.

2. “Patent Representative” means the NASA [enter Center name] Patent Counsel (or Chief Counsel at Centers with no Patent Counsel). Send Patent Representative correspondence to:

Patent Counsel [or enter other NASA official if no Patent Counsel]

[enter mailing address]

3. “Invention” means any invention or discovery which is or may be patentable or otherwise protectable under Title 35 of the U.S.C.

4. “Made,” in relation to any invention, means the conception or first actual reduction to practice.

5. “Practical application” means to:

    a. manufacture, in the case of a composition or product;

    b. practice, in the case of a process or method; or

    c. operate, in case of a machine or system;

in each case, under conditions establishing the invention is being used, and its benefits are publicly available on reasonable terms, as permitted by law.

6. “Contributing Entity” as used in this Invention and Patent Rights Article means a contractor, subcontractor, grantee, or other entity having a legal relationship with NASA or Partner assigned, tasked, or contracted with to perform activities under this Agreement.

7. “Manufactured substantially in the United States” means over fifty percent (50%) of a product’s components are manufactured in the United States.  This requirement is met if the cost to Partner of the components mined, produced, or manufactured in the United States exceeds fifty percent (50%) percent of the cost of all components (considering only the product and its components).  This includes transportation costs to the place of incorporation into the product and any applicable duty (whether or not a duty-free entry certificate is issued).  Components of foreign origin of the same class or kind for which determinations under Federal Acquisition Regulation 25.103(a) and (b) exist, are treated as domestic.  Scrap generated, collected, and prepared for processing in the United States is considered domestic.

B.  Allocation of principal rights

1. Presumption of NASA title in Partner inventions.

a. Partner inventions under this Agreement are presumed made as specified in subparagraphs (A) or (B) of 51 U.S.C. § 20135(b)(1). The above presumption is conclusive unless Partner’s invention disclosure to the Patent Representative includes a written statement with supporting details, demonstrating that the invention was not made as specified above.

b. Regardless of whether title to such an invention is subject to an advance waiver or a petition for individual waiver, Partner may still file the statement in B.1.a..  The Administrator (or Administrator’s designee) will review the information from Partner and any other related information and will notify Partner of his or her determination.

2. NASA Property rights in Partner inventions.  Inventions made under this Agreement where the presumption of paragraph B.1.a. of this Article is conclusive or when a determination exists that it was made under subparagraphs (A) or (B) of 51 U.S.C. § 20135(b)(1) are the exclusive property of the United States as represented by NASA. The Administrator may waive all or any part of the United States’ rights to Partner, as provided in paragraph B.3. of this Article.

3. Waiver of property rights by NASA.

a. NASA Patent Waiver Regulations, 14 C.F.R. Part 1245, Subpart 1, use Presidential Memorandum on Government Patent Policy of February 18, 1983 as guidance in processing petitions for waiver of rights under 51 U.S.C. § 20135(g) for any invention or class of inventions made or that may be made under subparagraphs (A) or (B) of 51 U.S.C. § 20135(b)(1).

b. Under 14 C.F.R. Part 1245, Subpart 1, Partner may petition, prior to execution of the Agreement or within thirty (30) days after execution, for advance waiver of any inventions Partner may make under this Agreement.  If no petition is submitted, or if petition is denied, Partner (or an employee inventor of Partner) may still petition for waiver of rights to an identified subject invention within eight (8) months after disclosure under paragraph E.2. of this Article, or within such longer period if authorized under 14 C.F.R.§ 1245.105.  See paragraph J. of this Article for procedures.

4. NASA inventions.

a. No invention or patent rights in NASA or its Contributing Entity’s inventions are exchanged or granted under this Agreement except as provided herein.

b. Upon request, NASA will use reasonable efforts to grant Partner a negotiated license, under 37 C.F.R. Part 404, to any NASA invention made under this Agreement.   

c. Upon request, NASA will use reasonable efforts to grant Partner a negotiated license, under 37 C.F.R. Part 404, to any invention made under this Agreement by employees of a NASA Contributing Entity, or jointly between NASA and NASA Contributing Entity employees, where NASA has title.

C.  Minimum rights reserved by the Government

1. For Partner inventions subject to a NASA waiver of rights under 14 C.F.R. Part 1245, Subpart 1, the Government reserves:

a. an irrevocable, royalty-free license to practice the invention throughout the world by the United States or any foreign government under any treaty or agreement with the United States; and

b. other rights as stated in 14 C.F.R. § 1245.107.

2. Nothing in this paragraph grants to the Government any rights in inventions not made under this Agreement.

D.  Minimum rights to Partner

1. Partner is granted a revocable, nonexclusive, royalty-free license in each patent application or patent in any country on an invention made by Partner under this Agreement where the Government has title, unless Partner fails to disclose the invention within the time limits in paragraph E.2. of this Article.  Partner’s license extends to its domestic subsidiaries and affiliates within its corporate structure. It includes the right to grant sublicenses of the same scope if Partner was legally obligated to do so at the time of this Agreement.  The license is transferable only with approval of the Administrator except to a successor of that part of Partner’s business to which the invention pertains.

2. Partner’s domestic license may be revoked or modified by the Administrator but only if necessary to achieve expeditious practical application of the invention where a third party applies for an exclusive license under 37 C.F.R. Part 404.  The license will not be revoked in any field of use or geographic area where Partner has achieved practical application and continues to make the benefits of the invention reasonably accessible to the public.  A license in any foreign country may be revoked or modified at the discretion of the Administrator if Partner, its licensees, or its domestic subsidiaries or affiliates fail to achieve practical application in that country.

3. Before revocation or modification, Partner will receive written notice of the Administrator‘s intentions. Partner has thirty (30) days (or such other time as authorized by the Administrator) to show cause why the license should not be revoked or modified.  Partner may appeal under 14 C.F.R. § 1245.112.

E.  Invention disclosures and reports

1. Partner shall establish procedures assuring that inventions made under this Agreement are internally reported within six (6) months of conception or first actual reduction to practice, whichever occurs first.  These procedures shall include the maintenance of laboratory notebooks or equivalent records, other records reasonably necessary to document the conception or the first actual reduction to practice of inventions, and records showing that the procedures were followed.  Upon request, Partner shall give the Patent Representative a description of such procedures for evaluation.

2. Partner shall disclose an invention to the Patent Representative within two (2) months after the inventor discloses it in writing internally or, if earlier, within six (6) months after Partner becomes aware of the invention. In any event, disclosure must be before any sale, or public use, or publication known to Partner.  Partner shall use the NASA New Technology Reporting system at https://invention.nasa.gov.  Invention disclosures shall identify this Agreement and be sufficiently complete in technical detail to convey a clear understanding of the nature, purpose, operation, and physical, chemical, biological, or electrical characteristics of the invention.  The disclosure shall also identify any publication, or sale, or public use of the invention, and whether a manuscript describing the invention was submitted or accepted for publication. After disclosure, Partner shall promptly notify NASA of the acceptance for publication of any manuscript describing an invention, or of any sale or public use planned by Partner.

3. Partner shall give NASA Patent Representative:

a. Interim reports every twelve (12) months (or longer period if specified by Patent Representative) from the date of this Agreement, listing inventions made under this Agreement during that period, and certifying that all inventions were disclosed (or there were no such inventions) and that the procedures of paragraph E.1. of this Article were followed.

b. A final report, within three (3) months after completion of this Agreement, listing all inventions made or certifying there were none, and listing all subcontracts or other agreements with a Contributing Entity containing a Patent and Invention Rights Article (as required under paragraph G of this Article) or certifying there were none.

c. Interim and final reports shall be submitted at https://invention.nasa.gov.

4. Partner shall provide available additional technical and other information to the NASA Patent Representative for the preparation and prosecution of a patent application on any invention made under this Agreement where the Government retains title. Partner shall execute all papers necessary to file patent applications and establish the Government‘s rights.

5. Protection of reported inventions.  NASA will withhold disclosures under this Article from public access for a reasonable time (1 year unless otherwise agreed or unless restricted longer herein) to facilitate establishment of patent rights.

6. The contact information for the NASA Patent Representatives is provided at https://prod.nais.nasa.gov/pub/pub_library/techrep.html.

F.  Examination of records relating to inventions

1. The Patent Representative or designee may examine any books (including laboratory notebooks), records, and documents of Partner relating to the conception or first actual reduction to practice of inventions in the same field of technology as the work under this Agreement to determine whether:

a. Any inventions were made under this Agreement;

b. Partner established the procedures in paragraph E.1. of this Article; and

c. Partner and its inventors complied with the procedures.

2. If the Patent Representative learns of an unreported Partner invention he or she believes was made under this Agreement, he or she may require disclosure to determine ownership rights.

3. Examinations under this paragraph are subject to appropriate conditions to protect the confidentiality of information.

G.  Subcontracts or Other Agreements

1. a. Unless otherwise directed by Patent Representative, Partner shall include this Invention and Patent Rights Article (modified to identify the parties) in any subcontract or other agreement with a Contributing Entity (regardless of tier) for the performance of experimental, developmental, or research work.

b. For subcontracts or other agreements at any tier, NASA, the Contributing Entity, and Partner agree that the mutual obligations created herein constitute privity of contract between the Contributing Entity and NASA with respect to matters covered by this Article.

2. If a prospective Contributing Entity refuses to accept the Article, Partner:

a. shall promptly notify Patent Representative in writing of the prospective Contributing Entity’s reasons for refusal and other information supporting disposition of the matter; and

b. shall not proceed without Patent Representative’s written authorization.

3. Partner shall promptly notify Patent Representative in writing of any subcontract or other agreement with a Contributing Entity (at any tier) containing an Invention and Patent Rights Article. The notice shall identify:

a. the Contributing Entity;

b. the applicable Invention and Patent Rights Article;

c. the work to be performed; and

d. the dates of award and estimated completion. 

Upon request, Partner shall give a copy of the subcontract or other agreement to Patent Representative.

4. In any subcontract or other agreement with Partner, a Contributing Entity retains the same rights provided Partner in this Article. Partner shall not require any Contributing Entity to assign its rights in inventions made under this Agreement to Partner as consideration for awarding a subcontract or other agreement.

5. Notwithstanding paragraph G.4., in recognition of Partner’s substantial contribution of funds, facilities or equipment under this Agreement, Partner may, subject to the NASA’s rights in this Article:

a. acquire by negotiation rights to inventions made under this Agreement by a Contributing Entity that Partner deems necessary to obtaining and maintaining private support; and

b. if unable to reach agreement under paragraph G.5.a. of this Article, request from Patent Representative that NASA provide Partner such rights as an additional reservation in any waiver NASA grants the Contributing Entity under NASA Patent Waiver Regulations, 14 C.F.R. Part 1245, Subpart 1.  Partner should advise the Contributing Entity that unless it requests a waiver, NASA acquires title to all inventions made under this Agreement.  If a waiver is not requested, or is not granted, Partner may then request a license from NASA under 37 C.F.R. Part 404.  A Contributing Entity requesting waiver must follow the procedures in paragraph J. of this Article.

H.  Preference for United States manufacture

Products embodying inventions made under this Agreement or produced using the inventions shall be manufactured substantially in the United States.  Patent Representative may waive this requirement if domestic manufacture is not commercially feasible.

I.  March-in rights

For inventions made under this Agreement where Partner has acquired title, NASA has the right under 37 C.F.R. § 401.6, to require Partner, or an assignee or exclusive licensee of the invention, to grant a nonexclusive, partially exclusive, or exclusive license in any field of use to responsible applicant(s), upon reasonable terms. If Partner, assignee or exclusive licensee refuses, NASA may grant the license itself, if necessary:

1. because Partner, assignee, or exclusive licensee has not, or is not expected within a reasonable time, to achieve practical application in the field of use;

2. to alleviate health or safety needs not being reasonably satisfied by Partner, assignee, or exclusive licensee;

3. to meet requirements for public use specified by Federal regulations being not reasonably satisfied by Partner, assignee, or exclusive licensee; or

4. because the requirement in paragraph H of this Article was not waived, and Partner, assignee, or exclusive licensee of the invention in the United States is in breach of the requirement.

J.  Requests for Waiver of Rights

1. Under NASA Patent Waiver Regulations, 14 C.F.R. Part 1245, Subpart 1, an advance waiver may be requested prior to execution of this Agreement, or within thirty (30) days afterwards.  Waiver of an identified invention made and reported under this Agreement may still be requested, even if a request for an advance waiver was not made or was not granted.

2. Each request for waiver is by petition to the Administrator and shall include:

a. an identification of the petitioner, its place of business and address;

b. if petitioner is represented by counsel, the name, address, and telephone number of counsel;

c. the signature of the petitioner or authorized representative; and

d. the date of signature. 

3. No specific form is required, but the petition should also contain:

a. a statement that waiver of rights is requested under the NASA Patent Waiver Regulations;

b. a clear indication of whether the petition is an advance waiver or a waiver of an individual identified invention;

c. whether foreign rights are also requested and for which countries;

d. a citation of the specific section(s) of the regulations under which are requested;

e. whether the petitioner is an entity of or under the control of a foreign government; and

f. the name, address, and telephone number of the petitioner’s point-of-contact.

4. Submit petitions for waiver to the Patent Representative for forwarding to the Inventions and Contributions Board.  If the Board makes findings to support the waiver, it recommends to the Administrator that waiver be granted. The Board also informs Patent Representative if there is insufficient time or information to process a petition for an advance waiver without unduly delaying the execution of the Agreement. Patent Representative will notify petitioner of this information.  Once a petition is acted on, the Board notifies petitioner. If waiver is granted, any conditions, reservations, and obligations are included in the Instrument of Waiver.  Petitioner may request reconsideration of Board recommendations adverse to its request.

2.2.10.3.4 INVENTION & PATENT RIGHTS (FUNDED)

A. Definitions

1. “Administrator,” means the Administrator of the National Aeronautics and Space Administration (NASA) or duly authorized representative.

2. “Patent Representative” means the NASA [HQ or Center] Patent Counsel. Correspondence with the Patent Representative under this clause will be sent to:

Agency Counsel for Intellectual Property (HQ) or [Center] Patent Counsel Office of the Chief Counsel

[insert address]

3. “Invention,” means any invention or discovery that is or may be patentable or otherwise protectable under title 35 of the U.S.C.

4. “Made,” in relation to any invention, means the conception or first actual reduction to practice.

5. “Practical Application,” means to:

a. manufacture, in the case of a composition or product;

b. practice, in the case of a process or method; or

c. operate, in case of a machine or system;

and, in each case, under conditions establishing the invention is being used, and its benefits are publicly available on reasonable terms, as permitted by law.

6. “Contributing Entity” as used in this Invention and Patent Rights Article, means a contractor, subcontractor, grantee, or other entity having a legal relationship with NASA or Partner assigned, tasked, or contracted with to perform activities under this Agreement.

7. “Manufactured substantially in the United States” means over fifty percent (50%) of a product’s components are manufactured in the United States. This requirement is met if the cost to Partner of the components mined, produced, or manufactured in the United States exceeds fifty percent (50%) percent of the cost of all components (considering only the product and its components). This includes transportation costs to the place of incorporation into the product and any applicable duty (whether or not a duty-free entry certificate is issued). Components of foreign origin of the same class or kind for which determinations under Federal Acquisition Regulation 25.103(a) and (b) exist, are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic.

B. Allocation of principal rights

1. Presumption of NASA title in Partner inventions

a. Partner inventions under this Agreement are presumed made as specified in subparagraphs (A) or (B) of 51 U.S.C. § 20135(b)(1). The above presumption is conclusive unless Partner’s invention disclosure to the Patent Representative includes a written statement with supporting details, demonstrating that the invention was not made as specified above.

b. Regardless of whether title to such an invention is subject to an advance waiver or a petition for individual waiver, Partner may still file the statement in B.1.a. The Administrator (or Administrator’s designee) will review the information from Partner and any other related information and will notify Partner of his or her determination.

2. NASA Property rights in Partner inventions

Inventions made under this Agreement where the presumption of paragraph B.1.a. of this Article is conclusive or when a determination exists that it was made under subparagraphs (A) or (B) of 51 U.S.C. § 20135(b)(1) are the exclusive property of the United States as represented by NASA. The Administrator may waive all or any part of the United States’ rights to Partner, as provided in paragraph B.3. of this Article.

3. Waiver of property rights by NASA

a. NASA Patent Waiver Regulations, 14 C.F.R. Part 1245, Subpart 1, use Presidential Memorandum on Government Patent Policy of February 18, 1983 as guidance in processing petitions for waiver of rights under 51 U.S.C. § 20135(g) for any invention or class of inventions made or that may be made under subparagraphs (A) or (B) of 51 U.S.C. § 20135(b)(1).

b. NASA has determined that to stimulate and support the capability of a United States [provide the purpose of the PROJECT] to the public and the Federal Government, the interest of the United States would be served by waiving to Partner, in accordance with 51 U.S.C. § 20135(g) and the provisions of 14 C.F.R. Part 1245, Subpart 1, rights to any inventions or class of inventions made by Partner in the performance of work under this Agreement. Therefore, as provided in 14 C.F.R. Part 1245, Subpart 1, Partner may petition, prior to execution of the Agreement or within thirty (30) days after execution, for advance waiver of any such inventions Partner may make under this Agreement, and any such properly filed petition will be granted. If no petition is submitted, or if a petition is denied, Partner (or an employee inventor of Partner) may still petition for waiver of rights to an identified subject invention within eight (8) months after disclosure under paragraph E.2. of this Article, or within such longer period if authorized under 14 C.F.R.§ 1245.105, and such properly filed petition will be granted. See paragraph J. of this Article for procedures.

4. NASA inventions

a. No invention or patent rights in NASA or its Contributing Entity’s inventions are exchanged or granted under this Agreement except as provided herein.

b. Upon request, NASA will use reasonable efforts to grant Partner a negotiated license, under 37 C.F.R. Part 404, to any NASA invention made under this Agreement.

c. Upon request, NASA will use reasonable efforts to grant Partner a negotiated license, under 37 C.F.R. Part 404, to any invention made under this Agreement by employees of a NASA Contributing Entity, or jointly between NASA and NASA Contributing Entity employees, where NASA has title.

C. Minimum rights reserved by the Government

1. For Partner inventions subject to a NASA waiver of rights under 14 C.F.R. Part 1245, Subpart 1, the Government reserves:

a. an irrevocable, royalty-free license to practice the invention throughout the world by or on behalf of the United States or any foreign government under any treaty or agreement with the United States; and

b. other rights as stated in 14 C.F.R. § 1245.107.

2. Nothing in this paragraph grants to the Government any rights in inventions not made under this Agreement.

3. Upon a successful completion by Partner of all milestones under this Agreement, NASA will refrain from exercising its Government Purpose License reserved in paragraph C.l.a. above for a period of five years following the expiration of this Agreement.

4. Nothing contained in this paragraph shall be considered to grant to the Government any rights with respect to any invention other than an invention made under this Agreement.

D. Minimum rights to Partner

1. Partner is granted a revocable, nonexclusive, royalty-free license in each patent application or patent in any country on an invention made by Partner under this Agreement where the Government has title, unless Partner fails to disclose the invention within the time limits in paragraph E.2. of this Article. Partner’s license extends to its domestic subsidiaries and affiliates within its corporate structure. It includes the right to grant sublicenses of the same scope if Partner was legally obligated to do so at the time of this Agreement. The license is transferable only with approval of the Administrator except to a successor of that part of Partner’s business to which the invention pertains.

2. Partner’s domestic license may be revoked or modified by the Administrator but only if necessary, to achieve expeditious practical application of the invention where a third party applies for an exclusive license under 37 C.F.R. Part 404. The license will not be revoked in any field of use or geographic area where Partner has achieved practical application and continues to make the benefits of the invention reasonably accessible to the public. A license in any foreign country may be revoked or modified at the discretion of the Administrator if Partner, its licensees, or its domestic subsidiaries or affiliates fail to achieve practical application in that country.

3. Before revocation or modification, Partner will receive written notice of the Administrator’s intentions. Partner has thirty (30) days (or such other time as authorized by the Administrator) to show cause why the license should not be revoked or modified. Partner may appeal under 14 C.F.R. § 1245.112.

E. Invention disclosures and reports

1. Partner shall establish procedures assuring that inventions made under this Agreement are internally reported within six (6) months of conception or first actual reduction to practice, whichever occurs first. These procedures shall include the maintenance of laboratory notebooks or equivalent records, other records reasonably necessary to document the conception or the first actual reduction to practice of inventions, and records showing that the procedures were followed. Upon request, Partner shall give the Patent Representative a description of such procedures for evaluation.

2. Partner shall disclose an invention to the Patent Representative within two (2) months after the inventor discloses it in writing internally or, if earlier, within six (6) months after Partner becomes aware of the invention. In any event, disclosure must be before any sale, or public use, or publication known to Partner. Partner shall use the NASA New Technology Reporting system at http://ntr.ndc.nasa.gov/. Invention disclosures shall identify this Agreement and be sufficiently complete in technical detail to convey a clear understanding of the nature, purpose, operation, and physical, chemical, biological, or electrical characteristics of the invention. The disclosure shall also identify any publication, or sale, or public use of the invention, and whether a manuscript describing the invention was submitted or accepted for publication. After disclosure, Partner shall promptly notify

NASA of the acceptance for publication of any manuscript describing an invention, or of any sale or public use planned by Partner.

3. Partner shall give NASA Patent Representative:

a. Interim reports every twelve (12) months (or longer period if specified by Patent Representative) from the date of this Agreement, listing inventions made under this Agreement during that period, and certifying that all inventions were disclosed (or there were no such inventions) and that the procedures of paragraph E.1. of this Article were followed.

b. A final report, within three (3) months after completion of this Agreement, listing all inventions made or certifying there were none, and listing all subcontracts or other agreements with a Contributing Entity containing a Patent and Invention Rights Article (as required under paragraph G of this Article) or certifying there were none.

c. Interim and final reports shall be submitted at http://ntr.ndc.nasa.gov/.

4. Partner shall provide available additional technical and other information to the NASA Patent Representative for the preparation and prosecution of a patent application on any invention made under this Agreement where the Government retains title. Partner shall execute all papers necessary to file patent applications and establish the Government’s rights.

5. Protection of reported inventions. NASA will withhold disclosures under this Article from public access for a reasonable time (1 year unless otherwise agreed or unless restricted longer herein) to facilitate establishment of patent rights.

6. The contact information for the NASA Patent Representatives is provided at http://prod.nais.nasa.gov/portals/pl/new_tech_pocs.html.

F. Examination of records relating to inventions

1. The Patent Representative or designee may examine any books (including laboratory notebooks), records, and documents of Partner relating to the conception or first actual reduction to practice of inventions in the same field of technology as the work under this Agreement to determine whether:

a. Any inventions were made under this Agreement;

b. Partner established the procedures in paragraph E.1. of this Article; and

c. Partner and its inventors complied with the procedures.

2. If the Patent Representative learns of an unreported Partner invention he or she believes was made under this Agreement, he or she may require disclosure to determine ownership rights.

3. Examinations under this paragraph are subject to appropriate conditions to protect the confidentiality of information.

G. Subcontracts or Other Agreements

1. a. Unless otherwise directed by Patent Representative, Partner shall include this Invention and Patent Rights Article (modified to identify the parties) in any subcontract or other agreement with a Contributing Entity (regardless of tier) for the performance of experimental, developmental, or research work.

b. For subcontracts or other agreements at any tier, NASA, the Contributing Entity, and Partner agree that the mutual obligations created herein constitute privity of contract between the Contributing Entity and NASA with respect to matters covered by this Article.

2. If a prospective Contributing Entity refuses to accept this Article, Partner:

a. shall promptly notify Patent Representative in writing of the prospective Contributing Entity’s reasons for refusal and other information supporting disposition of the matter; and

b. shall not proceed without Patent Representative’s written authorization.

3. Partner shall promptly notify Patent Representative in writing of any subcontract or other agreement with a Contributing Entity (at any tier) containing an Invention and Patent Rights Article. The notice shall identify:

a. the Contributing Entity;

b. the applicable Invention and Patent Rights Article;

c. the work to be performed; and

d. the dates of award and estimated completion.

Upon request, Partner shall give a copy of the subcontract or other agreement to Patent Representative.

4. In any subcontract or other agreement with Partner, a Contributing Entity retains the same rights provided Partner in this Article. Partner shall not require any Contributing Entity to assign its rights in inventions made under this Agreement to Partner as consideration for awarding a subcontract or other agreement.

5. Notwithstanding paragraph G.4., in recognition of Partner’s substantial contribution of funds, facilities or equipment under this Agreement, Partner may, subject to the NASA’s rights in this Article:

a. acquire by negotiation rights to inventions made under this Agreement by a Contributing Entity that Partner deems necessary to obtaining and maintaining private support; and

b. if unable to reach agreement under paragraph G.5.a. of this Article, request from Patent Representative that NASA provide Partner such rights as an additional reservation in any waiver NASA grants the Contributing Entity under NASA Patent Waiver Regulations, 14 C.F.R. Part 1245, Subpart 1. Partner should advise the Contributing Entity that unless it requests a waiver, NASA acquires title to all inventions made under this Agreement. If a waiver is not requested, or is not granted, Partner may then request a license from NASA under 37 C.F.R. Part 404. A Contributing Entity requesting waiver must follow the procedures in paragraph J. of this Article.

H. Preference for United States manufacture

Products embodying inventions made under this Agreement or produced using the inventions shall be manufactured substantially in the United States. Patent Representative may waive this requirement if domestic manufacture is not commercially feasible.

I. March-in rights

For inventions made under this Agreement where Partner has acquired title, NASA has the right under 37 C.F.R. § 401.6, to require Partner, or an assignee or exclusive licensee of the invention, to grant a nonexclusive, partially exclusive, or exclusive license in any field of use to responsible applicant(s), upon reasonable terms. If Partner, assignee or exclusive licensee refuses, NASA may grant the license itself, if necessary:

1. because Partner, assignee, or exclusive licensee has not, or is not expected within a reasonable time, to achieve practical application in the field of use;

2. to alleviate health or safety needs not being reasonably satisfied by Partner, assignee, or exclusive licensee;

3. to meet requirements for public use specified by Federal regulations being not reasonably satisfied by Partner, assignee, or exclusive licensee; or

4. because the requirement in paragraph H of this Article was not waived, and Partner, assignee, or exclusive licensee of the invention in the United States is in breach of the requirement.

J. Requests for Waiver of Rights

1. Under NASA Patent Waiver Regulations, 14 C.F.R. Part 1245, Subpart 1, an advance waiver may be requested prior to execution of this Agreement, or within thirty (30) days afterwards. Waiver of an identified invention made and reported under this Agreement may still be requested, even if a request for an advance waiver was not made or was not granted.

2. Each request for waiver is by petition to the Administrator and shall include:

a. an identification of the petitioner, its place of business and address;

b. if petitioner is represented by counsel, the name, address, and telephone number of counsel;

c. the signature of the petitioner or authorized representative; and

d. the date of signature.

3. No specific form is required, but the petition should also contain:

a. a statement that waiver of rights is requested under the NASA Patent Waiver Regulations;

b. a clear indication of whether the petition is an advance waiver or a waiver of an individual identified invention;

c. whether foreign rights are also requested and for which countries;

d. a citation of the specific section(s) of the regulations under which are requested;

e. whether the petitioner is an entity of or under the control of a foreign government; and

f. the name, address, and telephone number of the petitioner’s point-of-contact.

4. Submit petitions for waiver to the Patent Representative for forwarding to the Inventions and Contributions Board. If the Board makes findings to support the waiver, it recommends to the Administrator that the waiver be granted. The Board also informs Patent Representative if there is insufficient time or information to process a petition for an advance waiver without unduly delaying the execution of the Agreement. Patent Representative will notify petitioner of this information. Once a petition is acted upon, the Board notifies petitioner. If waiver is granted, any conditions, reservations, and obligations are included in the Instrument of Waiver. Petitioner may request reconsideration of Board recommendations adverse to its request.

2.2.10.3.5 INVENTION & PATENT RIGHTS (FOR CRADA AGREEMENTS)

A. General. 
 
1. Definitions. The following definitions are applicable to this Article.
(a) “Exclusive License” means the grant by the owner of an invention of the exclusive right to make, use, or sell the invention. 
(b) “Invention” means any invention or discovery that is or may be patentable or otherwise protected under Title 35, United States Code, or a novel variety of plant that is or may be patentable under the Plant Variety Protection Act. (15 U.S.C. § 3703(7)). 
(c) “Invention Disclosure” means the document identifying and describing an Invention and the Making of such Invention. 
(d) “Made” when used in conjunction with any Invention means the conception or first actual reduction to practice of such Invention. (15 U.S.C. § 3703(8)). 
(e) “Non-Subject Invention” means any Invention that is not a Subject Invention. 
(f) “Patent Application” means an application for patent protection for an Invention with any domestic or foreign patent-issuing authority. 
(g) “Contributing Entity(ies)” means an employee, contractor, subcontractor, grantee, or other entity having a legal relationship with NASA or Partner, that is assigned, tasked, or contracted to perform activities under this Agreement. 
(h) “Subject Invention” means any Invention Made in the performance of the Cooperative Work. 
 
2. NASA has determined that 51 U.S.C. § 20135(b) does not apply to this Agreement. Therefore, title to inventions made (conceived or first actually reduced to practice) under this Agreement remain with the respective inventing party(ies). No invention or patent rights are exchanged or granted under this Agreement, except as provided herein. 
 
3. Partner shall ensure that its Contributing Entities know about and are bound by the obligations under this Article. 
 
4. NASA will advise the Partner in the event NASA intends to use Contributing Entities to fulfill some or all of its obligations under the CRADA. 
 
B. Disclosure of Subject Inventions. 
 
1. Timely Invention Disclosure by Inventors. Each Party shall instruct its Contributing Entities to submit an Invention Disclosure to that Party within ninety (90) calendar days of making a Subject Invention, unless a different time period is required by circumstances. In the case of a Subject Invention Made jointly by inventors from both Parties or such Parties’ Contributing Entities, the employee-inventor(s) shall submit an Invention Disclosure to their respective employer. 
 
2. Obligation to Provide Invention Disclosures to the Other Party. Each Party shall provide the other Party with a copy of each Invention Disclosure reporting a Subject Invention within sixty (60) calendar days of receiving the Invention Disclosure. 
 
3. Protection of Reported Subject Inventions. When Subject Inventions are reported and disclosed between the Parties in accordance with the provisions of this clause, the receiving Party agrees to withhold such reports or disclosures from public access for a reasonable time (presumed to be 1 year unless otherwise mutually agreed or unless such information is restricted for a longer period herein) in order to facilitate the allocation and establishment of the invention and patent rights under these provisions. 
 
4. Additional Disclosure and Reporting Obligations. Each Party shall instruct its employees to submit a written disclosure to that Party of (1) solutions to technical problems and (2) unique increases to the general body of knowledge that result from the Cooperative Work but do not qualify as Subject Inventions. Each Party shall provide the other Party with a copy of each such written disclosure within sixty (60) calendar days of receiving the written disclosure from its employee. 
 
C. Ownership of Inventions. 
 
1. Ownership of Subject Inventions. Each Party shall be entitled to own the Subject Inventions of its employees. For any Invention Made jointly by employees of the Parties, each Party shall have ownership of the Subject Invention in the form of an undivided interest. 
 
2. Ownership of Non-Subject Inventions. Each Party owns its Non-Subject Inventions. 
 
D. Filing of Patent Applications. 
 
1. Inventions by One Party. 
(a) For Subject Inventions Made solely by employees of one Party, said Party has responsibility for filing Patent Applications on said Subject Inventions subject to the election to file set forth in Section 2.10.2.4.3 below. Each Party shall notify the other Party within 30 calendar days of filing a Patent Application on any such Subject Inventions and shall provide the other Party with copies of the Patent Applications it files on any Subject Invention. 
(b) Partner agrees to include the following statement in any patent application it files for a Subject Invention Made by its employees: 
The invention described herein may be manufactured and used by or for the U.S. Government for U.S. Government purposes without the payment of royalties thereon or therefore. 
 
2. Joint Inventions. 
(a) In the case of a Subject Invention jointly Made by employees of both Parties, the Parties shall confer and agree as to which Party will file any Patent Application. Each Party shall cooperate with the other Party to obtain inventor signatures on Patent Applications, assignments or other documents required to secure patent protection. 
(b) Each Party shall provide the other Party with copies of the Patent Applications it files on any Subject Invention jointly Made by employees of both Parties, along with the power to inspect and make copies of all documents retained in the official Patent Application files by the applicable patent office. 
(c) Partner agrees to include the following statement in any Patent Application it files for an invention Made jointly between NASA employees (or employees of a NASA Contributing Entity) and employees of Partner: 
The invention described herein may be manufactured and used by or for the U.S. Government for U.S. Government purposes without the payment of royalties thereon or therefor. 
 
3. Election to File. If either Party elects not to file a Patent Application on a Subject Invention, it must advise the other Party within ninety (90) calendar days from the date the Subject Invention is reported or sixty (60) calendar days prior to any statutory bar date related to a Subject Invention, whichever date occurs first. Thereafter, the other Party may elect to file a Patent Application on such Subject Invention and, upon request by the other Party, the non-electing Party shall assign the Subject Invention to the other Party and shall cooperate with the other Party to obtain inventor signatures on Patent Applications, assignments or other documents required to secure patent protection. In the event neither of the Parties elects to file a Patent Application on a Subject Invention, either or both (if a joint invention) may, after providing written notice to the other Party, release the right to file to the inventor(s), subject to a nonexclusive, nontransferable, irrevocable, paid-up license to practice the Subject Invention or have the Subject Invention practiced on its behalf. 
 
4. Patent Expenses. The expenses associated with the filing of Patent Applications, as specified herein, shall be borne by the Party filing the Patent Application. The fees payable to the U.S. Patent and Trademark Office in order to maintain the patent’s enforcement will be payable by the owner of the patent at that Party’s option. 
 
5. If either Party determines that it will not continue to prosecute or maintain a patent for a Subject Invention, either in the U.S. or in foreign countries, the filing Party shall so inform the other Party so that the other Party may make the determination whether to continue to prosecute for or maintain patent protection. If the non-filing Party makes the determination to continue to prosecute for or maintain patent protection and so notifies the filing Party, the filing Party shall assign title to the Subject Invention to the non-filing Party and the non-filing Party shall be responsible for all costs associated with such continued filing, prosecution, or maintenance. 
 
E. Licenses. 
 
1. Limitation on Assignment of Licenses Granted Under This Agreement. No license of a Subject Invention granted under this Agreement shall be assigned except to the successor in interest of that part of Partner’s business to which such license pertains. 
 
2. License Reservation. Any license of a Subject Invention granted to Partner pursuant to this Agreement, whether an Exclusive License or non-exclusive license, will be subject to the reservation of the following rights: 
(a) As to Subject Inventions Made solely or jointly by NASA employees, NASA reserves the irrevocable, royalty-free right of the U.S. Government to practice the invention or have the invention practiced on behalf of the Government for research or other Government purposes, or on behalf of any foreign government or international organization pursuant to any existing or future treaty or agreement with the United States.
(b) As to Subject Inventions Made solely or jointly by employees of a NASA Contributing Entity, NASA reserves the rights as set forth in paragraph (a) above, as well as the revocable, nonexclusive, royalty-free license in the Contributing Entity as set forth in 14 C.F.R. § 1245.108 or 37 C.F.R. § 401.14 (e), as applicable. 
(c) As to any Exclusive Licenses or assignment of a Subject Invention, NASA shall retain the right to require Partner to grant to a responsible applicant a nonexclusive, partially exclusive, or exclusive license to use the Subject Invention in applicant’s licensed field of use, on terms reasonable to the circumstances, or if Partner fails to grant such a license, to grant the license itself, if NASA determines that: (i) the action is necessary to meet health or safety needs that are not reasonably satisfied by the Partner; (ii) the action is necessary to meet requirements for public use specified by Federal regulations, and such requirements are not reasonably satisfied by the Partner; or (iii) Partner has failed to comply with an agreement containing provisions described in subsection (3)(b)(iv) below. A determination under this section is subject to administrative appeal and judicial review under 35 U.S.C. § 203(b). 
 
3. Subject Inventions. 
(a) Nonexclusive License to Subject Inventions. 
(i) Partner grants to the U.S. Government a nonexclusive, nontransferable, irrevocable, paid-up license to practice Subject Inventions Made by employees of Partner and, where Partner has such rights, Subject Inventions Made by employees of Partner Contributing Entities, and to have such Subject Inventions practiced throughout the world by or on behalf of the U.S. Government for research or other U.S. Governmental purposes. 
(ii) NASA grants to Partner a nonexclusive, nontransferable, irrevocable, paid-up license to practice Subject Inventions Made by employees of NASA and, where NASA has such rights, Subject Inventions Made by employees of NASA Contributing Entities. Such license shall not permit Partner to grant sublicenses. 
(b) Option for Exclusive License to Subject Inventions. 
(i) Option. NASA gives Partner the option of acquiring an Exclusive License for the field of use described in paragraph (iii) 
below in the Government’s rights in any Subject Invention Made in whole or in part by a NASA employee or the employee of a NASA Contributing Entity. In order to exercise this option, Partner must notify NASA in writing within ninety (90) calendar days of notification of the filing of a patent application on the Subject Invention by NASA.  
(ii) License Execution. Each license for a Subject Invention shall be implemented through a written Exclusive License agreement executed by both Parties. The license shall be for reasonable consideration to be negotiated for each licensed Subject Invention. Partner must execute the Exclusive License to the Subject Invention within one hundred twenty (120) calendar days of election to exercise the option, or the Invention may be made available for licensing to the public in accordance with 37 CFR Part 404. Any Exclusive License granted by NASA in a Subject Invention is subject to the statutorily required reservation by the Government of a nonexclusive, irrevocable, paid-up license to practice the Subject Invention or have that Subject Invention practiced throughout the world by or on behalf of the Government and statutory march-in rights in accordance with 15 U.S.C. 3710a(b)(1). Any Exclusive License granted by NASA in a Subject Invention shall include Partner’s right of enforcement under chapter 29 of title 35. 
(iii) Field of Use. [Describe FIELD OF USE – this will be negotiated with the CRADA Partner prior to the signing of the CRADA.]  
(iv) U.S. Manufacturing Clause. Each Exclusive License for a Subject Invention shall include a clause requiring products embodying Subject Inventions or produced through the use of Subject Inventions will be manufactured substantially in the United States. 
(c) Cancellation of Exclusive License Option to Subject Inventions. NASA may cancel any option for an Exclusive License to a Subject Invention granted under this Agreement in the event that:(i) Partner fails to make any payment as agreed in this Agreement; or(ii) Partner fails to perform according to the responsibilities set forth in the Responsibilities Article of this Agreement; or(iii) Partner materially breaches any other provision of this Agreement and fails to cure such breach with thirty (30) days following notices received from NASA; or(iv) Partner becomes a foreign owned, controlled, or influenced (FOCI) organization that does not qualify under the requirements of Executive Order 12591, Section 4(a); or(v) The Agreement is terminated unilaterally by Partner. 
 
4. Non-Subject Inventions. 
(a) Licenses to Non-Subject Inventions. Except as expressly provided for herein, this Agreement does not grant any Party a license, express or implied, to any Non-Subject Invention. 
(b) Preexisting Non-Subject Inventions Pertinent to the Cooperative 
Work. 
(i) Non-Subject Inventions pertinent to the Cooperative 
Work that are specifically identified as property of NASA and for which a patent application has been filed prior to the effective date of this Agreement include but are not limited to the following: 
[List Invention Title, inventor name(s), patent number, or NASA NTR number if an Invention disclosure, or Patent Application Serial Number, and date of issue (for patents only); or if none, insert “None” or “Not Applicable”.] 
(ii) Non-Subject Inventions pertinent to the Cooperative Work that are specifically identified as property of Partner include but are not limited to the following: 
[List Invention Title, inventor name(s), patent number, or attorney’s docket number if an Invention disclosure or Patent Application Serial Number, and date of issue 
(for patents only); or if none, insert “None ” or “Not Applicable”.] 
(c) Research License. Each Party shall allow the other Party to practice any of its Non-Subject Inventions listed above for the purpose of performing the Cooperative Work. No license, express or implied, for commercial application(s) is granted to either Party in Non-Subject Inventions by performing the Cooperative Work. For commercial application(s) of Non-Subject Inventions, a license must be obtained from the owner.

PATENT AND COPYRIGHT USE

2.2.10.4.1 PATENT & COPYRIGHT USE (AUTHORIZATION & CONSENT)

To avoid interruption of this Agreement, NASA gives the U.S. Government’s authorization and consent (without prejudice to any rights of indemnification) for all use and manufacture of any invention or work covered by a U.S. patent or copyright in the performance of Partner’s responsibilities under this Agreement, including performance by any Related Entity.

2.2.10.4.2 PATENT & COPYRIGHT USE (INDEMNIFICATION)

If the U.S. Government incurs liability for the infringement of privately-owned U.S. patents or copyrights as a result of performance by Partner or its Related Entity under this Agreement, Partner shall indemnify and hold the U.S. Government harmless against such liability, including costs and expenses of defending against any suit or claim for the infringements.

USE OF PARTIES’ NAMES AND IDENTIFIERS

2.2.11 USE OF PARTIES’ NAMES & IDENTIFIERS

A.  NASA Name and Initials

Partner shall not use “National Aeronautics and Space Administration” or “NASA” in a way that creates the impression that a product or service has the authorization, support, sponsorship, or endorsement of NASA, which does not, in fact, exist.  Except for releases under the “Release of General Information to the Public and Media” Article, Partner must submit any proposed public use of the NASA name or initials (including press releases and all promotional and advertising use) to the NASA Associate Administrator for the Office of Communications or designee (“NASA Communications”) for review and approval.  Approval by NASA Office of Communications shall be based on applicable law and policy governing the use of the NASA name and initials. 

B.  NASA Emblems

Use of NASA emblems (i.e., NASA Seal, NASA Insignia, NASA logotype, NASA Program Identifiers, and the NASA Flag) is governed by 14 C.F.R. Part 1221. Partner must submit any proposed use of the emblems to NASA Communications for review and approval. 

C.  Partner Name and Trademarks

NASA shall not use Partner’s name or trademarks in any way that suggests Partner endorses NASA. NASA will make no use of the Partner trademarks except as permitted by law and this Agreement.

RELEASE OF GENERAL INFORMATION TO THE PUBLIC AND MEDIA

2.2.12 RELEASE OF GENERAL INFORMATION TO THE PUBLIC & MEDIA

NASA or Partner may, consistent with Federal law and this Agreement, release general information regarding its own participation in this Agreement as desired. Pursuant to Section 841(d) of the NASA Transition Authorization Act of 2017, Public Law 115- 10 (the “NTAA”), NASA is obligated to publicly disclose copies of all agreements conducted pursuant to NASA’s 51 U.S.C. §20113(e) authority in a searchable format on the NASA website within 60 days after the agreement is signed by the Parties. The Parties acknowledge that a copy of this Agreement, which in the case of umbrella agreements includes any associated annexes, will be disclosed, without redactions, in accordance with the NTAA.

DISCLAIMER OF WARRANTY

2.2.13.1 DISCLAIMER OF WARRANTY

Goods, services, facilities, or equipment provided under this Agreement are provided “as is.”  Parties make no express or implied warranty as to the condition of any such goods, services, facilities, or equipment, or as to the condition of any research or information generated under this Agreement, or as to any products made or developed under or as a result of this Agreement including as a result of the use of information generated hereunder, or as to the merchantability or fitness for a particular purpose of such research, information, or resulting product, or that the goods, services, facilities or equipment provided will accomplish the intended results or are safe for any purpose including the intended purpose, or that any of the above will not interfere with privately-owned rights of others.  Neither Party nor its contractors shall be liable for special, consequential or incidental damages attributed to such equipment, facilities, technical information, or services provided under this Agreement or such research, information, or resulting products made or developed under or as a result of this Agreement.

DISCLAIMER OF ENDORSEMENT

2.2.13.2 DISCLAIMER OF ENDORSEMENT

NASA does not endorse or sponsor any commercial product, service, or activity.  NASA’s participation in this Agreement or provision of goods, services, facilities or equipment under this Agreement does not constitute endorsement by NASA.  Partner agrees that nothing in this Agreement will be construed to imply that NASA authorizes, supports, endorses, or sponsors any product or service of Partner resulting from activities conducted under this Agreement, regardless of the fact that such product or service may employ NASA-developed technology.

COMPLIANCE WITH LAWS AND REGULATIONS

2.2.14.1 COMPLIANCE WITH LAWS & REGULATIONS

A. The Parties shall comply with all applicable laws and regulations including, but not limited to, safety; security; export control; environmental; and suspension and debarment laws and regulations. Access by a Partner to NASA facilities or property, or to a NASA Information Technology (IT) system or application, is contingent upon compliance with NASA security and safety policies and guidelines including, but not limited to, standards on badging, credentials, and facility and IT system/application access, including use of Interconnection Security Agreements (ISAs), when applicable.

B. With respect to any export control requirements:

1. The Parties will comply with all U.S. export control laws and regulations, including the International Traffic in Arms Regulations (ITAR), 22 C.F.R. Parts 120 through 130, and the Export Administration Regulations (EAR), 15 C.F.R. Parts 730 through 799, in performing work under this Agreement or any Annex to this Agreement. In the absence of available license exemptions or exceptions, the Partner shall be responsible for obtaining the appropriate licenses or other approvals, if required, for exports of hardware, technical data and software, or for the provision of technical assistance.

2. The Partner shall be responsible for obtaining export licenses, if required, before utilizing foreign persons in the performance of work under this Agreement or any Annex under this Agreement, including instances where the work is to be performed on-site at NASA and where the foreign person will have access to export-controlled technical data or software.

3. The Partner will be responsible for all regulatory record-keeping requirements associated with the use of licenses and license exemptions or exceptions.

4. The Partner will be responsible for ensuring that the provisions of this Article apply to its Related Entities.

C. With respect to suspension and debarment requirements:

1. The Partner hereby certifies, to the best of its knowledge and belief, that it has complied, and shall comply, with 2 C.F.R. Part 180, Subpart C, as supplemented by 2 C.F.R. Part 1880, Subpart C.

2. The Partner shall include language and requirements equivalent to those set forth in subparagraph C.1., above, in any lower-tier covered transaction entered into under this Agreement.

D. With respect to the requirements in Section 889 of the National Defense Authorization Act (NDAA) for Fiscal Year 2019, Public Law 115-232:

1. In performing this Agreement, Partner will not use, integrate with a NASA system, or procure with NASA funds (if applicable), “covered telecommunications equipment or services” (as defined in Section 889(f)(3) of the NDAA).

2. The Partner will ensure that the provisions of this Article apply to its Related Entities.

2.2.14.2 COMPLIANCE WITH LAWS & REGULATIONS (FUNDED)

A. The Parties shall comply with all applicable laws and regulations including, but not limited to, safety; security; export control; environmental; and suspension and debarment laws and regulations. Access by the Partner to NASA facilities or property, or to a NASA Information Technology (IT) system or application, is contingent upon compliance with NASA security and safety policies and guidelines including, but not limited to, standards on badging, credentials, and facility and IT system/application access, including use of Interconnection Security Agreements (ISAs), when applicable.

B. With respect to any export control requirements:

1. The Parties will comply with all U.S. export control laws and regulations, including the International Traffic in Arms Regulations (ITAR), 22 C.F.R. Parts 120 through 130, and the Export Administration Regulations (EAR), 15 C.F.R. Parts 730 through 799, in performing work under this Agreement. In the absence of available license exemptions or exceptions, the Partner shall be responsible for obtaining the appropriate licenses or other approvals, if required, for exports of hardware, technical data and software, or for the provision of technical assistance.

2. The Partner shall be responsible for obtaining export licenses, if required, before utilizing foreign persons in the performance of work under this Agreement, including instances where the work is to be performed on-site at NASA and where the foreign person will have access to export-controlled technical data or software.

3. The Partner will be responsible for all regulatory record-keeping requirements associated with the use of licenses and license exemptions or exceptions.

4. The Partner will be responsible for ensuring that the provisions of this Article apply to its Related Entities.

C. With respect to suspension and debarment requirements:

1. The Partner hereby certifies, to the best of its knowledge and belief, that it has complied, and shall comply, with 2 C.F.R. Part 180, Subpart C, as supplemented by 2 C.F.R. Part 1880, Subpart C.

2. The Partner shall include language and requirements equivalent to those set forth in subparagraph C.1., above, in any lower-tier covered transaction entered into under this Agreement.

D. Partner shall annually certify the following to the NASA Administrative Contact to this Agreement:

1. Neither Partner nor any of its subcontractors nor partners are presently debarred, suspended, proposed for debarment, or otherwise declared ineligible for award of funding by any Federal agency;

2. Neither Partner nor any of its subcontractors nor partners have been convicted or had a civil judgment rendered against them within the last three (3) years for fraud in obtaining, attempting to obtain, or performing a Government contract;

3. Partner and any of its team members, subcontractors, or partners receiving $100,000 or more in NASA funding for work performed under this Agreement must have not used any appropriated funds for lobbying purposes prohibited by 31 U.S.C. § 1352; and

4. The Partner is an entity organized under the laws of the United States, which is:

A. More than 50 percent owned and controlled by United States nationals; or

B. A subsidiary of a foreign company and such subsidiary has in the past evidenced a substantial commitment to the United States market through –

a. Investments in the United States in long-term research, development, and manufacturing (including the manufacture of major components and subassemblies); and

b. Significant contributions to employment in the United States.  

E. NASA conducts research with foreign entities only on a cooperative, no-exchange-of funds basis. Although foreign individuals employed by the Partner in support of this FSAA may receive NASA funds, NASA funding may not support research efforts, including travel, by non-U.S. organizations, including sub-Partners, at any level. The direct purchase of supplies and/or services, which do not constitute research, from non-U.S. sources by the Partner is permitted.

F. Pursuant to The Department of Defense and Full-Year Appropriation Act, Public Law 112-10, Section 1340(a); The Consolidated and Further Continuing Appropriation Act of 2012, Public Law 112-55, Section 539; and future-year appropriations (hereinafter, “the Acts”), NASA is restricted from using funds appropriated in the Acts to enter into or fund any agreement of any kind to participate, collaborate, or coordinate bilaterally with China or any Chinese-owned company, at the prime recipient level or at any subrecipient level, whether the bilateral involvement is funded or performed under a no-exchange of funds arrangement. Partner hereby certifies that it is not China or a Chinese-owned company, and that the Partner will not participate, collaborate, or coordinate bilaterally with China or any Chinese-owned company, at the prime recipient level or at any subrecipient level, whether the bilateral involvement is funded or performed under a no-exchange of funds arrangement.

(a) Definition: “China or Chinese-owned Company” means the People’s Republic of China, any company owned by the People’s Republic of China, or any company incorporated under the laws of the People’s Republic of China.

(b) The restrictions in the Acts do not apply to commercial items of supply needed to perform this agreement. However, Partner shall disclose to NASA if it anticipates making any award, including those for the procurement of commercial items, to China or a Chinese-owned entity.

(c) Subawards – The Partner shall include the substance of this provision in all subawards made hereunder.

In addition to the above certification, Partner shall immediately disclose to the NASA Administrative Contact, for any individual involved in this NASA-funded activity, any current or pending professional and educational affiliations or commitments to China or a Chinese-owned company, including Chinese universities.

G. Regarding INKSNA requirements, Partner shall disclose to NASA if it intends to rely upon Russian entities for its demonstration. Partner shall not subcontract to Russian entities without first receiving written approval from NASA.

(a) Definitions: In this provision:

(1) The term “Russian entities” means:

(A) Russian persons, or

(B) Entities created under Russian law or owned, in whole or in part, by Russian persons or companies including, but not limited to, the following:

(i) The Russian Federal Space Agency (Roscosmos),

(ii) Any organization or entity under the jurisdiction or control of Roscosmos, or

(iii) Any other organization, entity or element of the Government of the Russian Federation.

(2) The term “extraordinary payments” means payments in cash or in kind made or to be made by the United States Government prior to December 31, 2025, for work to be performed or services to be rendered prior to that date necessary to meet United States obligations under the Agreement Concerning Cooperation on the Civil International Space Station, with annex, signed at Washington January 29, 1998, and entered into force March 27, 2001, or any protocol, agreement, memorandum of understanding, or contract related thereto.

(b) This clause implements the reporting requirement in section 6(i) of the Iran, North Korea, and Syria Nonproliferation Act. The provisions of this clause are without prejudice to the question of whether the Partner or its subcontractor(s) are making extraordinary payments under section 6(a) or fall within the exceptions in section 7(1)(B) of the Act. NASA has applied the restrictions in the Act to include funding of Russian entities via U.S. Contractors (Awardees).

(c) (1) The Partner shall not subcontract with Russian entities without first receiving written approval from the NASA Administrative Contact. In order to obtain this written approval to subcontract with any Russian entity as defined in paragraphs (a), the Partner shall provide the NASA Administrative Contact with the following information related to each planned new subcontract and any change to an existing subcontract with entities that fit the description in paragraph (a):

(A) A detailed description of the subcontracting entity, including its name, address, and a point of contact, as well as a detailed description of the proposed subcontract including the specific purpose of payments that will made under the subcontract.

(B) The Partner shall provide certification that the subcontracting entity is not, at the date of the subcontract approval request, on any of the lists of proscribed denied parties, specially designated nationals and entities of concern found at:

BIS’s Listing of Entities of Concern

(see http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern/entity-list)

BIS’s List of Denied Parties

(see http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern/denied-persons-list)

OFAC’s List of Specially Designated Nationals

(see http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx)

List of Unverified Persons in Foreign Countries (see http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern/unverified-list)

State Department’s List of Parties Statutorily Debarred for Arms Export Control Act Convictions (see https://www.pmddtc.state.gov/ddtc_public?id=ddtc_kb_article_page&sys_id=7188dac6db3cd30044f9ff621f961914)

State Department’s Lists of Proliferating Entities (see http://www.state.gov/t/isn/c15231.htm)

(2) Unless relief is granted by the NASA Administrative Contact, the information necessary to obtain approval to subcontract shall be provided to the NASA Administrative Contact 30 business days prior to executing any planned subcontract with entities defined in paragraph (a).

(d) After receiving approval to subcontract, the Partner shall provide the NASA Administrative Contact with a report every six months that documents the individual payments made to an entity in paragraph (a). The reports are due on July 15th and January 15th. The July 15th report shall document all of the individual payments made from the previous January through June. The January 15th report shall document all of the individual payments made from the previous July through December. The content of the report shall provide the following information for each time a payment is made to an entity in paragraph (a):

(1) The name of the entity

(2) The subcontract number

(3) The amount of the payment

(4) The date of the payment

(e) The NASA Administrative Contact may direct the Partner to provide additional information for any other prospective or existing subcontract at any tier. The NASA Administrative Contact may direct the Partner to terminate for the convenience of the Government any subcontract at any tier with an entity described in paragraph (a), subject to an equitable adjustment.

(f) On or after December 31, 2025, the Partner shall be responsible to make payments to entities defined in paragraph (a) of this provision. Any subcontract with entities defined in paragraph (a), therefore, shall be completed in sufficient time to permit the U.S. Government to make extraordinary payments on subcontracts with Russian entities on or before December 31, 2025.

(g) The Partner shall include the substance of this clause in all its subcontracts and shall require such inclusion in all other subcontracts of any tier. The Partner shall be responsible to obtain written approval from the NASA Administrative Contact to enter into any tier subcontract that involves entities defined in paragraph (a).

H. With respect to the requirements in Section 889 of the National Defense Authorization Act (NDAA) for Fiscal Year 2019, Public Law 115-232:

1. In performing this Agreement, Partner will not use, integrate with a NASA system, or procure with NASA funds “covered telecommunications equipment or services” (as defined in Section 889(f)(3) of the NDAA).

2. The Partner will ensure that the provisions of this Article apply to its Related Entities.

2.2.14.3 COMPLIANCE WITH LAWS & REGULATIONS (FUNDED WITH STS SERVICES)

A. The Parties shall comply with all applicable laws and regulations including, but not limited to, safety; security; export control; environmental; and suspension and debarment laws and regulations. Access by the Partner to NASA facilities or property, or to a NASA Information Technology (IT) system or application, is contingent upon compliance with NASA security and safety policies and guidelines including, but not limited to, standards on badging, credentials, and facility and IT system/application access, including use of Interconnection Security Agreements (ISAs), when applicable.

B. With respect to any export control requirements:

1. The Parties will comply with all U.S. export control laws and regulations, including the International Traffic in Arms Regulations (ITAR), 22 C.F.R. Parts 120 through 130, and the Export Administration Regulations (EAR), 15 C.F.R. Parts 730 through 799, in performing work under this Agreement. In the absence of available license exemptions or exceptions, the Partner shall be responsible for obtaining the appropriate licenses or other approvals, if required, for exports of hardware, technical data and software, or for the provision of technical assistance.

2. The Partner shall be responsible for obtaining export licenses, if required, before utilizing foreign persons in the performance of work under this Agreement, including instances where the work is to be performed on-site at NASA and where the foreign person will have access to export-controlled technical data or software.

3. The Partner will be responsible for all regulatory record-keeping requirements associated with the use of licenses and license exemptions or exceptions.

4. The Partner will be responsible for ensuring that the provisions of this Article apply to its Related Entities.

C. With respect to suspension and debarment requirements:

1. The Partner hereby certifies, to the best of its knowledge and belief, that it has complied, and shall comply, with 2 C.F.R. Part 180, Subpart C, as supplemented by 2 C.F.R. Part 1880, Subpart C.

2. The Partner shall include language and requirements equivalent to those set forth in subparagraph C.1., above, in any lower-tier covered transaction entered into under this Agreement.

D. Partner shall annually certify the following to the NASA Administrative Contact to this Agreement:

1. Neither Partner nor any of its subcontractors nor partners are presently debarred, suspended, proposed for debarment, or otherwise declared ineligible for award of funding by any Federal agency;

2. Neither Partner nor any of its subcontractors nor partners have been convicted or had a civil judgment rendered against them within the last three (3) years for fraud in obtaining, attempting to obtain, or performing a Government contract;

3. Partner and any of its team members, subcontractors, or partners receiving $100,000 or more in NASA funding for work performed under this Agreement must have not used any appropriated funds for lobbying purposes prohibited by 31 U.S.C. § 1352; and

4. Partner is an eligible entity organized under the laws of the United States or of a State, which is:

A. More than 50 percent owned by United States nationals; or

B. A subsidiary of a foreign company and the Secretary of Transportation finds that –

(i) Such subsidiary has in the past evidenced a substantial commitment to the United States market through –

a. Investments in the United States in long-term research, development, and manufacturing (including the manufacture of major components and subassemblies); and

b. Significant contributions to employment in the United States; and

(ii) The country or countries in which such foreign company is incorporated or organized, and, if appropriate, in which it principally conducts its business, affords reciprocal treatment to companies described in subparagraph A comparable to that afforded to such foreign company’s subsidiary in the United States, as evidenced by –

a. Providing comparable opportunities for companies described in subparagraph A. to participate in Government sponsored research and development similar to that authorized under Title 51 U.S.C. Chapter 501 (Space Commerce).

b. Providing no barriers, to companies described in subparagraph A. with respect to local investment opportunities, that are not provided to foreign companies in the United States; and

c. Providing adequate and effective protection for the intellectual property rights of companies described in subparagraph A.

To the extent a Participant proposes government funding of any part of a commercial launch, the entity providing those launch services must meet the above eligibility requirements.  In accordance with the National Space Transportation Policy, use of a non-U.S. manufactured launch vehicle is permitted only on a no-exchange-of-funds basis.

E. NASA conducts research with foreign entities only on a cooperative, no-exchange-of funds basis. Although foreign individuals employed by the Partner in support of this FSAA may receive NASA funds, NASA funding may not support research efforts, including travel, by non-U.S. organizations, including sub-Partners, at any level. The direct purchase of supplies and/or services, which do not constitute research, from non-U.S. sources by the Partner is permitted.

F. Pursuant to The Department of Defense and Full-Year Appropriation Act, Public Law 112-10, Section 1340(a); The Consolidated and Further Continuing Appropriation Act of 2012, Public Law 112-55, Section 539; and future-year appropriations (hereinafter, “the Acts”), NASA is restricted from using funds appropriated in the Acts to enter into or fund any agreement of any kind to participate, collaborate, or coordinate bilaterally with China or any Chinese-owned company, at the prime recipient level or at any subrecipient level, whether the bilateral involvement is funded or performed under a no-exchange of funds arrangement. Partner hereby certifies that it is not China or a Chinese-owned company, and that the Partner will not participate, collaborate, or coordinate bilaterally with China or any Chinese-owned company, at the prime recipient level or at any subrecipient level, whether the bilateral involvement is funded or performed under a no-exchange of funds arrangement.

(a) Definition: “China or Chinese-owned Company” means the People’s Republic of China, any company owned by the People’s Republic of China, or any company incorporated under the laws of the People’s Republic of China.

(b) The restrictions in the Acts do not apply to commercial items of supply needed to perform this Agreement. However, Partner shall disclose to NASA if it anticipates making any award, including those for the procurement of commercial items, to China or a Chinese-owned entity.

(c) Subawards – The Partner shall include the substance of this provision in all subawards made hereunder.

In addition to the above certification, Partner shall immediately disclose to the NASA Administrative Contact, for any individual involved in this NASA-funded activity, any current or pending professional and educational affiliations or commitments to China or a Chinese-owned company, including Chinese universities.

G. Regarding INKSNA requirements, Partner shall disclose to NASA if it intends to rely upon Russian entities for its demonstration. Partner shall not subcontract to Russian entities without first receiving written approval from NASA.

(a) Definitions: In this provision:

(1) The term “Russian entities” means:

(A) Russian persons, or

(B) Entities created under Russian law or owned, in whole or in part, by Russian persons or companies including, but not limited to, the following:

(i) The Russian Federal Space Agency (Roscosmos),

(ii) Any organization or entity under the jurisdiction or control of Roscosmos, or

(iii) Any other organization, entity or element of the Government of the Russian Federation.

(2) The term “extraordinary payments” means payments in cash or in kind made or to be made by the United States Government prior to December 31, 2025, for work to be performed or services to be rendered prior to that date necessary to meet United States obligations under the Agreement Concerning Cooperation on the Civil International Space Station, with annex, signed at Washington January 29, 1998, and entered into force March 27, 2001, or any protocol, agreement, memorandum of understanding, or contract related thereto.

(b) This clause implements the reporting requirement in section 6(i) of the Iran, North Korea, and Syria Nonproliferation Act. The provisions of this clause are without prejudice to the question of whether the Partner or its subcontractor(s) are making extraordinary payments under section 6(a) or fall within the exceptions in section 7(1)(B) of the Act. NASA has applied the restrictions in the Act to include funding of Russian entities via U.S. Contractors (Awardees).

(c) (1) The Partner shall not subcontract with Russian entities without first receiving written approval from the NASA Administrative Contact. In order to obtain this written approval to subcontract with any Russian entity as defined in paragraphs (a), the Partner shall provide the NASA Administrative Contact with the following information related to each planned new subcontract and any change to an existing subcontract with entities that fit the description in paragraph (a):

(A) A detailed description of the subcontracting entity, including its name, address, and a point of contact, as well as a detailed description of the proposed subcontract including the specific purpose of payments that will made under the subcontract.

(B) The Partner shall provide certification that the subcontracting entity is not, at the date of the subcontract approval request, on any of the lists of proscribed denied parties, specially designated nationals and entities of concern found at:

BIS’s Listing of Entities of Concern

(see http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern/entity-list)

BIS’s List of Denied Parties

(see http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern/denied-persons-list)

OFAC’s List of Specially Designated Nationals

(see http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx)

List of Unverified Persons in Foreign Countries (see http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern/unverified-list)

State Department’s List of Parties Statutorily Debarred for Arms Export Control Act Convictions (see https://www.pmddtc.state.gov/ddtc_public?id=ddtc_kb_article_page&sys_id=7188dac6db3cd30044f9ff621f961914)

State Department’s Lists of Proliferating Entities (see http://www.state.gov/t/isn/c15231.htm)

(2) Unless relief is granted by the NASA Administrative Contact, the information necessary to obtain approval to subcontract shall be provided to the NASA Administrative Contact 30 business days prior to executing any planned subcontract with entities defined in paragraph (a).

(d) After receiving approval to subcontract, the Partner shall provide the NASA Administrative Contact with a report every six months that documents the individual payments made to an entity in paragraph (a). The reports are due on July 15th and January 15th. The July 15th report shall document all of the individual payments made from the previous January through June. The January 15th report shall document all of the individual payments made from the previous July through December. The content of the report shall provide the following information for each time a payment is made to an entity in paragraph (a):

(1) The name of the entity

(2) The subcontract number

(3) The amount of the payment

(4) The date of the payment

(e) The NASA Administrative Contact may direct the Partner to provide additional information for any other prospective or existing subcontract at any tier. The NASA Administrative Contact may direct the Partner to terminate for the convenience of the Government any subcontract at any tier with an entity described in paragraph (a), subject to an equitable adjustment.

(f) On or after December 31, 2025, the Partner shall be responsible to make payments to entities defined in paragraph (a) of this provision. Any subcontract with entities defined in paragraph (a), therefore, shall be completed in sufficient time to permit the U.S. Government to make extraordinary payments on subcontracts with Russian entities on or before December 31, 2025.

(g) The Partner shall include the substance of this clause in all its subcontracts and shall require such inclusion in all other subcontracts of any tier. The Partner shall be responsible to obtain written approval from the NASA Administrative Contact to enter into any tier subcontract that involves entities defined in paragraph (a).

H. With respect to the requirements in Section 889 of the National Defense Authorization Act (NDAA) for Fiscal Year 2019, Public Law 115-232:

1. In performing this Agreement, Partner will not use, integrate with a NASA system, or procure with NASA funds “covered telecommunications equipment or services” (as defined in Section 889(f)(3) of the NDAA).

2. The Partner will ensure that the provisions of this Article apply to its Related Entities.

2.2.14.4 COMPLIANCE WITH LAWS & REGULATIONS (INVOLVES LUNAR ACTIVITIES)

A. The Parties shall comply with all applicable laws and regulations including, but not limited to, safety; security; export control; environmental; and suspension and debarment laws and regulations. Access by a Partner to NASA facilities or property, or to a NASA Information Technology (IT) system or application, is contingent upon compliance with NASA security and safety policies and guidelines including, but not limited to, standards on badging, credentials, and facility and IT system/application access, including use of Interconnection Security Agreements (ISAs), when applicable.

B. With respect to any export control requirements:

1. The Parties will comply with all U.S. export control laws and regulations, including the International Traffic in Arms Regulations (ITAR), 22 C.F.R. Parts 120 through 130, and the Export Administration Regulations (EAR), 15 C.F.R. Parts 730 through 799, in performing work under this Agreement or any Annex to this Agreement. In the absence of available license exemptions or exceptions, the Partner shall be responsible for obtaining the appropriate licenses or other approvals, if required, for exports of hardware, technical data and software, or for the provision of technical assistance.

2. The Partner shall be responsible for obtaining export licenses, if required, before utilizing foreign persons in the performance of work under this Agreement or any Annex under this Agreement, including instances where the work is to be performed on-site at NASA and where the foreign person will have access to export-controlled technical data or software.

3. The Partner will be responsible for all regulatory record-keeping requirements associated with the use of licenses and license exemptions or exceptions.

4. The Partner will be responsible for ensuring that the provisions of this Article apply to its Related Entities.

C. With respect to suspension and debarment requirements:

1. The Partner hereby certifies, to the best of its knowledge and belief, that it has complied, and shall comply, with 2 C.F.R. Part 180, Subpart C, as supplemented by 2 C.F.R. Part 1880, Subpart C.

2. The Partner shall include language and requirements equivalent to those set forth in subparagraph C.1., above, in any lower-tier covered transaction entered into under this Agreement.

D. With respect to the requirements in Section 889 of the National Defense Authorization Act (NDAA) for Fiscal Year 2019, Public Law 115-232:

1. In performing this Agreement, Partner will not use, integrate with a NASA system, or procure with NASA funds (if applicable), “covered telecommunications equipment or services” (as defined in Section 889(f)(3) of the NDAA).

2. The Partner will ensure that the provisions of this Article apply to its Related Entities.

E. With respect to the requirements in Section 3 (a) (1) of the “One Small Step to Protect Human Heritage in Space Act” (Pub. L. 116-275):

1. In carrying out lunar activities under this agreement, Partner shall comply with  “NASA’s Recommendations to Space-Faring Entities: How to Protect and Preserve the Historic and Scientific Value of U.S. Government Lunar Artifacts” issued on July 20, 2011 and updated on October 28, 2011, and any successor recommendations, guidelines, best practices or standards relating to the principle of due regard and the limitation of harmful interference with Apollo landing site artifacts issued by NASA.

2. The Partner will ensure that the provisions of this Article apply to its Related Entities.

2.2.14.5 COMPLIANCE WITH LAWS & REGULATIONS (FUNDED & LUNAR ACTIVITIES)

A. The Parties shall comply with all applicable laws and regulations including, but not limited to, safety; security; export control; environmental; and suspension and debarment laws and regulations. Access by the Partner to NASA facilities or property, or to a NASA Information Technology (IT) system or application, is contingent upon compliance with NASA security and safety policies and guidelines including, but not limited to, standards on badging, credentials, and facility and IT system/application access, including use of Interconnection Security Agreements (ISAs), when applicable.

B. With respect to any export control requirements:

1. The Parties will comply with all U.S. export control laws and regulations, including the International Traffic in Arms Regulations (ITAR), 22 C.F.R. Parts 120 through 130, and the Export Administration Regulations (EAR), 15 C.F.R. Parts 730 through 799, in performing work under this Agreement. In the absence of available license exemptions or exceptions, the Partner shall be responsible for obtaining the appropriate licenses or other approvals, if required, for exports of hardware, technical data and software, or for the provision of technical assistance.

2. The Partner shall be responsible for obtaining export licenses, if required, before utilizing foreign persons in the performance of work under this Agreement, including instances where the work is to be performed on-site at NASA and where the foreign person will have access to export-controlled technical data or software.

3. The Partner will be responsible for all regulatory record-keeping requirements associated with the use of licenses and license exemptions or exceptions.

4. The Partner will be responsible for ensuring that the provisions of this Article apply to its Related Entities.

C. With respect to suspension and debarment requirements:

1. The Partner hereby certifies, to the best of its knowledge and belief, that it has complied, and shall comply, with 2 C.F.R. Part 180, Subpart C, as supplemented by 2 C.F.R. Part 1880, Subpart C.

2. The Partner shall include language and requirements equivalent to those set forth in subparagraph C.1., above, in any lower-tier covered transaction entered into under this Agreement.

D. Partner shall annually certify the following to the NASA Administrative Contact to this Agreement:

1. Neither Partner nor any of its subcontractors nor partners are presently debarred, suspended, proposed for debarment, or otherwise declared ineligible for award of funding by any Federal agency;

2. Neither Partner nor any of its subcontractors nor partners have been convicted or had a civil judgment rendered against them within the last three (3) years for fraud in obtaining, attempting to obtain, or performing a Government contract;

3. Partner and any of its team members, subcontractors, or partners receiving $100,000 or more in NASA funding for work performed under this Agreement must have not used any appropriated funds for lobbying purposes prohibited by 31 U.S.C. § 1352; and

4. The Partner is an entity organized under the laws of the United States, which is:

A. More than 50 percent owned and controlled by United States nationals; or

B. A subsidiary of a foreign company and such subsidiary has in the past evidenced a substantial commitment to the United States market through –

a. Investments in the United States in long-term research, development, and manufacturing (including the manufacture of major components and subassemblies); and

b. Significant contributions to employment in the United States.  

E. NASA conducts research with foreign entities only on a cooperative, no-exchange-of funds basis. Although foreign individuals employed by the Partner in support of this FSAA may receive NASA funds, NASA funding may not support research efforts, including travel, by non-U.S. organizations, including sub-Partners, at any level. The direct purchase of supplies and/or services, which do not constitute research, from non-U.S. sources by the Partner is permitted.

F. Pursuant to The Department of Defense and Full-Year Appropriation Act, Public Law 112-10, Section 1340(a); The Consolidated and Further Continuing Appropriation Act of 2012, Public Law 112-55, Section 539; and future-year appropriations (hereinafter, “the Acts”), NASA is restricted from using funds appropriated in the Acts to enter into or fund any agreement of any kind to participate, collaborate, or coordinate bilaterally with China or any Chinese-owned company, at the prime recipient level or at any subrecipient level, whether the bilateral involvement is funded or performed under a no-exchange of funds arrangement. Partner hereby certifies that it is not China or a Chinese-owned company, and that the Partner will not participate, collaborate, or coordinate bilaterally with China or any Chinese-owned company, at the prime recipient level or at any subrecipient level, whether the bilateral involvement is funded or performed under a no-exchange of funds arrangement.

(a) Definition: “China or Chinese-owned Company” means the People’s Republic of China, any company owned by the People’s Republic of China, or any company incorporated under the laws of the People’s Republic of China.

(b) The restrictions in the Acts do not apply to commercial items of supply needed to perform this agreement. However, Partner shall disclose to NASA if it anticipates making any award, including those for the procurement of commercial items, to China or a Chinese-owned entity.

(c) Subawards – The Partner shall include the substance of this provision in all subawards made hereunder.

In addition to the above certification, Partner shall immediately disclose to the NASA Administrative Contact, for any individual involved in this NASA-funded activity, any current or pending professional and educational affiliations or commitments to China or a Chinese-owned company, including Chinese universities.

G. Regarding INKSNA requirements, Partner shall disclose to NASA if it intends to rely upon Russian entities for its demonstration. Partner shall not subcontract to Russian entities without first receiving written approval from NASA.

(a) Definitions: In this provision:

(1) The term “Russian entities” means:

(A) Russian persons, or

(B) Entities created under Russian law or owned, in whole or in part, by Russian persons or companies including, but not limited to, the following:

(i) The Russian Federal Space Agency (Roscosmos),

(ii) Any organization or entity under the jurisdiction or control of Roscosmos, or

(iii) Any other organization, entity or element of the Government of the Russian Federation.

(2) The term “extraordinary payments” means payments in cash or in kind made or to be made by the United States Government prior to December 31, 2025, for work to be performed or services to be rendered prior to that date necessary to meet United States obligations under the Agreement Concerning Cooperation on the Civil International Space Station, with annex, signed at Washington January 29, 1998, and entered into force March 27, 2001, or any protocol, agreement, memorandum of understanding, or contract related thereto.

(b) This clause implements the reporting requirement in section 6(i) of the Iran, North Korea, and Syria Nonproliferation Act. The provisions of this clause are without prejudice to the question of whether the Partner or its subcontractor(s) are making extraordinary payments under section 6(a) or fall within the exceptions in section 7(1)(B) of the Act. NASA has applied the restrictions in the Act to include funding of Russian entities via U.S. Contractors (Awardees).

(c) (1) The Partner shall not subcontract with Russian entities without first receiving written approval from the NASA Administrative Contact. In order to obtain this written approval to subcontract with any Russian entity as defined in paragraphs (a), the Partner shall provide the NASA Administrative Contact with the following information related to each planned new subcontract and any change to an existing subcontract with entities that fit the description in paragraph (a):

(A) A detailed description of the subcontracting entity, including its name, address, and a point of contact, as well as a detailed description of the proposed subcontract including the specific purpose of payments that will made under the subcontract.

(B) The Partner shall provide certification that the subcontracting entity is not, at the date of the subcontract approval request, on any of the lists of proscribed denied parties, specially designated nationals and entities of concern found at:

BIS’s Listing of Entities of Concern

(see http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern/entity-list)

BIS’s List of Denied Parties

(see http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern/denied-persons-list)

OFAC’s List of Specially Designated Nationals

(see http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx)

List of Unverified Persons in Foreign Countries (see http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern/unverified-list)

State Department’s List of Parties Statutorily Debarred for Arms Export Control Act Convictions (see https://www.pmddtc.state.gov/ddtc_public?id=ddtc_kb_article_page&sys_id=7188dac6db3cd30044f9ff621f961914)

State Department’s Lists of Proliferating Entities (see http://www.state.gov/t/isn/c15231.htm)

(2) Unless relief is granted by the NASA Administrative Contact, the information necessary to obtain approval to subcontract shall be provided to the NASA Administrative Contact 30 business days prior to executing any planned subcontract with entities defined in paragraph (a).

(d) After receiving approval to subcontract, the Partner shall provide the NASA Administrative Contact with a report every six months that documents the individual payments made to an entity in paragraph (a). The reports are due on July 15th and January 15th. The July 15th report shall document all of the individual payments made from the previous January through June. The January 15th report shall document all of the individual payments made from the previous July through December. The content of the report shall provide the following information for each time a payment is made to an entity in paragraph (a):

(1) The name of the entity

(2) The subcontract number

(3) The amount of the payment

(4) The date of the payment

(e) The NASA Administrative Contact may direct the Partner to provide additional information for any other prospective or existing subcontract at any tier. The NASA Administrative Contact may direct the Partner to terminate for the convenience of the Government any subcontract at any tier with an entity described in paragraph (a), subject to an equitable adjustment.

(f) On or after December 31, 2025, the Partner shall be responsible to make payments to entities defined in paragraph (a) of this provision. Any subcontract with entities defined in paragraph (a), therefore, shall be completed in sufficient time to permit the U.S. Government to make extraordinary payments on subcontracts with Russian entities on or before December 31, 2025.

(g) The Partner shall include the substance of this clause in all its subcontracts and shall require such inclusion in all other subcontracts of any tier. The Partner shall be responsible to obtain written approval from the NASA Administrative Contact to enter into any tier subcontract that involves entities defined in paragraph (a).

H. With respect to the requirements in Section 889 of the National Defense Authorization Act (NDAA) for Fiscal Year 2019, Public Law 115-232:

1. In performing this Agreement, Partner will not use, integrate with a NASA system, or procure with NASA funds “covered telecommunications equipment or services” (as defined in Section 889(f)(3) of the NDAA).

2. The Partner will ensure that the provisions of this Article apply to its Related Entities.

I. With respect to the requirements in Section 3 (a) (1) of the “One Small Step to Protect Human Heritage in Space Act” (Pub. L. 116-275):

1. In carrying out lunar activities under this agreement, Partner shall comply with  “NASA’s Recommendations to Space-Faring Entities: How to Protect and Preserve the Historic and Scientific Value of U.S. Government Lunar Artifacts” issued on July 20, 2011 and updated on October 28, 2011, and any successor recommendations, guidelines, best practices or standards relating to the principle of due regard and the limitation of harmful interference with Apollo landing site artifacts issued by NASA.

2. The Partner will ensure that the provisions of this Article apply to its Related Entities.

2.2.14.6 COMPLIANCE WITH LAWS & REGULATIONS (FUNDED WITH STS SERVICES & LUNAR ACTIVITIES)

A. The Parties shall comply with all applicable laws and regulations including, but not limited to, safety; security; export control; environmental; and suspension and debarment laws and regulations. Access by the Partner to NASA facilities or property, or to a NASA Information Technology (IT) system or application, is contingent upon compliance with NASA security and safety policies and guidelines including, but not limited to, standards on badging, credentials, and facility and IT system/application access, including use of Interconnection Security Agreements (ISAs), when applicable.

B. With respect to any export control requirements:

1. The Parties will comply with all U.S. export control laws and regulations, including the International Traffic in Arms Regulations (ITAR), 22 C.F.R. Parts 120 through 130, and the Export Administration Regulations (EAR), 15 C.F.R. Parts 730 through 799, in performing work under this Agreement. In the absence of available license exemptions or exceptions, the Partner shall be responsible for obtaining the appropriate licenses or other approvals, if required, for exports of hardware, technical data and software, or for the provision of technical assistance.

2. The Partner shall be responsible for obtaining export licenses, if required, before utilizing foreign persons in the performance of work under this Agreement, including instances where the work is to be performed on-site at NASA and where the foreign person will have access to export-controlled technical data or software.

3. The Partner will be responsible for all regulatory record-keeping requirements associated with the use of licenses and license exemptions or exceptions.

4. The Partner will be responsible for ensuring that the provisions of this Article apply to its Related Entities.

C. With respect to suspension and debarment requirements:

1. The Partner hereby certifies, to the best of its knowledge and belief, that it has complied, and shall comply, with 2 C.F.R. Part 180, Subpart C, as supplemented by 2 C.F.R. Part 1880, Subpart C.

2. The Partner shall include language and requirements equivalent to those set forth in subparagraph C.1., above, in any lower-tier covered transaction entered into under this Agreement.

D. Partner shall annually certify the following to the NASA Administrative Contact to this Agreement:

1. Neither Partner nor any of its subcontractors nor partners are presently debarred, suspended, proposed for debarment, or otherwise declared ineligible for award of funding by any Federal agency;

2. Neither Partner nor any of its subcontractors nor partners have been convicted or had a civil judgment rendered against them within the last three (3) years for fraud in obtaining, attempting to obtain, or performing a Government contract;

3. Partner and any of its team members, subcontractors, or partners receiving $100,000 or more in NASA funding for work performed under this Agreement must have not used any appropriated funds for lobbying purposes prohibited by 31 U.S.C. § 1352; and

4. Partner is an eligible entity organized under the laws of the United States or of a State, which is:

A. More than 50 percent owned by United States nationals; or

B. A subsidiary of a foreign company and the Secretary of Transportation finds that –

(i) Such subsidiary has in the past evidenced a substantial commitment to the United States market through –

a. Investments in the United States in long-term research, development, and manufacturing (including the manufacture of major components and subassemblies); and

b. Significant contributions to employment in the United States; and

(ii) The country or countries in which such foreign company is incorporated or organized, and, if appropriate, in which it principally conducts its business, affords reciprocal treatment to companies described in subparagraph A comparable to that afforded to such foreign company’s subsidiary in the United States, as evidenced by –

a. Providing comparable opportunities for companies described in subparagraph A. to participate in Government sponsored research and development similar to that authorized under Title 51 U.S.C. Chapter 501 (Space Commerce).

b. Providing no barriers, to companies described in subparagraph A. with respect to local investment opportunities, that are not provided to foreign companies in the United States; and

c. Providing adequate and effective protection for the intellectual property rights of companies described in subparagraph A.

To the extent a Participant proposes government funding of any part of a commercial launch, the entity providing those launch services must meet the above eligibility requirements.  In accordance with the National Space Transportation Policy, use of a non-U.S. manufactured launch vehicle is permitted only on a no-exchange-of-funds basis.

E. NASA conducts research with foreign entities only on a cooperative, no-exchange-of funds basis. Although foreign individuals employed by the Partner in support of this FSAA may receive NASA funds, NASA funding may not support research efforts, including travel, by non-U.S. organizations, including sub-Partners, at any level. The direct purchase of supplies and/or services, which do not constitute research, from non-U.S. sources by the Partner is permitted.

F. Pursuant to The Department of Defense and Full-Year Appropriation Act, Public Law 112-10, Section 1340(a); The Consolidated and Further Continuing Appropriation Act of 2012, Public Law 112-55, Section 539; and future-year appropriations (hereinafter, “the Acts”), NASA is restricted from using funds appropriated in the Acts to enter into or fund any agreement of any kind to participate, collaborate, or coordinate bilaterally with China or any Chinese-owned company, at the prime recipient level or at any subrecipient level, whether the bilateral involvement is funded or performed under a no-exchange of funds arrangement. Partner hereby certifies that it is not China or a Chinese-owned company, and that the Partner will not participate, collaborate, or coordinate bilaterally with China or any Chinese-owned company, at the prime recipient level or at any subrecipient level, whether the bilateral involvement is funded or performed under a no-exchange of funds arrangement.

(a) Definition: “China or Chinese-owned Company” means the People’s Republic of China, any company owned by the People’s Republic of China, or any company incorporated under the laws of the People’s Republic of China.

(b) The restrictions in the Acts do not apply to commercial items of supply needed to perform this Agreement. However, Partner shall disclose to NASA if it anticipates making any award, including those for the procurement of commercial items, to China or a Chinese-owned entity.

(c) Subawards – The Partner shall include the substance of this provision in all subawards made hereunder.

In addition to the above certification, Partner shall immediately disclose to the NASA Administrative Contact, for any individual involved in this NASA-funded activity, any current or pending professional and educational affiliations or commitments to China or a Chinese-owned company, including Chinese universities.

G. Regarding INKSNA requirements, Partner shall disclose to NASA if it intends to rely upon Russian entities for its demonstration. Partner shall not subcontract to Russian entities without first receiving written approval from NASA.

(a) Definitions: In this provision:

(1) The term “Russian entities” means:

(A) Russian persons, or

(B) Entities created under Russian law or owned, in whole or in part, by Russian persons or companies including, but not limited to, the following:

(i) The Russian Federal Space Agency (Roscosmos),

(ii) Any organization or entity under the jurisdiction or control of Roscosmos, or

(iii) Any other organization, entity or element of the Government of the Russian Federation.

(2) The term “extraordinary payments” means payments in cash or in kind made or to be made by the United States Government prior to December 31, 2025, for work to be performed or services to be rendered prior to that date necessary to meet United States obligations under the Agreement Concerning Cooperation on the Civil International Space Station, with annex, signed at Washington January 29, 1998, and entered into force March 27, 2001, or any protocol, agreement, memorandum of understanding, or contract related thereto.

(b) This clause implements the reporting requirement in section 6(i) of the Iran, North Korea, and Syria Nonproliferation Act. The provisions of this clause are without prejudice to the question of whether the Partner or its subcontractor(s) are making extraordinary payments under section 6(a) or fall within the exceptions in section 7(1)(B) of the Act. NASA has applied the restrictions in the Act to include funding of Russian entities via U.S. Contractors (Awardees).

(c) (1) The Partner shall not subcontract with Russian entities without first receiving written approval from the NASA Administrative Contact. In order to obtain this written approval to subcontract with any Russian entity as defined in paragraphs (a), the Partner shall provide the NASA Administrative Contact with the following information related to each planned new subcontract and any change to an existing subcontract with entities that fit the description in paragraph (a):

(A) A detailed description of the subcontracting entity, including its name, address, and a point of contact, as well as a detailed description of the proposed subcontract including the specific purpose of payments that will made under the subcontract.

(B) The Partner shall provide certification that the subcontracting entity is not, at the date of the subcontract approval request, on any of the lists of proscribed denied parties, specially designated nationals and entities of concern found at:

BIS’s Listing of Entities of Concern

(see http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern/entity-list)

BIS’s List of Denied Parties

(see http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern/denied-persons-list)

OFAC’s List of Specially Designated Nationals

(see http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx)

List of Unverified Persons in Foreign Countries (see http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern/unverified-list)

State Department’s List of Parties Statutorily Debarred for Arms Export Control Act Convictions (see https://www.pmddtc.state.gov/ddtc_public?id=ddtc_kb_article_page&sys_id=7188dac6db3cd30044f9ff621f961914)

State Department’s Lists of Proliferating Entities (see http://www.state.gov/t/isn/c15231.htm)

(2) Unless relief is granted by the NASA Administrative Contact, the information necessary to obtain approval to subcontract shall be provided to the NASA Administrative Contact 30 business days prior to executing any planned subcontract with entities defined in paragraph (a).

(d) After receiving approval to subcontract, the Partner shall provide the NASA Administrative Contact with a report every six months that documents the individual payments made to an entity in paragraph (a). The reports are due on July 15th and January 15th. The July 15th report shall document all of the individual payments made from the previous January through June. The January 15th report shall document all of the individual payments made from the previous July through December. The content of the report shall provide the following information for each time a payment is made to an entity in paragraph (a):

(1) The name of the entity

(2) The subcontract number

(3) The amount of the payment

(4) The date of the payment

(e) The NASA Administrative Contact may direct the Partner to provide additional information for any other prospective or existing subcontract at any tier. The NASA Administrative Contact may direct the Partner to terminate for the convenience of the Government any subcontract at any tier with an entity described in paragraph (a), subject to an equitable adjustment.

(f) On or after December 31, 2025, the Partner shall be responsible to make payments to entities defined in paragraph (a) of this provision. Any subcontract with entities defined in paragraph (a), therefore, shall be completed in sufficient time to permit the U.S. Government to make extraordinary payments on subcontracts with Russian entities on or before December 31, 2025.

(g) The Partner shall include the substance of this clause in all its subcontracts and shall require such inclusion in all other subcontracts of any tier. The Partner shall be responsible to obtain written approval from the NASA Administrative Contact to enter into any tier subcontract that involves entities defined in paragraph (a).

H. With respect to the requirements in Section 889 of the National Defense Authorization Act (NDAA) for Fiscal Year 2019, Public Law 115-232:

1. In performing this Agreement, Partner will not use, integrate with a NASA system, or procure with NASA funds “covered telecommunications equipment or services” (as defined in Section 889(f)(3) of the NDAA).

2. The Partner will ensure that the provisions of this Article apply to its Related Entities.

I. With respect to the requirements in Section 3 (a) (1) of the “One Small Step to Protect Human Heritage in Space Act” (Pub. L. 116-275):

1. In carrying out lunar activities under this agreement, Partner shall comply with  “NASA’s Recommendations to Space-Faring Entities: How to Protect and Preserve the Historic and Scientific Value of U.S. Government Lunar Artifacts” issued on July 20, 2011 and updated on October 28, 2011, and any successor recommendations, guidelines, best practices or standards relating to the principle of due regard and the limitation of harmful interference with Apollo landing site artifacts issued by NASA.

2. The Partner will ensure that the provisions of this Article apply to its Related Entities.

TERM OF AGREEMENT

2.2.15.1 TERM

This Agreement becomes effective upon the date of the last signature below (“Effective Date”) and shall remain in effect until the completion of all obligations of both Parties hereto, or [enter a term from one to five] years from the Effective Date, whichever comes first.

2.2.15.2 TERM (ANNEX)

This Annex becomes effective upon the date of the last signature below (“Effective Date”) and shall remain in effect until the completion of all obligations of both Parties hereto, or [enter a term from one to five] years from the Effective Date, whichever comes first, unless such term exceeds the duration of the Umbrella Agreement.  The term of this Annex shall not exceed the term of the Umbrella Agreement.  The Annex automatically expires upon the expiration of the Umbrella Agreement.

TERMINATION

2.2.16.1 TERMINATION (NONREIMBURSABLE)

Either Party may unilaterally terminate this Agreement by providing thirty (30) calendar days written notice to the other Party.

2.2.16.2 TERMINATION (REIMBURSABLE)

Either Party may unilaterally terminate this Agreement by providing thirty (30) calendar days written notice to the other Party.  In the event of such termination, Partner will be obligated to reimburse NASA for all costs for which the Partner was responsible and that have been incurred in support of this Agreement up to the date the termination notice is received by NASA.  Where Partner terminates this Agreement, Partner will also be responsible for termination costs.

2.2.16.3 TERMINATION (REIMBURSABLE, REQUIRING HIGH CERTAINTY OF SUPPORT)

A.  NASA’s commitment under this Agreement to make available government property and services required by Partner may be terminated by NASA, in whole or in part,

(a) upon a declaration of war by the Congress of the United States, or (b) upon a declaration of a national emergency by the President of the United States, or (c) upon Partner’s failure to make payments as set forth in the “Financial Obligations” Article, or (d) upon Partner’s failure to meet its obligations under the Agreement, or (e) upon a NASA determination, in writing, that NASA is required to terminate such services for reasons beyond its control.  For purposes of this Article, reasons beyond NASA’s control are reasons which make impractical or impossible NASA’s or its contractors’ or subcontractors’ performance of this Agreement.  Such reasons include, but are not limited to, acts of God or of the public enemy, acts of the U.S. Government other than NASA, in either its sovereign or contractual capacity (to include failure of Congress to appropriate sufficient funding), fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, or unusually severe weather.

B.  In the event of termination for reasons given above, NASA will seek to provide reasonable advance notice and will seek to mitigate the effect of such termination, if possible, and will enter into discussions with Partner for that purpose.  For the use of property or services provided for on a fixed-price basis, the costs incurred by the United States, including termination costs, shall not exceed the fixed price of the services which would have been provided had termination not occurred.  For use of property or services provided on a cost basis, partner will be liable for all costs, consistent with law and NASA policy, which are incurred by NASA in the provision of property or services, including termination costs associated with the Agreement activities.

C.  NASA shall not be liable for any costs, loss of profits, revenue, or other direct, indirect, or consequential damages incurred by Partner, its contractors, subcontractors, or customers as a result of the termination by NASA pursuant to paragraph A of this Article.

D.  Partner shall have the right to terminate, in whole or in part, this Agreement at any time.  In the event of such termination, Partner will be obligated to reimburse NASA for all its costs which have been incurred in support of this Agreement up to the date the termination notice was received by NASA as well as those costs which are incurred as a result of such termination. 

E.  This Article is not intended to limit or govern the right of NASA or Partner, in accordance with law, to terminate its performance under this Agreement, in whole or in part, for Partner’s or NASA’s breach of a provision in this Agreement.

2.2.16.4 TERMINATION (NONREIMBURSABLE UMBRELLA)

Either Party may unilaterally terminate this Umbrella Agreement or any Annex(es) by providing thirty (30) calendar days written notice to the other Party.  Termination of an Annex does not terminate this Umbrella Agreement.  However, the termination or expiration of this Umbrella Agreement also constitutes the termination of all outstanding Annexes.

2.2.16.5 TERMINATION (REIMBURSABLE UMBRELLA)

Either Party may unilaterally terminate this Umbrella Agreement or any Annex(es) by providing thirty (30) calendar days written notice to the other Party.  Termination of an Annex does not terminate this Umbrella Agreement.  However, the termination or expiration of this Umbrella Agreement also constitutes the termination of all outstanding Annexes.  In the event of termination of any of the Annex(es), Partner will be obligated to reimburse NASA for all its costs which have been incurred in support of that Annex(es) up to the date the termination notice was received by NASA.  In the event of termination of this Umbrella Agreement, Partner will be obligated to reimburse NASA for all costs which it incurred in support of this Umbrella Agreement up to the date the termination notice was received by NASA.  Where Partner terminates this Umbrella Agreement or any Annex(es), Partner will also be responsible for those costs which are incurred as a result of such termination.

2.2.16.6 TERMINATION (NONREIMBURSABLE ANNEX)

Either Party may unilaterally terminate this Annex by providing thirty (30) calendar days written notice to the other Party.

2.2.16.7 TERMINATION (REIMBURSABLE ANNEX)

Either Party may unilaterally terminate this Annex by providing thirty (30) calendar days written notice to the other Party.

2.2.16.8 TERMINATION (UNFUNDED)

Either Party may unilaterally terminate this Agreement by providing thirty (30) calendar days written notice to the other Party.

2.2.16.9 TERMINATION (FUNDED)

A. Termination by Mutual Consent. 

This Agreement may be terminated at any time upon mutual written consent of both Parties.

B. Termination for Failure to Perform

(1)  At its discretion, NASA may terminate this Agreement 30 days after issuance of a written notification that Partner has failed to perform under this Agreement, by failure to meet a scheduled milestone as identified and described in Appendix A.  Before making such a notification, NASA shall consult with Partner to ascertain the cause of the failure and determine whether additional efforts are in the best interest of the Parties.  Upon such a notification and determination, NASA will take all rights identified in “INTELLECTUAL PROPERTY RIGHTS – DATA RIGHTS” and “INTELLECTUAL PROPERTY RIGHTS – INVENTION AND PATENT RIGHTS” of this Agreement.

(2)  If  Partner fails to meet the criteria for successful completion of a milestone contained in Appendix A, Partner shall not be entitled to any payment from the Government associated with the failed milestone, nor shall Partner be entitled to any payments for termination-related expenses. NASA and Partner will negotiate in good faith any other  issues unrelated to milestone completion and payments between the Parties. Partner shall retain all payments made and received as of the date of termination.

C. Unilateral Termination by NASA:

(1)  NASA may unilaterally terminate this Agreement upon written notice as follows.  NASA’s obligations under this Agreement may be terminated, in whole or in part, (a) upon a declaration of war by the Congress of the United States; or (b) upon a declaration of a national emergency by the President of the United States; or (c) upon a NASA determination, in writing, that NASA is required to terminate for reasons beyond its control; or (d) upon a detemination, in writing, by the Administrator of the National Aeronautics and Space Administration (NASA) or duly authorized representative that [INSERT TITLE OF AGREEMENT ACTIVITY ] no longer aligns with the Agency’s strategic objectives such that it is not in NASA’s best interests to continue performance of this Agreement.  For purposes of Section C.(1)(c) of this Article (above), reasons beyond NASA’s control include, but are not limited to, acts of God or of the public enemy, acts of the U.S. Government other than NASA, in either its sovereign or contractual capacity (to include failure of Congress to appropriate sufficient funding or Congressionally directed changes in Agency priorities), fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, or unusually severe weather.

(2)  Upon receipt of written notification that the Government is unilaterally terminating this Agreement, Partner shall immediately stop work under this Agreement and shall immediately cause any and all of its partners and suppliers to cease work, except to the extent that the Partner wishes to pursue these demonstrations exclusively using its own funding.  Upon such a termination, NASA and the Partner agree to negotiate in good faith a final settlement payment to be made by NASA.  However, in no instance shall NASA’s liability for termination exceed the total amount due under the milestone to which the Partner was performing at the time the termination notice is issued and is subject to the provisions of “Financial Obligations”.  Partner shall retain without liability or obligation of repayment all NASA payments made and received as of the date of termination.  Failure of the parties to agree will be resolved pursuant to “DISPUTE RESOLUTION”.

D. Limitation on Damages.

In the event of any termination by NASA, neither NASA nor the Partner shall be liable for any loss of profits, revenue, or any indirect or consequential damages incurred by the other Party, its contractors, subcontractors, or customers as a result of any termination of this Agreement.  A Party’s liability for any damages under this Agreement is limited solely to direct damages, incurred by the other Party, as a result of any termination of this Agreement subject to mitigation of such damages by the complaining party.  However, in no instance shall NASA’s liability for termination exceed the total amount due under the milestone to which the Partner was performing at the time the termination notice is issued.

E. Rights in Property

Partner will have title to property acquired or developed by the Partner and its contractors/partners with Government funding, in whole or in part to conduct the work specified under this Agreement.  In the event of termination of this Agreement for any reason, NASA may purchase such property as provided in “TITLE AND RIGHTS IN REAL AND PERSONAL PROPERTY”.  Upon any termination under this Article, NASA may immediately exercise all rights identified in “INTELLECTUAL PROPERTY RIGHTS – DATA RIGHTS” and “INTELLECTUAL PROPERTY RIGHTS – INVENTION AND PATENT RIGHTS”.

CONTINUING OBLIGATIONS

2.2.17 CONTINUING OBLIGATIONS

The rights and obligations of the Parties that, by their nature, would continue beyond the expiration or termination of this Agreement, e.g., “Liability and Risk of Loss” and “Intellectual Property Rights” related clauses [and “Financial Obligations” if Reimbursable] shall survive such expiration or termination of this Agreement.

POINTS OF CONTACT

2.2.18.1 POINTS OF CONTACT

The following personnel are designated as the Points of Contact between the Parties in the performance of this Agreement. 

Management Points of Contact:

NASAPartner
NameName
TitleTitle
EmailEmail
TelephoneTelephone
CellCell
FaxFax
AddressAddress

Technical Points of Contact:

NASAPartner
NameName
TitleTitle
EmailEmail
TelephoneTelephone
CellCell
FaxFax
AddressAddress

[Note:  Add one or more Points of Contact identifying Principal Investigators, if the sample clause 2.2.10.2. Intellectual Property Rights – Rights in Raw Data (Sample Clause) is included in the SAA.]

Principal Investigators:

NASAPartner
NameName
TitleTitle
EmailEmail
TelephoneTelephone
CellCell
FaxFax
AddressAddress

2.2.18.2 POINTS OF CONTACT (UMBRELLA)

The following personnel are designated as the Points of Contact between the Parties in the performance of this Agreement.  Annexes may designate Points of Contact for purposes of the Annex activities.

Management Points of Contact:

NASAPartner
NameName
TitleTitle
EmailEmail
TelephoneTelephone
CellCell
FaxFax
AddressAddress

Technical Points of Contact:

NASAPartner
NameName
TitleTitle
EmailEmail
TelephoneTelephone
CellCell
FaxFax
AddressAddress

[Note:  Add one or more Points of Contact identifying Principal Investigators, if the sample clause 2.2.10.2. Intellectual Property Rights – Rights in Raw Data (Sample Clause) is included in the SAA.]

Principal Investigators:

NASAPartner
NameName
TitleTitle
EmailEmail
TelephoneTelephone
CellCell
FaxFax
AddressAddress

2.2.18.3 POINTS OF CONTACT (ANNEX)

The following personnel are designated as the Points of Contact between the Parties in the performance of this Annex.

Management Points of Contact:

NASAPartner
NameName
TitleTitle
EmailEmail
TelephoneTelephone
CellCell
FaxFax
AddressAddress

Technical Points of Contact:

NASAPartner
NameName
TitleTitle
EmailEmail
TelephoneTelephone
CellCell
FaxFax
AddressAddress

[Note:  Add one or more Points of Contact identifying Principal Investigators, if the sample clause 2.2.10.2. Intellectual Property Rights – Rights in Raw Data (Sample Clause) is included in the SAA.]

Principal Investigators:

NASAPartner
NameName
TitleTitle
EmailEmail
TelephoneTelephone
CellCell
FaxFax
AddressAddress

DISPUTE RESOLUTION

2.2.19.1 DISPUTE RESOLUTION

Except as otherwise provided in the Article entitled “Priority of Use,” the Article entitled “Intellectual Property Rights – Invention and Patent Rights” (for those activities governed by 37 C.F.R. Part 404), and those situations where a pre-existing statutory or regulatory system exists (e.g., under the Freedom of Information Act, 5 U.S.C. § 552), all disputes concerning questions of fact or law arising under this Agreement shall be referred by the claimant in writing to the appropriate person identified in this Agreement as the  “Points of Contact.”  The persons identified as the “Points of Contact” for NASA and the Partner will consult and attempt to resolve all issues arising from the implementation of this Agreement.  If they are unable to come to agreement on any issue, the dispute will be referred to the signatories to this Agreement, or their designees, for joint resolution.  If the Parties remain unable to resolve the dispute, then the NASA signatory or that person’s designee, as applicable, will issue a written decision that will be the final agency decision for the purpose of judicial review.  Nothing in this Article limits or prevents either Party from pursuing any other right or remedy available by law upon the issuance of the final agency decision.

2.2.19.2 DISPUTE RESOLUTION (UMBRELLA)

Except as otherwise provided in the Article entitled “Priority of Use,” the Article entitled “Intellectual Property Rights – Invention and Patent Rights” (for those activities governed by 37 C.F.R. Part 404), and those situations where a pre-existing statutory or regulatory system exists (e.g., under the Freedom of Information Act, 5 U.S.C. § 552), all disputes concerning questions of fact or law arising under this Agreement or Annex shall be referred by the claimant in writing to the appropriate person identified in this Agreement for purposes of the activities undertaken in the Agreement, or Annex(es) for purposes of the activities undertaken in the Annex(es) as the “Points of Contact.”  The persons identified as the “Points of Contact” for NASA and the Partner will consult and attempt to resolve all issues arising from the implementation of this Agreement.  If they are unable to come to agreement on any issue, the dispute will be referred to the signatories to this Agreement, or their designees, for joint resolution.  If the Parties remain unable to resolve the dispute, then the NASA signatory or that person’s designee, as applicable, will issue a written decision that will be the final agency decision for the purpose of judicial review.  Nothing in this Article limits or prevents either Party from pursuing any other right or remedy available by law upon the issuance of the final agency decision.

2.2.19.3 DISPUTE RESOLUTION (FUNDED)

Except as otherwise provided in the Article entitled “Intellectual Property Rights – Invention and Patent Rights” (for those activities governed by 37 C.F.R. Part 404), and those situations where a pre-existing statutory or regulatory system exists (e.g., under the Freedom of Information Act, 5 U.S.C. § 552), all disputes concerning questions of fact or law arising under this Agreement shall be referred by the claimant in writing to the appropriate person identified in this Agreement as the “Points of Contact.” The persons identified as the “Points of Contact” for NASA and the Partner will consult and attempt to resolve all issues arising from the implementation of this Agreement. If they are unable to come to agreement on any issue, the dispute will be referred to the signatories to this Agreement, or their designees, for joint resolution. If the Parties remain unable to resolve the dispute, then the NASA signatory or that person’s designee, as applicable, will issue a written decision that will be the final agency decision for the purpose of judicial review. In no event shall resolution of issues in Dispute result in liability above or beyond the funding obligated to the Agreement.  Nothing in this Article limits or prevents either Party from pursuing any other right or remedy available by law upon the issuance of the final agency decision.

INVESTIGATIONS OF MISHAPS AND CLOSE CALLS

2.2.20 INVESTIGATIONS OF MISHAPS & CLOSE CALLS

In the case of a close call, mishap or mission failure, the Parties agree to provide assistance to each other in the conduct of any investigation.  For all NASA mishaps or close calls, Partner agrees to comply with NPR 8621.1, “NASA Procedural Requirements for Mishap and Close Call Reporting, Investigating, and Recordkeeping” and [insert Center safety policies, as appropriate].

MODIFICATIONS

2.2.21.1 MODIFICATIONS

Any modification to this Agreement shall be executed, in writing, and signed by an authorized representative of NASA and the Partner.

2.2.21.2 MODIFICATIONS (UMBRELLA)

Any modification to this Umbrella Agreement shall be executed, in writing, and signed by an authorized representative of NASA and the Partner.  Accompanying Annexes may be modified under the same terms.  Modification of an Annex does not modify the Umbrella Agreement.

2.2.21.3 MODIFICATIONS (ANNEX)

Any modification to this Annex shall be executed, in writing, and signed by an authorized representative of NASA and the Partner.  Modification of an Annex does not modify the terms of the Umbrella Agreement.

ASSIGNMENT

2.2.22 ASSIGNMENT

Neither this Agreement nor any interest arising under it will be assigned by the Partner or NASA without the express written consent of the officials executing, or successors, or higher- level officials possessing original or delegated authority to execute this Agreement.

APPLICABLE LAW

2.2.23 APPLICABLE LAW

U.S. Federal law governs this Agreement for all purposes, including, but not limited to, determining the validity of the Agreement, the meaning of its provisions, and the rights, obligations and remedies of the Parties.

INDEPENDENT RELATIONSHIP

2.2.24 INDEPENDENT RELATIONSHIP

This Agreement is not intended to constitute, create, give effect to or otherwise recognize a joint venture, partnership, or formal business organization, or agency agreement of any kind, and the rights and obligations of the Parties shall be only those expressly set forth herein.

GOVERNMENT PROPERTY

2.2.25 GOVERNMENT PROPERTY

A. NASA Equipment.

The parties shall enter into a NASA Form 893, Loan of NASA Equipment, for NASA equipment loaned to Partner.

B. NASA Real Property.

In the event the Partner seeks to occupy NASA real property, to exercise exclusive use over NASA real property, or to improve NASA real property, NASA may require the Parties enter into a real property agreement in accordance with NASA’s standard processes and procedures.

TITLE AND RIGHTS IN REAL AND PERSONAL PROPERTY

2.2.26 TITLE & RIGHTS IN REAL & PERSONAL PROPERTY (FUNDED)

Partner will have title to property acquired or developed by Partners under this Agreement.  In the event of termination of this Agreement for any reason under “RIGHT TO TERMINATE”, NASA will have the right to purchase any such property additional to NASA’s immediately exercised rights identified in “INTELLECTUAL PROPERTY RIGHTS – DATA RIGHTS” and “INTELLECTUAL PROPERTY RIGHTS – INVENTION AND PATENT RIGHTS”.  The Parties will negotiate in good faith purchase prices for specific items of property.  The negotiated prices will be based on the Partner’s actual costs for purchase or development of the specific item(s), or fair market value, whichever is less.  This price will then be discounted by a percentage that reflects the ratio of Government funding provided under the Agreement versus the amount of Partner funding used to develop the specific item(s) of property.  ($2 of Government funds v. $1 of Partners funds = 2/3 = 66.6% discount.).

NASA FURNISHED INFORMATION AND SERVICES

2.2.27 NASA FURNISHED INFORMATION & SERVICES (FUNDED)

A. NASA may, at its sole discretion and on terms to be negotiated between the Parties, accommodate low-level requests, such as for a document, telecon, or Technical Interchange Meeting (TIM) of one day or less duration. Unless NASA specifically requires Partner to use NASA furnished services, technical expertise or Government Property to fulfill its obligations under this Agreement, any decision by Partner to use NASA furnished services, technical expertise or Government Property shall be at Partner’s option and sole discretion. Partner shall remain solely responsible for completion of its milestones under this Agreement regardless of the availability of use of such optional NASA services, technical expertise, or Government Property. 

B. Partner may enter into separate fully reimbursable agreements with NASA Centers to use NASA resources in performance of this Agreement.  The terms and conditions of those agreements will govern the use of NASA resources not being provided under this Agreement.  With each of its subcontractors or partners, including NASA Centers, Partner will be responsible for ensuring timely, accurate work, and replacing such subcontractors or partners, where necessary and appropriate, and at the discretion of Partner, in order to meet milestones. Partner shall remain solely responsible for completion of its milestones under this Agreement regardless of the availability or use of reimbursable NASA services, technical expertise, or Government Property provided pursuant to section B. of this Article.

SPECIAL CONSIDERATIONS

2.2.28 SPECIAL CONSIDERATIONS

SIGNATORY AUTHORITY

2.2.29.1 SIGNATORY AUTHORITY

The signatories to this Agreement covenant and warrant that they have authority to execute this Agreement.  By signing below, the undersigned agrees to the above terms and conditions.

            Approval:

NASA [Center initials]Partner
_______________________________
Name
_______________________________
Name
_______________________________
Title
_______________________________
Title
_______________________________
Date
_______________________________
Date

2.2.29.2 SIGNATORY AUTHORITY (ANNEX)

The signatories to this Annex covenant and warrant that they have authority to execute this Annex.  By signing below, the undersigned agrees to the above terms and conditions.

            Approval:

NASA [Center initials]Partner
_______________________________
Name
_______________________________
Name
_______________________________
Title
_______________________________
Title
_______________________________
Date
_______________________________
Date