**NASA Advisory Implementing Instruction**

**NAII 1050-1A**

**Effective Date: August 15, 2008**

**SPACE ACT AGREEMENTS GUIDE**

**Responsible Office: Office of the General Counsel**

***Note*:** This Guide is intended to explain NASA agreement practice
and provide assistance to those involved in formation and execution of
Space Act Agreements. It does not establish substantive or procedural
requirements. All references to such requirements contained in NASA
Policy Directives (NPD), Advisory Implementing Instructions or other
guidance should be verified by reviewing the cited authority directly.

**This Document Is Uncontrolled When Printed. Go to the NASA Online
Directives Information System (NODIS) library for the current version
before use. *See*, Current Directives, 1050.1H, "Authority to Enter into
Space Act Agreements, Implementing Instruction NAII 1050-1A "Space Act
Agreements Guide"
<http://nodis3.gsfc.nasa.gov/NPD_attachments/NAII_1050_1A.doc>.**

**TABLE OF CONTENTS -- HYPERLINKS**

[CHAPTER 1. INTRODUCTION 3](#__RefHeading___Toc203815494)

[1.1. AUTHORITY AND POLICY 3](#__RefHeading___Toc203815495)

[1.2. SPACE ACT AGREEMENT DEFINED 3](#__RefHeading___Toc203815496)

[1.3. AGREEMENT FORMATION PROCESS 3](#__RefHeading___Toc203815497)

[*Role of Agreement Manager* 3](#__RefHeading___Toc203815498)

[*The Preliminary Abstract Review Process*
3](#__RefHeading___Toc203815499)

[*Space Act Agreement Review and Concurrence*
3](#__RefHeading___Toc203815500)

[*Space Act Agreement Recordkeeping* 3](#__RefHeading___Toc203815501)

[1.4. NONREIMBURSABLE AGREEMENT 3](#__RefHeading___Toc203815502)

[1.5. REIMBURSABLE AGREEMENT 3](#__RefHeading___Toc203815503)

[1.6. INTERNATIONAL AGREEMENT 3](#__RefHeading___Toc203815504)

[1.7. FUNDED AGREEMENT 3](#__RefHeading___Toc203815505)

[1.8. SPECIALIZED ACTIVITIES AGREEMENT TITLES
3](#__RefHeading___Toc203815506)

[**1.8.1. UMBRELLA AGREEMENT (ANNEX)** 3](#__RefHeading___Toc203815507)

[**1.8.2. TECHNICAL EXCHANGE AGREEMENT (TEA)**
3](#__RefHeading___Toc203815508)

[**1.8.3. LAUNCH SERVICES AGREEMENT (LSA)**
3](#__RefHeading___Toc203815509)

[**1.8.4. SPACE STATION UTILIZATION AGREEMENT (SSUA)**
3](#__RefHeading___Toc203815510)

[**1.8.5. SPACE SYSTEMS DEVELOPMENT AGREEMENT (SSDA)**
3](#__RefHeading___Toc203815511)

[**1.8.6. JOINT ENDEAVOR AGREEMENT (JEA)**
3](#__RefHeading___Toc203815512)

[**1.8.7. LOAN OF EQUIPMENT** 3](#__RefHeading___Toc203815513)

[**1.8.8. REIMBURSABLE TRAVEL** 3](#__RefHeading___Toc203815514)

[**1.8.9. SOFTWARE USAGE AGREEMENT (SUA)**
3](#__RefHeading___Toc203815515)

[1.9. NON-AGREEMENTS 3](#__RefHeading___Toc203815516)

[APPENDIX 1. AGREEMENT QUESTIONNAIRE 3](#__RefHeading___Toc203815517)

[1. OVERVIEW 3](#__RefHeading___Toc203815518)

[2. QUESTIONNAIRE 3](#__RefHeading___Toc203815519)

[CHAPTER 2. NONREIMBURSABLE AND REIMBURSABLE AGREEMENTS WITH DOMESTIC
NONGOVERNMENTAL ENTITIES 3](#__RefHeading___Toc203815520)

[2.1. GENERAL GUIDANCE 3](#__RefHeading___Toc203815521)

[2.2. AGREEMENT CONTENTS 3](#__RefHeading___Toc203815522)

[**2.2.1. TITLE** 3](#__RefHeading___Toc203815523)

[**2.2.2. AUTHORITY AND PARTIES** 3](#__RefHeading___Toc203815524)

[**2.2.3. PURPOSE** 3](#__RefHeading___Toc203815525)

[**2.2.4. RESPONSIBILITIES** 3](#__RefHeading___Toc203815526)

[**2.2.5. SCHEDULE AND MILESTONES** 3](#__RefHeading___Toc203815527)

[**2.2.6. FINANCIAL OBLIGATIONS** 3](#__RefHeading___Toc203815528)

[**2.2.7. PRIORITY OF USE** 3](#__RefHeading___Toc203815529)

[**2.2.8. NONEXCLUSIVITY** 3](#__RefHeading___Toc203815530)

[**2.2.9. LIABILITY AND RISK OF LOSS** 3](#__RefHeading___Toc203815531)

[**2.2.9.1. SAAs FOR SHARED BENEFITS \-- CROSS-WAIVER AND FLOW DOWN**
3](#__RefHeading___Toc203815532)

[**2.2.9.2. SAAs PRIMARILY BENEFITTING AN SAA PARTNER -- UNILATERAL
WAIVER AND INSURANCE** 3](#__RefHeading___Toc203815533)

[**2.2.9.3. INSURANCE COVERAGE** 3](#__RefHeading___Toc203815534)

[**2.2.10. INTELLECTUAL PROPERTY RIGHTS**
3](#__RefHeading___Toc203815535)

[**2.2.10.1. DATA RIGHTS** 3](#__RefHeading___Toc203815536)

[**2.2.10.2. RIGHTS IN RAW DATA GENERATED UNDER THE AGREEMENT**
3](#__RefHeading___Toc203815537)

[**2.2.10.3. INVENTION AND PATENT RIGHTS**
3](#__RefHeading___Toc203815538)

[**2.2.10.4. PATENT AND COPYRIGHT USE \-- AUTHORIZATION, CONSENT, AND
INDEMNIFICATION** 3](#__RefHeading___Toc203815539)

[**2.2.11. USE OF NASA NAME AND EMBLEMS AND RELEASE OF GENERAL
INFORMATION TO THE PUBLIC** 3](#__RefHeading___Toc203815540)

[**2.2.12. DISCLAIMERS** 3](#__RefHeading___Toc203815541)

[**2.2.12.1.** **DISCLAIMER OF WARRANTY**
3](#__RefHeading___Toc203815542)

[**2.2.12.2. DISCLAIMER OF ENDORSEMENT**
3](#__RefHeading___Toc203815543)

[**2.2.13. COMPLIANCE WITH LAWS AND REGULATIONS**
3](#__RefHeading___Toc203815544)

[**2.2.14. TERM OF AGREEMENT** 3](#__RefHeading___Toc203815545)

[**2.2.15. RIGHT TO TERMINATE** 3](#__RefHeading___Toc203815546)

[**2.2.16. CONTINUING OBLIGATIONS** 3](#__RefHeading___Toc203815547)

[**2.2.17. MANAGEMENT POINTS OF CONTACT**
3](#__RefHeading___Toc203815548)

[**2.2.18. DISPUTE RESOLUTION** 3](#__RefHeading___Toc203815549)

[**2.2.19. MISHAP INVESTIGATION** 3](#__RefHeading___Toc203815550)

[**2.2.20. MODIFICATIONS** 3](#__RefHeading___Toc203815551)

[**2.2.21. ASSIGNMENT** 3](#__RefHeading___Toc203815552)

[**2.2.22. APPLICABLE LAW** 3](#__RefHeading___Toc203815553)

[**2.2.23. INDEPENDENT RELATIONSHIP** 3](#__RefHeading___Toc203815554)

[**2.2.24. LOAN OF GOVERNMENT PROPERTY**
3](#__RefHeading___Toc203815555)

[**2.2.25 SPECIAL CONSIDERATIONS** 3](#__RefHeading___Toc203815556)

[**2.2.26. SIGNATORY AUTHORITY** 3](#__RefHeading___Toc203815557)

[APPENDIX 2. SAMPLE CLAUSES -- NONREIMBURSABLE AND REIMBURSABLE
AGREEMENTS WITH DOMESTIC NONGOVERNMENTAL ENTITIES
3](#__RefHeading___Toc203815558)

[CHAPTER 3. NONREIMBURSABLE AND REIMBURSABLE AGREEMENTS WITH
FEDERAL/STATE/LOCAL GOVERNMENT ENTITIES 3](#__RefHeading___Toc203815559)

[3.1. GENERAL GUIDANCE 3](#__RefHeading___Toc203815560)

[3.2. AGREEMENTS WITH STATE/LOCAL GOVERNMENT ENTITIES
3](#__RefHeading___Toc203815561)

[3.3. AGREEMENTS WITH FEDERAL GOVERNMENT ENTITIES
3](#__RefHeading___Toc203815562)

[**3.3.1. AUTHORITY AND PARTIES** 3](#__RefHeading___Toc203815563)

[**3.3.2. FINANCIAL OBLIGATIONS** 3](#__RefHeading___Toc203815564)

[**3.3.3. PRIORITY OF USE** 3](#__RefHeading___Toc203815565)

[**3.3.4. LIABILITY AND RISK OF LOSS** 3](#__RefHeading___Toc203815566)

[**3.3.5. INTELLECTUAL PROPERTY RIGHTS**
3](#__RefHeading___Toc203815567)

[**3.3.6. RIGHT TO TERMINATE** 3](#__RefHeading___Toc203815567)

[**3.3.7. DISPUTE RESOLUTION** 3](#__RefHeading___Toc203815568)

[**3.3.8. LOAN OF GOVERNMENT PROPERTY:**
3](#__RefHeading___Toc203815569)

[**3.3.9. SIGNATORY AUTHORITY** 3](#__RefHeading___Toc203815570)

[APPENDIX 3. SAMPLE CLAUSES -- NONREIMBURSABLE AND REIMBURSABLE
AGREEMENTS WITH FEDERAL GOVERNMENT ENTITIES
3](#__RefHeading___Toc203815571)

[CHAPTER 4. AGREEMENTS WITH FOREIGN ENTITIES
3](#__RefHeading___Toc203815572)

[4.1. GENERAL GUIDANCE 3](#__RefHeading___Toc203815573)

[4.2. INTERNATIONAL NONREIMBURSABLE AGREEMENT - MOU
3](#__RefHeading___Toc203815574)

[4.3. INTERNATIONAL NONREIMBURSABLE AGREEMENT - LETTER AGREEMENT
3](#__RefHeading___Toc203815575)

[4.4. INTERNATIONAL REIMBURSABLE AGREEMENT
3](#__RefHeading___Toc203815576)

[4.5. INTERNATIONAL AGREEMENT CONTENTS 3](#__RefHeading___Toc203815577)

[**4.5.1. TITLE** 3](#__RefHeading___Toc203815578)

[**4.5.2. AUTHORITY** 3](#__RefHeading___Toc203815579)

[**4.5.3. BACKGROUND/PREAMBLE** 3](#__RefHeading___Toc203815580)

[**4.5.4. PURPOSE/DESCRIPTION OF COOPERATION**
3](#__RefHeading___Toc203815581)

[**4.5.5. RESPONSIBILITIES** 3](#__RefHeading___Toc203815582)

[**4.5.6. FINANCIAL ARRANGEMENTS** 3](#__RefHeading___Toc203815583)

[**4.5.7. SCHEDULING CONFLICTS** 3](#__RefHeading___Toc203815584)

[**4.5.8. MANAGEMENT POINTS OF CONTACT (POCs)**
3](#__RefHeading___Toc203815585)

[**4.5.9. LIABILITY** 3](#__RefHeading___Toc203815586)

[**4.5.9.1. LIABILITY AND RISK OF LOSS**
3](#__RefHeading___Toc203815587)

[**4.5.9.2. LIABILITY CONVENTION** 3](#__RefHeading___Toc203815588)

[**4.5.10. REGISTRATION OF SPACE OBJECTS**
3](#__RefHeading___Toc203815589)

[**4.5.11. TRANSFER OF GOODS AND TECHNICAL DATA**
3](#__RefHeading___Toc203815590)

[**4.5.12. INTELLECTUAL PROPERTY** 3](#__RefHeading___Toc203815591)

[**4.5.13. RIGHTS IN RESULTING DATA** 3](#__RefHeading___Toc203815592)

[**4.5.14. RELEASE OF RESULTS AND PUBLIC INFORMATION**
3](#__RefHeading___Toc203815593)

[**4.5.15. CUSTOMS/TAXES/IMMIGRATION** 3](#__RefHeading___Toc203815594)

[**4.5.16. OWNERSHIP OF EQUIPMENT** 3](#__RefHeading___Toc203815595)

[**4.5.17. DISPUTE RESOLUTION** 3](#__RefHeading___Toc203815596)

[**4.5.18. MISHAP INVESTIGATION** 3](#__RefHeading___Toc203815597)

[**4.5.19. MODIFICATIONS/AMENDMENTS** 3](#__RefHeading___Toc203815598)

[**4.5.20. CHOICE OF LAW** 3](#__RefHeading___Toc203815599)

[**4.5.21. ENTRY INTO FORCE, TERM AND TERMINATION**
3](#__RefHeading___Toc203815600)

[**4.5.22. CONTINUING OBLIGATIONS** 3](#__RefHeading___Toc203815601)

[**4.5.23. ANTI-DEFICIENCY ACT** 3](#__RefHeading___Toc203815602)

[**4.5.24. AUTHORITY TO CONCLUDE** 3](#__RefHeading___Toc203815603)

[**4.5.25. PROVISIONAL APPLICATION AND ENTRY INTO FORCE**
3](#__RefHeading___Toc203815604)

[**4.5.26. SIGNATORY AUTHORITY** 3](#__RefHeading___Toc203815605)

[4.6. INTERNATIONAL AGREEMENTS FOR SPECIAL ACTIVITIES
3](#__RefHeading___Toc203815606)

[**4.6.1. STANDARDS OF CONDUCT/FOREIGN CREWMEMBER**
3](#__RefHeading___Toc203815607)

[**4.6.2. FOREIGN INVESTIGATOR AGREEMENT**
3](#__RefHeading___Toc203815608)

[**4.6.3. LOAN OF EQUIPMENT AGREEMENT** 3](#__RefHeading___Toc203815609)

[**4.6.4. REIMBURSABLE TRAVEL AGREEMENT**
3](#__RefHeading___Toc203815610)

[**4.6.5. VISITING RESEARCHER AGREEMENTS**
3](#__RefHeading___Toc203815611)

[APPENDIX 4. SAMPLE CLAUSES -- AGREEMENTS WITH FOREIGN ENTITIES
3](#__RefHeading___Toc203815612)

[CHAPTER 5. FUNDED AGREEMENTS 3](#__RefHeading___Toc203815613)

[5.1. GENERAL GUIDANCE 3](#__RefHeading___Toc203815614)

[5.2. FUNDED AGREEMENT CONTENTS 3](#__RefHeading___Toc203815615)

[**5.2.1. FINANCIAL OBLIGATIONS** 3](#__RefHeading___Toc203815616)

[**5.2.2. ACCOUNTING AND AUDIT** 3](#__RefHeading___Toc203815617)

[**5.2.3. INTELLECTUAL PROPERTY** 3](#__RefHeading___Toc203815618)

[5.3. JOINT SPONSORED RESEARCH AGREEMENT
3](#__RefHeading___Toc203815619)

[5.4. ECONOMY ACT ACQUISITIONS 3](#__RefHeading___Toc203815620)

[APPENDIX 5. SAMPLE CLAUSES -- FUNDED AGREEMENTS
3](#__RefHeading___Toc203815621)

**CHAPTER 1. INTRODUCTION**[]{#__RefHeading___Toc203815494 .anchor}

***This Space Act Agreements Guide (Guide) contains references to
requirements found in NASA Policy Directives, NASA Procedural
Requirements, Implementing Instructions, and other guidance. Where
possible, for ease of use, the Guide provides links to on-line versions
of these documents. In all cases, the reader should rely on the source
documents themselves rather than any summary references found in this
Guide.***

**1.1. AUTHORITY AND POLICY**[]{#__RefHeading___Toc203815495 .anchor}

NASA's organic statute, the National Aeronautics and Space Act of 1958
(Space Act), as amended (42 U.S.C. § 2451 [et seq]{.underline}.), grants
NASA broad discretion in the performance of its functions. Specifically,
Section 203(c)(5) of the Space Act authorizes NASA:

> 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.[^1]

Arrangements concluded under the "other transactions" authority of the
Space Act are commonly referred to as Space Act Agreements (SAAs). NASA
uses this authority to enter into a wide range of agreements with
numerous entities to advance NASA mission and program objectives. The
Space Act also authorizes NASA to use its "other transaction" authority
to conduct international cooperative space activities under
international agreements.[^2]

[NASA Policy Directive (NPD) 1050.1H, "Authority to Enter into Space Act
Agreements"](http://nodis3.gsfc.nasa.gov/displayDir.cfm?t=NPD&c=1050&s=1H)
identifies organizational responsibilities, mandatory legal provisions,
delegation of signatory authority, and minimum organizational
concurrence requirements. NPD 1050.1H paragraph 5.g permits limited
redelegation of signatory authority in writing.[^3] This Space Act
Agreements Guide (Guide) has been issued as NASA Advisory Implementing
Instruction 1050-1 in support of NPD 1050.1H. This Guide provides
instructions and guidance for developing effective SAAs to meet the
needs of NASA and the other party to the SAA.[^4] Like NPD 1050.1H, this
Guide is applicable to NASA Headquarters and NASA Centers, including
Component Facilities. It is intended to facilitate commonality of SAA
terms, consistent practices and oversight of the process for entering
SAAs, and consistent treatment of partners and users of NASA facilities
throughout the Agency. Additional policy guidance and information is
available on the Space Act Agreement Community of Practice website
located on the Inside NASA portal[^5]

This Guide describes classes of SAAs organized according to the type of
activity and identity of the partner and identifies, in accordance with
NPD 1050.1H, requirements and provisions that must be in every SAA. It
makes no attempt, however, to assemble or reference subject
matter-related requirements for SAAs. Mission Directorates or program
offices typically have subject matter-related or other applicable
requirements for conducting specific scientific or technical activities,
which should be consulted.

**1.2. SPACE ACT AGREEMENT DEFINED**[]{#__RefHeading___Toc203815496
.anchor}

The term "agreement\" in its broadest context includes any transaction
the Space Act authorizes the Agency to conclude (*i.e.*, contracts,
leases, grants, cooperative agreements, or other transactions).
Agreements establish a set of legally enforceable promises between NASA
and the other party to the agreement, requiring a commitment of NASA
resources (including personnel, funding, services, equipment, expertise,
information, or facilities) to accomplish stated objectives.

As discussed in Sec. 1.1., this Guide focuses on agreements to be
concluded under NASA's "other transactions" authority of the Space Act,
specifically, transactions that generally cannot be concluded under
other statutory authority of the Agency. Thus, this Guide does not
address, for example, Grants[^6] and Cooperative Agreements[^7] under
the Federal Grants and Cooperative Agreements Act of 1977 (commonly
referred to as the Chiles Act) (*see* NPR 5800.1E, Grant and Cooperative
Agreement Handbook), Federal Acquisition Regulation contracts under the
Armed Services Procurement Act (10 U.S.C. § 2302), or real property
leaseholds, easements, permits, and licenses. Similarly, this Guide does
not address Cooperative Research and Development Agreements (CRADAs)
authorized by the Stevenson-Wydler Technology Innovation Act.[^8] In
general, SAAs are not subject to restrictions on or regulations
implementing these other statutory authorities.

This Guide categorizes SAAs according to the character of the partner
(*e.g.*, a public or private entity), whether U.S. or international law
applies, and by the character of the parties' financial obligations.
Under a **reimbursable** **agreement**, the partner pays for work NASA
conducts for the partner's benefit.[^9] Under a **nonreimbursable**
**agreement**, each party assumes responsibility for its own costs.[^10]
Under a **funded** **agreement**, NASA provides funding to the
partner.[^11]

**1.3. AGREEMENT FORMATION PROCESS**[]{#__RefHeading___Toc203815497
.anchor}

One of the principal purposes of this Guide is to foster consistent
practice in the formation of SAAs at all NASA Centers. To this end, this
Guide also prescribes procedures to expedite conclusion of SAAs.

*Note*: As used in this Guide, the phrase, "concluding an SAA," refers
to concluding the SAA formation process (initiation, negotiation,
review, and concurrence) by the parties executing (signing) the SAA, as
opposed to concluding the performance of the SAA by the parties
completing their responsibilities and milestones under the SAA.

*Role of Agreement Manager*[]{#__RefHeading___Toc203815498 .anchor}

Consistent with NPD 1050.1, Section 5.f., an "Agreement Manager" must be
identified for each SAA. The primary purpose of the Agreement Manager is
to shepherd the SAA through the process required to conclude an SAA in
accordance with NPD 1050.1H and this Guide (*i.e.*, initiation,
negotiation, review, concurrence, execution by the NASA signing
official, and storage of the signed version of the SAA in the Space Act
Agreements Maker (SAAM) database or other approved repository).

The Agreement Manager may be the individual responsible for SAA
formation (*e.g.*, providing a preliminary abstract for review by the
Office of Program and Institutional Integration (OPII), collecting
information needed during the SAA formation process, conducting
negotiations, and moving the SAA through the review and concurrence
cycle) or may act in a facilitator/oversight role to ensure SAAs are
concluded in accordance with NPD 1050.1H and this Guide. Centers have
flexibility to identify one or more individuals as Agreement Manager(s)
and to identify individuals to perform the functions identified below in
coordination with the Agreement Manager(s). Additionally, existing roles
established at Centers to facilitate SAA formation may perform the
function of, and be identified as, an Agreement Manager.[^12]

The Agreement Manager is responsible for performing the following tasks
(or ensuring that Center personnel identified for this role perform
these tasks):

1.  Collecting all data needed to initiate and conclude the SAA in a
    satisfactory manner, which requires that mutual expectations are
    established for NASA and the potential partner:

    -   Developing and circulating any abstract information required to
        support the preliminary abstract review process (*see below*),

    -   completing the information in the Space Act Agreement
        questionnaires (*see* [Appendix 1](#Appendix1); also available
        through the Space Act Agreement Maker (SAAM) website) that
        provide information necessary to define the parties'
        responsibilities and establish the terms and provisions of the
        SAA,

    -   determining resource availability (funding, services, equipment,
        expertise, information, and facilities),

    -   identifying the funding source for NASA's responsibilities,

    -   validating viability of the potential partner's proposed
        business case, and

    -   setting mutually agreed processing times;

    -   determining when an SAA has been sufficiently reviewed within
        NASA that it can be shared with the potential SAA partner.

2.  Identifying offices or individuals whose concurrence is required for
    conclusion of the SAA and establishing a schedule for review by
    those offices or individuals. To that end, the Agreement Manager
    must maintain a system for tracking and documenting the time
    required for each phase of the review;

3.  Monitoring the SAA formation process to ensure NASA meets the
    pre-established expectations/deadlines of the parties; and

4.  Preparing an adequate "review package" for the NASA signing
    official.

5.  Uploading the signed version of the SAA in SAAM or other approved
    repository.

The Agreement Manager should carry out his or her responsibilities with
the following guidance in mind.

The Agreement Manager should facilitate the fair and consistent
conclusion of SAAs. From the perspective of both NASA and its potential
partners, it is important that fairness and consistency guide the
initiation and execution of all SAAs. Federal ethics laws and Standards
of Conduct require that NASA employees avoid unjustifiable favoritism,
whether actual or perceived, in dealing with potential partners. Since
signed SAAs are nearly always available for public review, outside
entities may judge the fairness of NASA treatment of partners by
comparing similar SAAs. Similarly situated persons should be treated
alike. However, sometimes there are valid and important reasons for
special terms and conditions offered to a particular partner. For
example, circumstances may exist that warrant exclusivity (*see* Sec.
2.2.8). If, however, a proposal confers preferential treatment on a
partner, whether actual or perceived, provides for 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 Office of the General Counsel or Chief Counsel, as
appropriate.

*The Preliminary Abstract Review Process*[]{#__RefHeading___Toc203815499
.anchor}

The Office of Program and Institutional Integration (OPII) is
responsible for coordinating the NASA-wide preliminary review of
proposed Space Act Agreement activities which have a significant impact
on the Agency (*described below*).[^13] Accordingly, Centers and
Headquarters offices proposing to initiate certain Space Act Agreements
must forward abstracts of key information to OPII[^14] prior to
negotiating or committing to any such agreements.

1\. Required Content for Abstracts:

Abstracts should include the following information, to the extent
applicable, in addition to any other information the initiator considers
relevant to facilitate OPII\'s review. Abstracts are typically 1 -- 2
pages:

\(a\) overall description of proposed activity/activities, type of
Agreement proposed and applicable authority, responsible NASA personnel,
intended Agreement Partner (including beneficiaries of the activity),
and indication of whether the intended partner or other beneficiaries of
the activity are foreign entities;

\(b\) responsibilities of NASA and the Agreement Partner;

\(c\) performance, or other milestones;

\(d\) financial commitments by NASA or the Agreement Partner;

\(e\) resource commitments (personnel, facilities, and equipment) by
NASA or the

Agreement Partner

-   for all SAAs, an estimate of the number of NASA civil service
    full-time equivalents and NASA contractor work-year equivalents to
    be committed for each year of the activity, description of skill
    categories, and a description of any NASA facilities and key
    equipment or assets to be committed;

-   for reimbursable SAAs, a description of how the NASA goods,
    services, and facilities to be committed are unique and not
    otherwise available on the U.S. commercial market from another
    source;

\(f\) a description of the applicable data rights provisions, if
anticipated to vary from the recommended language (this information is
especially important for any proposed activities with or "for the
benefit of" a foreign entity)[^15];

\(g\) proposed term of Agreement;

\(h\) affected NASA Headquarters Mission Directorate(s), Headquarters
Mission Support Offices, or other Centers, if any; and

\(i\) a description of how the proposed activities support NASA
missions.

Upon receipt of the abstract, OPII will review the proposed activity to
ensure Agency awareness and coordination of SAA activities. This review
will be coordinated with other affected or interested Headquarters
organizations including the Mission Directorates, the Office of External
Relations (OER), the Office of the General Counsel, and other applicable
Mission Support Offices, as well as affected Centers. OPII will either
approve proceeding with the activity based on the information in the
abstract, or may request more information to complete its review. OPII
will facilitate timely resolution of any issues with a commitment to try
and complete its review process within five (5) business days. After
OPII approval of the activity and prior to concluding the Agreement, the
Agreement Manager is responsible for making OPII aware of any
significant changes to the proposed activity, parties, terms and
conditions.

2\. Qualifying SAAs

Preliminary abstract review is required for all proposed Space Act
Agreement activities (including Umbrella Agreements, Annexes, and SAAs
concluded under specialized agreement titles) that could have a
significant impact on the Agency. In determining which activities may
have a significant impact on the Agency, initiating offices should
follow the guidelines below. These guidelines are intended to minimize
the burden on initiating offices by excluding certain types of
activities where the risk from those activities is minimal. In those
cases when OPII review is not mandatory, initiating offices are expected
to use their judgment, based on the guidelines, in determining when
abstracts should be submitted for OPII review.

3\. Guidelines for Submission of Abstracts for OPII Review

\(a\) SAAs requiring OPII review:

• Involve foreign entities, either directly as a partner, or indirectly
(e.g., the activity is "for the benefit of" a foreign entity, pursuant
to NPD 1370.1)

-   Involve the commitment of NASA resources\--whether facilities,
    equipment, or critical personnel skills\--identified by one or more
    Mission Directorates as "essential resources" for NASA mission
    work[^16];

-   Involve activities that are under the jurisdiction of a Headquarters
    office or a Center other than the originating Center (e.g., Center
    requests for microgravity research activities, which are under the
    cognizance of the Headquarters Shared Capabilities Assets Program).

\(b\) SAAs generally requiring OPII review:

• Involve activities that are likely to be newsworthy. (Is a press
release anticipated by NASA or the Agreement Partner)?

• Involve activities that may receive industry attention.

• Has a direct impact on a NASA Mission Directorate's activities,
assets, or planning processes.

• Other government entities are involved or likely to be affected.

• Requires a large budget.

• Resultant agreement is anticipated to include unusual waivers (cost or
policies).

• Involve novel agreement types or activities.

\(c\) SAAs generally not requiring OPII review:

• Renewals or extensions of existing routine, previously vetted
agreements with U.S. partners.

• Agreements for routine, previously vetted activities with U.S.
partners with whom NASA has worked repeatedly in the past.

\(d\) SAA's requiring a waiver of review

• For certain categories of historical or long-established activities
(for example, astronaut appearances, GSFC-NOAA work, wind tunnel test
services for American industry or non-Federal governmental entities),
preliminary abstract review may be waived. A waiver is granted based on
a consideration of minimal risk to the Agency. Centers should send
waiver requests to OPII for consideration, explaining their rationale
for why these categories present minimal risk and should not require
preliminary review.

As a \"rule of thumb,\" when in doubt, initiating offices should forward
abstracts to OPII for review.

*Space Act Agreement Review and
Concurrence*[]{#__RefHeading___Toc203815500 .anchor}

The Agreement Manager is responsible for facilitating the review and
concurrence cycle for all SAAs within his or her area of responsibility.
Thus, a primary responsibility of the Agreement Manager is to ensure
timely involvement, review, and approval by required NASA reviewing
offices. To this end, the Agreement Manager works to ensure that
reviewing offices are aware of agreed processing deadlines and comply
with them. Those responsible for reviewing agreements should utilize a
system for tracking and documenting the dates associated with their
review. If for any reason the review will be delayed (*e.g.*, due to
inadequate information regarding the understanding of the parties with
regard to key issues, complexity of the transaction, or competing
workload priorities), they should provide prompt written notice to the
Agreement Manager explaining the cause of the delay and providing an
estimate of the time necessary to complete review. Failure to involve
affected Directorate or Program offices, leadership at affected Centers,
resource providers (*i.e.*, personnel, funding, services, equipment,
expertise, information, and facilities providers), and key mission
support offices (particularly the offices of the Chief Financial
Officers, the General Counsel or Chief Counsel, as appropriate, and
Export Control, where applicable) can often delay development and
execution of SAAs. Consequently, early involvement of these offices in a
transaction -- in addition to any written concurrence required to
conclude an SAA -- is strongly encouraged.

In particular, the Agreement Manager(s) should ensure early coordination
with:

1.  The Office of Program and Institutional Integration (OPII) for
    preliminary abstract review (if required).

2.  The Office of the General Counsel (for Headquarters Agreements) or
    Chief Counsel (for Center Agreements).

    -   Early coordination is critical to developing a legally
        sufficient SAA in a timely manner. NASA attorneys provide advice
        and counsel related to all aspects of proposed transaction in
        addition to determining legal sufficiency; however, the final
        business decision is a functional responsibility of the NASA
        signing official. NASA attorneys also provide sound legal
        guidance on appropriate and effective means for structuring
        transactions to meet NASA's needs.

    -   In accordance with NPD 1050.1H, all SAAs must have legal review
        prior to execution. However, the officials authorized, in NPD
        1050.1H, to execute, amend, and terminate Agreements may
        establish guidelines for when SAA drafts may be provided to a
        prospective partner for initial review (but not execution) prior
        to legal review (e.g., pre-established categories of routine
        agreements or agreements with no changes to pre-established
        clauses).

    -   The Agreement Manager should determine, among other things,
        whether a proposed SAA falls under the pre-established
        guidelines for agreements not requiring legal review of initial
        agreement drafts or if it requires legal review before an
        initial draft can be transmitted to a prospective partner for
        review.

3.  NASA Headquarters officials and Center Chief Financial Officers
    (CFOs) responsible for reviewing NASA's proposed resource
    commitments under reimbursable and funded SAAs.

    -   In accordance with NPD 1050.1H, and as detailed in Sections 1.5,
        1.6 and 2.2.6 of this Guide, estimates of the value of the NASA
        resources (including cost estimates) to be committed under
        reimbursable and funded SAAs must be prepared before NASA may
        enter such SAAs.

    -   These estimates must be reviewed by the Director for
        Headquarters Operations (for Headquarters Reimbursable SAAs),
        the NASA CFO (for Headquarters Funded SAAs), or the Center CFOs
        (for Center Reimbursable and Funded SAAs).

    -   These estimates are the basis for NASA financial management
        officials to ensure that proposed NASA funding is available and
        for NASA signing official to determine whether proposed funding
        and resource to be contributed by NASA are fair and reasonable
        in light of NASA program risks, the corresponding benefits to
        NASA, and the funding and resources to be contributed by the
        partner.

4.  The Facilities Engineering and Real Property (FERP) Division for any
    SAA that includes the use of NASA buildings and facilities by the
    SAA Partner. Discussions with the Center facilities office, as
    appropriate will facilitate FERP's review process.

    -   Early coordination is critical to ensure the SAA provides
        appropriate levels of use and includes any required provisions.
        For example, if a facility is to be provided to a Partner under
        an exclusive-use arrangement, a separate facility use agreement
        is required.

        *Space Act Agreement
        Recordkeeping*[]{#__RefHeading___Toc203815501 .anchor}

The Agreement Manager is responsible for uploading the signed version of
the SAA in SAAM, or in the alternative, be able to verify the location
of all final, signed copies of Agreements under their jurisdiction. For
International Agreements and Agreements with other U.S. Federal
agencies, the Agreement Manger also must provide a copy of the executed
Agreement to the Assistant Administrator for External Relations.[^17]

**1.4. NONREIMBURSABLE AGREEMENT**[]{#__RefHeading___Toc203815502
.anchor}

Nonreimbursable SAAs involve "NASA and one or more partners in a
mutually beneficial activity that furthers NASA's mission, where each
party bears the cost of its participation and there is no exchange of
funds between the parties."[^18] They permit NASA to offer time and
effort of personnel, support services, equipment, expertise,
information, or facilities. It is appropriate to use a nonreimbursable
SAA where NASA and its partner(s) are performing activities
collaboratively for which each is particularly suited and for which the
end results are of interest to both parties. Since nonreimbursable SAAs
involve the commitment of NASA resources, the respective contributions
of each partner must be fair and reasonable under the circumstances.
Each NASA signing official is responsible for determining that each SAA
within his/her area of jurisdiction has been properly reviewed
consistent with NPD 1050.1H. Before executing an SAA, the NASA signing
official is responsible for determining that the partner's contribution
provides an adequate *quid pro quo* when compared to NASA's
contribution. Therefore, in accordance with NPD 1050.1H, before NASA may
enter a nonreimbursable SAA, a cost estimate of the value of the NASA
resources to be committed under the SAA must be prepared so that the
signing official has a basis for determining that the proposed
contribution of the partner is fair and reasonable when compared to the
NASA resources to be committed, NASA program risks, and corresponding
benefits to NASA. To make such a determination, obtaining an estimate of
the value of the potential partner's resources to be committed under the
SAA is ordinarily appropriate. *See* section 2.2.6 herein for additional
guidance.

All nonreimbursable SAAs with domestic, non-governmental entities should
be titled "Nonreimbursable Space Act Agreement." At the request of a
U.S. state or Federal Government entity, a Nonreimbursable SAA with that
entity may be titled "Memorandum of Agreement" (MOA) or "Memorandum of
Understanding" (MOU). Additionally, in certain situations, specialized
titles have been used to denote specific types of agreements (*see*
sections 1.8 and 2.2.1 herein). The title of the agreement is not
determinative. What is important is understanding the respective
commitments and responsibilities of the parties.

**1.5. REIMBURSABLE AGREEMENT**[]{#__RefHeading___Toc203815503 .anchor}

Reimbursable SAAs are agreements where NASA costs associated with the
undertaking are reimbursed by the partner. A reimbursable SAA permits
the partner to use NASA facilities, personnel, expertise, or equipment
to advance the partner's own interests. NASA undertakes reimbursable
SAAs when it has unique goods, services, or facilities, which can be
made available to another party in a manner that does not interfere and
is consistent with NASA mission requirements. All reimbursable SAAs are
subject to the provisions of NASA financial management policy for
determining, allocating, and billing costs. These requirements are
contained in NASA Financial Management Requirements (FMR) Vol. 16,
Reimbursable Agreements. Additionally, before a reimbursable SAA is
executed, a cost estimate for the undertaking must be prepared and
reviewed by the NASA Director for Headquarters Operations (for
Headquarters Agreements) or Center CFOs (for Center Agreements).

Reimbursable SAAs with, or for the benefit of, foreign entities need to
be coordinated with, and receive the concurrence of, the NASA
Headquarters Office of External Relations and the relevant Mission
Directorate(s). Such reimbursable agreements must advance one or more of
NASA's objectives as described in the Space Act. In addition, among
other requirements, such reimbursable SAAs must meet one of 3
conditions:

\[1\] Sustain or enhance facilities and lower operational costs for
current and future needs of NASA's missions; \[2\] Sustain or enhance
skills that are or are projected to be needed to support NASA's mission;
\[3\] Sustain or enhance a functional area not adequately funded by NASA
programs but required for current or future support of NASA's
missions.[^19]

Because NASA typically does not share the benefits of reimbursable use
of NASA facilities (*e.g.,* sharing in intellectual property or data
rights)[^20], the partner is generally charged full cost for the
activity. However, NASA has statutory authority under the Space Act to
provide reimbursable services without recovering full cost *(i.e.*,
partial reimbursement). For example, facilities may be offered at
market-based pricing or on another basis in accordance with NASA
financial management policies.

Also, if NASA is obtaining rights to intellectual property or data or
some other benefit, there is, at a minimum, a presumptive NASA interest
that may justify NASA's acceptance of reimbursement for less than the
full cost of its activities performed under the SAA (*i.e.*, partial
reimbursement). In such cases, as with nonreimbursable agreements, the
NASA signing official is responsible for determining that the partner's
contribution provides an adequate *quid pro quo* when compared to NASA's
contribution. Therefore, in accordance with NPD 1050.1H, before NASA may
enter a reimbursable SAA where NASA is reimbursed for less than the full
cost of its activities (partial reimbursement), the NASA signing
official must determine that the proposed contribution of the partner is
fair and reasonable when compared to the NASA resources to be committed,
NASA program risks, and corresponding benefits to NASA. *See* section
2.2.6 herein for additional guidance.

Additionally, statutes other than the Space Act govern reimbursable
agreements for specified types of facilities or activities. When such
statutes prescribe the costs that may or must be recovered from the
reimbursable customer, those requirements control rather than NASA's
more general authority under the Space Act. Such separate statutory
authority includes, but is not limited to, the Commercial Space Launch
Act (49 U.S.C.

§ 70111), Commercial Space Competitiveness Act (15 U.S.C. § 5807), and
the Unitary Wind Tunnel Plan Act (50 U.S.C. § 573) and 14 C.F.R. Part
1210 relating to wind tunnels.

A determination to charge less than full cost should: (1) be
accomplished consistent with NASA's written regulations and policies,
(2) articulate the market pricing analysis, benefit to NASA, or other
legal authority that supports less than full cost recovery, and (3)
account for recovered and unrecovered costs in accordance with NASA
financial management policy.

Two threshold considerations must be satisfied before NASA can provide
reimbursable services. The proposed activity must: (1) be consistent
with NASA's mission and (2) involve facilities or services not
reasonably available on the U.S. commercial market from another source.

The second element of the above policy is grounded in statute and
Executive Branch policy directed at avoiding competition by the Federal
Government with the private sector. For example, the U.S. National Space
Policy (August 31, 2006) directs the Federal Government to use
commercial capabilities and services to the maximum practical extent and
to refrain from conducting activities that preclude, deter, or compete
with U.S. commercial space activities, unless required by national
security or public safety. The Commercial Space Competitiveness Act (15
U.S.C. § 5807) states that the Government, including NASA, may allow
non-Federal entities to use space-related facilities on a reimbursable
basis if equivalent commercial services are not available on reasonable
terms. Thus, legal or policy considerations may affect the circumstances
in which the Agency can make its facilities or services available if
commercial services are otherwise available.[^21]

An example of unacceptable competition with the private sector would
occur if NASA were requested to review a company's engineering plans for
soundness and technical feasibility, a service provided by a number of
commercial entities. Thus, as a general matter, where NASA is requested
to provide a service that it obtains for itself through a contract with
a private firm, it should decline to provide that service under a
reimbursable SAA. Exceptions, however, do occur. For example, if NASA
has contracted for a service such as training and another agency or
entity wants to participate in that training, then a reimbursable SAA
may be used. Another example could involve contracting activities that
are expressly required as a condition of cooperation with an
international partner pursuant to an international agreement. Any
contemplated exceptions must be coordinated with the Office of the
General Counsel or Chief Counsel, as appropriate.

More broadly, the structuring of reimbursable SAAs often involve fiscal,
legal, and policy issues that require substantial involvement of the
offices of the NASA CFO (for Headquarters Agreements) or Center CFOs
(for Center Agreements), as well as the Office of the General Counsel or
Chief Counsel, as appropriate. Thus, early consultation with these
offices is recommended.

**1.6. INTERNATIONAL AGREEMENT**[]{#__RefHeading___Toc203815504 .anchor}

International SAAs are Nonreimbursable SAAs or Reimbursable SAAs in
which the partner is a legal entity that is not established under a
state or Federal law of the United States and includes a commercial,
noncommercial, or governmental entity of a foreign sovereign or a
foreign person.[^22] An International Agreement is used by NASA to
establish bilateral or multilateral arrangements to conduct aerospace
activities with foreign governments, foreign governmental entities,
international organizations, foreign entities, or foreign persons. One
category of International Agreements merits special attention --
executive agreements. NASA is required by the Case-Zablocki Act (1
U.S.C. § 112(b)) and its implementing regulations (22 CFR Part 181) to
consult with the State Department with respect to each proposed
International Agreement with a foreign government, foreign governmental
entity, or international organization, that is "significant" and
intended to be binding under international law. State Department
authorization to negotiate and conclude international agreements is
provided through its "Circular 175 process." This process requires State
Department coordination of the draft agreement with other interested
U.S. Government agencies. The Act and regulations further require that
the State Department report each such international agreement to
Congress within 60 days after its entry into force.

[NPD 1360.2A: "Initiation and Development of International Cooperation
in Space and Aeronautics
Programs"](http://nodis3.gsfc.nasa.gov/displayDir.cfm?Internal_ID=N_PD_1360_002A_&page_name=main&search_term=1360)
provides specific policy and procedural guidelines for entering into
international cooperative agreements. Specific guidance regarding
International Agreement provisions and the procedures and practice
regarding formation of International Agreements is set forth in Chapter
4.

**1.7. FUNDED AGREEMENT**[]{#__RefHeading___Toc203815505 .anchor}

Funded SAA are agreements under which appropriated funds are transferred
to a domestic partner to accomplish an Agency mission. Funded SAAs
should only be used when the Agency objectives cannot be achieved
through any other agreement instrument, such as a Federal procurement
contract, a Grant or Cooperative Agreement under the Federal Grants and
Cooperative Agreements Act of 1977 (Chiles Act), or a reimbursable or
nonreimbursable SAA. Prior to using a funded SAA, the Center Director or
Mission Directorate Associate Administrator must determine, in
consultation with the Office of the General Counsel or Chief Counsel, as
appropriate, and the Chief Financial Officer, that a funded SAA is the
appropriate legal instrument for the activity. Additionally, in
accordance with NPD 1050.1H, before NASA may enter into a funded SAA, a
cost estimate of the funding and, as appropriate, the value of any other
NASA resources to be committed under the SAA, must be prepared and
reviewed by the NASA CFO (for Headquarters Agreements) or Center CFOs
(for Center Agreements) so that the NASA signing official has a basis
for determining whether NASA's proposed contribution is fair and
reasonable when compared to NASA program risks, corresponding benefits
to NASA, and the funding and resources to be contributed by the partner.

**1.8. SPECIALIZED ACTIVITIES AGREEMENT
TITLES**[]{#__RefHeading___Toc203815506 .anchor}

Within NASA, certain SAAs have evolved to denote specific types of
activities that are commonly known by descriptive names and may provide
a useful template for drafting a new SAA. These agreement types
authorize either reimbursable or nonreimbursable activities and, as
such, are subject to the policies and requirements applicable to their
respective agreement categories. The following list of current or
previously used agreement types is not exhaustive nor is NASA restricted
in its use of descriptive agreement titles.

**1.8.1. UMBRELLA AGREEMENT (ANNEX)**[]{#__RefHeading___Toc203815507
.anchor}**:** provides a mechanism for NASA and a Partner to agree to a
series of related or phased activities using a single governing
instrument that contains all common terms and conditions, and
establishes the legal framework for the accompanying Annexes. Individual
tasks are implemented through Annexes adopting the terms and conditions
of the Umbrella Agreement and adding specific details for each task. For
example, an Umbrella Agreement may be advisable where the parties
anticipate repeated activities performed under an SAA, such as
repetitive testing or analysis, but have not yet determined the extent
of such activities. The benefit of using an Umbrella Agreement is that
it allows the parties to proceed with initial tasks and add additional
related tasks as the activity progresses, without requiring an
additional SAA or a formal modification to the underlying Umbrella
Agreement. An Umbrella Agreement with accompanying Annexes also may be
appropriate when a decision about whether to proceed with later-planned
partnership activities depends on the results of earlier activities. In
that case, the scope of the project would be defined in the Umbrella
Agreement providing that the earlier activities are defined in an
initial Annex, with later activities added through additional Annexes,
as warranted.

Each Annex should be limited to those elements of the SAA, which would
appropriately vary from task to task -- this could include funding
levels, specific responsibilities, milestones and schedules, responsible
technical representatives, or identification of affected NASA
facilities. It is not appropriate, however, to use Annexes to modify the
terms of the Umbrella Agreement itself. An Umbrella Agreement should not
be used if all anticipated Annexes cannot be carried out under a single
set of terms and conditions. Similarly, an Annex should not be added to
an Umbrella Agreement if that Annex would require modification to the
Umbrella Agreement to comply with this Guide. For example, if an Annex
requires that the intellectual property or liability clauses in the
Umbrella Agreement be modified to accommodate the planned task, then a
separate SAA would be necessary to accommodate that particular task. In
addition, it is not appropriate to execute Annexes for unrelated
activities under a single Umbrella Agreement. For example, conducting a
series of cosponsored educational workshops using Annexes under a
nonreimbursable Umbrella Agreement would be appropriate where the
workshops were planned to be conducted under the same terms and
conditions as defined in the Umbrella Agreement. However, it would not
be appropriate to put an Annex in place for a cosponsored educational
workshop and for a collaborative development activity under the same
nonreimbursable Umbrella Agreement because of the different legal terms
that would apply to the two types of activities. Questions regarding
whether a single Umbrella Agreement will support the range of activities
contemplated with a particular partner should be referred to the HQ
Office of General Counsel or Center Office of Chief Counsel, as
appropriate.

Umbrella Agreements and accompanying Annexes are subject to the
requirements that apply to SAAs generally. These requirements include:

1.  Each Umbrella Agreement should be designated as either reimbursable
    or nonreimbursable. Because the basic terms and conditions of
    reimbursable SAAs are different from those of nonreimbursable SAAs,
    it is not appropriate to put a reimbursable Annex under a
    nonreimbursable Umbrella Agreement, or vice versa. If the planned
    activities to be implemented under the Umbrella Agreement will
    require both reimbursable and nonreimbursable terms, separate SAAs
    are required for the reimbursable and nonreimbursable activities.
    (Partially reimbursable Umbrella Agreements are treated as
    reimbursable SAAs wherein NASA has agreed to waive certain costs.
    See Sec. 1.5.)

2.  Each executed Umbrella Agreement must include at least one executed
    Annex. This is required to satisfy the requirements of NPD
    1050.1H(e) which specifies that all SAAs must include
    responsibilities or performance milestones that are stated with
    sufficient clarity to support preparation of cost estimates, sound
    management planning, and efficient SAA administration.

3.  Each Annex under an Umbrella Agreement is subject to the same
    reviews and approvals (including the preliminary abstract review, if
    applicable) as the initial Umbrella Agreement.

4.  Each Umbrella Agreement and Annex must have a designated Agreement
    Manager who is responsible for the administration of the Agreements
    as specified in NPD 1050.1H and section 1.3 of this Guide.

5.  Each nonreimbursable Annex must be based on an appropriate quid-
    pro-quo (See Sec. 1.4) and each reimbursable Annex must include an
    appropriate cost estimate. (See Sec. 1.5.)

6.  Each Umbrella and Annex must be signed by a responsible Signing
    Official as identified in NPD 1050.1H.

The approach for Umbrella Agreements and Annexes are generally the same
as those entered into with private parties. Therefore, the guidance and
clauses in Chapter 2 should be utilized, unless the subject area is
separately discussed, below. Each Umbrella Agreement should include the
standard Agreement Sample Clauses provided in Chapter 2 unless a
specific Umbrella Agreement Sample Clause is provided: Purpose and
Implementation (sample clause 2.2.3.2), Responsibilities (sample clause
2.2.4.3), Schedule and Milestones (sample clause 2.2.5.2), Financial
Obligations (sample clause 2.2.6.3, for reimbursable SAAs only), and
Right to Terminate (sample clauses 2.2.15.4 and 2.2.15.5).

Annexes should include only the following clauses: Title (sample clause
2.2.1.3), Responsibilities (sample clause 2.2.4.4), Schedule and
Milestones (sample clause 2.2.5.3), Financial Obligations (sample clause
2.2.6.4, for reimbursable SAAs only), Term (sample clause 2.2.14.2),
Technical Points of Contact (sample clause 2.2.17.2), Loan of Government
Property (sample clause 2.2.24, if applicable) and Signatory Authority
(sample clause 2.2.26).

**1.8.2. TECHNICAL EXCHANGE AGREEMENT
(TEA)**[]{#__RefHeading___Toc203815508 .anchor}***:*** provides a
partner access to substantial amounts of publicly available information
on an ongoing basis, for a specified period of time and in a particular
area of interest, without having to file a request under the Freedom of
Information Act (FOIA). TEAs are frequently used by the partner to
assess the desirability of entering into an SAA with NASA in the future.

**1.8.3. LAUNCH SERVICES AGREEMENT
(LSA)**[]{#__RefHeading___Toc203815509 .anchor}**:** provides the terms
under which a payload or instrument can be flown on the Space Shuttle or
a NASA expendable launch vehicle.

**1.8.4. SPACE STATION UTILIZATION AGREEMENT
(SSUA)**[]{#__RefHeading___Toc203815510 .anchor}**:** provides for the
sale or barter of utilization allocations for the Station. These
agreements are generally with another ISS Partner or Cooperating Agency,
or other foreign or domestic entity. Examples of resources that may be
transferred pursuant to an SSUA include, but are not limited to, crew
time, access to experiment modules, accommodation of equipment in U.S.
facilities, and other research opportunities. All SSUAs must be
consistent with the ISS Inter-Governmental Agreement (IGA), applicable
MOUs, and other implementing arrangements.

**1.8.5. SPACE SYSTEMS DEVELOPMENT AGREEMENT
(SSDA)**[]{#__RefHeading___Toc203815511 .anchor}**:** provides
first-time entrants in space launch services at a reduced price. Under
NASA policy, only U.S. domestic companies are eligible for these
arrangements, which include special provisions applicable to the
development phase of the new venture. Such special provisions, which are
incorporated into a launch services agreement, might include a deferred
payment schedule, special access to facilities, or a waiver of late
fees.

**1.8.6. JOINT ENDEAVOR AGREEMENT (JEA)**[]{#__RefHeading___Toc203815512
.anchor}**:** provides a U.S. entity that is developing a new space
process or product access to NASA facilities or services at a reduced
price. It is used primarily with companies that have committed resources
and are in active product development stages. The JEA is a cooperative
working arrangement under U.S. law that gives these firms access to NASA
facilities and services, and, in return, NASA receives the right to use
the data resulting from the commercial research efforts for its own use.

**1.8.7. LOAN OF EQUIPMENT**[]{#__RefHeading___Toc203815513
.anchor}**:** provides a mechanism for NASA to borrow or lend equipment.
The loan agreement should identify the collaborative area of interest,
include the respective roles and responsibilities of each party, include
a list of the items to be provided, specify the duration of the loan,
and impose certain obligations commonly found in a loan agreement,
including the care and return of lended hardware. Sometimes, the terms
of the loan may be included in an SAA covering a collaboration for which
the equipment loan is merely one element of the respective roles and
responsibilities of NASA and the partner (*see* Sec. 2.2.24).

**1.8.8. REIMBURSABLE TRAVEL**[]{#__RefHeading___Toc203815514
.anchor}**:** provides for reimbursement to NASA for travel and
subsistence of NASA personnel supporting an outside party's activities.
Pursuant to [NPD
9710.1T](http://nodis3.gsfc.nasa.gov/displayDir.cfm?t=NPD&c=9710&s=1T),
certain delegated officials are authorized to enter into such
reimbursable arrangements when it is determined to be in the best
interests of NASA. The actual reimbursement procedures to be followed
are contained in [FMM 9700](http://www.hq.nasa.gov/fmm/9700/9700.pdf),
Chapter 301. These reimbursements must be distinguished from gifts of
travel and travel expenses from foreign governments which must be
accepted and reported in accordance with 5 U.S.C. § 7342. Another type
of travel reimbursement to be distinguished from reimbursable travel
under an SAA is reimbursement of travel and related expenses with
respect to attendance at a meeting or similar function that must be
accepted and reported in accordance with 31 U.S.C. § 1353 and
implementing regulations found at 41 C.F.R. Part 304. Under this
authority, "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. Because of sensitive concerns
surrounding payment of travel and gift rules, these agreements should be
coordinated with NASA's ethics officials in the Office of the General
Counsel or Chief Counsel, as appropriate.

**1.8.9. SOFTWARE USAGE AGREEMENT (SUA)**[]{#__RefHeading___Toc203815515
.anchor}**:** provides a mechanism for NASA HQ or a NASA Center
authorizing the release and use of software created by or for NASA.
External release of NASA software must comply with NPR 2210. The SUA is
the legal document issued by NASA that defines the terms and conditions
of release (including any restrictions on use and disclosure of the
software). An SUA is a unilateral agreement, formed by the exchange of a
promise (recipient\'s promise to abide by the terms of the SUA) for an
act (NASA\'s transfer of software to the recipient), that binds the
recipient to certain stipulations in order to receive software from
NASA. The SUA must be signed or otherwise agreed to (*e.g.*, click wrap
license) by the recipient before NASA may provide the software to the
recipient.

**1.9. NON-AGREEMENTS**[]{#__RefHeading___Toc203815516 .anchor}

NASA personnel often reach mutual understandings with non-NASA parties
that are intended to document programmatic objectives and are important
to the execution of joint activities. These understandings are sometimes
called "agreements" or "program agreements." Some even describe or
anticipate the provision of goods or services. Examples include:

-   Letter of Intent

-   Protocol

-   Agreement in Principle

-   Technology Plan

-   Program Plan

-   Action List

-   Meeting Minutes

-   Working Group Minutes

Such non-binding "pre-agreements" or program understandings may become
binding if they are incorporated by reference in an SAA or if an
existing SAA clearly authorizes managers, points of contact, or other
NASA officials to conclude legally binding subordinate agreements.
Otherwise, they are generally not legally binding and should not be
portrayed as having legal effect. If an agreement has not been concluded
in accordance with appropriately delegated authority under [NPD
1050.1H](http://nodis3.gsfc.nasa.gov/displayDir.cfm?t=NPD&c=1050&s=1H),[^23]
it may not be enforceable. It is not possible for an individual without
appropriate authority to create a legally binding agreement.[^24]

[]{#Appendix1 .anchor}**APPENDIX 1. AGREEMENT
QUESTIONNAIRE**[]{#__RefHeading___Toc203815517 .anchor}

1\. OVERVIEW[]{#__RefHeading___Toc203815518 .anchor}

The following annotative Agreement Questionnaire is provided for your
reference. It is organized by general topic. The general topics of the
Agreement Questionnaire are: Proper Legal Instrument, Administrative,
Financial, Liability and Mishap Investigations, and Intellectual
Property and Data Rights. *(References listed with the Questions below
refer to sections in this Guide)*.

2\. QUESTIONNAIRE[]{#__RefHeading___Toc203815519 .anchor}

2.1 Proper Legal Instrument

The answers to the questions in this subsection will be forwarded to the
cognizant attorney in the Office of General or Chief Counsel who will
determine if an SAA is the proper legal instrument for the proposed
activity.

2.1.1 Does the proposed activity require a commitment of NASA resources
(including personnel, funding, services, equipment, expertise,
information, or facilities)?

*(Reference: Section 1.2, "Space Act Agreement Defined")*

[Rationale/Comments]{.underline}: SAAs may only be used when the Agency
is not otherwise required to use a procurement contract, grant or
cooperative agreement to achieve the Agency's objective.[^25] An SAA is
required any time NASA resources (personnel, funding, services,
equipment, expertise, information or facilities) will be committed to a
project. Conversely, if there is no requirement for the commitment of
NASA resources, an SAA is generally not required.

2.1.2 Is there a demonstrable NASA mission (e.g., program requirement)
or specific statutory authority related to the proposed activity? If
yes, please identify.

*(Reference: Sections 1.1, 1.4, 1.5, and 1.6, "Authority and Policy,"
"Nonreimbursable Agreement," "Reimbursable Agreement," and "Funded
Agreement," respectively).*

[Rationale/Comments]{.underline}: NASA uses its "Other Transactions"
authority to enter into a wide range of SAAs with a variety of entities
to advance NASA's numerous mission and program objectives as well as
implement specific statutory authority, such as those described in
Section 1.5, fifth paragraph. The degree of synergy between the proposed
activity and the relevant NASA mission can be used to evaluate NASA's
interest in the activity and, in some circumstances, determine the
appropriate level of reimbursement. If there isn't a demonstrable NASA
mission or specific statutory authority related to the activities of the
proposed SAA, NASA should (in all likelihood) not become involved in the
proposed activity. Any interest in pursuing an SAA under those
circumstances requires coordination with the Office of General/Chief
Counsel as soon as possible.

2.1.3 Does this project continue an effort previously performed or
currently performed under a preexisting arrangement with a Partner? If
yes, please identify the instrument(s) (e.g., contract, grant,
cooperative agreement, or SAA).

[Rationale/Comments]{.underline}: If the proposed activity was
originally performed under a preexisting legal instrument, it may be
advisable to use the same instrument (if the instrument is still active)
or the same type of legal instrument (if the instrument is not active)
for the proposed activity.

2.1.4 Will NASA be involved in the performance of the proposed SAA?

[Rationale/Comments]{.underline}: For Fully Reimbursable SAAs, Partially
Reimbursable SAAs, and Nonreimbursable SAAs, NASA should be involved in
the performance of the proposed SAA activities. For the purpose of this
question, lending NASA equipment or "leasing" of NASA property
constitutes NASA involvement. If NASA is not involved in performance, a
procurement contract or grant should be strongly considered. In very
limited circumstances, a funded SAA may be the proper instrument.

2.1.5 Does NASA [require]{.underline} the delivery of any item (e.g.,
service, hardware, software, composition) under the proposed SAA [to
perform its mission]{.underline}?

[Rationale/Comments]{.underline}: If NASA [requires]{.underline} an item
to perform its mission, a procurement contract is strongly preferred
based on the Competition in Contracting Act (CICA), as well as guiding
principles in the Federal Grants and Cooperative Agreement Act of 1977,
and the National Space Policy. Alternatively, if the delivery of an item
is related to advanced or alternate research and development in that the
item is [not]{.underline} baselined in NASA's mission plans, an SAA
becomes a more viable option.

2.1.6 Are the proposed NASA contributions unique to NASA, i.e.,
developed in-house and not generally available on reasonable terms from
the commercial market from any source (including NASA contractors)?

*(Reference: Section 1.5, "Reimbursable Agreement," and Section 4.4,
"International Reimbursable Agreements")*

[Rationale/Comments]{.underline}: As a matter of policy, NASA does not
compete with the private sector. This policy is grounded in statute and
Executive Branch policy directed at avoiding competition by Federal
agencies with the private sector. However, there are exceptions. For
further guidance, refer to Section 1.5, "Reimbursable Agreement."

2.1.7 If the proposed SAA is Nonreimbursable, is the Partner\'s
contribution adequate (fair and reasonable) compared with NASA\'s
contribution (taking into account full cost accounting methods)?

*(Reference: Section 1.4, "Nonreimbursable Agreement")*

[Rationale/Comments]{.underline}: The answer to this question addresses
the requirement for a quid-pro-quo arrangement for Nonreimbursable SAAs.

2.1.8 In the foreseeable future, could the Partner bid on a procurement
contract with the Federal Government related to the proposed activity?

*(Reference: Section 1.3, "Agreement Formation Process")*

[Rationale/Comments]{.underline}: Organizational Conflict of Interest
(OCI) issues can arise if a company gains an unfair competitive
advantage in connection with a future Federal Government acquisition
(see FAR Subpart 9.5) without the consideration of mitigation plans. If
the answer to this question is 'yes,' OCI issues should be analyzed with
the assistance of the Office of Procurement or Office of General or
Chief Counsel.

2.1.9 If deliverables are part of the proposed SAA, are the deliverables
commercially available and ready for NASA's use, or do the deliverables
require additional development?

*(Reference: Section 1.5, "Reimbursable Agreement")*

[Rationale/Comments]{.underline}: If the deliverables are commercially
available, a procurement contract is strongly preferred based on the
Competition in Contracting Act (CICA), as well as guiding principles in
the Federal Grants and Cooperative Agreement Act of 1977, and the
National Space Policy.

2.1.10 If deliverables (to be developed) are part of the proposed SAA
and a deliverable is a product, does the product have commercial,
non-NASA uses?

[Rationale/Comments]{.underline}: First, this question assumes
deliverables are not currently commercially available. Second, this
question assumes that deliverables will be developed as part of the
proposed SAA activities. If the deliverables (to be developed) have
commercial, non-NASA uses, this fact would help support an SAA.
Alternatively, if the deliverables (to be developed) only have a NASA
use, a procurement contract is strongly preferred. The prime motivation
of the SAA Partner is also a relevant consideration (i.e., is the
Partner's business plan focused on selling commercial products rather
than winning NASA procurement contracts?).

2.2 Administrative Questions

2.2.1 Please provide a short, descriptive title for the proposed SAA.

*(Reference: Section 2.2.1, "Title")*

2.2.2 What is the full corporate name of each Partner?

*(Reference: Section 2.2.2, "Authority and Parties")*

2.2.3 If applicable, what is the division name of each Partner?

*(Reference: Section 2.2.2, "Authority and Parties")*

2.2.4 What is the common, shortened name of each Partner?

*(Reference: Section 2.2.2, "Authority and Parties")*

2.2.5 What is the complete street address of each Partner?

*(Reference: Section 2.2.2, "Authority and Parties")*

2.2.6 What are the city, state and zip code of each Partner?

*(Reference: Section 2.2.2, "Authority and Parties")*

2.2.7 What type of company is each Partner? (e.g., Large entity,
College/University, Government entity, Non-profit, Small Business)

*(Reference: Section 2.2.2, "Authority and Parties")*

[Rationale/Comments]{.underline}: Alternative liability, insurance,
patent and invention rights, and data rights clauses depend on this
information.

2.2.8 What is the nationality of each Partner? (e.g., Domestic or
Foreign)

*(Reference: Section 2.2.2, "Authority and Parties")*

[Rationale/Comments]{.underline}: This question will help to determine
if the proposed SAA should be an International Agreement.

2.2.9 Please provide an explanation of what the SAA proposes to
accomplish. - Begin the paragraph with \"Center Name and Partner Name
wish to\... \". e.g., What is the purpose and general scope of the
activities planned, the subject of any testing, facilities/equipment to
be used, and the objectives to be achieved?

*(Reference: Section 2.2.3, "Purpose")*

2.2.10 Please provide a list of Partner Responsibilities and a list of
\[NASA Center\] Responsibilities. Include tasks, facility usage,
equipment usage, deliverables (including data deliverables), etc. Be as
specific as possible.

*(Reference: Section 2.2.4, "Responsibilities")*

2.2.11 Please list the milestones for the proposed SAA to be
accomplished by specific dates (i.e., completion dates) agreed to by the
Parties. Milestones should represent discrete pieces of work that can be
objectively and individually evaluated. It is recommended that
completion dates are linked to the execution date of an SAA or another
significant milestone date (e.g., 4 months after the execution date).

*(Reference: Section 2.2.5, "Schedule and Milestones")*

2.2.12 Will NASA lend government-owned property as part of the proposed
SAA? If yes, describe the property that will be lent during the proposed
SAA. Please include the appropriate NASA Tag numbers, serial numbers,
etc, when appropriate.

*(Reference: Section 1.8.6, "Loan of Equipment" and Section 2.2.24,
"Loan of Government Property")*

2.2.13 Does the proposed SAA require exclusivity?

*(Reference: Section 2.2.8, "Nonexclusivity")*

[Rationale/Comments]{.underline}: As a general rule, NASA's SAAs with
private entities should be on a nonexclusive basis -- that is, all
private entities should have equal access to the NASA resource. However,
in limited circumstances, exclusivity may be appropriate. If exclusivity
is contemplated, coordination with the Office of General or Chief
Counsel is required. Procedures for including exclusivity provisions in
an SAA are defined in Section 2.2.8.

2.2.14 How much time will be needed to accomplish the purpose of the
SAA?

Note: The term of the SAA must be consistent with the schedule and
milestones.

*(Reference: Section 2.2.14, "Term of Agreement")*

[Rationale/Comments]{.underline}: The term of an SAA should be
determined based on the requirements of the planned activity. As a
general rule, an SAA should not exceed 5 years. If a longer commitment
is essential to the fundamental objectives of the SAA, then the Office
of General or Chief Counsel should be consulted as early in the SAA
development process as possible.

2.2.15 Please provide information pertaining to the management points of
contact (e.g., name, address, organization, phone number, email address)
for NASA and each Partner.

*(Reference: Section 2.2.19, "Management Points of Contact")*

2.2.16 Please provide the name and title of each signatory, wherein the
name and title has been personally verified by each signatory.

*(Reference: Section 2.2.25, "Signatory Authority")*

2.2.17. Does the proposed SAA require a high degree of certainty from
the Partner that NASA, the Partner, or both will execute the proposed
responsibilities?

[Rationale/Comments]{.underline}: Sample Clause 2.2.15.3 is only used in
very rare circumstances, for example, when the Partner is funding
infrastructure improvements to NASA property for a commercial business
that requires upfront investments on the part of the Partner. If NASA
required unilateral termination rights, which is generally provided in
its SAAs, the Partner would be unable to build its business and raise
capital. The question to be asked in deciding whether to use Sample
Clause 2.2.15.3 is whether the benefit to NASA justifies a significant
limitation of its termination rights as found in that clause.

*(Reference: Section 2.2.15, "Right to Terminate," Clause 2.2.15.3,
"Reimbursable Agreement Requiring High Certainty of Support Sample
Clause (Right to Terminate)," and Section 2.2.18, "Dispute
Resolution.")*

2.3 Financial Questions

2.3.1 Does the SAA require NASA pay a Partner? (How much is proposed?)

*(Reference: Section 2.2.6, "Financial Obligations" and Section 1.7,
"Funded Agreement")*

[Rationale/Comments]{.underline}: The answer to this question will
determine if the proposed agreement is a funded SAA, which is only
rarely used by NASA. If NASA funding is proposed, coordination with the
Office of General or Chief Counsel is required as soon as possible.

2.3.2 What is the total cost of the proposed SAA to NASA? Note: Total
cost is defined as all costs unique to a project, all traceable common
costs, and all general and administrative costs that can be reasonably
charged.

*(Reference: Section 1.5, "Reimbursable Agreement" and Section 2.2.6,
"Financial Obligations")*

[Rationale/Comment]{.underline}: The answer to this question will aid in
a quid-pro-quo analysis, if applicable, as well as a full cost vs.
market-based accounting analysis. NASA has statutory authority under the
Space Act to provide reimbursable services without recovering full cost
(i.e., partial reimbursement). For example, facilities may be offered at
market-based pricing or another basis in accordance with NASA financial
management policies.

2.3.3 Is the proposed SAA nonreimbursable? If yes, go to Question 2.3.7.
If no, go to Question 2.3.4.

*(Reference: Section 2.2.6, "Financial Obligations," Section 2.2.9.1,
"SAAs for Shared Benefits\--Cross-Waiver and Flow Down," "Section
2.2.10, "Intellectual Property Rights")*

[Rationale/Comments]{.underline}: Whether or not a proposed SAA is fully
reimbursable or nonreimbursable aids in the determination of which
Liability and Intellectual Property provisions are appropriate.

2.3.4 Is the proposed SAA [fully]{.underline} reimbursable? If yes, go
to Question 2.3.6. If no, go to Question 2.3.5.

*(Reference: Section 2.2.6, "Financial Obligations," Section 2.2.9.1,
"SAAs for Shared Benefits\--Cross-Waiver and Flow Down," "Section
2.2.10, "Intellectual Property Rights")*

[Rationale/Comments]{.underline}: Whether or not a proposed SAA is fully
reimbursable aids in the determination of which Liability and
Intellectual Property provisions are appropriate.

2.3.5 How much of NASA's total cost will the Partner reimburse?

*(Reference: Section 2.2.6, "Financial Obligations")*

[Rationale/Comments]{.underline}: Refer to Section 2.2.6 of this SAAG
for guidelines associated with the acceptance of less than full
reimbursement by NASA.

2.3.6 Will the payment of the entire reimbursable amount be made in one
lump sum? If no, list a payment schedule. Please verify that the
scheduled payments add up to the total estimate above. Please note that
work can only be performed after payment for that work is received.

*(Reference: Section 2.2.6, "Financial Obligations")*

2.3.7 What is the total cost of the proposed SAA activities for each
Partner?

*(Reference: Section 2.2.6, "Financial Obligations")*

[Rationale/Comments]{.underline}: The answer to this question will aid
in a quid-pro-quo analysis, if applicable.

2.4 Liability and Mishap Investigation

2.4.1 If the activities involve the International Space Station or a
launch activity, go to Question 2.4.6. If the activities do
[not]{.underline} involve the International Space Station or a launch
activity, go to Question 2.4.2

*(Reference: Section 2.2.9.1, "SAAs for Shared Benefits\--Cross-Waiver
and Flow Down")*

[Rationale/Comments]{.underline}: In SAAs for missions on the
International Space Station (ISS) or launch activities for science or
space exploration unrelated to the ISS, specific cross-waiver provisions
are required as provided in 14 C.F.R. 1266. These activities include a
wide range of design, transport, flight and payload activities covered
under "protected space operations."

2.4.2 Do the proposed activities call for a sharing of substantive
non-monetary benefits (i.e., will substantive, non-monetary benefits be
provided to both NASA and Partner)? If yes, go to Question 2.4.6. If no,
go to Question 2.4.3.

*(Reference: Section 2.2.9.1, "SAAs for Shared Benefits\--Cross-Waiver
and Flow Down" and Section 2.2.10, "Intellectual Property Rights")*

[Rationale/Comments]{.underline}: If a proposed SAA is nonreimbursable,
sharing of substantive, non-monetary benefits is generally per se
considered to exist. Conversely, if a proposed SAA is fully
reimbursable, sharing of substantive, non-monetary benefits is generally
per se considered to [not]{.underline} exist. If a proposed SAA is
partially reimbursable, one should ask the question, "What's in it for
NASA?" To answer this question, consider the following: whether
non-monetary benefits would exist (e.g., such as cross-fertilization of
knowledge, shared data rights, shared intellectual property rights,
patent licenses, etc.); the percentage of the partial reimbursement
(e.g., 90% reimbursement could be an indication of no sharing of
substantive benefits and 5% reimbursement could be an indication of a
sharing of substantive benefits); and whether the proposed SAA is for
the primary or exclusive benefit of the Partner (i.e., the non-NASA
party).

2.4.3 Is there a reasonable likelihood of occurrence of significant
personal injury to third parties or significant damage to third party
property?

*(Reference: Section 2.2.9.3, "Insurance Coverage")*

[Rationale/Comments]{.underline}: The subject question addresses two
issues related to "third party" damage: 1) significant damage to third
party persons and 2) significant damage to third party property. A
"third party" may include a NASA or NASA-contractor employee suing in
his or her individual capacity.

-   First, the likelihood of occurrence must be at least a "reasonable
    likelihood of occurrence." The "likelihood of occurrence" is a
    percentage from 0-100%, however, it is not necessary to quantify the
    likelihood of occurrence. Although there isn't a bright line rule
    for what constitutes a "reasonable likelihood of occurrence," as a
    general rule, any likelihood of occurrence that isn't a "low"
    percentage or rare event is deemed to be reasonably likely to occur.

-   Second, the potential damage must be "significant." Damage, as used
    herein, is generally related to a monetary value. Again, there isn't
    a bright line dollar limit with respect to whether damage is
    significant or not.

The SAAG places the responsibility for determining whether the
"likelihood of occurrence" is at least "reasonable" and whether the
potential damage is "significant" on the NASA personnel involved with
negotiating and executing a proposed SAA (and in particular, the primary
responsibility is placed on the program or project office and the
signing official in consultation with the cognizant attorney).

2.4.4 Is there a reasonable likelihood of occurrence of significant
damage to high-value NASA property?

*(Reference: Section 2.2.9, "Liability and Risk of Loss" and Section
2.2.9.3, "Insurance Coverage")*

[Rationale/Comments]{.underline}: This question has three components.

-   The first component is that the likelihood of occurrence of the
    potential damage must be at least reasonably likely to occur. The
    likelihood of occurrence is a percentage from 0-100%, however, it is
    not necessary to quantify the likelihood of occurrence. Although
    there isn't a bright line rule for what constitutes a "reasonable
    likelihood of occurrence," as a general rule, any likelihood of
    occurrence that isn't a "low" percentage or rare event is deemed to
    be reasonably likely to occur.

-   Second, the potential damage must be "significant." Damage, as used
    herein, is generally related to a monetary value. Again, there isn't
    a bright line dollar limit with respect to whether damage is
    significant or not. Section 2.2.9.3 provides the following
    consideration for potential property damage: the maximum potential
    for damage to property relative to the program's ability to repair.

-   Third, any potential damage must be related to "high-value" NASA
    property. Examples of considerations for determining "value" include
    the monetary value and the critical nature of the property to NASA's
    programs and activities. The monetary value of the property and the
    monetary value of the potential damage to the property may be
    equivalent.

The SAAG places the responsibility for determining whether these three
components exist, on the NASA personnel involved with negotiating and
executing a proposed SAA (and in particular, the primary responsibility
is placed on the facility manager and the signing official in
consultation with the cognizant attorney). If the relevant NASA property
has been determined as "low-value" or "medium-value," then the answer to
the subject question is "no" even if there is a reasonable risk of
significant damage.

2.4.5 If an insurance requirement is justified (for the non-NASA party),
is it anticipated that an insurance waiver will be requested?

*(Reference: Section 2.2.9.3, "Insurance Coverage," Last Bullet)*

2.4.6 Is there a possibility of a serious accident or mission failure
and the parties include non-U.S. Government personnel?

*(Reference: Section 2.2.18, "Mishap Investigation")*

2.5 Intellectual Property and Data Rights

2.5.1 Will the Partner perform work of an inventive type exclusively
"for NASA" under the proposed SAA? If yes, go to Question 2.5.5. If no,
go to Question 2.5.2.

*(Reference: Section 2.2.10.3, "Invention and Patent Rights")*

[Rationale/Comments]{.underline}: Most SAAs do not involve work of an
inventive nature being performed by the partner [for NASA]{.underline}.
Thus, NASA obtains no rights in inventions made solely by the partner
under most SAAs. A case-by-case analysis is required to determine
whether work to be performed by the partner under the SAA is being
performed for NASA. The text, associated with the "Invention and Patent
Section 305(a) Sample Clause" found in Section 2.2.10.3, contains
considerations to aid the evaluator in determining the answer to this
question. Considerations include: whether the proposed activities are
relate to a cooperative effort "with NASA" rather than a directed effort
"for NASA; whether the proposed activities are for the primary or
exclusive benefit of the non-NASA party; whether the proposed work is
fully funded by NASA; whether the proposed activities are
[required]{.underline} to fulfill a NASA mission; whether the proposed
activities involve research and development; and what is the prime
motivation of the non-NASA party in terms of commercial aspirations or
seeking future NASA business. Further, the evaluator is encouraged to
seek consultation from an Intellectual Property attorney relative to a
305(a) analysis.

2.5.2 Is there a [low]{.underline} probability that an invention may
result due to the work conducted under the proposed SAA? In general, if
research, experimental, developmental, engineering, demonstration, or
design activities are to be carried out under the proposed SAA, there is
generally a medium to high probability (i.e., not a low probability)
that an innovation may result.

*(Reference: Section 2.2.10.3, "Invention and Patent Rights")*

[Rationale/Comments]{.underline}: If the Partner is a commercial entity,
the answer to this question will help determine if the Standard or Short
Form Patent and Invention Rights clause should be used in the proposed
SAA.

2.5.3 Is there a related NASA invention? If yes, please identify the
related NASA invention (i.e., provide an invention disclosure case
number, patent number, or both).

*(Reference: Section 2.2.10.3, "Invention and Patent Rights," and
Invention and Patent Rights Standard Form Sample Clause 2.2.10.3.2,
Subsection 8)*

2.5.4. Is the proposed SAA a reimbursable agreement with a foreign
entity, or with a domestic entity but for the benefit of a foreign
entity, i.e., could a foreign entity have access to and use of any
deliverable items (including any data) resulting from the proposed
reimbursable agreement by virtue of a contractual or other relationship
(including common corporate ownership) with the proposed domestic
partner?

*(Reference: Section 1.5 Reimbursable Agreements, 2.2.10.2 Data Rights,
and 4.4. International Reimbursable Agreement)*

[Rationale/Comments]{.underline}: Compliance with NPD 1370.1,
Reimbursable Utilization of NASA Facilities by Foreign Entities and
Foreign-Sponsored Research may require the use of Data Rights clause
2.2.10.1.3 for such reimbursable agreements.

2.5.5 If the Partner is a foreign governmental entity, is there any
likelihood of joint development?

*(Reference: Section 4.1 General Guidance \[for agreements with Foreign
Entities\], Section 4.5.12, Intellectual Property)*

2.5.6 Do the Parties intend to exchange all data without any use and
disclosure restrictions? If yes, go to Question 2.5.9. If no, go to
Question 2.5.7.

*(Reference: Section 2.2.10.1, "Data Rights," Third Paragraph)*

[Rationale/Comments]{.underline}: In some circumstances, the parties may
plan to exchange all data and information without any use and disclosure
restrictions. Examples of such circumstances include SAAs involving
non-technical activities such as strategic alliances, educational or
public outreach, or community or public affairs events. In such
circumstances, the simplified Data Rights Sample Clause 2.2.10.1.4
should be used.

2.5.7 Is there any likelihood that existing proprietary data or
sensitive information will be exchanged under the proposed SAA? If yes,
go to Question 2.5.8. If no, go to Question 2.5.9.

*(Reference: Section 2.2.10.1, "Data Rights")*

[Rationale/Comments]{.underline}: The general types of proprietary and
sensitive information (including computer software) relevant in an SAA
include the following: 1) third party proprietary information, 2)
Government Sensitive But Unclassified (SBU) information, and 3) the
Partner's proprietary information. In addition to Section 2.2.10.1 of
this SAAG, guidance concerning Government SBU information can be found
in NPR 1600.1A, Chapter 5.24.

2.5.8 Is there any [known]{.underline} proprietary data or sensitive
information (generally referred to as "background data")? If yes, obtain
a list of the background data.

*(Reference: Section 2.2.10.1, "Data Rights" and Data Rights Proprietary
Data Exchange Addendum Sample Clause 2.2.10.1.2, Subsection 8)*

2.5.9 (a) Do the activities under the proposed Agreement include
fundamental research or analysis of raw data (*i.e.*, unanalyzed data
usually of a scientific nature)?

\(b\) If yes, will there be a period of exclusive use of raw data for
scientific analysis and first publication rights by one or more
Principal Investigators (PIs)?

\(c\) If yes, identify the PI(s) and the exclusive use period (generally
one year or less).

*(Reference: Section 2.2.10.2, "Rights in Raw data generated Under the
Agreement")*

[Rationale/Comments]{.underline}: Agreements related to research
resulting from space science missions or analysis of space science
satellite raw data may have some exclusive period for use of the raw
data by PI(s). The period is generally a year or less. Agreements
related to research resulting from earth science missions or analysis of
earth satellite raw data is generally made widely available as soon as
practicable after its acquisition and on-orbit calibration and
validation.

2.5.10 Is there a need for the Partner to practice an invention claimed
in an existing U.S. patent owned by a third party, or to reproduce,
distribute, or prepare derivative works of, or perform or display
publicly a copyrighted work owned by a third party? (rarely yes)

*(Reference: Section 2.2.10.4, "Patent and Copyright Use: Authorization,
Consent, and Indemnification")*

[Rationale/Comments]{.underline}: If the answer to this question is
"yes," the cognizant NASA patent/intellectual property counsel must be
consulted to determine whether the authorization and consent or
indemnification clauses should be included to protect the U.S.
Government financially from any possible future infringement claims.

**CHAPTER 2. NONREIMBURSABLE AND REIMBURSABLE AGREEMENTS WITH DOMESTIC
NONGOVERNMENTAL ENTITIES**[]{#__RefHeading___Toc203815520 .anchor}

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**2.1. GENERAL GUIDANCE**[]{#__RefHeading___Toc203815521 .anchor}

Consistency in approach to the drafting of SAAs promotes consistent
treatment of similarly situated partners and helps expedite the review
process within NASA. Accordingly, SAAs with nongovernmental entities
should conform, to the extent practicable, to this specific form and
should include the following sections, as appropriate, in the order
presented.

**2.2. AGREEMENT CONTENTS**[]{#__RefHeading___Toc203815522 .anchor}

One purpose of this Guide is to facilitate consistency among Centers, to
the extent practicable, in the formation and organization of SAAs, and
in the language and provisions of the SAA clauses. While not all SAAs
will include all of the clauses listed below, the clauses included in
any particular SAA should always retain the order provided below, the
titles, and to the greatest extent possible, the clause language
provided herein. Clause 25 is provided for Center or SAA specific
clauses.

1\. [Title](#Ch2IIi).

2\. [Authority and Parties](#Ch2IIii)[.]{.underline}

3\. [Purpose](#Ch2IIiii).

4\. [Responsibilities](#Ch2IIiv).

5\. [Schedule and Milestones](#Ch2IIv).

6\. [Financial Obligations](#Ch2IIvi).

7\. [Priority of Use](#Ch2IIvii).

8\. [Nonexclusivity](#Ch2IIviii).

9\. [Liability and Risk of Loss](#Ch2IIix).

10\. [Intellectual Property Rights](#Ch2IIx)**.**

11\. [Use of NASA Name and Emblems and Release of Information to the
Public](#Ch2IIxi).

12\. [Disclaimers](#Ch2IIxii).

13\. [Compliance with Laws and Regulations](#Ch2IIxiii).

14\. [Term of Agreement](#Ch2IIxiv).

15\. [Right to Terminate](#Ch2IIxv).

16\. [Continuing Obligations](#Ch2IIxvi).

17\. [Management Points of Contact](#Ch2IIxvii).

18\. [Dispute Resolution.](#Ch2IIxviii)

19\. [Mishap Investigation](#Ch2IIxix).

20\. [Modifications](#Ch2IIxx).

21\. [Assignment](#Ch2IIxxi).

22\. [Applicable Law](#Ch2IIxxii).

23\. [Independent Relationship](#Ch2IIxxiii).

24 [Loan of Government Property](#Ch2IIxxiv).

25\. [Special Considerations](#Ch2IIxxv).

26\. [Signatory Authority](#Ch2IIxxvi).

[]{#Ch2IIi .anchor}**2.2.1. TITLE**[]{#__RefHeading___Toc203815523
.anchor}

SAAs are given a short title stating the type of agreement
(nonreimbursable or reimbursable), the parties, and the agreement's
purpose. Over the years, certain shorthand titles have been created,
sometimes used differently at different NASA Centers, to describe more
specifically the type of activity covered by the SAA. Examples include
"Technical Exchange Agreement" and "Reimbursable Travel Agreement." 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 partner.

*[2.2.1.1. Title (Nonreimbursable Agreement Sample Clause)](#Cl2IIi1)*

*[2.2.1.2. Title (Reimbursable Agreement Sample Clause)](#Cl2IIi2)*

> [*2.2.1.3. Title (Annex Sample Clause)*](#Cl2IIi3)

**2.2.2. AUTHORITY AND PARTIES**[]{#__RefHeading___Toc203815524 .anchor}

This section recites NASA's authority to enter into the SAA and
identifies the parties by name and address.

[*2.2.2. Authority and Parties (Sample Clause)*](#Cl2IIii)

[]{#Ch2IIiii .anchor}**2.2.3. PURPOSE**[]{#__RefHeading___Toc203815525
.anchor}

The purpose, often stated in one brief paragraph, succinctly describes
why NASA is entering into the agreement. For all SAAs, this section
should indicate the purpose and general scope of the planned activities,
the subject of any testing, and objectives to be achieved. In addition,
the purpose should include a description of the benefit to NASA and the
partner. For fully reimbursable agreements, however, the purpose needs
only to describe how the activity is consistent with NASA\'s mission.

[*2.2.3.1 Purpose (Sample Clause)*](#Cl2IIiii1)

> *[2.2.3.2 Purpose and Implementation (Umbrella Agreement Sample
> Clause)](#Cl2IIiii2)*

[]{#Ch2IIiv .anchor}**2.2.4.
RESPONSIBILITIES**[]{#__RefHeading___Toc203815526 .anchor}

This section describes the actions to be performed by each party to the
SAA, including the type of effort, information, equipment, and personnel
to be provided by each. It is in carefully drafting and negotiating the
responsibilities section that project and program managers can best use
SAAs as management tools.

Generally, the responsibilities section is most helpful when it is
divided into two subsections, one describing NASA's responsibilities and
the other describing the partner's responsibilities. An SAA, however,
with more than one partner is possible. Such multiparty SAAs raise
special issues that require extensive revision to standard text, and
therefore, early legal counseling is essential. For example, where an
SAA allocates responsibilities among several entities, one party's
failure to comply with the terms of the SAA may affect the obligations
of the remaining parties. Moreover, multi-party SAAs risk placing NASA
in a position of guaranteeing the performance of one of its partners or
becoming involved in obligations running between other parties to the
SAA.

In all cases, performance of each party's responsibilities is on a
"reasonable efforts" basis. The degree of detail in the responsibilities
section will vary depending on the nature of activities to be performed.
However, the responsibilities described within the text of the SAA
itself must contain sufficient detail to disclose both the core
obligations of the parties and the nature of the resources to be
committed. Sometimes it is advisable to include definitions of key terms
relating to responsibilities where reasonable interpretation could lead
to differing conclusions as to a word's meaning.

[]{.mark}

[*2.2.4.1. Responsibilities (General Sample Clause)*](#Cl2IIiv1)

[*2.2.4.2. Responsibilities (Technical Exchange Agreement Sample
Clause)*](#Cl2IIiv2)

> [*2.2.4.3 Responsibilities (Umbrella Agreement Sample
> Clause)*](#Cl2IIiv3)
>
> [*2.2.4.4 Responsibilities (Annex Sample Clause)*](#Cl2IIiv4)

*Note*: Certain statutory and Executive Branch policies may restrict
NASA's ability to make facilities and services available when such
facilities and services may be available commercially.[^26]

For complex activities, use of technical annexes, program implementation
plans, or similar documents are generally recommended to specify in
greater detail the manner in which the activities under the SAA are to
be implemented. They afford program managers a mechanism for making
adjustments as circumstances warrant, without having to amend the SAA
itself. The activities specified in technical annexes and similar
implementation plans, however, must be within the scope of the
responsibilities as set forth in the SAA. If desirable, they can form
part of the SAA if incorporated by reference in the text. Because they
are not formal agreements, authority to sign such annexes or plans is
not subject to the same delegation rules of [NPD
1050.1H](http://nodis3.gsfc.nasa.gov/displayDir.cfm?t=NPD&c=1050&s=1H).
The documents may therefore be signed by the responsible technical
manager for each party concurrently with, or subsequent to, the SAA
itself.

[]{#Ch2IIv .anchor}

**2.2.5. SCHEDULE AND MILESTONES**[]{#__RefHeading___Toc203815527
.anchor}

This section sets forth a planned schedule of key dates or events
consistent with available information known at the time the SAA is
executed. It documents the anticipated progress of the SAA's activities.
Responsibilities (as set forth above) and performance milestones should
be stated with sufficient clarity to support preparation of cost
estimates, sound management planning, and efficient agreement
administration.

[*2.2.5.1 Schedule and Milestones (Sample Clause)*](#Cl2IIv1)

> [*2.2.5.2 Schedules and Milestones (Umbrella Agreement Sample
> Clause)*](#Cl2IIv2)
>
> [*2.2.5.3 Schedules and Milestones (Annex Sample Clause)*](#Cl2IIv3)

[]{#Ch2IIvi .anchor}**2.2.6. FINANCIAL
OBLIGATIONS**[]{#__RefHeading___Toc203815528 .anchor}

This section sets out both NASA's and the partner's contributions to the
SAA to include funding and in-kind contributions (*e.g.*, goods and
services) where appropriate.

In nonreimbursable SAAs, no funding is exchanged and each party supports
its own participation in the SAA activity. The contribution of the
partner must be fair and reasonable compared to NASA's contribution.
Before a nonreimbursable SAA is executed, an estimate of the value of
the NASA resources to be committed under the SAA must be prepared using
cost accounting values computed in accordance with guidance issued by
the Headquarters Chief Financial Officer. Estimates should be approved
by the NASA Director for Headquarters Operations (for Headquarters
Agreements) or Center CFOs (for Center Agreements). This estimate
provides the NASA signing official a basis for finding that the proposed
contribution of the partner is consistent with policy and represents an
adequate *quid pro quo* when compared to NASA resources to be committed,
NASA program risks, and corresponding benefits to NASA. *See* section
1.4 herein for additional guidance regarding nonreimbursable SAAs.

A nonreimbursable SAA must include a statement that no funds are to be
transferred pursuant to the SAA. Moreover, every SAA should explicitly
state that NASA's obligations are subject to the availability of
Congressionally appropriated funds and other resources 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 might be
desirable, it will be implemented by a separate SAA or other instrument
(e.g., contract, grant or cooperative agreement).

> [*2.2.6.1. Financial Obligations (Nonreimbursable Agreement Sample
> Clause)*](#Cl2IIvi1)

Under reimbursable SAAs, the partner pays NASA to provide services for
the partner's benefit. The partner is usually required to reimburse
NASA's full costs. However, the SAA may provide for less than full cost
reimbursement (partial reimbursement) when: (1) a market-based pricing
policy is applicable; (2) reimbursement is fair and reasonable when
compared to the benefits NASA receives from the work; or (3) costs are
prescribed by specific statutory authority other than the Space Act. A
determination to charge less than full cost should: (1) be accomplished
consistent with NASA's written regulations and policies; (2) articulate
the market-based pricing analysis, benefit to NASA, or other legal
authority that supports less than full cost recovery; and (3) account
for recovered and unrecovered costs in accordance with NASA financial
management policy. All reimbursable SAAs, regardless of whether full
cost is recovered, are subject to NASA's financial management
regulations for determining, allocating, and billing costs.

Before a reimbursable SAA is executed, a cost estimate for the
undertaking must be prepared consistent with guidance from the Chief
Financial Officer and must be reviewed by the NASA Director for
Headquarters Operations (for Headquarters Agreements) or Center CFOs
(for Center Agreements). The estimate should identify the specific
elements of cost applicable to the work and specify which costs are
required to be reimbursed. Additionally, before NASA may enter a
Reimbursable SAA where NASA is reimbursed for less than the full cost of
its activities performed under the SAA, the NASA signing official must
determine that the proposed contribution of the partner is fair and
reasonable compared to the NASA resources to be committed, NASA program
risks, and corresponding benefits to NASA. *See* section 1.5 herein for
additional guidance regarding reimbursable SAAs.

NASA must receive an amount sufficient to fund any reimbursable work
(either in full or divided by task order) before it may begin work for
under a reimbursable SAA, unless the agreement is with another Federal
agency, or waiver of advance payment is otherwise authorized in [NPD
1050.1H](http://nodis3.gsfc.nasa.gov/displayDir.cfm?t=NPD&c=1050&s=1H).
Where NASA is fully funding some of its activities performed under a
reimbursable SAA, NASA may begin those activities before other funds are
received from the partner. Reimbursable orders from other Federal
agencies may be paid upon billing instead of in advance, in accordance
with financial management policy.

*Note*: Under very limited circumstances where hardship is demonstrated
or legal restriction prohibiting advance payments is identified, a
waiver may be requested in writing to allow payment after work has been
performed by NASA. However, such exceptions should be limited to work
that very clearly could be fully funded by NASA as part of its mission
and funds are certified and allocated to account for costs that may
accrue prior to the provision of funds by the partner. Such a waiver
should be submitted as part of the approval process required for
reimbursable SAAs and must be approved by the NASA CFO (for Headquarters
Agreements) or Center CFOs (for Center Agreements).

[*2.2.6.2. Financial Obligations (Reimbursable Agreement Sample
Clause)*](#Cl2IIvi2)

> [*2.2.6.3 Financial Obligations (Reimbursable Umbrella Agreement
> Sample Clause)*](#Cl2IIvi3)
>
> [*2.2.6.4 Financial Obligations (Reimbursable Annex Sample
> Clause)*](#Cl2IIvi4)

[]{#Ch2IIvii .anchor}**2.2.7. PRIORITY OF
USE**[]{#__RefHeading___Toc203815529 .anchor}

This section ensures that NASA does not become legally committed to
perform the activities according to any schedule stated in the SAA, 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.[^27] However,
the SAA may reflect current planned milestones or express the desire of
the partner that activities occur at a specified time.

[*2.2.7. Priority of Use (Sample Clause)*](#Cl2IIvii)

[]{#Ch2IIviii .anchor}**2.2.8.
NONEXCLUSIVITY**[]{#__RefHeading___Toc203815530 .anchor}

As a general rule, NASA's SAAs with private entities should be on a
nonexclusive basis, that is, all private entities should have equal
access to the NASA resource. This helps avoid any appearance of NASA
favoritism of one private party over another. However, where exclusive
or partially-exclusive arrangements are necessary, competition should be
used to the maximum extent practicable to select the partner. For
example, where NASA has a limited resource or capability, exclusive or
partially-exclusive agreements are warranted, subject to appropriate
competition. Where an SAA provides a partner the opportunity for a
direct commercial gain, *e.g.*, publishing and selling an anniversary or
commemorative NASA publication (i.e., a commercial gain other than a
commercial benefit obtained from commercializing a technology developed
under the SAA), appropriate competition should also be used to select
the partner. The extent of the competition, and the means of announcing
the competition and selecting the partner(s), will depend on the
specific opportunity. Announcement of such opportunities is made
generally on the NASA Acquisition Internet Service (NAIS
[\<http://prod.nais.nasa.gov/cgi-bin/nais/index.cgi\>](http://prod.nais.nasa.gov/cgi-bin/nais/index.cgi)
). Competition may be waived by written justification by the responsible
NASA official. However, the office of the Office of the General Counsel
or Chief Counsel, as appropriate, shall be consulted, as often public
announcement and comment may be appropriate for such proposed exclusive
or partially-exclusive arrangements.

If a unique or proprietary concept for exclusive use of a NASA resource
is submitted by a private entity, it may still be appropriate to
announce generally the availability of the NASA resource for commercial
use or gain. However, NASA must exercise reasonable care not to reveal
the unique or proprietary concept in such an announcement. Such
situations will require close coordination with the Office of the
General Counsel or Chief Counsel, as appropriate.

When exclusivity is appropriate, the resulting SAA should specify in the
"Responsibilities" clause that the instrument is provided on an
exclusive basis as part of NASA's obligations, and the nonexclusivity
sample clause should be omitted. Where exclusivity is sought, then early
in the formation process the relevant program or project office, along
with the agreement drafter, should provide specific details of the
activity to the NASA legal counsel so that appropriate terms can be
included.

[*2.2.8. Nonexclusivity (Sample Clause)*](#Cl2IIviii)

[]{#Ch2IIix .anchor}**2.2.9. LIABILITY AND RISK OF
LOSS**[]{#__RefHeading___Toc203815531 .anchor}

SAAs must address responsibility for potential damages to persons and
property arising from activities under the agreement. Determinations of
the amount of risk NASA or the partner should assume will vary according
to the type of agreement and the nature of the activity. Establishing
appropriate risk allocation arrangements requires informed program,
technical, and legal judgments. Early in the negotiations process, the
relevant program or project office, along with the agreement drafter,
should provide specific details of the activity to the NASA legal
counsel so that appropriate clauses are included.

NASA risk allocation clauses primarily address two categories of
foreseeable risk:

A.  "First Party" liability: personal or property damage sustained by
    the parties to the agreement, and their related entities, including
    environmental and other economic losses; and

B.  "Third Party" liability: personal or property damage sustained by
    individuals or entities that are not signatories to the SAA and
    entities having no contractual relationship with the parties
    relating to activities under the SAA.

Generally, unless liability is waived by the other party, each party is
responsible for damages arising from its own actions. The general policy
for liability/risk of loss in NASA SAAs is:

(1) each party to the SAA assumes the risk of damage to its own property
    and personnel (and that of its related entities) caused by its own
    actions (*e.g.*, NASA agrees to be responsible for any damage to
    NASA property/personnel by NASA employees);

(2) each party to the SAA assumes the risk of third party damage caused
    by its own actions;

(3) for nonreimbursable SAAs, each party waives claims against the other
    (and the other's related entities) for first party damage (a
    *cross-waiver of claims*), unless caused by willful (intentional)
    misconduct;

(4) for reimbursable or partially reimbursable SAAs, the partner waives
    claims against NASA (and NASA's related entities) for first party
    damage (a *unilateral waiver of claims*), unless caused by willful
    (intentional) misconduct; and

(5) for reimbursable or partially reimbursable SAAs, the partner assumes
    the risk of damage to NASA caused by the partner's own actions.

If activities under an SAA are determined to be "high risk," that is,
they carry a reasonable likelihood of significant damage to persons or
high value assets, insurance covering the activities should customarily
be required. *See* 2.2.9.3, Insurance Coverage.

**2.2.9.1. SAAs FOR SHARED BENEFITS \-- CROSS-WAIVER AND FLOW
DOWN**[]{#__RefHeading___Toc203815532 .anchor}

If the SAA calls for sharing of substantive benefits (such as shared
data and invention rights) arising from the agreement -- usually
nonreimbursable SAAs -- risks will also be shared. In such cases, there
should be a *cross-waiver of claims* between NASA and the partner for
damages each causes to the other ("first parties").[^28] To give full
effect to a cross-waiver, "flow down" provisions should be included.
These provisions require that each party's legally "related entities"
(contractors, subcontractors, users, customers, investigators, and their
contractors and subcontractors) waive claims against similar entities
that may be legally related to any other party participating in an SAA
activity.

Cross-waivers are required in SAAs for activities of mutual interest and
benefit to NASA and the partner. In a cross-waiver, each party promises
not to bring claims against the other party or the other's related
entities for any harm to its property or employees. This means that each
party reciprocally agrees to assume 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.

[]{.mark}

The fundamental purpose of requiring cross-waivers is to establish
boundaries on liability to encourage space and aeronautical projects and
other joint endeavors. Cross-waivers promote 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.

[]{.mark}

Cross-waivers are uniquely suited for NASA aerospace activities. The
basis of liability 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 has caused. To
encourage the broadest participation in aerospace activities, NASA seeks
to avoid a fault-based regime in favor of one in which each party
relinquishes any claims it may have for certain property losses or costs
that result from injury to its employees, unless caused by the willful
(intentional) misconduct of the other party.

[]{.mark}

For a cross-waiver to apply, both the entity causing damage and the
entity sustaining damage must be involved in activities under the SAA.

Also, for damage NASA or the partner causes to others ("third parties")
including product liability,[^29] the responsible party will be liable.
The partner may wish to obtain insurance for first party and third party
damages, but NASA -- as with all Federal agencies -- may not purchase
insurance, unless authorized by law, and "self insures" for such risks.

[]{.mark}

> [*2.2.9.1.1. Liability and Risk of Loss (Cross-Waiver with Flow Down
> Provision Sample Clause)*](#Cl2IIix1i)

In SAAs covering missions involving a launch or related to the ISS
program, cross-waivers apply only if both entities are involved in
"protected space operations." Agreements covering such activities
require specific cross-waiver provisions as provided in 14 C.F.R. 1266.
These activities include a wide range of design, transport, flight, and
payload activities.

> *[2.2.9.1.2. Liability and Risk of Loss (Cross-Waiver of Liability for
> Agreements Involving Activities Related to the ISS Sample
> Clause)](#Cl2IIix1ii)*
>
> [*2.2.9.1.3. Liability and Risk of Loss (Cross-Waiver of Liability for
> Launch Agreements for Science or Space Exploration Activities
> Unrelated to the ISS Sample Clause)*](#Cl2IIix1iii)

**2.2.9.2. SAAs PRIMARILY BENEFITTING AN SAA PARTNER -- UNILATERAL
WAIVER AND INSURANCE**[]{#__RefHeading___Toc203815533 .anchor}

If the partner compensates NASA for work under an SAA and NASA does not
obtain other substantive benefits, the partner bears more risk with
respect to the work performed. In such cases, the partner waives claims
(*unilateral waiver*) against NASA. In addition, for "high risk"
activities (such as launch facility support), the partner normally is
required to maintain a reasonable amount of insurance coverage for first
party damage to NASA and its related entities, and for damage to third
parties arising from the activity. This insurance should cover the
activities of all parties to the SAA, regardless of fault.

*[Unilateral Waivers]{.underline}*: Under a unilateral waiver, the
partner waives claims against NASA for damage to its property or injury
to its personnel, regardless of which party may be at fault.[^30]
Typically, these waivers are used when NASA is providing goods or
services on a reimbursable basis, and there is no substantive benefit to
NASA under the agreement (such as data and invention rights). To give
full effect to a unilateral waiver, "flow down" provisions should be
included. These provisions require the partner's legally "related
entities" (contractors, subcontractors, users, customers, investigators,
and their contractors and subcontractors) to waive claims against any of
NASA's related entities participating in an SAA activity. Under a
unilateral waiver, the partner remains liable for damage to NASA caused
by the partner's own actions.

[*2.2.9.2.1. Liability and Risk of Loss (Unilateral Waiver Sample
Clause)*](#Cl2IIix2i)

*[Insurance for Damage to NASA Property]{.underline}*: Private
commercial insurance is used to mitigate risk in reimbursable and
partially reimbursable SAAs when there is a reasonable risk of
significant damage to NASA property. Insurance is required in an amount
sufficient to cover repair or replacement costs of impacted NASA
resources. Policies must be on acceptable terms and obtained at no cost
to NASA. Insurance provisions in SAAs generally also require that the
Office of the General Counsel or Chief Counsel, as appropriate, review
and approve policies prior to commencement of any covered activity.

> [*2.2.9.2.2. Insurance for Damage to NASA (Short Form Sample
> Clause)*](#Cl2IIix2ii)
>
> [*2.2.9.2.3. Insurance for Damage to NASA (Standard Form Sample
> Clause)*](#Cl2IIix2iii)

*[Insurance for Third Party Claims]{.underline}*: Private commercial
insurance is used to mitigate risk in reimbursable and partially
reimbursable SAAs when there is a reasonable risk of significant injury
to third parties or damage to third party property as a result of
activities under the SAA. Insurance coverage for third party claims must
be provided on acceptable terms and at no cost to NASA, and the policy
must be presented to NASA for review prior to the commencement of any
covered activity. NASA attorneys are familiar with insurance principles
and can advise on acceptable terms and conditions.

[*2.2.9.2.4. Insurance Protecting Third Parties (Sample
Clause)*](#Cl2IIix2iv)

**2.2.9.3. INSURANCE COVERAGE**[]{#__RefHeading___Toc203815534 .anchor}

In determining insurance coverage to be required under an SAA, the
following is considered:

-   *Rationale for property damage or third party liability insurance
    coverage:* The Federal Government "self insures" its own activities
    and is prohibited from obtaining insurance without express statutory
    authorization. Thus, when NASA performs work for the primary benefit
    of a private party, that party is usually required to obtain
    insurance coverage for "high risk" situations involving a reasonable
    likelihood of significant damage to high-value NASA facilities or to
    third parties, and to pay the cost for such insurance.

-   *The likelihood of damage and the likely significance of such
    damage* are factors in deciding whether the activity is "high risk"
    and whether NASA should require the partner to obtain insurance. The
    purpose is to reduce the cost to NASA and the Federal Treasury in
    the event of loss or damage to taxpayer-funded facilities being put
    to use for largely private benefit, or damage to third parties.

-   *Repair of damaged facilities:* Insurance proceeds for property
    damage to NASA facilities should not be payable to NASA because of
    the impact of the Miscellaneous Receipts Rule. The partner is the
    "loss payee" and is contractually responsible for making necessary
    repairs at NASA's direction. The SAA should require that the insurer
    fund repairs of property damage at the direction of NASA, or
    alternatively, that the partner place the proceeds in escrow and
    apply the proceeds to repair the damaged property as directed by
    NASA.

-   *Waiver of insurance requirement:* Insurance requirements for an
    activity determined to be "high risk" may be waived if recommended
    by the project manager or other responsible official, reviewed by
    the Office of General Counsel (for Headquarters Agreements) or the
    Center Chief Counsel (for Center Agreements), and approved by the
    NASA signing official. Factors to consider in granting a waiver
    include: (1) the level of NASA interest in the activity, (2) the
    experience level of the partner, (3) safety considerations, (4)
    consideration of NASA's total risk or level of exposure in the event
    of a loss, (5) the maximum potential for damage to property relative
    to the program's ability to repair, and

-   *Third Parties:* The risk of exposure of third parties to injury or
    damage to third party property.

    []{#Ch2IIx .anchor}**2.2.10. INTELLECTUAL PROPERTY
    RIGHTS**[]{#__RefHeading___Toc203815535 .anchor}

This section addresses the allocation and protection of intellectual
property rights in the following areas: (1) data rights; (2) rights in
raw data generated under the SAA;

\(3\) invention and patent rights; and (4) the U.S. Government's
authorization and consent to the partner's use of third party patents
and copyrights.

The following factors are considered in determining the terms of the
intellectual property provisions in SAAs with domestic nongovernmental
partners: (1) the purpose of the SAA; (2) whether the SAA is
reimbursable or nonreimbursable; (3) whether NASA's or the partner's
responsibilities involve inventive or creative activities; (4) whether
the partner is performing work for NASA; and (5) whether there is any
likelihood that third party proprietary data or Sensitive But
Unclassified (SBU) government data will be exchanged under the SAA.
Consistency in the choice of intellectual property rights clauses and
the terms therein, both across the Agency and with all nongovernmental
entities, is the goal. However, since the Space Act permits flexibility
in these matters, it may be desirable to modify the clauses to fit
particular circumstances. Any questions regarding the applicability of
or the deviations from intellectual property rights sample clauses
should be referred to the Office of the General Counsel or Chief
Counsel, as appropriate.

Generally, the provisions in the intellectual property rights sample
clauses are the same for nonreimbursable and reimbursable SAAs. Where
applicable, the sample clauses provide alternate paragraphs for use in
nonreimbursable or reimbursable SAAs. Where NASA is reimbursed for less
than the full cost of its activities under an SAA (partial
reimbursement), the choice of which alternate paragraph to use should be
based on whether other non-monetary benefits are obtained by NASA as a
result of the SAA. As a general rule, additional benefits are obtained
when the partner provides NASA with rights in data or inventions
resulting from the SAA activity. In such cases, if NASA desires to use
data generated under the SAA, the nonreimbursable alternate paragraphs
should be used. If NASA obtains a benefit other than the use of data
produced under the SAA, the reimbursable alternate paragraphs may be
used. Notwithstanding the above, where less than full reimbursement is
accepted, SAAs may include a combination of the clauses, *i.e.*,
reimbursable clauses for the reimbursable portion of the SAA and
nonreimbursable clauses for the nonreimbursable portion of the SAA.[^31]
Where no alternate paragraph is provided, the paragraph is used in both
nonreimbursable and reimbursable SAAs.

*Note*: The Freedom of Information Act (5 U.S.C. § 552) provides for
broad release of Federal agency records to a requestor, unless a
specific FOIA exemption applies. The intellectual property clauses
provide the basis for protection from release by the parties under
specific FOIA exemptions (*e.g.*, FOIA exemptions for proprietary
information, information disclosing inventions, and information
developed by NASA under the SAA and protected under section 303(b) of
the Space Act),.

**2.2.10.1. DATA RIGHTS**[]{#__RefHeading___Toc203815536 .anchor}

Data rights sample clauses, 2.2.10.1.1 through 2.2.10.1.4 adequately
cover most circumstances arising under reimbursable and nonreimbursable
SAAs with domestic nongovernmental entities. 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 Office of the General Counsel or Chief Counsel, as
appropriate, should be consulted. The clauses are summarized below,
followed by detailed guidance on the use of each clause.

Data Rights sample clauses 2.2.10.1.1 (No Expected Proprietary Data
Exchange) and 2.2.10.1.2 (Proprietary Data Exchange Addendum):

-   These clauses are structured to facilitate the exchange of data
    necessary for the performance of the SAA, while providing for the
    protection of any proprietary data that is exchanged or developed.

-   Further, in accordance with section 303(b) of the Space Act (42
    U.S.C § 2454(b)), the clauses provide that data produced by NASA
    under an SAA that would be a trade secret or commercial or financial
    information that would be privileged or confidential had the data
    been obtained from the nongovernmental partner, and thus may have
    some commercial (or proprietary) value to the partner, may be
    protected from disclosure for up to 5 years.

-   The clauses do not alter the ability of the partner to assert
    copyright in its works of authorship created under the SAA, but the
    partner is required to grant NASA a license in the copyrighted
    material to reproduce, distribute, and prepare derivative works for
    any purpose.

Data Rights sample clause 2.2.10.1.3 (For the Benefit of a Foreign
Entity):

-   Where NASA is performing reimbursable work for a domestic partner
    that is for the benefit of a foreign entity[^32], guidance in NPD
    1370.1 must be followed. Among other requirements, NPD 1370.1
    provides that reimbursable work for the benefit of a foreign entity
    must provide a benefit to NASA or to the public. In reimbursable
    SAAs for: (1) safety-related analysis and testing in NASA
    facilities, or (2) fundamental research related to NASA's
    mission,[^33] benefits to NASA or to the public are normally
    provided through shared data rights or broad dissemination of the
    results.[^34]

-   For any reimbursable work mentioned above, Data Rights sample clause
    2.2.10.1.3 must be used unless other data rights provisions are
    approved by OER, on a case-by-case basis.

-   Other domestic SAAs that may be for the benefit of a foreign entity
    but do not involve fundamental research or safety-related analysis
    and testing in NASA facilities may incorporate the traditional data
    rights clauses utilized in other reimbursable SAAs, clauses
    2.2.10.1.1 and 2.2.10.1.2., in accordance with the guidance provided
    for those clauses.

Data Rights sample clause 2.2.10.1.4 (Free Exchange of Data):

-   To be used in SAAs where the parties plan to exchange all data and
    information without any use and disclosure restrictions, except as
    required by law.

While consistency is the goal, any of the data rights 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 Addendum clause (2.2.10.1.2) may be added to the Basic clause
(2.2.10.1.1) as needed and applicable. Additionally, NASA project
personnel involved in the SAA should be consulted to ensure that the
scope of NASA's right to use the partner's proprietary data is
sufficiently broad to carry out programmatic goals. Other matters, such
as special treatment of computer software, may be provided as an
addition to the Basic clause when required based on the nature of the
activities to be carried out. NASA Policy [NPR
2210.1A](http://nodis3.gsfc.nasa.gov/lib_docs.cfm?range=2___) should be
followed when addressing protection of computer software in an SAA.

Data Rights sample clause 2.2.10.1.1 the "No Expected Proprietary Data
Exchange clause (Basic Clause) is to be used in SAAs where: (a) no third
party proprietary data or U.S. Government Sensitive But Unclassified
(SBU) data[^35] will be provided to the partner, and (b) no partner
background data (proprietary data developed at private expense that
existed prior to or was produced outside of the SAA) will be provided to
NASA. Further, while proprietary data is not intended to be developed
and exchanged under SAAs using the Basic clause, protection of such data
is provided in the event such development and exchange should occur.
Where applicable, the Basic clause provides alternate paragraphs for use
in nonreimbursable or reimbursable SAAs. Where no such alternate
paragraph is provided, the paragraph should be used in both
nonreimbursable and reimbursable SAAs.

To the extent data marked as proprietary is furnished to NASA, the
clause sets out the permitted use of such proprietary data. The
treatment of proprietary data produced by the partner under the SAA
varies depending on whether NASA is reimbursed for its activities under
the SAA. For nonreimbursable SAAs, the consideration received from the
partner includes the right of the U.S. Government to use or disclose
such data for U.S. Government purposes. For fully reimbursable SAAs,
since no additional consideration beyond full reimbursement is needed,
NASA normally agrees that, upon completion of all activities under the
SAA, NASA will retain no rights to use or disclose such data, but will
dispose of the data as requested by the Partner. Where NASA accepts
reimbursement for less than the full cost of its activities under an SAA
(partial reimbursement), additional benefits received may include the
right to use and disclose such data for U.S. Government purposes.
Accordingly, the nonreimbursable alternate paragraphs may be used.

Data first produced by NASA under the SAA that would qualify as
proprietary data if it had been obtained from the partner,[^36] can be
restricted upon request by the partner for a period of up to 5 years
(where the partner has not made such a request, NASA has discretion to
restrict such data). Typically, the restriction period is 1 or 2 years.
NASA project personnel involved in the SAA should be consulted to ensure
that the restriction period is no longer than necessary. The treatment
of such data during and after the restriction period varies depending on
whether NASA is reimbursed for its activities. For nonreimbursable SAAs,
during the restricted period such data can only be disclosed and used by
the U.S. Government for U.S. Government purposes. After the restricted
period such data can be used for any purpose. For reimbursable SAAs,
such data will only be used for carrying our NASA's responsibilities
under the SAA and, upon completion of SAA activities, such data will be
disposed of as requested by the partner. Where NASA accepts
reimbursement for less that the full cost of its activities under an
SAA, but additional benefits are received, the nonreimbursable alternate
paragraphs may be used. Data disclosing an invention owned by NASA for
which patent protection is being considered is not generally restricted
under these provisions.

Additionally, recognizing that section 203 of the Space Act (42 U.S.C. §
2473(a)(3)) requires NASA to provide for the widest practicable and
appropriate dissemination of information concerning its activities and
the results thereof and that the dissemination of the results of NASA
activities is one of the considerations for entering into most SAAs, the
Basic clause addresses the rights of the parties related to their
respective ability to publish the results obtained from the SAA. For
nonreimbursable SAAs, the parties agree to coordinate any proposed
publication of results with each other in a manner that allows each
party a reasonable amount of time to review and comment on proposed
publication. For reimbursable SAAs, NASA agrees that it will not publish
any results without first receiving permission from the partner.[^37]

The Basic clause also recognizes the right of the partner to assert
copyright in works produced both outside of and under the SAA. However,
with respect to works produced outside of the SAA, the receiving party
and others acting on its behalf, may reproduce, distribute, and prepare
derivative works only for carrying out the receiving party's
responsibilities under the SAA. With respect to works produced under the
SAA, the receiving party and others acting on its behalf may reproduce,
distribute, and prepare derivative works for any purpose. Finally, the
Basic clause addresses data disclosing an invention and data subject to
export control.

> [*2.2.10.1.1*. *Intellectual Property Rights - Data Rights (No
> Expected Proprietary Data Exchange Sample Clause)*](#Cl2IIx1i)

Data Rights sample clause 2.2.10.1.2 the Proprietary Data Exchange
Addendum (Addendum) is added to the Basic clause in SAAs where there is
any likelihood that:

\(1\) third party proprietary data or U.S. Government SBU data will be
provided to the partner, or (2) partner background data will be provided
to NASA. For example, the Addendum is used in cooperative or
collaborative SAAs in which research, experimental, developmental,
engineering, demonstration, or design activities are to be carried out
and it is likely that proprietary data will be developed or exchanged.
The Addendum adds additional provisions to the Basic clause since more
procedural specificity is necessary to address matters that often arise
when it is anticipated that proprietary data is to be developed or
exchanged. The provisions added by the Addendum are the same for both
nonreimbursable and reimbursable SAAs.

The Addendum addresses NASA's right to use the partner's background data
and provides for listing specific background data that the parties know
will be exchanged, or anticipate may need to be exchanged, under the
SAA. The Addendum also includes provisions on handling of data that
specify the responsibilities of the partner related to the protection
of: (1) proprietary data (including computer software) of third parties;
and (2) U.S. Government SBU data (including computer software). To the
extent such data can be identified at the beginning of the SAA, this
provision requires such data to be specifically identified.

A final provision of the Addendum allows the partner to orally or
visually disclose information it believes to be proprietary data,
provided: (1) before such oral or visual disclosure is made, the partner
advises NASA that such information is considered to be proprietary data,
and (2) within 10 calendar days after such oral or visual disclosure is
made, the partner reduces the information to a tangible, recorded form
that is appropriately marked and provides the marked data to NASA.
Sometimes, the partner wants more than 10 calendar 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.
If more than 10 calendar days is requested, the Office of the General
Counsel or Chief Counsel, as appropriate, should be consulted. Lastly,
an optional provision is provided for use in the event that access to,
acquisition of, or delivery of classified material is required under the
SAA.

> [*2.2.10.1.2. Intellectual Property Rights - Data Rights (Proprietary
> Data Exchange Addendum)*](#Cl2IIx1ii)

Data Rights sample clause 2.2.10.1.3, the [For the Benefit of a Foreign
Entity]{.underline} Data Rights clause is to be used in reimbursable
SAAs with domestic partners where the reimbursable work is for
fundamental research or for safety related analysis and testing in NASA
facilities and the work is ultimately for the benefit of a foreign
entity. In SAAs meeting these criteria, the use of any alternate data
rights clauses must be reviewed and approved by OER on a case-by-case
basis.[^38]

> [*2.2.10.1.3. Intellectual Property Rights -- Data Rights
> (Reimbursable SAA For the Benefit of a Foreign Entity Sample
> Clause)*](#Cl2IIx1iii)

Where a reimbursable SAA for the benefit of a foreign entity does not
meet the criteria described above, Data Rights clauses 2.2.10.1.1 and
2.2.10.1.2 are used in accordance with applicable guidance for those
clauses as provided above.

Data Rights sample clause 2.2.10.1.4, the [Free Exchange of
Data]{.underline} clause is to be used in SAAs where the parties plan to
exchange all data and information without any use and disclosure
restrictions except as required by law. Examples of such circumstances
include SAAs involving non-technical activities such as strategic
alliances,[^39] SAAs for educational or public outreach, or community or
public affairs events.

> [*2.2.10.1.4. Intellectual Property Rights -- Data Rights (Free
> Exchange of Data Sample Clause)*](#Cl2IIx1iV)

**2.2.10.2. RIGHTS IN RAW DATA GENERATED UNDER THE
AGREEMENT**[]{#__RefHeading___Toc203815537 .anchor}

The Data Rights clauses above, address the rights of the parties to
publish the overall results obtained under an SAA. In SAAs that include
fundamental research or analysis of raw data (i.e., unanalyzed data
usually of a scientific nature) by one or more Principal Investigators
(PIs), consideration should be given to rights in raw data generated
under the SAA. Such SAAs are generally related to research resulting
from earth or space science missions, or analysis of earth or space
science satellite raw data.

For space science activities, the SAA may reserve for the PIs a limited
period of exclusive use of the raw data. The parties usually agree that
the raw data derived from experiments will be reserved to the PIs named
in the SAA for scientific analysis purposes and first publication rights
for a set period of time. The reservation period should be as brief as
practicable, and 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, PIs may be
requested to share the data with other investigators, including
interdisciplinary scientific and guest investigators, to enhance the
scientific return from the mission (or program). Any such data-sharing
procedures should be established in the SAA taking into consideration
the first publication rights of the PIs. Following the period of
exclusive use, the parties customarily agree to deposit the data in
designated data repositories or data libraries, as appropriate, in order
to make the data available to the broader scientific community.

In contrast, it is the practice in the Earth Science community to make
its data widely available as soon as practicable after its acquisition
and on-orbit calibration and validation. Their SAAs generally do not
include any period of exclusive access for any user group, including
PIs. The data is generally deposited in data repositories or data
libraries available to the public.

[*2.2.10.2. Intellectual Property Rights - Rights in Raw Data (Sample
Clause)*](#Cl2IIx2)

Use of this clause requires the PI(s) and the exclusive use period of
data for the PI or an identified group of researchers to be specifically
identified in the SAA. Identify the exclusive use period even is there
will be no provision for an exclusive use period, i.e., the period is
zero. Where there is no identified PI or period of exclusive use, this
clause should not be included in the SAA.

**2.2.10.3. INVENTION AND PATENT RIGHTS**[]{#__RefHeading___Toc203815538
.anchor}

An SAA is an "other transaction" authorized by section 203(c) of the
Space Act (42 U.S.C. § 2473(c)) and is not a procurement contract.[^40]
The fact that an SAA is not a procurement 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[^41] than under an SAA.[^42]

Under an SAA, if a nongovernmental partner *performs work of an
inventive type for NASA*, then section 305(a) applies. Under such a
relationship, the partner may obtain title to inventions it makes under
the SAA through an advance or individual waiver,[^43] and NASA benefits
through retention of a government purpose license in the invention, as

well as from the available commercial source of a needed technology. On
the other hand, if a partner *does not perform work of an inventive type
for NASA*, then section 305(a) does not apply, and NASA can tailor the
allocation of invention and patent rights according to the activities of
the SAA and the contributions of the parties. Because most SAAs do not
involve work of an inventive nature being performed by the partner for
NASA, NASA obtains no rights in inventions made solely by the partner
under most SAAs. A case-by-case analysis is required to determine
whether work to be performed by the partner under the SAA *is being
performed for NASA*. For factors to consider when making this
determination, refer to the description of the Section 305(a) invention
and patent rights sample clause (2.2.10.3.3) below.

The invention and patent rights sample clauses reflect NASA's basic
approach that has evolved over the years for commonly encountered
circumstances. Sample clauses 2.2.10.3.1 and 2.2.10.3.2 are intended for
use where the partner *is not performing work under the SAA for NASA*.
Sample clause 2.2.10.3.1 is used when there is a low probability of an
invention resulting from the proposed activities. Sample clause
2.2.10.3.2 is used where there is greater than a low probability that an
invention will result from the proposed activities. Sample clause
2.2.10.3.3 is intended for use where the partner *is performing work
under the SAA for NASA*. In the case where the partner is performing
work for NASA, the probability of an invention resulting from the
proposed work is not a consideration for clause selection.

*Note*: Any invention made under an SAA by a NASA employee or employee
of a NASA related entity (where NASA acquires title from its related
entity) on which the partner requests a license must be licensed in
accordance with 37 C.F.R. Part 404, *Licensing of Government Owned
Inventions*, and NASA must retain a Government-purpose license.

The [Short Form]{.underline} invention and patent rights clause
(2.2.10.3.1) is to be used in SAAs where the probability that an
invention may result from the activities to be carried out under the SAA
by either NASA or the partner is low (*e.g.*, use of facilities to
provide test and evaluation of a partner's hardware, or a technology
exchange agreements), and the partner *is not performing work for NASA*.
The Short Form assures that no background rights in intellectual
property are to be acquired. In addition, in the unlikely event that an
invention may be made under the SAA, the Short Form adopts the policy
that each party keeps rights to its own intellectual property (which
would occur under the common law, lacking an express agreement to the
contrary). The clause also provides that the parties will discuss and
agree on rights and responsibilities for the filing of patent
applications, and the licensing of such applications and resulting
patents, should there be a joint invention. Under these circumstances,
and under this policy, it should make no difference whether the
activities under the SAA are reimbursable or nonreimbursable, and
therefore, the clause is used in both reimbursable or nonreimbursable
SAAs when the proposed work will not be performed for NASA, and the
probability is low that either party will carry out inventive (or
creative) activities under the SAA.

> *[2.2.10.3.1. Intellectual Property Rights - Invention and Patent
> Rights (Short Form Sample Clause)](#Cl2IIx3i)*

In SAAs involving non-technical activities, there is no probability that
inventions will result. Thus, no invention and patent rights clause is
required in such SAAs. However, if an invention and patent rights clause
is desired, the Short Form clause may be used. Examples of such
non-technical SAAs include strategic alliances,[^44] SAAs for
educational or public outreach, or community or public affairs events.

The [Long Form]{.underline} invention and patent rights clause
(2.2.10.3.2) is to be used in all SAAs where the probability that an
invention may result from the activities to be carried out under the SAA
by either NASA or the partner is other than low (*i.e.*, there is a
medium or high likelihood that work of an inventive type will result),
and the partner *is not performing work for NASA*. For example, if
proposed activities under the SAA involve research and development
(R&D), the probability that an invention may result from the R&D
activities is other than low. Thus, in situations where the Long Form is
used, while the partner may perform work of the type that could result
in inventions being made, the partner is not performing such work of an
inventive type *for* NASA.

Where applicable, the Long Form clause provides alternate paragraphs for
use in nonreimbursable or reimbursable SAAs. Where no such alternate
paragraph is provided, the paragraph should be used in both
nonreimbursable and reimbursable SAAs. As with the data rights clauses,
where NASA accepts reimbursement for less than the full cost of its
activities under an SAA, but additional non-monetary benefits are
received, the nonreimbursable alternate paragraphs may be used.

As under the Short Form, the principle that each party keeps rights to
its own intellectual property applies. Thus, NASA generally acquires no
rights to any invention made solely by the partner, but may negotiate a
license to use a partner invention for research, experimental, and
evaluation purposes. As an incentive to commercialize NASA developed
technology, NASA will use reasonable efforts to grant the partner a
license[^45] (on terms and conditions to be negotiated) to any invention
made under the SAA by NASA employees or a NASA related entity (where
NASA acquires title from its related entity). Normally, NASA grants
licenses only to inventions on which it has filed, or intends to file, a
patent application. As to joint inventions (inventions made jointly by
the partner and NASA or its related entities where NASA acquires title
from its related entity), NASA may agree to refrain from exercising its
undivided interest in joint inventions in a manner inconsistent with the
partner's commercial interests or may use reasonable efforts to grant
the partner an exclusive or partially exclusive license in its undivided
interest.

Any license to the partner will be subject to the retention of a
government purpose license and a nonexclusive license to the NASA
related entity (where title is acquired from a related entity). For
reimbursable SAAs where NASA is reimbursed for the full cost of its
participation under the SAA, NASA will use reasonable efforts to limit
use under the Government purpose license to use by or on behalf of NASA
for research, experimental, or evaluation purposes. Consistent with
Government-wide regulations, all licenses to the partner will be
revocable. For example, the license may be revoked if the invention is
not commercialized consistent with NASA (and Government-wide) policy on
licensing inventions. Normally, licenses are royalty‑bearing and thus
provides an opportunity for royalty‑sharing with the Government
employee-inventor consistent with NASA and Government-wide policy under
the National Technology Transfer and Advancement Act (P.L. 104-113) (15
U.S.C. § 3710 *et seq.*, as amended). Additionally, under
Government-wide policy, NASA may share royalties with a partner-inventor
who assigns patent rights directly to the Government.

> [*2.2.10.3.2. Intellectual Property Rights -* *Invention and Patent
> Rights (Long Form Sample Clause)*](#Cl2IIx3ii)

The Section 305(a) invention and patent rights sample clause
(2.2.10.3.3) is to be used in SAAs where a partner *is performing work
for NASA*. The probability that the proposed work may result in an
invention is not a consideration for use of the Section 305(a) clause.
For example, even if there is a low probability that work of an
inventive type will result, if the work is being performed for NASA and
an invention does result (however unlikely), the Section 305(a) clause
is the proper clause. Under section 305(a) of the Space Act, title to
inventions developed by the partner under these SAAs vest in the U.S.
Government. However, under section 305(f), the partner may receive title
through the NASA waiver process. NASA will liberally grant both advance
and individual waivers to SAA partners for the purpose of
commercializing the waived invention.

A case-by-case analysis is required to determine when work to be
performed by the partner under the SAA *is being performed for NASA*. To
make this determination, the following factors should be considered:

> 1\. Whether the partner will be reimbursing NASA for its contributions
> -- Generally, under reimbursable SAAs, work is not being done \"for
> NASA,\" and section 305(a) of the Space Act does not apply to rights
> in inventions.
>
> 2\. Whether work under the SAA involves research and development (R&D)
> -- Generally, if R&D activities to be performed by the partner are
> intended for NASA's direct benefit, section 305(a) applies. If
> research and development activities of the partner relate to a
> cooperative effort "with NASA" rather than a directed effort "for
> NASA," section 305(a) does not apply. In determining whether the SAA
> is a true cooperative arrangement, the partner's planned use of any
> inventions developed under the SAA, while not determinative, should be
> considered. For example, the partner is more likely to perform
> inventive work for its own benefit if marketing the technology in the
> commercial marketplace is the primary economic rationale for entering
> the SAA (*e.g.*, the partner has an existing commercial market for the
> technology at issue). Alternatively, the partner is more likely to
> perform inventive work for NASA if selling the technology to NASA is
> the primary economic rationale for entering the SAA (*e.g.*, the
> partner is a historical NASA contractor and plans to sell the
> inventive work back to NASA).
>
> 3\. Whether work to be performed by the partner under the SAA is
> required by NASA in order to meet a specific identified mission or
> programmatic requirement. Generally, under nonreimbursable SAAs, if
> work to be performed by the partner is not needed to satisfy a
> specific identified mission/programmatic requirement, then the
> partner's work is not being performed for NASA and section 305(a) does
> not apply, even if achievements or advancements that may result from a
> partner's efforts will benefit NASA to the extent the agency decides
> to incorporate them into a NASA program at a future time. If, on the
> other hand, the primary purpose of the SAA is to produce a specific
> technology (or improvement to an existing technology) needed to
> accomplish an identified mission/programmatic requirement, then the
> work is being performed for NASA, and section 305(a) applies.

When the foregoing analysis indicates that work is being performed for
NASA, the Section 305(a) sample clause 2.2.10.3.3 should be used. When
it is determined that work is not being performed for NASA, sample
clause 2.2.10.3.3 does not apply, and the appropriate invention and
patent rights clause is selected from sample clauses 2.2.10.3.1 or
2.2.10.3.2 as described above. The Office of the General Counsel or
Chief Counsel, as appropriate, should be included early in the
determination of whether work is being performed for NASA.

Additionally, NASA will use reasonable efforts to grant the partner an
exclusive or partially exclusive license, consistent with the
requirements of 37 C.F.R Part 404, to any invention made under the SAA
by NASA employees or a NASA related entity (where NASA acquires title
from its related entity). The foregoing also applies to any undivided
interest NASA acquires for any invention made jointly with the partner
under an SAA.

> [*2.2.10.3.3. Intellectual Property Rights -* *Invention and Patent
> Rights (Section 305(a) Sample Clause)*](#Cl2IIx3iii)

**2.2.10.4. PATENT AND COPYRIGHT USE \-- AUTHORIZATION, CONSENT, AND
INDEMNIFICATION**[]{#__RefHeading___Toc203815539 .anchor}

One of the remedies available to a patent owner for patent infringement
is an injunction preventing the alleged infringer from making, using, or
selling the patented invention. However, under 14 U.S.C. § 1498(a), such
an injunction is not available when the use or manufacture is by or for
the United States and with the authorization and consent of the U.S.
Government. Similarly, one of the remedies available to a copyright
owner for copyright infringement is an injunction preventing the alleged
infringer from reproducing the copyrighted work, preparing derivative
works based upon the copyrighted work, distributing copies of the
copyrighted work to the public, or performing or displaying the
copyrighted work publicly. However, under 14 U.S.C. § 1498(b), such an
injunction is not available when such infringement is by or for the
United States and with the authorization and consent of the U.S.
Government. In both cases, the intellectual property rights owner's sole
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.[^46]

Generally, if the Invention and Patent Rights-Section 305(a) sample
clause is included in an SAA (*i.e.*, where the partner is performing
work under the SAA for NASA), and the NASA patent or intellectual
property counsel determines that activities of the partner, or its
related entities, required to fulfill the purpose of the SAA are likely
to be legally enjoined by a patent or copyright owner in the U.S., then
the Authorization and Consent sample clause should be included 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 SAA. If the clause
was not initially included in the SAA, it can be added by the parties by
mutual agreement. The Authorization and Consent clause may be included
in SAAs that do not include the Section 305(a) clause if the NASA patent
or intellectual property counsel determines that its inclusion may be
necessary to fulfill the purpose of the SAA.

Whenever the Authorization and Consent clause is included in an SAA, the
NASA patent or intellectual property counsel should be consulted to
determine whether the Indemnification Clause should be included to
protect the U.S. Government financially if infringement liability is
incurred.

> *[2.2.10.4.1. Patent and Copyright Use - Authorization and Consent
> (Sample Clause)](#Cl2IIx4i)*
>
> [*2.2.10.4.2. Patent and Copyright Use - Indemnification (Sample
> Clause)*](#Cl2IIx4ii)

[]{#Ch2IIxi .anchor}**2.2.11. USE OF NASA NAME AND EMBLEMS AND RELEASE
OF GENERAL INFORMATION TO THE PUBLIC**[]{#__RefHeading___Toc203815540
.anchor}

Sample clause 2.2.11, which addresses the partner's use of the NASA name
and emblems, should be used in all SAAs. The Space Act prohibits the
knowing use of the words 'National Aeronautics and Space Administration'
or the letters 'NASA' in connection with a product or service "in a
manner reasonably calculated to convey the impression that such product
or service has the authorization, support, sponsorship, or endorsement .
. . of \[NASA\] which does not, in fact, exist."[^47] Consequently,
NASA's policy is to allow the NASA name and initials to be used in
non-NASA publications (*e.g.*, advertisements, promotional literature,
etc.) only if: (1) the use is factual and does not, either expressly or
by implication, endorse a commercial product, service or activity; and
(2) the use does not mislead in any manner. For example, statements
pertaining to facts surrounding the use of a product or service can be
permitted provided subjective statements regarding the selection, use,
and performance of the product or service are not used. Any proposed
public use by partners of the NASA name or initials must be submitted in
advance to NASA Office of Public Affairs for review and approval.

Use of NASA emblems/devices (*i.e.*, NASA Seal, NASA Insignia, NASA
logotype, NASA Program Identifiers, and the NASA Flag) is governed by 14
C.F.R. Part 1221 and requires prior review and approval by the NASA
Office of Public Affairs. Thus, permission to use any of the NASA
emblems/devices should not be granted in an SAA without the prior
written approval of the NASA Office of Public Affairs.

The clause also addresses release by a partner of general information
regarding its participation in the SAA, and review by NASA of partner
press releases about activities under the SAA and advertising and
promotional materials that may refer to NASA.

> [*2.2.11. Use of NASA Name and NASA Emblems and Release of General
> Information to the Public (Sample Clause)*](#Cl2IIxi)

[]{#Ch2IIxii .anchor}**2.2.12.
DISCLAIMERS**[]{#__RefHeading___Toc203815541 .anchor}

**2.2.12.1.** **DISCLAIMER OF WARRANTY**[]{#__RefHeading___Toc203815542
.anchor}

The Disclaimer of Warranty clause should be used when NASA provides
goods or services for use by nongovernmental entities. This sample
clause provides that goods (*i.e.*, equipment, facilities, technical
information, etc.) and services are provided "as is" and without any
warranty or guarantee that such goods and services are reliable, free of
any known defects, or in a certain condition.

[*2.2.12.1. Disclaimer of Warranty (Sample Clause)*](#Cl2IIxii1)

**2.2.12.2. DISCLAIMER OF ENDORSEMENT**[]{#__RefHeading___Toc203815543
.anchor}

NASA does not endorse or sponsor any commercial product, service, or
activity. Therefore, all SAAs with nongovernmental partners should
include a Disclaimer of Endorsement clause. The sample clause provides
that NASA's participation in the SAA does not constitute NASA's
endorsement of the results of any SAA activity, including designs,
hardware, test analysis, etc.

*[2.2.12.2. Disclaimer of Endorsement (Sample Clause)](#Cl2IIxii2)*

[]{#Ch2IIxiii .anchor}**2.2.13. COMPLIANCE WITH LAWS AND
REGULATIONS**[]{#__RefHeading___Toc203815544 .anchor}

This section places the parties on notice that they must comply with all
laws and regulations and government policies that affect or relate to
the performance of this SAA. The clause calls special attention to
safety, security, export control, and environmental laws because any
violations (non-compliance) may result in civil or criminal penalties.
The clause also calls attention to NASA security policy and guidelines
including standards on badging and facility access.

[*2.2.13. Compliance with Laws and Regulations (Sample
Clause)*](#Cl2IIxiii)

[]{#Ch2IIxiv .anchor}**2.2.14. TERM OF
AGREEMENT**[]{#__RefHeading___Toc203815545 .anchor}

This section sets forth the duration of the SAA which must state a
definite term. The effective date, the date the SAA enters into force,
is the date of last signature. Because of uncertainties as to rate of
progress, the ending date (*e.g.* expiration date) may be determined
based on two possible outcomes -- arrival at a date certain, or
completion of both parties' obligations, whichever comes first. This
second approach allows NASA to close out the SAA if all related activity
is accomplished ahead of schedule, without having to terminate the SAA.

NASA limits its SAAs to 5-year terms in all but very few cases because
any commitment of resources far into the future may be problematic since
budgets and program objectives may change. For the same reason, use of
an automatic renewal provision may be problematic. Where a commitment
exceeding five years is essential to the fundamental objectives of the
SAA, early consultation with the Office of the General Counsel or Chief
Counsel, as appropriate, is essential.

In the event performance will not be completed by the agreed upon end
date, the parties may mutually agree to extend the term of the SAA by
executing a modification. Any modification must be executed consistent
with the terms in the "Modifications" clause (2.2.20) prior to the SAA's
expiration date. Use of a modification clause to extend the SAA is
preferable to any long-term commitment by NASA. Any attempt to use a
modification clause to extend or revive the term of an expired SAA is
ineffective.

[*2.2.14.1 Term of Agreement (Sample Clause)*](#Cl2IIxiv1)

> [*2.2.14.2 Term of Task (Annex Sample Clause)*](#Cl2IIxiv2)

[]{#Ch2IIxv .anchor}**2.2.15. RIGHT TO
TERMINATE**[]{#__RefHeading___Toc203815546 .anchor}

This section delineates the conditions under which either party can
terminate an SAA. Termination notice must be in writing. The notice of
termination can be effected by letter, email, or facsimile.
Consideration should be given to the length of time needed for notice to
minimize programmatic impacts. For SAAs involving low risk activities,
it often makes sense to provide that either party may terminate after 30
days notice. Longer termination notice periods may be required where
termination has far-reaching programmatic or budgetary implications.
Such SAAs may also provide for negotiation of a termination agreement
during this period to provide for disposition of property used for
activities under the SAA or to address other outstanding issues.

*[Note]{.underline}*: Sample Clause 2.2.15.3 is only used in very rare
circumstances, for example, when the Partner is funding infrastructure
improvements to NASA property for a partially commercial business that
requires upfront investments on the part of the Partner. If NASA
required unilateral termination rights, which is generally provided in
its SAAs, the Partner would be unable to build its business and raise
capital. The question to be asked in deciding whether to use Sample
Clause 2.2.15.3 is whether the benefit to NASA justifies a significant
limitation of its termination rights as found in that clause.

> [*2.2.15.1. Right to Terminate (Nonreimbursable Agreement Sample
> Clause)*](#Cl2IIxv1)

[*2.2.15.2. Right to Terminate (Reimbursable Agreement Sample
Clause)*](#Cl2IIxv2)

> [*2.2.15.3. Right to Terminate (Reimbursable Agreement Requiring High
> Certainty of Support Sample Clause)*](#Cl2IIxv3)
>
> [*2.2.15.4 Right to Terminate (Nonreimbursable Umbrella Agreement
> Sample Clause)*](#Cl2IIxv4)
>
> [*2.2.15.5 Right to Terminate (Reimbursable Umbrella Agreement Sample
> Clause)*](#Cl2IIxv5)

[]{#Ch2IIxvi .anchor}**2.2.16. CONTINUING
OBLIGATIONS**[]{#__RefHeading___Toc203815547 .anchor}

The SAA should specify that "Liability and Risk of Loss" clauses and the
"Intellectual Property Rights" clauses survive termination or expiration
of the SAA. For reimbursable SAAs, the "Financial Obligations" clause
also survives termination or expiration of the SAA.

[*2.2.16. Continuing Obligations (Sample Clause)*](#Cl2IIxvi)

[]{#Ch2IIxvii .anchor}**2.2.17. MANAGEMENT POINTS OF
CONTACT**[]{#__RefHeading___Toc203815548 .anchor}

To establish clear management interfaces, project level, or in some
cases, program level Points of Contact (POCs) should be specified as
guided by the SAA activity and the management framework of both parties.
For example, in larger projects, there may be program managers
identified as having management oversight, and program scientists
designated as key officials for all science goals. For NASA, the POCs
should always be NASA employees. Principal Investigators should also be
identified in SAAs if the Intellectual Property Rights -- Rights in Raw
Data sample clause (2.2.10.2) is used.

[*2.2.17.1 Management Points of Contact (Sample Clause)*](#Cl2IIxvii1)

> [*2.2.17.2 Technical Points of Contact (Annex Sample
> Clause)*](#Cl2IIxvii2)

[]{#Ch2IIxviii .anchor}**2.2.18. DISPUTE
RESOLUTION**[]{#__RefHeading___Toc203815549 .anchor}

In general, all SAAs include a dispute resolution clause. The clause
outlines the specific procedures to be followed. SAAs include language
stating that all parties agree to consult promptly with each other on
all issues involving interpretation, implementation, or performance of
the SAA. Generally, issues are handled at the working level before being
elevated to a higher level if the parties cannot achieve resolution. If
the parties are unable to reach resolution at this level, the NASA
official at that level, or one level higher (depending on the complexity
and visibility of the SAA activity) should provide to the partner, in
writing, a final Agency decision. This final Agency decision becomes
part of the administrative record of the dispute.

*Note*: 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.

In very limited instances, NASA may agree to an approach that permits
possible settlement of disputes through an agreed form of resolution,
such as non-binding arbitration or mediation. However, both parties, at
that time, must agree to submission of the specific matter in dispute.
Agreement to any arbitration clause is highly unusual and requires
specific approval by the General Counsel.

*[2.2.18. Dispute Resolution (Sample Clause)](#Cl2IIxviii)*

[]{#Ch2IIxix .anchor}**2.2.19. MISHAP
INVESTIGATION**[]{#__RefHeading___Toc203815550 .anchor}

For domestic activities where there is the possibility of a serious
accident or mission failure occurring and the parties include non-U.S.
Government personnel, it is advisable to include a mishap investigation
clause in the SAA. NASA mishaps are conducted pursuant to [NPR
8621.1A](http://nodis3.gsfc.nasa.gov/displayDir.cfm?Internal_ID=N_PR_8621_001A_&page_name=AppendixA&search_term=8621.1A),
"NASA Procedural Requirements for Mishap Reporting, Investigating and
Recordkeeping," which may be applicable to the SAA.

[*2.2.19. Mishap Investigation (Sample Clause)*](#Cl2IIxix)

[]{#Ch2IIxx .anchor}**2.2.20.
MODIFICATIONS**[]{#__RefHeading___Toc203815551 .anchor}

This section requires that any modification (amendment) to the SAA be
executed in writing and signed by an authorized representative of each
party, usually the signing officials or, in some cases, their designees.
Furthermore, it requires that any modification that results in a
commitment of additional NASA resources be executed in writing by the
original signing officials. When modifying an Umbrella Agreement,
consideration should be given to its effect on executed Annexes.

[*2.2.20. Modifications (Sample Clause)*](#Cl2IIxx)

[]{#Ch2IIxxi .anchor}

**2.2.21. ASSIGNMENT**[]{#__RefHeading___Toc203815552 .anchor}

As a general rule, assignment of an SAA is not advisable or practical.
This clause precludes any assignment of the SAA or any rights under the
SAA to other entities without the express written permission of the
signing officials.

[*2.2.21. Assignment (Sample Clause)*](#Cl2IIxxi)

[]{#Ch2IIxxii .anchor}**2.2.22. APPLICABLE
LAW**[]{#__RefHeading___Toc203815553 .anchor}

As NASA is an agency of the Federal Government, U.S. Federal law governs
its domestic activities, and the SAA should so state. Failure to include
this clause, or making reference to state law, even where Federal law is
silent, carries legal risk. It could result in the partner seeking to
establish jurisdiction for a suit against NASA (the Agency or a Federal
officer) in a state court or otherwise applying state law to Federal
activities. This would be in violation of Federal law that 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.*).

[*2.2.22. Applicable Law (Sample Clause)*](#Cl2IIxxii)

[]{#Ch2IIxxiii .anchor}**2.2.23. INDEPENDENT
RELATIONSHIP**[]{#__RefHeading___Toc203815554 .anchor}

The other party to an SAA is referred to herein as the "partner".
However, this shorthand designation is not intended to create a formal
business organization or "partnership" as that term is normally used.
Therefore, a clause indicating that the parties to the SAA remain
independent entities and that the rights and obligations of the parties
shall be only those expressly set forth in the SAA should be included in
every SAA.

[*2.2.23 Independent Relationship (Sample Clause)*](#Cl2IIxxiii)

[]{#Ch2IIxxiv .anchor}**2.2.24. LOAN OF GOVERNMENT
PROPERTY**[]{#__RefHeading___Toc203815555 .anchor}

On occasion, government property is lended to a partner as part of a
larger SAA effort. Sample clause 2.2.24 is used when the terms of the
loan are included in an SAA covering a collaboration for which the
equipment loan is merely one element of the respective roles and
responsibilities of NASA and the partner. Alternatively, a separate loan
agreement may be used (*see* Sec. 1.8.7).

[*2.2.24 Loan of Government Property (Sample Clause)*](#Cl2IIxxiv)

[]{#Ch2IIxxv .anchor}**2.2.25 SPECIAL
CONSIDERATIONS**[]{#__RefHeading___Toc203815556 .anchor}

This section is reserved for additional Center specific requirements.

[]{#Ch2IIxxvi .anchor}**2.2.26. SIGNATORY
AUTHORITY**[]{#__RefHeading___Toc203815557 .anchor}

This section provides a signature block, as well as the typed name,
title, and date of signature for the responsible signatories for each
party. Two original copies should be signed by both parties. During
negotiations, care should be taken to identify and confirm that the
signatories have authority to bind the parties; usually they are senior
management officials (authority for NASA signing officials is provided
in NPD 1050.1H). However, NASA does not require or recommend that the
partner's signatory be required to demonstrate the requisite authority
through provision of company documents, such as a formal delegation of
authority.

[*2.2.26. Signatory Authority (Sample Clause)*](#Cl2IIxxvi)

**APPENDIX 2. SAMPLE CLAUSES -- NONREIMBURSABLE AND REIMBURSABLE
AGREEMENTS WITH DOMESTIC NONGOVERNMENTAL
ENTITIES**[]{#__RefHeading___Toc203815558 .anchor}

**2. AGREEMENT CONTENTS**

[]{#Cl2IIi1 .anchor}**2.2.1.1. Title (Nonreimbursable Agreement Sample
Clause)**

Nonreimbursable \[subtitle, as appropriate\] Space Act Agreement between
\[name of partner\] and National Aeronautics and Space Administration,
\[Center name\] for \_\_\_\_\_\_\_\_ \[state brief purpose\].

[]{#Cl2IIi2 .anchor}**2.2.1.2. Title (Reimbursable Agreement Sample
Clause)**

Reimbursable \[subtitle, as appropriate\] Space Act Agreement between
\[name of partner\] and National Aeronautics and Space Administration,
\[Center name\] for \_\_\_\_\_\_\_\_ \[state brief purpose\].

[]{#Cl2IIi3 .anchor}**2.2.1.3 Title (Annex Agreement Sample Clause)**

Annex between the National Aeronautics and Space Administration,
\[Center Name\], and \[name of partner\] under Space Act Agreement No.
\_\_\_\_\_\_\_, Dated \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

[]{#Cl2IIii .anchor}**2.2.2. Authority and Parties (Sample Clause)**

In accordance with The National Aeronautics and Space Act of 1958, as
amended

(42 U.S.C. § 2473 (c)), this Agreement is entered into by the NASA
\[Center name\] located at \_\_\_\_\_\_\_\_ (hereinafter referred to as
"NASA" or "NASA \[Center initials\]" and \_\_\_\_\_\_\_\_ Corporation
located at \_\_\_\_\_\_\_\_ (hereinafter referred to as "Partner"). NASA
and Partner may be individually referred to as a "Party" and
collectively referred to as the "Parties."

[]{#Cl2IIiii1 .anchor}**2.2.3.1 Purpose (Sample Clause)**

This Agreement shall be for the purpose of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

[]{#Cl2IIiii2 .anchor}**2.2.3.2 Purpose and Implementation (Umbrella
Agreement Sample Clause)**

This Umbrella Agreement shall be for the purpose of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

The Parties will execute one (1) Annex concurrently with this Umbrella
Agreement. Subsequent Annexes are authorized under this Umbrella
Agreement consistent with the purpose and terms of this Umbrella
Agreement. Each Annex will detail the specific purpose of the proposed
activity, responsibilities, schedule and milestones, and any personnel,
property or facilities to be utilized under the task. This Umbrella
Agreement takes precedence over any Annexes. In the event of a conflict
between the Umbrella Agreement and any Annex concerning the meaning of
its provisions, and the rights, obligations and remedies of the Parties,
the Umbrella Agreement is controlling.

[]{#Cl2IIiv1 .anchor}**2.2.4.1. Responsibilities (Sample Clause)**

NASA\[Center initials\] will use reasonable efforts to:

1\.

2\.

3\.

Partner will use reasonable efforts to:

1\.

2\.

3\.

[]{#Cl2IIiv2 .anchor}**2.2.4.2.** **Responsibilities (Technical Exchange
Agreement Sample Clause)**

NASA will provide Partner on a reasonable efforts, non-interference
basis publicly available technical data and other information that is
requested, in writing, by Partner and is necessary to Partner's design,
planning, or construction of its planned \_\_\_\_\_. Partner 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 Partner's requests
for information.

[]{#Cl2IIiv3 .anchor}**2.2.4.3 Responsibilities (Umbrella Agreement
Sample Clause)**

NASA\[Center initials\] will use reasonable efforts to:

1\. Provide support of projects undertaken in any Annex;

2\. Provide internal coordination of approvals for Annexes;

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

Partner will use reasonable efforts to:

1\. Provide support of projects undertaken in any Annex;

2\. Provide internal coordination of approvals for Annexes;

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

[]{#Cl2IIiv4 .anchor}**2.2.4.4. Responsibilities (Annex Sample Clause)**

NASA\[Center initials\] will use reasonable efforts to:

1\.

2\.

3\.

Partner will use reasonable efforts to:

1\.

2\.

3\.

[]{#Cl2IIv1 .anchor}**2.2.5.1 Schedule and Milestones (Sample Clause)**

The planned major milestones for the activities defined in the
"Responsibilities" clause are as follows:

[]{#Cl2IIv2 .anchor}**2.2.5.2 Schedules and Milestones (Umbrella
Agreement Sample Clause)**

The Parties will execute one (1) Annex concurrently with this Umbrella
Agreement. Additional Annexes will be performed on the schedule and in
accordance with the milestones set forth in such Annex.

[]{#Cl2IIv3 .anchor}**2.2.5.3 Schedules and Milestones (Annex Sample
Clause)**

The planned major milestones for the activities defined in the
"Responsibilities" clause are as follows:

[]{#Cl2IIvi1 .anchor}**2.2.6.1. Financial Obligations (Nonreimbursable
Agreement Sample Clause)**

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

[]{#Cl2IIvi2 .anchor}**2.2.6.2. Financial Obligations (Reimbursable
Agreement Sample Clause)**

1\. Partner agrees to reimburse NASA an estimated cost of (\$ total
dollars) for NASA to carry out its responsibilities under this
Agreement. In no event will NASA transfer any U.S. Government funds to
Partner under this Agreement. Payment must be made by Partner in advance
of initiation of NASA's efforts. \[For incremental payments, insert
payment schedule.\] Advance payments shall be scheduled to ensure that
funds are resident with NASA before Federal obligations are incurred in
support of this Agreement.

2\. Payment shall be payable to the National Aeronautics and Space
Administration through \[choose one form of payment: U.S. Treasury
FEDWIRE Deposit System, Federal Reserve Wire Network Deposit System,
pay.gov at [https://www.nssc.nasa.gov/portal/site/
customerservice/menuitem.bb29c518138071c056969daf4dd72749](https://www.nssc.nasa.gov/portal/site/ customerservice/menuitem.bb29c518138071c056969daf4dd72749),
or check. A check should be payable to NASA \[Insert Center Name\] and
sent to: NASA Shared Services Center; FMD -- Accounts Receivable; Bldg
1111, C Road; Stennis Space Center, MS  39529.

3\. NASA will not provide services or incur costs beyond the available
funding amount. Although NASA has made a good faith effort to accurately
estimate its costs, it is understood that NASA provides no assurance
that the proposed effort under this Agreement will be accomplished for
the above estimated amount. Should the effort cost more than the
estimate, Partner will be advised by NASA as soon as possible. Partner
shall pay all costs incurred and have the option of canceling the
remaining effort, or providing additional funding in order to continue
the proposed effort under the revised estimate. Should this Agreement be
terminated, or the effort completed at a cost less than the agreed-to
estimated cost, NASA shall account for any unspent funds within \[Insert
timeframe, cannot exceed one (1) year\] after completion of all effort
under this Agreement, and promptly thereafter, return any unspent funds
to Partner.

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

[]{#Cl2IIvi3 .anchor}**2.2.6.3 Financial Obligations (Reimbursable
Umbrella Agreement Sample Clause)**

1\. Partner agrees to reimburse NASA as set forth in each Annex for NASA
to carry out its responsibilities under this Agreement. In no event will
NASA transfer any U.S. Government funds to Partner under this Agreement.
Partner shall make payment in advance of initiation of NASA's efforts.
Advance payments shall be scheduled to ensure that funds are resident
with NASA before Federal obligations are incurred in support of this
Agreement.

2\. Payment shall be payable to the National Aeronautics and Space
Administration through \[choose one form of payment: U.S. Treasury
FEDWIRE Deposit System, Federal Reserve Wire Network Deposit System,
pay.gov at [https://www.nssc.nasa.gov/portal/site/
customerservice/menuitem.bb29c518138071c056969daf4dd72749](https://www.nssc.nasa.gov/portal/site/ customerservice/menuitem.bb29c518138071c056969daf4dd72749),
or check. A check should be payable to NASA \[Insert Center Name\] and
sent to: NASA Shared Services Center; FMD -- Accounts Receivable; Bldg
1111, C Road; Stennis Space Center, MS  39529.

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

[]{#Cl2IIvi4 .anchor}

**2.2.6.4 Financial Obligations (Reimbursable Annex Sample Clause)**

1\. Partner agrees to reimburse NASA an estimated cost of (\$ total
dollars) for NASA to carry out its responsibilities under this Annex.

2\. NASA will not provide services or incur costs beyond the available
funding amount. Although NASA has made a good faith effort to accurately
estimate its costs, it is understood that NASA provides no assurance
that the proposed effort under this Annex will be accomplished for the
estimated amount. Should the effort cost more than the estimate, Partner
will be advised by NASA as soon as possible. Partner shall pay all costs
incurred and have the option of canceling the remaining effort, or
providing additional funding in order to continue the proposed effort
under the revised estimate. Should this Annex be terminated, or the
effort completed at a cost less than the agreed-to estimated cost, NASA
shall account for any unspent funds within one (1) year after completion
of all effort under this Annex, and promptly thereafter, at Partner's
option return any unspent funds to Partner or apply such unspent fund to
other activities under this Agreement

[]{#Cl2IIvii .anchor}**2.2.7. Priority of Use (Sample Clause)**

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

[]{#Cl2IIviii .anchor}**2.2.8. 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.

[]{#Cl2IIix1i .anchor}

**2.2.9.1.1. Liability and Risk of Loss (Cross-Waiver Sample Clause)**

1\. Each Party hereby waives any claim against the other Party,
employees of the other Party, the other Party's Related Entities
(including but not limited to contractors and subcontractors at any
tier, grantees, investigators, customers, users, and their contractors
or subcontractor at any tier), or employees of the other Party's Related
Entities for any injury to, or death of, the waiving Party's employees
or the employees of its Related Entities, or for damage to, or loss of,
the waiving Party's property or the property of its Related Entities
arising from or related to activities conducted under this Agreement,
whether such injury, death, damage, or loss arises through negligence or
otherwise, except in the case of willful misconduct.

2\. Each Party further agrees 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 conducted
under this Agreement. Additionally, each Party shall require that their
Related Entities extend this cross-waiver to their 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 conducted under this
Agreement.

[]{#Cl2IIix1ii .anchor}**2.2.9.1.2. Liability and Risk of Loss
(Cross-Waiver of Liability for Agreements Involving Activities Related
to the ISS Sample Clause) (Based on 14 CFR 1266.102).**

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

2\. For the purposes of this Article:

a\. 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.  

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

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

d\. The term "Payload" means all property to be flown or used on or in a
Launch Vehicle or the ISS.

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

> \(i\) Research, design, development, test, manufacture, assembly,
> integration, operation, or use of Launch Vehicles or Transfer
> Vehicles, the ISS, Payloads, or instruments, as well as related
> support equipment and facilities and services; and
>
> \(ii\) All activities related to ground support, test, training,
> simulation, or guidance and control equipment and related facilities
> or services.

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

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

f\. The term "Related Entity" means:

> \(i\) A contractor or subcontractor of a Party or a Partner State at
> any tier;
>
> \(ii\) A user or customer of a Party or a Partner State at any tier;
> or
>
> \(iii\) A contractor or subcontractor of a user or customer of a Party
> or a Partner State at any tier.

The terms "contractor" and "subcontractor" include suppliers of any
kind.

The term "Related Entity" may also apply to a State, or an agency or
institution of a State, having the same relationship to a Partner State
as described in paragraphs (2)(f)(i) through (2)(f)(iii) of this Article
or otherwise engaged in the implementation of Protected Space Operations
as defined in paragraph (2)(e) above.

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

3\. Cross-waiver of liability:

a\. 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 (3)(a)(i) through (3)(a)(iv) of this Article based
on Damage arising out of Protected Space Operations. This cross-waiver
shall apply only if the person, entity, or property causing the Damage
is involved in Protected Space Operations and the person, entity, or
property damaged is damaged by virtue of its involvement in Protected
Space Operations. The cross-waiver shall apply to any claims for Damage,
whatever the legal basis for such claims, against:

> \(i\) Another Party;
>
> \(ii\) A Partner State other than the United States of America;
>
> \(iii\) A Related Entity of any entity identified in paragraph
> (3)(a)(i) or (3)(a)(ii) of this Article; or
>
> \(iv\) The employees of any of the entities identified in paragraphs
> (3)(a)(i) through (3)(a)(iii) of this Article.

b\. In addition, each Party shall, by contract or otherwise, extend the
cross-waiver of liability, as set forth in paragraph (3)(a) of this
Article, to its Related Entities by requiring them, by contract or
otherwise, to:

> \(i\) Waive all claims against the entities or persons identified in
> paragraphs (3)(a)(i) through (3)(a)(iv) of this Article; and
>
> \(ii\) Require that their Related Entities waive all claims against
> the entities or persons identified in paragraphs (3)(a)(i) through
> (3)(a)(iv) of this Article.

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

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

> \(i\) Claims between a Party and its own Related Entity or between its
> own Related Entities;
>
> \(ii\) Claims made by a natural person, his/her estate, survivors or
> subrogees (except when a subrogee is a Party to this Agreement or is
> otherwise bound by the terms of this cross-waiver) for bodily injury
> to, or other impairment of health of, or death of, such person;
>
> \(iii\) Claims for Damage caused by willful misconduct;
>
> \(iv\) Intellectual property claims;
>
> \(v\) Claims for Damage resulting from a failure of a Party to extend
> the cross-waiver of liability to its Related Entities, pursuant to
> paragraph (3)(b) of this Article; or
>
> \(vi\) Claims by a Party arising out of or relating to another Party's
> failure to perform its obligations under this Agreement.

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

[]{#Cl2IIix1iii .anchor}**2.2.9.1.3. Liability and Risk of Loss --
Cross-Waiver (Cross-Waiver of Liability for Launch Agreements for
Science or Space Exploration Activities Unrelated to the ISS Sample
Clause) (Based on 14 CFR 1266.104).**

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

2\. For purposes of this Article:

a\. 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.

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

c\. The term "Payload" means all property to be flown or used on or in a
Launch Vehicle.

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

> \(i\) Research, design, development, test, manufacture, assembly,
> integration, operation, or use of Launch Vehicles or Transfer
> Vehicles, Payloads, or instruments, as well as related support
> equipment and facilities and services; and
>
> \(ii\) 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 that are
conducted on return from space to develop further a Payload's product or
process for use other than for the activities within the scope of an
agreement for launch services.

e\. 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.

The terms "contractor" and "subcontractor" include suppliers of any
kind.

The term "Related Entity" may also apply to a State, or an agency or
institution of a State, having the same relationship to a Party as
described in paragraphs 2(e)(i) through 2(e)(iii) of this Article, or
otherwise engaged in the implementation of Protected Space Operations as
defined in paragraph 2.d above.

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

3\. Cross-waiver of liability:

a\. 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 3(a)(i) through 3(a)(iv) of this Article based on
Damage arising out of Protected Space Operations. This cross-waiver
shall apply only if the person, entity, or property causing the Damage
is involved in Protected Space Operations and the person, entity, or
property damaged is damaged by virtue of its involvement in Protected
Space Operations. The cross-waiver shall apply to any claims for Damage,
whatever the legal basis for such claims, against:

> i\. the other Party;
>
> ii\. A party to another NASA agreement that includes flight on the
> same Launch Vehicle;
>
> iii\. A Related Entity of any entity identified in paragraphs 3(a)(i)
> or 3(a)(ii) of this Article; or
>
> iv\. The employees of any of the entities identified in paragraphs
> 3(a)(i) through 3(a)(iii) of this Article.

b\. In addition, each Party shall extend the cross-waiver of liability,
as set forth in paragraph 3.a of this Article, to its own Related
Entities by requiring them, by contract or otherwise, to:

> \(i\) Waive all claims against the entities or persons identified in
> paragraphs 3(a)(i) through 3(a)(iv) of this Article; and
>
> \(ii\) Require that their Related Entities waive all claims against
> the entities or persons identified in paragraphs 3(a)(i) through
> 3(a)(iv) of this Article.

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

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

> \(i\) Claims between a Party and its own Related Entity or between its
> own Related Entities;
>
> \(ii\) Claims made by a natural person, his/her estate, survivors, or
> subrogees (except when a subrogee is a Party to this Agreement or is
> otherwise bound by the terms of this cross-waiver) for bodily injury
> to, or other impairment of health of, or death of, such person;
>
> \(iii\) Claims for Damage caused by willful misconduct;
>
> \(iv\) Intellectual property claims;
>
> \(v\) Claims for Damage resulting from a failure of a Party to extend
> the cross-waiver of liability to its Related Entities, pursuant to
> paragraph 3.b of this Article; or
>
> \(vi\) Claims by a Party arising out of or relating to another Party's
> failure to perform its obligations under this Agreement.

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

[]{#Cl2IIix2i .anchor}**2.2.9.2.1. Liability and Risk of Loss
(Unilateral Waiver Sample Clause**)

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

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

[]{#Cl2IIix2ii .anchor}**2.2.9.2.2. Liability and Risk of Loss
(Insurance for Damage to NASA Property Short Form Sample Clause)**

1\. Partner shall, at no cost to NASA, maintain throughout the term of
the Agreement, insurance covering loss of or damage to U.S. Government
property as a result of any activities conducted under this Agreement.
The policy must be on terms acceptable to NASA, and cover the cost of
repair or replacement, or the fair market value of (as reasonably
determined by NASA) any U.S. Government property (real or personal)
damaged as a result of activities conducted under this Agreement,
including performance by the U.S. Government or the U.S. Government's
contractors or subcontractors, at any tier.

2\. Partner shall, prior to conducting any activities under this
agreement, furnish to NASA certificates and required endorsements
evidencing such insurance. Said certificates shall state the amount of
all deductibles and shall contain evidence that the policy or policies
shall not be canceled or altered without at least thirty (30) calendar
days prior written notice to NASA. It is understood and agreed that NASA
shall be under no obligation to provide access to its facilities or
equipment under this Agreement until the insurance required by this
section has been obtained by Partner and accepted by NASA.

3\. In the event U.S. Government property is damaged as a result of
activities conducted under this agreement, Partner (as an insured loss
payee) shall be solely responsible for the repair and restoration of
such property subject to NASA direction. Partner's liability for such
repair and restoration shall not exceed the agreed insurance policy
limits.

[]{#Cl2IIix2iii .anchor}

**2.2.9.2.3. Liability and Risk of Loss (Insurance for Damage to NASA
Property Long Form Sample Clause)**

1\. Partner shall, at no cost to NASA, maintain throughout the terms of
the Agreement, insurance to cover the loss of or Damage to U.S.
Government property as a result of any activities conducted under this
Agreement. The policy must cover the cost of replacing (at fair market
value, as reasonably determined by NASA) or repairing any U.S.
Government property (real or personal) Damaged as a result of any
performance of this Agreement, including performance by the U.S.
Government or its contractors or subcontractors, at any tier. "Damage"
shall mean damage to, loss of, or loss of use of any property; soil,
sediment, surface water, ground water, or other environmental
contamination or damage; loss of revenue or profits; other direct
damages; or any indirect, or consequential damage arising therefrom.

2\. 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 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.

3\. Upon obtaining the insurance required under this paragraph, or upon
obtaining any modification or amendment thereof, Partner 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: Associate General Counsel (Commercial and Intellectual Property
> Law)

Washington, DC 20546

> Or

\[Chief Counsel's Office, where appropriate\]

4\. An insurance policy whose terms and conditions are reviewed and
approved by NASA, or an agreement on an alternative method of
protection, is a condition precedent to Partner's access to or use of
U.S. Government property or U.S. Government services under this
Agreement.

5\. In the event Partner is unable to obtain insurance coverage required
by subparagraph 1. 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 acceptable
self-insurance or purchase of an appropriate bond).

6\. In the event U.S. Government property is damaged as a result of
activities conducted under this agreement, Partner (whether as an
insured loss payee or under an alternate protection method) shall be
solely responsible for the repair and restoration of such property
subject to NASA direction. Partner's liability for such repair and
restoration shall not exceed the agreed insurance policy or other
protection method limits.

[]{#Cl2IIix2iv .anchor}**2.2.9.2.4. Liability and Risk of Loss
(Insurance Protecting Third Parties 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 or other international obligations, 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]{.underline}:

\(a\) Partner shall, at no cost to NASA, maintain insurance protecting
the U.S. Government and U.S. Government contractors and subcontractors,
at any tier, from any Liability as a result of any activities conducted
under this Agreement, including launch and associated activities,
resulting in Damage to:

\(i\) Partner's employees or agents; and

\(ii\) Third parties, including U.S. Government employees, and U.S.
Government contractor and subcontractor employees.

\(b\) Insurance required under subparagraph 2.(a)(i) above may be
satisfied through a liability insurance policy or policies under
subparagraph 2.(a)(ii) above. Notwithstanding any other requirement for
notice in this Agreement, upon obtaining the insurance required under
subparagraph 2.(a), or upon obtaining any modification or amendment
thereof, Partner 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: Associate General Counsel (Commercial and Intellectual Property
Law)

Washington, DC 20546

> Or, Chief Counsel's Office, where appropriate

\(c\) Partner 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. Partner shall
provide to NASA certificates of insurance, and associated policies,
evidencing the insurance required thereunder within a reasonable time
before Partner begins to use Government property or Government services.
Unless Partner provides evidence that such a condition in an insurance
policy is not available at a reasonable premium, the insurance policy
shall provide for the right of the U.S. Government to settle reasonably
a claim after consultation with Partner and its underwriters.

\(d\) Partner'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.

\(e\) 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 Partner's
responsibility as established in this article without the concurrence of
Partner, Partner shall be released from any liability to the U.S.
Government on account of the claim.

*\[Note: An agreement to support commercial launch activity, including
launches licensed under the Commercial Space Launch Act (49 U.S.C. §
70101 et seq.), should also note that to the extent that the Department
of Transportation (DOT) issues a license for certain activities with
liability provisions different than those contained in the NASA
Agreement, DOT's license takes precedence for those activities.\]*

[]{#Cl2IIx1i .anchor}**2.2.10.1.1. Intellectual Property Rights - Data
Rights (No Expected Proprietary Data Exchange Sample Clause)**

*(Note: Includes paragraphs 1-7)*

1\. [General]{.underline}

\(a\) "Related Entity" as used in this Data Rights clause, means a
contractor, subcontractor, grantee, or other entity having a legal
relationship with NASA or Partner that is assigned, tasked, or
contracted with to perform specified NASA or Partner activities under
this Agreement.

\(b\) "Data," as used in this Data Rights clause, 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.

\(c\) "Proprietary Data," as used in this Data Rights clause, means Data
embodying trade secrets developed at private expense or comprising
commercial or financial information that is privileged or confidential,
and is marked with a suitable restrictive notice, provided that such
Data: is not known or available from other sources without obligations
concerning its confidentiality; has not been made available by the
owners to others without obligation concerning its confidentiality; is
not already available to the Government without obligation concerning
its confidentiality; has not been developed independently by persons who
have had no access to the information; and, is not required to be
disclosed pursuant to Federal statute, law, regulation, or valid court
order.

\(d\) The Data rights set forth herein are applicable to employees of
Partner and employees of any Related Entity of Partner. Partner shall
ensure that its employees and employees of any Related Entity that
perform Partner activities under this Agreement are aware of the
obligations under this clause and that all such employees are bound to
such obligations.

\(e\) Data exchanged between NASA and Partner under this Agreement will
be exchanged without restriction as to its disclosure, use, or
duplication except as otherwise provided in this clause.

\(f\) No preexisting Proprietary Data will be exchanged between the
Parties under this Agreement unless specifically authorized in this
clause or in writing by the owner of the Proprietary Data.

\(g\) In the event that Data exchanged between NASA and Partner include
a restrictive notice that NASA or Partner deems to be ambiguous or
unauthorized, NASA or Partner may notify the other Party of such
condition. Notwithstanding such a notification, as long as the
restrictive notice provides an indication that a restriction on use or
disclosure was intended, the Party receiving such Data will treat the
Data pursuant to the requirements of this clause unless otherwise
directed in writing by the Party providing such Data.

*(Nonreimbursable Alternate)*

2\. [Data First Produced by Partner Under this Agreement]{.underline}

In the event Data first produced by Partner (or any Related Entity of
Partner) in carrying out Partner responsibilities under this Agreement
is furnished to NASA, and Partner considers such Data to be Proprietary
Data, and such Data is identified with a suitable restrictive notice,
NASA will use reasonable efforts to maintain the Data in confidence and
such Data will be disclosed and used by or on behalf of the U.S.
Government (under suitable protective conditions) only for U.S.
Government purposes.

*(Reimbursable Alternate)*

2\. [Data First Produced by Partner Under this Agreement]{.underline}

In the event Data first produced by Partner (or any Related Entity of
Partner) in carrying out Partner responsibilities under this Agreement
is furnished to NASA, and Partner considers such Data to be Proprietary
Data, and such Data is identified with a suitable restrictive notice,
NASA will use reasonable efforts to maintain the Data in confidence and
such Data will be disclosed and used by NASA and any Related Entity of
NASA (under suitable protective conditions) only for carrying out NASA
responsibilities under this Agreement. Upon completion of activities
under this Agreement, such Data will be disposed of as requested by
Partner.

*(Nonreimbursable Alternate)*

3\. [Data First Produced by NASA Under this Agreement]{.underline}

Except for data disclosing an invention owned by NASA for which patent
protection is being considered, in the event Partner requests that Data
first produced by NASA (or any Related Entity of NASA) in carrying out
NASA's responsibilities under this Agreement be maintained in
confidence, and to the extent NASA determines that such Data would be
Proprietary Data if it had been obtained from Partner, NASA will mark
such Data with a restrictive notice and will use reasonable efforts to
maintain such marked Data in confidence for a period of \<*insert a
period of up to 5 years, typically 1 or 2 years*\> after development of
the Data, with the express understanding that during the aforesaid
restricted period such marked Data may be disclosed and used (under
suitable protective conditions) by or on behalf of the U.S. Government
for U.S. Government purposes only, and thereafter for any purpose
whatsoever without restriction on disclosure and use. Partner agrees not
to disclose such marked Data to any third party without NASA's written
approval until the aforesaid restricted period expires.

*(Reimbursable Alternate)*

3\. [Data First Produced by NASA under this Agreement]{.underline}

Except for data disclosing an invention owned by NASA for which patent
protection is being considered, in the event Partner requests that Data
first produced by NASA (or any Related Entity of NASA) in carrying out
NASA's responsibilities under this Agreement be maintained in
confidence, and to the extent NASA determines that such Data would be
Proprietary Data if it had been obtained from Partner, NASA will mark
such Data with a restrictive notice and will use reasonable efforts to
maintain such marked Data in confidence for the duration of this
Agreement, with the express understanding that during the aforesaid
restricted period such marked Data may be disclosed and used by NASA and
any Related Entity of NASA (under suitable protective conditions) only
for carrying out NASA responsibilities under this Agreement. Upon
completion of activities under this Agreement, such marked Data will be
disposed of as requested by Partner.

*(Nonreimbursable Alternate)*

> [4. Publication of Results]{.underline}
>
> Recognizing that section 203 of the National Aeronautics and Space Act
> of 1958 (42 U.S.C. § 2473), as amended, requires NASA to provide for
> the widest practicable and appropriate dissemination of information
> concerning its activities and the results thereof, and that the
> dissemination of the results of NASA activities is one of the
> considerations for this Agreement, the Parties agree to coordinate
> proposed publication of results with each other in a manner that
> allows each Party a reasonable amount of time to review and comment on
> proposed publications.

*(Reimbursable Alternate)*

4\. [Publication of Results]{.underline}

\(a\) Recognizing that section 203 of the National Aeronautics and Space
Act of 1958 (42 U.S.C. § 2473), as amended, requires NASA to provide for
the widest practicable and appropriate dissemination of information
concerning its activities and the results thereof, and that the
dissemination of the results of NASA activities is one of the
considerations for this Agreement, NASA will coordinate proposed
publication of results with Partner in a manner that allows Partner a
reasonable amount of time to review and comment on proposed
publications.

\(b\) Consistent with other obligations in this clause, NASA agrees that
it will not publish any results without first receiving permission from
Partner.

5\. [Data Disclosing an Invention]{.underline}

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

6\. [Copyright]{.underline}

In the event Data is exchanged with a notice indicating that the Data is
copyrighted and there is no indication that such Data is subject to
restriction under paragraphs 2 or 3 of this clause (*i.e.*, Data is not
marked with a restrictive notice as required by paragraphs 2 or 3 of
this clause), such Data will be presumed to be published and the
following royalty-free licenses will apply.

\(a\) 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 only for carrying out the receiving Party's responsibilities under
this Agreement.

\(b\) If the Data does not contain the indication of (a) above, the Data
will be presumed to have been first produced under this Agreement and,
except as otherwise provided in paragraph 5 of this clause and in the
Inventions and Patent Rights clause of this Agreement for protection of
reported inventions, the receiving Party and others acting on its behalf
may reproduce, distribute, and prepare derivative works for any purpose.

7\. [Data Subject to Export Control]{.underline}

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 Partner under this Agreement will be treated as
such, and will not be further provided to any foreign persons or
transmitted outside the United States without proper U.S. Government
authorization, where required.

[]{#Cl2IIx1ii .anchor}**2.2.10.1.2. Intellectual Property Rights - Data
Rights (Proprietary Data Exchange Addendum)**

> *(Note: Add the following provisions to the Data Rights Sample Clause
> 2.2.10.1.1.)*

*(Note: Add subparagraphs 1(h)-(k) following subparagraph 1(g) of Sample
Clause 2.2.10.1.1.)*

\(h\) Notwithstanding any restriction on use, disclosure, or
reproduction of Data provided in this clause, the Parties will not be
restricted in the use, disclosure, or reproduction of Data provided
under this Agreement that:

\(i\) is publicly available at the time of disclosure or thereafter
becomes publicly available without breach of this Agreement;

\(ii\) is known to, in the possession of, or developed by the receiving
Party independent of carrying out the receiving Party's responsibilities
under this Agreement and independent of any disclosure of, or without
reference to, Proprietary Data or otherwise protectable Data hereunder;

\(iii\) is received from a third party having the right to disclose such
information without restriction; or

\(iv\) is required to be produced or released by the receiving Party
pursuant to a court order or other legal requirement.

\(i\) If either NASA or Partner believes that any of the events or
conditions that remove restriction on the use, disclosure, or
reproduction of the Data apply, NASA or Partner will promptly notify the
other Party of such belief prior to acting on such belief, and, in any
event, will notify the other Party prior to an unrestricted use,
disclosure, or reproduction of such Data.

\(j\) Disclaimer of Liability: Notwithstanding any restriction on use,
disclosure, or reproduction of Data provided in this clause, NASA will
not be restricted in, nor incur any liability for, the use, disclosure,
or reproduction of any Data not identified with a suitable restrictive
notice in accordance with paragraphs 1 (c), 2 and 8 of this clause or of
any Data included in Data which Partner has furnished, or is required to
furnish to the U.S. Government without restriction on disclosure and
use.

\(k\) Partner may use the following, or a similar, restrictive notice as
required by paragraphs 1(c), 2 and 8 of this clause. In addition to
identifying Proprietary Data with such a restrictive notice, Partner
should mark each page containing Proprietary Data with the following, or
a similar, legend: "Proprietary Data -- use and disclose only in
accordance with notice on title or cover page."

**Proprietary Data Notice**

> These data herein include \<*enter as applicable*: "Background Data"
> or "Data Produced by Partner under a Space Act Agreement"\> in
> accordance with the Data Rights provisions under Space Act Agreement
> \<*provide applicable identifying information*\> and embody
> Proprietary Data. In accordance with the Space Act Agreement, NASA
> will use reasonable efforts to maintain the data in confidence and
> limit use, disclosure, and reproduction by NASA and any Related Entity
> of NASA in accordance with restrictions identified in the Space Act
> Agreement \<*may list specific restrictions listed in the
> Agreement*\>.

*(Note: Add paragraphs 8-10 following paragraph 7 of Sample Clause
2.2.10.1.1)*

8\. [Background Data]{.underline}

\(a\) In the event Partner furnishes NASA with Data developed at private
expense (or in the case of state or local government, Data developed at
government expense) that existed prior to, or was produced outside of,
this Agreement, and such Data embody Proprietary Data, and such Data is
so identified with a suitable restrictive notice, NASA will use
reasonable efforts to maintain the Data in confidence and such Data will
be disclosed and used by NASA and any Related Entity of NASA (under
suitable protective conditions) only for carrying out NASA
responsibilities under this Agreement. Upon completion of activities
under this Agreement, such Data will be disposed of as requested by
Partner.

\(b\) At the time of execution of this Agreement, the Parties agree that
the following background data which embodies Proprietary Data that will
be provided to NASA, may be used in the performance of this Agreement.
This list may not be comprehensive, is subject to change during the
course of the Agreement, and is not meant to supersede any restrictive
markings which may be on the Data provided: \<*insert specific listing
of data items or, if none, insert "None" or "Not Applicable"*\>

9\. [Handling of Data]{.underline}

\(a\) In the performance of this Agreement, Partner and any Related
Entity of Partner may have access to, be furnished with, or use the
following categories of Data:

\(i\) Proprietary Data of third parties that the U.S. Government has
agreed to handle under protective arrangements; or

\(ii\) U.S. Government Data, the use and dissemination of which, the
U.S. Government intends to control.

\(b\) Data provided by NASA to Partner under the Agreement

\(i\) At the time of execution of this Agreement, the Parties agree that
the following Proprietary Data of third parties will be provided to the
Partner with the express understanding that Partner will use and protect
such Data in accordance with this clause:

\<*insert specific listing of data items or, if none, insert "None" or
"Not Applicable"*\>

\(ii\) At the time of execution of this Agreement, the Parties agree
that the following U.S. Government Data will be provided to Partner with
the express understanding that Partner will use and protect such U.S.
Government Data in accordance with this clause:

\<*insert specific listing of data items or, if none, insert "None" or
"Not Applicable"*\>

\(iii\) At the time of execution of this Agreement, the Parties agree
that the following software and related Data will be provided to Partner
under a separate Software Usage Agreement with the express understanding
that Partner will use and protect such related Data in accordance with
this clause. Unless retention of such Data is otherwise authorized under
the Software Usage Agreement or Partner has entered into a license,
consistent with 37 C.F.R. Part 404, for software provided under this
Agreement, upon completion of activities under this Agreement, such
related Data will be disposed of as instructed by NASA:

*\<insert name and NASA Case No. of the software; if none, insert "None"
or "Not Applicable" \>*

\(c\) With respect to such Data specifically identified in this
Agreement or specifically marked with a restrictive notice, Partner
agrees to:

\(i\) Use, disclose, or reproduce such Data only to the extent necessary
to perform the work required under this Agreement;

\(ii\) Safeguard such Data from unauthorized use and disclosure;

\(iii\) Allow access to such Data only to its employees and any Related
Entity that require access for their performance under this Agreement;

\(iv\) Except as otherwise indicated in (c)(iii) above, preclude access
and disclosure of such Data outside Partner's organization;

\(v\) Notify its employees who may require access to such Data about the
obligations under this clause and ensure that such employees comply with
such obligations, and notify its Related Entity that may require access
to such Data about their obligations under this clause; and

\(vi\) Return or dispose of such Data, as NASA may direct, when the Data
is no longer needed for performance under this Agreement.

10\. [Oral and visual information]{.underline}

If information that Partner considers to be Proprietary Data is
disclosed orally or visually to NASA, NASA will have no duty to limit or
restrict, and will not incur any liability for, any disclosure or use of
such information unless: (a) Partner orally informs NASA before initial
disclosure that such information is considered to be Proprietary Data,
and (b) Partner reduces such information to tangible, recorded form that
is identified and marked with a suitable restrictive notice as required
by paragraphs 1(c), 2 and 8 above and furnishes the resulting Data to
NASA within 10 calendar days after such oral or visual disclosure.

*Add paragraph 11 as applicable.*

11\. [Classified Material]{.underline}

In the event that access to, acquisition of, or delivery of classified
material is required under this Agreement, the Partner must provide a
completed Contract Security Classification Specification (DD Form 254 or
equivalent) to the NASA Point of Contact identified herein. Transmission
and access to classified material shall be in accordance with NASA and
U.S Federal Government statutes, regulations, and policies.

[]{#Cl2IIx1iii .anchor}

**2.2.10.1.3. Intellectual Property Rights - Data Rights (Reimbursable
SAA For the Benefit of a Foreign Entity Sample Clause)**

1\. [General]{.underline}

\(a\) "Related Entity" as used in this Data Rights clause, means a
contractor, subcontractor, grantee, or other entity having a legal
relationship with NASA or Partner that is assigned, tasked, or
contracted with to perform specified NASA or Partner activities under
this Agreement.

\(b\) "Data," as used in this Data Rights clause, 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.

\(c\) "Proprietary Data," as used in this Data Rights clause, means Data
embodying trade secrets developed at private expense or comprising
commercial or financial information that is privileged or confidential
and is marked with a suitable restrictive notice, provided that such
Data: is not known or available from other sources without obligations
concerning its confidentiality; has not been made available by the
owners to others without obligation concerning its confidentiality; is
not already available to the Government without obligation concerning
its confidentiality; has not been developed independently by persons who
have had no access to the information; and, is not required to be
disclosed pursuant to Federal statute, law, regulation, or valid court
order.

\(d\) The Data rights set forth herein are applicable to employees of
Partner and employees of any Related Entity of Partner. Partner shall
ensure that its employees and employees of any Related Entity that
perform Partner activities under this Agreement are aware of the
obligations under this clause and that all such employees are bound to
such obligations.

\(e\) Data exchanged between NASA and Partner under this Agreement will
be exchanged without restriction as to its disclosure, use, or
duplication except as otherwise provided in this clause.

\(f\) No preexisting Proprietary Data will be exchanged between the
Parties under this Agreement unless specifically authorized in this
clause or in writing by the owner of the Proprietary Data.

\(g\) In the event that Data exchanged between NASA and Partner include
a restrictive notice that NASA or Partner deems to be ambiguous or
unauthorized, NASA or Partner may notify the other Party of such
condition. Notwithstanding such a notification, as long as the
restrictive notice provides an indication that a restriction on use or
disclosure was intended, the Party receiving such Data will treat the
Data pursuant to the requirements of this clause unless otherwise
directed in writing by the Party providing such Data.

\(h\) Notwithstanding any restriction on use, disclosure, or
reproduction of Data provided in this clause, the Parties will not be
restricted in the use, disclosure, or reproduction of Data provided
under this Agreement that:

\(i\) is publicly available at the time of disclosure or thereafter
becomes publicly available without breach of this Agreement;

\(ii\) is known to, in the possession of, or developed by the receiving
Party independent of carrying out the receiving Party's responsibilities
under this Agreement and independent of any disclosure of, or without
reference to, Proprietary Data or otherwise protectable Data hereunder;

\(iii\) is received from a third party having the right to disclose such
information without restriction; or

\(iv\) is required to be produced or released by the receiving Party
pursuant to a court order or other legal requirement.

\(i\) If either NASA or Partner believes that any of the events or
conditions that remove restriction on the use, disclosure, or
reproduction of the Data apply, NASA or Partner will promptly notify the
other Party of such belief prior to acting on such belief, and, in any
event, will notify the other Party prior to an unrestricted use,
disclosure, or reproduction of such Data.

\(j\) Disclaimer of Liability: Notwithstanding any restriction on use,
disclosure, or reproduction of Data provided in this clause, NASA will
not be restricted in, nor incur any liability for, the use, disclosure,
or reproduction of any Data not identified with a suitable restrictive
notice in accordance with paragraphs 1 (c), 2 and 7 of this clause or of
any Data included in Data which Partner has furnished, or is required to
furnish to the U.S. Government without restriction on disclosure and
use.

\(k\) Partner may use the following, or a similar, restrictive notice as
required by paragraphs 1 (c), 2 and 7 of this clause. In addition to
identifying Proprietary Data with such a restrictive notice, Partner
should mark each page containing Proprietary Data with the following, or
a similar, legend: "Proprietary Data -- use and disclose only in
accordance with notice on title or cover page."

**Proprietary Data Notice**

> These data herein include \<*enter as applicable*: "Background Data"
> or "Data Produced by Partner under a Space Act Agreement"\> in
> accordance with the Data Rights provisions under Space Act Agreement
> \<*provide applicable identifying information*\> and embody
> Proprietary Data.

2\. [Data First Produced by Partner Under this Agreement]{.underline}

In the event Data first produced by Partner in carrying out Partner
responsibilities under this Agreement is furnished to NASA, and Partner
considers such Data to be Proprietary Data, and such Data is identified
with a suitable restrictive notice, NASA will use reasonable efforts to
maintain the Data in confidence and such Data will be disclosed and used
by or on behalf of the U.S. Government (under suitable protective
conditions) for carrying out NASA responsibilities under this Agreement
and thereafter for non-commercial, U.S. Government purposes only.

3\. [Data First Produced by NASA under this Agreement]{.underline}

Except for data disclosing an invention owned by NASA for which patent
protection is being considered, in the event Partner requests that Data
first produced by NASA (or any Related Entity of NASA) in carrying out
NASA's responsibilities under this Agreement be maintained in
confidence, and to the extent NASA determines that such Data would be
Proprietary Data if it had been obtained from Partner, NASA will mark
such Data with a restrictive notice and will use reasonable efforts
maintain such marked Data in confidence for a period of \<*insert a
period of up to 5 years, typically 1 or 2 years*\> after development of
the Data, with the express understanding that during the aforesaid
restricted period such marked Data may be disclosed and used (under
suitable protective conditions) by or on behalf of the U.S. Government
for U.S. Government purposes only, and thereafter for any purpose
whatsoever without restriction on disclosure and use. Partner agrees not
to disclose such marked Data to any third party without NASA's written
approval until the aforesaid restricted period expires.

4\. [Publication of Results]{.underline}

\(a\) The Parties recognize that section 203 of the National Aeronautics
and Space Act of 1958 (42 U.S.C. § 2473), as amended, requires NASA to
provide for the widest practicable and appropriate dissemination of
information concerning its activities and the results thereof, and that
the dissemination of the results of NASA activities is one of the
considerations for this Agreement. As such, NASA shall have the right to
publish unclassified and non-Proprietary Data resulting from work
performed under this Agreement. NASA will provide Partner a copy of
proposed publications of results in a manner that allows Partner a
reasonable amount of time to review and comment on proposed
publications.

5\. [Data Disclosing an Invention]{.underline}

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

6\. [Copyright]{.underline}

In the event Data is exchanged with a notice indicating that the Data is
copyrighted and there is no indication that such Data is subject to
restriction under paragraphs 2 or 3 of this clause (*i.e.*, Data is not
marked with a restrictive notice as required by paragraphs 2 or 3 of
this clause), such Data will be presumed to be published and the
following royalty-free licenses will apply.

\(a\) 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 only for carrying out the receiving Party's responsibilities under
this Agreement.

\(b\) If the Data does not contain the indication of (a) above, the Data
will be presumed to have been first produced under this Agreement and,
except as otherwise provided in paragraph 5 of this clause and in the
Inventions and Patent Rights clause of this Agreement for protection of
reported inventions, the receiving Party and others acting on its behalf
may reproduce, distribute, and prepare derivative works for any purpose.

7\. [Background Data]{.underline}

\(a\) In the event Partner furnishes NASA with Data developed at private
expense that existed prior to, or was produced outside of, this
Agreement, and such Data embody Proprietary Data (or in the case of a
Partner that is a government entity, Data developed at government
expense that existed prior to, or was produced outside of this
Agreement, and which Data the Partner intends to control its use and
dissemination), and such Data is so identified with a suitable
restrictive notice, NASA will use reasonable efforts to maintain the
Data in confidence, and such Data will be disclosed and used by NASA and
any Related Entity of NASA (under suitable protective conditions) only
for carrying out NASA responsibilities under this Agreement. Upon
completion of activities under this Agreement, such Data will be
disposed of as requested by Partner.

\(b\) At the time of execution of this Agreement, the Parties agree that
the following background data, which embodies Proprietary Data that will
be provided to NASA may be used in the performance of this Agreement.
This list may not be comprehensive, is subject to change during the
course of the Agreement, and is not meant to supersede any restrictive
markings which may be on Data provided: \<*insert specific listing of
data items or, if none, insert "None" or "Not Applicable"*\>

8\. [Oral and visual information]{.underline}

If information that Partner considers to be Proprietary Data is
disclosed orally or visually to NASA, NASA will have no duty to limit or
restrict, and will not incur any liability for, any disclosure or use of
such information unless: (a) Partner orally informs NASA before initial
disclosure that such information is considered to be Proprietary Data,
and (b) Partner reduces such information to tangible, recorded form that
is identified and marked with a suitable restrictive notice as required
by paragraphs 1 (c), 2 and 7 above and furnishes the resulting Data to
NASA within 10 calendar days after such oral or visual disclosure.

[]{#Cl2IIx1iV .anchor}**2.2.10.1.4. Intellectual Property Rights - Data
Rights (Free Exchange of Data Sample Clause)**

NASA and Partner agree 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 (e.g., classified information) or otherwise agreed
to by NASA and Partner for specifically identified information or data
(e.g., information or data specifically marked with a restrictive
notice).

[]{#Cl2IIx2 .anchor}

**2.2.10.2. Intellectual Property Rights - Rights in Raw Data (Sample
Clause)**

1\. [Raw Data]{.underline}

Raw data (*i.e.*, unanalyzed data) generated under this Agreement will
be reserved to Principal Investigators named in this Agreement (and
Co-Investigators named in this Agreement, where appropriate) for
scientific analysis and first publication rights for \<*insert a period
of time generally not more than 1 year*\> beginning with receipt of the
raw data and any associated data in a form suitable for analysis. NASA
and Partner may also have access to, and use of, the raw 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
identified in this Agreement.

2\. [Final Results]{.underline}

\(a\) Final results of the experiments performed under this Agreement
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 accordance
with the Publication of Results provision of the Data Rights clause of
this Agreement, the Parties agree to coordinate proposed publications
with each other in a manner that allows each Party a reasonable time to
review and comment on proposed publications.

\(b\) In the event such final results are published, NASA and Partner
will have a royalty‑free right to reproduce, distribute, and use such
published work for any purposes. Partner agrees to notify the publisher
of NASA's rights in the published work.

[]{#Cl2IIx3i .anchor}**2.2.10.3.1. Intellectual Property Rights -
Invention and Patent Rights (Short Form Sample Clause)**

1\. The invention and patent rights set forth herein are applicable to
any employees, contractors, subcontractors, or other entities having a
legal relationship with Partner that are assigned, tasked, or contracted
with to perform speci­fied Partner activities under this Agreement.
Partner agrees to inform such employees, contractors, subcontractors, or
other entities of the obligations under this clause and to bind them to
such obligations.

2\. Based on the purpose and scope of this Agreement, and the
responsibilities of the Parties, NASA has made an administrative
determination that the provisions of section 305(a) of the National
Aeronautics and Space Act of 1958, as amended (42 U.S.C. § 2457(a)), do
not apply to this Agreement. Therefore, title to inventions made
(conceived or first actually reduced to practice) as a result of
activities performed under this Agreement will remain with the
respective inventing party(ies). No invention or patent rights are
exchanged between or granted by such parties under this Agreement except
that NASA and Partner 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 Partner and employees of NASA (including
employees of such NASA contractors, subcontractors, or other entities),
and to consult and agree as to the responsibilities and course of action
to be taken to establish and maintain patent protection 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 Partner.

[]{#Cl2IIx3ii .anchor}**2.2.10.3.2. Intellectual Property Rights -
Invention and Patent Rights (Long Form Sample Clause)**

1\. [General]{.underline}

\(a\) "Related Entity" as used in this Invention and Patent Rights
clause means a contractor, subcontractor, grantee, or other entity
having a legal relationship with NASA or Partner that is assigned,
tasked, or contracted with to perform specified NASA or Partner
activities under this Agreement.

\(b\) Based on the purpose and scope of this Agreement, and the
responsibilities of the Parties, NASA has made an administrative
determination that the provisions of section 305(a) of the National
Aeronautics and Space Act of 1958, as amended (42 U.S.C. § 2457(a)), do
not apply to this Agreement. Therefore, title to inventions made
(conceived or first actually reduced to practice) as a result of
activities performed under this Agreement will remain with the
respective inventing party(ies), and no invention or patent rights are
exchanged between or granted by such parties under this Agreement except
as provided herein.

\(c\) The invention and patent rights set forth herein are applicable to
employees of Partner and employees of any Related Entity of Partner.
Partner shall ensure that its employees and employees of any Related
Entity that perform Partner activities under this Agreement are aware of
the obligations under this clause and that all such employees are bound
to such obligations.

2\. [NASA Inventions]{.underline}

Upon request, NASA will use reasonable efforts to grant Partner,
consistent with the requirements of 37 C.F.R. Part 404, a license on
terms to be subsequently negotiated to any NASA invention made as a
result of activities performed under this Agreement on which NASA
decides to file a patent application. This license will be subject to
the rights reserved in paragraph 5(a) below.

3\. [NASA Related Entity Inventions]{.underline}

In the event that inventions are made under this Agreement by employees
of a NASA Related Entity or jointly between NASA employees and employees
of a NASA Related Entity, 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 Partner, consistent with the requirements of 37 C.F.R. Part
404, a license on terms to be subsequently negotiated to any such
invention on which NASA has acquired title and decides to file a patent
application. This license will be subject to the rights reserved in
paragraph 5(b) below.

4\. [Joint Inventions With Partner]{.underline}

NASA and Partner 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 a NASA Related Entity) and employees of Partner. Upon
timely request, NASA may, at its sole discretion and subject to the
applicable rights reserved in paragraph 5 below:

    (a) agree to refrain from exercising its undivided interest in a
manner inconsistent with Partner's commercial interests; or

    (b) use reasonable efforts to grant Partner, consistent with the
requirements of 37 C.F.R. Part 404, an exclusive or partially exclusive
license on terms to be subsequently negotiated to NASA's undivided
interest in such joint inventions.

*(Nonreimbursable Alternate)*

5\. [Rights to be Reserved in Partner's License]{.underline}

Any license granted to Partner pursuant to paragraphs 2, 3, or 4 above
will be subject to the reservation of the following rights:

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

\(b\) As to inventions made solely or jointly by employees of a NASA
Related Entity, NASA reserves the rights as set forth in paragraph (a)
above, as well as the revocable, nonexclusive, royalty-free license in
the Related Entity as set forth in 14 C.F.R. § 1245.108 or 37 C.F.R. §
401.14 (e), as applicable.

*(Reimbursable Alternate)*

5\. [Rights to be Reserved in Partner's License]{.underline}

Any license granted to Partner pursuant to paragraphs 2, 3, or 4 above
will be subject to the reservation of the following rights:

\(a\) As to inventions made solely or jointly by NASA employees, NASA
reserves the irrevocable, royalty‑free right of the Government of the
United States to practice the invention or have the invention practiced
on behalf of the United States or on behalf of any foreign government or
international organization pursuant to any existing or future treaty or
agreement with the United States. NASA will use reasonable efforts to
limit use of the invention to use by or on behalf of NASA for research,
experimental, or evaluation purposes.

\(b\) As to inventions made solely or jointly by employees of a NASA
Related Entity, NASA reserves the rights as set forth in paragraph (a)
above, as well as the revocable, nonexclusive, royalty-free license in
the Related Entity as set forth in 14 C.F.R. § 1245.108 or 37 C.F.R. §
401.14 (e), as applicable.

6\. [Protection of Reported Inventions]{.underline}

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
or unless such information is restricted for a longer period herein) in
order to facilitate the allocation and establishment of the invention
and patent rights under these provisions.

7\. [Patent Filing Responsibilities and Costs]{.underline}

\(a\) The invention and patent rights set forth herein will apply to any
patent application filed and any patent obtained covering an invention
made as a result of the performance of activities under this Agreement.
Each Party is responsible for its own costs of obtaining and maintaining
patents covering sole inventions of its employees; except that NASA and
Partner may mutually agree otherwise, upon the reporting of any
invention (sole or joint) or in any license granted, as to
responsibilities and course of action to be taken to establish and
maintain patent protection on such invention.

\(b\) Partner agrees to include the following statement in any patent
application it files for an invention made jointly between NASA
employees (or employees of a NASA Related Entity) and employees of
Partner:

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

*Add paragraph 8 as applicable.*

8\. [Related Inventions]{.underline}

\(a\) 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 result of activities performed under this Agreement, that is
covered by a patent application or patent owned by NASA or Partner. To
the extent NASA related invention(s) are known and identified in
paragraphs (b) or (d) below, upon request, and to the extent such
related inventions are available for licensing, NASA may enter into
negotiations with Partner for a license to such related invention(s)
consistent with the requirements of 37 C.F.R. Part 404.

\(b\) At the time of execution of this Agreement, the Parties agree that
the following inventions are related inventions:

*\<Fill in and indicate which party owns the related invention; if none,
insert "None" or "Not Applicable"\>*

\(c\) Related Computer Software: Where a related invention in the form
of computer software is provided by NASA to Partner, such software will
be provided under a separate Software Usage Agreement. Partner agrees to
maintain such software in confidence and use it only for carrying out
Partner responsibilities under this Agreement. Unless Partner has
entered into a license, consistent with 37 C.F.R. Part 404, for software
provided under this Agreement, upon completion of activities under this
Agreement, all copies of such software will be disposed of as instructed
by NASA.

\(d\) At the time of execution of this Agreement, the Parties agree that
the following software is related computer software that will be
provided to Partner in accordance with paragraph (c) above:

*\<Fill in name and NASA Case No. of the software; if none, insert
"None" or "Not Applicable"\>*

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

[]{#Cl2IIx3iii .anchor}**2.2.10.3.3. Intellectual Property Rights -
Invention and Patent Rights (Section 305(a) Sample Clause)**

1\. [Definitions]{.underline}

\(a\) "Administrator," as used in this clause, means the Administrator
of the National Aeronautics and Space Administration (NASA) or duly
authorized representative.

\(b\) "Patent Representative" as used in this clause means the NASA
\<*enter Center name*\> Patent Counsel (or Chief Counsel at Centers with
no Patent Counsel). Correspondence with the Patent Representative under
this clause will be sent to the address below:

Patent Counsel \<*or enter other NASA official if no Patent Counsel*\>

\<*enter mailing address*\>

\(c\) "Invention," as used in this clause, means any invention or
discovery which is or may be patentable or otherwise protectable under
title 35 of the U.S.C.

\(d\) "Made," as used in relation to any invention, means the conception
or first actual reduction to practice such invention.

\(e\) "Practical application," as used in this clause, means to
manufacture, in the case of a composition or product; to practice, in
the case of a process or method; or to operate, in case of a machine or
system; and, in each case, under such conditions as to establish that
the invention is being utilized and that its benefits are, to the extent
permitted by law or Government regulations, available to the public on
reasonable terms.

\(f\) "Related Entity" as used in this clause means a contractor,
subcontractor, grantee, or other entity having a legal relationship with
NASA or Partner that is assigned, tasked, or contracted with to perform
specified NASA or Partner activities under this Agreement.

\(g\) "Manufactured substantially in the United States," as used in this
clause, means the product must have over 50 percent of its components
manufactured in the United States. This requirement is met if the cost
to Partner of the components mined, produced, or manufactured in the
United States exceeds 50 percent of the cost of all components required
to make the product. (In making this determination only the product and
its components shall be considered.) The cost of each component includes
transportation costs to the place of incorporation into the product and
any applicable duty (whether or not a duty-free entry certificate is
issued). Components of foreign origin of the same class or kind for
which determinations have been made in accordance with Federal
Acquisition Regulation 25.103(a) and (b) are treated as domestic. Scrap
generated, collected, and prepared for processing in the United States
is considered domestic.

2\. [Allocation of principal rights]{.underline}

\(a\) *Presumption of title in Partner inventions.*

\(i\) Any invention made by Partner under this Agreement shall be
presumed to have been made in the manner specified in paragraph (1) or
(2) of section 305(a) (42 U.S.C. § 2457(a)) of the National Aeronautics
and Space Act of 1958 (hereinafter called \"the Act\"), and the above
presumption shall be conclusive unless at the time of reporting such
invention Partner submits to the Patent Representative a written
statement, containing supporting details, demonstrating that the
invention was not made in the manner specified in paragraph (1) or (2)
of section 305(a) of the Act.

\(ii\) Regardless of whether title to such an invention would otherwise
be subject to an advance waiver or is the subject of a petition for
waiver, Partner may nevertheless file the statement described in
paragraph 2(a)(i) of this clause. The Administrator (or his designee)
will review the information furnished by Partner in any such statement
and any other available information relating to the circumstances
surrounding the making of the invention and will notify Partner whether
the Administrator has determined that the invention was made in the
manner specified in paragraph (1) or (2) of section 305(a) of the Act.

\(b\) *Property rights in Partner inventions*. Each invention made under
this Agreement for which the presumption of paragraph 2(a)(i) of this
clause is conclusive or for which there has been a determination that it
was made in the manner specified in paragraph (1) or (2) of section
305(a) of the Act shall be the exclusive property of the United States
as represented by NASA unless the Administrator waives all or any part
of the rights of the United States to Partner, as provided in paragraph
2(c) of this clause.

\(c\) *Waiver of rights*.

\(i\) The NASA Patent Waiver Regulations, 14 C.F.R. Part 1245, Subpart
1, have adopted the Presidential Memorandum on Government Patent Policy
of February 18, 1983, as a guide in acting on petitions (requests) for
waiver of rights under section 305(f) of the Act to any invention or
class of inventions made or that may be made in the manner specified in
paragraphs (1) or (2) of section 305(a) of the Act.

\(ii\) As provided in 14 C.F.R. Part 1245, Subpart 1, Partner may
petition, either prior to execution of the Agreement or within 30 days
after execution of the Agreement, for advance waiver of rights to any or
all of the inventions that may be made by Partner under this Agreement.
If such a petition is not submitted, or if after submission it is
denied, Partner (or an employee inventor of Partner) may petition for
waiver of rights to an identified subject invention within eight months
of first disclosure of invention in accordance with paragraph 5(b) of
this clause or within such longer period as may be authorized in
accordance with 14 C.F.R. 1245.105. Further procedures are provided in
paragraph 10 of this clause.

\(d\) *NASA inventions*.

\(i\) Title to inventions made by NASA (or NASA Related Entity) as a
result of activities performed under this Agreement will remain with the
respective inventing party(ies), and no invention or patent rights are
granted by such parties under this Agreement except as provided herein.

\(ii\) Upon request, NASA will use reasonable efforts to grant Partner,
consistent with the requirements of 37 C.F.R. Part 404, a license on
terms to be subsequently negotiated to any NASA invention made as a
result of activities performed under this Agreement on which NASA
decides to file a patent application.

\(iii\) Upon request, NASA will use reasonable efforts to grant Partner,
consistent with the requirements of 37 C.F.R. Part 404, a license on
terms to be subsequently negotiated to any invention made under this
Agreement by employees of a NASA Related Entity, or jointly between NASA
employees and employees of a NASA Related Entity, on which NASA has
acquired title and decides to file a patent application.

3\. [Minimum rights reserved by the Government]{.underline}

\(a\) With respect to each Partner invention made under this Agreement
for which a waiver of rights is applicable in accordance with 14 C.F.R.
Part 1245, Subpart 1, the Government reserves:

\(i\) An irrevocable, royalty-free license for the practice of such
invention throughout the world by or on behalf of the United States or
any foreign government in accordance with any treaty or agreement with
the United States; and

\(ii\) Such other rights as stated in 14 C.F.R. 1245.107.

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

4\. [Minimum rights to Partner]{.underline}

\(a\) Partner is hereby granted a revocable, nonexclusive, royalty-free
license in each patent application filed in any country on an invention
made by Partner under this Agreement and any resulting patent in which
the Government acquires title, unless Partner fails to disclose such
invention within the times specified in paragraph 5(b) of this clause.
Partner's license extends to its domestic subsidiaries and affiliates,
if any, within the corporate structure of which Partner is a party and
includes the right to grant sublicenses of the same scope to the extent
Partner was legally obligated to do so at the time the Agreement was
awarded. The license is transferable only with the approval of the
Administrator except when transferred to the successor of that part of
Partner's business to which the invention pertains.

\(b\) Partner's domestic license may be revoked or modified by the
Administrator to the extent necessary to achieve expeditious practical
application of such invention pursuant to an application for an
exclusive license submitted in accordance with 37 C.F.R. Part 404,
Licensing of Government Owned Inventions. This license will not be
revoked in that field of use or the geographical areas in which Partner
has achieved practical application and continues to make the benefits of
the invention reasonably accessible to the public. The license in any
foreign country may be revoked or modified at the discretion of the
Administrator to the extent Partner, its licensees, or its domestic
subsidiaries or affiliates have failed to achieve practical application
in that foreign country.

\(c\) Before revocation or modification of the license, Partner will be
provided a written notice of the Administrator\'s intention to revoke or
modify the license, and Partner will be allowed 30 days (or such other
time as may be authorized by the Administrator for good cause shown by
Partner) after the notice to show cause why the license should not be
revoked or modified. Partner has the right to appeal, in accordance with
14 C.F.R. 1245.112, any decision concerning the revocation or
modification of its license.

5\. [Invention identification, disclosures, and reports]{.underline}

\(a\) Partner shall establish and maintain active and effective
procedures to assure that inventions made under this Agreement are
promptly identified and disclosed to Partner personnel responsible for
the administration of this clause within six months of conception or
first actual reduction to practice, whichever occurs first in the
performance of work under this Agreement. These procedures shall include
the maintenance of laboratory notebooks or equivalent records and other
records as are reasonably necessary to document the conception or the
first actual reduction to practice of such inventions, and records that
show that the procedures for identifying and disclosing such inventions
are followed. Upon request, Partner shall furnish the Patent
Representative a description of such procedures for evaluation and for
determination as to their effectiveness.

\(b\) Partner will disclose each such invention to the Patent
Representative within two months after the inventor discloses it in
writing to Partner personnel responsible for the administration of this
clause or, if earlier, within six months after Partner becomes aware
that such an invention has been made, but in any event before any on
sale, public use, or publication of such invention known to Partner. The
Partner shall use the NASA electronic New Technology Reporting system
(eNTRe), accessible at [http://entre.nasa.gov](http://entre.nasa.gov/),
to disclose inventions. The invention disclosure shall identify this
Agreement and shall be sufficiently complete in technical detail to
convey a clear understanding, to the extent known at the time of the
disclosure, of the nature, purpose, operation, and physical, chemical,
biological, or electrical characteristics of the invention. The
disclosure shall also identify any publication, on sale, or public use
of any such invention and whether a manuscript describing such invention
has been submitted for publication and, if so, whether it has been
accepted for publication at the time of disclosure. In addition, after
disclosure to NASA, Partner will promptly notify NASA of the acceptance
of any manuscript describing such an invention for publication or of any
on sale or public use planned by Partner for such invention.

\(c\) Partner shall furnish the Patent Representative the following:

\(i\) Interim reports every 12 months (or such longer period as may be
specified by the Patent Representative) from the date of the Agreement,
listing inventions made under this Agreement during that period, and
certifying that all such inventions have been disclosed (or that there
are no such inventions) and that the procedures required by paragraph
5(a) of this clause have been followed.

\(ii\) A final report, within three months after completion of the work,
listing all inventions made under this Agreement or certifying that
there were no such inventions, and listing all subcontracts or other
agreements with a Related Entity containing a patent and invention
rights clause (as required under paragraph 7 of this clause) or
certifying that there were no such subcontracts or other agreements.

\(iii\) Interim and final reports shall be submitted electronically at
the eNTRe Web-site [http://entre.nasa.gov](http://entre.nasa.gov/).

\(d\) Partner agrees, upon written request of the Patent Representative,
to furnish additional technical and other information available to
Partner as is necessary for the preparation of a patent application on
an invention made under this Agreement in which the Government retains
title and for the prosecution of the patent application, and to execute
all papers necessary to file patent applications on such inventions and
to establish the Government\'s rights in the inventions.

\(e\) Protection of reported inventions. When inventions made under this
Agreement are reported and disclosed to NASA in accordance with the
provisions of this clause, NASA 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.

6\. [Examination of records relating to inventions]{.underline}

\(a\) The Patent Representative or designee shall have the right to
examine any books (including laboratory notebooks), records, and
documents of Partner relating to the conception or first actual
reduction to practice of inventions in the same field of technology as
the work under this Agreement to determine whether -

\(i\) Any such inventions were made in performance of this Agreement;

\(ii\) Partner has established and maintained the procedures required by
paragraph 5(a) of this clause; and

\(iii\) Partner and its inventors have complied with the procedures.

\(b\) If the Patent Representative learns of an unreported Partner
invention that the Patent Representative believes may have been made
under this Agreement, Partner may be required to disclose the invention
to NASA for a determination of ownership rights.

\(c\) Any examination of records under this paragraph will be subject to
appropriate conditions to protect the confidentiality of the information
involved.

7\. [Subcontracts or Other Agreements]{.underline}

\(a\) (i) Unless otherwise authorized or directed by the Patent
Representative, Partner shall include this *Invention and Patent Rights*
clause (suitably modified to identify the parties) in any subcontract or
other agreement with a Related Entity hereunder (regardless of tier) for
the performance of experimental, developmental, or research work.

\(ii\) In the case of subcontracts or other agreements at any tier,
NASA, the Related Entity, and Partner agree that the mutual obligations
of the parties created by this clause constitute privity of contract
between the Related Entity and NASA with respect to those matters
covered by this clause.

\(b\) In the event of a refusal by a prospective Related Entity to
accept such a clause, Partner:

\(i\) Shall promptly submit a written notice to the Patent
Representative setting forth the prospective Related Entity's reasons
for such refusal and other pertinent information that may expedite
disposition of the matter; and

\(ii\) Shall not proceed with such subcontract or other agreement
without the written authorization of the Patent Representative.

\(c\) Partner shall promptly notify the Patent Representative in writing
upon the award of any subcontract or other agreement with a Related
Entity (at any tier) containing an invention and patent rights clause by
identifying the Related Entity, the applicable invention and patent
rights clause, the work to be performed under the subcontract or other
agreement, and the dates of award and estimated completion. Upon request
of the Patent Representative, Partner shall furnish a copy of such
subcontract or other agreement, and, no more frequently than annually, a
listing of the subcontracts or other agreements that have been awarded.

\(d\) The Related Entity will retain all rights provided for Partner in
the *Invention and Patent Rights* clause included under paragraph 7(a)
of this clause in any subcontract or other agreement, and Partner will
not, as part of the consideration for awarding the subcontract or other
agreement, require any Related Entity to assign its rights in inventions
made under this Agreement to Partner.

\(e\) Notwithstanding paragraph 7(d) of this clause, and in recognition
of Partner's substantial contribution of funds, facilities or equipment
to the work performed under this Agreement, Partner is authorized,
subject to the rights of NASA set forth elsewhere in this clause, to:

\(i\) Acquire by negotiation and mutual agreement rights to an invention
made under this Agreement by a Related Entity as Partner may deem
necessary to obtaining and maintaining of private support; and

\(ii\) Request, in the event of inability to reach agreement pursuant to
paragraph 7(e)(i) of this clause, that NASA request that such rights for
Partner be included as an additional reservation in a waiver granted
pursuant to 14 C.F.R. Part 1245, Subpart 1. Any such requests to NASA
should be prepared in consideration of the following guidance and
submitted to the Patent Representative. The Related Entity should be
advised that unless it requests a waiver of title pursuant to the NASA
Patent Waiver Regulations (14 C.F.R. Part 1245, Subpart 1), NASA will
acquire title to inventions made under this Agreement. If a waiver is
not requested or granted, Partner may request a license from NASA
consistent with the requirements of 37 C.F.R. Part 404. A Related Entity
requesting a waiver must follow the procedures set forth in paragraph 10
of this clause.

8\. [Preference for United States manufacture]{.underline}

Partner agrees that any products embodying inventions made under this
Agreement or produced through the use of such inventions shall be
manufactured substantially in the United States. However, in individual
cases, the requirement to manufacture substantially in the United States
may be waived by the Patent Representative upon a showing by Partner
that under the circumstances domestic manufacture is not commercially
feasible.

9\. [March-in rights]{.underline}

Partner agrees that, with respect to any invention made under this
Agreement in which it has acquired title, NASA has the right in
accordance with the procedures in 37 C.F.R. 401.6 and any supplemental
regulations of NASA to require Partner, or an assignee or exclusive
licensee of such an invention, to grant a nonexclusive, partially
exclusive, or exclusive license in any field of use to a responsible
applicant or applicants, upon terms that are reasonable under the
circumstances, and if the Partner, assignee or exclusive licensee
refuses such a request NASA has the right to grant such a license
itself, if NASA determines that:

\(a\) Such action is necessary because Partner, assignee, or exclusive
licensee has not taken, or is not expected to take within a reasonable
time, effective steps to achieve practical application of such invention
in such field of use;

\(b\) Such action is necessary to alleviate health or safety needs which
are not reasonably satisfied by Partner, assignee, or exclusive
licensee;

\(c\) Such action is necessary to meet requirements for public use
specified by Federal regulations and such requirements are not
reasonably satisfied by Partner, assignee, or exclusive licensee; or

\(d\) Such action is necessary because the agreement required by
paragraph 8 of this clause has not been obtained or waived or because a
licensee of the exclusive right to use or sell any such invention in the
United States is in breach of such agreement.

10\. [Requests for Waiver of Rights]{.underline}

\(a\) In accordance with the NASA Patent Waiver Regulations, 14 C.F.R.
Part 1245, Subpart 1, waiver of rights to any or all inventions made or
that may be made under this Agreement may be requested at different time
periods. Advance waiver of rights to any or all such inventions may be
requested prior to the execution of the Agreement, or within 30 days
after execution thereof. In addition, waiver of rights to an identified
invention made and reported under this Agreement may be requested, even
though a request for an advance waiver was not made or, if made, was not
granted.

\(b\) Each request for waiver of rights shall be by petition to the
Administrator and shall include an identification of the petitioner;
place of business and address; if petitioner is represented by counsel,
the name, address, and telephone number of the counsel; the signature of
the petitioner or authorized representative; and the date of signature.
No specific forms need be used, but the request should contain a
positive statement that waiver of rights is being requested under the
NASA Patent Waiver Regulations; a clear indication of whether the
request is for an advance waiver or for a waiver of rights for an
individual identified invention; whether foreign rights are also
requested and, if so, for which countries, and a citation of the
specific section(s) of the regulations under which such rights are
requested; and the name, address, and telephone number of the party with
whom to communicate when the request is acted upon.

\(c\) All petitions for waiver, whether advanced or individual
petitions, will be submitted to the Patent Representative designated in
this clause.

\(d\) A Petition submitted in advance of this Agreement will be
forwarded by the Patent Representative to the Inventions and
Contributions Board. The Board will consider the petition, and where the
Board makes the findings to support the waiver, the Board will recommend
to the Administrator that waiver be granted, and will notify the
petitioner and the Patent Representative of the Administrator\'s
determination. The Patent Representative will be informed by the Board
whenever there is insufficient time or information or other reasons to
permit a decision to be made on a petition for an advance waiver without
unduly delaying the execution of the Agreement. In the event a petition
for an advance waiver is not granted or is not decided upon before
execution of the Agreement, the petitioner will be so notified by the
Patent Representative. All other petitions will be processed by the
Patent Representative and forwarded to the Board. The Board shall notify
the petitioner of its action, and if waiver is granted, the conditions,
reservations, and obligations thereof will be included in the Instrument
of Waiver. Whenever the Board notifies a petitioner of a recommendation
adverse to, or different from, the waiver requested, the petitioner may
request reconsideration under procedures set forth in the regulations.

[]{#Cl2IIx4i .anchor}**2.2.10.4.1. Patent and Copyright Use -
Authorization and Consent (Sample Clause)**

In order to avoid any possible interruption in the conduct of this
Agreement, 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 Partner responsibilities under this
Agreement, including the performance of such responsibilities by any
Related Entity of Partner.

[]{#Cl2IIx4ii .anchor}**2.2.10.4.2. Patent and Copyright Use -
Indemnification** (**Sample Clause)**

In the event the U.S. Government incurs any liability for the
infringement of privately owned U.S. patents or copyrights and such
liability is incurred as a result of performance of Partner
responsibilities by Partner or any Related Entity of Partner, Partner
agrees to indemnify and hold the U.S. Government harmless against such
liability, including costs and expenses incurred by the U.S. Government
in defending against any suit or claim for such infringements.

[]{#Cl2IIxi .anchor}**2.2.11. Use of NASA Name, Initials and Emblems and
Release of General Information to the Public (Sample Clause)**

1\. [NASA Name and Initials]{.underline}

Partner agrees the words "National Aeronautics and Space Administration"
and the letters "NASA" will not be used in connection with a product or
service in a manner reasonably calculated to convey any impression that
such product or service has the authorization, support, sponsorship, or
endorsement of NASA, which does not, in fact, exist. In addition, with
the exception of release of general information in accordance with
paragraph 3 below, Partner agrees that any proposed public use of the
NASA name or initials (including press releases resulting from
activities conducted under this Agreement and all promotional and
advertising use) shall be submitted by Partner in advance to the NASA
Assistant Administrator for Public Affairs or designee ("NASA Public
Affairs") for review and approval. Approval by NASA Public Affairs shall
be based on applicable law and policy governing the use of the NASA name
and initials.

2\. [NASA Emblems]{.underline}

Use of NASA emblems/devices (*i.e.*, NASA Seal, NASA Insignia, NASA
logotype, NASA Program Identifiers, and the NASA Flag) are governed by
14 C.F.R. Part 1221. Partner agrees that any proposed use of such
emblems/devices shall be submitted to NASA Public Affairs for review and
approval in accordance with such regulations.

3\. [Release of General Information to the Public]{.underline}

NASA or Partner may, consistent with Federal law and this Agreement,
release general information regarding its own participation in this
Agreement as desired.

[]{#Cl2IIxii1 .anchor}**2.2.12.1. Disclaimer of Warranty (Sample
Clause)**

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

[]{#Cl2IIxii2 .anchor}**2.2.12.2. Disclaimer of Endorsement (Sample
Clause)**

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

[]{#Cl2IIxiii .anchor}

**2.2.13. Compliance with Laws and Regulations (Sample Clause)**

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

With respect to any export control requirements:

> \(a\) The Parties will comply with all U.S. export control laws and
> regulations, including the International Traffic in Arms Regulations
> (ITAR), 22 CFR Parts 120 through 130, and the Export Administration
> Regulations (EAR), 15 CFR Parts 730 through 799, in performing work
> under this Annex to this Agreement. In the absence of available
> license exemptions/exceptions, the Partner shall be responsible for
> obtaining the appropriate licenses or other approvals, if required,
> for exports of hardware, technical data and software, or for the
> provision of technical assistance.
>
> \(b\) The Partner shall be responsible for obtaining export licenses,
> if required, before utilizing foreign persons in the performance of
> work under this Agreement or any Annex to this Agreement, including
> instances where the work is to be performed on-site at NASA and where
> the foreign person will have access to export-controlled technical
> data or software.
>
> \(c\) The Partner will be responsible for all regulatory record
> keeping requirements associated with the use of licenses and license
> exemptions or exceptions.
>
> \(d\) The Partner will be responsible for ensuring that the provisions
> of this Article apply to its Related Entities.

[]{#Cl2IIxiv1 .anchor}**2.2.14.1 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 \# (1-5) years from the date of the last
signature, whichever comes first.

[]{#Cl2IIxiv2 .anchor}**2.2.14.2 Term of Task (Annex Sample Clause)**

This Annex 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 (#1-5) year(s) from the date of the last
signature, whichever comes first, unless such term exceeds the duration
of the Umbrella Agreement. The term of this Annex shall not exceed the
term of the Umbrella Agreement. The Annex is automatically expired upon
the expiration of the Umbrella Agreement.

[]{#Cl2IIxv1 .anchor}**2.2.15.1. Right to Terminate (Nonreimbursable
Agreement Sample Clause)**

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

[]{#Cl2IIxv2 .anchor}**2.2.15.2. Right to Terminate (Reimbursable
Agreement Sample Clause)**

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

[]{#Cl2IIxv3 .anchor}**2.2.15.3. 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 Partner may be terminated by NASA, in
whole or in part,

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

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 Partner for that purpose. For the use of property or services
provided for on a fixed-price basis, the costs incurred by the United
States, including termination costs, shall not exceed the fixed price of
the services which would have been provided had termination not taken
place. For use of property or services provided on a cost basis, Partner
will be liable for all costs, consistent with law and NASA policy, which
are incurred by the U.S. Government in the provision of property 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 Partner,
its contractors, subcontractors, or customers as a result of the
termination by NASA pursuant to paragraph 1 of this section.

4\. Partner shall have the right to terminate, in whole or in part, this
Agreement at any time. In the event of such termination, Partner will be
obligated to reimburse NASA for all Government costs which have been
incurred up to the effective date of Partner'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
Partner in accordance with law, to terminate its performance under this
Agreement, in whole or in part, for Partner's or NASA's breach of a
provision in this Agreement.

[]{#Cl2IIxv4 .anchor}**2.2.15.4 Right to Terminate (Nonreimbursable
Umbrella Agreement Sample Clause)**

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

[]{#Cl2IIxv5 .anchor}**2.2.15.5 Right to Terminate (Reimbursable
Umbrella Agreement Sample Clause)**

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

[]{#Cl2IIxvi .anchor}**2.2.16. Continuing Obligations (Sample Clause)**

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

[]{#Cl2IIxvii1 .anchor}**2.2.17.1 Management Points of Contacts (Sample
Clause)**

The following personnel are designated as the principal points of
contact between the Parties in the performance of this Agreement.
Technical points of contact may also be identified. In addition,
Principal Investigators should be identified if the Intellectual
Property Rights -- Rights in Raw Data sample clause (2.2.10.2) is used.

[NASA]{.underline} [Partner]{.underline}

Name Name

Title Title

Email Email

Telephone Telephone

Cell Cell

Fax Fax

Address Address

[]{#Cl2IIxvii2 .anchor}**2.2.17.2. Technical Points of Contact (Annex
Sample Clause)**

The following personnel are designated as the principal points of
contact between the Parties in the performance of this Annex.

[NASA]{.underline} [Partner]{.underline}

Name Name

Title Title

Email Email

Telephone Telephone

Cell Cell

Fax Fax

Address Address

[]{#Cl2IIxviii .anchor}**2.2.18. Dispute Resolution (Sample Clause)**

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

[]{#Cl2IIxix .anchor}**2.2.19. 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. For all
NASA mishaps, Partner agrees to comply with NPR 8621.1, \"NASA
Procedural Requirements for Mishap Reporting, Investigating, and
Recordkeeping\" and \[insert Center safety policies, as appropriate\].

[]{#Cl2IIxx .anchor}**2.2.20. Modifications (Sample Clause)**

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

[]{#Cl2IIxxi .anchor}**2.2.21. Assignment (Sample Clause)**

Neither this Agreement nor any interest arising under it will be
assigned by the Partner or NASA without the express written consent of
the officials executing this Agreement.

[]{#Cl2IIxxii .anchor}**2.2.22. 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.

[]{#Cl2IIxxiii .anchor}**2.2.23. Independent Relationship (Sample
Clause)**

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

[]{#Cl2IIxxiv .anchor}**2.2.24. Loan of Government Property (Sample
Clause)**

1\. In order to further activities set forth in this Agreement, the
Parties acknowledge that NASA shall lend the following Government
property to Partner:\
\<Insert List of Lent Property\>

2\. The property listed above (hereinafter referred to as the
"Property") is not being provided to Partner as a substitute for the
purchasing of the same type of property by Partner under any contract or
grant that Partner has, or may have, with a third party. Furthermore,
such Property is not excess to NASA\'s requirements and its use is
anticipated upon its return to NASA.

3\. In support of this loan the Partner shall:\
(a) Install, operate, and maintain the Property at Partner's expense;\
(b) Furnish all utilities (e.g., water, electricity) and operating
materials required for the operation of the Property;\
(c) Bear all costs associated with the use and enjoyment of the Property
under the terms of this Agreement, including but not limited to such
costs as packing, crating, shipping, installing, maintaining, licensing,
and operating the Property;\
(d) Transport the Property in accordance with good commercial practice;\
(e) Acknowledge that the privilege of using and enjoying the said
Property exists solely by virtue of this Agreement with NASA, the owner
of said Property, and not as of right;\
(f) Identify, mark, and record all of the Property promptly upon
receipt, and maintain such identity so long as it remains in the
custody, possession, or control of Partner.\
(g) Maintain suitable records for each item of Property. As a minimum,
such records shall show description, identification number, unit cost,
quantity, dates of receipt, condition upon receipt, and location.
Partner shall perform an inventory of the Property one (1) year from the
effective date of this Agreement, and every year thereafter, if the
Agreement is still in effect, and send such inventory report to NASA.
The report shall include a statement validating any requirement to
continue the loan. Further, Partner shall provide to NASA upon
reasonable request, records sufficient to disclose the date of
inspections, the deficiencies discovered as a result of inspections, and
the maintenance actions performed. This annual report shall be submitted
to the following NASA point of contact (POC): \<Insert POC
Information\>\
(h) Report any loss, damage, or destruction of Property to the NASA POC
identified above within ten (10) working days from the date of the
discovery thereof.

*Note*: If required, the following clause can be added to the end of the
previous clause:

\(i\) Assume responsibility for loss or damage to the Property,
reasonable wear and tear excepted, and, with the same limitation for
wear and tear, agree to return the Property to NASA in as good condition
as when received. It is understood that Partner is responsible for any
damage to the Property while it is in the care, custody, and control of
Partner, its employees, contractors, subcontractors, agents, or
principal investigators.

[]{#Cl2IIxxvi .anchor}**2.2.26. Signatory Authority (Sample Clause)**

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

**Approval:**

**NASA-\[Center initials\] Partner**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**Name Name**

**Title Title**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**Date Date**

**CHAPTER 3. NONREIMBURSABLE AND REIMBURSABLE AGREEMENTS WITH
FEDERAL/STATE/LOCAL GOVERNMENT ENTITIES**[]{#__RefHeading___Toc203815559
.anchor}

**3.1. GENERAL GUIDANCE**[]{#__RefHeading___Toc203815560 .anchor}

The Space Act provides authority for NASA to enter into nonreimbursable
and reimbursable SAAs with agencies of the Federal Government and with
state/local governments, including state and local colleges and
universities (public partners).[^48] These agreements constitute a
formal statement of understanding between NASA and the public partner
requiring NASA programmatic or institutional activities to accomplish
the purpose of the SAA.

**3.2. AGREEMENTS WITH STATE/LOCAL GOVERNMENT
ENTITIES**[]{#__RefHeading___Toc203815561 .anchor}

The approach for these binding interagency SAAs with state and local
government entities is generally the same as those entered into with
private parties.[^49] Therefore, the guidance and clauses in Chapter 2
should be followed. *Note*: Regarding use of the liability and risk
clauses in section 2.2.9.1, to the extent that a state or local
government entity is required to waive claims, especially for ISS and
launch agreements for science or space exploration, it may be prudent to
verify the entity's authority to waive claims on behalf of the state.
For example, state universities are provided certain authorities by the
state which are generally found in their articles of incorporation. A
review of these articles may provide evidence of any such required
authority.

**3.3. AGREEMENTS WITH FEDERAL GOVERNMENT
ENTITIES**[]{#__RefHeading___Toc203815562 .anchor}

The approach for these binding interagency agreements is generally the
same as those entered into with private parties.[^50] Therefore, the
guidance and clauses in Chapter 2 should be followed unless the clause
is listed below. For these clauses, NASA takes a slightly different
approach than is provided in the sample clauses in Chapter 2: Authority
and Parties, Financial Obligations, Priority of Use, Liability and Risk
of Loss, Intellectual Property Rights, Right to Terminate, Dispute
Resolution, Loan of Government Property, if applicable, and Signatory
Authority.

Sometimes, a draft agreement is provided by another Federal entity that
is not consistent with the SAA clauses that NASA employs in its
agreements. Since Federal entities do not sue each other and the risk of
a dispute is mitigated, some flexibility in the wording of the clauses
is permitted if the legal meaning is consistent with NASA authorities.
Any questions regarding agreements with Federal entities should be
referred to the Office of External Relations, which is the office
responsible for reviewing all agreements with other U.S. Federal
Agencies. [^51] Questions concerning NASA's legal authorities can be
referred to the Office of the General Counsel of Chief Counsel, as
appropriate.

**3.3.1. AUTHORITY AND PARTIES**[]{#__RefHeading___Toc203815563
.anchor}**:** This section cites the legal authority for NASA and the
other Federal entity to enter into the agreement. In addition, the
parties are identified by name and address.

> [*3.3.1. Authority and Parties (Sample Clause)*](#Cl3IIIi)

**3.3.2. FINANCIAL OBLIGATIONS**[]{#__RefHeading___Toc203815564
.anchor}**:** Depending on the type of agreement, nonreimbursable or
reimbursable, one of the following sample clauses can be used. Usually,
each Agency funds its own portion of the cooperation (nonreimbursable
SAA) unless specifically provided otherwise. Where each Agency funds its
own work, Financial Obligations - Nonreimbursable Agreement sample
clause 3.3.2.1 is used.

> [*3.3.2.1. Financial Obligations (Nonreimbursable* *Agreement Sample
> Clause)*](#Cl3IIIii1)

In general, as specified in section 2.2.6 above, before NASA may perform
reimbursable work, an amount sufficient to fund the reimbursable work
(either in full or divided by task order) must be received by NASA in
advance of initiation of NASA's efforts. However, for agreements with
other Federal entities, while the preference is that payment will be
made in advance of initiation of NASA's efforts, NPD 1050.1H provides
that NASA may initiate activities prior to receipt of payment.

[*3.3.2.2. Financial Obligations* (*Reimbursable Agreement Sample
Clause)*](#Cl3IIIii2)

**3.3.3. PRIORITY OF USE**[]{#__RefHeading___Toc203815565 .anchor}**:**
This section ensures that NASA and the other Federal entity do not
become legally committed to perform the activities according to any
schedule stated in the agreement, in the event other Federal priorities
or interests arise. It provides that, in the event of a conflict in
scheduling the Federal resources, either party determines which usage of
its own resources takes priority.

> [*3.3.3. Priority of Use (Sample Clause)*](#Cl3IIIiii)

**3.3.4. LIABILITY AND RISK OF LOSS**[]{#__RefHeading___Toc203815566
.anchor}**:** Since NASA does not sue other Federal entities, and
vice-versa, liability normally is allocated by having each party assume
its own risks.[^52] As appropriate, the risk of liability can be
otherwise allocated as agreed by the parties.

> [*3.3.4. Liability and Risk of Loss (Sample Clause)*](#Cl3IIIiv)

**3.3.5. INTELLECTUAL PROPERTY RIGHTS**[]{#__RefHeading___Toc203815567
.anchor}**:** When the partner to the agreement is a Federal entity, a
simplified approach to intellectual property rights is sufficient to
protect NASA's interests. Sample clauses for the allocation and
protection of rights are discussed in four areas: (1) data rights; (2)
handling of data; (3) invention and patent rights; and (4) release of
general information to the public and media. For additional guidance
related to intellectual property rights, see Chapter 2, section 2.2.10.

Normally, Federal entities exchange data and information without any use
and disclosure restrictions, except as required by law. Thus, the [Free
Exchange of Data]{.underline} sample clause (2.2.10.1.4) will be used in
most agreements with other Federal entities.

> [*2.2.10.1.4. Intellectual Property Rights -- Data Rights (Free
> Exchange of Data Sample Clause)*](#Cl2IIx1iV)

However, where there is a likelihood that NASA and the other Federal
entity will exchange third party proprietary data or data (including
software) that NASA or the other Federal entity intend to control, the
Handling of Data sample clause (3.3.5.1) may also be used.

> [*3.3.5.1. Intellectual Property Rights - Handling of Data (Sample
> Clause)*](#Cl3IIIv1)

The Invention and Patent Rights sample clauses (3.3.5.2) should normally
be included in all agreements with other Federal entities. This clause
recognizes that custody and administration of an invention remains with
the inventing agency, but the invention is owned by the U.S. Government
rather than any single Federal entity. Additionally, NASA and the other
Federal entity agree to consult about future actions to establish patent
protection for joint inventions.

> [*3.3.5.2. Intellectual Property Rights - Invention and Patent Rights
> (Sample Clause)*](#Cl3IIIv2)

If applicable, a clause may be included in agreements with other Federal
entities that provides for the public release of general information
about activities being conducted under the agreement. To the extent
press releases are desired, the agreement should include sample clause
3.3.5.3, which addresses the appropriate process for the release of
general information to the public and media by either party.

> [*3.3.5.3. Release of General Information to the Public and Media
> (Sample Clause)*](#Cl3IIIv3)

**3.3.6. Right to Terminate:** This clause incorporates the standard
conditions under which either party may terminate an SAA. For
reimbursable agreements, a clause is included addressing termination
costs, consistent with OMB guidance on "Business Rules for
Intragovernmental Transactions."[^53]

[*3.3.6. Right to Terminate (Sample Clause)*](#Cl3IIIvi)

**3.3.7. DISPUTE RESOLUTION**[]{#__RefHeading___Toc203815568
.anchor}**:** This clause outlines the dispute resolution procedures to
be followed for agreements with other Federal entities. It incorporates
guidance provided by OMB on "Business Rules for Intragovernmental
Transactions."

[*3.3.7. Dispute Resolution (Sample Clause)*](#Cl3IIIvii)

**3.3.8. LOAN OF GOVERNMENT PROPERTY:**[]{#__RefHeading___Toc203815569
.anchor} This clause outlines the responsibilities that accompany the
loan of government property to either another Federal Entity, or NASA as
part of the Agreement activities.

[*3.3.8. Loan of Government Property (Sample Clause)*](#Cl3IIIviii)

**3.3.9. SIGNATORY AUTHORITY**[]{#__RefHeading___Toc203815570
.anchor}**:** This clause provides a signature block, as well as the
typed name, title, and date of signature for the responsible signing
official of each Federal entity. Two original copies should be signed by
both parties. During the negotiations, care should be taken to identify
and confirm the appropriate senior managers are signing for each Agency,
both in terms of management responsibilities and signatory authority. As
a general rule, the signing officials should have similar levels of
management responsibility. With respect to signatory authority, in
contrast to agreements with non-Federal entities, the concept of
"apparent authority," an element of the law of Agency, does not apply to
Federal agreements. An official must have actual (original or delegated)
authority to create legal obligations for a Federal agency.

[*3.3.9. Signatory Authority (Sample Clause)*](#Cl3IIIix)

**APPENDIX 3. SAMPLE CLAUSES -- NONREIMBURSABLE AND REIMBURSABLE
AGREEMENTS WITH FEDERAL GOVERNMENT
ENTITIES**[]{#__RefHeading___Toc203815571 .anchor}

[]{#Cl3IIIi .anchor}**3.3.1. Authority and Parties (Sample Clause)**

NASA/Center enters into this Agreement in accordance with the National
Aeronautics and Space Act of 1958, as amended (42 U.S.C. § 2473 (c).
NASA is located at \[provide address\]. \[Other Federal Entity\] enters
into this Agreement in accordance with \[provide citation to legal
authority\]. \[Other Federal Entity\] is located at \[provide address\].
NASA/Center and \[Other Federal Entity\] may be individually referred to
as a "Party" and collectively referred to as the "Parties."

[]{#Cl3IIIii1 .anchor}**3.3.2.1. Financial Obligations - Nonreimbursable
Agreement (Sample Clause).**

There will be no transfer of funds or other obligations between NASA and
Partner in connection with this Agreement. Each Party will fund its own
participation under this Agreement. All activities under or pursuant to
this Agreement are subject to the availability of appropriated funds and
the Parties' respective funding procedures.

[]{#Cl3IIIii2 .anchor}**3.3.2.2. Financial Obligations - Reimbursable
Agreement (Sample Clause).**

NASA shall be reimbursed by Partner in connection with the provision of
goods or services in accordance with law. Payment should be made by
Partner in advance of initiation of NASA's efforts \[for incremental
payments, insert payment schedule\]. NASA will not provide services or
incur costs beyond the funding provided under this Agreement. All
activities under or pursuant to this Agreement are subject to the
availability of appropriated funds and the Parties' respective funding
procedures.

[]{#Cl3IIIiii .anchor}**3.3.3. Priority of Use (Sample Clause)**

Any schedule or milestone in this Agreement is estimated based upon the
Parties' current understanding of the projected availability of their
personnel, facilities and equipment. In the event that either party's
projected availability changes, the other party shall be given
reasonable notice of that change, so that the schedule and milestones
may be adjusted accordingly. The Parties agree that its usage own of any
facilities, equipment, and personnel shall have priority over the usage
planned in this Agreement. Should a conflict arise, the responsible
Federal Entity, in its sole discretion shall determine whether to
exercise that priority.

[]{#Cl3IIIiv .anchor}**3.3.4. Liability and Risk of Loss (Sample
Clause).**

Each Party agrees to assume liability for its own risks arising from or
related to activities conducted under this Agreement.

[]{#Cl3IIIv1 .anchor}**3.3.5.1. Intellectual Property Rights - Handling
of Data (Sample Clause).**

1\. In the performance of this Agreement, NASA or Partner (as the
Disclosing Party) may provide the other (as the Receiving Party) with:

\(a\) data of third parties that the Disclosing Party has agreed to
handle under protective arrangements or is required to protect under the
Trade Secrets Act (18 U.S.C. 1905), or

\(b\) Government data, the use and dissemination of which, the
Disclosing Party intends to control.

2\. Data provided by Disclosing Party under the Agreement

\(a\) At the time of execution of this Agreement, the Parties agree that
the following data of third parties will be provided by the Disclosing
Party to the Receiving Party with the express understanding that the
Receiving Party will use and protect such data in accordance with this
clause:

\[*insert specific listing of data items and identify the Disclosing and
Receiving Party, or if none, insert "None" or "Not Applicable"\]*

\(b\) At the time of execution of this Agreement, the Parties agree that
the following U.S. Government data will be provided by the Disclosing
Party to the Receiving Party with the express understanding that the
Receiving Party will use and protect such U.S. Government data in
accordance with this clause:

\[*insert specific listing of data items and identify the Disclosing and
Receiving Party, or if none, insert "None" or "Not Applicable"\]*

\(c\) At the time of execution of this Agreement, the Parties agree that
the following software and related data will be provided by the
Disclosing Party to the Receiving Party under a separate Software Usage
Agreement with the express understanding that the Receiving Party will
use and protect such related data in accordance with this clause.

*\[insert name of the software and identify the Disclosing and Receiving
Party; or if none, insert "None" or "Not Applicable\]*

3\. With respect to data specifically identified in this clause or
specifically marked with a restrictive notice, the Receiving Party
agrees to:

\(a\) Use, disclose, or reproduce such data only to the extent necessary
to perform the work required under this Agreement;

\(b\) Safeguard such data from unauthorized use or disclosure.

\(c\) Allow access to such data only to its employees, contractors, or
subcontractors that require access for their performance under this
Agreement;

\(d\) Except as otherwise indicated in 3(c) above, preclude access and
disclosure of such data outside the Receiving Party's organization;

\(e\) Notify its employees who may require access to such data about the
obligations under this clause and ensure that such employees comply with
such obligations, and notify its contractors or subcontractors that may
require access to such data about their obligations under this clause;
and

\(f\) Return or dispose of such data, as the Disclosing Party may
direct, when the data is no longer needed for performance under this
Agreement.

4\. In the event that data exchanged between the Parties include a
legend that NASA or Partner deems to be ambiguous or unauthorized, NASA
or Partner may inform the other Party of such condition. Notwithstanding
such a legend, as long as such legend provides an indication that a
restriction on use or disclosure was intended, the Receiving Party shall
treat such data pursuant to the requirements of this clause unless
otherwise directed, in writing, by the Providing Party.

5\. Notwithstanding any restrictions on use, disclosure, or reproduction
of data provided in this clause, the Parties will not be restricted in
the use, disclosure, and reproduction of any data that: (a) is publicly
available at the time of disclosure or becomes publicly available
without breach of this Agreement; (b) is known to, in the possession of,
or developed by the receiving Party independent of carrying out the
receiving Party's responsibilities under this Agreement and independent
of any disclosure of, or without reference to, proprietary data or
otherwise protectable data hereunder; (c) is received from a third Party
having the right to disclose such information without restriction; or
(d) is required to be produced by the receiving Party pursuant to a
court order or other legal requirement. If either NASA or Partner
believes that any of the events or conditions that remove restriction on
the use, disclosure, and reproduction of the data apply, NASA or Partner
will promptly notify the other Party of such belief prior to acting on
such belief, and, in any event, will notify the other Party prior to an
unrestricted use, disclosure, or reproduction of such data.

[]{#Cl3IIIv2 .anchor}**3.3.5.2. Intellectual Property Rights - Patent
and Invention Rights (Sample Clause).**

Unless otherwise agreed by NASA and Partner, custody and administration
of 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 Party. In the event an invention is made jointly by employees
the Parties (including by employees of a Party's contractors or
subcontractors for which the U.S. Government has ownership), NASA and
Partner will consult and agree as to future actions toward establishment
of patent protection for the invention.

[]{#Cl3IIIv3 .anchor}**3.3.5.3. Release of General Information to the
Public and Media (Sample Clause).**

NASA or Partner may, consistent with Federal law and this Agreement,
release general information regarding its own participation in this
Agreement as desired. Insofar as participation of the other Party is
involved, NASA and Partner will seek to consult with each other prior to
any releases, consistent with the Parties' respective policies.

[]{#Cl3IIIvi .anchor}**3.3.6. Right to Terminate (Sample Clause)**

Either Party may unilaterally terminate this Agreement by providing 30
calendar days written notice to the other Party. In the event of such
termination, Partner will be obligated to reimburse NASA for all costs
for which the Partner was responsible and that have been incurred in
support of this Agreement up to the date the termination notice is
received by the non-terminating Party. Where Partner terminates this
Agreement, NASA is authorized to collect costs incurred prior to
termination, plus any termination costs, up to the total payment amount
provided for under this Agreement.

[]{#Cl3IIIvii .anchor}**3.3.7. Dispute Resolution (Sample Clause).**

Except as otherwise provided in the article entitled "Priority of Use,"
the article entitled "Intellectual Property Rights -- Invention and
Patent Rights" (for those activities governed by 37 C.F.R. Part 404),
and those situations where a pre-existing statutory or regulatory system
exists (*e.g.* under the Freedom of Information Act, 5 U.S.C. § 552),
all disputes concerning questions of fact or law arising under this
Agreement shall be referred by the claimant in writing to the
appropriate person identified in this Agreement as the "Management
Points of Contact." The persons identified as the "Management Points of
Contact" for NASA and the Partner will consult and attempt to resolve
all issues arising from the implementation of this Agreement. If they
are unable to come to agreement on any issue, the dispute will be
referred to the signing officials, or their designees, for joint
resolution after the Parties have separately documented in writing clear
reasons for the dispute. As applicable, disputes will be resolved
pursuant to the provisions of the Business Rules for Intragovernmental
Transactions delineated in the Treasury Financial Manual, Vol. 1,
Bulletin 2007-03, Section VII (Resolving Intragovernmental Disputes and
Differences).

[]{#Cl3IIIviii .anchor}**3.3.8. Loan of Government Property (Sample
Clause)**

1\. In order to further activities set forth in this Agreement, the
Parties acknowledge that \[NASA or other Federal Entity\] shall lend the
following Government property to \[Other Federal Entity or NASA, as
appropriate\]:\
\<Insert List of Lent Property. If both parties are lending property,
provide 2 separate lists.\>\
2. Furthermore, such Property is not excess to NASA\'s \[or Other
Federal Entity's\] requirements and its use is anticipated upon its
return to NASA \[or Other Federal Entity, as appropriate.\
3. In support of this loan the \[Other Federal Entity or NASA, as
appropriate\] shall:\
(a) Install, operate, and maintain the Property at Federal Entity's
expense;\
(b) Furnish all utilities (e.g., water, electricity) and operating
materials required for the operation of the Property;\
(c) Bear all costs associated with the use and enjoyment of the Property
under the terms of this Agreement, including but not limited to such
costs as packing, crating, shipping, installing, maintaining, licensing,
and operating the Property;\
(d) Transport the Property in accordance with good commercial practice;\
(e) Acknowledge that the privilege of using and enjoying the said
Property exists solely by virtue of this Agreement with \[NASA or other
Federal Entity, as appropriate\], the owner of said Property, and not as
of right;\
(f) Identify, mark, and record all of the Property promptly upon
receipt, and maintain such identity so long as it remains in the
custody, possession, or control of Partner.\
(g) Maintain suitable records for each item of Property. As a minimum,
such records shall show description, identification number, unit cost,
quantity, dates of receipt, condition upon receipt, and location.
Partner shall perform an inventory of the Property one (1) year from the
effective date of this Agreement, and every year thereafter, if the
Agreement is still in effect, and send such inventory report to \[NASA
or Other Federal Entity, as appropriate\]. The report shall include a
statement validating any requirement to continue the loan. Further,
\[Other Federal Entity or NASA, as appropriate\] shall provide to \[NASA
or Other Federal Entity, as appropriate\] upon reasonable request,
records sufficient to disclose the date of inspections, the deficiencies
discovered as a result of inspections, and the maintenance actions
performed. This annual report shall be submitted to the following \[NASA
or Other Federal Entity, as appropriate\] point of contact (POC):
\<Insert POC Information\>\
(h) Report any loss, damage, or destruction of Property to the POC
identified above within ten (10) working days from the date of the
discovery thereof.

[]{#Cl3IIIix .anchor}**3.3.9. Signatory Authority (Sample Clause).**

Approved and Authorized on Behalf of Each Party by:

NASA/Center

Name

Title

Date

\[Other Federal Entity\]

Name

Title

Date

**CHAPTER 4. AGREEMENTS WITH FOREIGN
ENTITIES**[]{#__RefHeading___Toc203815572 .anchor}

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**4.1. GENERAL GUIDANCE**[]{#__RefHeading___Toc203815573 .anchor}

NASA has independent legal authority under the Space Act to conclude
executive agreements on behalf of the U.S. to conduct aeronautical and
space activities with other nations (*see* section 1.1). Executive
agreements are International SAAs binding under international law. For
executive agreements, NASA's foreign partners are typically government
agencies or international organizations because only these entities have
legal capacity to enter into binding agreements under international law.
Where a foreign agency or international organization is authorized to
make binding commitments on behalf of its respective government, NASA
will usually execute an SAA under international law. An International
SAA may be a Memorandum of Understanding (MOU), discussed further in
section 4.2 below, or a letter agreement (LOA), discussed further in
section 4.3 below. Under NASA's International SAAs, NASA and the
participating foreign entity are referred to as "party" or "parties."

If a governmental entity lacks legal capacity to execute agreements
binding under international law, an exchange of diplomatic notes with
the party's government may be required to conclude the agreement, or the
agreement can be signed at the government level (*e.g.* foreign
ministries). Alternatively, the International SAA should specify U.S.
Federal law as the applicable law for all purposes including
interpretation.[^54] Otherwise, the International SAA is very similar to
an executive agreement.

NASA also enters into International SAAs with foreign nongovernmental
organizations, including universities, institutes and commercial
entities, and occasionally with foreign persons. Such an International
SAA is usually very similar to the executive agreements discussed in
this Chapter except that the International SAAs should specify that U.S.
Federal law is the applicable law.

Regardless of whether international law or U.S. Federal law governs the
SAA, NASA's performance of its responsibilities under any SAA is always
subject to applicable U.S. laws.

It is NASA's policy to engage in international cooperative projects that
provide technical, scientific, economic, or foreign policy benefits to
the U.S. Such projects could comprise foreign participation in NASA
activities, NASA participation in foreign activities, as well as joint
international collaborative efforts. Each international cooperative
effort 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 party. Generally, NASA's cooperative activities with foreign
entities are not directed to the joint development of technology, or
products or processes that are potentially of near-term commercial
value.

Organizationally, OER is responsible for overall policy coordination for
all of NASA's international cooperative projects and determines, in
consultation with the Department of State, when an agreement is subject
to the requirements of the Case-Zablocki Act (*see* section 4.2). The
appropriate Program Office is responsible for the technical, scientific,
programmatic, and management aspects of the joint activity. Execution of
an agreement should be treated as any other important early program
milestone by a Program Office. Early consultation with the Headquarters
Office of the General Counsel (OGC) is critical for ensuring all aspects
of the cooperation are consistent with applicable law and legal
policy.[^55] Attorneys from Headquarters OGC will assist and advise OER
during the negotiation of the text with a foreign entity as necessary.

Every international project involving a commitment of NASA resources
should be embodied in a legally binding SAA or other legally binding
instrument. NASA resources committed to a project could include, for
example, time and effort of personnel, support services, use of
facilities, equipment, information, and, where appropriate, funding. The
SAA should describe each party's individual responsibilities,
technically and financially, for each clearly defined element of the
project. It should also establish clearly defined managerial and
technical interfaces and provisions for the protection of proprietary or
otherwise sensitive technology. A well defined SAA will result in each
party retaining intellectual property rights in the technology/hardware
it has developed independently of the other party. In contrast,
scientific results are shared between the cooperating parties and are
made available to the international community. Specific policy and
procedural guidelines to be followed in entering into international
cooperative agreements are contained in [NPD
1360.2A](http://nodis3.gsfc.nasa.gov/displayDir.cfm?Internal_ID=N_PD_1360_002A_&page_name=main):
"Initiation and Development of International Cooperation in Space and
Aeronautics Programs."[^56]

**4.2. INTERNATIONAL NONREIMBURSABLE AGREEMENT -
MOU**[]{#__RefHeading___Toc203815574 .anchor}

A Memorandum of Understanding (MOU) is used by U.S./NASA for
bilateral[^57] or multilateral executive agreements with foreign
governments, foreign governmental entities, and international
organizations addressing activities that are significant in scope[^58]
and intended to bind both parties under international law.[^59] The MOU
must also be procedurally consistent with the Case-Zablocki Act, (1
U.S.C. § 112(b)), and implementing regulations, (22 C.F.R. Part
181).[^60] Before executing an international MOU, review by the
Department of State, as described in 22 C.F.R. Part 181, the "Circular
175 process," must be completed. (*See* State Department Foreign Affairs
Manual 11 FAM Chapter 700 (September 2006)). If not immediately
effective upon signature, these MOUs often enter into force through
exchange of diplomatic notes between the U.S. Government and that of the
other country. [^61] This occurs 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). Sometimes the foreign partner's legal
system requires additional steps after signature of the MOU for it to
become effective. In some cases this can be a period of years. However,
NASA and the foreign partner often need to begin working on the
cooperative effort in advance of the MOU becoming effective. In these
instances, NASA and the foreign partner can sometimes agree to
provisional application of the MOU.

It is also worth noting that there is a statutory provision requiring
NASA to solicit comment through the Commerce Business Daily on the
potential impact of an obligation in which a foreign entity will
participate in a space mission as a supplier of the spacecraft or a
related system, prior to entering into such an obligation.[^62] Please
consult with OER about the applicability of this provision to a
particular draft agreement.

One type of international SAA of particular note is the so-called
"barter" agreement. While all international cooperation involves no
exchange of funds and in that sense represents a barter arrangement, in
NASA international agreement practice the term "barter" refers to a
limited category of collateral transactions involving in-kind payment
for services among international partners in the International Space
Station (ISS) program and specifically authorized by the ISS
international agreements. Otherwise, acquisition by NASA of in-kind
goods and services is accomplished through barter contracts under the
Federal Acquisition Regulation. Depending upon the significance of the
barter, Circular 175 authority may be required.

**4.3. INTERNATIONAL NONREIMBURSABLE AGREEMENT - LETTER
AGREEMENT**[]{#__RefHeading___Toc203815575 .anchor}

NASA international cooperative activities of lesser significance can be
addressed by using a Space Act letter agreement. NASA may initiate the
process by forwarding a letter to a foreign governmental entity or
international organization proposing the terms of the cooperation.
Receipt of a letter from the foreign party indicating unconditional
acceptance of the agreement with the proposed conditions concludes the
process.[^63] The "agreement" is not effective until an affirmative
response is received; the letters together then constitute the letter
agreement, which is intended to bind both parties under international
law. U.S. law can also be used in Letter Agreements.[^64]

**4.4. INTERNATIONAL REIMBURSABLE
AGREEMENT**[]{#__RefHeading___Toc203815576 .anchor}

NASA enters into International Reimbursable SAAs to facilitate use by
foreign entities of NASA facilities, goods, and services. Examples of
the circumstances in which NASA facilities, goods, and services may be
supplied to a foreign party under an International Reimbursable SAA
include:

-   NASA may accept reimbursement for use of NASA facilities, for unique
    services that are developed in-house, or for items not generally
    available on the commercial market from any source (*e.g.*,
    specially tested integrated circuits uniquely designed for
    interplanetary spacecraft). However, NASA should not act as a
    purchasing agent or broker for party acquisition of widely available
    goods, parts, or services.

-   Reimbursable work also may be undertaken to support a foreign
    entity, unrelated to any larger cooperation, on similar terms and
    conditions as would be provided to a domestic party. The proposed
    activity must be consistent with NASA's mission, and NASA cannot, by
    virtue of the support provided, compete with the private sector.
    NASA may only allow non-Federal entities to use its space-related
    facilities on a reimbursable basis if the NASA Administrator (or
    designee) determines that "equivalent commercial services are not
    available on reasonable terms." (15 U.S.C § 5807). Lastly, all the
    costs of the activity must be borne by the foreign party with
    advance payment to NASA and specific instructions should be included
    on the method of payment.

-   When reimbursable NASA activity is relatively low cost and a minor
    component of an overall cooperation, it may be appropriate to
    negotiate arrangements for reimbursable work within the context of
    the broader cooperative effort. While the overall International SAA
    would be governed by international law, the reimbursable component
    of the work would be subject to a separate agreement, concluded
    under U.S. law. There are several reasons for utilizing this
    approach, including the fact that different intellectual property,
    liability, and financial provisions will apply to the reimbursable
    work. Consequently, the foreign party would be subject to standard
    SAA requirements to which all U.S. parties are subject, such as the
    use of services or facilities on a non-interference basis.

In general, International Agreements that are Reimbursable Agreements
with foreign entities should be concluded consistent with the guidance
and sample clauses for agreements with nongovernmental entities in
Chapter 2. Typically, these agreements are concluded pursuant to U.S.
law. This is in part because enforceability of payment terms and
conditions or settlement of agreement interpretation issues under
international law could be more problematic than under U.S. Federal law.
Where NASA is performing reimbursable work for a foreign entity,
guidance in NPD 1370.1 must be followed. Among other requirements,
NPD1370.1 provides that reimbursable work for a foreign entity must
provide a benefit to NASA or the public. In SAAs for: (1) safety-related
analysis and testing in NASA facilities, or (2) fundamental research
related to NASA's mission,[^65] benefits to NASA or the public are
normally provided through shared data rights or broad dissemination of
the results.[^66] For any reimbursable work mentioned above, Data Rights
sample clause 2.2.10.1.3 must be used unless other data rights
provisions are approved by OER, on a case-by-case basis.

Other reimbursable SAAs with foreign entities that do not involve
fundamental research or safety-related analysis and testing in NASA
facilities may incorporate the traditional data rights clauses utilized

in other reimbursable SAAs, clauses 2.2.10.1.1 and 2.2.10.1.2 in
accordance with the guidance provided for those clauses.

Note also that International Reimbursable Agreements typically do not
provide for NASA to be reimbursed for supplying goods or services needed
by an SAA party in connection with an international cooperative effort,
unless the relevant International SAA provides that NASA will furnish
goods or perform work for the foreign party.

Conversely, NASA may have to purchase goods or services from the foreign
party in order to meet NASA's responsibilities under an agreement. The
proper instrument for making those purchases is via a Federal
Acquisition Regulation (FAR) contract; a funded SAA should not be used
for these transactions. An SAA with a foreign entity authorizes
cooperative work between or among NASA and foreign parties involving
contributions of goods and services for a mutual goal, or reimbursable
work consistent with NASA's mission. If the foreign entity requires
stated payment in the form of monetary compensation, NASA must enter
into a contract with the foreign entity. In exceptional cases, barter
compensation may be included in a contract.

Prior to entering such an arrangement, certain conditions must be
satisfied before NASA funds can 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 FAR contract
must be an express condition of the foreign party's participation in the
project and the party's participation must be a necessary and critical
component without which the project could not proceed. This condition
must be an explicit provision of the international cooperative SAA for
the FAR contract to be issued. Contact the Office of the General Counsel
for assistance.

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 NASA
Financial Management Requirements (FMR) Vol. 16, Reimbursable
Agreements, and, among other things, require the establishment of a
Headquarters Deposit Account and payment in advance for the goods or
services provided by NASA.

**4.5. INTERNATIONAL AGREEMENT CONTENTS**[]{#__RefHeading___Toc203815577
.anchor}

International SAAs do not legally require a specific format, provided
that each contains a written formulation that clearly delineates the
purpose and scope of an activity and is consistent with applicable law
and NASA policies. NASA utilizes two basic agreement formats: MOUs for
activities significant in scope and involving substantial resource
commitments, and letter agreements authorizing more limited cooperative
activities. Moreover, foreign SAA parties sometimes have unique
requirements or preferences relating to agreement formats. Nonetheless,
NASA has concluded hundreds of international MOUs and letter agreements
that include the following sections, in the order presented.[^67]
Additional sections may be added, as appropriate, for specific
situations.

1\. [Title](#Ch4Vi).

2\. [Authority](#Ch4Vii).

3\. [Background/Preamble](#Ch4Viii).

4\. [Purpose/Description of Cooperation](#Ch4Viv).

5\. [Responsibilities](#Ch4Vv).

6\. [Financial Arrangements](#Ch4Vvi).

7\. [Scheduling Conflicts](#Ch4Vvii).

8\. [Management Points of Contact](#Ch4Vviii).

9\. [Liability and Risk of Loss](#Ch4Vix).

10\. [Registration of Space Objects](#Ch4Vx)

11\. [Transfer of Goods and Technical Data](#Ch4Vxi).

12\. [Intellectual Property](#Ch4Vxii).

13\. [Rights in Resulting Data](#Ch4Vxiii).

14\. [Release of Results and Public Information](#Ch4Vxiv)

15\. [Customs/Taxes/Immigration](#Ch4Vxv).

16\. [Ownership of Equipment](#Ch4Vxvi).

17\. [Dispute Resolution](#Ch4Vxvii).

18\. [Mishap Investigation](#Ch4Vxviii).

19\. [Modifications/Amendments.](#Ch4Vxix)

20\. [Choice of Law](#Ch4Vxx).

21\. [Entry into Force, Term, and Termination](#Ch4Vxxi)

22\. [Continuing Obligations](#Ch4Vxxii).

23\. [Anti-Deficiency Act](#Ch4Vxxiii).

24\. [Authority to Conclude](#Ch4Vxxiv).

25\. [Provisional Application and Entry into Force](#Ch4Vxxv).

26\. [Signatory Authority](#Ch4Vxxvi)

**4.5.1. TITLE**[]{#__RefHeading___Toc203815578 .anchor}

International SAAs are given short titles, which state: (1) the type of
agreement, (2) the parties, and (3) the agreement's purpose.

[*4.5.1. Title (Sample Clause)*](#Cl4Vi)

[]{#Ch4Vii .anchor}**4.5.2. AUTHORITY**[]{#__RefHeading___Toc203815579
.anchor}

This section recites the legal authority for NASA to enter into
International SAAs and, when appropriate or necessary, the source of the
SAA partner's authority.

[*4.5.2. Authority (Sample Clause)*](#Cl4Vii)

[]{#Ch4Viii .anchor}**4.5.3.
BACKGROUND/PREAMBLE**[]{#__RefHeading___Toc203815580 .anchor}

MOUs and letter agreements typically contain prefatory language
describing the general nature and purpose of the cooperative project.
This section: (1) explains how the proposal for the cooperative project
came about (*e.g.*, response to an Announcement of Opportunity (AO),
technical discussions, or 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, relevant
treaties (*e.g.*, related to outer space or protection of the
environment).[^68]

Additionally, parties sometimes include descriptions of their relevant
national policies or mandates. In MOUs, this information is usually
contained in a formally styled section known as a "preamble," which can
be lengthy in some instances. Abbreviated phrases that are used
throughout the SAA (*e.g*., the "Parties") are also defined in this
section.

[*4.5.3. MOU Preamble (Sample Clause)*](#Cl4Viii)

[]{#Ch4Viv .anchor}**4.5.4. PURPOSE/DESCRIPTION OF
COOPERATION**[]{#__RefHeading___Toc203815581 .anchor}

This section briefly describes the cooperative project, including the
purpose and general scope of the activities planned, and outlines the
agreed-upon scientific and technical objectives of the overall mission.
This section should also clearly describe or identify the basis for the
mutual interest of both parties in the project.

There is no "standard" format for this section. The drafter may choose a
format based on the nature and scope of the project or similar SAAs. In
MOUs this language may be addressed in one or more paragraphs at the
beginning of the SAA; the larger the magnitude of the project, the more
lengthy the section will be. In letter agreements, program descriptions
usually consist of one or two introductory paragraphs.

[*4.5.4. Purpose/Description of Cooperation (Sample Clause)*](#Cl4Viv)

[]{#Ch4Vv .anchor}**4.5.5.
RESPONSIBILITIES**[]{#__RefHeading___Toc203815582 .anchor}

This section precisely delineates 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 and meetings; mission
operations, supporting ground observations, and post-mission data
analysis. The commitments of each party should be based on the use of
"reasonable efforts."

The division of responsibilities should be clearly defined and distinct
for managerial and technical areas, to minimize complexity of the
project and enable the transfer of technology. Generally, there should
be no joint development of equipment required to conduct the project
because each party should agree to develop and deliver its own equipment
according to a stated set of requirements.

Several different formats may be used for describing rights and
responsibilities in NASA's International SAAs, depending on the nature
and scope of the cooperative activity, the identity of the SAA partner,
and previous SAAs with that partner for similar types of projects. The
paragraphs or sections can be organized according to party (the most
common format for letter agreements), functional category (*e.g.*,
design and development, mission operations, and data distribution),
mission phase, or a combination of these. For large cooperative
activities, management relationships and responsibilities are sometimes
described in separate paragraphs.

In an International SAA, each party's obligations may be described in
general terms. The parties then develop lower-level implementation plans
that more specifically identify each party's responsibilities. These
plans provide sufficient detail to describe the core obligations, the
nature of the resources required to meet those obligations, and the
resulting rights belonging to each party. If this approach is followed,
the SAA should specify approval and amendment authority for each
lower-level plan (*e.g.*, a jointly chaired control board or individuals
designated by title). An "order of preference" provision should also be
included stating that the SAA (higher-level or umbrella agreement) is to
govern in the event of conflict between the MOU or letter agreement and
the lower-level implementation plans.

These implementation plans (and other joint documents) that provide
technical content for the higher level (framework or "umbrella")
International SAA generally are not required to be provided to the State
Department for Circular 175 review. However, if the higher level SAA is
general in nature and the implementing plan meets the other Circular 175
requirements (*e.g.*, significant activity), then the implementing plan
may need to go through the Circular 175 process. For example, the
implementing arrangements between NASA and the Russian Space Agency for
a joint Mars mission and for human space flight cooperation, each
executed under an international framework agreement between the U.S. and
Russia to cooperate in the exploration and use of outer space for
peaceful purposes, did require State Department C-175 review.
Implementing arrangements under the International Space Station MOUs
also require such review.

[*4.5.5. Responsibilities (Sample Clause)*](#Cl4Vv)

[]{#Ch4Vvi .anchor}

**4.5.6. FINANCIAL ARRANGEMENTS**[]{#__RefHeading___Toc203815583
.anchor}

Where NASA and a foreign party are engaged in a cooperative effort, each
party commits to funding its own effort, subject to its respective
funding procedures. Therefore, these SAAs contain a clause specifying
that there be no exchange of funds, thus, committing each party to seek
adequate funding, and requiring notification and consultation in the
event funding problems are encountered. The sample clause can be used in
MOUs and letter agreements.

> [*4.5.6. Financial Arrangements (Nonreimbursable Agreement Sample
> Clause)*](#Cl4Vvi)

[]{#Ch4Vvii .anchor}**4.5.7. SCHEDULING
CONFLICTS**[]{#__RefHeading___Toc203815584 .anchor}

This section ensures that, in the event other NASA priorities arise,
NASA is not obligated under an International SAA to perform the
activities according to any schedule stated in the SAA. 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. However,
the SAA may reflect current planned milestones or express the desire of
the SAA partner that activities occur at a specified time.

[*4.5.7. Scheduling Conflicts (Sample Clause*)](#Cl4Vvii)

[]{#Ch4Vviii .anchor}**4.5.8. MANAGEMENT POINTS OF CONTACT
(POCs)**[]{#__RefHeading___Toc203815585 .anchor}

To establish clear management interfaces, program-level and, in some
cases, project-level POCs should be specified as dictated by the
cooperative activity and the management framework of both parties. For
example, in larger projects, there may be program and project managers,
and program and project scientists, each having distinct management and
scientific roles under the SAA. POCs also are important because they
serve as official communications channels regarding activity to be
performed by the respective parties. It is also recommended that the
POCs be identified by title rather than by name to avoid the need to
amend SAAs when changes in personnel occur. For NASA, the program POC
should be a NASA employee, either from Headquarters or a Center, as
appropriate. At the project-level, POCs are usually from a Center or the
Jet Propulsion Laboratory. For large endeavors, separate management
paragraphs may be required to describe the management interfaces, joint
management mechanisms, control and decision authority processes, and
review procedures. It is also important to name POCs because they are
often utilized in dispute resolution procedures (Section 4.5.17).

[*4.5.8. Management Interfaces/ Points of Contact (Sample
Clause)*](#Cl4Vviii)

[]{#Ch4Vix .anchor}

**4.5.9. LIABILITY**[]{#__RefHeading___Toc203815586 .anchor}

**4.5.9.1. LIABILITY AND RISK OF LOSS**[]{#__RefHeading___Toc203815587
.anchor}

Considerations affecting decisions about the degree of risk NASA should
accept for activities under an International SAA are generally the same
as those involving activities with domestic nongovernmental entities. It
involves assessing the degree of NASA's interest as well as any
foreseeable risk inherent in the activity. For a detailed discussion of
the factors to consider, see "Domestic Agreements," at section 2.2.9. In
International SAAs covering high-risk Expendable Launch Vehicle (ELV) or
Reusable Launch Vehicle (RLV) missions or activities in connection with
the ISS program, cross-waivers apply only if both entities are involved
in "protected space operations." Agreements covering such activities
require specific cross-waiver provisions set forth at 14 CFR Part 1266.
It is important to note that if a party is the Government of Japan or a
related organization (*e.g.*, the Japanese space agency, Japanese
Aerospace Exploration Agency (JAXA)) and the SAA covers a mission
related to the International Space Station, then additional language is
required to capture the unique requirements of the Government of Japan
with respect to subrogated claims. Similarly, if a party is the
Government of Japan or a related organization and the SAA covers a
mission related to ELVs or RLVs, a special provision must be used. In
either case, please consult with OER and OGC.

> [*4.5.9.1.1. Liability and Risk of Loss -- Cross-Waiver*
> *(Cross-Waiver with Flow Down Provision Sample Clause)*](#Cl4Vix1i)
>
> [*4.5.9.1.2. Liability and Risk of Loss -- Cross-Waiver*
> *(Cross-Waiver of Liability for Agreements Involving Activities
> Related to the ISS Sample Clause)*](#Cl4Vix1ii)
>
> [*4.5.9.1.3. Liability and Risk of Loss -- Cross-Waiver*
> *(Cross-Waiver of Liability for Launch Agreements for Science or Space
> Exploration Activities Unrelated to the International Space Station
> Sample Clause)*](#Cl4Vix1iii)
>
> [*4.5.9.1.4. Liability and Risk of Loss -- Third Party Claims
> Consultation (Sample Clause)*](#Cl4Vix1iv)

**4.5.9.2. LIABILITY CONVENTION**[]{#__RefHeading___Toc203815588
.anchor}

International SAAs involving space flight must address obligations under
the Convention on International Liability for Damage Caused by Space
Objects (Liability Convention) (24 U.S.T. 2389, T.I.A.S. 7762). The
Liability Convention establishes rules and procedures addressing the
liability of countries for damage caused to other nations by their space
objects. Under the treaty, a launching state (which includes a nation
whose territory or facilities are used to launch a space object and a
nation which launches or procures a launch) is strictly liable for
damage caused by its space object on the surface of the Earth or to
aircraft in flight. Therefore, parties to the treaty have accepted
absolute liability for such damage, without requiring that fault be
established. For damage in outer space, a launching state is liable only
if the damage is due to its own fault.

In NASA's International SAAs involving space flight, the prescribed
cross-waiver clause notes that agreeing 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.

> [*4.5.9.2. Liability Convention (Sample Clause)*](#Cl4Vix2)

[]{#Ch4Vx .anchor}**4.5.10. REGISTRATION OF SPACE
OBJECTS**[]{#__RefHeading___Toc203815589 .anchor}

The Convention on the Registration of Objects Launched into Outer Space
(Registration Convention) (28 U.S.T. 695, T.I.A.S. 8480) 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 determine jointly which one of them will register
the object. Therefore, SAAs involving flight into outer space should
identify the registering State. Factors to consider in making this
determination include which party is to provide the launch, or
contribute the spacecraft, whether a spacecraft is to remain in orbit,
and who is to conduct the majority of the day-to-day operations of the
spacecraft. If the SAA partner is not a governmental entity, the SAA
should state that the partner will request that its government register
the object.

[*4.5.10. Registration of Space Objects (Sample Clause)*](#Cl4Vx)

[]{#Ch4Vxi .anchor}**4.5.11. TRANSFER OF GOODS AND TECHNICAL
DATA**[]{#__RefHeading___Toc203815590 .anchor}

This clause 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 SAA. Also, to the
extent applicable, the provision is intended to cover the rights and
obligations of the parties with respect to transferred proprietary
technical 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 parties. 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 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 SAA. 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 4.5.11 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 all marked
proprietary technical data, marked export-controlled data, and goods
transferred under the SAA to the specific purposes of the programs
implemented by the SAA. (*See* NASA's Export Control Program, NPD 2190.1
and NPR 2190.1).

[*4.5.11. Transfer of Goods and Technical Data (Sample
Clause)*](#Cl4Vxi)

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.

[]{#Ch4Vxii .anchor}**4.5.12. INTELLECTUAL
PROPERTY**[]{#__RefHeading___Toc203815591 .anchor}

International SAAs 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, 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. When NASA has a cooperative agreement with a foreign
party, Sample Clause 4.5.12 (Intellectual Property) should be used. 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.

The intellectual property sample clause 4.5.12 should be included in all
nonreimbursable SAAs with foreign entities. Sample clause 4.5.12
reflects NASA's basic approach that has evolved over the years for
commonly encountered circumstances. In addition to NASA and the foreign
entity, the sample clause affects any "related entity" of an SAA party
(defined as contractors, subcontractors, grantees, or cooperating
entities, or any lower tier contractor, subcontractor, grantee, or
cooperating entities of a Party). Sample clause 4.5.12 includes five
paragraphs that address allocation of rights in patents and copyrights
as described below.

Paragraph 1 recognizes that each party retains full rights and interest
in its own "background" inventions and works, including any patents and
copyrights, respectively, therein, *i.e.*, inventions and works created
prior to, or independently of, the activities carried out under the SAA.
Paragraph 2 recognizes that inventions or works made under the SAA
exclusively by one party or its related entity belong to that party or
related entity and also addresses allocation of rights between a party
and its related entity. Paragraph 3 provides that, in the event an
invention is made jointly (by both parties) the parties shall agree to
consult on allocating rights, steps to be taken to establish patent
protection, and licensing matters. Paragraph 4 provides that, in the
event of a jointly authored work, the parties shall agree to consult on
maintaining copyright protection throughout the world. Lastly, paragraph
5 recognizes the existence of a royalty-free right for each party to use
any copyrighted work created under the Agreement regardless of which
party is the author.

[*4.5.12. Intellectual Property Rights (Sample Clause)*](#Cl4Vxii)

[]{#Ch4Vxiii .anchor}**4.5.13. RIGHTS IN RESULTING
DATA**[]{#__RefHeading___Toc203815592 .anchor}

This clause addresses the parties' exchange of and right to use the data
(usually of a scientific nature) resulting from the activities under the
SAA, 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 PIs 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, PIs 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
SAA. 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 SAA 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 PIs. 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.

For framework agreements, this clause is broadly drafted (as in Sample
Clause 4.5.13) , with the specifics of data sharing left to later
provisions on data sharing between the parties in mission-specific
documents. For mission specific agreements, this clause is typically
drafted to meet the requirements of a specific mission. Drafters need to
make sure the provision is consistent with the Release of Results and
Public Information clause.

[*4.5.13. Rights in Resulting Data (Sample Clause)*](#Cl4Vxiii)

[]{#Ch4Vxiv .anchor}**4.5.14. RELEASE OF RESULTS AND PUBLIC
INFORMATION**[]{#__RefHeading___Toc203815593 .anchor}

Clause 1 ensures that each party controls the release of public
information regarding its own activities and requires advance
coordination with the other party regarding release of information
concerning the other party's activities.

Clause 2 promotes release of public information to the scientific
community resulting from activities under the Agreement.

Clause 3 recognizes that certain categories of data or information are
not to be disclosed without written concurrence of the other party,
namely: export controlled, classified, or proprietary information; or
information relating to a potential patent application.

Clause 4 will be used only in SAAs with the European Space Agency, when
appropriate.

[*4.5.14. Release of Results and Public Information (Sample
Clause)*](#Cl4Vxiv)

[]{#Ch4Vxv .anchor}**4.5.15.
CUSTOMS/TAXES/IMMIGRATION**[]{#__RefHeading___Toc203815594 .anchor}

Where the SAA requires importation of goods into the United States or
the territory of the SAA partner, NASA's International SAAs should
contain a general obligation to facilitate free customs clearance
(*e.g.*, waiver of applicable duties or taxes) for admittance to, and
departure from, each party's respective country for material required
for the implementation of the cooperative project. "Duty-Free Entry of
Space Articles," (14 C.F.R. Part 1217) describes the procedures for
duty-free import of articles under NASA's international programs. If the
SAA partner cannot waive these costs, NASA requires that the partner pay
any such costs.

*[4.5.15.1 Duty Free Entry (Sample Clause)](#Cl4Vxv1)*

When the agreement contemplates travel of personnel between the
locations of the two parties, the SAA should contain an obligation for
each party to facilitate movement of persons and goods necessary to
implement the SAA into and out of its territory (*e.g.*, ISS, where
large numbers of personnel and equipment are moving among the party
States).

> [*4.5.15.2. Facilitate Movement of Persons and Goods (Sample
> Clause)*](#Cl4Vxv2)

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

[*4.5.15.3. Facilitate Entry and Resident Documentation (Sample
Clause)*](#Cl4Vxv3)

[]{#Ch4Vxvi .anchor}**4.5.16. OWNERSHIP OF
EQUIPMENT**[]{#__RefHeading___Toc203815595 .anchor}

An SAA involving temporary transfer of equipment to another country
should contain language addressing ownership. It is recommended that the
provision state that each party 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 certain ownership
rights, may need to be addressed.

[*4.5.16. Ownership of Equipment (Sample Clause)*](#Cl4Vxvi)

[]{#Ch4Vxvii .anchor}**4.5.17. DISPUTE
RESOLUTION**[]{#__RefHeading___Toc203815596 .anchor}

All SAAs should include a dispute resolution clause. The SAA should
outline the specific procedures to be followed. SAAs should first
include language stating that both parties agree to consult promptly
with each other on all issues involving interpretation, implementation,
or performance of the SAA. Generally, issues are handled at the working
level before being elevated to a higher level if the parties cannot
achieve resolution. Any matter that cannot be settled at this initial
level is referred to the next higher level official for both parties.
Depending on the complexity and sensitivity of the agreement, the
dispute may be referred for resolution to the next higher level of
officials of both parties. That official may be the official who signed
the agreement.

If these officials are unable to resolve a dispute under an agreement
governed by U.S. law, the NASA official at the working level, or one
level higher (depending on the complexity and visibility of the SAA
activity) should provide to the SAA partner, in writing, a final Agency
decision. This final Agency decision becomes part of the administrative
record of the dispute.

*Note*: 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. Referring a dispute to "the NASA Administrator or his designee"
is acceptable.

In very limited instances NASA may agree to a provision that permits
possible settlement of disputes through an agreed form of resolution,
such as non-binding arbitration or mediation. However, the provision
must provide that, at the time of the dispute, both parties, must agree
to submission of the specific matter in dispute. Agreement to any such
clause is highly unusual and requires specific approval by the General
Counsel.

[*4.5.17. Consultation and Dispute Resolution (Sample
Clause)*](#Cl4Vxvii)

[]{#Ch4Vxviii .anchor}**4.5.18. MISHAP
INVESTIGATION**[]{#__RefHeading___Toc203815597 .anchor}

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, [NPR
8621.1B](http://nodis3.gsfc.nasa.gov/displayDir.cfm?Internal_ID=N_PR_8621_001B_&page_name=main),
"NASA Procedural Requirements for Mishap Reporting, Investigating and
Recordkeeping" should be followed for investigating a NASA mishap.

[*4.5.18. Mishap Investigation (Sample Clause)*](#Cl4Vxviii)

[]{#Ch4Vxix .anchor}**4.5.19.
MODIFICATIONS/AMENDMENTS**[]{#__RefHeading___Toc203815598 .anchor}

An International SAA usually provides that it may be amended, in
writing, at any time by mutual agreement of the parties. However,
depending on the terms of the agreement and the original Circular 175
authorization, amendments to an MOU may require State Department
Circular 175 review prior to incorporation.

*[4.5.19. Modifications/Amendments (Sample Clause)](#Cl4Vxix)*

[]{#Ch4Vxx .anchor}

**4.5.20. CHOICE OF LAW**[]{#__RefHeading___Toc203815599 .anchor}

In the absence of specific language, international law applies to
international MOUs and letter agreements as a matter of general
international law. This would also be the case when the agreement is
being concluded under cover of diplomatic notes that make the agreement
binding at the government level. Therefore, no "choice of law" clause is
required.

NASA will not agree to being governed by foreign law, but is willing to
apply U.S. Federal law when the SAA partner lacks capacity to sign
agreements governed by international law. This policy is grounded in the
recognition that, while foreign government agencies are often reluctant
to conclude international cooperative agreements under U.S. law, it
would be inequitable for the foreign agency's lack of legal capacity to
conclude international agreements to result in the application of
foreign law.

Regardless of the choice of law, however, NASA's performance of its
responsibilities under any SAA is subject to applicable U.S. laws.

The sample clause should be used for agreements with governmental
entities that do not have authority to enter into international
agreements.

[*4.5.20. Choice of Law (Sample Clause)*](#Cl4Vxx)

[]{#Ch4Vxxi .anchor}**4.5.21. ENTRY INTO FORCE, TERM AND
TERMINATION**[]{#__RefHeading___Toc203815600 .anchor}

This section sets forth the duration of the SAA, specifying beginning
and ending dates. Usually the effective date, the date the agreement
enters into force, is the date of last signature, but in all cases the
effective date may not occur before both parties have executed the SAA.
Thus, an MOU generally becomes effective on the date of the last
signature. In certain instances, MOUs may only become effective upon an
exchange of diplomatic notes between the U.S. and the government of the
cooperating agency confirming acceptance of its terms and confirming
that all necessary legal requirements for entry into force have been
fulfilled. (*See* section 4.2 above.) For letter agreements, determining
the effective date can be more problematic. Careful reading of the
exchange of letters must confirm that there has been unconditional
acceptance of the terms. The date of unconditional acceptance will
determine the effective date of the SAA.

International SAAs should always specify duration for the cooperative
project. The duration 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
SAA should also state that the duration may be extended by written
agreement of the parties. Use of automatic renewals is inconsistent with
NASA practice and requires approval by the Office of External Relations.
Also, it is not NASA's practice to renew agreements after they have
expired. Therefore, action to extend an agreement must be taken prior to
the expiration date, even in cases where the terms of the agreement
remain unchanged.

*Note*: For MOUs and letter agreements that need Circular 175 authority,
such an extension may require Circular 175 review and approval.

Either party to one of NASA's International SAAs should be allowed to
terminate the SAA 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. For significant
cooperative activities, particularly ones involving provision of
critical elements or subsystems, a termination agreement may be
required. Because international law does not provide specific
requirements for cost allocation that may govern agreements and
contracts under U.S. law, cost responsibilities may be addressed in a
termination agreement. More typically, however, a termination agreement
is for the purpose of dispositioning elements or subsystems already
provided under the agreement and, where appropriate, enabling a party to
obtain title to or use of goods or intellectual property to enable it to
proceed with the activity.

Where, on the other hand, the cooperative activity does not include
provision of critical elements or subsystems and, thus, no termination
agreement is appropriate, it is quite common to include a sentence that
encourages each party to take the interests of the other into account
upon termination and specifically to minimize potential negative impacts
to the other. For example: "In the event of termination, the terminating
party will endeavor to minimize negative impacts of such termination on
the other."

[*4.5.21. Entry into Force and Term of Agreement (Sample
Clause)*](#Cl4Vxxi)

[]{#Ch4Vxxii .anchor}**4.5.22. CONTINUING
OBLIGATIONS**[]{#__RefHeading___Toc203815601 .anchor}

International SAAs should specify which obligations of the parties
(*e.g.* intellectual property rights, transfer of goods and technical
data, and liability) survive termination or expiration of the SAA. The
specific sections should be referenced.

[*4.5.22. Continuing Obligations (Sample Clause)*](#Cl4Vxxii)

[]{#Ch4Vxxiii .anchor}**4.5.23. ANTI-DEFICIENCY
ACT**[]{#__RefHeading___Toc203815602 .anchor}

All SAAs must include an Anti-Deficiency Act provision that states that
promises made by NASA to the SAA partner are subject to the availability
of appropriated funds by the U.S. Congress.

[*4.5.23. Anti-Deficiency Act (Sample Clause)*](#Cl4Vxxiii)

[]{#Ch4Vxxiv .anchor}

**4.5.24. AUTHORITY TO CONCLUDE**[]{#__RefHeading___Toc203815603
.anchor}

This clause allows NASA to confirm that the SAA partner has the
appropriate signing (and other legal) authority to commit the SAA
partner to fulfill the obligations of the Agreement.

[*4.5.24. Authority to Conclude (Sample Clause)*](#Cl4Vxxiv)

[]{#Ch4Vxxv .anchor}**4.5.25. PROVISIONAL APPLICATION AND ENTRY INTO
FORCE**[]{#__RefHeading___Toc203815604 .anchor}

When the SAA partner\'s legal system requires that an agreement be
subject to some ratification process, such as Parliamentary or Cabinet
approval, we often use \"provisional application\" so that the parties
can begin cooperating together (and relying on the Agreement text)
before the Agreement technically goes into force.

[*4.5.25. Provisional Application (Sample Clause)*](#Cl4Vxxv)

[]{#Ch4Vxxvi .anchor}**4.5.26. SIGNATORY
AUTHORITY**[]{#__RefHeading___Toc203815605 .anchor}

This section should include a signature block, as well as the typed
title and date of signature for each signing official. During
negotiations, care should be taken to identify and confirm that the
signing officials (usually senior officials) have authority to bind the
parties.[^69] The signing official should be referred to by his/her
title -- not by individual name (*e.g.*, NASA Administrator, not
"Michael Griffin").

[*4.5.26. Signatory Authority (Sample Clause)*](#Cl4Vxxvi)

**4.6. INTERNATIONAL AGREEMENTS FOR SPECIAL
ACTIVITIES**[]{#__RefHeading___Toc203815606 .anchor}

These agreements can be MOUs, MOAs, or other types of nonreimbursable or
reimbursable SAAs depending on whether NASA is being compensated for its
effort.

**4.6.1. STANDARDS OF CONDUCT/FOREIGN
CREWMEMBER**[]{#__RefHeading___Toc203815607 .anchor}

Certain provisions related to standards of conduct must be contained in
SAAs with foreign partners that provide for training or flight of a
foreign Space Shuttle or ISS crewmember. Specifically, the SAA 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 foreign partners must ensure that its
crewmembers comply with the provisions of such an agreement. In some
cases, it may be appropriate to include a standard of conduct annex as
an attachment to the International SAA.

**4.6.2. FOREIGN INVESTIGATOR AGREEMENT**[]{#__RefHeading___Toc203815608
.anchor}

Sometimes, 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 SAAs 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.

As a general rule, for a foreign Principal Investigator, NASA generally
executes a single agreement with the scientist's sponsoring agency, in
which the sponsoring agency must ensure that the PI and all the non-U.S.
Co-Investigators (Co-Is) abide by the terms of the agreement. 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-Is on the team.
[Exception]{.underline}: If no governmental sponsor can be identified,
NASA can execute an SAA directly with the foreign PI's institution. The
SAA would then be governed by U.S. law.

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 or RLV mission, the
applicable cross-waiver with the full "flow down" clause should be used.
If the investigator is only performing data analysis on the resultant
data, the more limited cross-waiver clause is appropriate. See Section
4.5.9.1.

**4.6.3. LOAN OF EQUIPMENT AGREEMENT**[]{#__RefHeading___Toc203815609
.anchor}

A broad cooperative effort may provide an incentive for NASA to lend
equipment to a foreign partner under a separate international letter
agreement.[^70] Such a loan agreement should identify the cooperative
area of interest, include a list of the items to be provided, specify
duration of the loan, and impose certain obligations, unique to a loan
agreement, on the receiving party. If no other SAA is in place covering
the joint activity for which the equipment is being lended, the loan
agreement should include the respective roles and responsibilities of
each party regarding the scope of the contemplated joint project. It
should also include responsibility to return the equipment in its
original condition, absent normal wear and tear.

**4.6.4. REIMBURSABLE TRAVEL AGREEMENT**[]{#__RefHeading___Toc203815610
.anchor}

Some International SAAs may provide for the SAA partner to reimburse
NASA for travel and subsistence of NASA personnel that may be requested
by the party to provide assistance during the joint project*.* See NPD
9710.1T, "Delegation of Authority -- To Authorize or Approve Temporary
Duty Travel on Official Business and Related Matters." Pursuant to NPD
9710.1T, paragraph 6, certain officials or their designees are
authorized to enter into such reimbursable arrangements when it is
determined to be in NASA's best interests. The actual reimbursement
procedures to be followed are in [FMM
9700](http://www.hq.nasa.gov/fmm/9700/9700.pdf), Chapter 301.

These reimbursements must be distinguished from gifts of travel and
related expenses from foreign governments, as defined in 5 U.S.C. §
7342. Also, reimbursement of travel and related expenses for attendance
at a meeting or similar function must be accepted and reported in
accordance with 31 U.S.C. § 1353 and 41 C.F.R. 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 party agrees to defray the travel and subsistence costs of NASA
contractor personnel, then the agreement should make clear that such
costs are to be reimbursed directly to the contractor. Similarly,
pursuant to NPD 9710.1T, NASA may fund the travel expenses of foreign
party personnel for specific official purposes outlined in the NPD.
These agreements should be coordinated with Office of the General
Counsel.

**4.6.5. VISITING RESEARCHER AGREEMENTS**[]{#__RefHeading___Toc203815611
.anchor}

There are, generally, two types of Visiting Researcher Agreements: one
for NASA personnel going abroad and one for foreign researchers coming
to NASA. The Agreements generally provide the framework for hosting the
visitor, including such provisions as liability, safety and security,
badging, and resources to be provided (*e.g.*, office space, telephone,
and internet access).

**APPENDIX 4. SAMPLE CLAUSES -- AGREEMENTS WITH FOREIGN
ENTITIES**[]{#__RefHeading___Toc203815612 .anchor}

**4.5. AGREEMENT CONTENTS**

[]{#Cl4Vi .anchor}**4.5.1. Title Sample Clause.**

Memorandum of Understanding between the National Aeronautics and Space
Administration of the United States of America and \[name of partner\]
for \[state brief purpose\].

[]{#Cl4Vii .anchor}**4.5.2. Authority Sample Clause.**

The authority for NASA entering into this MOU is the National
Aeronautics and Space Act of 1958, as amended (42 U.S.C. § 2472 et
seq.).

[]{#Cl4Viii .anchor}**4.5.3. MOU Preamble Sample Clause.**

*\[Note: The sample clause provided below is for illustrative purposes
only. MOU Preambles generally contain recitations of relevant prior
agreements between the U.S., NASA, and the government or agency of the
other country. As such, they are highly specific to the particular
activity with a particular country. The following example is from an
earth science agreement between the U.S. -- Russia\]*

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 the National
Aeronautics and Space Administration'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 space-borne 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;

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 have agreed as follows: \[*"Purpose" article
follows.*\]

[]{#Cl4Viv .anchor}**4.5.4. Purpose/Description of Cooperation Sample
Clause.**

*\[Note: The sample clause provided below is for illustrative purposes
only. The following example is from a space science agreement between
NASA and a Japanese research agency.\]*

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.

[]{#Cl4Vv .anchor}**4.5.5. Responsibilities Sample Clause.**

1\. NASA shall 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 other Party shall use reasonable
efforts to \_\_\_\_\_\_\_\_\_\_\_\_\_\_. 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 shall 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 shall 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.

[]{#Cl4Vvi .anchor}**4.5.6. Financial Arrangements - Nonreimbursable
Agreement Sample Clause.**

NASA and other Party shall 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 shall notify
and consult with the other party as soon as possible.

[]{#Cl4Vvii .anchor}**4.5.7. 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.

[]{#Cl4Vviii .anchor}**4.5.8. Management Points of Contact Sample
Clause.**

*\[Note: The sample clause provided below is for illustrative purposes
only. Joint program management mechanisms and interfaces are highly
particular to specific program needs. The following sample clause is
from a NASA -- DARA (German space agency) space science agreement.\]*

The NASA and DARA Program Managers shall work closely together to ensure
successful development, operation, and utilization of the Stratospheric
Observatory for Infrared Astronomy (SOFIA) system. The Joint SOFIA
Program Plan shall 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 shall be developed, integrated, and tested
by a prime contractor selected and managed by DARA. The other SOFIA
system elements shall be developed, integrated, and tested by a prime
contractor selected and managed by NASA.

The overall SOFIA system shall 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
shall 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 shall be peer reviewed as detailed in the Joint SOFIA
Program Plan, and the SOFIA research flights selected shall be assigned
as U.S. or German flights, as determined by the sponsor of the PI(s).

The NASA Point of Contact shall be:

Position

\[Address\]

\[Phone\]

\[Email\]

The DARA Point of Contact shall be:

Position

\[Address\]

\[Phone\]

\[Email\]

[]{#Cl4Vix1i .anchor}**4.5.9.1.1. Liability and Risk of Loss --
Cross-Waiver (Cross-Waiver with Flow Down Provision Sample Clause)**

1\. Each Party hereby waives any claim against the other Party,
employees of the other Party, the other Party's Related Entities
(including but not limited to contractors and subcontractors at any
tier, grantees, investigators, customers, users, and their contractors
or subcontractor at any tier), or employees of the other Party's Related
Entities for any injury to, or death of, the waiving Party's employees
or the employees of its Related Entities, or for damage to, or loss of,
the waiving Party's property or the property of its Related Entities
arising from or related to activities conducted under this Agreement,
whether such injury, death, damage, or loss arises through negligence or
otherwise, except in the case of willful misconduct.

2\. Each Party further agrees 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 conducted
under this Agreement. Additionally, each Party shall require that their
Related Entities extend this cross-waiver to their 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 conducted under this
Agreement.

[]{#Cl4Vix1ii .anchor}**4.5.9.1.2 Liability and Risk of Loss --
Cross-Waiver (Cross-waiver of liability for agreements for activities
related to the International Space Station) Sample Clause (Based on 14
CFR 1266.102).**

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

2\. For the purposes of this Article:

a\. 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.  

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

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

d\. The term "Payload" means all property to be flown or used on or in a
Launch Vehicle or the ISS.

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

> \(i\) Research, design, development, test, manufacture, assembly,
> integration, operation, or use of Launch Vehicles or Transfer
> Vehicles, the ISS, Payloads, or instruments, as well as related
> support equipment and facilities and services; and
>
> \(ii\) All activities related to ground support, test, training,
> simulation, or guidance and control equipment and related facilities
> or services.

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

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

f\. The term "Related Entity" means:

> \(i\) A contractor or subcontractor of a Party or a Partner State at
> any tier;
>
> \(ii\) A user or customer of a Party or a Partner State at any tier;
> or
>
> \(iii\) A contractor or subcontractor of a user or customer of a Party
> or a Partner State at any tier.

The terms "contractor" and "subcontractor" include suppliers of any
kind.

The term "Related Entity" may also apply to a State, or an agency or
institution of a State, having the same relationship to a Partner State
as described in paragraphs (2)(f)(i) through (2)(f)(iii) of this Article
or otherwise engaged in the implementation of Protected Space Operations
as defined in paragraph (2)(e) above.

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

3\. Cross-waiver of liability:

a\. 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 (3)(a)(i) through (3)(a)(iv) of this Article based
on Damage arising out of Protected Space Operations. This cross-waiver
shall apply only if the person, entity, or property causing the Damage
is involved in Protected Space Operations and the person, entity, or
property damaged is damaged by virtue of its involvement in Protected
Space Operations. The cross-waiver shall apply to any claims for Damage,
whatever the legal basis for such claims, against:

> \(i\) Another Party;
>
> \(ii\) A Partner State other than the United States of America;
>
> \(iii\) A Related Entity of any entity identified in paragraph
> (3)(a)(i) or (3)(a)(ii) of this Article; or
>
> \(iv\) The employees of any of the entities identified in paragraphs
> (3)(a)(i) through (3)(a)(iii) of this Article.

b\. In addition, each Party shall, by contract or otherwise, extend the
cross-waiver of liability, as set forth in paragraph (3)(a) of this
Article, to its Related Entities by requiring them, by contract or
otherwise, to:

> \(i\) Waive all claims against the entities or persons identified in
> paragraphs (3)(a)(i) through (3)(a)(iv) of this Article; and
>
> \(ii\) Require that their Related Entities waive all claims against
> the entities or persons identified in paragraphs (3)(a)(i) through
> (3)(a)(iv) of this Article.

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

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

> \(i\) Claims between a Party and its own Related Entity or between its
> own Related Entities;
>
> \(ii\) Claims made by a natural person, his/her estate, survivors or
> subrogees (except when a subrogee is a Party to this Agreement or is
> otherwise bound by the terms of this cross-waiver) for bodily injury
> to, or other impairment of health of, or death of, such person;
>
> \(iii\) Claims for Damage caused by willful misconduct;
>
> \(iv\) Intellectual property claims;
>
> \(v\) Claims for Damage resulting from a failure of a Party to extend
> the cross-waiver of liability to its Related Entities, pursuant to
> paragraph (3)(b) of this Article; or
>
> \(vi\) Claims by a Party arising out of or relating to another Party's
> failure to perform its obligations under this Agreement.

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

[]{#Cl4Vix1iii .anchor}**4.5.9.1.3 Liability and Risk of Loss --
Cross-Waiver (Cross-waiver of liability for launch agreements for
science or space exploration activities unrelated to the International
Space Station Sample Clause) (Based on 14 CFR 1266.104).**

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

2\. For purposes of this Article:

a\. 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.

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

c\. The term "Payload" means all property to be flown or used on or in a
Launch Vehicle.

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

> \(i\) Research, design, development, test, manufacture, assembly,
> integration, operation, or use of Launch Vehicles or Transfer
> Vehicles, Payloads, or instruments, as well as related support
> equipment and facilities and services; and
>
> \(ii\) 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 that are
conducted on return from space to develop further a Payload's product or
process for use other than for the activities within the scope of an
agreement for launch services.

e\. 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.

The terms "contractor" and "subcontractor" include suppliers of any
kind.

The term "Related Entity" may also apply to a State, or an agency or
institution of a State, having the same relationship to a Party as
described in paragraphs 2(e)(i) through 2(e)(iii) of this Article, or
otherwise engaged in the implementation of Protected Space Operations as
defined in paragraph 2.d above.

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

3\. Cross-waiver of liability:

a\. 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 3(a)(i) through 3(a)(iv) of this Article based on
Damage arising out of Protected Space Operations. This cross-waiver
shall apply only if the person, entity, or property causing the Damage
is involved in Protected Space Operations and the person, entity, or
property damaged is damaged by virtue of its involvement in Protected
Space Operations. The cross-waiver shall apply to any claims for Damage,
whatever the legal basis for such claims, against:

> i\. the other Party;
>
> ii\. A party to another NASA agreement that includes flight on the
> same Launch Vehicle;
>
> iii\. A Related Entity of any entity identified in paragraphs 3(a)(i)
> or 3(a)(ii) of this Article; or
>
> iv\. The employees of any of the entities identified in paragraphs
> 3(a)(i) through 3(a)(iii) of this Article.

b\. In addition, each Party shall extend the cross-waiver of liability,
as set forth in paragraph 3.a of this Article, to its own Related
Entities by requiring them, by contract or otherwise, to:

> \(i\) Waive all claims against the entities or persons identified in
> paragraphs 3(a)(i) through 3(a)(iv) of this Article; and
>
> \(ii\) Require that their Related Entities waive all claims against
> the entities or persons identified in paragraphs 3(a)(i) through
> 3(a)(iv) of this Article.

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

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

> \(i\) Claims between a Party and its own Related Entity or between its
> own Related Entities;
>
> \(ii\) Claims made by a natural person, his/her estate, survivors, or
> subrogees (except when a subrogee is a Party to this Agreement or is
> otherwise bound by the terms of this cross-waiver) for bodily injury
> to, or other impairment of health of, or death of, such person;
>
> \(iii\) Claims for Damage caused by willful misconduct;
>
> \(iv\) Intellectual property claims;
>
> \(v\) Claims for Damage resulting from a failure of a Party to extend
> the cross-waiver of liability to its Related Entities, pursuant to
> paragraph 3.b of this Article; or
>
> \(vi\) Claims by a Party arising out of or relating to another Party's
> failure to perform its obligations under this Agreement.

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

[]{#Cl4Vix1iv .anchor}**4.5.9.1.4. Liability and Risk of Loss - Third
Party Claims Consultation (Sample Clause)**

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

[]{#Cl4Vix2 .anchor}**4.5.9.2. Liability Convention Sample Clause
(Liability/Risk of Loss).**

Except as otherwise provided in Article \_\_\_\_ (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 Partner's government shall consult promptly on any
potential liability, on any apportionment of such liability, and on the
defense of such claim.

[]{#Cl4Vx .anchor}**4.5.10. Registration of Space Objects Sample
Clause.**

The United States shall register named spacecraft as a space object in
accordance with the 1976 Convention on the Registration of Objects
Launched into Outer Space (the Registration Convention). However,
exercise of jurisdiction and control over named space objects shall be
subject to the relevant provisions of this Agreement. Registration
pursuant to this Article will not affect the rights or obligations of
the Parties under the 1972 Convention on International Liability for
Damage Caused by Space Objects.

*\[If the other Party is not a governmental entity, and its government
is to register the space object, the agreement should state that the
other Party shall request that its government register the object. The
second sentence should only be used where applicable.\]*

[]{#Cl4Vxi .anchor}**4.5.11. 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, notwithstanding any other provisions of this Agreement:

1\. All activities under this Agreement shall be carried out in
accordance with the Parties' national laws and regulations, including
those laws and regulations pertaining to export control and the control
of classified information.

2\. 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
paragraph 1, above.

3\. All transfers of goods and proprietary or export-controlled
technical data are subject to the following provisions.

-   In the event a Party or its related entity (defined for the purpose
    of this Article as contractors, subcontractors, grantees, or
    cooperating entities, or any lower tier contractor, subcontractor,
    grantee, or cooperating entities of a Party) finds it necessary to
    transfer such goods or data, for which protection is to be
    maintained, such goods shall be specifically identified and such
    data shall be marked.

-   The identification for such goods and the marking on such data shall
    indicate that the goods and data shall be used by the receiving
    Party and its related entities only for the purposes of fulfilling
    the receiving Party's or related entities' responsibilities under
    this Agreement, and that such goods and data shall not be disclosed
    or retransferred to any other entity without the prior written
    permission of the furnishing Party or its related entity.

-   The receiving Party or related entity shall abide by the terms of
    the notice and protect any such goods and data from unauthorized use
    and disclosure.

-   The Parties to this Agreement shall cause their related entities to
    be bound by the provisions of this Article through contractual
    mechanisms or equivalent measures.

4\. All goods exchanged in the performance of this Agreement shall be
used by the receiving Party or related entity exclusively for the
purposes of the Agreement. Upon completion of the activities under the
Agreement, the receiving Party or related entity shall return or
otherwise dispose of all goods and marked proprietary or
export-controlled technical data provided under this Agreement, as
directed by the furnishing Party or related entity.

*\[Note: See note to Sample Clause 4.5.9.1.1 on use of "related
entity."\]*

[]{#Cl4Vxii .anchor}**4.5.12. Intellectual Property Rights Sample
Clause**

1 Nothing in this MOU shall be construed as granting, either expressly
or by implication, to the other Party any rights to, or interest in, any
inventions or works of a Party or its Related Entities made prior to the
entry into force of, or outside the scope of, this MOU, including any
patents (or similar forms of protection in any country) corresponding to
such inventions or any copyrights corresponding to such works.

2\. Any rights to, or interest in, any invention or work made in the
performance of this MOU solely by one Party or any of its Related
Entities, including any patents (or similar forms of protection in any
country) corresponding to such invention or any copyright corresponding
to such work, shall be owned by such Party or Related Entity. Allocation
of rights to, or interest in, such invention or work between such Party
and its Related Entities shall be determined by applicable laws, rules,
regulations, and contractual obligations.

3\. It is not anticipated that there will be any joint inventions made
in the performance of this MOU. Nevertheless, in the event that an
invention is jointly made by the Parties in the performance of this MOU,
the Parties shall, in good faith, consult and agree within 30 calendar
days as to:

\(a\) the allocation of rights to, or interest in, such joint invention,
including any patents (or similar forms of protection in any country)
corresponding to such joint invention;

\(b\) the responsibilities, costs, and actions to be taken to establish
and maintain patents (or similar forms of protection in any country) for
each such joint invention; and

\(c\) the terms and conditions of any license or other rights to be
exchanged between the Parties or granted by one Party to the other
Party.

4\. For any jointly authored work by the Parties, should the Parties
decide to register the copyright in such work, they shall, in good
faith, consult and agree as to the responsibilities, costs, and actions
to be taken to register copyrights and maintain copyright protection (in
any country).

5\. Subject to the provisions of Article \[\_\_\] (Transfer of Goods and
Technical Data) and Article \[\_\_\] (Release of Results and Public
Information), each Party shall have an irrevocable royalty free right to
reproduce, prepare derivative works, distribute, and present publicly,
and authorize others to do so on its behalf, any copyrighted work
resulting from activities undertaken in the performance of this MOU for
its own purposes, regardless of whether the work was created solely by,
or on behalf of, the other Party or jointly with the other Party.

[]{#Cl4Vxiii .anchor}**4.5.13. Rights in Resulting Data Sample Clause.**

1\. Any reservation of science data to the Principal Investigators and
Co-Investigators will be done in accordance with provisions to be agreed
upon by the Parties. Any such reservation shall be as short as possible,
but not more than 1 year.

2\. The Parties will share science data generated under this Agreement
in accordance with provisions for sharing of science data to be agreed
upon by the Parties.

[]{#Cl4Vxiv .anchor}**4.5.14. Release of Results and Public Information
Sample Clause.**

1\. The Parties retain the right to release public information regarding
their own activities under this Agreement. The Parties shall coordinate
with each other in advance concerning releasing to the public
information that relates to the other Party\'s responsibilities or
performance under this Agreement.

2\. The Parties shall make the final results obtained from the
\[\_\_\_\] Mission available to the general scientific community through
publication in appropriate journals or by presentations at scientific
conferences as soon as possible and in a manner consistent with good
scientific practices.

3\. The Parties acknowledge that the following data or information does
not constitute public information and that such data or information
shall not be included in any publication or presentation by a Party
under this article without the other Party's prior written permission:

\(a\) data furnished by the other Party in accordance with Article
\[\_\_\_\] (Transfer of Goods and Technical Data) of this Agreement
which is export-controlled, classified, or proprietary; or

\(b\) information about an invention of the other Party before an
application for a patent (or similar form of protection in any country)
corresponding to such invention has been filed covering the same, or a
decision not to file has been made.

\[Note: clause 4 will be used only in SAAs with the European Space
Agency (ESA), when appropriate.

4\. In all publications concerning the \[\_\_\_\_\_\_\_\] Mission and
its results, the Parties will endeavor to acknowledge that
\[\_\_\_\_\_\_\_\] is an ESA mission with instruments funded by the ESA
Member States and NASA.

[]{#Cl4Vxv1 .anchor}**4.5.15.1. Duty Free Entry Sample Clause
(Customs/Taxes/Immigration).**

In accordance with its laws and regulations, each party shall facilitate
free customs clearance and waiver of all applicable customs duties and
taxes for 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.

[]{#Cl4Vxv2 .anchor}**4.5.15.2. Facilitate Movement of Persons and Goods
Sample Clause (Customs/Taxes/Immigration).**

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.

[]{#Cl4Vxv3 .anchor}**4.5.15.3. Facilitate Entry and Resident
Documentation Sample Clause (Customs/Taxes/Immigration).**

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

[]{#Cl4Vxvi .anchor}**4.5.16. Ownership of Equipment Sample Clause.**

Equipment provided by NASA pursuant to this Agreement shall remain the
property of NASA. Equipment provided by the other party pursuant to this
Agreement shall remain the property of the other party. Each party
agrees to return any of the other party's equipment in its possession to
the other party at the conclusion of the project.

[]{#Cl4Vxvii .anchor}

**4.5.17. Consultation and Dispute Resolution Sample Clause.**

The parties agree to consult promptly with each other on all issues
involving interpretation, implementation, or performance of the
Agreement. An issue concerning the interpretation, implementation, or
performance of this Agreement shall first be referred to the appropriate
points of contact named above for the parties. If they are unable to
come to agreement on any issue, then the dispute shall be referred to
the Agreement signatories or their designated representatives for joint
resolution.

[]{#Cl4Vxviii .anchor}**4.5.18. 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, bearing in
mind, in particular, the provisions of Article (Transfer of Goods and
Technical Data). 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.

[]{#Cl4Vxix .anchor}**4.5.19. Modifications/Amendments Sample Clause.**

This Agreement may be amended at any time by mutual written agreement

[]{#Cl4Vxx .anchor}**4.5.20. Choice of 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.

[]{#Cl4Vxxi .anchor}**4.5.21.1. Entry into Force, Term, and Termination
MOU Sample Clause.**

This Memorandum of Understanding shall enter into force upon signature
\[or "upon an exchange of diplomatic notes confirming each party has
completed its domestic legal requirements for entry into force"\]. The
MOU shall remain in force for a period of (#) years. The MOU may be
terminated by either party after (#) months written notification of
intent to terminate \[or by notifying the other party, in writing, via
diplomatic channels, (#) months in advance\].

**4.5.21.2. Entry into Force, Term, and Termination Letter Agreement
Sample Clause.**

If the above terms and conditions are acceptable to \[other party\], I
propose that this letter, together with your written affirmative reply,
constitute an Agreement between NASA and \[other party\] that shall
enter into force for a period of (#) years on the date of your
affirmative reply. This Agreement may be terminated by either Party upon
(#) months written notice.

[]{#Cl4Vxxii .anchor}**4.5.22. Continuing Obligations Sample Clause.**

The obligations of the parties concerning \[e.g., "Liability and Risk of
Loss," "Transfer of Goods and Technical Data, "Intellectual Property,"
(and "Financial Arrangements" if reimbursable)\] of this Agreement shall
continue to apply after the expiration or termination of this Agreement.

[]{#Cl4Vxxiii .anchor}

**4.5.23. 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.

[]{#Cl4Vxxiv .anchor}**4.5.24. Authority to Conclude Sample Clause.**

Each Party to this Agreement represents that:

1\. It has the full right, power, and authority to enter into this
Agreement and to render the performance of all responsibilities and
grant of any rights as set forth in this Agreement; and

2\. Its representative whose signature is affixed to this Agreement has
full capacity and authority to bind it to the terms hereof.

[]{#Cl4Vxxv .anchor}**4.5.25. Provisional Application.**

This Agreement shall be applied provisionally as of the date of
signature and shall enter into force upon exchange of notifications
between the Parties confirming that all relevant domestic procedures and
requirements necessary for this Agreement\'s entry into force have been
fulfilled.

[]{#Cl4Vxxvi .anchor}**4.5.26. Signatory Authority Sample Clause.**

Done in Washington in two copies, in the English and \[ \] languages,
both texts being equally authentic, this

\_\_\_\_\_\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_, 200\_\_.

For the Government of the Russian Federation

For the Government of the United States of America

**CHAPTER 5. FUNDED AGREEMENTS**[]{#__RefHeading___Toc203815613 .anchor}

**5.1. GENERAL GUIDANCE**[]{#__RefHeading___Toc203815614 .anchor}

A funded SAA permits appropriated funds to be transferred to NASA's
partner to accomplish a NASA mission. However, funded SAAs can only be
used when the Agency objective cannot be accomplished through the use of
a procurement, or reimbursable/nonreimbursable SAA.[^71] In accordance
with section 203(c)(5) of the Space Act, "to the maximum extent
practicable and consistent with the accomplishment of the purpose of the
\[Space\] Act, such ... other transactions shall be allocated by the
Administrator in a manner which will enable small-business concerns to
participate equitably and proportionately in conduct of the work of the
Administration."

The flexibility of the Space Act provides NASA and its SAA partners the
means to formulate a relationship that permits optimal results. Funded
SAAs are limited to activities undertaken with U.S. domestic partners
and are not available for NASA's international activities. Selection of
a funded SAA partner is best served via a competitive process. Before
NASA may enter into a funded SAA, a cost estimate of the funding and, as
appropriate, the value of any other NASA resources to be committed under
the Agreement, must be prepared and reviewed by the NASA CFO (for
Headquarters SAAs) or Center CFOs (for Center SAAs) so that the signing
official has a basis for determining that the proposed contribution of
NASA is fair and reasonable when compared to NASA program risks,
corresponding benefits to NASA, and the funding and resources to be
contributed by the agreement partner. All funded SAAs are governed by
U.S. Federal law. Additionally, all funded SAAs will be provided for
review to the Office of General Counsel at Headquarters prior to
execution.

**5.2. FUNDED AGREEMENT CONTENTS**[]{#__RefHeading___Toc203815615
.anchor}

Funded SAAs do not have a standard format but generally include language
that describes the relationship and responsibilities of the parties and
the objective of the agreement. Certain subject areas, similar to those
in nonreimbursable SAAs, should be addressed in all funded SAAs. For
guidance and suggested language to be used with private sector parties,
see Chapter 2; for guidance on agreements with U.S. public parties, see
Chapter 3. In addition to appropriated funds, SAAs may also include
access to or the use of other NASA resources, such as personnel,
expertise, services, equipment, information, intellectual property, or
facilities.

**5.2.1. FINANCIAL OBLIGATIONS**[]{#__RefHeading___Toc203815616 .anchor}

Funded SAAs should include language detailing NASA's intended
contribution of appropriated funds and any other NASA resource, such as
personnel, expertise, services, equipment, information, intellectual
property, or facilities.

[*5.2.1. Financial Obligations (Sample Clause)*](#Cl5IIi)

**5.2.2. ACCOUNTING AND AUDIT**[]{#__RefHeading___Toc203815617 .anchor}

A requirement to include an "Accounting and Audit" paragraph is specific
to funded SAAs. Given that NASA is providing funding to the other party,
additional safeguards are required to ensure the funds are being used
only for the intended purposes described in the funded SAA. Therefore,
any funded SAA partner is required to account for project-related
expenditures and to use an accounting system operated in accordance with
Generally Accepted Accounting Principles (GAAP). Lastly, 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 use of NASA funds.

[*5.2.2. Accounting and Audit (Sample Clause)*](#Cl5IIii)

**5.2.3. INTELLECTUAL PROPERTY**[]{#__RefHeading___Toc203815618 .anchor}

Funded SAAs should address the allocation of intellectual property
rights. Determining the appropriate allocation of intellectual property
rights for funded SAAs is a fact-specific, case-by-case determination.
Therefore, NASA patent counsel should be consulted early in the process.

**5.3. JOINT SPONSORED RESEARCH
AGREEMENT**[]{#__RefHeading___Toc203815619 .anchor}

One example of a funded SAA is a Joint Sponsored Research Agreement
(JSRA). A JSRA is a collaborative agreement where NASA may provide
resources including funds, services, equipment, information,
intellectual property or facilities on a shared or pooled basis for the
purpose of advancing mission goals and transferring the resulting
technology to the private sector via a non-Government partner or
consortia, for example, an SAA for the development and commercialization
of NASA dual-use technologies.

Cash or in-kind contributions by the industry partner will be required
and must be in reasonable (equitable) proportion to the funds committed
by NASA. Consideration may be given to the objective of the funded SAA
and the monetary/nonmonetary commitment. Further, one of the following
three objectives must also be met: (1) the SAA must enhance U.S.
industry's competitive position in the global marketplace; (2) the SAA
must convert aerospace or defense technology to commercial application;
or (3) the SAA must enhance NASA's investment in technology development,
reducing its cost through the combined effort. JSRAs may be useful in a
dual-use research project involving an industry-led consortium. This
type of SAA involves a research and development (R&D) collaboration
between NASA and the private sector over technologies (*e.g.* product or
process) relevant to NASA's mission and sought by the private sector for
commercial applications. By working together, NASA and the private
sector party accelerate the development of technologies while sharing
costs. Intellectual property rights are shared in a manner that fosters
the commercialization of the resulting technology.

NASA's role is to stimulate U.S. technology growth in areas that are
likely to have a significant impact on U.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 develop Articles of Collaboration (or other
mechanisms for establishing multiparty relationships) that delineate
management structure, technical and financial responsibilities, and
intellectual property rights and which are signed by all private sector
parties to the JSRA. However, the JSRA can be signed by a representative
of the total membership.

**5.4. ECONOMY ACT ACQUISITIONS**[]{#__RefHeading___Toc203815620
.anchor}

Where NASA needs supplies or services from a U.S. Federal Government
entity, or supplies or services are required of NASA by a U.S. Federal
Government entity, authority for such "interagency acquisitions" is
found in both the Space Act and the Economy Act \[31 U.S.C. § 1535\].
While a U.S. Federal Government entity may utilize the Economy Act
authority for its acquisitions, NASA policy requires that "the Space Act
shall be cited as authority for all NASA interagency acquisitions except
that the Inspector General Act shall be cited as the authority for
interagency acquisitions for the NASA Office of Inspector General." \[48
CFR Part 1817, NFS Subpart 1817.70 -- Interagency Acquisitions\].

The U.S. Federal Government entity utilizing an interagency acquisition
is referred to as the requesting agency and the agency supplying the
supplies or services is referred to as the servicing agency. \[48 CFR
Part 17, FAR 17.501.\] The transfer of funding must be on a full cost
recovery basis and effectuated through an interagency fund transfer
instrument, a requirement of both the Economy Act and interagency
acquisition under the Space Act. Moreover, all interagency fund transfer
instruments, whether being authorized by the Economy Act or the Space
Act, must be supported by a Determination and Finding (D&F) \[48 CFR
Part 17, FAR 17.503 on interagency acquisitions pursuant to the Economy
Act; 48 CFR Part 1817, NFS 1817.7002 on interagency acquisitions
pursuant to the Space Act.\]

The D&F required to support an interagency acquisition must document 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 interagency
acquisition requires contracting action by the servicing agency, the D&F
also needs to document one of the following: (1) the acquisition will
appropriately be made under an existing contract of the servicing
agency; (2) the servicing agency has capabilities or expertise which are
not available within the requesting agency; or (3) the servicing agency
is specifically authorized by law or regulation to purchase such
supplies or services on behalf of other agencies.

In addition, where the interagency acquisition is with the Department of
Defense or one of its entities, NASA Form 523 is required to be
completed by NASA personnel. Agency procurement officials and
procurement counsel can provide guidance for interagency acquisition
activities.

**APPENDIX 5. SAMPLE CLAUSES -- FUNDED
AGREEMENTS**[]{#__RefHeading___Toc203815621 .anchor}

**5.2. AGREEMENT CONTENTS**

[]{#Cl5IIi .anchor}**5.2.1. Financial Obligations Sample Clause.**

It is NASA's intent to provide cash and in-kind resources to Partner
during the term of this 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.

[]{#Cl5IIii .anchor}**5.2.2. Accounting and Audit Sample Clause.**

Partner agrees to account for all 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.

[^1]: 42 U.S.C. § 2473 (c)(5) (emphasis added).

[^2]: § 205 of the Space Act; (42 U.S.C. § 2475).

[^3]: Officials delegated or redelegated responsibility for executing
    SAAs are referred to herein as "signing officials"

[^4]: The other party to the SAA is referred to herein as the "partner".

[^5]: The Space Act Agreement Community of Practice Website is available
    at: <http://insidenasa.nasa.gov/> saa/home/index.html.

[^6]: 31 U.S.C. § 6304. Using grant agreements: An executive agency
    shall use a grant agreement as the legal instrument reflecting a
    relationship between the United States Government and a State, a
    local government, or other recipient when---

    > **(1)** the principal purpose of the relationship is to transfer a
    > thing of value to the State or local government or other recipient
    > to carry out a public purpose of support or stimulation authorized
    > by a law of the United States instead of acquiring (by purchase,
    > lease, or barter) property or services for the direct benefit or
    > use of the United States Government; and
    >
    > **(2)** substantial involvement is not expected between the
    > executive agency and the State, local government, or other
    > recipient when carrying out the activity contemplated in the
    > agreement.

[^7]: 31 U.S.C. § 6305. Using cooperative agreements: An executive
    agency shall use a cooperative agreement as the legal instrument
    reflecting a relationship between the United States Government and a
    State, a local government, or other recipient when---

    > \(1\) the principal purpose of the relationship is to transfer a
    > thing of value to the State, local government, or other recipient
    > to carry out a public purpose of support or stimulation authorized
    > by a law of the United States instead of acquiring (by purchase,
    > lease, or barter) property or services for the direct benefit or
    > use of the United States Government; and
    >
    > \(2\) substantial involvement is expected between the executive
    > agency and the State, local government, or other recipient when
    > carrying out the activity contemplated in the agreement.

[^8]: 15 U.S.C. § 3710 *et seq*. The Stevenson-Wydler Act permits
    Government-operated federal laboratories to enter into CRADAs for
    the purpose of transferring federally developed or controlled
    technology to the private sector. The federal laboratory can provide
    personnel, services, facilities, equipment, intellectual property,
    or other resources (but not funds) to non-federal parties with or
    without reimbursement. NASA has statutory authority to enter into
    CRADAs, but generally does not use this authority when NASA's
    technology transfer objectives can be achieved through use of an
    SAA.

[^9]: *See infra* Section 1.5.

[^10]: *See infra* Section 1.4.

[^11]: *See infra* Section 1.7.

[^12]: At many Centers these individuals are called "Agreement
    Specialists."

[^13]: OPII is also responsible for the preliminary review of Enhanced
    Use Lease Agreements agency-wide, *See* NPR 8800.15, Real Property
    Management Program Implementation Procedural Requirements.

[^14]: Attn: Office of Program and Institutional Integration, Mail Suite
    8T39.

[^15]: NPD 1370.1

[^16]: *See*, the Space Act Agreement Community of Practice Website,
    available at: <http://insidenasa.nasa.gov/>

    saa/home/index.html.

[^17]: NPD 1050.1H (5)(f).

[^18]: NPD 1050.1H

[^19]: NPD 1370.1, paragraph 1(f)

[^20]: Although NASA typically does not share the benefits of
    reimbursable use of NASA facilities, public benefit such as shared
    data rights or broad dissemination of the results is required where
    the reimbursable use of NASA facilities involves fundamental
    research or safety-related analysis and testing and is for the
    benefit of a foreign entity (even in cases where NASA's SAA Partner
    is a domestic entity). See discussion in 2.2.10.1. Data Rights
    related to NPD 1370.1.

[^21]: These considerations also would generally prohibit NASA from
    acting as a purchasing agent or broker on behalf of a non-Federal
    party for the acquisition of commercially available goods or
    services.

[^22]: NPD1050.1H (1)(d).

[^23]: See Sec. 1.1 of this Guide.

[^24]: Note: The concept of "apparent authority," an element of the law
    of Agency, does not apply to federal agreements and contracts. An
    official must have actual authority to create legal obligations for
    a federal agency.

[^25]: The use of a procurement contract, grant, or cooperative
    agreement is required under circumstances provided in the Federal
    Grant and Cooperative Agreements Act of 1977 (Chiles Act),

    31 U.S.C. § 6301 *et seq*.

[^26]: *See* sections 1.5 and 2.2.6.

[^27]: The Unitary Wind Tunnel Act, 50 U.S.C. §§ 511 et seq., provides
    that NASA Unitary Wind Tunnels:

    > \[s\]hall be available primarily to industry for testing
    > experimental models in connection with the development of aircraft
    > and missiles. Such tests shall be scheduled and conducted in
    > accordance with industry's requirements and allocation of
    > laboratory time shall be made in accordance with the public
    > interest, with proper emphasis upon the requirements of each
    > military services and due consideration of civilian needs. 50
    > U.S.C. § 513(c).

    NASA's Unitary Wind Tunnels include (a) the Unitary Wind Tunnel
    Complex at NASA Ames Research Center and (b) the Unitary Wind Tunnel
    facility at NASA Langley Research Center.

[^28]: Claims made by a natural person or by his or her estate,
    survivors, or subrogees (except when a subrogee is a party to the
    SAA or is otherwise bound by the terms of the cross-waiver) are
    excluded from the scope of the cross-waiver.

[^29]: Product liability: With respect to products or processes
    resulting from a party's participation in a SAA, each party that
    markets, distributes, or otherwise provides such product, or a
    product designed or produced by such a process, directly to the
    public will be responsible for the safety of the product or process.

[^30]: This waiver does not apply in circumstances involving criminal or
    willful (intentional) misconduct.

[^31]: While this practice is permissible, it is almost never used
    because activities are rarely divided between reimbursable
    activities and nonreimbursable activities. More likely than not,
    such reimbursable agreements will involve reimbursement of some
    percentage of overall costs.

[^32]: "For the benefit of a foreign entity" means that a foreign entity
    could have access to and use of any deliverable items (including any
    data) and resulting from a reimbursable agreement by virtue of a
    contractual or other relationship (including common corporate
    ownership) with a party having such an agreement with NASA. (NPD
    1370.1 paragraph (1)(d)(3)).

[^33]: "Fundamental research" means basic and applied research in
    science and engineering, the results of which ordinarily are
    published and shared broadly within the scientific community.
    Fundamental research is distinct from proprietary research and from
    industrial development, design, production, and product utilization,
    the results of which ordinarily are restricted for proprietary or
    national security reasons (NPD 1370.1 paragraph (1)(d)(4)).

[^34]: NPD1370.1.

[^35]: *See* [NPR
    1600.1](http://nodis3.gsfc.nasa.gov/lib_docs.cfm?range=1___)[,
    section 5.24]{.underline} for definition and protection required for
    SBU data

[^36]: *See* section 303(b) of the National Aeronautics and Space Act of
    1958, 42 U.S.C. § 2454(b).

[^37]: Publication rights discussed here are different and should be
    distinguished from both rights in raw data (unanalyzed data
    generally of a scientific nature) generated under an agreement and
    release of general information to the public, which are discussed
    below.

[^38]: *See supra* section 1.5.

[^39]: NPD 1350.3.

[^40]: A procurement contract is defined by the Federal Acquisition
    Regulations (48 C.F.R. § 2.101) and the Federal Grants and
    Cooperative Agreements Act of 1977 (Chiles Act) (31 U.S.C. § 6303).
    The principal purpose of a procurement contract is to obtain
    property or services, such as the performance of work of an
    inventive type, for the direct benefit or use of the Government.

[^41]: Section 305(j) defines a "contract" under the Space Act broadly
    to include any contract, agreement, understanding or other
    arrangement, including subcontracts thereunder. Under section 305(a)
    of the Space Act (42 U.S.C. § 2457(a)), NASA is a title taking
    agency. Title to inventions made (conceived or first actually
    reduced to practice) under these Space Act "contracts" become the
    exclusive property of the United States Government. Under such
    "contracts," NASA may waive title to the invention to the
    "contractor" pursuant to 42 U.S.C. § 2457(f), but must retain a
    government purpose license in the waived invention. However, since
    enactment of the Bayh-Dole Act of 1980 (35 U.S.C. § 200 *et seq.*),
    any small business, nonprofit organization, or university can elect
    to retain title to inventions made under Bayh-Dole funding
    agreements (defined as contracts, grants and cooperative agreements
    for the performance of experimental, development, or research work
    and subcontracts thereunder). Bayh-Dole contracts are traditional
    procurement contracts and the Bayh-Dole Act takes precedence over
    section 305 of the Space Act (*see* 35 U.S.C. § 210 (a)(7)) for such
    procurement contracts. As a result, under procurement contracts,
    large businesses can only receive title if NASA agrees to waive
    title under the Space Act, while small businesses, nonprofit
    organizations, and universities may elect to receive title under the
    Bayh-Dole Act.

[^42]: SAAs, which are entered into under NASA's "other transaction"
    authority, are not Bayh-Dole funding agreements, and the Bayh-Dole
    Act does not apply. Furthermore, over the years, NASA has made
    administrative determinations that particular
    agreements/arrangements are not \"contracts\" for the purpose of
    section 305(a) of the Space Act. That is, NASA has made an agency
    administrative interpretation limiting the scope of "contract" as
    defined in section 305(j). Such agreements/arrangements included,
    for example: launch service agreements; agreements for use of NASA
    facilities (such as wind tunnels) where NASA provides services for
    another party, usually on a reimbursable basis; agreements for use
    of satellite data; technical exchange agreements; and agreements
    involving joint contributions of hardware to a common program. All
    these agreements/arrangements have a common theme: they do not
    involve the performance of work of an inventive type for NASA. Thus,
    NASA\'s long standing administrative interpretation of section
    305(a) has been that the agreements/arrangements to which section
    305(a) applies are those for the *performance of work of an
    inventive type* (i.e., design, engineering, development, research or
    experimental work) *for NASA*. This interpretation, in turn, has
    enabled a great deal of flexibility in dealing with invention and
    patent rights as they relate to relationships where work of an
    inventive type is not being done for NASA so as to encourage
    commercial participation.

[^43]: NASA liberally grants such waivers for the purpose of
    commercializing the waived invention (*see* Executive Order 12591,
    section 1, paragraph (b)(4)).

[^44]: NPD 1350.3.

[^45]: In accordance with the requirements of 37 C.F.R. Part 404.

[^46]: Essentially, the U.S. Government has waived sovereign immunity
    with respect to monetary compensation for patent or copyright
    infringement, but not with respect to injunction.

[^47]: 42 U.S.C. § 2459b.

[^48]: 42 U.S.C. § 2473(c).

[^49]: Where NASA is interested in a nonbinding agreement with a
    domestic public entity, appropriate clauses from Chapter 2 should be
    modified to reflect the parties lack of intent to commit.

[^50]: See footnote 34.

[^51]: NPD1050.1H (5)(c).

[^52]: 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 8580.1).

[^53]: OMB Memorandum M-07-03 on "Business Rules for Intragovernmental
    Transactions" Nov. 13, 2006; Treasury Financial Manual Bulletin No.
    2007-03, Vol. 1, "Intragovernmental Business Rules" Oct. 31, 2007.

[^54]: As referenced in section 1.1, NASA has independent legal
    authority under the Space Act to conclude International Agreements
    under international law and, therefore, prefers that agreements with
    its foreign partners be governed by international law rather than
    U.S. law. In circumstances involving a partner's lack of reciprocal
    legal capacity to conclude agreements binding under international
    law, however, U.S. law is chosen to ensure that the agreement can be
    legally binding. Stated differently, the practice is to select the
    law of the State of the party having legal capacity to conclude
    binding international agreements, rather than the party lacking such
    capacity.

[^55]: 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 SAA.

[^56]: *See also* NPD 1050.1H, "Authority To Enter Into Space Act
    Agreements," section 5.c.:

    The Assistant Administrator for External Relations (OER) is
    responsible for the negotiation, execution (which may include
    signature and a separate entry-into-force process), amendment, and
    termination of International Agreements; for the review of all
    Agreements with other U.S. Federal Agencies; for the selection of
    Agreement Managers for International Agreements; and for storing all
    Agreements within his/her jurisdiction.

[^57]: It is strongly preferred that there be only two parties to an
    agreement. While multiple parties to an agreement are possible, such
    agreements are complex and require very precise drafting to ensure
    clear delineation of responsibilities.

[^58]: Use of MOUs for agreements of significance is a matter of NASA
    policy and practice. The Office of External Relations consults with
    the State Department Bureau of Oceans and International
    Environmental and Scientific Affairs, on an expedited basis, to
    determine if Circular 175 authority is required for NASA agreements
    under international law with foreign government agencies and
    international organizations.

[^59]: If the SAA is governed by U.S. law, then Case-Zablocki Act
    requirements do not apply.

[^60]: The Case-Zablocki Act requires that the State Department report
    significant international commitments of the U.S. to the foreign
    relations committees of the U.S. Senate and House of
    Representatives. NASA (OER lead) is required to transmit to the
    Department of State the text of each agreement and supporting
    documentation no later than 20 days after the agreement has been
    signed so that the Department of State may transmit each agreement
    to Congress no later than 60 days after its entry into force.
    Compliance with these procedural requirements is especially
    important as Congress has amended the Case-Zablocki Act, as part of
    the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub.
    L. 108-458), to preclude the use of appropriated funds (for Fiscal
    Years 2005, 2006 and 2007) to implement agreements that are not
    transmitted to Congress on time. The prohibition on using
    appropriated funds remains in place until an agreement is
    transmitted to Congress in accordance with the Case-Zablocki Act (1
    U.S.C. § 112(b) note).

[^61]: When this is the case, it is important that NASA follow up with
    the Department of State to ensure that this additional procedural
    step occurs. Otherwise, the agreement, while appearing to be in
    force, technically may not be.

[^62]: 42 U.S.C. §2475(a)(1) provides:

    > As part of the evaluation of the costs and benefits of entering
    > into an obligation to conduct a space mission in which a foreign
    > entity will participate as a supplier of the spacecraft,
    > spacecraft system, or launch system, the Administrator shall
    > solicit comment on the potential impact of such participation
    > through notice published in Commerce Business Daily at least 45
    > days before entering into such an obligation.

[^63]: Proposal and acceptance may be reflected in a single document.

[^64]: Similarly, U.S. law can be used in MOUs. In either situation, if
    U.S. law governs, the agreement is not an agreement requiring
    coordination with State through the Circular 175 procedure.

[^65]: "Fundamental research" means basic and applied research in
    science and engineering, the results of which ordinarily are
    published and shared broadly within the scientific community.
    Fundamental research is distinct from proprietary research and from
    industrial development, design, production and product utilization,
    the results of which ordinarily are restricted for proprietary or
    national security reasons (NDP 1370.1(1)(d)(4).

[^66]: NPD1370.1.

[^67]: Note that formal headings are more typically utilized for MOUs.
    The provisions of letter agreements are often formatted as
    paragraphs within the text of a letter.

[^68]: Note that, while numerous agreements and prior cooperative
    activities between the parties can be included in the Preamble,
    specific agreements that legally govern the cooperation should not
    be. For example, if an implementing arrangement is concluded
    pursuant to, or in accordance with, a governing Framework Agreement,
    the controlling agreement is cited in the Authority section of the
    Agreement, since preambles are generally considered nonbinding.
    Thus, Article (or Section) 2 of the text would likely begin with:
    "This Implementing Arrangement in concluded pursuant to the \[Name
    of Framework Agreement\], which entered into force on \[date\]."

[^69]: *See* Section 4.5.24 above.

[^70]: Alternatively, provisions regarding the loan of equipment may be
    covered in the SAA covering the cooperative effort. *See* section
    4.5.16.

[^71]: *Funded Agreement -- Nonprofit Institutions of Higher Education:*
    These funded SAAs require NASA Program Offices to complete and
    submit a C.A.S.E. Report of College and University Projects, NASA
    Form 1356. This form is required for each funded SAA with nonprofit
    institutions of higher education or to nonprofit institutions that
    are operationally affiliated or integrated with an educational
    institution. The completed forms are submitted to the NASA's Office
    of Human Resources and Education, Education Division. Information on
    this form is used to produce reports required by the National
    Science Foundation (NSF), pursuant to a NSF statutory requirement.