## Lab Services Agreement

**FIPS 201 Evaluation Program**

**Lab Services Agreement**

This FIPS 201 Evaluation Program Lab Services Agreement ("Agreement") is
by and between
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
(hereinafter "Applicant"), and **FIPS 201 Evaluation Lab** (hereinafter
"Lab").

WHEREAS, Homeland Security Presidential Directive-12 (HSPD-12), \"Policy
for a Common Identification Standard for Federal Employees and
Contractors" establishes the requirement for a mandatory Government wide
standard for secure and reliable forms of identification issued by the
Federal Government to its employees and contractors;

WHEREAS, HSPD-12 requires agencies to use only information technology
products and services that meet this standard;

WHEREAS, The Office of Management and Budget (OMB) has designated the
General Services Administration (GSA) as the Executive Agent for
government-wide acquisitions for the implementation of HSPD-12;

WHEREAS, Lab Director is responsible for overall operation of the Lab,
and oversees analysis and testing of products and services, and
validation of conformance to established FIPS 201 Specifications;

WHEREAS, Applicant wishes to participate in FIPS 201 Initiative; and
wishes to submit its product ("Product") or service ("Service") to the
Lab for analysis, testing, and certification, upon the terms and
conditions set forth in this agreement;

WHEREAS, U.S. General Services Administration FIPS 201 Program
Management Office ("PMO") wishes to accept Applicant's Product or
Service, upon the terms and conditions set forth in this agreement;

WHEREFORE, in consideration of the mutual covenants contained herein and
for other good and valuable consideration, the parties hereto agree as
follows:

[1. **ANALYSIS, TESTING AND CERTIFICATION**]{.underline}

1.1 Applicant wishes to submit its Product or Service to the Lab for
analysis, testing and conformance certification, and shall pay such
application fees, if any, and comply with such rules, regulations,
procedures, and requests as PMO may prescribe, from time to time,
including making available, on sight and by other communications
mechanisms such as telephone, Product or Service experts.

1.2 Certification. If Lab analysis and testing demonstrates that
Applicant's Product or Service conforms to FIPS 201 Specifications, as
revised from time to time, then GSA Approval Authority shall so certify,
and the name and version of Applicant's Product or Service will be added
to Approved FIPS 201 Products and Services List ("Approved List").

Submission of Product or Service for testing does not guarantee that the
Product or Service will successfully complete the testing process or be
found conformant to FIPS 201 requirements. Furthermore, if said Product
or Service is added to the Approved List, this shall not be considered
an endorsement by the Government, nor shall there be any guarantees that
said Product or Service shall be purchased for use by the Government.

1.3 Noncompliance with procedures. Applicant agrees that if Applicant or
its representatives, or Applicant's Product or Service, in Lab
Director's sole judgment, is or are not complying with any rules or
procedures set forth in this Agreement or established by Lab Director
from time to time, then Lab Director may decline to accept Applicant's
Product or Service for analysis and testing, or may suspend analysis and
testing of Applicant's Product or Service, without refund of any fees
paid by Applicant, until Applicant complies, or until assurances of
compliance satisfactory to Lab Director are received, as Lab Director
may determine in its reasonable discretion.

1.4 (a) "Commercially available off-the-shelf item (COTS)" shall mean a
product or service of a type customarily used by the general public or
by non-governmental entities for purposes other than governmental
purposes, that has been sold, leased, or licensed in substantial
quantities, and that is offered to the Government without modification,
in the same form as to non-governmental customers.

> \(b\) Applicant represents and warrants that (a) it has sufficient
> right, title and interest in and to the Product or Service to submit
> it to the Lab; and (b) that the Product or Service meets the
> definition of "commercially available off-the-shelf item," or that it
> is an unreleased for general availability version of a Product or
> Service that Applicant has a good faith expectation that when released
> upon the conclusion of development will qualify as such.

1.5 Applicant certifies and warrants that the name of the Product or
Service being submitted
is\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_,
a \<specify COTS product or beta version\>, whose version, service pack,
and patch release numbers are
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

2\. **GRANT OF LICENSE**

2.1 Applicant grants to Lab an irrevocable, perpetual, license to use
the Product or Service, solely for the purposes of this Agreement,
without right to grant sublicenses. This license permits Lab Director
and any authorized contractors to make any number of copies, and to use
the Product or Service on any number of machines, for the permitted
purposes. This license permits Lab to retain any Product or Service
submitted to the Lab in accordance with this Agreement in perpetuity.
This perpetual license shall be used solely for the analysis, testing
and certification of the Product or Service that desires to participate
in the FIPS 201 Initiative and shall only be used inside the Lab or on
systems necessary to test the said Product or Service. If Product or
Service fails to meet the conformance testing process, and at supplier's
request, then the Lab Director shall return to the supplier or destroy
all copies of the submitted Product or Service, and documentation.

[3. **CONFIDENTIALITY**]{.underline}

3.1 "Confidential Information" shall mean (a) the fact of Applicant's
application to the Lab, the identity of the Product or Service
submitted, and the results of the analysis, testing and certification
(other than listing on the Approved List ), and (b) any source code,
algorithms or other technical information relating to the Product or
Service, whether or not protected by a patent or copyright, that
Applicant provides orally or in writing to Lab pursuant to this
Agreement.

3.2 Lab shall (a) not provide or make available the Confidential
Information in any form to any person other than those employees or
contractors who have a need to know consistent with the authorized use
of such Confidential Information; (b) not reproduce the Confidential
Information except for use reasonably necessary to the performance of
this Agreement; and (c) not exploit or use the Confidential Information
for any purpose other than as required for the performance of its
obligations pursuant to this Agreement.

3.3 Information disclosed by Applicant to Lab shall not be "Confidential
Information" if it:

\(a\) Was in the public domain prior to its receipt by Lab, or has
subsequently become

part of the public domain without Lab's breach of this Agreement or
wrongful act; or

\(b\) Was in Lab's possession or known to Lab prior to its receipt; or

\(c\) Was received by Lab from a third party without obligation of
secrecy, and was not

acquired directly or indirectly from Applicant; or

\(d\) Was independently developed by Lab without use of, access or
reference to, nor

any benefit of Applicant's Confidential Information.

3.4 In the event that a subpoena or other legal process in any way
concerning Confidential Information is served upon Lab, Lab shall notify
Applicant as soon as possible and shall cooperate with Applicant in any
lawful effort by Applicant to contest or limit the disclosures.

3.5 In the event Applicant, by virtue of the presence of its
representatives in the Lab, or otherwise from Lab, or from any employee,
officer, director, or agent of PMO or the Lab, learns whether any other
applicant has applied for certification for any of its product or
services, or learns any information whatsoever relating to any such
other applicant, including but not limited to whether any product or
service of any other applicant have or have not been analyzed, tested or
certified, or the results of any such analysis, testing or
certification, or learns nonpublic information about the Lab's analysis,
testing or procedures, then Applicant shall not disclose any such
information to any other person, nor shall Applicant use such
information for any purpose whatsoever, including but not limited to
being prohibited from using it for the commercial advantage of Applicant
or for the commercial detriment of any other person. The prohibition
upon Applicant imposed by this paragraph shall inure to the benefit of
any such other applicant, which shall have the right to enforce its
terms against Applicant and/or to seek remedies for any violations
thereof.

3.6 The prohibition in the preceding paragraph shall not apply to any
information learned by Applicant if it was in the public domain prior to
its receipt by Applicant, or has subsequently become part of the public
domain without Applicant's breach of this Agreement or wrongful act.

[4. **LIMITATION OF LIABILITY**]{.underline}

4.1 LAB, PMO, AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES SHALL NOT
BE LIABLE TO APPLICANT FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO
COMPENSATORY, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES, LOSS OF
ANTICIPATED PROFITS, LOSS OF USE OF FACILITIES, OR LOSS OF DATA,
RESULTING FROM ITS PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATIONS
UNDER THIS AGREEMENT, EVEN IF ANY OF THEM HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.

[5. **INDEMNITY**]{.underline}

5.1 Applicant shall defend or settle at its expense any claim, suit or
proceeding brought against Lab, PMO, or any employee, officer, director,
or agent of Lab or PMO (a) arising from or alleging infringement,
misappropriation or other violation of any intellectual property right
of any third party by Lab or PMO relating to Product furnished under
this Agreement, or (b) arising from or relating to any certification
made, or any failure to certify, any Product or Service furnished under
this Agreement.. Applicant shall indemnify and hold Lab, PMO, or any
employee, agent or affiliate of Lab or PMO, or the successors and
permitted assigns of any of them (individually each an "Indemnitee" and
collectively the "Indemnitees") harmless from and against and pay any
and all losses, costs and damages, including royalties and license fees,
and reasonable counsel fees, attributable to any such claim, suit or
proceeding. Any Indemnitee shall have the right to approve the terms of
any settlement or compromise that may impose any unindemnified or
nonmonetary liability upon such Indemnitee.

[6. **GOVERNING LAW AND DISPUTE RESOLUTION**]{.underline}

6.1 The law of federal Government contracts, as expressed in statutes,
regulations, and decisions of courts and administrative tribunals, and
to the extent necessary, the laws of the District of Columbia shall
govern the interpretation and construction of this Agreement.

6.2 Any controversy or claim between the parties arising from or
relating to this Agreement shall be settled by the federal or Superior
courts of Washington, District of Columbia, to the subject matter and
personal jurisdiction of which the parties irrevocably submit; provided
however, that no party shall initiate any action (other than an action
for emergency relief for an actual or threatened violation of § 6 of
this Agreement, unless the party initiating an action shall first have
submitted a written demand for relief to the other party, and that
thirty (30) calendar days shall have passed, during which time the party
seeking relief shall consult in good faith with the other party, which
consultation shall include at least either:

\(a\) One face-to-face meeting or telephone consultation between
principals of each party having authority to resolve the dispute, or

\(b\) Reasonable efforts to arrange such consultation, if declined by
the opposite party.

6.3 In any judicial proceedings relating to or arising from this
Agreement, Lab or PMO, if the substantially prevailing party, shall
recover its expenses of the proceeding, including its reasonable
attorneys' fees, from the substantially non-prevailing party.

[7. **MISCELLANEOUS**]{.underline}

7.1 Assignment. Applicant may assign its rights and obligations under
this Agreement only pursuant to merger or acquisition of substantially
all of the assets of Applicant, upon submission of information
satisfactory in form and substance to Lab. Lab may assign its rights and
obligations under this Agreement pursuant to merger or acquisition of
substantially all of its assets, or to GSA, NIST or to any successor
manager of the Lab.

7.2 Entire Agreement. This Agreement constitutes the entire and complete
understanding between the parties and supersedes all prior and
contemporaneous verbal and written agreements, communications and
representations relating to the subject matter hereof. Its terms can be
modified only by an instrument in writing signed by both parties.

7.3 No Waiver. Any waiver of any breach of any provisions of this
Agreement shall not be construed as a continuing waiver of other
breaches of the same or other provisions hereof.

7.4 Severability. If any provision of this Agreement is held to be
invalid or unenforceable, then such provision shall be modified to the
extent possible to preserve the original intentions of the parties, and
the validity or enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.

7.5 Notices. Notices and other communications hereunder shall be in
writing and shall be deemed delivered on the date of hand delivery; or
on the date of receipt during normal business hours by facsimile
transmission or by commercial courier service (FedEx, UPS, etc.), all
fees prepaid. Notices shall be sent to the addresses and/or facsimile
numbers set forth at the end of this Agreement, or to such other
addresses and/or facsimile numbers as either party shall have notified
to the opposite party in accordance with this section.

IN WITNESS WHEREOF, the parties have executed, or caused to be executed
by their duly authorized representatives, this Agreement as of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, 200\_.

\[APPLICANT NAME\] \[Lab Name\]

\[APPLICANT ADDRESS\] \[Lab Address\]

\[APPLICANT FAX NUMBER\] \[Lab Fax Number\]

By:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
By:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Title:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Title:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_