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NASA Advisory Implementing Instructions

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Check the NASA Online Directives Information System
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NAII 1050-1
Effective Date: December 30, 1998
Expiration Date: December 30, 2004


Responsible Office: G / Office of the General Counsel

Space Act Agreements Manual (Revalidated w/o Changes 11/21/03)


TABLE OF CONTENTS

PREFACE

INTRODUCTION

CHAPTER 1. DOMESTIC NONREIMBURSABLE AND REIMBURSABLE AGREEMENTS WITH NONGOVERNMENTAL ENTITIES

CHAPTER 2. NONREIMBURSABLE AND REIMBURSABLE AGREEMENTS WITH OTHER AGENCIES OF FEDERAL/STATE/LOCAL GOVERNMENTS

CHAPTER 3. NONREIMBURSABLE AND REIMBURSABLE AGREEMENTS WITH FOREIGN GOVERNMENTS OR GOVERNMENTAL ENTITIES

CHAPTER 4. NONREIMBURSABLE AND REIMBURSABLE AGREEMENTS WITH FOREIGN NONGOVERNMENTAL ENTITIES

CHAPTER 5. FUNDED AGREEMENTS

APPENDICES

Appendix 1. Sample Clauses For Domestic Non-Reimbursable and Reimbursable Agreements with Non-Governmental Entities

Appendix 2. Sample Clauses For Non-Reimbursable And Reimbursable Agreements With Other Entities Of Federal/State/Local Governments

Appendix 3. Sample Clauses For Non-Reimbursable And Reimbursable Agreements With Foreign Governments Or Governmental Entities

Appendix 4. Sample Clauses For Non-Reimbursable And Reimbursable Agreements With Foreign Non-Governmental Entities

Appendix 5. Sample Clauses For Funded Agreements

Appendix 6. Agreement Questionnaires

 

Effective Date: December 30, 1998

PREFACE

P.1 PURPOSE

This document establishes guidelines for entering into Space Act agreements. The purpose of this document is to explain philosophy, delineate approaches, and describe policies, authorities, and procedures involved in creating Space Act agreements. Although this document contains examples of clauses for various types of agreements, it is not meant to establish standard clauses or dictate specific drafting conventions.

P.2 APPLICABILITY

This document is applicable to NASA Headquarters and NASA Centers, including Component Facilities.

P.3 AUTHORITY

42 U.S.C. 2473 (c), 42 U.S.C. 2475, sections 203(c) and 205 of the National Aeronautics and Space Act of 1958, as amended.

P.4 REFERENCES

  1. 1 U.S.C. 112b
  2. 5 U.S.C. 552
  3. 15 U.S.C. 3710
  4. 18 U.S.C. 431
  5. 28 U.S.C. 1441 et seq.
  6. 28 U.S.C. 1498a
  7. 31 U.S.C. 1341
  8. 31 U.S.C. 1353
  9. 31 U.S.C. 1535
  10. 31 U.S.C. 6301 et seq.
  11. 35 U.S.C. 200 et seq.
  12. 42 U.S.C. 2451 et seq.
  13. 42 U.S.C. 2473 (c)(5)(6)
  14. 42 U.S.C. 2475
  15. 49 U.S.C. 70101 et seq.
  16. Public Law 104-113
  17. Executive Order 12591
  18. 18 U.S.T. 2410, T.I.A.S. 6347
  19. 24 U.S.T. 2389, T.I.A.S. 7762
  20. 28 U.S.T. 695, T.I.A.S. 8480
  21. 14 CFR Part 1217
  22. 14 CFR 1245.108
  23. 14 CFR Part 1260
  24. 14 CFR Part 1266
  25. 14 CFR Part 1274
  26. 22 CFR Part 181
  27. 37 CFR Part 404
  28. 41 CFR Part 304
  29. 48 CFR Part 1817
  30. NPD 1050.1F
  31. NPD/NPR 2210.2
  32. NPD 8621.1
  33. NPD 9710.1
  34. NPR 5800.1
  35. Reserve
  36. NMI 8000.3
  37. NMI 8410.2
  38. NMI 8610.16
  39. NMI 1050.1
  40. NMI 1050.3
  41. NMI 1050.9
  42. Financial Management Manual, Volume 9000, Chapter 9090
  43. Financial Management Manual, Volume 9700 Chapter 9740
  44. NASA/Export Control Program
  45. Foreign Affairs Manual 11 FAM Chapter 700
  46. CBO Memorandum, "Budgetary Treatment of NASA`s Advance Commitments to Purchase Launch Services," June 1995
P.5 CANCELLATION

None.

/s/ Edward A. Frankle
General Counsel

DISTRIBUTION:
NODIS









INTRODUCTION


I.1. SCOPE AND POLICY

NASA`s organic statute, the National Aeronautics and Space Act of 1958 (herein, the Space Act), as amended [42 U.S.C. 2451 et seq.], grants NASA broad discretion in the performance of its functions. Specifically, the Space Act authorizes the NASA Administrator "to enter into and perform such contracts, leases, cooperative agreements, or other transactions as may be necessary in the conduct of its work and on such terms as it may deem appropriate, with any agency or instrumentality of the United States, or with any State, Territory, or possession, or with any political subdivision thereof, or with any person, firm, association, corporation, or educational institution (emphasis added)" [42 U.S.C. 2473 (c)(5)]. In addition, section 205 [42 U.S.C. 2475] permits the Administrator to engage in international cooperative programs pursuant to NASA`s mission. Under its Space Act authority, NASA has entered into a great number of partnerships with diverse groups of people and organizations in order to meet wide-ranging NASA mission and program requirements and objectives.

The previous edition of the Space Act Agreements Manual discussed the general principles of a subset of Space Act agreements -- those signed under the authority of NASA Management Instruction (NMI) 1050.9A entitled "Delegation of Authority -- To Take Actions Related to Certain Reimbursable and Nonreimbursable Space Act Agreements." Under NMI 1050.9A, the NASA Administrator delegated authority to enter into certain reimbursable and nonreimbursable agreements to NASA management both at NASA Headquarters and at the NASA Centers. In addition to NMI 1050.9A, other NMI`s addressed delegation of the Administrator`s authority depending on the identity of the partner and/or type of activity. For example, NMI 1050.3J covered agreements with colleges and universities and NMI 1050.1E, interagency agreements. In addition, there were other delegations categorized by the type of activity undertaken. Examples include NMI 8610.16A which established the Launch Services Agreement (LSA) and NMI 8410.2B for Reimbursable Use of the Tracking and Data Relay Satellite System (TDRSS).

More recently, all Space Act agreement delegation NMI`s have been combined into a single directive, NPD 1050.1F entitled "Authority to Enter into Space Act Agreements." In addition to simplifying the Administrator`s delegation authority, the NPD takes into account NASA`s decision to move more program management control to the Centers and incorporates the full cost accounting principles of Financial Management Manual (FMM), Volume 9000, Chapter 9090 (FMM 9090). NPD 1050.1F sets out delegation authority (who can sign agreements) and permits the Strategic Enterprises (with guidance from the relevant functional offices) to determine some aspects of further delegation (redelegation). NPD 1050.1F also specifies minimum concurrence requirements. However, given this new approach, broader intra-agency concurrences, beyond the required level, help ensure that all Agency issues are appropriately considered before an agreement is finalized. A restrictive view of the concurrence process often results in implementation problems. Therefore, if the resources of a NASA Program Office or Center are affected by a Space Act agreement, early involvement of that office, as well as written concurrence, should be sought.

To support NPD 1050.1F, the previous Space Act Agreements Manual has been updated and issued as this document. It gives guidance and advice on various classes of agreements divided according to the type and identity of the parties. Other requirements may exist based on the subject matter of the agreement. This document makes no attempt to assemble or reference subject matter-related requirements to the extent such requirements exist. Those requirements can be found in issuances from cognizant NASA offices. This document is applicable to NASA Headquarters and NASA Centers, including Component Facilities.

I.2. AGREEMENT DEFINED

"Agreement" defined in the broadest of contexts includes any agreement concluded under the authority of the NASA Space Act (contracts, leases, cooperative agreements, or other transactions). Generally, agreements establish a set of legally enforceable promises between NASA and another party to the agreement, requiring a commitment of NASA resources (including funding, services, equipment, expertise, information, or facilities) to accomplish the objectives of the agreement. Agreements may be categorized according to the character of the other party to the agreement; e.g., an entity can have either a public (state) or private (corporate) nature. In addition, NASA has also categorized agreements into those providing for payment of NASA`s costs by the other party (a reimbursable agreement), and those requiring NASA and the other party each to bear the cost of the undertaking (a nonreimbursable or cooperative agreement). In some cases, NASA may enter into ageements to provide funding to a party (a funded agreement). Another significant basis on which agreements are categorized is whether the agreement is enforceable under U.S. or international law.

This document covers agreements whose authority is derived from NASA`s "other transaction" authority of the NASA Space Act. It does not include Chiles Act (also known as the Federal Grant and Cooperative Agreement Act) cooperative agreements [31 U.S.C. 6305] or grants [31 U.S.C. 6304]. As discussed in this document, these "other transaction" agreements (referred to as Space Act agreements) also do not include procurement contracts. Therefore, procurement laws and regulations are not applicable.

There are no required clauses in Space Act agreements. However, fairness and consistency remain as values that should guide the initiation and execution of Space Act agreements. This is important from the perspective of both NASA and its potential partners. As NASA transitions into an Agency that works more efficiently through Center program management, additional efforts will have to be made to ensure that there is "one NASA." A partner entering into an agreement with the Agency expects a certain degree of uniformity in its dealings, regardless of which Center is conducting the negotiations. Likewise, within one Center, a potential partner should be provided fair treatment as measured against other potential partners.

Government ethics rules require that NASA employees avoid the perception of unjustifiable favoritism in dealing with individual entities. Since signed agreements are nearly always available for public review, similar agreements may be scrutinized to ascertain whether similarly situated persons are treated alike. Of course, there may be valid and important reasons for special terms and conditions offered to a particular agreement partner. But if an agreement confers preferential treatment on a party, whether actual or perceived, or provides for a private gain to any party, or presents the likelihood of conflicting financial interests arising from any provisions of the agreement, early advice should be sought from the appropriate legal office. As a general rule, early coordination with the legal office can facilitate timely consideration and execution of any Space Act agreement.

I.3. WHEN AN AGREEMENT IS REQUIRED

An agreement is required whenever there is a commitment of NASA resources involving an entity other than NASA. The NASA resources committed to the project may include time and effort of personnel and support services, use of facilities, use of equipment, and where appropriate, direct funding.

I.4. NONREIMBURSABLE AGREEMENT

A nonreimbursable agreement permits NASA to offer its facilities, personnel, expertise or equipment as part of a collaborative arrangement. It is appropriate to use a nonreimbursable agreement where NASA and its agreement partner(s) are performing activities in cooperation, for which each is particularly suited, and for which the intended results are of interest to both parties. In order to use a nonreimbursable agreement, the NASA program manager or signing official must determine that the other party`s contribution provides an adequate quid pro quo compared to NASA`s contribution, recognizing that facilitating the transfer of technology is part of NASA`s core mission. The benefit to the Agency from participating in the arrangement must be adequate as compared to its investment, the risks it assumes, and the parallel risks and potential benefits accruing to the other party.

Types of nonreimbursable agreements include letter agreements, a Memorandum of Understanding (MOU), or Memorandum of Agreement (MOA). Nonreimbursable agreements with international partners are generally executed as letter agreements or MOU`s enforceable under international law. An international MOU is appropriate when engaging in a joint activity that is determined to be significant, thus requiring interagency review through the "Circular 175" process, as coordinated through the Department of State [Foreign Affairs Manual (FAM) 11 FAM Chapter 700]. NASA also makes fairly extensive use of letter agreements for international cooperative activities that are not deemed to be sufficiently "significant" to warrant State Department coordination and review. Such agreements involve exchange of letters setting forth and confirming the terms of an agreement. Upon the exchange of letters by both parties, such agreements constitute nonreimbursable agreements binding under international law.

Domestically, MOU`s and MOA`s are used, sometimes interchangeably, for agreements with Federal or state entities. The title of the agreement is not determinative. What is important is understanding the responsibilities of the parties and the level of the Agency`s commitment. Domestic MOA`s and MOU`s, which are not intended to be legally enforceable, are distinguishable from other nonreimbursable agreements, which are intended to be enforced through legal means.

I.5. REIMBURSABLE AGREEMENT

The term "reimbursable" is used to indicate those instances where the Government is receiving payment for the goods or services it provides. Two types of reimbursable agreements exist--those that are fully reimbursable and others covering partially reimbursable activities. A reimbursable agreement permits a public or private entity to use NASA facilities, personnel expertise, or equipment to advance its interests. Unless a statute or agency waiver allows for less than full cost reimbursement, NASA is reimbursed for all accountable costs as defined in FMM 9090. With a fully reimbursable agreement, NASA has no requirement for the results of the activities performed and, but for the requirement of the reimbursing party, NASA would not be undertaking the activity. Therefore, all the costs must be borne by the reimbursing party. This includes risk costs.

Even when NASA could meet a request for reimbursable services, two threshold considerations must still be met. The first is that the proposed activity must be consistent with NASA`s mission. So, for example, NASA could enter into an agreement with a commercial company to permit its use of a unique NASA test facility to test a commercial product. On the other hand, NASA would not be in a position to allow use of its buildings as dance halls, even if an ideal location was identified and the party wished to reimburse NASA for all associated costs. U.S. taxpayers, through our congressional authorization and appropriations committees, do not fund NASA facilities to provide dance halls. The second factor has to do with protecting private sector entities from Federal Government competition. The current National Space Policy directs U.S. Government agencies to purchase commercially available space goods and services to the fullest extent feasible and to conduct their activities in a manner that does not preclude or deter commercial space activities, except for reasons of national security or public safety. Therefore, reimbursement is accepted only for those facilities and services that are developed in-house, are unique to NASA, or generally are not available on the commercial market from another source. NASA should not act as a purchasing agent or broker for partner acquisition of available goods, parts, or services if they are commercially available. Thus, as a general matter, where NASA is requested to provide a service that it obtains for itself through a contract with a private sector firm, it should decline to provide that service under a reimbursable Space Act agreement. Exceptions to this general standard occur. One example is when NASA has contracted for a service such as training, and another agency or entity wants to participate in that training activity on a reimbursable basis. An example of unacceptable competition with the private sector would occur if NASA was requested to review a company`s engineering plans for soundness and technical feasibility. If such an analysis can be performed by other experts in the private sector, NASA should decline to provide the service.

Sometimes a reimbursable agreement may be only partially reimbursable. This is appropriate where mutual interests are served on a collaborative basis. Such collaborations enable both NASA and the other party to undertake research which would not have occurred had the parties been required to fully fund their own activity (nonreimbursable agreement) or had the nonfederal entity been required to fully fund the entire agreement (fully reimbursable agreement). Partially reimbursable agreements require full cost recovery of the NASA activities designated to be reimbursed by the other party.

I.6. FUNDED AGREEMENT

In certain limited cases, NASA may use a Space Act agreement to transfer appropriated funds to another entity. As a matter of policy and practice, however, this is seldom done. It is only appropriate to use this type of arrangement when the stated purposes cannot be achieved through any of the other agreement instruments--a contract, Chiles Act cooperative agreement, grant, reimbursable or nonreimbursable Space Act agreement. Prior to using a funded Space Act agreement, the signing official must determine that another type of funding instrument cannot meet the requirements of the agreement. A specific type of funded Space Act agreement has evolved in the area of development and commercialization of NASA dual-use technologies. It is called the Joint Sponsored Research Agreement (JSRA). As with other types of Space Act agreements, the principal purpose of the JSRA, or any other funded Space Act agreement, is to advance NASA mission-related projects and goals (see Chapter 5).

I.7. "COOPERATIVE AGREEMENT" DEFINED

In addition to reimbursable, nonreimbursable, and funded Space Act agreements, sometimes a potential agreement partner will request a cooperative agreement. Confusion over the term "cooperative agreement" frequently arises because at least three major pieces of legislation, affecting the Federal Government, use the term in three different contexts. Under the authority of the Space Act, NASA can enter into a cooperative agreement as further defined in Chiles Act [31 U.S.C. 6301 et seq.]. NASA`s authority to enter into Chiles Act cooperative agreements is explicitly stated in the Space Act and is not derived from NASA`s "other transaction" authority (see section I.8).

Frequently at NASA, the term cooperative agreement is used to describe a collaboration in which each party pays for its own participation in the joint effort. Domestically, this is more appropriately referred to as a nonreimbursable agreement. In the international context, the term "cooperative agreement" is used more frequently than nonreimbursable agreement. Sometimes, cooperative agreement (MOU or letter agreement) is used to describe any collaboration with a foreign entity regardless of whether the agreement might include some form of incidental funding as part of the arrangement. Thus, it can be difficult to ascertain what is intended when a request is made to enter into a "cooperative agreement."

In addition, the Stevenson-Wydler Technology Innovation Act, as amended, (Stevenson-Wydler Act) [15 U.S.C. 3710 et seq.] and Executive Order 12591, delegating parts of the authority granted under the Stevenson-Wydler Act, use the term "cooperative research and development agreement" (CRADA). This authority allows other Federal agencies engaged in research and development activities to enter into agreements very similar to the NASA domestic reimbursable and nonreimbursable Space Act agreements (see section I.9). NASA, as a matter of policy and practice, has not used Stevenson-Wydler Act authority where NASA`s technology transfer objectives can be achieved through the Space Act authority.

I.8. CHILES ACT AGREEMENT OR GRANT DISTINGUISHED

A Chiles Act cooperative agreement is an assistance instrument. Authority to enter into a Chiles Act cooperative agreement is found in the Space Act [42 U.S.C. 2473(c)(5)] as further defined in the Chiles Act [31 U.S.C. 6305]. It permits the transfer of a thing of value, to carry out a public purpose of support or stimulation authorized by law, where substantial NASA involvement and contribution to the technical aspects of the effort is expected. Such an agreement is appropriate where the project would not be possible without NASA funding as well as extensive NASA and recipient collaboration. A cash or in-kind contribution by the industry partner is required. A Chiles Act cooperative agreement may not be used by NASA to satisfy specific mission requirements. Instead, it is intended to help the recipient carry out a public purpose within NASA`s mission. With this type of activity, it is quite possible that inventions will be made or valuable data will be produced. These agreements routinely leave patent ownership, through election [35 U.S.C. 200 et seq.] or waiver [42 U.S.C. 2457(f)], with the industry partner while the Government retains a government purpose license to use any patents, royalty free, for governmental purposes. However, the Government keeps "march-in" rights to ensure that the technology is commercialized if the owner decides not to pursue it. The 1993 National Performance Review of the Vice President singled out NASA`s expanded use of cooperative agreements (to include use with for-profit companies) as an example of the type of creativity needed to move our Government into the 21st century.

Under the Space Act, grants can also be awarded, as further defined in the Chiles Act [31 U.S.C. 6304]. A grant is likewise an assistance instrument. NASA can award a grant when no substantial involvement in the activity is required of NASA and the principal purpose is to accomplish a public purpose of support or stimulation authorized by Federal statute.

Grants and Chiles Act cooperative agreements are governed by policies established by the NASA Office of Procurement. NASA regulations for entering into Chiles Act cooperative agreements with commercial firms can be found in 14 CFR Part 1274. NASA regulations for entering into Chiles Act cooperative agreements and grants with institutions of higher education and other nonprofit organizations can be found in 14 CFR Part 1260. In addition NASA NPG 5800.1D, dated July 23, 1996, prescribes policies and procedures relating to the award and administration of NASA grants and cooperative agreements with educational institutions, other nonprofit organizations, state and local governments, and commercial firms.

I.9. COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENT DISTINGUISHED

Federal Laboratories are permitted and encouraged to enter into Cooperative Research and Development Agreements (CRADA`s) under the Stevenson-Wydler Technology Innovation Act, as amended, [15 U.S.C. 3710 et seq.]. The Act defines "Federal Laboratory" broadly to include a facility or group of facilities owned, leased, or otherwise used by a Federal agency, a substantial purpose of which is the performance of research, development, or engineering. It permits Government-operated Federal laboratories to enter into CRADA`s, as distinct from contracts, cooperative agreements, and grants for the purpose of transferring to the private sector Federally developed or controlled technology. Under a CRADA, the Federal laboratory can provide personnel, services, facilities, equipment, intellectual property, or other resources with or without reimbursement (but not funds to non-Federal parties). The non-Federal parties provide funds, personnel, services, facilities, equipment, intellectual property, or other resources toward the conduct of specified research or development efforts that are consistent with the missions of the laboratory.

NASA has statutory authority to enter into CRADA`s, but does not use this authority when NASA`s technology transfer objectives can be met within the parameters of Space Act agreements. For informational purposes, the major distinctions between a CRADA and a Space Act agreement follow:

CRADA SPACE ACT AGREEMENT
-- Federal Party must be a "lab." -- Any NASA component may be a party.
-- Partnership must perform "specified research." -- No limitation on partnership purpose except within NASA`s mission.
-- Federal party prohibited from making cash contributions. -- Cash contributions permitted.
-- Preference for domestic manufacturing. -- No statutory preference.
-- Government personnel may be hired with funds received from a CRADA partner to perform work under the CRADA and will not count against FTE limits. -- No similar authority.
-- Proprietary information that "results from research and development activities conducted under this Act" may be withheld for up to to 5 years. -- Proprietary information that "results from activities conducted under a [Space Act] agreement" may be maintained in confidence for up to five years.
-- Proprietary information provided to the Government must be withheld under FOIA (exemption 3). -- Proprietary information provided to the Government may be withheld under FOIA (exemption 4).
-- Government may grant or agree to grant in advance to collaborating party, patent licenses or assignment, or options thereto, in any invention made in whole or in part by a lab employee under the agreement. -- NASA inventions created under a Space Act agreement may be exclusively licensed only after publication in accordance with the requirements of 37 CFR 404.7.

I.10. NONAGREEMENTS

Examples of nonagreements include the following. While they describe or anticipate provision of goods and/or services, they are not legally enforceable:

-- Letter of Intent.
-- Protocol.
-- Agreement in Principle.
-- Technology Plan.
-- Program Plan.
-- Technology Plan.
-- Program Plan.
-- Action List.
-- Meeting Minutes.
-- Working Group Minutes.









CHAPTER 1.   DOMESTIC NONREIMBURSABLE AND REIMBURSABLE AGREEMENTS WITH NONGOVERNMENTAL ENTITIES


1.1.   GENERAL GUIDANCE

There is no required format for a Space Act agreement. However, each must contain a discussion of the specific undertaking which necessitates an agreement. The key elements of any Space Act agreement are its fundamental objectives, not the specific language or format it employs to express them. Thus, any written formulation that clearly delineates the purpose and scope of an activity, and is consistent with applicable law and NASA policies, will be acceptable. However, consistency in approach helps further the NASA policy of consistency of treatment of similarly situated agreement partners and helps expedite the review process within NASA.

NASA agreements generally consist of the following sections, which are usually arranged in the following order. Those underlined flow from requirements in statute, regulation, or policy and must be addressed somewhere in the agreement.

  1. Title.
  2. Authority.
  3. Purpose and Agency Commitment.
  4. Responsibilities.
  5. Schedule and Milestones.
  6. Financial Obligations.
  7. Scheduling Conflicts.
  8. Exclusivity.
  9. Liability and Risk of Loss.
  10. Intellectual Property and Data Rights.
  11. Disclaimer of Warranty.
  12. Term of Agreement.
  13. Right to Terminate.
  14. Continuing Obligations.
  15. Disputes Resolution.
  16. Mishap Investigation.
  17. Key Personnel.
  18. Modifications/Amendments.
  19. Assignment of Rights.
  20. Applicable Law.
  21. Anti-Deficiency Act.
  22. Signatory Block (Execution).
Sections may be deleted or additional sections added to an agreement, as appropriate, depending on the specific circumstances of the activity. For example, a separate section may be included in the "Responsibilities" section if further explanation is required or additional detail would help clarify a party's specific task. If there is no particular schedule or milestones associated with the agreement, that section can be omitted. Sections can be combined if they are short, related to, or duplicative of each other. The "Officials Not to Benefit" clause is no longer required in NASA agreements, although congressional members remain criminally liable if they seek to benefit from a NASA agreement [18 U.S.C. § 431].

1.2.   AGREEMENT CONTENTS

1.2.1.   TITLE:   Agreements may be given a short title stating the type of agreement, the parties, and the agreement's purpose. NASA Space Act agreement users and drafters over the years have created certain shorthand terms, sometimes used differently from one NASA Center to another, to connote particular agreement purposes. Many different titles have evolved, frequently with generic and overlapping names, usually abbreviated to initials. Examples include Technical Exchange Agreement (TEA), and Joint Endeavor Agreement (JEA). The legal significance of an agreement is generally not affected by its title. What is significant, rather, is the nature of the particular commitments made by NASA and its agreement partner. The use of one of these specialized names may be helpful or confusing, depending upon the situation.

Sample Clause, see appendix 1, clause 1.2.a. "Title" Nonreimbursable Agreement Sample Clause.

Sample Clause, see appendix 1, clause 1.2.b. "Title" Reimbursable Agreement Sample Clause.

1.2.2. AUTHORITY:   This section recites the legal authority for NASA to enter into the agreement as well as identifies the parties by name and address.

Sample Clause, see appendix 1, clause 1.2.c. "Authority" Sample Clause.

1.2.3.   PURPOSE AND AGENCY COMMITMENT:   This section briefly describes the purpose and general scope of the activities planned, the subject of any testing, facilities/equipment to be used, and the objective to be achieved. Often, the purpose can be stated in one brief paragraph.

Sample Clause, see appendix 1, clause 1.2.d. "Purpose and Agency Commitment" Sample Clause.

1.2.4.   RESPONSIBILITIES:   This section describes the actions to be performed by each party to the agreement, including the type of effort, information, equipment, and personnel to be provided by ach. It is in carefully drafting and negotiating the responsibilities section that project and program managers can best utilize Space Act agreements as management tools.

Generally, the responsibilities section is most helpful when it is divided into two subsections, one delineating NASA's responsibilities and the other delineating the other party's responsibilities. A NASA agreement with more than one party is possible, and in some cases, even desirable. However, multiparty agreements raise special issues and can be confusing. For example, where responsibilities are split among three entities, how would one party's failure to comply with the terms of the agreement affect the relationship among the remaining two? Therefore, when contemplating an agreement with more than one partner, additional and early input should be sought from legal counsel.

In all cases, NASA's responsibilities should be based on its use of "reasonable efforts." In previous years, various program codes and Centers sometimes used the phrase "best efforts" for certain agreements. In practice, there was found to be no legally significant difference in the degree of diligence NASA applied to meeting its responsibilities under agreements with either "best efforts" or "reasonable efforts" standards. As a result, in the early 1990's, a determination was made by the NASA General Counsel that the preferred characterization is "reasonable efforts."

The degree of detail in the responsibilities section will vary depending on the nature of activities to be performed. The responsibilities described within the text of the agreement itself, however, must contain sufficient detail to disclose both the core obligations of the agreement and the nature of the resources to be committed for its fulfillment.

Sometimes it is advisable to include definitions of key terms where reasonable interpretation could lead to differing conclusions as to a word's meaning. For reimbursable agreements, a clause recognizing the National Space Policy of avoiding NASA competition with private sector sources should be included in the agreement (see sample clause 1.2.g. in appendix 1).

Sample Clause, see appendix 1, clause 1.2.e. "Responsibilities" Sample Clause.

Sample Clause, see appendix 1, clause 1.2.f. "Responsibilities" Technical Exchange Agreement Sample Clause.

Sample Clause, see appendix 1, clause 1.2.g. "Responsibilities" No Competition with Private Sector Sample Clause.

Test plans, technical annexes, or similar documents are basically implementation plans that specify in greater detail the Test plans, technical annexes, or similar documents are basically implementation plans that specify in greater detail the manner in which the activities under the agreement are to occur. They afford program managers a mechanism for making adjustments as circumstances warrant without having to amend the agreement itself. Because they are not formal agreements, authority to sign test plans and the like are not subject to the same delegation rules. The activities specified in technical annexes and similar implementation plans, however, must be within the scope of the responsibilities of the parties as set forth in the agreement itself. If desirable, they can form part of the core agreement if incorporated by reference in the text. The documents may be signed by the responsible program manager for each party concurrently with, or subsequent to, the agreement itself.

1.2.5.   SCHEDULE AND MILESTONES:   This section sets forth items such as key dates and/or events, and objectives, etc., on the anticipated progress of the agreement.

Sample Clause, see appendix 1, clause 1.2.h. "Schedule and Milestones" Sample Clause.

1.2.6.   FINANCIAL OBLIGATIONS:   This section sets out both NASA's and the other party's contributions to the agreement to include funding and in-kind contributions where appropriate.

Consistent with guidance from the Chief Financial Officer, reimbursable agreements are subject to the NASA Chief Financial Officer/Comptroller's regulations for determining, allocating, and billing costs. These regulations, published as FMM 9090, require full cost accounting and recovery for fully reimbursable work. Full cost is defined as "all cost unique to a project or Reimbursable Agreement Number (RAN), all traceable common cost, and all general and administrative cost that can be reasonably charged to a reimbursable agreement (see FMM 9090-5)." Partially reimbursable agreements are appropriate where mutual interests are served on a collaborative basis. They must still permit full cost recovery of the NASA activities designated to be reimbursed by the other party. Before a reimbursable agreement is executed, consistent with guidance from the Chief Financial Officer, a cost estimate for the undertaking must be prepared. Prior to initiation of the reimbursable work, payment to cover the work (either in full or broken down by task order) must be received (see FMM 9090). Under very limited circumstances, where hardship is demonstrated, in writing, a waiver may be requested to allow payment after work has been performed by NASA. Such a waiver, or one required for less than full cost recovery, may be submitted as part of the approval process required for reimbursable agreements under FMM 9090.

FMM 9090 also recognizes that less than full cost recovery may be authorized by statute. The Commercial Space Launch Act (CSLA) [49 U.S.C. § 70101 et seq.] provides a statutory basis for NASA to make available excess launch property and services to U.S. commercial space launch entities. The recovery basis provided by the CSLA is direct cost, which is defined in FMM 9090. Prepayment of direct costs is still required.

Sample Clause, see appendix 1, clause 1.2.i. "Financial Obligations" Reimbursable Agreement Sample Clause.

For nonreimbursable agreements, the contribution of the other party must be adequate compared to NASA's contribution. Before a nonreimbursable agreement is executed, an estimate of the value of the NASA resources to be committed under the agreement must be prepared using full cost accounting values. This estimate provides the authorizing official a basis for finding that the proposed contribution of the non-NASA party represents an adequate quid pro quo in light of the NASA purpose to be served and the NASA resources to be committed.

A nonreimbursable agreement should include a statement that no funds are to be transferred pursuant to the agreement. Moreover, it should be noted that NASA's obligations are subject to its resource availability, as determined by NASA. At times it might be appropriate to indicate that, where a determination is made, that the transfer of funds in the future is desirable, it will be executed by a separate agreement.

Sample Clause, see appendix 1, clause 1.2.j. "Financial Obligations" Nonreimbursable Agreement Sample Clause.

1.2.7.   SCHEDULING CONFLICTS:    This section ensures that NASA does not become legally committed to perform the activities contemplated according to any schedule stated in the agreement, in the event other NASA priorities or interests arise. It provides that in the event of a conflict in scheduling the NASA resources, NASA, at its sole discretion, may determine which usage takes priority.

Sample Clause, see appendix 1, clause 1.2.k. "Scheduling Conflicts" Sample Clause.

1.2.8.   NONEXCLUSIVITY:  Where an agreement is not intended to provide an exclusive right in NASA-controlled goods, services, or facilities, the agreement should clearly state so. If the agreement is intended to provide an exclusive right, this section may be deleted.

Sample Clause, see appendix 1, clause 1.2.l. "Nonexclusivity" Sample Clause.

1.2.9.   LIABILITY/RISK OF LOSS:   Every agreement should anticipate and allocate foreseeable risks inherent in the activities that the agreement covers. This means that an agreement must specify, before commencement of any activities, which party bears responsibility in the event the activities result in injury to persons or loss of, or damage to, equipment or facilities. Determinations as to the amount of risk NASA or the other party should assume will vary according to the type of agreement, the nature of the activity, and the specific circumstances surrounding the activity. Accordingly, correctly allocating risk will require informed programmatic, technical, and legal judgments.

Because of the varying factors that must be considered in allocating risk, it is not possible to prescribe uniform liability clauses that can be inserted automatically into agreements, and this document does not attempt to do so. Instead, the sample clauses provided in this section are intended to illustrate the various approaches to risk management.

Experience has demonstrated that activities involving risk of exposure are foremost among those requiring early involvement of NASA legal counsel. The Program or Project Office, along with the agreement drafter, must provide specific details of the joint activity so that appropriate clauses can be included. On occasion, failure to do so has delayed conclusion of agreements, causing understandable frustration to persons wanting to proceed with an activity. Virtually all of the planning and negotiation effort devoted to structuring Space Act agreements is focused upon arrangements and responsibilities that will advance a genuine partnership and help ensure its success. Liability discussions, on the other hand, force the parties to consider, in some depth, the potential consequences should something go wrong. It is precisely in such situations, however, where broader NASA/U.S. Government interests, and not merely those of a particular program, must be protected. The liability requirements developed for NASA agreements are designed to address these broader interests.

Because of the stakes and complexities involved, drafting and negotiating "Risk of Loss" or "Liability" provisions can be controversial and difficult. Unfortunately, potential agreement partners sometimes view NASA and the U.S. Government as a "deep pocket" and seek to avoid responsibility for any risk. Moreover, departures from standard agreements practice in matters of liability and risk allocation, without well-reasoned and documented justification, are more likely to result in undesirable legal consequences for the Agency than would departures from standard practice in other areas.

Developing a risk allocation clause that is appropriate for a particular NASA activity requires that at least two different factors be considered: (1) the degree of foreseeable risk inherent in the activity (i.e., the likelihood that any failure would cause damage); and (2) the degree of NASA interest in the effort, since Agency interest may warrant acceptance by NASA of all, some, or none of the risk. For example, if the proposed activity is of considerable importance to the Agency's mission, such as providing a launch opportunity for university researchers as part of NASA's Commercial Space Center program, NASA may accept more liability than its university partner. On the other hand, if the proposed activity is to be conducted on a reimbursable basis, involving wholly commercial activities, NASA would not accept any liability. This is due to the fact that "but for" the requirements of the party requesting the reimbursable support, NASA would not be undertaking the activity.

NASA risk allocation clauses primarily address two categories of foreseeable risk: damage to the property of the parties to the agreement, and potential liability for damage sustained by third parties. The first category includes: (1) damage to property utilized under the agreement to include environmental damage and; (2) any economic loss sustained by an agreement partner caused by injury to an employee involved in the agreement activity. Third party liability includes: (a) claims by individuals for injury or death; and (b) damage to property not involved in the activity. Depending upon the activity, legal requirements to address these risks may involve liability waivers, indemnification and hold harmless arrangements, and insurance. Determining which risk allocation approach is appropriate for a particular activity will depend largely upon assessments of the two factors cited above: the degree of risk, and the importance of the activity to NASA. These factors, therefore, figure importantly in the discussion of liability requirements that follows.

1.2.9.1.   DAMAGE TO THE PARTIES INVOLVED IN JOINT ACTIVITIES:   All agreements, whether they authorize the conduct of high- or low-risk activities, should address potential claims between NASA and its agreement partner by requiring either a unilateral ("one-way") waiver or a cross-waiver. The decision on the nature of the waiver will depend on the importance of the activity to NASA's mission. A waiver is employed to address claims between the parties to the agreement for property loss or damage, or for loss of the services of a party's employees. Waivers do not address third-party claims. The comprehensiveness and specificity of these waiver provisions will depend upon the scope, complexity, and degree of inherent risk of the activities covered by the waiver. In limited instances (for example, an agreement involving high-risk reimbursable use of a NASA test facility), the Agency may also require a party to obtain insurance to protect against damage to NASA property or injury to its employees.

Unilateral Waivers: A unilateral waiver is appropriate for activities in which the Agency has low interest. In a unilateral waiver, the other party promises not to bring claims against NASA for damage to property, or resulting from injury to its personnel, regardless of which party may be at fault. This "no-fault" waiver does not apply in circumstances involving criminal or willful (intentional) misconduct. Unilateral waivers are typically required where NASA is providing goods and/or services on a reimbursable basis. In such cases, NASA generally would not accept liability associated with the activity because it is being conducted for the benefit of the other party and is of little or no benefit to NASA. Exposing the U.S. Treasury to even a portion of the risk involved in activities which principally benefit private parties, and not the public at large, would be difficult to justify. Therefore, a party seeking reimbursable services from NASA is expected to assume all risk of damage to persons or property involved in the joint activity, its own as well as NASA's. This risk is frequently mitigated through the purchase of insurance by the other party.

Sample Clause, see appendix 1, clause 1.2.m. "Liability and Risk of Loss" Unilateral Waiver with Flow Down Provision Sample Clause.

Insurance for Damage to NASA Property: Insurance coverage is a preferred manner of allocating risks in reimbursable agreements for use of NASA facilities where there is a risk of damage that could impact NASA programs. In such cases, insuring that facilities or equipment can be restored or replaced quickly is critically important. Thus, insurance may be required in an amount NASA considers sufficient to cover the cost of repair or replacement. Policies must be on acceptable terms and obtained at no cost to NASA, and must specify that the United States and NASA are "additional named insureds." Insurance provisions in NASA agreements should also require that policies be reviewed by the Agency prior to commencement of any covered activity.

Sample Clause, see appendix 1, clause 1.2.n. "Liability and Risk of Loss" Insurance for Damage to NASA Property (Short Version) Sample Clause.

Sample Clause, see appendix 1, clause 1.2.o. "Liability and Risk of Loss" Insurance for Damage to NASA Property (Long Version) Sample Clause.

Cross-waivers: Cross-waivers are required in agreements for activities of mutual interest to NASA and the other party; where the benefits of the activities accrue to both. In a cross-waiver, each party promises not to bring claims against the other, or the other's related entities (e.g., contractors, subcontractors, users, customers or investigators) for any harm to its property or employees. This means that each party reciprocally agrees to accept the risk of its own participation in the activity and is thus freed from concern that other parties involved in the activity may bring claims against it.

The fundamental purpose of requiring cross-waivers is to establish a known regime of liability limitation that will have the effect of encouraging space and aeronautical projects and other joint endeavors. Cross-waivers encourage such endeavors in two ways. First, the potential for litigation is lowered because each party agrees up front to assume responsibility for specified damages it may sustain. Second, insurance costs are reduced by sharply restricting the types of legal claims that may be brought by participating entities against each other.

Cross-waivers are uniquely suited for NASA aerospace activities. The liability regime that would apply to such activities in the absence of any risk-sharing arrangement is one based on fault, with the responsible party being required to pay for any loss or damage it is found to have (or accepts that it has) caused. Because of the risk inherent in many NASA activities, the Agency has transitioned from a fault-based regime to one in which each party relinquishes any claims it may have for certain property losses, or costs which result from injury to its employees, unless caused by the criminal or willful misconduct of the other party.

It is important to underscore the fact that, for a cross-waiver to apply, both the entity causing damage and the entity sustaining damage must be involved in activities under the agreement. In agreements covering high-risk activities of very broad and diffuse scope (e.g., reimbursable or cooperative Space Shuttle or Expendable Launch Vehicle (ELV) missions, or activities within the ambit of the International Space Station program), cross-waivers apply only if both entities are involved in "protected space operations." Such activities are defined to include a wide range of design, transport, flight and payload activities. In addition, for many of these higher-risk activities as well as for any activity requiring a significant amount of contractor involvement, NASA typically insists that each party require its own related entities (e.g. contractors, subcontractors, users, customers or investigators) to agree to waive claims against similar entities that may be legally related to any other party. This is referred to as the requirement to "flow down" the cross-waiver.

It is worth noting that the inclusion of claims for injury or death of "persons" within the scope of both unilateral waivers and cross-waivers is sometimes misunderstood. Because waivers are only given by parties to NASA agreements (e.g., NASA and another space agency, or NASA and a corporation), these interparty waivers in no way limit the rights of persons to maintain claims for injury or damage which they, their dependents, heirs, or personal representatives might themselves sustain during the joint activity. Agreement waivers only bar claims of the parties for loss of, for example, the services of a key employee or researcher. Since so-called "natural persons" (as distinguished from "juridical persons" e.g., corporations or nonprofit organizations) are not signatories to NASA agreements, they are considered to be third parties to the agreements. As such, provisions required to address potential claims by individuals are discussed in the context of third party claims (see section 3.5.9.2).

Sample Clause, see appendix 1, clause 1.2.p. "Liability and Risk of Loss" Cross-Waiver with Flow Down Provision Sample Clause.

Sample Clause, see appendix 1, clause 1.2.q. "Liability and Risk of Loss" Cross-Waiver for ELV's Sample Clause.

Sample Clause, see appendix 1, clause 1.2.r. "Liability and Risk of loss" Cross-Waiver for Space Shuttle Sample Clause.

Sample Clause, see appendix 1, clause 1.2.s. "Liability and Risk of Loss" Cross-Waiver for International Space Station Activities Including Launches Sample Clause.

Insurance and Cross-waivers: Insurance coverage may be required as part of an interparty risk allocation arrangement so as to afford the Agency protection when the other party to a NASA agreement is unable to fully waive its claims as part of the standard interparty cross-waiver. This may occur because the other party is a state, a state agency, or state university without authority, under the state constitution, to waive claims on behalf of the state. The same can be true for foreign governmental entities waiving on behalf of their foreign government. In either case, the agreement should contain both the cross-waiver and an obligation to buy insurance to cover those claims that cannot be waived.

Sample Clause, see appendix 1, clause 1.2.t. "Liability and Risk of Loss" Insurance to Compensate for Incomplete Authority to Waive Claims Sample Clause.

Limitation of Liability to Direct Damages: The previous version of the Space Act Agreements Manual included a clause in agreements to limit damages to direct damages should a judgment against NASA be made in a court of law. A typical clause read as follows: "To the extent that a risk of damage or loss is not dealt with expressly in this agreement, each party's liability to the other party arising out of this agreement, whether or not arising as a result of an alleged breach of this agreement, shall be limited to direct damages only, and shall not include any loss of revenue or profits or other indirect or consequential damages." Experience has shown that this clause can be read against NASA where a waiver is incorporated into the agreement. The reasoning is that where there is no anticipation of claims between parties, why is it necessary to limit claims to direct damages. Therefore, some have argued that the parties must have considered that some types of interparty claims survived. Accordingly, the clause is not recommended for inclusion in NASA's agreements, which include a waiver.

1.2.9.2.   THIRD-PARTY LIABILITY:   Agreements authorizing activities involving significant risk need to address potential claims that would not be barred by an interparty waiver: i.e., "third-party" claims. The term refers to the responsibility of parties to an agreement to pay claims of nonparties for injury or property damage resulting from activities under the agreement. Agreements for cooperative activities with foreign governmental entities state only that the parties will consult on their respective responsibilities for any third-party claims. Agreements that involve low-risk activities, such as data-sharing agreements, do not need to address third-party claims at all.

Sample Clause, see appendix 1, clause 1.2.u. "Liability and Risk of Loss" Indemnification and Hold Harmless Consultation Sample Clause.

On the other hand, reimbursable agreements covering higher-risk activities specifically allocate third-party liability in advance. Third-party liability is typically addressed by requiring the other party to indemnify and hold harmless the U.S. Government. Also for high-risk activities, there is often a requirement for the other party to obtain insurance to cover any third-party claims. This is consistent with the view that only where NASA shares in the benefits of an activity, should it alsohare the risks. As discussed above, reimbursable activities are by their nature, only of benefit to the other party.

Sample Clause, see appendix 1, clause 1.2.v. "Liability and Risk of Loss" Unilateral Indemnification and Hold Harmless Sample Clause; Other Party Indemnifies NASA/Agrees to Hold NASA Harmless.

Sample Clause, see appendix 1, clause 1.2.w. "Liability and Risk of Loss" Combined Unilateral Waiver and Indemnification, Hold Harmless Sample Clause.

Indemnification and Hold Harmless Provisions:   Indemnification, in NASA agreements, generally refers to a promise by one party to reimburse another party in the event the first party incurs liability or pays a claim to a third party. Except in narrowly defined circumstances, Federal agencies lack authority to indemnify other parties in connection with their joint activities because agencies cannot legally obligate funds that have not been appropriated by Congress. One such exception to this "anti-deficiency" rule is NASA's authority under section 308 of the Space Act to indemnify a "user" of a space vehicle (Space Shuttle) for third-party liability in excess of an accepted amount of insurance coverage that must be obtained by the user. This indemnity is currently provided only in Launch Services Agreements and other agreements for use of the Space Shuttle, and only where a broad cross-waiver is also in place. Even within such agreements for Space Shuttle services, NASA's authority is discretionary. The Agency must be satisfied that all potential risks are minimized, safety and oversight requirements are satisfied, and if required, maximum available insurance is purchased by the space user of a space vehicle. Indemnification is not provided for NASA's international cooperative activities.

Sample Clause, see appendix 1, clause 1.2.x. "Liability and Risk of Loss" Indemnification and Hold Harmless Sample Clause NASA Indemnifies Other Party/Agrees to Hold Other Party Harmless.

Indemnification provisions are frequently accompanied by hold harmless arrangements, and the two concepts are closely linked. Under a contractual hold harmless arrangement, one party agrees to relieve the other party of responsibility by assuming defense of a claim; in effect, it assumes direct responsibility for the claim, even if the claim is brought against the other party. Use of the phrase "indemnify and hold harmless" combines the two concepts in an arrangement that can effectively eliminate any need for NASA to satisfy, or even defend against, a claim for which the Agency might be held liable. Any such claim would become the responsibility of the party that has agreed to indemnify and hold NASA harmless. However, even with an "indemnification and hold harmless" clause, NASA may need, on behalf of the United States, to retain the right to participate or even control the defense of any such claim. The decision of whether a "defense of claims" clause is necessary is complex and requires consultation with the Agency legal counsel.

Sample Clause, see appendix 1, clause 1.2.y. "Liability and Risk of Loss" Defense of Claims Sample Clause.

Third-Party Liability Insurance: In the area of third-party claims, an insurance policy is imposed in high-risk reimbursable agreements where required by statute, or in any arrangement when the financial ability of a party to an "indemnification and hold harmless" arrangement is unclear. As discussed above, NASA has limited authority to indemnify its agreement partners, but when it exercises this authority, the Agency generally requires that the other party obtain the maximum amount of third-party liability coverage available at a reasonable rate.

Only when claims exceed the insurance coverage limits, does third-party indemnification become available. Insurance coverage for third-party claims must be provided on acceptable terms and at no cost to NASA, and the policy must be presented for NASA review prior to the commencement of any covered activity. Agency counsel are familiar with insurance principles and can advise on acceptable terms and conditions.

Sample Clause, see appendix 1, clause 1.2.z. "Liability and Risk of Loss" Insurance Protecting Against Liability to Third Parties Sample Clause.

Sample Clause, see appendix 1, clause 1.2.a.a. "Liability and Risk of Loss" Insurance Protecting Third Parties and Government Property Combined Sample Clause.

Sample Clause, see appendix 1, clause 1.2.b.b. "Liability and Risk of Loss" Right to Require Insurance Protecting NASA Property and Liability to Third Parties Sample Clause.

1.2.10.   INTELLECTUAL PROPERTY AND DATA RIGHTS:   This section addresses the allocation and protection of rights in the following five areas: (1) rights in patents and inventions generated or used in the performance of the agreement; (2) data rights; (3) publication of resulting data; (4) handling of data; and (5) release of general information to the public. In addition, it addresses the U.S. Government's authorization and consent for use of a third party's patent or copyright and the ensuing patent indemnification requirement (each of which should be addressed in every agreement). Guidance for choosing among these clauses is set forth below.

A Space Act agreement is an "other transaction" as authorized by 305(a) of the Space Act [42 U.S.C. § 2473(c)(5) and (6)]. A Space Act agreement is not a procurement contract. The principal purpose of a contract is to procure property or services, such as the performance of work of an inventive type, for the direct benefit of NASA with little or no involvement of NASA. The fact that a Space Act agreement is not a contract is important in the intellectual property area because a different allocation of rights results under a contract for the procurement of property or services than under a Space Act agreement. Under a contract, section 305(a) of the Space Act applies, vesting title in inventions, made in the performance of work under a contract, with the U.S. Government. Therefore, under a contract, the contractor receives title to inventions from the U.S. Government either through an election (35 U.S.C. § 200 et seq.) or a waiver (42 U.S.C. § 2457(f)) process. However, under a Space Act agreement, if work of an inventive type is not being performed for NASA, NASA can tailor the allocation of intellectual property rights according to the nature of the particular agreement and contributions of the parties.

The following factors are considered in determining the content of the intellectual property provisions in agreements: (1) the identity of the other party to the agreement; (2) the purpose of the agreement; (3) whether the agreement is reimbursable or nonreimbursable; (4) whether NASA's responsibilities involve inventive or creative activities, or only provide use of facilities, or involve exchange of information; (5) whether there is adequate coverage of royalty sharing opportunities for NASA employee inventors; and (6) the avoidance of inappropriate technology transfer in agreements with foreign entities.

The intellectual property and data clauses provided in this manual reflect NASA's basic approach that has evolved over the years for commonly encountered circumstances. However, since the Space Act permits flexibility in these matters, it may be desirable to modify the clauses to fit particular circumstances, within the following parameters. Any questions regarding the applicability of, or deviations from, intellectual property and data clauses should be referred to intellectual property/patent counsel.

NASA's ability to protect intellectual property is affected by the Freedom of Information Act (FOIA) [5 U.S.C. § 552]. The FOIA permits any person the right of access to Federal agency records unless specifically exempted by the Act. Proprietary documents containing private sector trade secrets and commercial or financial information, generated outside the Government, but in the control of NASA, are exempt from disclosure by FOIA exemption 4. Information disclosing inventions and information that is part of a patent application may be withheld under FOIA exemption 3.

1.2.10.1.   PATENT AND INVENTION RIGHTS:   With respect to the patent and invention clauses, any NASA invention licensed to a participant must be licensed in accordance with the requirements of 37 CFR Part 404, and NASA must retain a Government-purpose license. Under NASA policy, licenses granted to inventions developed under a reimbursable agreement are usually irrevocable to the extent permitted by 35 USC § 209.

Sample clauses 1.2.c.c. - 1.2.e.e. in appendix 1 are intended for use in reimbursable or nonreimbursable Space Act agreements with domestic nongovernmental entities. Partially reimbursable Space Act agreements would use a combination of the clauses, i.e., reimbursable clauses for the reimbursable portion of the agreement and nonreimbursable clauses for the nonreimbursable portion of the agreement.

The Short Form Nonreimbursable and Reimbursable patent and invention rights sample clause 1.2.c.c. in appendix 1 is to be used in agreements where the probability that an invention may result from the activities to be carried out by NASA is relatively low (e.g., use of facilities to provide test and evaluation of a participant's hardware, simple information, or technology exchange agreements, and the like). It assures that no background rights in intellectual property are to be acquired. In the unlikely event that an invention may be made under the agreement, it adopts the policy that each party keeps rights to its own intellectual property (which would occur under the common law anyway, lacking express agreement to the contrary). The clause also provides that the parties will discuss and agree on responsibilities and rights should there be a joint invention. Under these circumstances, and under this policy, it should make no difference whether the activities under the agreement are reimbursable or nonreimbursable, and therefore the clause may be used in either situation where the probability is low that NASA will carry out inventive (or creative) activities under the agreement.

Sample Clause, see appendix 1, clause 1.2.c.c. "Intellectual Property and Data Rights" Patent and Invention Rights (Nonreimbursable and Reimbursable Space Act Agreement) Short Form Sample Clause.

The Standard Nonreimbursable patent and invention rights sample clause 1.2.d.d. in appendix 1 is to be used in agreements for joint activities (i.e., each party funding its own agreed-to activities), wherein NASA may perform research, experimental, developmental, engineering, demonstration, or design work of the type that could result in inventions being made in carrying out activities under the agreement. In this situation, the principle that each party keeps rights to their own intellectual property still applies, except that as an incentive to commercialize NASA-developed technology, NASA will use reasonable efforts to grant the participant, in accordance with the requirements of 37 CFR Part 404, an exclusive or partially exclusive commercial license (on terms and conditions to be negotiated) to any NASA invention that may be made under the agreement or for any invention NASA acquires title from its contractor and, on which NASA decides to file a patent application and receives a patent.

This license to the private participant will be subject to the retention of a Government-purpose license, and a nonexclusive license to the contractor (where title is acquired from a support contractor). The commercial license to the private participant is to be royalty-bearing and revocable if the invention is not commercialized consistent with NASA (and Governmentwide) policy in licensing its inventions. It also provides an opportunity for royalty-sharing with the employee-inventor, consistent with NASA, and Governmentwide policy under the National Technology Transfer and Advancement Act (P.L. 104-113), [codified as amended at 15 U.S.C. § 3710 et seq.] The foregoing will also apply to any undivided interest NASA acquires for any invention made jointly with the private participant. As to an invention made solely by the private participant, NASA generally acquires no rights whatsoever, but may, under certain circumstances, negotiate a license to use the invention for research,demonstration, test, and evaluation purposes.

Sample Clause, see appendix 1, clause 1.2.d.d. "Intellectual Property and Data Rights" Patent and Invention Rights (Nonreimbursable Space Act Agreement) Standard Form Sample Clause.

The Standard Reimbursable patent and invention rights sample clause 1.2.e.e in appendix 1 is to be used in any agreement wherein NASA may perform research, experimental, developmental, engineering, demonstration, or design work for which NASA is to be reimbursed by the private participant. The same principle that each party keeps rights to its own intellectual property also applies, but in recognition that NASA is reimbursed for its activities, both the license to the private participant, and the rights retained by the Government are different. Specifically, the license to the private participant will be an exclusive, royalty-free, irrevocable license consistent with the requirements of 37 CFR Part 404. The rights retained by NASA (should the private participant be licensed) normally will be limited to NASA's research, demonstration, test, and evaluation purposes. The foregoing also applies to any undivided interest NASA acquires for any invention made jointly with the private participant under a reimbursable agreement. Generally, NASA acquires no rights to any invention made solely by the private participant.

Sample Clause, see appendix 1, clause 1.2.e.e. "Intellectual Property and Data Rights" Patent and Invention Rights (Reimbursable Space Act Agreement) Standard Form Sample Clause.

1.2.10.2.   RIGHTS IN DATA:   The data sample clauses 1.2.f.f. - 1.2.i.i. in appendix 1 are structured to facilitate the exchange of data necessary for the performance of the agreement, while providing assurances and safeguards for the protection of any proprietary information that is exchanged or developed. In addition, the clauses do not alter the common law ability of the participant to assert copyright in its works of authorship created under the agreement, but the participant is required to grant NASA a Government-purpose license in the copyrighted material. Any of the data clauses may be tailored or customized to fit the circumstances. For example, selected features of the more specific, protective data rights allocation scheme of the standard clause may be added to the short form clause as needed and applicable. Other matters, such as special treatment of computer software may be added if needed for the activities to be carried out. Where protection of computer software under a Space Act agreement is a concern, the policies and procedures of NPD/NPR 2210.2B should be followed. Usually the basic protective and rights allocation scheme of the applicable clauses should be adopted without change; however, should there be a need to modify the clauses the cognizant patent or intellectual property counsel should be consulted.

The sample clauses 1.2.f.f. - 1.2.i.i. in appendix 1 are intended for use in any reimbursable or nonreimbursable Space Act agreement with domestic nongovernmental entities. Partially reimbursable Space Act agreements would use a combination of the clauses, i.e., reimbursable clauses for the reimbursable portion of the agreement and nonreimbursable clauses for the nonreimbursable portion of the agreement.

The Short Form Nonreimbursable data sample clause 1.2.f.f. in appendix 1 is to be used in agreements where no extensive research, experimental, developmental, engineering, demonstration, or design activities are to be carried out by NASA, (e.g., use of facilities to provide test and evaluation of a participant's hardware, and simple information or technology-exchange agreements). It assumes that normally no proprietary information is to be developed or exchanged, but provides assurances and safeguards for the protection of such information in the event such should occur. In addition, there is a section for detailing NASA's permitted use of such information. Permitted uses, for example, include use only for purposes of the agreement as well as use for research and development purposes. To the extent permitted by law, the clauses provide protection of some data produced by NASA that may have some commercial (or proprietary) value to the participant. Since any activities under the agreement are to be cooperative or collaborative in nature (i.e., each party funding its own agreed-to activities), there often will be agreement on the publication or dissemination, or on NASA or Government-use rights, of some of the results of the activities as consideration for the agreement. Where publication is agreed upon, an optional paragraph may be added at the end of the clause to acknowledge that some of the results of the agreement, (and under what conditions and understandings) may be published or disseminated. This may be done in the optional paragraph to the clause, with a cross-reference in the agreement, or vice versa. This short form clause normally should be used in an agreement containing the short form patent and invention rights clause, or no patent and invention rights clause, unless it is known that there will be significant development and exchange of, or access to, data that may be considered proprietary (in which case the standard nonreimbursable data rights sample clause 1.2.h.h. in appendix 1 should be used).

Sample Clause, see appendix 1, clause 1.2.f.f. "Intellectual Property and Data Rights" Rights in Data (Nonreimbursable Space Act Agreement) Short Form Sample Clause.

The Short Form Reimbursable data rights sample clause 1.2.g.g. in appendix 1 is to be used in the same type of activities as above, but for which the participant is to reimburse NASA. Thus, the same assurances and safeguards are provided in the event proprietary information is to be developed or exchanged. However, since NASA is to be reimbursed, no other consideration is needed, and thus there normally would not be any agreement on the publication or dissemination of any results of the activity, nor would NASA or the Government obtain any rights to use the data. This short form clause normally should be used in an agreement containing the short form patent and invention rights clause, or no patent and invention rights clause, unless it is known that there will be significant development and exchange of, or access to data that may be considered proprietary (in which case the standard reimbursable data rights sample clause 1.2.i.i. in appendix 1 should be used).

Sample Clause, see appendix 1, clause 1.2.g.g. "Intellectual Property and Data Rights" Rights in Data (Reimbursable Space Act Agreement) Short Form Sample Clause.

The Standard Nonreimbursable data rights sample clause 1.2.h.h. in appendix 1 is to be used for cooperative or collaborative type activities where it is anticipated that extensive research, experimental, developmental, engineering, demonstration, or design activities are to be carried out, such that it is likely that proprietary information will be developed or exchanged under the agreement. The same basic protective and rights allocation scheme is provided as in the short form nonreimbursable clause, but with more procedural specificity to address matters that often arise when it is anticipated that proprietary information is to be developed or exchanged in any activity. The same optional paragraph regarding the publication and dissemination of results can be used as in the short form nonreimbursable clause. Also, copyright is specifically addressed. With respect to data first produced by the participant, the parties who may use the data (for example, NASA or the Government) and the permissible purposes can be inserted as appropriate under the circumstances.

Sample Clause, see appendix 1, clause 1.2.h.h. "Intellectual Property and Data Rights" Rights in Data (Nonreimbursable Space Act Agreement) Standard Sample Clause.

The Standard Reimbursable data rights sample clause 1.2.i.i in appendix 1 is to be used in agreements involving research, experimental, developmental, engineering, demonstration, or design activities for which NASA is reimbursed, where it is likely that proprietary information will be developed or exchanged under the agreement. Again, the same basic protective and rights allocation scheme is provided as in the short form reimbursable clause, but with more procedural specificity to address matters that often arise when it is anticipated that proprietary information is to be developed or exchanged in any activity. Also, copyright is specifically addressed.

Sample Clause, see appendix 1, clause 1.2.i.i. "Intellectual Property and Data Rights" Rights in Data (Reimbursable Space Act Agreement) Standard Form Sample Clause.

1.2.10.3.   RIGHTS IN RESULTING DATA:   This section addresses the parties' exchange of and right to use the data (usually of a scientific nature) resulting from the agreement, as well as the availability of the data to others. Earth science data should be made available as soon as practicable after acquisition and without any period of exclusive access for any user group (see NMI 8000.3). Where other types of scientific data are involved, the parties usually agree that the raw data derived from experiments will be reserved to Principal Investigators for scientific analysis purposes and first publication rights for a set period of time. Although negotiable, NASA encourages the earliest dissemination of data and normally the negotiated time period should not exceed one year. The period begins with receipt of the raw data and any associated (e.g., spacecraft) data in a form suitable for analysis. In appropriate instances, Principal Investigators may be requested to share the data with other investigators, including interdisciplinary scientific and guest investigators, to enhance the scientific return from the mission/program under procedures decided by a designated group under the agreement.

It is also usually agreed that the parties to the agreement will have access to, and use of, the raw data and any associated data, but, during the exclusive-use period, such parties' use will not prejudice the first publication rights of the Principal Investigators. The parties customarily agree that, following the exclusive-use period, the data will be deposited with designated data repositories or data libraries, as appropriate, and, thereafter, will be made available to the scientific community for further scientific use.

Sample Clause, see appendix 1, clause 1.2.j.j. "Intellectual Property and Data Rights" Rights in Resulting Data Sample Clause.

1.2.10.4.   HANDLING OF DATA:   A "Handling of Data" clause is included for use where it is likely that NASA will provide the participant with data whose dissemination is restricted. Examples of this type of data include the proprietary data of a third party or Government data where the Government intends to control its dissemination. Use of this clause would be appropriate, for instance, when providing a participant with a third party's proprietary information for evaluation purposes. Also, in accordance with section 303(b) of the Space Act [42 U.S.C. § 2454(b)], NASA may agree that any such data that would embody trade secrets or financial information that is privileged or confidential if it had been obtained from a private participant, will be marked with an appropriate legend and maintained in confidence for an agreed period of up to 5 years. This, of course, is data other than that for which there has been agreement regarding publication or dissemination. Where the parties negotiate that NASA itself may use the marked data (under suitable protective conditions) for agreed to purposes, use of this clause is appropriate when this data must be disclosed to a third party. While sample clause 1.2.k.k. in appendix 1 has currently only been used in nonreimbursable agreements with domestic nongovernmental entities, it may be used in all other Space Act agreements if circumstances require it.

Sample Clause, see appendix 1, clause 1.2.k.k. "Intellectual Property and Data Rights" Handling of Data Sample Clause.

1.2.10.5.   RELEASE OF GENERAL INFORMATION TO THE PUBLIC:   To encourage consistency between the participants, it is customary to include, if applicable, a clause in agreements with domestic entities that addresses the appropriate process for the release of general information to the public by either participant.

Sample Clause, see appendix 1, clause 1.2.l.l. "Intellectual Property and Data Rights" Release of General Information to the Public Sample Clause.

1.2.10.6.   PATENT AND COPYRIGHT USE -- AUTHORIZATION, CONSENT, INDEMNIFICATION:   One of the remedies available to a patent or copyright owner for infringement is an injunction preventing the alleged infringer from making, using, or selling the invention or work, or carrying out the process, which is the subject of the patent or copyright, until a court resolves the legal dispute. The U.S. Government has waived sovereign immunity with respect to monetary compensation for patent or copyright infringement, but not with respect to injunction. Under 28 U.S.C. § 1498, whenever an invention or work covered by a U.S. patent or copyright is used by the United States, or for the United States and with its authorization and consent, the patent or copyright owner's only remedy is an action against the United States in the U.S. Court of Federal Claims for the recovery of his reasonable and entire compensation for such use and manufacture.

Where cognizant patent or intellectual property counsel determine that activities undertaken by NASA's cooperating partner, its contractors, and subcontractors are likely to be legally enjoined by a patent or copyright owner in the United States, then an authorization and consent clause should be included in an agreement in order to avoid an injunction. This also avoids any legal arguments regarding whether authorization and consent, if not expressed, should be implied because of the beneficial cooperation involved in the agreement. If not included in the agreement, however, it can be added subsequently by the parties by mutual agreement.

In order to protect the United States financially, whenever authorization and consent is granted, the clause should also contain a provision, sample clause 1.2.m.m. in appendix 1, that requires NASA's cooperating partner to indemnify the U.S. Government if infringement liability is incurred, as decided by the U.S. Court of Federal Claims. When no authorization and consent is granted, the broad indemnification clauses (appendix 1, sample clauses 1.2.v. and 1.2.w.) sufficiently provide for intellectual property infringement indemnification.

Sample Clause, see appendix 1, clause 1.2.m.m. "Intellectual Property and Data Rights" Patent and Copyright Use -- Authorization, Consent, Indemnification Sample Clause.

1.2.11.   DISCLAIMER OF WARRANTY:   This section contains a disclaimer to the effect that NASA's participation in the agreement does not constitute NASA's endorsement of the results of any activity, resultant designs, hardware, etc. It is appropriate when NASA is providing equipment and/or goods; or providing technical information for a private sector use.

Where NASA is making Government-owned property and services that are excess to mission needs, available on a reimbursable basis, a paragraph should be added that such property and services, to be determined by mutual agreement of the parties, are made available on a noninterference, as-is, shared-use basis, at their given location. Where Government-owned property and services are being made available on a nonreimbursable basis (e.g., a loan agreement), as part of a NASA joint activity, NASA's responsibilities and associated liabilities will vary depending on the degree of risk and the relationship of the activity to NASA's mission (see section 1.2.9).

Sample Clause, see appendix 1, clause 1.2.n.n. "Disclaimer of Warranty" Sample Clause.

1.2.12.   TERM OF AGREEMENT:   This section sets forth the duration of the agreement, specifying beginning and ending dates. Usually the effective date is the date of last signature but, in all cases, the effective date may not occur before both parties have executed the agreement. Because of uncertainties as to rate of progress, the ending date is frequently delineated by some event, such as the date of NASA's acceptance of final payment under a reimbursable agreement, or the completion of some test or report under a nonreimbursable agreement. However, the agreement may specify a certain date as an alternative, because circumstances may arise under which the specified event never occurs.

Space Act agreements entered into by NASA should generally not exceed 3 years in duration. NASA's ability to commit resources far into the future can be difficult given the uncertainty of its budget and the dramatic changes in the way NASA is conducting its business. Resources available today might be greatly diminished or nonexistent several years hence. Therefore, providing a modification near the end of a 3-year term to extend the agreement is preferable to a long-term commitment by NASA. If a longer commitment is essential to the fundamental objectives of the agreement, the agreement drafter should consult with the Office of the General/Chief Counsel before specifying a duration.

Sample Clause, see appendix 1, clause 1.2.o.o. "Term of Agreement" Sample Clause.

1.2.13.   RIGHT TO TERMINATE:   This section should delineate the terms and conditions under which an agreement can be terminated. For simple agreements, it often makes sense to permit either party to terminate unilaterally after sufficient notice, generally 30 days as a minimum, has been provided. At the other end of the spectrum, if either party is going to commit significant resources under the agreement, the parties' ability to terminate should be limited.

Sample Clause, see appendix 1, clause 1.2.p.p. "Right to Terminate" Nonreimbursable Agreement Sample Clause.

Sample Clause, see appendix 1, clause 1.2.q.q. "Right to Terminate" Reimbursable Agreement Sample Clause.

Sample Clause, see appendix 1, clause 1.2.r.r. "Right to Terminate" Reimbursable Agreement Requiring High Certainty of Support Sample Clause.

1.2.14.   CONTINUING OBLIGATIONS:   The agreement should specify which obligations of the parties survive termination or expiration of the agreement, for example, obligations to share scientific data or to protect intellectual property, waivers of liability for damage to property located at a facility. For reimbursable agreements, obligations to pay for work performed prior to termination, or to make payment pursuant to a final billing, should also survive termination or expiration.

Sample Clause, see appendix 1, clause 1.2.s.s. "Continuing Obligations" Sample Clause.

1.2.15.   DISPUTES RESOLUTION:   In agreements involving multiple parties or a long-term commitment of NASA resources, it is advisable to include a disputes resolution clause. As an overall rule, the parties should agree to consult promptly with each other on all issues involving interpretation or implementation of the agreement. In the case of a continuing dispute, the agreement should outline the specific procedures to be followed. Frequently, matters in dispute are first referred to specifically identified officials, by title, on each side for resolution. Any matter that can not be settled at this initial level is next referred to higher level officials on each side. If these parties are unable to reach resolution, the NASA official at that level, or one level higher depending on the complexity and visibility of the agreement activity, should issue a final written Agency decision. All disputes clauses should include a requirement for a final Agency decision to be made by the most senior NASA official identified as part of the disputes resolution process. For complex arrangements, the most senior person under whose authority the original agreement was signed is often the most suitable official for issuing the final Agency decision. With rare exception, the NASA Administrator should not be involved in dispute resolution activities. Use of the Administrator as the designated official for making a final Agency decision requires consultation with the Offices of the Administrator and the General Counsel.

Sample Clause, see appendix 1, clause 1.2.t.t. "Disputes Resolution" (Short Version) Sample Clause.

Sample Clause, see appendix 1, clause 1.2.u.u. "Disputes Resolution" (Long Version) Sample Clause.

1.2.16.   MISHAP INVESTIGATION:   For domestic activities where there is the possibility of a serious accident or mission failure occurring, and the parties involve non-U.S. Government personnel, it is advisable to include a mishap investigation clause in the agreement. If applicable, NPD 8621.1G should be followed for investigating a "NASA mishap."

Sample Clause, see appendix 1, clause 1.2.v.v. "Mishap Investigation" Sample Clause.

1.2.17.   KEY PERSONNEL:   This section designates within NASA and the other party, points of contact for the work to be performed. Depending on the type of activity envisioned, separate technical and financial representatives might be advisable for both parties.

Sample Clause, see appendix 1, clause 1.2.w.w. "Key Personnel" Sample Clause.

1.2.18.   MODIFICATIONS/AMENDMENTS:   This section states a requirement that any modification to the agreement be in writing, and signed by an authorized representative of each party, usually the signatories or, in some cases, their designees. Furthermore, it is advisable to include a statement permitting only the original signatory the authority to make modifications that result in a commitment of additional NASA resources.

Sample Clause, see appendix 1, clause 1.2.x.x. "Modifications/Amendments" Sample Clause.

1.2.19.   ASSIGNMENT OF RIGHTS:   A standard clause (1.2.x.x. in appendix 1) to preclude any assignment of rights to other entities should be included in all agreements.

Sample Clause, see appendix 1, clause 1.2.y.y. "Assignment of Rights" Sample Clause.

1.2.20.   APPLICABLE LAW:   This section establishes choice of law. Because NASA is an agency of the Federal Government, U.S. Federal law governs its domestic activities. This should be explicitly stated in the agreement. Language permitting specific state law to govern where Federal law is silent should not be incorporated into this clause. It could result in the other party seeking to establish jurisdiction for a suit against NASA (the Agency or a Federal officer) in a state court, or otherwise apply state law to Federal activities. Federal law establishes that only the Department of Justice has the authority to consent to state jurisdiction over litigation involving Federal agencies [28 U.S.C. § 1441 et seq.]

Sample Clause, see appendix 1, clause 1.2.z.z. "Applicable Law" Sample Clause.

1.2.21.   ANTI-DEFICIENCY ACT:   All agreements must include an Anti-Deficiency Act provision that states that promises made by NASA to the other party are subject to the availability of appropriated funds by the U.S. Congress.

Sample Clause, see appendix 1, clause 1.2.a.a.a. "Anti-Deficiency Act" Sample Clause.

1.2.22.   SIGNATORY AUTHORITY:   This section should include a signature block, as well as the typed name, title, and date of signature for each official. Care should be taken that the signatories have authority to bind the parties. However, no special assertion as to authority is required or recommended.

Sample Clause, see appendix 1, clause 1.2.b.b.b. "Signatory Authority" Sample Clause.

1.3.   AGREEMENTS FOR SPECIAL CATEGORIES OF ACTIVITIES

In some cases, agreements are requested by names, which have evolved through NASA practice. Often the name signifies the type of activity being undertaken. For instance, where a person or entity wishes to fly a payload on the Space Shuttle, a Launch Services Agreement (LSA) is appropriate. The LSA can either be a reimbursable or nonreimbursable Space Act agreement depending on if NASA is being compensated for its effort. Therefore, the same considerations apply for LSA's as already have been described in this chapter for all nonreimbursable or reimbursable agreements. The list that follows is not exhaustive nor is NASA restricted in its approach according to the descriptions provided below.

1.3.1.   TECHNICAL EXCHANGE AGREEMENT:   A TEA provides an agreement partner access to publicly-available information specific to an area of interest without having to file a request under the Freedom of Information Act (FOIA).

1.3.2.   LAUNCH SERVICES AGREEMENT:   An agreement which provides the terms under which a payload or instrument can be flown on the Space Shuttle.

1.3.3.   SPACE SYSTEMS DEVELOPMENT AGREEMENT (SSDA):   An SSDA is an agreement for Space Shuttle launch services designed for first time entrants in space infrastructure ventures. U.S. domstic companies are eligible for these arrangements, which include special provisions applicable to the development phase of the new venture. Such special provisions, incorporated into a launch services agreement, might include a deferred payment schedule, special access to facilities, and/or a waiver of late fees.

1.3.4.   JOINT ENDEAVOR AGREEMENT:   A JEA is an agreement under U.S. law with a U.S. domestic entity that is developing a new space process or product, and requires access to NASA facilities or services on a less than full reimbursement basis. It is used primarily with companies that have committed resources and are in active product development stages. The JEA is a cooperative working arrangement which gives these firms access to NASA facilities and services and, in return, NASA receives the right to use the data which emanates from the commercial research efforts for its own use.

1.3.5.   ANCHOR TENANCY:   NASA is prohibited, absent explicit congressional approval, from using a grant, contract, or other agreement with the expected duration of more than 1 year, to provide a guaranteed customer base for, or establish an anchor tenancy in, new commercial space hardware or services. An appropriations act must specify the new commercial space hardware or services to be

developed and the legal instrument to be used. [42 U.S.C. § 2459d; 15 U.S.C. § 5806]. If the principal purpose of the anchor tenancy is to acquire by purchase, lease, or barter, property or services for the direct benefit or use of the U.S. Government, then by definition, a contract would be required. Within these parameters, 15 U.S.C. § 5806 also requires the Administrator to determine a number of things, two of which are that the commercial good or service is cost effective, and the good or service will be competitively procured. A drawback to the potential use of an anchor tenancy is that the total amount could be scored (recorded in the budget) in the year that it is committed to, versus at its spendout rate. NASA's appropriation would therefore have to reflect the funding for the entire agreement (promised purchases) in its then-year budget [CBO Memorandum, "Budgetary Treatment of NASA's Advance Commitments to Purchase Launch Services," June 1995].

1.3.6.   LOAN OF EQUIPMENT:   The existence of a broader cooperative effort may provide an incentive for NASA to loan equipment to a party under a separate agreement. Such a loan agreement should identify the cooperative area of interest, include a list of the items to be provided, specify a duration of the loan, and impose certain obligations, unique to a loan agreement, on the receiving party. If no agreement is in place covering the joint activity for which the equipment is being loaned, the loan agreement should include the respective roles and responsibilities of each party regarding the scope of the contemplated joint project.

1.3.7.   REIMBURSABLE TRAVEL:   Some agreements may provide for the cooperating partner to reimburse NASA for travel and subsstence of NASA personnel that may be requested by the cooperating partner to provide assistance during the joint project. Pursuant to NPD 9710.10, certain delegated officials are authorized to enter into such reimbursable arrangements that are determined to be in the best interests of NASA. The actual reimbursement procedures to be followed are contained in Financial Management Manual (FMM) 9700, Chapter 9740. These reimbursements must be distinguished from gifts of travel and related expenses from foreign governments as those terms are defined in 5 U.S.C. § 7342. Such gifts are reportable in accordance with that statute. Also, reimbursement of travel and related expenses with respect to attendance at a meeting or similar function must be accepted and reported in accordance with 31 U.S.C. § 1353 and implementing regulations found at 41 CFR Part 304. "Meeting or similar function" means a conference, seminar, speaking engagement, symposium, training course, or similar event sponsored or co-sponsored by a non-Federal source that takes place away from the employee's official duty station.






CHAPTER 2. NONREIMBURSABLE AND REIMBURSABLE AGREEMENTS WITH OTHER ENTITIES OF FEDERAL/STATE/LOCAL GOVERNMENTS


2.1. GENERAL GUIDANCE

Nonreimbursable and reimbursable agreements with other agencies of the Federal Government and state/local governments can be entered into under the authority of the NASA Space Act, sections 203(c)(5) and (6),
42 U.S.C. 2473(c). Such agreements, often called interagency agreements, are a formal statement of understanding between NASA and an agency or agencies of the Federal, state, or local government
requiring NASA programmatic or institutional activities over a period of time to accomplish the purpose of
the agreement. An exchange of correspondence or transfer of funds related to routine activities within the
scope of existing authority and policies is not an interagency agreement.

2.2. AGREEMENTS WITH STATE AND LOCAL GOVERNMENTS OF THE UNITED STATES

The approach for interagency reimbursable and nonreimbursable Space Act agreements is generally the
same as those entered into with private parties. Where NASA enters into a nonbinding agreement with a
domestic public entity, either an MOU or MOA is appropriate. See Chapter 1, "Domestic Nonreimbursable
and Reimbursable Agreements with Nongovernmental Entities" for the appropriate guidance and clauses. See section 2.2.1. in this chapter for the appropriate intellectual property and data clauses.

2.2.1 INTELLECTUAL PROPERTY AND DATA RIGHTS: This section addresses the allocation
and protection of rights for agreements with state and local governments in the following five areas: (1) rights
in patents and inventions generated or used in the performance of the agreement; (2) data rights; (3) handling
of data; (4) publication of resulting data; and (5) release of general information to the public. Because the participant is a domestic government agency, a simplified approach to intellectual property and data rights is
taken, as reflected in the applicable sample clauses. For guidance on these topics, see Chapter 1, section
1.2.10.

2.2.1.1. PATENT AND INVENTION RIGHTS:

Sample Clause, see appendix 2, clause 2.2.a. "Intellectual Property and Data Rights" Patent and Invention
Rights Sample Clause.

2.2.1.2. RIGHTS IN DATA:

Sample Clause, see appendix 2, clause 2.2.b. "Intellectual Property and Data Rights" Rights in Data
Sample Clause.

2.2.1.3. HANDLING OF DATA: Where appropriate, sample clause 2.2.c. in appendix 2 can be
used.

Sample Clause, see appendix 2, clause 2.2.c. "Intellectual Property and Data Rights" Handling of Data
Sample Clause.

2.2.1.4. RESULTING DATA: Where appropriate, sample clause 2.2.d. in appendix 2 can be used.

Sample Clause, see appendix 2, clause 2.2.d. "Intellectual Property and Data Rights" Resulting Data
Sample Clause.

2.2.1.5. RELEASE OF GENERAL INFORMATION TO THE PUBLIC: It is customary to
include, if applicable, a clause in agreements with domestic governmental agencies which provides for the
release of general information to the public.

Sample Clause, see appendix 2, clause 2.2.e. "Intellectual Property and Data Rights" Release of General Information to the Public Sample Clause.

In the event that a state or local government entity requests rights to intellectual property and data arising
from reimbursed activities under the agreement for purposes of enhancing commercial utilization of the
involved technology, the appropriate patent and data rights clauses for such an agreement are the Standard Reimbursable patent and invention rights clause and the Standard Reimbursable data rights clause
(see appendix 1, sample clauses 1.2.e.e. and 1.2.i.i. respectively).

2.3. AGREEMENTS WITH OTHER U. S. FEDERAL GOVERNMENTAL ENTITIES

The requirements for interagency reimbursable and nonreimbursable Space Act agreements with other
entities of the Federal Government are generally the same as those entered into with private parties. See
Chapter 1, "Domestic Nonreimbursable and Reimbursable Agreements with Nongovernmental Entities."
Where NASA enters into a nonbinding agreement with a U.S. Federal Government entity, either an MOU
or MOA is appropriate. Three sections warrant special consideration here. These include Liability and Risk
of Loss; Intellectual Property; and Financial Obligations. These sections can be much shorter in
length than those entered into with private parties, states, or local governments because NASA will not
seek to judicially enforce promises among the parties.

2.3.1. FINANCIAL OBLIGATIONS: Depending on the type of agreement, nonreimbursable or reimbursable, one of the following two sample clauses can be used. A reimbursable agreement can require
either full or partial repayment. Partial repayment is appropriate so long as there is an overall quid pro quo. Payment in advance is not required.

Sample Clause, see appendix 2, clause 2.3.a. "Financial Obligations" Nonreimbursable Agreement
Sample Clause.

Sample Clause, see appendix 2, clause 2.3.b. "Financial Obligations" Reimbursable Agreement
Sample Clause.

2.3.2. LIABILITY AND RISK OF LOSS: Since NASA does not sue other Federal agencies, and vice-versa, liability can be allocated by having each party assume its own risks.

Where the agreement activities may result in a significant impact on the environment, the agreement should
address how the National Environmental Policy Act (NEPA) requirements will be met, to include which
party will be the lead agency or whether a formal cooperating agency relationship will be established
(see NPR 8840.x).

Sample Clause, see appendix 2, clause 2.3.c. "Liability and Risk of Loss" Sample Clause.

2.3.3. INTELLECTUAL PROPERTY AND DATA RIGHTS: This section addresses the
allocation and protection of rights for agreements with U.S. Federal Government entities in the following
five areas:

(1) rights in patents and inventions generated or used in the performance of the agreement; (2) data rights;
(3) handling of data; (4) publication of resulting data; and (5) release of general information to the public.
Because the participant is a U.S. Federal Government entity, a simplified approach to patents and inventions
is taken, as reflected in the applicable sample clause. The considerations for the data issues are identical to
those described for state and local governments of the United States and, therefore, the same allocation and protection scenario in section 2.2.1. is appropriate (see sample clauses 2.2.b. - 2.2.e. in appendix 2.)

2.3.3.1. PATENT AND INVENTION RIGHTS:

Sample Clause, see appendix 2, clause 2.3.d. "Intellectual Property and Data Rights" Patent and
Invention Rights Sample Clause.






CHAPTER 3.   NONREIMBURSABLE AND REIMBURSABLE AGREEMENTS WITH FOREIGN GOVERNMENTS OR GOVERNMENTAL ENTITIES


3.1.   GENERAL GUIDANCE

NASA has a statutory mandate to conduct its aeronautical and space activities in cooperation with other
nations. NASA is an agency of the U.S. Government that has substantial independent legal authority to
conclude executive agreements on behalf of the United States. NASA's foreign cooperative partners typically
are foreign governments, government agencies, or international organizations because for the most part, only
these entities may be parties to a legally binding agreement governed by international law. If a governmental
entity is not competent to execute binding agreements, an exchange of diplomatic notes with the partner's government is required to effect an agreement binding under international law. Where a foreign agency or international organization can make commitments on behalf of its respective government, NASA will usually execute a Space Act agreement under international law. The two types of international Space Act agreements utilized most frequently by NASA are an MOU and letter agreements.

If the foreign entity is not a governmental organization capable of entering into binding commitments on behalf
of its government, the same requirements applicable to all U.S. parties, with few exceptions, apply to nongovernmental foreign entities and the agreement should specify U.S. Federal law as the applicable law for
all purposes including interpretation. For additional details about such agreements, see Chapter 4 entitled "Nonreimbursable and Reimbursable Agreements with Foreign Nongovernmental Entities."

With respect to international collaborative efforts, it is NASA's policy to engage in projects that provide
technical, scientific, economic, or foreign policy benefits to the United States. Such projects could comprise
foreign participation in NASA activities, NASA participation in foreign activities, as well as joint international collaborative efforts. Each international cooperation should contribute to NASA's overall program objectives, including maintenance and enhancement of U.S. industrial competitiveness, and should be within the scientific, technical, and budgetary capabilities of each side. In general, NASA's cooperative activities with foreign entities are not directed to the joint development of technology, or products or processes which are potentially of near-term commercial value. Each party is fully responsible technically and financially for a clearly defined
element of the project. As such, each party retains intellectual property rights in the technology/hardware it has developed independently of the other party. Scientific results, however, are shared between the cooperating
parties and made available to the international community.

Each project that involves commitment of NASA resources should be embodied in a legally binding agreement.
It should cover the specific elements of the undertaking to include arrangements for protection of proprietary or otherwise sensitive technology, establishment of clearly defined managerial and technical interfaces, and
availability of any scientific results to the international scientific community. Specific policy and procedural
guidelines to be followed for these cooperative endeavors are contained in NPD 1050.1F.

Organizationally, the Headquarters Office of External Relations (Code I) is responsible for overall policy coordination for all of NASA's international cooperative projects and determines when an agreement is subject
to the requirements of the Case-Zablocki Act (see section 3.2). The appropriate Program Office is responsible
for the technical, scientific, programmatic, and management aspects of the joint activity. The Headquarters
Office of General Counsel (Code G) is responsible for ensuring that all aspects of the cooperation are consistent with applicable law and legal policy.

NASA's international agreements do not typically provide for NASA to be reimbursed for supplying NASA
goods or services that may be required by the cooperating partner. One of the reasons for this is that, as a
practical matter, enforceability of payment terms and conditions under international law could be more
problematic than under an agreement subject to U.S. Federal law. Exceptions to this principle may be possible under limited circumstances, such as when the reimbursable NASA activity is relatively low-cost, and is a minor component of the overall cooperative project. Another exception involves the multiyear cost of operating the International Space Station where the partners have agreed to share the annual costs of the facility according to
an established formula.

Any agreement with a foreign entity should be executed well in advance of the commencement of significant
joint activities. NASA assumes unnecessary legal risk if project activities, such as exchange of detailed technical data or equipment, or use of each other's facilities, take place without a legally binding agreement in place to appropriately allocate risk of loss or damage, and impose conditions on treatment and use of technical data. In some cases, interim agreements may be put in place to cover such areas as liability or preliminary exchanges of
data and equipment prior to the completion of the final agreement. In sum, execution of an agreement should be treated as any other important early program milestone by the office responsible for the conduct of the project.

3.2.   NONREIMBURSABLE AGREEMENT/MEMORANDUM OF
        UNDERSTANDING

In the international area, the term MOU is used by NASA for a significant agreement, binding under
international law, and procedurally consistent with the Case-Zablocki Act, 1 U.S.C. § 112b, and its
implementing regulations, 22 CFR Part 181. The Case-Zablocki Act requires that significant international commitments of the U.S. Government be reported to the foreign relations committees of both houses of the Congress. Consistent with the statute, a NASA MOU is an executive agreement that is bilateral or multilateral
in nature, is for activities which are significant in scope, is specific, has objective criteria as to the undertaking entered into between the U.S. Government/NASA and a foreign government, foreign governmental entity, or international organization, and is intended by the parties to be legally binding in accordance with international
law. The regulations require review by the Department of State in order to conclude an MOU (the interagency review process is referred to as the "Circular 175 process" and is contained in the State Department Foreign Affairs Manual 11 FAM Chapter 700).

Significant cooperative activities which should be covered by an MOU are those that have a major budget
impact, are long-term, or have a high degree of programmatic, policy, or political importance. Examples of
such activities include the following:
 
-- Launch of a foreign spacecraft on a NASA-provided launch vehicle, whether on a Space Shuttle 
or an ELV (e.g., RADARSAT with Canada).
 
-- Launch of a U.S. spacecraft on a foreign launch vehicle (e.g., TOPEX/POSEIDON with the 
Centre Nationale d'Etudes Spatial (CNES).
 
-- Long-term operations, such as multiple sounding rocket, balloon, or aircraft campaigns, 
establishment of tracking stations in foreign countries, direct data readout by foreign ground
stations, Space Shuttle landing site support (e.g., balloon agreements with Australia, Emergency Landing Site Agreement with The Gambia).
 
-- Major foreign elements (subsystems or instruments) on a U.S. mission or vice versa 
(e.g., European Space Agency (ESA) probe on Cassini, Solar Terrestrial Science Project 
Mission with ESA)).
 
-- Activities that are complex, involve multiple parties, or have unusual organizational arrangements 
(e.g., ISS).
 
-- Activities that raise issues of broader impact beyond the project itself (e.g., Mission to Planet Earth,
despite being discrete nonrepetitive instrument exchanges, due to broader policy interests in global
change research; sounding rocket projects in certain countries due to Missile Technology Control 
Regime concerns).

In addition, the following factors support a finding that an international agreement be considered significant:
 
-- The activity has a high level of political visibility. 
 
-- The agreement enters into force through confirmation by diplomatic notes between the 
Government of the United States and that of the other country, either because that country 
requires this added step or because, in a previous Circular 175 review, such confirmation has
been determined to be necessary to make the agreement legally binding (i.e., it has previously 
been determined that a particular agency does not have the authority to enter into an agreement
binding under international law).
 

3.3.   NONREIMBURSABLE AGREEMENT/LETTER AGREEMENT

Other NASA cooperative activities which are not "significant" as described above can be covered by international agreements under the same independent Space Act authority used for MOU's, but with no requirement for State Department review. NASA has traditionally employed letter agreements to cover such activities. These consist of a NASA letter to a foreign governmental entity or international organization proposing the terms of the cooperation and a letter from the foreign partner indicating unconditional acceptance of the agreement with the proposed conditions (both can be reflected in a single document). The "agreement" is not in place until an affirmative response is received, and the letters together constitute the agreement. The procedure could be reversed for minor NASA participation in a larger foreign project. Examples of activities which may be covered under a letter agreement include:
 
-- Data exchanges (e.g., Polarisation and Directionality of the Earth's Reflectants with CNES).
 
-- Ground-based projects or investigations (e.g., geodynamic measurements, wind tunnel testing).
 
-- Single flight of scientific experiments or instruments which comprise a minor portion of a predominantly NASA Space Shuttle or ELV mission (e.g., some foreign Spacelab experiments, Cassini instruments).
 
-- Flight of non-U.S. astronauts on a cooperative mission, selected consistent with published NASA regulations (e.g., flight of International Microgravity Laboratory (IML)-1 Payload Specialists)).
 

3.4.   REIMBURSABLE AGREEMENT

As stated, NASA's international agreements do not typically provide for NASA to be reimbursed for supplying NASA goods or services that may be required by the cooperating partner. The reason for this is that as a practical matter, enforceability of payment terms and conditions or settlement of agreement interpretation issues would be more problematic under international law. Exceptions to this principle may be possible in rare cases, such as when the reimbursable NASA activity is relatively low-cost and is a minor component of the overall cooperative project. The existence of a broader cooperative effort may provide incentive for NASA to make additional services and facilities available on a reimbursable basis to enable the other party to fulfill its own responsibilities under the cooperation. Reimbursable agreements of this type should be made subject to U.S. Federal law. The foreign party would be subject to the requirements standard in Space Act agreements, and to which all U.S. parties are subject, including the provision of services or facility use on a non-interference basis. As a general rule, NASA may accept reimbursement for unique services that are developed in-house, for use of NASA facilities, or for items not generally available on the commercial market from any source (e.g., specially tested integrated circuits uniquely designed for interplanetary spacecraft). Exceptions to this general standard occur. However, NASA should not, in most instances, act as a purchasing agent or broker for partner acquisition of widely available goods, parts, or services.

Conversely, NASA may have to purchase goods or services from the other side in order to meet NASA's responsibilities under the international agreement. Other appropriate legal instruments (e.g., procurement contract), not a funded Space Act agreement, should be used for these transactions. Certain conditions must be satisfied before NASA would enter into such an arrangement where funds would be provided to a foreign government or governmental entity for the purpose of performing or procuring services to fulfill NASA's obligations. Specifically, the proposed procurement arrangement must be a core condition for the foreign partner's participation in the project, and the foreign participation must be a necessary, critical component without which the project would not proceed.

All reimbursable agreements are subject to the NASA Chief Financial Officer/Comptroller's regulations and guidance for determining, allocating, and billing costs. These regulations are contained in FMM 9090, and among other things, require the establishment of a Headquarters Deposit Account, and payment in advance for the NASA-provided goods or services.

3.5.   AGREEMENT CONTENTS

NASA agreements with foreign governments or governmental entities generally consist of the following sections which are typically arranged in the following order. Those underlined are required by statute, regulation, or internal NASA guidance. Other sections may be added as appropriate for specific situations.

  1. Title.
  2. Authority.
  3. Background/Preamble.
  4. Purpose/Description of Cooperation.
  5. Responsibilities.
  6. Financial Arrangements.
  7. Scheduling Conflicts.
  8. Management Interfaces/Points of Contact.
  9. Risk Allocation/Liability.
  10. Intellectual Property Rights/Transfer of Goods and Technical Data.
  11. Customs/Taxes/Immigration.
  12. Ownership of Equipment.
  13. Consultations/Settlement of Disputes.
  14. Mishap Investigation.
  15. Modifications/Amendments.
  16. Choice of Law.
  17. Effective Date, Duration, Termination.
  18. Continuing Obligations.
  19. Anti-Deficiency Act.
  20. Signatory Block (Execution).
3.5.1.   TITLE:   Agreements are given short titles, which state: (1) the type of agreement, (2) the parties, and (3) the agreement's purpose.

Sample Clause, see appendix 3, clause 3.5.a. "Title" Sample Clause.

3.5.2.   AUTHORITY:   This section recites the legal authority for NASA to enter into the agreement which would be the NASA Space Act, 42 U.S.C. § 2451 et seq.

Sample Clause, see appendix 3, clause 3.5.b. "Authority" Sample Clause.

3.5.3.   BACKGROUND/PREAMBLE:   MOU's and letter agreements typically contain prefatory language describing the cooperative project. This section explains: (1) how the proposal for the cooperative project came about (e.g., response to an Announcement of Opportunity (AO), technical discussions, political invitation); (2) recalls previous, related collaborations; (3) delineates any relationships with other international mandates, groups, or projects; and (4) references any applicable international agreements, including, in some cases, any relevant treaties (e.g., related to outer space, protection of the environment). Additionally, parties sometimes include descriptions of their relevant national policies or mandates. In MOU's, this information is usually contained in a formally styled section known as a "preamble," which can be quite lengthy in some instances. Any abbreviated phrases which are to be used throughout the agreement (e.g., "the parties") are commonly defined in this section as well.

Sample Clause, see appendix 3, clause 3.5.c. "Background/Preamble" Sample Clause.

3.5.4.   PURPOSE/DESCRIPTION OF COOPERATION:   NASA's international agreements generally include introductory language describing the specific cooperative project, explaining the purpose of the planned activities, and outlining the agreed scientific and technical objectives of the overall mission. This section should make clear the basis for the mutual interest of NASA and the cooperating partner in the activity.

There is no "standard" format recommended for this section. The agreement drafter may choose a format based on, for example, the nature and scope of the project or similar agreements. For MOU's, this language could be contained in one or more articles appearing at the beginning of the agreement. Typically, the larger the magnitude of the project, the lengthier this section may be. In letter agreements, it is usually contained in one or two introductory paragraphs.

Sample Clause, see appendix 3, clause 3.5.d. "Purpose/Description of Cooperation" Sample Clause.

3.5.5.   RESPONSIBILITIES:   This portion of the agreement should describe the actions to be performed by each party in order to conduct the cooperative project, along with the benefits or rights accruing to each side. Enumerated responsibilities depend upon the nature of the project and may include items such as management roles; data exchange; provision of hardware; integration/testing of equipment or spacecraft; launch, tracking and data acquisition; data processing, archiving and distribution; reporting requirements; participation in working groups, meetings; mission operations, supporting ground observations, and post-mission data analysis. NASA's commitment should be stated based on use of "reasonable efforts." NASA does not enter into agreements that promise the use of its "best efforts."

The division of responsibilities between the cooperating parties should reflect clearly defined and distinct managerial and technical interfaces in order to minimize complexity of the project and the transfer of technology. Traditionally, there should be no joint development of equipment required to conduct the project. Rather, each side agrees to develop and deliver its own equipment according to a stated set of interfaces.

Several different formats are traditionally used for describing rights and responsibilities in NASA's international agreements, depending on the nature and scope of the cooperative activity, the identity of the other party, and previous agreements with that party for similar types of projects. The paragraphs, sections or articles can be organized according to party (the most common format for letter agreements), functional category (e.g., design and development, mission operations, data distribution), mission phase, or a combination of these. The sections are typically referred to simply as "Responsibilities," although the rights of each party are also included. For large cooperative activities, management relationships and responsibilities are sometimes described in separate articles or provisions.

Each party's obligations may be specified in general terms in an international agreement and the parties may choose to develop lower-level implementation plans that could further delineate each side's responsibilities. The rights and responsibilities in the agreement, however, must be of sufficient detail to disclose the core obligations, the nature of the resources required to meet those obligations, and the resulting rights belonging to each side. If this approach is followed, the agreement should specify approval and amendment authority for each plan (e.g., jointly chaired control board; identified individuals, by title, on each side). An "order of preference" provision should be included stating that the higher-level agreement is to govern in the event of conflict between the MOU or letter agreement and the implementation plans.

For purposes of the Case-Zablocki Act [1 U.S.C. § 112b], these implementation plans and other joint documents which provide technical content for the underlying international agreement are not required to be provided to the State Department for review. However, if the underlying agreement is general in nature, and the implementing agreement meets the other Case-Zablocki requirements (e.g., significant activity), the implementing agreement may well need to go through the Circular 175 review process. Examples include the implementing agreements between NASA and the Russian Space Agency for a joint Mars mission, and for human space flight cooperation, both executed under the general umbrella agreement between the United States and Russia to cooperate in the exploration and use of outer space for peaceful purposes.

Sample Clause, see appendix 3, clause 3.5.e. "Responsibilities" Sample Clause.

3.5.6.   FINANCIAL ARRANGEMENTS:   Where NASA and an international partner are engaged in a cooperative effort, each party commits to funding its own effort, subject to its respective funding procedures. Therefore, these agreements contain a clause specifying that there be no exchange of funds between the parties and that each party is committed to seek adequate funding, and to notify and consult with the other party in the event of funding problems. The sample clause is suggested for use in both MOU's and letter agreements.

Sample Clause, see appendix 3, clause 3.5.f. "Financial Arrangements" Nonreimbursable Agreement Sample Clause.

Exceptions to the general principle, that there is no exchange of funds in a cooperative activity, do occur. For instance, in a cooperative project, NASA may be requested by the other party to provide minor, NASA-unique support in helping the partner meet its own responsibilities. In the International Space Station program, co-funding of certain on-orbit operations has always been planned. In such a case where payment is being received by the Agency, it is preferable that the NASA commitment to perform the work be made in an MOU or letter agreement while a separate, legally binding reimbursable agreement sets out the terms and condition of payment. If NASA is providing funds to the other party to help the Agency meet its obligations, again, a separate, legal instrument, usually a procurement instrument, is used to effectuate the fund transfer.

In addition, reimbursable work may be undertaken to support a foreign party, unrelated to any larger cooperation, on similar terms and conditions as would be provided to a domestic party. The proposed activity must conform with NASA's performance of its functions, and NASA cannot, by virtue of the support provided, compete with the private sector. Moreover, all the costs of the activity must be borne by the international party. Where funding is to be provided to NASA, specific instructions should be included detailing the method of payment.

Sample Clause, see appendix 3, clause 3.5.g. "Financial Arrangements" Reimbursable Agreement Sample Clause.

3.5.7.   SCHEDULING CONFLICTS:   This section ensures that NASA does not become contractually committed to perform the activities contemplated according to any schedule stated in the agreement, in the event other NASA priorities or interests arise. It provides that in the event of a conflict in scheduling the NASA facility, test equipment, or workforce requirements, NASA in its sole discretion may determine which usage takes priority. The agreement may, however, reflect current planned milestones or express the desire of the other party that activities occur at a specified time.

Sample Clause, see appendix 3, clause 3.5.h. "Scheduling Conflicts" Sample Clause.

3.5.8.   MANAGEMENT INTERFACES/POINTS OF CONTACT:   In order to establish clear management interfaces, program-level and, in some cases, project-level points of contact should be specified, as dictated by the particular cooperative activity and the management framework of both parties. For example, in bigger projects, there may be both program and project managers, and program and project scientists, each having distinct management and scientific roles under the agreement (e.g., development and approval of joint documentation, conducting consultations in the event of a technical or programmatic issue). Describing these points of contact by title rather than name is probably desirable, since the agreement need not be amended in the event of personnel changes. For NASA, the program point of contact should be a NASA employee, either from Headquarters or from one of the Centers. Project-level contacts are typically from a Center or JPL. For large endeavors, separate management articles may be required since the management interfaces, joint management mechanisms, control processes, and review procedures can be somewhat extensive.

Sample Clause, see appendix 3, clause 3.5.i. "Management Interfaces/Points of Contact" Sample Clause.

3.5.9.   LIABILITY/RISK OF LOSS:   Considerations affecting decisions as to the degree of risk NASA should accept in the context of a particular activity to be conducted with a foreign government, or governmental entity, are generally the same as those involving activities with U.S. entities. It involves assessments of the degree of NASA interest as well as foreseeable risk inherent in the activity.

Please refer to the discussion in Chapter 1 entitled, "Domestic Nonreimbursable and Reimbursable Agreements," section 1.2.9. In addition, with international agreements (or agreements with foreign non-governmental parties) involving space flight, obligations under the Liability and Registration Conventions need to be addressed.

3.5.9.1.   LIABILITY CONVENTION:   The Convention on International Liability for Damage Caused by Space Objects (Liability Convention) [24 U.S.T. 2389, T.I.A.S. 7762] is an international treaty establishing rules and procedures concerning the liability of countries for damage caused, to other countries, by their space objects or to aircraft in flight. Under the treaty, a launching state (which includes a nation whose territory or facilities are used to launch a space object or which procures a launch) is strictly liable for damage caused by its space object on the Earth. This means that, by virtue of being a signatory to the treaty, a launching state has already accepted the principle of absolute liability for such damage without requiring that fault be established. For damage on orbit, a launching state would be liable only if the damage is due to its fault.

In NASA's international agreements involving space flight, the prescribed cross-waiver clause notes that the agreement to waive claims between the parties includes a waiver of any potential claims arising under the Liability Convention. To address possible claims by third-party countries, a clause requiring consultation between the cooperating parties should be included.

Sample Clause, see appendix 3, clause 3.5.j. "Liability and Risk of Loss" Liability Convention Sample Clause.

3.5.9.2.   REGISTRATION OF SPACE OBJECTS:   The Convention on the Registration of Objects Launched into Outer Space (Registration Convention) [28 U.S.T. 695, T.I.A.S. 8480] is an international treaty that provides for national registration by launching states of space objects, and mandates a central registry be maintained by the United Nations. The implications of registering a space object include assuming responsibility, jurisdiction, and control over that space object, pursuant to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Outer Space Treaty) [18 U.S.T. 2410, T.I.A.S. 6347]. Under the Registration Convention, when there are two or more launching states, they are to jointly determine which one of them will register the object. Accordingly, for NASA's agreements involving flight into outer space, a provision stating which side is to effect registration must be included. Factors to consider in making this determination include which side is to provide the launch, or contribute the spacecraft, whether a spacecraft is to be left in orbit, and who is to conduct the majority of the day-to-day operations of the spacecraft. If the other party is not a governmental entity, the agreement should state that the other party will request that its government register the object.

Sample Clause, see appendix 3, clause 3.5.k. "Liability and Risk of Loss" Registration of Space Objects Sample Clause.

3.5.10.   INTELLECTUAL PROPERTY RIGHTS/TRANSFER OF GOODS AND TECHNICAL DATA:

International agreements should address the allocation of rights in any intellectual property that may arise under the proposed activity. In general, NASA's cooperative activities with foreign entities are not directed to the joint development of technology, or products or processes that are potentially of commercial value. Each party is fully responsible, technically and financially, for a clearly defined element of the project. Where NASA's international cooperative activities are not directed to the joint development of technology, sample clauses 3.5.l. - 3.5.q. in appendix 3 should be used. The clauses are structured so that each party can protect its sensitive technology while still providing necessary interface information. The clauses allow each party to retain intellectual property rights in the technology/hardware it has developed independently of the other party. Scientific results of NASA's cooperation with foreign entities, however, are shared among the cooperating parties and made available to the international community.

Although rare, it is possible that the situation may arise where NASA is involved in "joint" research, i.e., where both parties jointly develop an element of the project. In such instances, the applicability of the intellectual property provisions in existing Government-level "umbrella" agreements covering joint research in general science and technology cooperation may also need to be considered.

In either case, of primary concern in agreements with foreign entities, is the avoidance of unauthorized or unnecessary transfer of U.S. technology and compliance with U.S. export control laws and regulations.

3.5.10.1   INVENTION AND PATENT RIGHTS:

Sample Clause, see appendix 3, clause 3.5.l. "Intellectual Property Rights/Transfer of Goods and Technical Data" Invention and Patent Rights Sample Clause.

3.5.10.2.   INVENTION AND PATENT RIGHTS/JOINT INVENTION:   Where there is a possibility of a joint invention but the use of the existing Government-level "umbrella" agreements is not appropriate, sample clause 3.5.m. in appendix 3 is added to the Invention and Patent Rights sample clause 3.5.l. in letter agreements with foreign governmental entities under international law. In addition, sample clause 3.5.m. in appendix 3 is typically included in agreements with foreign entities under U.S. law.

Sample Clause, see appendix 3, clause 3.5.m. "Intellectual Property Rights/Transfer of Goods and Technical Data" Invention and Patent Rights/Joint Invention Sample Clause.

3.5.10.3.   TRANSFER OF TECHNICAL DATA AND GOODS:   Sample clause 3.5.n. addresses the transfer of hardware and its associated technical data (e.g., data directly related to the interfaces, integration, testing, use or operation of an item of hardware) required for the parties to meet their obligations under the agreement. Also, to the extent applicable, the provision should cover the rights and obligations of the parties with respect to transferred proprietary data and export-controlled data and goods.

A significant percentage of NASA's international activities may involve transfers by NASA, or other U.S. parties, of commodities, software, or technologies to foreign partners. These transfers are generally subject to export control laws and regulations, regardless of whether they occur in the United States, overseas, or in space. Export controls are imposed on such transfers and activities in order to protect the national security and to further U.S. foreign policy objectives. NASA's Export Control Policy was articulated as follows by the Administrator in October 1995.

"As a U.S. Government Agency on the forefront of technological development and international cooperation in the fields of space, aeronautics, and science, the National Aeronautics and Space Administration will strive to fulfill its mission for cooperative international research and civil space development in harmony with the export control laws and regulations of the United States and the world, including risks posed by the spread of missile technologies and weapons of mass destruction, and in view of the significant criminal, civil, and administrative penalties that may affect the Agency and its employees as a result of a failure to comply with U.S. export control laws and regulations, it is the responsibility of every NASA official and employee to ensure that the export control policies of the United States, including nonproliferation objectives, are fully observed in the pursuit of NASA's international mission."

Overall, each party is obligated to transfer to the other party only those technical data and goods necessary to fulfill the transferring party's responsibilities under the agreement. When appropriate, the type of data to be exchanged without restrictions is specified, e.g., "interface, integration, and safety data (excluding detailed design, manufacturing, and processing data, and associated software.") Sample clause 3.5.n. in appendix 3 is structured to allow the parties to exchange data without restrictions, except for possible proprietary or export controlled data. Additionally, the clause precludes the unwarranted transfer of technology by limiting use of the transferred, marked proprietary data, data subject to export control and goods to the specific purposes of the programs implemented by the agreement. [For additional information on NASA's Export Control Program, See the "NASA Export Control Program" (NASA/ECP), dated April 1997].

Sample Clause, see appendix 3, clause 3.5.n. "Intellectual Property Rights/Transfer of Goods and Technical Data" Transfer of Technical Data and Goods Sample Clause.

In certain cases, transfers of particularly sensitive items, including technologies, warrant more restrictive provisions regarding transfers of technical data and goods between parties. Such cases may include launch activities, transfers of advanced payloads or other items with heightened export control concerns, or activities which raise special security, foreign policy, or nonproliferation issues. In these cases, it is appropriate to provide the parties with the ability to review proposed retransfers of items among the receiving party's related entities (contractors, subcontractors, etc.), if desired.

3.5.10.4.   RIGHTS IN RESULTING DATA:   Sample clause 3.5.o. in appendix 3 addresses the parties' exchange of and right to use the data (usually of a scientific nature) resulting from the agreement, as well as the availability of data to others. In appropriate circumstances, the parties may agree that the raw scientific data derived from experiments will be reserved to Principal Investigators for scientific analysis purposes and first publication rights for a set period of time, usually not exceeding 1 year. The period begins with receipt of the raw data and any associated (e.g., spacecraft) data in a form suitable for analysis. In appropriate instances, Principal Investigators may be requested to share the data with other investigators, including interdisciplinary scientific and guest investigators, to enhance the scientific return from the mission/program under procedures decided by a designated group under the agreement. Such "reserved use" periods are not usually provided in Earth science data arrangements or in other arrangements where rapid, open, and unrestricted data access is desired.

It is also usually agreed that the parties to the agreement will have access to, and use of, the raw data and any associated data, but, during the exclusive-use period, such parties' use will not prejudice the first publication rights of the Principal Investigators. The parties customarily agree that, following the exclusive-use period, the data will be deposited with designated data repositories or data libraries, as appropriate, and, thereafter, will be made available to the scientific community for further scientific use.

Sample Clause, see appendix 3, clause 3.5.o. "Intellectual Property Rights/Transfer of Goods and Technical Data" Rights in Resulting Data Sample Clause.

3.5.10.5.   PATENT AND COPYRIGHT USE -- AUTHORIZATION, CONSENT, INDEMNIFICATION:   One of the remedies available to a patent or copyright owner for patent or copyright infringement is an injunction preventing the alleged infringer from making, using, or selling the invention or work, or carrying out the process, which is the subject of the patent or copyright, until a court resolves the legal dispute. The U.S. Government has waived sovereign immunity with respect to monetary compensation for patent or copyright infringement, but not with respect to injunction. Under 28 U.S.C. § 1498, whenever an invention or work covered by a U.S. patent or copyright is used by the United States, or for the United States and with its authorization and consent, the patent or copyright owner's only remedy is an action against the United States in the U.S. Court of Federal Claims for the recovery of reasonable and entire compensation for such use and manufacture.

Where cognizant patent or intellectual property counsel determine that activities undertaken by NASA's cooperating partner, its contractors, and subcontractors are likely to be legally enjoined by a patent or copyright owner in the United States, then an authorization and consent clause should be included in an agreement in order to avoid an injunction. This also avoids any legal arguments regarding whether authorization and consent, if not expressed, should be implied because of the beneficial cooperation involved in the MOU or letter agreement. If not included in the agreement, however, it can be added subsequently by the parties by mutual agreement.

In order to protect the United States financially, whenever authorization and consent is granted, NASA's cooperating partner should be required to indemnify the U.S. Government if infringement liability is incurred, as decided by the U.S. Court of Federal Claims. When no authorization and consent is granted, the broad indemnification clauses (sample clauses 1.2.v. and 1.2.w. in appendix 1) sufficiently provide for intellectual property infringement indemnification.

Sample Clause, see appendix 3, clause 3.5.p. "Intellectual Property Rights/Transfer of Goods and Technical Data" Patent and Copyright Use -- Authorization, Consent, Indemnification Sample Clause.

3.5.10.6.   RELEASE OF GENERAL INFORMATION TO THE PUBLIC:   It is customary to include, if applicable, sample clause 3.5.q. in appendix 3 in agreements with foreign entities that provides for the release of general information to the public.

Sample Clause, see appendix 3, clause 3.5.q. "Intellectual Property Rights/Transfer of Goods and Technical Data" Release of General Information to the Public Sample Clause.

3.5.11.   CUSTOMS/TAXES/IMMIGRATION:   NASA's international agreements contain a general obligation to facilitate free customs clearance (e.g., waiver of applicable duties or taxes) for entrances to, and exits from, each side's respective country for material required for the implementation of the cooperative project. 14 CFR Part 1217, "Duty-Free Entry of Space Articles," outlines the procedures to be followed for duty-free import of articles under NASA's international programs.

Sample Clause, see appendix 3, clause 3.5.r. "Customs/Taxes/Immigration" Sample Clause.

In some instances, the agreement should contain an obligation for each side to facilitate movement of persons and goods necessary to implement the agreement into and out of its territory (e.g., as in International Space Station, where large numbers of personnel and equipment are moving among the Partner States).

Sample Clause, see appendix 3, clause 3.5.s. "Customs/Taxes/Immigration" Facilitate Movement of Persons and Goods Sample Clause.

Finally, the agreement may need to contain an obligation to facilitate provision of the appropriate entry and residence documentation for the other party's nationals and families of nationals who enter, exit, or reside within its territory in order to carry out the activities under the agreement (e.g., as in an agreement for an extensive cooperative project with a country such as Russia with complicated, lengthy immigration procedures).

Sample Clause, see appendix 3, clause 3.5.t. "Customs/Taxes/Immigration" Facilitate Entry and Resident Documentation Sample Clause.

3.5.12.   OWNERSHIP OF EQUIPMENT:   A NASA international agreement involving temporary transfer of equipment to another country should normally contain language addressing ownership. In this case, the agreement should contain a provision stating that each side retains ownership of the equipment each provides to the other and the parties agree to return any of the other party's equipment in its possession at the conclusion of the project. Depending on the nature of the activity, other aspects of ownership, such as any restrictions on transfer or on exercise of ownership, may need to be addressed.

Sample Clause, see appendix 3, clause 3.5.u. "Ownership of Equipment" Sample Clause.

3.5.13.   CONSULTATIONS/SETTLEMENT OF DISPUTES:   A provision addressing settlement of disputes between the parties is usually included in NASA's international agreements. As an overall rule, the parties should agree to consult promptly with each other on all issues involving interpretation or implementation of the agreement. To facilitate resolution of a matter that cannot be resolved through consultation, the agreement should outline the specific dispute resolution procedures to be followed. Frequently, matters in dispute are first referred for resolution to specific officials on each side, identified by title. Any matter that can not be settled at this initial level is next referred to higher level officials on each side. If these parties are unable to reach resolution, the NASA official at that level, or one level higher depending on the complexity and visibility of the agreement activity, should provide a written Agency decision. For complex arrangements, the most senior person under whose authority the original agreement was signed is often the most suitable official for issuing the final Agency decision. In an MOU for exceptionally significant or highly visible activities, provision may be made to elevate an unresolved issue to the NASA Administrator and his or her counterpart. Less significant agreements should not implicate the Administrator in disputes resolution. Use of the Administrator as the designated official for making a final Agency decision requires consultation with the offices of the Administrator and the General Counsel.

Generally, NASA cannot agree to submit an unresolved issue to binding arbitration in an international agreement. In very limited instances provision for potential submission of disputes to an agreed form of resolution, such as arbitration, mediation, etc., may be included. Both parties must agree to any such submission of the specific matter in dispute, however. Agreement to any arbitration clause is not standard policy and requires specific approval by the General Counsel.

Sample Clause, see appendix 3, clause 3.5.v. "Consultations/Settlement of Disputes" Sample Clause.

3.5.14.   MISHAP INVESTIGATION:   For international activities where there is the possibility of a serious accident or mission failure occurring, and the parties involve non-U.S. Government personnel, it is advisable to include a mishap investigation clause in the agreement. If applicable, NPD 8621.1G should be followed for investigating a "NASA mishap."

Sample Clause, see appendix 3, clause 3.5.w. "Mishap Investigation" Sample Clause.

3.5.15.   MODIFICATIONS/AMENDMENTS:   Although not legally required, an international agreement often notes that it may be amended, in writing, at any time by mutual agreement of the parties. Amendments to an MOU may require State Department Circular 175 review prior to incorporation.

Sample Clause, see appendix 3, clause 3.5.x. "Modifications/Amendments" Sample Clause.

3.5.16.   CHOICE OF LAW:   International MOU's and letter agreements are usually executed under international law. In these agreements, no "choice of law" clause is required. However, U.S. Federal law should be designated as governing, where the preponderance of the activity is conducted by NASA, or its contractors and subcontractors, or where most of the activity takes place within the United States. Likewise, all reimbursable agreements with international partners should be subject to U.S. Federal law. There may be instances where NASA may agree to be governed by the law of a foreign nation. However, this presents an extremely complex issue which should be referred to appropriate Agency counsel.

Sample Clause, see appendix 3, clause 3.5.y. "Choice of Law" Sample Clause.

3.5.17.   EFFECTIVE DATE/DURATION/TERMINATION:   An MOU generally becomes effective on the date of the last signature. In certain instances, some MOU's may only become effective upon an exchange of diplomatic notes between the United States and the government of the cooperating agency confirming acceptance of its terms and that all necessary legal requirements for entry into force have been fulfilled. For letter agreements, determining the effective date, and, in fact, whether there is even a valid agreement at all, can be more problematic. To legally constitute an agreement, the exchange of letters must indicate unconditional acceptance by both sides to the identical set of terms and conditions.

NASA's international agreements should always specify a duration for the cooperative project. The duration of the agreement could be measured by a specific period of time (e.g., 3 years), or a project milestone (e.g., when the satellite ceases operations), or a combination of both (e.g., for 3 years, or until cooperative activities are complete, whichever is earlier). The agreement should also state that the duration may be extended by written agreement of the parties. For MOU's, such an extension may require Circular 175 review and approval.

Either party to one of NASA's international agreements should be allowed to terminate the agreement upon written notice to the other. This notice is generally required to be presented to the other party in advance of the desired termination date, usually 3 to 6 months.

Sample Clause, see appendix 3, clause 3.5.z. "Effective Date/Duration/Termination" Sample Clause.

3.5.18.   CONTINUING OBLIGATIONS:   Agreements should specify which obligations of the parties survive termination or expiration of the agreement, for example, intellectual property rights, technical data/export control, and liability. The specific articles or sections should be referenced.

Sample Clause, see appendix 3, clause 3.5.a.a. "Continuing Obligations" Sample Clause.

3.5.19.   ANTI-DEFICIENCY ACT:   All agreements must include an Anti-Deficiency Act provision, which states that any promises made by NASA to another party are subject to the availability of funds appropriated by the U.S. Congress.

Sample Clause, see appendix 3, clause 3.5.b.b. "Anti-Deficiency Act" Sample Clause.

3.5.20.   SIGNATORY AUTHORITY (EXECUTION):   This section should include a signature block, as well as the typed name, title, and date of signature for each official. Care should be taken that the signatories have authority to bind the parties. For State Department-approved agreements, a statement concerning authority to sign is included in this section. With letter agreements, no special assertion as to authority is required or recommended.

Sample Clause, see appendix 3, clause 3.5.c.c. "Signatory Authority" Sample Clause.

3.6.   AGREEMENTS FOR SPECIAL CATEGORIES OF ACTIVITIES

In some cases, agreements are identified according to the type of activity being undertaken. For instance, where a foreign crewmember is to be flown on the Space Shuttle, a standards of conduct agreement is required. Foreign Principal Investigators of Earth remote sensing data are generally asked to sign a foreign investigator agreement. These agreements can be an MOU, MOA, or other type of nonreimbursable or reimbursable Space Act agreement depending on whether NASA is being compensated for its effort.

3.6.1.   STANDARDS OF CONDUCT/FOREIGN CREWMEMBER:   Certain provisions related to standards of conduct must be contaied in agreements with foreign parties that provide for training or flight of a foreign Space Shuttle or ISS crewmember. Specifically, the agreement must require the crewmember to enter into a standards of conduct agreement with NASA at, or prior to, the beginning of the training period, which will include installation safety and security matters, provisions related to prohibition on use of position for private gain, authority of the Mission Commander, and limitations on use of information received during training and flight. The cooperating partner agency must ensure that its crewmembers comply with the provisions of such an agreement. In some cases, it may be appropriate to include a standards of conduct agreement as an attachment to the international agreement.

3.6.2.   FOREIGN INVESTIGATOR AGREEMENT:   In some instances, foreign investigators, science team members, or interdisciplinary scientists are selected for NASA missions after responding to a NASA scientific Announcement of Opportunity (AO) or NASA Research Announcement (NRA). Under current policy, NASA does not fund the work of foreign investigators selected through these competitive processes. Therefore, once selected, international agreements must be executed with a governmental entity, within the selected scientist's country, willing to sponsor the scientist's participation in the cooperative project. The sponsoring agency agrees to ensure fulfillment of the specified responsibilities by its scientist(s), in accordance with the terms of the agreement. If no governmental sponsor can be identified, NASA can execute a Space Act agreement directly with the Principal Investigator's (PI) institution. Such an agreement, however, would not be an international agreement, and the guidelines in chapter 4 should be followed.

As a general rule, NASA executes an agreement to cover each foreign Co-investigator (Co-I) or science team member working under a U.S. PI or science team leader. For a foreign PI, NASA generally executes a single agreement with the scientist's sponsoring agency, in which the sponsoring agency must ensure that all the non-U.S. Co-I's abide by the terms of the agreement with NASA. In this case, NASA looks to the sponsoring agency of the foreign PI to establish the appropriate legal relationships with the non-U.S. Co-I's on the team.

The liability clause to be used in a foreign investigator agreement depends on several factors. If the investigator is involved with hardware development or mission operations for a payload to be flown on the Space Shuttle, the ISS, or a NASA-sponsored ELV mission, the applicable cross-waiver with the full "flow down" should be used. If the investigator is only performing data analysis on the resultant data, a "low risk" cross-waiver clause is appropriate.

3.6.3.   LOAN OF EQUIPMENT:   The existence of a broader cooperative effort may provide an incentive for NASA to loan equipment to a foreign party under a separate international letter agreement. Such a loan agreement should identify the cooperative area of interest, include a list of the items to be provided, specify a duration of the loan, and impose certain obligations, unique to a loan agreement, on the receiving party.

If no agreement is in place covering the joint activity for which the equipment is being loaned, the loan agreement should include the respective roles and responsibilities of each party regarding the scope of the contemplated joint project.

3.6.4.   REIMBURSABLE TRAVEL AGREEMENT:   Some international agreements may provide for the cooperating partner to reimburse NASA for travel and subsistence of NASA personnel that may be requested by the cooperating partner to provide assistance during the joint project. Pursuant to NPD 9710.1O, certain delegated officials are authorized to enter into such reimbursable arrangements that are determined to be in the best interests of NASA. For purposes of an international agreement, written concurrence of a program official of this level should be obtained. The actual reimbursement procedures to be followed for reimbursable arrangements of this type are contained in FMM 9700, Chapter 9740, section 9741-18. These reimbursements must be distinguished from gifts of travel and related expenses from foreign governments, as those terms are defined in 5 U.S.C. § 7342. Such gifts are reportable in accordance with that statute. Also, reimbursement of travel and related expenses with respect to attendance at a meeting or similar function must be accepted and reported in accordance with 31 U.S.C. § 1353 and implementing regulations found at 41 CFR Part 304. "Meeting or similar function" means a conference, seminar, speaking engagement, symposium, training course, or similar event sponsored or cosponsored by a non-Federal source that takes place away from the employee's official duty station.

If the partner is to defray the travel and subsistence costs of NASA contractor personnel, the agreement should make clear that such costs are to be reimbursed directly to the contractor. Similarly, pursuant to the procedures in NPD 9710.1O, NASA may fund the travel expenses of foreign partner personnel for specific official purposes outlined in the NPD.






CHAPTER 4. NONREIMBURSABLE AND REIMBURSABLE AGREEMENTS WITH FOREIGN NONGOVERNMENTAL ENTITIES


4.1. GENERAL GUIDANCE

NASA`s general policy is that its agreement counterparts for international cooperative activities will be foreign governments, government agencies, or international organizations. When this is the case, and the foreign agency or international organization can make binding commitments on behalf of its respective government, NASA may execute a Space Act agreement under international law, as described in chapter 3. However, when the cooperating foreign entity is not governmental, or where a governmental entity cannot fully commit to obligations on behalf of its government, NASA may still execute a Space Act agreement with the cooperative entity according to the guidelines in this chapter. An example of the type of agreement that might be executed with a foreign nongovernmental entity would be a data exchange agreement between NASA and a foreign university.

If the foreign entity is not a governmental entity capable of entering into binding commitments on behalf of its government, with few exceptions, the same requirements applicable to all U.S. parties are applicable to nongovernmental foreign entities and the agreement should be drafted under U.S. domestic law. [In this case, an international agreement, as a matter of law, is not possible]. For details about U.S. domestic law agreements, see Chapter 1 entitled "Domestic Nonreimbursable and Reimbursable Agreements with Nongovernmental Entities."

4.2. AGREEMENT CONTENTS

This section details additional considerations specific to a Space Act agreement with a foreign nongovernmental entity. Topics include Liability and Risk of Loss; Intellectual Property Rights/Transfer of Goods and Technical Data; Customs, Taxes and Duties; and Choice of Law.

For appropriate guidance and sample clauses on Liability and Risk of Loss, Intellectual Property Rights/Transfer of Goods and Technical Data, please refer to Chapter 3 entitled, "Nonreimbursable and Reimbursable Agreements with Foreign Governments or Governmental Entities." Otherwise, except where noted below, please refer to the discussion in Chapter 1 entitled, "Domestic Nonreimbursable and Reimbursable Agreements with Nongovernmental Entities" for guidance and suggested language.

4.2.1. CUSTOMS, TAXES AND DUTIES: For agreements with foreign nongovernmental entities, it is important to include customs provisions which require the cooperating entity to pay customs duties or taxes in the event that they are not waived, since a nongovernmental entity may not have the authority to waive such expenses on its side. Sample clause 4.2.a. in appendix 4 should not be varied.

Sample Clause, see appendix 4, clause 4.2.a. "Customs, Taxes and Duties" Sample Clause.

4.2.2. CHOICE OF LAW: Since a Space Act agreement of this type is not an agreement subject to international law, the agreement should include a choice-of-law clause, where the parties decide at the outset of the activity which law is to govern the agreement. This includes agreements with nongovernmental entities as well as where NASA is providing goods or services on a reimbursable basis to any foreign cooperating party (both governmental and nongovernmental).

U.S. Federal law should be designated as governing these Space Act agreements where the preponderance of the activity is conducted by NASA, or its contractors and subcontractors, or where most of the activity takes place within the United States. There may be instances where NASA may agree to be governed by the law of a foreign nation. However, this presents an extremely complex issue which should be referred to appropriate Agency counsel for consideration.

Sample Clause, see appendix 4, clause 4.2.b. "Choice of Law" Sample Clause.






CHAPTER 5. FUNDED AGREEMENTS

5.1. GENERAL GUIDANCE

A funded Space Act agreement permits appropriated funds to be transferred to an agreement partner to accomplish an Agency mission. Prior to initiating a funded agreement, specific threshold considerations must be addressed. A funded Space Act agreement may only be used in cases where the agreement objective cannot be accomplished by use of a contract, cooperative agreement, grant, or (reimbursable or nonreimbursable) Space Act agreement. In addition, funded Space Act agreements are not available for the Agency`s international activities. Therefore, funded agreements, for purposes of this document, are limited to activities undertaken with domestic parties.

5.2. AGREEMENT CONTENTS

Funded Space Act agreements, like any other agreement entered into under NASA`s "other transaction" authority, are nonstandard. The flexibility of the Space Act provides NASA and its agreement partners the means to formulate a relationship that permits optimal results. Such agreements may, in fact, include other NASA resources in addition to funding, such as personnel, expertise, services, equipment, information, intellectual property, or facilities. Certain subject areas, similar to those in nonreimbursable agreements should be addressed in all funded agreements. See Chapter 1, "Domestic Nonreimbursable and Reimbursable Agreements with Nongovernmental Entities" for guidance and suggested language to be used with private sector parties. See Chapter 2, "Nonreimbursable and Reimbursable Agreements with Other Entities of Federal/State/Local Governments" for guidance on funded agreements with U.S. public parties. This section details additional considerations specific to a funded Space Act agreement. Topics include Financial Obligations, Accounting and Audit, and Intellectual Property.

5.2.1. FINANCIAL OBLIGATIONS: Funded Space Act agreements should include a section which details NASA`s intended contribution. It can include other NASA resources in addition to funding.

Sample Clause, see appendix 5, clause 5.2.a. "Financial Obligations" Sample Clause.

5.2.2. ACCOUNTING AND AUDIT: A requirement to include an "Accounting and Audit" section is specific to funded Space Act agreements. Given that NASA is providing funding, additional safeguards are required to ensure that the participating party(ies) are using any NASA-provided funding in accordance with the intended purposes as stated in the agreement. As such, any agreement partner is required to account for project-related expenditures and to utilize an accounting system operated in accordance with Generally Accepted Accounting Principles (GAAP). In addition, the NASA Inspector General, or U.S. Comptroller General, or his/her representative, must be given the right of timely and unrestricted access to any records that are pertinent to the NASA funds.

Sample Clause, see appendix 5, clause 5.2.b. "Accounting and Audit" Sample Clause.

5.2.3. INTELLECTUAL PROPERTY: Funded Space Act agreements should address the allocation of intellectual property rights. When the funded Space Act agreement is a Joint Sponsored Research Agreement (JSRA), a detailed description of the appropriate intellectual property clauses can be found in the JSRA Program Information Package (PIP) described in section 5.3 below. Otherwise, determining the appropriate allocation of intellectual property rights for a funded Space Act agreement is a fact-specific, case-by-case determination. As such, patent counsel should be consulted as early as possible for best results.

5.3. JOINT SPONSORED RESEARCH AGREEMENT

One specific type of funded Space Act agreement is the JSRA. It permits NASA to provide resources, including funding, personnel, expertise, services, equipment, information, intellectual property, or facilities on a shared or pooled basis to a non-Government partner or consortia as part of a larger research and development effort. The level of the partner`s contribution must be equitable compared to NASA`s contribution, taking into account the purpose, and the other party`s contribution of funding and nonmonetary resources. The principle purpose of a JSRA is to develop and commercialize dual-use technologies. In addition, one of three other objectives must be met: (1) leverage the cost of technology development between NASA and the private sector; or (2) enhance U.S. industry`s competitive position in the global marketplace; or (3) convert aerospace or defense technology to commercial application.

NASA`s experience to date indicates that JSRA`s may be useful in a dual-use research project involving an industry-led consortium. This type of partnership involves a research and development (R&D) collaboration between NASA and the private sector over technologies relevant to NASA`s mission and sought by the private sector for commercial applications. The technology may be a product or process. By working together, NASA and the private sector party accelerate the development of technology while sharing costs. Intellectual property rights must be shared in a manner that fosters the commercialization of the resulting technology. NASA`s role is to stimulate U.S. industry initiative in technology areas that are likely to have a significant impact on the industry`s technology leadership or global competitiveness, consistent with NASA`s mission. While NASA would be involved in determining broad project goals, industry is required to set specific R&D objectives and develop R&D task plans. In addition, U.S. industry participants enter into Articles of Collaboration (or other mechanisms for establishing multiparty relationships) which delineate management structure, technical and financial responsibilities, and intellectual property rights. All private sector parties to the JSRA should sign the Articles of Collaboration. The JSRA can be signed by a representative of the total membership.

For a detailed description of the JSRA Program, including intellectual property guidelines, obtain a copy of the PIP, dated July 1996, from your commercialization technology office.

5.4. ECONOMY ACT ACQUISITIONS

Where the other party is a U.S. Federal Government entity, the Economy Act [31 U.S.C. 1535] provides an entirely separate statutory basis than the Space Act for the purchase of supplies or services. Under the Economy Act, the agency needing supplies and/or services is the requesting agency; the one supplying the supplies and/or services is the servicing agency. The transfer of funding, which must be on a full cost recovery basis, is effectuated through an interagency fund transfer instrument called an Economy Act order. These Economy Act transactions must be supported by a Determination and Finding (D&F)

[48 CFR Part 1817, FAR 17.503, NFS 1817.503 for similar activity under the Space Act, NFS 1817.70 for military departments] which documents the following: (1) it is in the best interests of the Government; and (2) the supplies or services cannot be obtained as conveniently or economically from a private source. In addition, if the Economy Act order requires contracting action by the servicing agency, the D&F needs to include additional findings, which generally stated, must include one of the following: the acquisition will appropriately be made under an existing contract of the servicing agency; the servicing agency has capabilities or expertise which are not available within the requesting agency; or, the servicing agency is specifically authorized by law or regulation to purchase such supplies or services on behalf of other agencies. In addition to the D&F, supporting documentation for NASA/DoD acquisitions includes NASA Form 523. Agency procurement officials and procurement counsel can provide guidance for Economy Act activities.








APPENDIX 1.   SAMPLE CLAUSES FOR DOMESTIC NONREIMBURSABLE AND REIMBURSABLE AGREEMENTS WITH NONGOVERNMENTAL ENTITIES



1.2.   AGREEMENT CONTENTS

1.2.a.   "Title" Nonreimbursable Agreement Sample Clause.

Nonreimbursable Space Act agreement between the National Aeronautics and Space Administration (NASA) and Company X for Development of a Commercial Logistics Module.

1.2.b.   "Title" Reimbursable Agreement Sample Clause.

Reimbursable Space Act agreement between the National Aeronautics and Space Administration (NASA) Lewis Research Center and the XYZ Company for Icing Research Tunnel Test of XYZ's 777 Nozzle Ring.

1.2.c.   "Authority" Sample Clause.

This agreement is entered into by NASA pursuant to 42 U.S.C. § 2473(c)(5) and (6), section 203(c) of the National Aeronautics and Space Act of 1958, as amended and (company name) with a place of business at 2224 North Street, Arlington, VA 22201.

1.2.d.   "Purpose and Agency Commitment" Sample Clause.

NASA and the Commerce Department have contracted with Company X for a new generation of weather satellites for the National Oceanic and Atmospheric Administration (NOAA). The objective of this program is to perform a series of tests on the Large Payload Fairing (LPF) for satellites being delivered to Commerce by Company X. These tests will be conducted by NASA and the Commerce Department in NASA's Plum Brook Space Power Facility (SPF). This testing is expected to provide the necessary data to verify the capability to jettison the LPF in space, to ensure adequate clearance between the fairing trajectory and payload envelope, and to demonstrate structural integrity during jettison. The data obtained will also be used to verify existing Company X jettison analysis models furnished to Commerce.

1.2.e.   "Responsibilities" Sample Clause.

A. [Name of other party] will use reasonable efforts to --
1. Furnish the Atlas 2AS test article, test article instrumentation, and data systems required for the test.

2. Provide test article related engineering and technician support to install, operate, and maintain the test article, instruments, and data systems.

3. Comply with all NASA safety procedures for testing in the SPF and provide to the key person, designated herein for NASA, a safety plan for the Atlas 2AS 14' Fairing Jettison Test no later than 14 days prior to date of test commencement.

4. Furnish requirements for high-speed camera coverage during testing.

These requirements will be communicated by NASA to the designated key person for [other party] within 5 days of commencement of testing.

[Agreements involving the other party's use of NASA research facilities or equipment should include a provision in the user's responsibilities section which states, in substance]:

(1) the user will submit a test plan or similar document within a specific period of time and may not commence testing until the plan is approved by NASA, (2) the user agrees to comply with all NASA safety and security requirements, and (3) the user agrees to comply with all environmental laws.

B. NASA will use reasonable efforts to:

1. Provide the SPF vacuum test facility at its LeRC Plum Brook Station and appropriate personnel to operate the facility on a multiple-shift or extended-shift basis, as required, to complete the test program within 5 days of commencement. The determination of the appropriate personnel, both in number, skill mix, and identity, shall be solely at the discretion of NASA.

2. Provide and operate the high-speed camera system during testing.

1.2.f.   "Responsibilities" Technical Exchange Agreement Sample Clause.

NASA will provide Entity X on a reasonable efforts, non-interference basis publicly available technical data and other information that is requested, in writing, by Entity X and is necessary to Entity X's design, planning, or construction of its planned Y. Entity X shall provide to NASA any technical and other data regarding its design, construction, and operations planning to the extent that the parties agree this data is necessary for NASA to respond to Entity X's requests for information.

1.2.g.   "Responsibilities" No Competition with Private Sector Sample Clause.

In recognition that NASA does not compete with the U.S. private sector regarding the provision of assets and services, in no case will NASA provide to Company X, under this or any other Space Act agreement, any support that is commercially available from the U.S. private sector.

1.2.h.   "Schedule and Milestones" Sample Clause.

The scheduled major milestones for the Atlas 2AS 14' Payload Fairing tests are as follows:
 

A.   Deliver test article to Plum Brook Station             06/16/98
B.   Complete installation of test article in
       SPF facility                                                         07/14/98
C.   Start test program                                               07/19/98
D.   Complete test program                                        08/04/98
E.   Remove test article                                              08/11/98


1.2.i.   "Financial Obligations" Reimbursable Agreement Sample Clause.

1. NASA shall be reimbursed by Company X in connection with the use of Government property and services provided to Company X by NASA under this agreement. Requests from Company X to NASA for support may be in the form of yearly (level of effort) support or individual mission or individual project-related support. NASA will provide to Company X a cost estimate for the support requested by Company X and for any other services that are deemed necessary by NASA.

2. Company X must recognize that projected cost information is only an estimate. Charges for goods and services that involve launch property and services of the U.S. that are excess or otherwise not needed for Agency use, will be based on all direct costs incurred by the Government. Other goods and services will be billed consistent with U.S. Federal law and NASA policy. Cost estimates for the use of property and/or services and payment schedules shall be established under subagreement or subagreement annexes between Company X and NASA Center, and shall be consistent with law and NASA policy, including the requirement for payment in advance of the incurrence of costs. Payment schedules for either yearly support activities or individual project or individual mission support activities shall include an initial payment of not less than 10 percent of the total estimated cost.

3. Nothing in this agreement waives Company X's obligation to reimburse the Government in accordance with the terms of other agreements or contracts with the Government which provide for Company X's use, or any of Company X's contractors' use, of the same Government property or services utilized by Company X or its subcontractors pursuant to this agreement.

4. Advance payments shall be scheduled to keep pace with the rate at which NASA anticipates incurring costs. Both the overall cost and the payment schedule shall be mutually agreed to prior to the use of Government property and services. Prompt payment is the essence of this agreement. If Company X fails to make payment by the payment due date, NASA may terminate this agreement for Company X's breach of this agreement after notice to Company X of the breach and Company X's failure to cure such breach within a reasonable period of time.

5. All payments defined in this agreement shall be in accordance with the following:
(i)     Payment shall be in U.S. dollars.
(ii)    Payment shall be payable to the National Aeronautics and Space Administration.
(iii)   Payment shall be through U.S. Treasury FEDWIRE Deposit System or other electronic means, as required by the Director, Financial
Management Division (or the Center Deputy Chief Financial Officer) [address].
(iv)    Payment shall be received at NASA by the first U.S. Government working day that is also a day on which commercial banks are open for business in both New York, NY, and Washington, DC, in the month in which such payments are scheduled, unless otherwise explicitly stated herein, or directed or agreed to by NASA, in writing, as an alternative to sending payments as specified in (iii) above.

6. All payments toward and other communications regarding this agreement shall reference the title, date, and number of this agreement.

7. NASA shall forward to Company X a financial status report on a periodic basis showing the status of payments received and costs incurred for services under this agreement. If, as a result of this status report, additional payment from Company X is required, prompt payment is required and the payment schedule must be adjusted accordingly. If an overpayment has occurred, credit will be reflected on the next status report under this agreement.

8. NASA shall send a final status report to Company X identifying costs for services as soon as possible after the completion of the last service provided. The final status report will address any additional payment required and will address any refund due Company X.

9. If, as a result of the final status report, an additional payment from Company X is required, such payment shall be due 60 days after the date of the final status report. If, as a result of a final status report, a refund is due Company X, NASA will make such refund in the amount of the overpayment within 60 days after the date of the final status report.

1.2.j. "Financial Obligations" Nonreimbursable Agreement Sample Clause.

There will be no transfer of funds or other financial obligations between NASA and Company X in connection with this agreement. Each party will fund its own participation under this agreement.

[A separate instrument may provide for a transfer of funds or other NASA resources within the scope of the agreement based on NASA program goals and availability of funding.]

1.2.k.   "Scheduling Conflicts" Sample Clause.

The above schedule and milestones are estimated based upon the parties' current understanding of the projected use of the test facilities and equipment by NASA personnel. In the event NASA's projected usage changes, [other party] shall be given reasonable notice of that change, so that the schedule and milestones may be adjusted accordingly. The parties agree that NASA usage of the test facilities, equipment, and personnel shall have priority over the usage planned in this agreement, should a conflict arise, and NASA in its sole discretion shall determine whether to exercise that priority. Likewise, should a conflict arise as between two commercial users, NASA in its sole discretion shall determine the priority as between the two users.

1.2.l.   "Nonexclusivity" Sample Clause.

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

1.2.m.   "Liability and Risk of Loss" Unilateral Waiver With Flow Down Provision Sample Clause.

In consideration of the use of NASA research facilities, equipment and/or services provided by NASA or NASA contractors under this agreement, the [other party] waives and agrees not to make any claims against NASA, its employees, its related entities, (e.g., contractors, subcontractors) or the employees of its related entities for damage arising from or related to activities under this agreement, whether such damage is caused by negligence or otherwise, except in the case of willful misconduct.

The [other party] further agrees to extend this unilateral waiver to its own related entities by requiring them, by contract or otherwise, to waive all claims against NASA, its related entities, and employees of NASA or of its related entities for injury, death, damage or loss arising from or related to activities undertaken pursuant to this agreement.

1.2.n.   "Liability and Risk of Loss" Insurance for Damage to NASA Property (Short Version) Sample Clause.

[Other party] agrees to obtain insurance, at no cost to NASA, protecting the U.S. Government from damage to its facilities and/or equipment as a result of any performance under this agreement. The policy must be on terms acceptable to NASA, include the United States and NASA as additional named insureds, and cover the cost of repair or replacement, or the fair market value of, as reasonably determined by the U.S. Government, any U.S. Government property (real or personal), which property is damaged as a result of performance of this agreement, including performance by the U.S. Government or the U.S. Government's contractors or subcontractors. It is understood and agreed that NASA shall be under no obligation to provide access to its facilities and/or equipment under this agreement until the insurance required by this section has been obtained and accepted by NASA.

1.2.o.   "Liability and Risk of Loss" Insurance for Damage to NASA Property (Long Version) Sample Clause.

1. For purposes of this article, the following definitions shall be applicable:
 
a. "Liability" shall include payments made pursuant to United States' treaty, any judgment by a court of competent jurisdiction, administrative and litigation costs, and settlement payments. 
b. "Damage" shall mean bodily injury to, or other impairment of health of, or death of any person; damage to, loss of, or loss of use of any property; soil, sediment, surface water, ground water, or other environmental contamination or damage; loss of revenue or profits; other direct damages; or any indirect, or consequential damage arising therefrom.

2. Damage to Government Property:
 
a. Where required by NASA, within a reasonable time before [other party] begins to have access to or use of U.S. Government property or services, [other party] shall obtain or arrange to obtain, at no cost to NASA, insurance to cover the cost of replacing, repairing, or the fair market value of, as reasonably determined by the U.S. Government, any U.S. Government property (real or personal), which property is damaged as a result of any performance of this agreement, including performance by the U.S. Government or the U.S. Government's contractors or subcontractors. Upon obtaining the insurance required under this paragraph, or upon obtaining any modification or amendment thereof, [other party] shall personally deliver, or send by registered or certified mail, postage prepaid, two copies of such insurance policy, or such modification or amendment, to NASA at the following address, or at such address as NASA may, from time to time, designate in writing: 
             National Aeronautics and Space Administration              Attn: GS/Associate General Counsel (Commercial)
             [Chief Counsel's Office, where appropriate]
             Washington, DC 20546 
b. The insurance required under this subparagraph shall provide coverage in an amount acceptable to NASA. All terms and conditions in the policy shall be acceptable to NASA, and shall require 30 days notice to NASA of any cancellation or change affecting coverage. The policy shall name the United States as an insured and shall cover all risks of loss except that it may exclude damage caused by the U.S. Government's willful misconduct. The insurance policy shall provide that the insurer waives its right as a subrogee against U.S. Government contractors, subcontractors, or related entities for damage.
c. In the event [other party] is unable to obtain insurance coverage required by subparagraph 2.a. above, the parties agree to consider, subject to review, approval and agreement by NASA, alternative methods of protecting U.S. Government property (e.g., by an agreement to indemnify the U.S. Government for such damages).
d. 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 [other party]'s access to or use of U.S. Government property or U.S. Government services under this agreement. 

1.2.p.   "Liability and Risk of Loss" Cross-Waiver with Flow Down Provision Sample Clause.

With regard to activities undertaken pursuant to this agreement, neither party shall make any claim against the other, employees of the other, the other's related entities (e.g., contractors, subcontractors, investigators or their contractors or subcontractor), or employees of the other's related entities for any injury to, or death of, its own employees or employees of its related entities, or for damage to, or loss of, its own property or that of its related entities, whether such injury, death, damage or loss arises through negligence or otherwise, except in the case of willful misconduct.

The parties further agree to extend this cross-waiver to its related entities by requiring them, by contract or otherwise, to waive all claims against the other party, related entities of the other party, and employees of the other party or of its related entities for injury, death, damage, or loss arising from, or related to, activities undertaken pursuant to this agreement.

1.2.q.   "Liability and Risk of Loss" Cross-Waiver for ELV's Sample Clause [14 CFR Part 1266].

1. With regard to activities undertaken pursuant to this agreement, neither party shall make any claim against the other, employees of the other, the other's related entities (e.g., contractors, subcontractors, investigators or their contractors or subcontractors), or employees of the other's related entities for any injury to, or death of its own employees or employees of its related entities, or for damage to or loss of its own property or that of its related entities, whether such injury, death, damage, or loss arises through negligence or otherwise, except in the case of willful misconduct.

2. The parties further agree to extend this cross-waiver to its own related entities by requiring them, by contract or otherwise, to waive all claims against the other party, related entities of the other party, and employees of the other party or of its related entities for injury, death, damage, or loss arising from or related to activities undertaken pursuant to this agreement.

3. This cross-waiver of liability shall not be applicable to:

(a)   claims between a party and its related entity, or between its own related entities;

 (b)   claims made by a natural person, his/her estate, survivors or subrogees for injury or death of such natural person, except where the subrogee is a party to this agreement or has otherwise agreed to be bound by the promises of this cross-waiver

 (c)   intellectual property claims; or

 (d)   claims for damage based upon a failure of the parties or their related entities to flow down the cross-waiver.

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

1.2.r.   "Liability and Risk of Loss" Cross-Waiver for Space Shuttle Sample Clause [14 CFR Part 1266].

{Note the use of the term "protected space operations" in lowercase contrasting with the capitalized use of the term in the definition section. The lowercase use is to make clear that the parties to the agreement are waiving liability claims against all other Space Shuttle customers who may be comanifested or located in the same Space Shuttle facility, as required by the regulation, and not merely against each other.}

LIABILITY AND RISK OF LOSS

(a) The purpose of this clause is to establish a cross-waiver of liability between the Parties and their related entities, in the interest of encouraging participation in the exploration, exploitation, and use of outer space. This cross-waiver of liability shall be broadly construed to achieve this objective.

(b) As used in this cross-waiver,

(1) the term "Party" means a person or entity that signs this agreement.

(2) the term "related entity" means:

(i)     a contractor or subcontractor of a Party at any tier;
(ii)    a user or customer of a Party at any tier; or
(iii)   a contractor or subcontractor of a user or customer of a Party at any tier.

      "Contractors" and "subcontractors" include suppliers of any kind.

(3) the term "damage" means:

(i)     bodily injury to, or other impairment of health of, or death of, any person;
(ii)    damage to, loss of, or loss of use of any property;
(iii)    loss of revenue or profits; or
(iv)   other direct, indirect, or consequential damage.

(4) the term "payload" means any property to be flown or used on or in the Space Shuttle.

(5) the term "Protected Space Operations" means all launch vehicle and payload activities on Earth, in outer space, or in transit between Earth and outer space done in implementation of this agreement. 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--
 
(i) research, design, development, test, manufacture, assembly, integration, operation, or use of: the Space Shuttle, transfer vehicles, payloads, related support equipment, and facilities and services;
(ii) 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 which are conducted on return from space to develop further a payload's product or process for use other than for Space Shuttle-related activities necessary to complete implementation of this agreement.

(c)(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)(i) through (c)(1)(iv) of this section 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 under a NASA agreement for Space Shuttle services and the person, entity, or property damaged is damaged by virtue of its involvement in protected space operations under a NASA agreement for Space Shuttle services. The cross-waiver shall apply to any claims for damage, whatever the legal basis for such claims, against--

(i)     another Party.
(ii)    any party who has signed a NASA agreement that includes Space Shuttle services.
(iii)   a related entity of another Party.
(iv)   the employees of any of the entities identified in paragraphs (c)(1)(i) and (c)(1)(iii) of this section.

(2) In addition, each Party shall extend the cross-waiver of liability as set forth in paragraph (c)(1) of this section to its own related entities by requiring them, by contract or otherwise, to agree to waive all claims against the entities or persons identified in paragraphs (c)(1)(i) through (c)(1)(iv) of this section.

(3) For avoidance of doubt, this cross-waiver includes a cross-waiver of liability arising from the Convention on International Liability for Damage Caused by Space Objects, (March 29, 1972, 24 United States Treaties and other International Agreements (U.S.T.) 2389, Treaties and Other International Acts Series (T.I.A.S., No. 7762) where the person, entity, or property causing the damage is involved in protected space operations under a NASA agreement for Space Shuttle services and the person, entity, or property damaged is damaged by virtue of its involvement in protected space operations under a NASA agreement for Space Shuttle services.

(4) Notwithstanding the other provisions of this section, this cross-waiver of liability shall not be applicable to the following:

(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 subrogees for injury or death of such natural person, except where the subrogee is a Party to this agreement or has otherwise agreed to be bound by the promises of this cross-waiver.
(iii) claims for damage caused by willful misconduct.
(iv) Intellectual property claims.
(v) contract claims between the Parties based on the express contractual provisions of this agreement.
(vi) claims for damage based on a failure of the Parties or their related entities to flow down the cross-waiver.

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

1.2.s.   "Liability and Risk of Loss" Cross-Waiver for International Space Station Activities Including Launches Sample Clause [14 CFR Part 1266].

ALLOCATION OF CERTAIN RISKS LIABILITY

a. Purpose: The objective of this article is to establish a cross-waiver of liability by the Parties and related entities in the interest of encouraging participation in the exploration, exploitation, and use of outer space through the International Space Station (hereinafter Space Station). This cross-waiver of liability shall be broadly construed to achieve this objective.

b. Definitions: For the purpose 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.
(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 or persons, or both.

(3) "Liability" shall include payments made pursuant to United States' treaty, any judgment by a court of competent jurisdiction, administrative and litigation costs, and, after consultation with [other Party], settlement payment.

(4) A "Partner State" means 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 (signed January 29, 1998; hereinafter the "Intergovernmental Agreement"), has entered into force or become operative (pursuant to Articles 25 and 26, respectively, of the Intergovernmental Agreement). A Partner State includes its Cooperating Agency. It also includes the National Space Development Agency of Japan.

(5) The term "Party" means a party to this agreement.

(6) The term "payload" means all property to be flown or used on or in a launch vehicle or the Space Station.

(7) The term "Protected Space Operations" means all launch vehicle activities, Space Station activities, and payload activities on Earth, in outer space, or in transit between Earth and outer space done in implementation of the Space Station Agreements. It includes, but is not limited to the following:

(a)   Research, design, development, test, manufacture, assembly, integration, operation, or use of launch or transfer vehicles, the Space Station, or a payload, as well as related support equipment, and facilities and services.
(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 which are conducted on return from space or from the Space Station to develop further a payload's product or process for use other than for Space Station-related activities in implementation of the Space Station agreements.

(8) 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.
(c)  a contractor or subcontractor of a user or customer of a Party or a Partner State at any tier.

The term "related entity" may also apply to another State, or an agency or institution of a State, having the same relationship to a Partner State as described in subparagraphs 8.(a) through 8.(c) above, or otherwise engaged in Protected Space Operations as defined in subparagraph b.(7) above. The terms "contractors" and "subcontractors" include suppliers of any kind.

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 subparagraphs c.(1)(a) through c.(1)(d) below 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 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 the following:

(a)   another Party;
(b)   a Partner State other than the United States of America;
(c)   a related entity of any entity identified in subparagraphs c.(1)(a) or c.(1)(b) above;
(d)   the employees of any entity identified in subparagraphs c.(1)(a) through c.(1)(c) above.

(2) In addition, each Party shall, by contract or otherwise, extend the cross-waiver of liability as set forth in subparagraph c.(1) above to its related entities by requiring them to:

(a)   Waive all claims against the entities or persons identified in subparagraphs c.(1)(a) through c.(1)(d) above; and:

(b)   Require that their related entities waive all claims against the entities or persons identified in subparagraphs c.(1)(a) through c.(1)(d) above.

(3) For avoidance of doubt, this cross-waiver of liability includes a cross-waiver of liability 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 agreement, this cross-waiver of liability shall not be applicable to the following:

(a)   claims between a Party, its related entity, or between its own related entities; (b)   claims made by a natural person, his/her estate, survivors, or subrogees for bodily injury, other impairment to health or death of such natural person, except where the subrogee is a party to this agreement or has otherwise agreed to be bound by the promises of this cross-waiver;
(c)   claims for damage caused by willful misconduct;
(d)   intellectual property claims; or
(e)   claims for damage resulting from a failure of a Party to extend the cross-waiver of liability to its related entities, pursuant to c.(2) above.

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

1.2.t.   "Liability and Risk of Loss" Insurance to Compensate for Incomplete Authority to Waive Claims Sample Clause.

[Other party] further agrees to indemnify and hold the U.S. Government, its related entities and their respective employees harmless from any claim made by the Government of [state or foreign country name], as a subrogee, based on damage or loss arising out of the performance of this agreement. For this purpose, [other party] agrees to obtain adequate insurance which protects the U.S. Government, its related entities, and their respective employees as beneficiaries of such insurance. A copy of the insurance policy shall be made available to NASA for its review and approval, upon request. Notwithstanding the provision of this paragraph, the Government of [state or foreign country name] may agree to waive the subrogated claims referenced herein.

1.2.u.   "Liability and Risk of Loss" Indemnification and Hold Harmless Consultation Sample Clause.

In the event of third-party claims for which the parties may be liable, the parties will consult promptly to determine an appropriate and equitable apportionment of any potential liability and on the defense of any such claims.

1.2.v.   "Liability and Risk of Loss" Unilateral Indemnification and Hold Harmless Sample Clause Other Party Indemnifies
             NASA/Agrees to Hold NASA Harmless.

[Other party] agrees to indemnify and hold NASA, its employees, its related entities (e.g., contractors, subcontractors) and employees of its related entities harmless from any third party claim, judgment, or cost arising from the injury to or death of any person, or for damage to or loss of any property (including intellectual property), attributable to the [other party] or its employees, agents, contractors, subcontractors, or Principal Investigators, arising as a result of activities expressly or implicitly covered under this agreement, whether such injury, death, damage, or loss is caused by negligence or otherwise, except in the case of willful misconduct.

For purposes of this agreement, the term "damage" includes, but is not limited to the following: bodily injury to, or other impairment of health of, any person; damages to, loss of, or loss of use of any property; loss of revenue or profits; and other direct, indirect or consequential damage. The term "liability" includes liability for payments made pursuant to United States treaty, any judgment by a court of competent jurisdiction or administrative tribunal, administrative and litigation costs, and after consultation with [other party], settlement payments. The term "related parties" includes employees, agents and invitees of either NASA or [other party], contractors and subcontractors, and employees, agents and invitees of contractors and subcontractors.

1.2.w.   "Liability and Risk of Loss" Combined Unilateral Waiver and Indemnification, Hold Harmless Reimbursable
             Agreement Sample Clause.

General: In consideration of the use of U.S. Government facilities, equipment, and/or services provided by NASA or NASA contractors under this agreement, XYZ waives and agrees not to make any claims against the U.S. Government or U.S. Government contractors or subcontractors, or their respective employees for damage or injury arising from or related to activities under this agreement, whether such damage is caused by negligence or otherwise, except in the case of willful misconduct.

For purposes of this agreement, the term "damage" includes, but is not limited to: bodily injury to, or other impairment of health of, or death of any person; damage to, loss of, or loss of use of any property; loss of revenue or profits; other direct damages; or any indirect, or consequential damage.

In addition, XYZ agrees to indemnify and hold the U.S. Government and the U.S. Government contractors or subcontractors, and their respective employees, harmless from any claim, judgment, or cost arising from the injury to or death of any person, or for damage to or loss of any property, including U.S. Government property (and intellectual property), as a result of activities under this agreement, whether such damage is caused by negligence or otherwise, except in the case of willful misconduct.

Facility Damage: In addition to the above, XYZ assumes responsibility for any facility/equipment damage it causes resulting from the activity under this agreement and agrees to pay all costs associated with the repair of such damage. Facility/equipment damage as used herein refers to any damage to U.S. Government facilities and equipment beyond the normal wear and tear reasonably to be expected as arising from the type of activity contemplated under this agreement.

1.2.x.   "Liability and Risk of Loss" Indemnification and Hold Harmless Sample Clause NASA Indemnifies Other
            Party/Agrees to Hold Other Party Harmless.

Under section 308 of the National Aeronautics and Space Act of 1958, as amended by Public Law 96-48, NASA agrees to indemnify the user against third-party claims for damage (i) resulting from acts of the user or its employees arising out of the performance of this agreement and occurring during the period that the payload is physically integrated with NASA equipment, until it is physically separated from such equipment and (ii) to the extent such claims are in excess of the amount of any existing third-party liability insurance purchased by the user, including the amount of any approved deductible, if any, of such insurance. The United States Government, at its election, may control or assist in the settlement or defense of any claim or suit.

1.2.y.   "Liability and Risk of Loss" Defense of Claims Sample Clause.

The parties shall inform each other, in writing, of any claim, suit, loss or damage arising under this agreement. The parties further agree to provide all available data, aid, and cooperation to assist in the defense thereof. If the U.S. Government takes control of the defense of its interests, which would otherwise have been within the indemnity established in this article without the concurrence of [other party], [other party] shall be released from any liability to the U.S. Government on account of the claim.

1.2.z.   "Liability and Risk of Loss" Insurance Protecting Against Liability to Third Parties Sample Clause.

[Other party] agrees to obtain, at no cost to NASA, a third-party liability insurance policy which will insure against claims of third parties for death, bodily injury, or loss of or damage to, property. For purposes of this third-party liability insurance policy, U.S. employees and employees of U.S. contractors and subcontractors shall be considered third-parties. The policy shall name the United States as an insured and shall cover all risks of loss except that it may exclude damage caused by the U.S. Government's willful misconduct. Such policy shall provide that the insurer waives it rights as a subrogee against the U.S. Government and U.S. Government contractors, subcontractors, or related entities for damage. All terms and conditions in such policy shall be acceptable to NASA, and shall require 30-days written notice to NASA of any cancellation or change affecting coverage. [Other party] shall provide a copy of the proposed insurance policy to the NASA Office of the [General Counsel] [Chief Counsel] at least 1 month prior to commencement of the covered activity.

1.2.a.a.   "Liability and Risk of Loss" Insurance Protecting Third Parties and Government Property Combined Sample Clause.

1. For purposes of this article, the following definitions shall be applicable:
 
a. "Liability" shall include payments made pursuant to United States' treaty, any judgment by a court of competent jurisdiction, administrative and litigation costs, and settlement payments.
b. "Damage" shall mean bodily injury to, or other impairment of health of, or death of any person; damage to, loss of, or loss of use of any property; soil, sediment, surface water, ground water, or other environmental contamination or damage; loss of revenue or profits; other direct damages; or any indirect, or consequential damage arising therefrom.

2. Liability and Damage:
 
a. XYZ shall obtain or arrange to obtain, at no cost to NASA, insurance protecting the U.S. Government and U.S. Government contractors and subcontractors, from any liability for damage, arising out of the performance of this agreement, including launch and associated activities, resulting in damage to:
        (1) XYZ's employees or agents; and
        (2) Third parties, including U.S. Government employees, and 
              U.S. Government contractor and subcontractor employees.

Insurance required under subparagraph 2.a.(1) above may be satisfied through a liability insurance policy or policies under subparagraph 2.a.(2) above. Notwithstanding any other requirement for notice in this agreement, upon obtaining the insurance required under subparagraph 2.a. above, or upon obtaining any modification or amendment thereof, XYZ shall personally deliver, or send by registered or certified mail, postage prepaid, two copies of such insurance, or such modification or amendment, to NASA at the following address, or at such address as NASA may from time to time designate in writing:

National Aeronautics and Space Administration
Attn: GS/Associate General Counsel (Commercial)
[Chief Counsel's Office, where appropriate]
Washington, DC 20546
b. XYZ shall maintain insurance with terms and conditions as are currently available in the market for reasonable insurance premiums, taking into account renewals, but shall not be obligated to provide insurance limits in excess of $500,000,000 coverage. XYZ shall provide to NASA certificates of insurance, and associated policies, evidencing the insurance required thereunder within a reasonable time before XYZ begins to use Government property or Government services. Unless XYZ 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 XYZ and its underwriters.
c. XYZ's insurance obtained pursuant to subparagraph 2.a. shall not be the exclusive recourse of the United States in the event liability exceeds 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.
d. 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. If the U.S. Government takes control of the defense of its interests, which would otherwise have been within the indemnity established in this article without the concurrence of XYZ, XYZ shall be released from any liability to the U.S. Government on account of the claim.

3. Damage to Government Property:
 
 
a. In addition to the insurance required in Subparagraph 2.a. above, within a reasonable time before XYZ begins to have access to or use of U.S. Government property or services, XYZ shall obtain or arrange to obtain, at no cost to NASA, insurance to reimburse the U.S. Government for the costs of replacing, repairing, or the fair market value of, as reasonably determined by the U.S. Government, any U.S. Government property (real or personal), which property is damaged as a result of any performance of this agreement, including performance by the U.S. Government or the U.S. Government's contractors or subcontractors. Notwithstanding any other requirement for notice in this agreement, upon obtaining the insurance required under this paragraph, or upon obtaining any modification or amendment thereof, XYZ shall personally deliver, or send by registered or certified mail, postage prepaid, two copies of such insurance, or such modification or amendment, to NASA at the following address, or at such address as NASA may from time to time designate in writing:
            National Aeronautics and Space Administration
            Attn: GS/Associate General Counsel (Commercial)
            [Chief Counsel's Office, where appropriate]
            Washington, DC 20546
b. The insurance required under this subparagraph shall provide coverage in an amount acceptable to NASA. This policy shall name the United States as an insured and shall cover all risks of loss except that it may exclude damage caused by the U.S. Government's willful misconduct. The insurance policy shall provide that the insurer waives its right as a subrogee against U.S. Government contractors or subcontractors for damage as described in Subparagraph 3.a.
c. In the event XYZ is unable to obtain insurance coverage required by subparagraph 3.a. above, the parties agree to consider, subject to review, approval and agreement by NASA, alternative methods of protecting U.S. Government property (e.g., by an agreement to indemnify the U.S. Government for such damages).
d. An insurance policy whose terms and conditions are reviewed and approved by NASA, or an agreement on an alternate method of protection is a condition precedent to XYZ's access to or use of U.S. Government property or U.S. Government services under this agreement.
{Note: An agreement to support commercial launch activity, including launches licensed under the Commercial Space Launch Act (49 U.S.C. § 70101 et seq.), should also note that to the extent that the Department of Transportation (DOT) issues a license for certain activities with liability provisions different than those contained in the NASA agreement, DOT's license takes precedence for those activities.}

1.2.b.b.   "Liability and Risk of Loss" Right to Require Insurance Protecting NASA Property and Liability to Third Parties Sample Clause.

NASA retains the right to require XYZ to obtain insurance, at no cost to NASA, protecting XYZ, the U.S. Government, and the related entities of each from any claim, liability, or damage resulting to any person, entity or property (including intellectual property) arising from or related to the activities pursued under this agreement, except to the extent such claim, liability, or damage is the result of willful misconduct of NASA or its related entities.

1.2.c.c.   "Intellectual Property and Data Rights" Patent and Invention Rights (Nonreimbursable and Reimbursable Space Act Agreements) Short Form Sample Clause.

(a) The term "participant," as used herein, means any non-Federal Government entity that is a party to this agreement. The patent and invention rights set forth herein are applicable to any employees, contractors or subcontractors, or other entities having a fiduciary or contractual relationship with participant that are assigned, tasked, or contracted with to perform specified participant activities under this agreement.

(b) Title to inventions made (conceived or first actually reduced to practice) as a consequence of, or in direct relation to, the performance of activities under this agreement will remain with the respective inventing parties (participant or NASA). No patent or invention rights are exchanged between or granted by such parties under this agreement except that, NASA and the participant agree to use reasonable efforts to identify and report to each other any invention that is believed to have been made jointly by employees of the participant and employees of NASA (including employees of NASA contractors), and to consult and agree as to the responsibilities and costs of actions to be taken to establish and maintain patent protection (in any country) on such invention and on the terms and conditions of any license or other rights to be exchanged or granted by or between NASA and the participant.

1.2.d.d.   "Intellectual Property and Data Rights" Patent and Invention Rights (Nonreimbursable Space Act Agreement) Standard Form Sample Clause.

I. Definition: The term "participant," as used herein, means any non-Federal Government entity that is a signatory to this agreement. The patent and invention rights set forth herein are applicable to any employees, contractors or subcontractors, or other entities having a fiduciary or contractual relationship with participant that are assigned, tasked, or contracted with to perform specified participant activities under this agreement.

II. General: Title to inventions made (conceived or first actually reduced to practice) as a consequence of, or in direct relation to, the performance of activities under this agreement will remain with the respective inventing parties (participant or NASA), and no patent or invention rights are exchanged between or granted by such parties under this agreement except as provided herein.

III. NASA Inventions: NASA will use reasonable efforts to report inventions made by NASA employees as a consequence of, or that bear a direct relation to, the performance of specified NASA activities under this agreement. Upon request, NASA will use reasonable efforts to grant the participant, in accordance with the requirements of 37 CFR Part 404, an exclusive or partially exclusive, revocable, royalty-bearing license, on terms to be subsequently negotiated to any NASA invention that may be made under the agreement and on which NASA decides to file a patent application. This license will be subject to the rights reserved in paragraph VI(1), below.

IV. NASA Contractor Inventions: In the event NASA contractors are tasked to perform work in support of specified NASA activities under this agreement and inventions are made by contractor employees or jointly between NASA employees and contractor employees, and NASA has the right to acquire or has acquired title to such inventions, NASA will use reasonable efforts to report such inventions. Upon request, NASA will use reasonable efforts to grant the participant, in accordance with the requirements of 37 CFR Part 404, an exclusive or partially exclusive, revocable, royalty-bearing license, on terms to be subsequently negotiated to any NASA invention that may be made under the agreement and on which NASA decides to file a patent application. This license will be subject to the rights reserved in paragraph VI (2), below.

V. Joint Inventions With Participant: NASA and participant agree to use reasonable efforts to identify and report to each other, and to cooperate with each other in obtaining patent protection on any inventions made jointly between NASA employees (or employees of NASA contractors) and employees of participant. Upon timely request, NASA may (1) agree to refrain from exercising its undivided interest in a manner inconsistent with participant's commercial interests, or (2) use reasonable efforts to grant the participant, in accordance with the requirements of 37 CFR Part 404, an exclusive or partially exclusive, revocable, royalty-bearing license, on terms to be subsequently negotiated. Both options (1) and (2) are subject to the applicable rights reserved in paragraph VI, below.

VI. Rights to be Reserved in Participant's License: Any license granted to participant pursuant to paragraphs III, IV, or V above will be subject to the reservation of the following rights:

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

(2) As to inventions made solely by, or jointly with, employees of NASA contractors, the rights in the Government of the United States as set forth in (1) above, as well as the revocable, nonexclusive, royaltyfree license in the contractor as set forth in 14 CFR § 1245.108.

VII. Protection of Reported Inventions: When 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) in order to facilitate the allocation and establishment of the invention and patent rights under these provisions.

VIII. Patent Filing Responsibilities and Costs: The invention and patent rights set forth herein shall apply to any patent application filed and patents obtained in any country, and each party is responsible for its own costs of preparing, prosecuting, issuing, and maintaining patents covering sole inventions in any country; except that NASA and participant may, upon the reporting of any invention (sole or joint) or in any license granted, mutually agree otherwise for any country as to patent application preparation, filing and prosecution responsibilities and costs, and maintenance responsibilities and costs. As to any invention made jointly between NASA employees (or employees of a NASA contractor) and employees of participant and for which participant files a patent application, participant agrees to include the following statement therein:

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.

IX. Related Inventions: {Note: This is an optional paragraph that may be added if appropriate under the circumstances; i.e., where NASA has a portfolio of inventions relating to the subject of the agreement.}

For the purposes of this paragraph, a related invention is an invention related to the subject matter of this agreement, but not made as a consequence of, or in direct relation to, the performance of activities of the agreement, and covered by a patent application or patent, title to which has been assigned or otherwise vested in NASA. NASA will use reasonable efforts to bring such inventions to the attention of participant either prior to, or during the course of this agreement, and to the extent such inventions are available for licensing and consistent with the requirements of 37 CFR Part 404, will enter into negotiations for a commercial license concomitantly with this agreement.

1.2.e.e.   "Intellectual Property and Data Rights" Patent and Invention Rights (Reimbursable Space
                Act Agreement) Standard Form Sample Clause.

I. Definition: The term "participant," as used herein, means any non-Federal Government entity that is a signatory to this agreement. The patent and invention rights set forth herein are applicable to any employees, contractors or subcontractors, or other entities having a fiduciary or contractual relationship with participant that are assigned, tasked, or contracted with to perform specified participant activities under this agreement.

II. General: Title to inventions made (conceived or first actually reduced to practice) as a consequence of, or in direct relation to, the performance of activities under this agreement will remain with the respective inventing parties (participant or NASA), and no patent or invention rights are exchanged between or granted by such parties under this agreement except as provided herein.

III. NASA Inventions: NASA will use reasonable efforts to report inventions made by NASA employees as a consequence of the performance of specified NASA activities under this agreement. Upon request, NASA will use reasonable efforts to grant the participant, in accordance with the requirements of 37 CFR Part 404 an exclusive, irrevocable, royalty-free license, except for the repayment of U.S. Government prosecution costs, on terms to be subsequently negotiated to any NASA invention that may be under the agreement and on which NASA decides to file a patent application. This license will be subject to the rights reserved in paragraph VI (1), below.

IV. NASA Contractor Inventions: In the event NASA contractors are tasked to perform work in support of specified NASA activities under this agreement and inventions are made by contractor employees or jointly between NASA employees and contractor employees, and NASA has the right to acquire or has acquired title to such inventions, NASA will use reasonable efforts to report such inventions. Upon request, NASA will use reasonable efforts to grant the participant, in accordance with the requirements of 37 CFR Part 404, an exclusive, irrevocable, royalty-free license, except for the repayment of U.S. Government prosecution costs, on terms to be subsequently negotiated, to any NASA invention that may be made under the agreement and on which NASA decides to file a patent application. This license will be subject to the rights reserved in paragraph VI (2), below.

V. Joint Inventions with Participant: NASA and participant agree to use reasonable efforts to identify and report to each other any inventions made jointly between NASA employees (or employees of NASA contractors) and employees of participant. Upon request, NASA will agree to refrain from exercising its undivided interest in a manner inconsistent with participant's commercial interests and to cooperate with participant in obtaining patent protection on participant's undivided interest, subject to the applicable rights reserved in paragraph VI, below.

VI. Rights to be Reserved in Participant's License: Any license granted to participant pursuant to paragraphs III, IV, or V above will be subject to the reservation of the following rights --

(1) As to inventions made solely by, or jointly with, NASA employees, the irrevocable, royalty-free right of NASA to practice or have practiced the invention by or on behalf of NASA for research, experimental, or demonstration purposes.

(2) As to inventions made solely by, or jointly with, employees of NASA contractors, the rights in NASA as set forth in (1) above, as well as the revocable, nonexclusive, royalty-free license in the contractor as set forth in 14 CFR § 1245.108.

VII. Protection of Reported Inventions: When 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) in order to facilitate the allocation and establishment of the invention and patent rights under these provisions.

VIII. Patent Filing Responsibilities and Costs: The invention and patent rights set forth herein shall apply to any patent applications filed and patents obtained in any country, and each party is responsible for its own costs of preparing, prosecuting, issuing, and maintaining patents covering sole inventions in any country; except that NASA and participant may, upon the reporting of any invention (sole or joint) or in any license option granted, mutually agree otherwise for any country as to patent application preparation, filing and prosecution responsibilities and costs, and maintenance responsibilities and costs.

IX. Related Inventions: {Note: This is an optional paragraph that may be added if appropriate under the circumstances; i.e., where NASA has a portfolio of inventions relating to the subject of the agreement.}

For the purposes of this paragraph, a related invention is an invention related to the subject matter of this agreement, but not made as a consequence of or in direct relation to the performance of activities of this agreement, and covered by a patent application or patent, title to which has been assigned or otherwise vested in NASA. NASA will use reasonable efforts to bring such inventions to the attention of participant either prior to or during the course of this agreement, and to the extent such inventions are available for licensing and consistent with the requirements of 37 CFR Part 404, will enter into negotiations for a commercial license concomitantly with this agreement.

1.2.f.f.   "Intellectual Property and Data Rights" Rights in Data (Nonreimbursable Space Act Agreement) Short Form Sample Clause.

I. Definitions: The term "participant," as used herein, means any non-Federal Government entity that is a party to this agreement. The rights in data set forth herein are applicable to any employees, contractors or subcontractors, or other entities having a fiduciary or contractual relationship with participant that are assigned, tasked, or contracted with to perform specified participant activities under this agreement.

The term "data," as used herein, means recorded information, regardless of form, the media on which it may be recorded, or the method of recording. The term includes, but is not limited to, data of a scientific or technical nature, computer software and documentation thereof, and data comprising commercial and financial information.

II. General: Data exchanged between NASA and participant under this agreement will be exchanged without restriction as to its disclosure, use, or duplication except as otherwise marked or as otherwise provided below in this provision. No preexisting proprietary data will be provided to participant under this agreement unless specifically authorized in writing by the owner of the proprietary data.

III. Participant-Produced Data: In the event it is necessary for participant to furnish NASA with data that either existed prior to, was produced outside of, or is first produced by participant in carrying out participant's responsibilities under this agreement, and provided such data embody trade secrets or comprise commercial or financial information that is privileged or confidential and is so identified with a suitable notice or legend, the data will be maintained in confidence and disclosed and used by NASA and its contractors (under suitable protective conditions) only for [insert appropriate purpose, e.g., experimental; evaluation; research; development; or carrying out NASA's responsibilities under this agreement]. Upon completion of activities under this agreement, such data will be disposed of as requested by participant.

IV. Data First Produced by NASA: As to data first produced by NASA in carrying out NASA's responsibilities under this agreement and which data would embody trade secrets or would comprise commercial or financial information that is privileged or confidential if it had been obtained from participant, such data will, to the extent permitted by law, be appropriately marked with a notice or legend and maintained in confidence for a period of [insert a period of up to 5 years] after development of the information, with the express understanding that during the aforesaid period such data may be disclosed and used (under suitable protective conditions) by or on behalf of the Government for Government purposes only, and thereafter for any purpose whatsoever without restriction on disclosure and use. Participant agrees not to disclose such data to any third party without NASA's written approval until the aforementioned restricted period expires.

V. Publication of Results: {Note: This is an optional paragraph that may be added, together with a description of the results and manner of publication, as appropriate.} Recognizing that the dissemination of the results of NASA's activities is one of the considerations for a nonreimbursable Space Act agreement, the parties agree [describe the results to be published and the publication method].

1.2.g.g.   "Intellectual Property and Data Rights" Rights in Data (Reimbursable Space Act Agreement) Short Form Sample Clause.

I. Definitions: The term "participant," as used herein, means any non-Federal Government entity that is a party to this agreement. The rights in data set forth herein are applicable to any employees, contractors or subcontractors, or other entities having a fiduciary or contractual relationship with participant that are assigned, tasked, or contracted with to perform specified participant activities under this agreement.

The term "data," as used herein, means recorded information, regardless of form, the media on which it may be recorded, or the method of recording. The term includes, but is not limited to, data of a scientific or technical nature, computer software and documentation thereof, and data comprising commercial and financial information.

II. General: Data exchanged between NASA and participant under this agreement will be exchanged without restriction as to its disclosure, use, or duplication except as otherwise marked or as otherwise provided below in this provision. No preexisting proprietary data will be provided to participant under this agreement unless specifically authorized, in writing, by the owner of the proprietary data.

III. Participant-Produced Data: In the event it is necessary for participant to furnish NASA with data that either existed prior to, was produced outside of, or is first produced by participant in carrying out participant's responsibilities under this agreement, and provided such data embody trade secrets or comprise commercial or financial information that is privileged or confidential and is so identified with a suitable notice or legend, the data will be maintained in confidence and disclosed and used by NASA and its contractors (under suitable protective conditions) only for the purpose of carrying out NASA's responsibilities under this agreement. Upon completion of activities under this agreement, such data will be disposed of as requested by participant.

IV. Data First Produced by NASA: As to data first produced by NASA in carrying out NASA's responsibilities under this agreement and which data would embody trade secrets or would comprise commercial or financial information that is privileged or confidential if it had been obtained from participant, such data will, to the extent permitted by law, be appropriately marked with a notice or legend and maintained in confidence for a period of [insert a period of up to 5 years] years after development of the information, with the express understanding that during the aforesaid period such data may be disclosed and used by NASA and its contractors (under suitable protective conditions) only for the purpose of carrying out NASA's responsibilities under this agreement. Upon completion of activities under this agreement, such data will be disposed of as requested by participant.

1.2.h.h.   "Intellectual Property and Data Rights" Rights in Data (Nonreimbursable Space Act Agreement) Standard Form Sample Clause.

I. Definitions: The term "participant," as used herein means any non-Federal Government entity that is a party to this agreement. The rights in data set forth herein are applicable to any employees, contractors or subcontractors, or other entities having a fiduciary or contractual relationship with participant that are assigned, tasked, or contracted with to perform specified participant activities under this agreement.
 
 

The term "data," as used herein, means recorded information, regardless of form, the media on which it may be recorded, or the method of recording. The term includes, but is not limited to, data of a scientific or technical nature, computer software and documentation thereof, and data comprising commercial and financial information.

II. General: Data exchanged between NASA and participant under this agreement will be exchanged without restriction as to its disclosure, use, or duplication except as otherwise marked or as otherwise provided below in this provision. No preexisting proprietary data will be provided to participant under this agreement unless specifically authorized, in writing, by the owner of the proprietary data.

III. Background Data: In the event it is necessary for participant to furnish NASA with data that existed prior to, or was produced outside of, this agreement, and such data embody trade secrets or comprise commercial or financial information that is privileged or confidential, and such data is so identified with a suitable notice or legend, the data will be maintained in confidence and disclosed and used by NASA and its contractors (under suitable protective conditions) only for the purpose of carrying out NASA's responsibilities under this agreement. Upon completion of activities under this agreement, such data will be disposed of as requested by participant.

IV. Data Produced by Participant under this Agreement: In the event data first produced by participant in carrying out participant's responsibilities under this agreement is furnished to NASA, and participant considers such data to embody trade secrets or to comprise commercial or financial information that is privileged or confidential, and such data is so identified with a suitable notice or legend, the data will be maintained in confidence and disclosed and used by ["NASA" or "the Government," as appropriate] and its contractors (under suitable protective conditions) only for [insert appropriate purpose; for example: experimental; evaluation; research; development, etc.] by or on behalf of ["NASA" or "the Government" as appropriate].

V. Data First Produced by NASA: As to data first produced by NASA in carrying out NASA's responsibilities under this agreement and which data would embody trade secrets or would comprise commercial or financial information that is privileged or confidential if it had been obtained from participant, such data will, to the extent permitted by law, be appropriately marked with a notice or legend and maintained in confidence for a period of [insert a period of up to 5 years] after development of the information, with the express understanding that, during the aforesaid period, such data may be disclosed and used (under suitable protective conditions) by or on behalf of the Government for Government purposes only, and thereafter for any purpose whatsoever without restriction on disclosure and use. Participant agrees not to disclose such data to any third party without NASA's written approval until the aforementioned restricted period expires.

VI. Data Disclosing an Invention: In the event data exchanged between NASA and participant discloses an invention for which patent protection is being considered, the disclosure and use of such data is not otherwise limited or restricted herein, and the furnishing party specifically identifies such data, the receiving party agrees to withhold such data from public disclosure for a reasonable time (presumed to be 1 year unless mutually agreed otherwise) in order for patent protection to be obtained.

VII. Copyright: In the event data is exchanged with a notice indicating that the data is protected under copyright, such data will be presumed to be published and the following paid-up licenses shall apply:

(1) If it is indicated on the data that the data existed prior to, or was produced outside of, this agreement, the receiving party and others acting on its behalf, may reproduce, distribute, and prepare derivative works for the purpose of carrying out the receiving party's responsibilities under this agreement.

(2) If the furnished data does not contain the indication of (1) above, it will be assumed that the data was first produced under this agreement, and the receiving party and others acting on its behalf, may reproduce, distribute, and prepare derivative works for any of its own purposes.

VIII. Oral and visual information: If information that participant considers to embody trade secrets or to comprise commercial or financial information which is privileged or confidential is disclosed orally or visually to NASA, such information must be reduced to tangible, recorded form (i.e., converted into data as defined herein), identified and marked with a suitable notice or legend as required by paragraphs III and IV above, and furnished to NASA within 10 days after such oral or visual disclosure, or NASA shall have no duty to limit or restrict, and shall not incur any liability for, any disclosure and use of such information.

{Note: Sometimes, the other party wants more than 10 days to meet its responsibilities in this paragraph. However, extending the time period makes NASA personnel vulnerable to the inadvertent disclosure of trade secrets or commercial or financial information, which is not advisable.}

IX. Disclaimer of Liability: Notwithstanding the above, NASA shall not be restricted in, nor incur any liability for, the disclosure and use of the following --

(1) Data not identified with a suitable notice or legend as set forth in paragraphs III and IV; nor

(2) Information contained in any data for which disclosure and use is restricted under paragraphs III, IV, and V above, if such information is or becomes generally known without breach of the above, is known to or is generated by NASA independently of carrying out responsibilities under this agreement, is rightfully received from a third party without restriction, or is included in data which participant

has, or is required to furnish to the U.S. Government without restriction on disclosure and use.

X. Data Subject to Export Control: Technical data, whether or not specifically identified or marked, that is subject to the export laws and regulations of the United States and that is provided to participant under this agreement will be treated as such, and will not be further provided to any foreign persons without proper U.S. Government authorization, where required.

XI. Publication of Results: {Note: This is an optional paragraph that may be added, together with a description of the results and manner of publication, as appropriate.} Recognizing that the dissemination of the results of NASA's activities is one of the considerations for a nonreimbursable Space Act agreement, the parties agree [describe the results to be published and the publication method.]

1.2.i.i.   "Intellectual Property and Data Rights" Rights in Data (Reimbursable Space Act Agreement) Standard Form Sample Clause.

I. Definitions: The term "participant," as used herein, means any non-Federal Government entity that is a party to this agreement. The rights in data set forth herein are applicable to any employees, contractors or subcontractors, or other entities having a fiduciary or contractual relationship with participant that are assigned, tasked, or contracted with to perform specified participant activities under this agreement.

The term "data," as used herein, means recorded information, regardless of form, the media on which it may be recorded, or the method of recording. The term includes, but is not limited to, data of a scientific or technical nature, computer software and documentation thereof, and data comprising commercial and financial information.

II. General: Data exchanged between NASA and participant under this agreement will be exchanged without restriction as to its disclosure, use, or duplication except as otherwise marked or as otherwise provided below in this provision. No preexisting proprietary data will be provided to participant under this agreement unless specifically authorized, in writing, by the owner of the proprietary data.

III. Participant Produced Data: In the event it is necessary for participant to furnish NASA with data that either existed prior to, was produced outside of, or is first produced by participant in carrying out participant's responsibilities under this agreement, and such provided data embody trade secrets or comprise commercial or financial information that is privileged or confidential and such data is so identified with a suitable notice or legend, the data will be maintained in confidence and disclosed and used by NASA and its contractors (under suitable protective conditions) only for the purpose of carrying out NASA's responsibilities under this agreement. Upon completion of activities under this agreement, such data will be disposed of as requested by participant.

IV. Data First Produced by NASA: As to data first produced by NASA (or NASA contractors) in carrying out NASA's responsibilities under this agreement and which data would embody trade secrets or would comprise commercial or financial information that is privileged or confidential if it had been obtained from participant, such data will, to the extent permitted by law, be appropriately marked with a notice or legend and maintained in confidence for a period of [insert a period of up to 5 years] after development of the information, with the express understanding that, during the aforesaid period, such data may be disclosed and used by NASA and its contractors (under suitable protective conditions) only for the purpose of carrying out NASA's responsibilities under this agreement. Upon completion of activities under this agreement, such data will be disposed of as requested by participant.

V. Data Disclosing an Invention: In the event data exchanged between NASA and participant discloses an invention for which patent protection is being considered and the furnishing party specifically so identifies such data, the receiving party agrees to withhold such data from public disclosure for a reasonable time (presumed to be 1 year unless mutually agreed otherwise) in order for patent protection to be obtained.

VI. Copyright: In the event data is exchanged with a notice indicating that the data is protected under copyright, such data will be
presumed to be published and the following paid-up licenses shall apply:

(1) If it is indicated on the data that the data existed prior to, or was produced outside of, this agreement, the receiving party and others acting on its behalf, may reproduce, distribute, and prepare derivative works for the purpose of carrying out the receiving party's responsibilities under this agreement.

(2) If the furnished data does not contain the indication of (1) above, it will be assumed that the data was first produced under this agreement, and the receiving party and others acting on its behalf, may reproduce, distribute, and prepare derivative works for any of its own purposes whatsoever.

VII. Oral and Visual Information: If information that participant considers to embody trade secrets or to comprise commercial or financial information that is privileged or confidential is disclosed orally or visually to NASA, such information must be reduced to tangible, recorded form (i.e., converted into data as defined herein), identified and marked with a suitable notice or legend as required by paragraph III above, and furnished to NASA within 10 days after such oral or visual disclosure, or NASA shall have no duty to limit or restrict, and shall not incur any liability for, any disclosure and use of such information. {Note: Sometimes, the other party wants more than 10 days to meet its responsibilities in this paragraph. However, extending the time period makes NASA personnel vulnerable to the inadvertent disclosure of trade secrets or commercial or financial information, which is not advisable.}

VIII. Disclaimer of Liability: Notwithstanding the above, NASA shall not be restricted in, nor incur any liability for, the disclosure and use of --

(1) Data not identified with a suitable notice or legend as set forth in paragraph III above.

(2) Information contained in any data for which disclosure and use is restricted under paragraphs III and IV above, if such information is or becomes generally known without breach of the above, is known to or is generated by NASA independently of carrying out NASA's responsibilities under this agreement, is rightfully received from a third party without restriction, or is included in data which participant has, or is required to furnish to the U.S. Government without restriction on disclosure and use.

IX. Data Subject to Export Control: Technical data, whether or not specifically identified or marked, that is subject to the export laws and regulations of the United States and that is provided to participant under this agreement will be treated as such, and will not be further provided to any foreign persons without proper U.S. Government authorization, where required.

1.2.j.j.   "Intellectual Property and Data Rights" Rights in Resulting Data Sample Clause.

Data generated under this agreement will be reserved to Principal Investigators [and Co-Investigators, where appropriate] for scientific analysis and first publication rights for a period of time [generally not more than 1 year] beginning with receipt of the data and any associated data in a form suitable for analysis. NASA and [other party] may also have access to, and use of, the data and any associated data during the agreed-upon period, but such access and use will not prejudice the first publication rights of the investigators.

Final results of the experiments will 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. In the event such reports or publications are copyrighted, NASA and [other party] shall have a royalty-free right under the copyright to reproduce, distribute, and use such copyrighted work for their purposes.

1.2.k.k.   "Intellectual Property and Data Rights" Handling of Data Sample Clause.

(a) In the performance of this agreement, it is anticipated that participant and its contractors and subcontractors may have access to, be furnished, or use the following categories of data (which may be technical data, computer software, administrative, management information, or financial, including cost or pricing):

(1) Data of third parties which the Government has agreed to handle under protective arrangements; and

(2) Government data, the use and dissemination of which, the Government intends to control.

(b) In order to protect the interests of the Government and the owners, licensors and licensees of such data, participant agrees, with respect to any such third party or Government data that is either marked with a restrictive legend, or specifically identified in this agreement, to --

(1) Use, disclose, and reproduce such data only to the extent necessary to perform the work required under this agreement.

(2) Allow access to such data only to those of its employees or contractors that require access for their performance under this agreement.

(3) Preclude access and disclosure of such data outside participant's organization.

(4) Return or dispose of such data, as NASA may direct, when the data is no longer needed for performance under this agreement.

(c) Participant agrees to inform and instruct its employees and contractors of its and their obligations under this clause and to appropriately bind its employees and contractors contractually to comply with the access, use, disclosure, and reproduction provisions of this clause.

(d) In the event that data include a legend that participant deems to be ambiguous or unauthorized, participant may inform NASA of such
condition. Notwithstanding such a legend, as long as such legend provides an indication that a restriction on use or disclosure was intended, participant shall treat such data pursuant to the requirements of this clause unless otherwise directed, in writing, by NASA.

e.Notwithstanding the above, participant shall not be restricted in the use, disclosure, and reproduction of any data that is or becomes generally available, or public knowledge without breach of this clause by participant; is known to, in the possession of, or is developed by participant independently of any disclosure of, or without reference to, proprietary, restricted, confidential, or otherwise protectable data hereinunder; is rightfully received by participant from a third party without restriction; or is required to be produced by participant pursuant to a court order or other Government action. If participant believes that any of these events or conditions that remove restriction on the use, disclosure, and reproduction of the data apply, participant shall promptly notify NASA of such belief prior to acting on such belief, and, in any event, shall give notice to NASA prior to an unrestricted use, disclosure, or reproduction of such data.

1.2.l.l.   "Intellectual Property and Data Rights" Release of General Information to the Public Sample Clause.

Releases may be made by the appropriate party for its own portion of the program/cooperation as desired. Insofar as participation of the other party is involved, the parties will seek to consult with each other prior to any releases, consistent with the parties' respective laws and policies.

1.2.m.m.   "Intellectual Property and Data Rights" Patent and Copyright Use--Authorization, Consent and Indemnification Sample Clause.

In order to avoid any possible interruption in the conduct of this cooperative project, NASA hereby 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 [other party's] responsibilities under this agreement, including the performance of such responsibilities by [other party's] contractors and subcontractors.

In the event the U.S. Government incurs any liability for the practice of inventions or works covered by privately owned U.S. patents or copyrights, either as royalties owed under the existing U.S. Government license or as an unlicensed practice of such patent or copyright (infringement), and such liability is incurred as a result of [other party's] and/or any of [other party's] contractors' or subcontractors' performance of [other party's responsibilities under the agreement, [other party] agrees to indemnify and hold the U.S. Government harmless against such liability, including infringement costs and reimbursement for expenses incurred by the U.S. Government in defending against any suit or claim for such royalties or infringements.

1.2.n.n.   "Disclaimer of Warranty" Sample Clause.

NASA does not warrant the [information's, equipment's, facility's, or good's, etc.] availability or suitability for any particular use.

1.2.o.o.   "Term of Agreement" Sample Clause.

This agreement becomes effective upon the date of the last signature below and shall remain in effect until the completion of all obligations of both parties hereto, or 2 years from the date of the last signature, whichever comes first.

1.2.p.p.   "Right to Terminate" Nonreimbursable Agreement Sample Clause.

Either party, upon a 30-day written notice to the other party, may terminate this agreement, at any time and for any reason it deems substantial. In the event of such termination, each party shall return to the other any data it furnished to assist the other in performance of this agreement, but each party may retain any data generated by its partial performance under the agreement, unless the "Inventions and Data Rights" or other section of this agreement provides otherwise.

The obligations of the parties set forth in the provisions of Articles 9 (Liability and Risk of Loss) and 10 (Intellectual Property and Data Rights) of this agreement concerning technical data and goods, intellectual property rights, and liability [and financial obligations if reimbursable] shall continue to apply after the expiration or termination of this agreement.

1.2.q.q.   "Right to Terminate" Reimbursable Agreement Sample Clause.

[Party X] has the right to terminate this agreement, in whole or in part, at any time. In the event of such termination, [party X] will be obligated to reimburse NASA for all costs which have been incurred in support of this agreement up to the effective date of [party X's] notice of termination and are incurred as a result of such termination.

[For partially reimbursable agreements, add the following] Each party shall return to the other any data it furnished to assist the other in performance of this agreement, but each party may retain any data generated by its partial performance under the agreement, unless the "Inventions and Data Rights" or other section of this agreement provides otherwise.

The obligations of the parties set forth in the provisions of Articles 9 (Liability and Risk of Loss) and 10 (Intellectual Property and Data Rights) [and 6 (Financial Obligations) if reimbursable] of this agreement concerning technical data and goods, intellectual property rights, and liability [and financial obligations if reimbursable] shall continue to apply after the expiration or termination of this agreement.

1.2.r.r.   "Right to Terminate" Reimbursable Agreement Requiring High Certainty of Support Sample Clause.

1. NASA's commitment under this agreement to make available Government property and services required by [party X] 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 [party X's] failure to make payments as set forth in article VI (Financial Obligations), or (d) upon [party X'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.

2. 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 [party X] for that purpose. For the use of property and/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 taken place. For use of property and/or services provided on a cost basis, [party X] will be liable for all costs, consistent with law and NASA policy, which are incurred by the U.S. Government in the provision of property and/or services, including termination costs associated with the Agreement activities.

3. NASA shall not be liable for any costs, loss of profits, revenue, or other direct, indirect, or consequential damages incurred by [party X], its contractors, subcontractors, or customers as a result of the termination by NASA pursuant to paragraph 1 of this article.

4. [Party X] shall have the right to terminate, in whole or in part, this Agreement at any time. In the event of such termination, [party X] will be obligated to reimburse NASA for all Government costs which have been incurred up to the effective date of [party X's] notice of termination and are incurred as a result of such termination.

5. This article is not intended to limit or govern the right of NASA or [party X], in accordance with law, to terminate its performance under this agreement, in whole or in part, for [party X's] or NASA's breach of a provision in this agreement.

1.2.s.s.   "Continuing Obligations" Sample Clause.

The obligations of the parties set forth in the provisions of Articles 9 and 10 [and 6 if reimbursable] of this agreement concerning Liability and Risk of Loss, Intellectual Property and Data Rights, [and Financial Obligations if reimbursable] shall continue to apply after the expiration or termination of this agreement.

1.2.t.t.   "Disputes Resolution" (Short Version) Sample Clause.

The NASA Tracking & Data Relay Satellite System (TDRSS) Program Manager and Company X Program Manager will attempt to resolve all issues arising from the implementation of this agreement. If they are unable to come to agreement on any issue, then the dispute will be referred to the NASA and Company X Program Directors, or their designated representatives, for joint resolution. If the parties are unable to resolve the dispute, the Center Director will issue a written decision which shall be a final Agency decision for all purposes including judicial review.

1.2.u.u.   "Disputes Resolution" (Long Version) Sample Clause.

1. Except as otherwise provided in articles VII (Priority of Use) and X (Intellectual Property Rights), all disputes concerning questions of fact or law arising under this agreement shall be referred by the claimant, in writing, to the appropriate Company X Commercial Launch Vehicle Program Director and the applicable NASA Center for resolution. The parties cited above shall seek to resolve any dispute by mutual agreement which shall be final and conclusive.

2. If the parties cited in paragraph 1. are unable to agree on a resolution, the claimant may submit the dispute, in writing, to the Director of Expendable Launch Vehicle Requirements at NASA Headquarters and Company X's signatory of this agreement, who shall attempt to resolve the dispute by mutual agreement which shall be final and conclusive. Cognizant NASA Institutional and Program Offices shall concur in the dispute resolution as appropriate. If the parties are unable to resolve the dispute, the NASA signatory to this agreement shall issue a written decision which shall be a final agency decision for all purposes including judicial review.

3. Pending resolution of any disputes pursuant to this article, the parties agree that performance of all obligations shall be pursued diligently in accordance with the direction of the NASA signatory.

4. The parties agree that this Disputes Resolution procedure shall be the exclusive procedure followed by the parties in resolving any dispute arising under, or based on, an express or implied provision of this agreement, including an alleged breach.

1.2.v.v.   "Mishap Investigation" Sample Clause.

In the case of a mishap or mission failure, the parties agree to provide assistance to each other in the conduct of any investigation. In the case of activities which might result in the death of, or serious injury to persons, or substantial loss of, or damage to property as a result of activities under this agreement, the parties agree to establish a process for investigating each such mishap as part of their program/project implementation agreements.

1.2.w.w.   "Key Personnel" Sample Clause.

The following personnel are designated as the key officials for their respective party. These key officials are the principal points of contact between the parties in the performance of this agreement.

NASA                                                                          [Other Party]

Name: ________________________            Name: ________________________
            (Type in Name)                                                             (Type in Name)
Title:________________________               Title: _______________________
Tel. No. _____________________                Tel. No. _____________________
Address: _____________________              Address: _____________________
______________________________           ______________________________

1.2.x.x.   "Modifications/Amendments" Sample Clause.

Any modification to this agreement shall be executed, in writing, and signed by an authorized representative of each party. Any modification that creates an additional commitment of NASA resources must be signed by the original NASA signatory authority or successor, or a higher level NASA official possessing original or delegated authority to make such a commitment.

1.2.y.y.   "Assignment of Rights" Sample Clause.

Neither this agreement nor any interest arising under it will be assigned by [other party] or NASA without the express written consent of the officials executing the agreement.

1.2.z.z.   "Applicable Law" Sample Clause.

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.

1.2.a.a.a.   "Anti-Deficiency Act" Sample Clause.

All activities under or pursuant to this agreement are subject to the availability of appropriated funds, and no provision shall be interpreted to require obligation or provision of funds in violation of the Anti-Deficiency Act, 31 U.S.C. § 1341.

1.2.b.b.b.   "Signatory Block" Sample Clause.

NATIONAL AERONAUTICS AND             [OTHER PARTY]
SPACE ADMINISTRATION
BY: _________________                              BY: _______________
[Name of NASA Official]                               [Name of Official]
[Title]                                                             [Title]
[Address]                                                       [Address]
DATE: _________________                        DATE: _______________








APPENDIX 2. SAMPLE CLAUSES FOR NONREIMBURSABLE AND REIMBURSABLE AGREEMENTS WITH OTHER ENTITIES OF FEDERAL/ STATE/LOCAL GOVERNMENTS


2.2. AGREEMENTS WITH U. S. STATE AND LOCAL GOVERNMENTS

2.2.a. "Intellectual Property and Data Rights" Patent and Invention Rights Sample Clause.

Title to inventions made (conceived or first actually reduced to practice) as a consequence of, or in direct relation to, the performance of the activities under this agreement will remain with the respective inventing parties and no invention and patent rights are exchanged between the parties unless otherwise specifically agreed and set forth in this agreement. In the event an invention is made jointly by employees of the parties or an employee of a party`s contractor, the parties will consult and agree as to future actions toward establishment of patent protection for the invention.

2.2.b. "Intellectual Property and Data Rights" Rights in Data Sample Clause.

It is the intent of the parties that the information and data exchanged in furtherance of the activities under this agreement will be exchanged without use and disclosure restrictions unless required by national security regulations or otherwise agreed to by the parties for specifically identified information or data.

2.2.c. "Intellectual Property and Data Rights" Handling of Data Sample Clause.

(a) In the performance of this agreement, it is anticipated that participant and its contractors and subcontractors may have access to, be furnished, or use the following categories of data (which may be technical data, computer software, administrative, management information, or financial, including cost or pricing):

(1) Data of third parties which the Government has agreed to handle under protective arrangements; and

(2) Government data, the use and dissemination of which, the Government intends to control.

(b) In order to protect the interests of the Government and the owners, licensors and licensees of such data, participant agrees, with respect to any such third party or Government data that is either marked with a restrictive legend, or specifically identified in this agreement, to:

(1) Use, disclose, and reproduce such data only to the extent necessary to perform the work required under this agreement.

(2) Allow access to such data only to those of its employees or contractors that require access for their performance under this agreement.

(3) Preclude access and disclosure of such data outside participant`s organization.

(4) Return or dispose of such data, as NASA may direct, when the data is no longer needed for performance under this agreement.

(c) Participant agrees to inform and instruct its employees and contractors of its and their obligations under this clause and to appropriately bind its employees and contractors contractually to comply with the access, use, disclosure, and reproduction provisions of this clause.

(d) In the event that data include a legend that participant deems to be ambiguous or unauthorized, participant may inform NASA of such condition. Notwithstanding such a legend, as long as such legend provides an indication that a restriction on use or disclosure was intended, participant shall treat such data pursuant to the requirements of this clause unless otherwise directed, in writing, by NASA.

e.Notwithstanding the above, participant shall not be restricted in the use, disclosure, and reproduction of any data that is or becomes generally available, or public knowledge without breach of this clause by participant; is known to, in the possession of, or is developed by participant independently of any disclosure of, or without reference to, proprietary, restricted, confidential, or otherwise protectable data hereinunder; is rightfully received by participant from a third party without restriction; or is required to be produced by participant pursuant to a court order or other Government action. If participant believes that any of these events or conditions that remove restriction on the use, disclosure, and reproduction of the data apply, participant shall promptly notify NASA of such belief prior to acting on such belief, and, in any event, shall give notice to NASA prior to an unrestricted use, disclosure, or reproduction of such data.

2.2.d. "Intellectual Property and Data Rights" Resulting Data Sample Clause.

Data generated under this agreement will be reserved to Principal Investigators [and Co-Investigators, where appropriate] for scientific analysis and first publication rights for a period of time [generally not more than one year] beginning with receipt of the data and any associated spacecraft data in a form suitable for analysis. NASA and [other party] may also have access to, and use of, the data and and associated spacecraft data during the agreed-upon period, but such access and use will not prejudice the first publication rights of the investigators.

Final results of the experiments will 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. In the event such reports or publications are copyrighted, NASA and [other party] shall have a royalty-free right under the copyright to reproduce, distribute, and use such copyrighted work for their purposes.

2.2.e. "Intellectual Property and Data Rights" Release of General Information to the Public Sample Clause.

Releases may be made by the appropriate party for its own portion of the program/cooperation as desired. Insofar as participation of the other party is involved, the parties will seek to consult with each other prior to any releases, consistent with the parties` respective laws and policies.

2.3. AGREEMENTS WITH OTHER U. S. FEDERAL GOVERNMENT ENTITIESb

2.3.a. "Financial Obligations" Nonreimbursable Agreement Sample Clause.

There will be no transfer of funds or other obligations between NASA and Agency X in connection with this agreement. Each party will fund its own participation under this agreement.

2.3.b. "Financial Obligations" Reimbursable Agreement Sample Clause.

NASA shall be reimbursed by Agency X in connection with the provision of goods and/or services in accordance with law.

2.3.c. "Liability and Risk of Loss" Sample Clause.

Each party agrees to assume liability for its own risks associated with activities undertaken in this agreement.

2.3.d. "Intellectual Property and Data Rights" Patent and Invention Rights Sample Clause.

Unless otherwise agreed by the parties, custody and administration of inventions made as a consequence of, or in direct relation to, the
performance of activities under this agreement will remain with the respective inventing party. In the event an invention is made jointly byemployees of the parties or an employee of a party`s contractor, the parties will consult and agree as to future actions towardestablishment of patent protection for the invention.






APPENDIX 3. SAMPLE CLAUSES FOR NONREIMBURSABLE AND REIMBURSABLE AGREEMENTS WITH FOREIGN GOVERNMENTS OR GOVERNMENTAL ENTITIES


3.5. AGREEMENT CONTENTS

3.5.a. "Title" Sample Clause.

Memorandum of Understanding between the National Aeronautics and Space Administration of the United States of America and the Institute of Space and Aeronautical Science of Japan for Cooperation for a Balloon-Borne Superconducting Magnet Spectrometer.

3.5.b. "Authority" Sample Clause.

The authority for NASA entering into this MOU is section 203(c) of the National Aeronautics and Space Act of 1958, as amended [42 U.S.C. 2473(c)].

3.5.c. "Background/Preamble" Sample Clause.

The National Aeronautics and Space Administration (NASA) of the United States of America and the Ministry of Science and Technology Policy of the Russian Federation,

Taking into consideration the agreement between the Government of the United States of America and the Government of the Russian Federation on Science and Technology Cooperation, signed December 16, 1993, including the terms and conditions of the intellectual property annex thereto, hereinafter the "Science and Technology agreement;"

Noting the Statement of the Government of the United States of America and the Government of the Russian Federation on General Principles for U.S.-Russian Exchange of Scientific and Technological Data and Information, signed June 23, 1994;

Noting the U.S.-Russia agreement Concerning Cooperation in the Exploration and Use of Outer Space for
Peaceful Purposes, signed June 17, 1992;

Taking into consideration agreements concerning Earth observation from space, and Russian participation in the flight segment of NASA`s Earth Observing System (EOS) with the launch of a U.S. Stratospheric Aerosol and Gas Experiment (SAGE) II aboard a Russian Meteor-3M Spacecraft;

Reaffirming the goals of the Committee on Earth Observation Satellites (CEOS) and the Satellite Data Exchange Principles in support of Global Change Research. In particular, noting the CEOS objective to encourage complementary and compatibility among spaceborne Earth observations systems and the data received from them;

Acknowledging the mutual interest in supporting the international effort to develop and maintain a comprehensive, long-term global data set covering the areas of global change research and environmental monitoring;

Desiring to improve access to and utilization of these data by the international research community, with the specific goals of making all data available to users, making data access easy, fostering collaboration and integration of the Earth science community, and preserving the knowledge base of data and research results;

Convinced that enhanced exchange of Earth science and environmental observation information and data (satellite and in-situ) between the United States and Russia is essential in order to undertake a long-term cooperative effort to understand the Earth and its environment, and that this exchange requires interoperability among the Earth science and environmental observation data and information systems of the parties; have agreed as follows: ["Purpose" article follows].

3.5.d. "Purpose/Description of Cooperation" Sample Clause.

The highest priority science investigations for the high-energy cosmic ray physics discipline include the exposure of magnet spectrometers to the space environment. In order to meet this priority, the Japanese have developed a thin solenoid magnet and a real-time particle detector system for Balloon-borne experiments with a Superconducting Magnet Spectrometer (BESS). During the U.S.-Japan BESS collaboration from 1993 to 1995, three flights were successfully conducted, yielding significant scientific results such as, the first definitive detection of the cosmic antiprotons and the first measurement of the antiproton flux at low energies.

The primary purpose of this MOU is to establish a cooperative U.S.-Japan program to fly BESS experiments using NASA`s stratospheric research balloon launch, tracking, and recovery capability. This cooperative program will produce significant scientific results well in advance of the flight of magnet spectrometers in space. One of the primary scientific objectives of this cooperative program is to search for antinuclei and make precise measurements of antiprotons and other components of cosmic rays. The search for antimatter should shed light on the matter/antimatter asymmetry of the universe and might provide insight into the nature of dark matter. A second major scientific objective of the BESS program is to measure the spectra of protons and helium and their isotopes through the half solar cycle around the minimum. Comparison of BESS data with measurements by the Voyager spacecraft in the outer heliosphere will help clarify whether or not there are charge sign dependent effects of solar modulation.

3.5.e. "Responsibilities" Sample Clause.

1. NASA will use reasonable efforts to develop Instrument X for flight on [other party`s] platform in accordance with the Instrument X Implementation Plan, which will define detailed terms and conditions for the development, launch, and initial checkout operations of Instrument X, consistent with this MOU. The Instrument X Implementation Plan shall be jointly developed by NASA and [other party], approved by the management points of contact, and maintained by NASA. In the event there is any conflict between the provisions of the Implementation Plan and this MOU, such conflict will be resolved by giving precedence to this MOU.

2. The Mission Operations Implementation Plan, which defines additional terms and conditions consistent with this MOU for on-orbit instrument housekeeping; processing, archiving and distribution of instrument data; and cooperative scientific activities will be jointly developed by NASA and [other party], approved by the management points of contact, and maintained by NASA. In the event of any inconsistency between this MOU and the Mission Operations Implementation Plan, this MOU shall prevail.

3.5.f. "Financial Arrangements" Nonreimbursable Agreement Sample Clause.

NASA and [other party] will each bear the costs of discharging their respective responsibilities, including travel and subsistence of personnel and transportation of all equipment and other items for which it is responsible. Further, it is understood that the ability of NASA and [other party] to carry out their obligations is subject to the availability of appropriated funds. Should either party encounter budgetary problems which may affect the activities to be carried out under this agreement, the party encountering the problems will notify and consult with the other party as soon as possible.

3.5.g. "Financial Arrangements" Reimbursable Agreement Sample Clause.

NASA will establish a Deposit Account for the [other party] in support of this reimbursable activity. Payment will be through U.S. Treasury FEDWIRE Deposit System, or other electronic means, as required by the Director, Financial Management Division, Code BF, NASA Headquarters, Washington, DC 20546. NASA will undertake the tasks requested by [other party] within the limits of the funds advanced and transferred into the Deposit Account.

NASA will prepare and submit to [other party] a final accounting as soon as possible after the date that the NASA support has been completed. In the event that the costs incurred under this agreement vary from the estimate {Note: a breakdown of the cost estimate is usually included as an attachment to the agreement} because of an increase in the requirements of [other party] or otherwise, NASA and [other party] will consult and jointly specify mutually agreeable arrangements to make available the necessary funds, or to limit the scope of the project. [The other party] agrees to pay any agreed-upon balance (if any) due as soon as possible, but not later than 90 days after receipt of a NASA bill. If monies already paid by [other party] exceed actual costs, as reflected in the bill, [other party] will provide instructions to NASA for the disposition of such funds upon acceptance of final billing.

3.5.h. "Scheduling Conflicts" Sample Clause.

The above schedule and milestones are estimated based upon the parties` current understanding of the projected use of the test facilities and equipment by NASA. In the event NASA`s projected usage changes, [other party] shall be given reasonable notice of that change, so that the schedule and milestones may be adjusted accordingly. The parties agree that NASA usage of personnel, test facilities, and equipment shall have priority over the usage planned in this agreement, should a conflict arise, and NASA, in its sole discretion, shall determine whether to exercise that priority. Should a schedule conflict arise with other users, NASA, in its sole discretion, shall determine priority as between the users.

3.5.i. "Management Interfaces/Points of Contact" Sample Clause.

The NASA and DARA Program Managers will work closely together to ensure successful development, operation and utilization of the Stratospheric Observatory for Infrared Astronomy (SOFIA) system. The Joint SOFIA Program Plan will establish specific project teams and delineate their responsibilities as necessary for successful development, operation, utilization, and management of the SOFIA system. Prior to initiation of development work, the parties agree on operations responsibilities, to be detailed in the Joint SOFIA Program Plan.

The SOFIA telescope assembly will be developed, integrated and tested by a prime contractor selected and managed by DARA. The other SOFIA system elements will be developed, integrated, and tested by a prime contractor selected and managed by NASA.

The overall SOFIA system will be integrated and operated by the selected U.S. prime contractor as a facility jointly owned by the United States and Germany. Development and operation of the SOFIA observatory will be conducted in a manner to ensure receipt of civil aircraft airworthiness certification by the United States Federal Aviation Administration.

Proposals for collaborative observing programs between United States and German scientists will be peer reviewed as detailed in the Joint SOFIA Program Plan, and the SOFIA research flights selected will be assigned as U.S. or German flights, as determined by the sponsor of the PI(s).

3.5.j. "Liability and Risk of Loss" Liability Convention Sample Clause.

Except as otherwise provided in [Article X] (the cross-waiver provision), the parties shall remain liable in accordance with the Convention on International Liability for Damage Caused by Space Objects (Liability Convention), which entered into force on September 1, 1972. In the event of a claim arising out of the Liability Convention, the United States and [the other party`s government] shall consult promptly on any potential liability, on any apportionment of such liability, and on the defense of such claim.

3.5.k. "Liability and Risk of Loss" Registration of Space Objects Sample Clause.

The United States shall register [named spacecraft] as a space object in accordance with the Convention on the Registration of Objects Launched into Outer Space (the Registration Convention), which entered into force on September 15, 1976. Exercise of jurisdiction and control over [named space object] shall be subject to the relevant provisions of this agreement.

[If the other party is not a governmental entity, and its government is to register the space object, the agreement should state that the other party will request that its government register the object].

3.5.l. "Intellectual Property Rights/Transfer of Goods andTechnical Data" Invention and Patent Rights Sample Clause.

Nothing in the agreement shall be construed as granting or implying any rights to, or interest in, patents or inventions of the parties or their contractors or subcontractors.

3.5.m. "Intellectual Property Rights/Transfer of Goods and Technical Data" Invention and Patent Rights/Joint Invention Sample Clause.

In the event that an invention is jointly made by employees of the parties, their contractors or subcontractors, during the implementation of this agreement, the parties shall consult and agree as to the responsibilities and costs of actions to be taken to establish and maintain patent protection (in any country) for such invention and on the terms and conditions of any license or other rights to be exchanged or granted by or between the parties.

3.5.n. "Intellectual Property Rights/Transfer of Goods and Technical Data" Transfer of Goods and Technical Data Sample Clause.

The parties are obligated to transfer only those technical data (including software) and goods necessary to fulfill their respective responsibilities under this agreement, in accordance with the following provisions:

1. The transfer of technical data for the purpose of discharging the parties` responsibilities with regard to interface, integration, and safety shall normally be made without restriction, except as required by national laws and regulations relating to export control or the control of classified data. If design, manufacturing, and processing data and associated software, which is proprietary but not export controlled, is necessary for interface, integration, or safety purposes, the transfer shall be made and the data and associated software shall be appropriately marked. Nothing in this article requires the parties to transfer goods or technical data contrary to national laws and regulations relating to export control or control of classified data.

2. All transfers of proprietary technical data and export-controlled goods and technical data are subject to the following provisions. In the event a party finds it necessary to transfer goods which are subject to export control or technical data which is proprietary or subject to export controls, and for which protection is to be maintained, such goods shall be specifically identified and such technical data shall be marked with a notice to indicate that they shall be used and disclosed by the receiving party and its related entities (e.g., contractors and subcontractors) only for the purposes of fulfilling the receiving party`s responsibilities under the programs implemented by this agreement, and that the identified goods and marked technical data shall not be disclosed or retransferred to any other entity without the prior written permission of the furnishing party. The receiving party agrees to abide by the terms of the notice, and to protect any such identified goods and marked technical data from unauthorized use and disclosure, and also agrees to obtain these same obligations from its related entities prior to the transfer.

3. All goods, marked proprietary data, and marked or unmarked technical data subject to export control, which are transferred under this agreement, shall be used by the receiving party exclusively for the purposes of the programs implemented by this agreement.

3.5.o. "Intellectual Property Rights/Transfer of Goods and Technical Data" Rights in Resulting Data Sample Clause.

Data generated under this agreement will be reserved to the Principal Investigators [and Co-Investigators, where appropriate] for scientific analysis and first publication rights for a period of time [generally not more than 1 year] beginning with receipt of the data and any associated data in a form suitable for analysis. NASA and [other party] may also have access to, and use of, the data and any associated data during the agreed-upon period, but such access and use will not prejudice the first publication rights of the investigators.

Final results of the experiments will 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. In the event such reports or publications are copyrighted, NASA and [other party] shall have a royalty-free right under the copyright to reproduce, distribute, and use such copyrighted work for their purposes.

3.5.p. "Intellectual Property Rights/Transfer of Goods and Technical Data" Patent and Copyright -- Authorization, Consent, Indemnification Sample Clause.

In order to avoid any possible interruption in the conduct of this cooperative project, NASA hereby 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 [other party`s] responsibilities under this agreement, including the performance of such responsibilities by [other party`s] contractors or subcontractors.

In the event the U.S. Government incurs any liability for the practice of inventions or works covered by privately owned U.S. patents or copyrights, either as royalties owned under an existing U.S. Government license or as an unlicensed practice of such inventions or works (infringement), and such liability is incurred as a result of [other party`s] and/or any of [other party`s] contractors` or subcontractors` performance of [other party`s] responsibilities under the agreement, [other party] agrees to indemnify and hold the U.S. Government harmless against such liability, including patent infringement costs and reimbursement for expenses incurred by the U.S. Government in defending against any suit or claim for such royalties or infringements.

3.5.q. "Intellectual Property Rights/Transfer of Goods and Technical Data" Release of General Information to the Public Sample Clause.

Releases may be made by the appropriate party for its own portion of the program/cooperation as desired. Insofar as participation of the other party is involved, the parties will seek to consult with each other prior to any releases, consistent with the parties` respective laws and policies.

3.5.r. "Customs/Taxes/Immigration" Sample Clause.

In accordance with its laws and regulations, each party shall facilitate free customs clearance and waiver of all applicable customs duties and taxes for equipment and related goods necessary for the implementation of this agreement. In the event that any customs duties or taxes of any kind are nonetheless levied on such equipment and related goods, such customs duties or taxes shall be borne by the party of the country levying such customs duties or taxes. The parties` obligation to ensure duty-free entry and exit of equipment and related goods is fully reciprocal.

3.5.s. "Customs/Taxes/Immigration" Facilitate Movement of Persons and Goods Sample
Clause.

Each of the parties shall facilitate the movement of persons and goods necessary to comply with this agreement into and out of its territory, subject to its laws and regulations.

3.5.t. "Customs/Taxes/Immigration" Facilitate Entry and Resident Documentation Sample Clause.

Subject to its laws and regulations, each party shall facilitate provision of the appropriate entry and residence documentation for the other party`s nationals who enter, exit, or reside within its territory in order to carry out the activities under this Implementing agreement.

3.5.u. "Ownership of Equipment" Sample Clause.

Equipment provided by NASA pursuant to this agreement shall remain the property of NASA. Equipment provided by [other party] pursuant to this agreement shall remain the property of [other party].

3.5.v. "Consultations/Settlement of Disputes" Sample Clause.

The parties shall consult promptly with each other on all issues involving interpretation or implementation of this MOU, implementing arrangement and resulting annexes as specified.

Any matter that has not been settled in accordance with the above paragraph shall be referred to the appropriate program managers (provide titles) for both NASA and [other party]. These program managers will attempt to resolve all issues arising from the implementation of this agreement. If they are unable to come to agreement on any issue, then the dispute will be referred to the agreement signatories, or their designated representatives for joint resolution. If the parties are unable to resolve the dispute, the NASA signatory will issue a final written decision on behalf of NASA.

3.5.w. "Mishap Investigation" Sample Clause.

In the case of a mishap or mission failure, the parties agree to provide assistance to each other in the conduct of any investigation. In the case of activities which might result in the death of, or serious injury to persons, or substantial loss of, or damage to property as a result of activities under this agreement, the parties agree to establish a process for investigating each such mishap as part of their program/project implementation agreements.

3.5.x. "Modifications/Amendments" Sample Clause.

The agreement may be amended at any time by mutual written agreement and may be terminated by either of the consenting parties after ninety (90) days notification of intent to terminate.

3.5.y. "Choice of Law" Sample Clause.

[For reimbursable agreements, or where most of the activity takes place within the United States].

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.

3.5.z. "Effective Date/Duration/Termination" Sample Clause.

This Memorandum of Understanding will enter into force upon an exchange of diplomatic notes confirming each party has completed its domestic legal requirements for entry into force. This MOU will remain in force for a period of 3 years. It may be extended for an additional 3-year period by an exchange of diplomatic notes. The MOU may be terminated by either party by notifying the other party, in writing, via diplomatic channels, 6 months in advance.

3.5.a.a. "Continuing Obligations" Sample Clause.

The obligations of the parties set forth in the provisions in Articles IX, X, and XI of this agreement concerning Risk Allocation/Liability; Intellectual Property Rights/Transfer of Goods and Technical Data; and Customs shall continue to apply after the expiration or termination of this agreement.

3.5.b.b. "Anti-Deficiency Act" Sample Clause.

All activities under or pursuant to this agreement are subject to the availability of appropriated funds, and the parties` respective funding procedures.

3.5.c.c. "Signatory Authority" Sample Clause.

In witness whereof, the undersigned, being duly authorized by their respective Governments have signed this MOU.

Done in Washington in two copies, in the English and Russian languages, both being equally authentic,
this___________ day of _____________, 1999.

__________________________________________________
For the Government of the Russian Federation

___________________________________________________
For the Government of the United States of America








APPENDIX 4. SAMPLE CLAUSES FOR NONREIMBURSABLE AND REIMBURSABLE AGREEMENTS WITH FOREIGN NONGOVERNMENTAL ENTITIES


4.2. AGREEMENT CONTENTS

4.2.a. "Customs, Taxes and Duties" Sample Clause.

In accordance with its laws and regulations, each party shall facilitate free customs clearance and waiver of all applicable customs duties and taxes for equipment and related goods necessary for the implementation of this agreement. In the event that any customs duties or taxes of any kind are nonetheless levied on such equipment and related goods, such customs duties or taxes shall be borne by the party of the country levying such customs duties or taxes. The parties` obligation to ensure duty-free entry and exit of equipment and related goods is fully reciprocal.

4.2.b. "Choice of Law" Sample Clause.

The parties hereby designate the U.S. Federal law to govern 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.








APPENDIX 5. SAMPLE CLAUSES FOR FUNDED AGREEMENTS


5.2. AGREEMENT CONTENTS

5.2.a. "Financial Obligations" Sample Clause.

It is NASA`s intent to provide cash and in-kind resources to entity X over the course of the agreement as indicated below. [Indicate resources by fiscal year]. The actual commitments may vary from the projected amounts shown. Funding in the amount of $$ is available beginning on [date]. Subsequent NASA funding and resources will be provided in accordance with annual progress and subject to the availability of appropriated funds. Of the budget amounts shown above, NASA resources will only be obligated as required in the Annual Plan and as funds become available. Under no circumstances shall any party undertake any action which could be construed to imply an increased commitment on the part of NASA.

5.2.b. "Accounting and Audit" Sample Clause.

The participant agrees to account for any project-related expenditures that include NASA funding and are undertaken as part of this agreement. An accounting system must be established for the agreement that is maintained in accordance with Generally Accepted Accounting Principles (GAAP). NASA`s Inspector General, the U.S. Comptroller General, or their duly authorized representatives, have the right of timely and unrestricted access to any books, documents, papers, or other records of recipients that are pertinent to the expenditures, in order to make audits, examinations, excerpts, transcripts and copies of such documents. This right also includes timely and reasonable access to a recipient`s personnel for the purpose of interviews and discussion related to such documents. The rights of access in this paragraph are not limited to any required retention period, but shall last as long as records are retained.








APPENDIX 6. AGREEMENT QUESTIONNAIRES


1.1. OVERVIEW

Three examples of Agreement Worksheets have been provided for your reference. All three set forth the types of questions that are useful to be asked and answered prior to deciding (1) if an agreement with NASA is in the best interests of both parties; (2) if the proposed contributions are balanced; and (3) what is the proper type of instrument. Since NASA Centers operate differently in terms of which office takes primary responsibility for writing a first draft of an agreement, the worksheets reflect different approaches.

1.2. AGREEMENT WORKSHEET I

(Questions to be answered by a NASA Project Manager)

  • Identify the parties: Name, address.
  • 1.3. AGREEMENT WORKSHEET 2

    Answers to the following questions will help in the selection of the proper type of agreement and the minimum necessary provisions for accomplishing the proposed cooperative effort. Before attempting to draft an agreement, NASA personnel should answer the following questions and consult with the Office of Chief Counsel. A draft document will be returned to you for further dialogue and discussion.

    1.4. AGREEMENT WORKSHEET 3

    (Questions to be answered by the other party)

    Are you still in a proof-of-concept phase? Is so, the first step is usually a technical exchange agreement, which permits access to copies of publicly available information, on a noninterference basis, as determined by NASA.



    DISTRIBUTION:
    NODIS


    This Document Is Uncontrolled When Printed.
    Check the NASA Online Directives Information System (NODIS) Library
    to Verify that this is the correct version before use: http://nodis3.gsfc.nasa.gov