Flowdowns for Letter Subcontract S12FMG191, Primary Structures - Risk Reduction and Risk

11/30/2012

Document No. HF007

Flowdowns for Letter Subcontract S12FMG191, Primary Structures - Risk Reduction and Risk Management Plan (Supporting NASA Space Act Agreement NNK12MSO3S)

Full Text Clauses

10. NOTICE OF LABOR DISPUTES (Applicable for all purchase orders/subcontracts where a labor dispute might delay timely performance.)

Whenever Seller has knowledge that any present or potential labor dispute is delaying or threatens to delay the timely performance of this Subcontract, Seller shall immediately give notice to Buyer including all relevant information. Seller agrees to insert the substance of this clause, including this sentence, in any lower-tier subcontract/orders where a labor dispute might delay timely performance of this Subcontract.

11. QUALITY CONTROL SYSTEM (Applicable for all purchase orders/subcontracts.)

Seller agrees to provide and maintain a quality control system acceptable to Buyer or the Government, where applicable, for the work purchased under this Subcontract. Seller shall permit both the Buyer and Government reasonable access to Seller facilities to review procedures, practices, processes and related documents to determine such quality control system acceptability. Seller shall have a continuing obligation to promptly notify Buyer of any violation of or deviation from Seller's approved inspection/quality control system and to advise Buyer of the quantity and specific identity of any products or Work delivered by Buyer during the period of any such violation or deviation. Seller shall maintain records evidencing all inspections made under the system and the outcome. These records shall be kept complete and made available to Buyer and Government during Seller's performance under this Subcontract and for a period of three (3) years after Buyer's acceptance of all goods delivered or services rendered under this Subcontract. Seller agrees to include and to require subcontractors to include, the substance of this paragraph, including this sentence, in each of its subcontracts under this Subcontract.

15. PATENT, TRADEMARK, AND COPYRIGHT INDEMNITY (Applicable for all purchase orders/subcontracts.)

Seller shall defend, indemnify, and hold Buyer, Buyer's officers, agents, employees, and customers harmless against all claims suits, actions, awards (including, but not limited to, awards based on intentional infringement of patents known at the time of such infringement, exceeding actual damages and/or including attorneys' fee and/or costs), liabilities, damages, costs, and attorneys' fees related to the actual or alleged infringement of any United States intellectual property right (including but not limited to, any right in a patent copyright, industrial design or semiconductor mask work, or based on misappropriation or wrongful use of information or documents) and arising out of the manufacturing, sale or use of products by either Buyer or its customer delivered under this Subcontract. Buyer and/or its customer will duly notify Seller of any claims, suits or actions; and Seller shall, at its own expense, fully defend such claims, suit or action on behalf of indemnitees or obtain such licenses as are necessary to remove such infringement.

Seller's obligations shall not apply to products manufactured by Seller pursuant to detailed designs developed by Buyer and furnished to Seller under a this Subcontract, which does not require research, development, or design work, by Seller.

Seller's obligation shall also not apply to any infringement arising from the use or sale of products in combination with items not delivered by Seller if such infringement would not have occurred from the use of sale of such products solely for the purpose for which they were designed or sold to Buyer.

16. RIGHTS IN INTELLECTUAL PROPERTY (Applicable for all purchase orders/subcontracts.)

Any and all inventions, technology, designs, works of authorship, mask works, technical information, computer software, and other information or materials generated under this Agreement shall be the sole property of the Seller. Seller grants to Buyer a limited, royalty free, paid up, non-exclusive license to use, modify, and copy any data, software, copyrights, reports, and works of authorship, conceived, developed or generated in performance of this Contract for the sole purpose of Buyer fulfilling its Prime Contract obligations.

30. FAIR LABOR STANDARDS ACT (Applicable for all purchase orders/subcontracts.)

Seller represents that all goods sold under this Subcontract have been manufactured in compliance with all terms, rules and regulations issued under the Fair Labor Standards Act of 1938, as amended. The administration and enforcement of the Fair Labor Standards Act are the responsibility of the U.S. Department of Labor, and any questions as to the requirements of the Act or its applicability to work required by this Subcontract should be addressed to the Administrator, Wage and Hour, Public Orders Division, U.S. Department of Labor, Washington, D.C., 20210, or to a Labor Department Regional Office.

31. OCCUPATIONAL SAFETY AND HEALTH ACT (Applicable for all purchase orders/subcontracts.)

By accepting this Subcontract, Seller agrees to furnish equipment, services, goods or materials pursuant to the terms of this Subcontract, shall comply with the Occupational Safety and Health Act of 1970 and regulations issued pursuant thereto. Seller agrees to repair, modify or replace any equipment, goods, or materials not complying with OSHA at its sole cost and expense and to hold harmless and indemnify Buyer from any liability and expense (including attorney's fees) by reason of property damage, personal injury (including death), fines or penalties occasioned in whole or in part from a violation of OSHA standards.

ARTICLE 5. FINANCIAL OBLIGATIONS AND TECHNICAL REPORTS (Applicable for all purchase orders/subcontracts in excess of $5,000,000. This Article from the prime contract applies to both Sierra Nevada Corporation (SNC) to Lockheed Martin and Lockheed Martin to the subcontractor.)

Access to Records

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

SNC shall provide written certification that it has not provided, directly or indirectly, NASA funding or NASA technical assistance to any prohibited Russian entity in the previous quarter.

ARTICLE 9. PARTICIPANT CERTIFICATIONS (Applicable for all purchase orders/subcontracts $100,000 or more. This Article from the prime contract applies to both Sierra Nevada Corporation (SNC) to Lockheed Martin and Lockheed Martin to the subcontractor.)

Within 10 calendar days of the effective date of this Agreement, and within 10 calendar days of any change in status under A. through C below (including the addition of any new contractor/partner), Seller shall certify to the best of its knowledge and belief the following to the SNC Subcontract Administrator:

A.Neither Seller nor any of its contractors/partners are presently debarred, suspended, proposed for debarment, or otherwise declared ineligible for award of funding by any Federal agency.

B.Neither Seller nor any of its contractors/partners have been convicted nor had a civil judgment rendered against it within the last three (3) years for fraud in obtaining, attempting to obtain, or performing a Government contract.

C.Seller or any of its contractors/partners receiving $100,000 or more in NASA funding for work performed under this Agreement must certify that they have not used any such funds for lobbying purposes prohibited by 31 U.S.C. 1352.

ARTICLE 10. LIABILITY AND RISK OF LOSS (Applicable for all purchase orders/subcontracts.)

A.Seller hereby waives any claims against NASA or, 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, Sellers employees or the employees of Sellers related entities, or for damage to, or loss of, Sellers property or the property of its related entities arising from or related to activities conducted under this Agreement, whether such injury, death, damage, or loss arises through negligence or otherwise, except in the case of willful misconduct.

B.Seller 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.

ARTICLE 12. INTELLECTUAL PROPERTY AND DATA RIGHTS - RIGHTS IN DATA (Applicable for all purchase orders/subcontracts where data will be delivered or exchanged. This Article from the prime contract applies to both Sierra Nevada Corporation (SNC) to Lockheed Martin and Lockheed Martin to the subcontractor.)

A.General

(1)"Related Entity" as used in this Article, means Seller or other entity having a legal relationship with Seller that is assigned, tasked, or contracted with to perform specified activities under this Agreement.

(2)a"NASA Data" as used in this Article, means any recorded information, regardless of the form or method of recording, to include but not be limited to (1) data of a scientific or technical nature, (2) software and documentation thereof, and (3) data comprising commercial and financial information, that is furnished directly by NASA to Seller or that SNC furnishes to Seller after receipt from NASA, for the purpose of furthering Seller's activities under this Agreement.

(2)b"Seller Background Data" as used in this Article, shall mean any data (as defined in paragraph 2(a)) developed by Seller at private expense that preexists this Agreement that Seller furnishes either directly to NASA or to SNC for the purpose of SNC's furnishing of the data to NASA for the purpose of furthering the activities of this Agreement.

Data (as defined in paragraph 2(a)) that is developed or modified under this Agreement and exchanged between SNC and Seller shall not be governed by this Article, but shall instead be governed by the "Proprietary Information" clause of the SNC Terms and Conditions.

(3)"Proprietary Data," as used in this Article, means Data embodying trade secrets or comprising commercial or financial information that is privileged or confidential.

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

(5)NASA Data exchanged between Seller and SNC or NASA and Seller, under this Agreement will be exchanged without restriction as to its disclosure, use, or duplication except as otherwise provided in this Article.

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

(7)Notwithstanding any restriction on use, disclosure, or reproduction of NASA Data provided in this clause, the Parties will not be restricted in the use, disclosure, or reproduction of NASA Data provided under this Agreement that: (a) is publicly available at the time of disclosure or thereafter 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 NASA 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 or released by the receiving Party pursuant to a court order or other legal requirement.

(8)If Seller believes that any of the events or conditions that remove restriction on the use, disclosure, or reproduction of the NASA Data apply, Seller will promptly notify SNC of such belief prior to acting on such belief, and, in any event, and SNC will notify NASA prior to an unrestricted use, disclosure, or reproduction of such NASA Data.

(9)Disclaimer of Liability: Notwithstanding any restriction on use, disclosure, or reproduction of NASA Data provided in this Article, NASA will not be restricted in, nor incur any liability for, the use, disclosure, or reproduction of any NASA Data not identified with a suitable restrictive notice.

(10)Seller Background Data: Seller will use the following restrictive notice. In addition to identifying Proprietary Data with such a restrictive notice, Seller 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 "Seller Background Data" 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 (under suitable protective conditions) in accordance with restrictions identified in the Space Act Agreement .

Data First Produced by Seller under this Agreement: Seller will use the following restrictive notice on each page. The format of the deliverable shall be in a format that allows Buyer to remove the legend below:

Data Notice

These data herein include "Data Produced by (insert Seller Name) under a Space Act Agreement".

B.Publication of Results

(1)Recognizing that section 20112 of the National Aeronautics and Space Act of 1958 (51 U.S.C.20112) requires NASA to provide for the widest practicable and appropriate dissemination of information concerning its activities and the results thereof, 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 SNC in a manner that allows SNC a reasonable amount of time to review and comment with Seller on proposed publications to the extent SNC determines that such proposed publications relate to Seller's activities under this Agreement.

(2)Consistent with other obligations in this Article, NASA agrees that it will not publish any results without first receiving permission from Seller via SNC.

B.Data Subject to Export Control

Technical data, whether or not specifically identified or marked, that is subject to the export laws and regulations of the United States and that is provided to SNC 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.

C.Background Data

(1)In the event Seller furnishes to SNC or in the event SNC or Seller furnishes to NASA either directly or via SNC Seller Background Data developed at private expense that existed prior to, or was produced outside of, this Agreement, and such Seller Background Data embody Proprietary Data, and such Seller Background Data is so identified with a suitable restrictive notice, SNC and NASA will use reasonable efforts to maintain the Seller Background Data in confidence and such Seller Background Data will be disclosed and used by SNC or NASA and any Related Entity of NASA (under suitable protective conditions) only for evaluating/furthering SNC's performance under SNC's Prime Contract NNK12MSO3S. Not withstanding Clause 14 - Proprietary Information in SNC Form POS-FORM-110 Rev B, entitled SNC Fixed Price Subcontract Under A U.S. Government Prime Contract, SNC shall not disclose Seller Background Data to any third party other than NASA without the express written permission of the Seller. Upon completion of activities under SNC's SAA, such Seller Background Data will be disposed of as requested by Seller.

D.Handling of Data

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

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

(b)U.S. Government Data, the use and dissemination of which, the U.S. Government intends to control. (2) Data provided by the U.S. Government under the Agreement

(c)The Parties agree that, during the term of this Agreement, via SNC, Seller may request from NASA, and NASA may provide, Proprietary Data of third parties, with the express understanding that Seller will use and protect such NASA Data in accordance with this Article.

(d)The Parties agree that, during the term of this Agreement, via SNC, Seller may request from NASA, and NASA may provide, U.S. Government Data, with the express understanding that Seller will use and protect such U.S. Government Data in accordance with this Article.

(2)With respect to NASA Data, Seller agrees that it and any Related Entity to Seller will:

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

(b)Safeguard such NASA Data from unauthorized use and disclosure;

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