[Federal Register Volume 77, Number 188 (Thursday, September 27, 2012)]
[Rules and Regulations]
[Pages 59339-59343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23715]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1812, 1828, and 1852

RIN 2700-AD55


Cross Waivers of Liability Clauses

AGENCY: National Aeronautics and Space Administration.

ACTION: Final rule.

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SUMMARY: NASA has adopted, with minor changes, a final rule amending 
the NASA FAR Supplement (NFS) to consolidate and make changes to three 
existing cross-waiver of liability contract clauses, and to more 
closely align the clauses with current mission programs.

DATES: Effective Date: October 29, 2012.

FOR FURTHER INFORMATION CONTACT: Leigh Pomponio, NASA, Office of 
Procurement, Contract Management Division (Suite 2P77); (202) 358-0592; 
email: [email protected].

SUPPLEMENTARY INFORMATION: 

1. Background

    A proposed rule was published on May 5, 2011 (76 FR 25657) to 
consolidate NASA's three existing cross-waiver of liability clauses 
into two clauses and to align the two clauses with Agency mission 
requirements, consistent with the cross-waiver of liability regulatory 
authority at 14 CFR part 1266. The regulatory authority at 14 CFR part 
1266 was promulgated on February 26, 2008 (73 FR 10143-50). The 
February 2008 rule established NASA's cross-waiver of liability 
authority in two categories of NASA agreements: (1) Agreements for ISS 
activities pursuant to 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

[[Page 59340]]

America concerning Cooperation on the Civil International Space 
Station'' (commonly referred to as the ISS Intergovernmental Agreement, 
or IGA); and (2) launch agreements involving science or space 
exploration activities unrelated to the ISS.
    Following promulgation of the two-category regulatory authority, 
the three-category contract clause arrangement no longer aligned. The 
procurement rule of May 7, 2011 proposed to delete one clause and 
realign the remaining two to cover the two categories of contracts on 
which cross-waivers of liability are authorized and required: Contracts 
supporting ISS and contracts supporting launches into space that are 
not related to the ISS. Clause 1852.228-72, Cross-Waiver of Liability 
for Space Shuttle Services will be deleted. Clause 1852.228-76 is 
amended and retitled Cross-Waiver of Liability for International Space 
Station Activities, and 1852.228-78 is amended and retitled Cross-
Waiver of Liability for Science or Space Exploration Activities 
Unrelated to the International Space Station. While the proposed rule 
included continuing applicability of cross waivers of liability to 
Space Shuttle support contracts, this final rule removes the Space 
Shuttle support contract references because NASA will not issue any new 
contracts for Space Shuttle support. Further, wherever the cross-waiver 
of liability clauses are referenced in the NASA FAR Supplement, 
conforming changes are being made to clause numbers and titles.

2. Discussion and Analysis

    Two respondents submitted comments in response to the proposed 
rule. NASA reviewed and considered all comments in the development of 
the final rule. No changes are being made to the rule as a result of 
the comments. A discussion of the comments follows:
    A. One respondent mistakenly cited this docket number, but the 
comments submitted were unrelated to this rule.
    B. One respondent submitted 19 specific recommendations for change. 
They are individually addressed below. In general, the comments appear 
to confuse the relationship NASA has with its contractors vice that 
which NASA has with Cooperating Parties under cooperative Space Act 
agreements. This procurement rule addresses only the requirements for 
NASA contractors. This rule does not address the relationship that NASA 
has with other entities under cooperative Space Act agreements.
    C. Comments:
    1. 1852.228-76(a): The stated objective is ``to extend this cross-
waiver of liability to NASA contracts'' [emphasis added.] There is a 
distinction between NFS contracts and Space Act agreements that is 
recognized throughout the proposed rule, but not reflected in paragraph 
(a). Recommend adding ``Space Act agreements''.
    NASA Response: The distinction between NASA contracts and Space Act 
agreements is recognized throughout the rule, but this rule applies 
only to contracts, and therefore, Space Act agreements are not cited in 
the clause. The purpose of this rule is to extend cross-waivers of 
liability to contracts. Space Act Agreements have their own set of 
terms, and they are governed by 14 CFR part 1266. To the extent that 
cross-waivers of liability apply to Space Act agreements, the terms 
will be included in the Space Act agreement. Space Act agreements are 
outside the scope of this Rule.
    2. 1852.228-76(b)(1): NASA contracts should be added to the 
definition of ``Agreement'' to ensure that the cross-waiver clauses 
include FAR-based contracts. NASA Response: ``Agreement'', as defined 
in the clause, is correct. Agreement, as used here, refers to Space Act 
agreements between NASA and Cooperating Parties, and does not include 
contracts. Contracts between NASA and contractors, including 
subcontracts and supplier contracts thereunder, are not Agreements as 
defined in the clause.
    3. 1852.228-76(b)(5): The definition of ``Party'' should be amended 
to add NASA contractors.
    NASA Response: ``Party'', as defined in the clause, refers to 
Parties to the cooperative Space Act agreement, i.e. the Space Act 
agreement between NASA and a Cooperating Party. The definition does not 
include contractors, and the definition clearly states that contractors 
and subcontractors are not ``Parties''.
    4. 1852.228-76(b)(6): Recommend amending the definition of payload 
to read ``all property to be flown or used on or in a Launch or 
Transfer Vehicle or the ISS''
    NASA Response: It is not necessary to add ``transfer vehicle'' to 
the definition of ``payload'' because, at the time of launch, a 
transfer vehicle is ``property flown on a launch vehicle'', and is 
therefore included in the definition of payload. While it is true that, 
at some point, a transfer vehicle ceases to be ``payload'' and becomes, 
instead, a ``space vehicle'', it is not necessary, for purposes of this 
rule, to define that point in time. A transfer vehicle is subject to 
cross-waivers of liability whether it is functioning as payload or as a 
space vehicle. For a detailed discussion on NASA's development of a 
definition of ``transfer vehicle,'' please see 73 FR 10146.
    5. 1852.228-76 (b)(7): The ``Protected Space Operations'' 
definition includes certain activities ``in implementation of the IGA * 
* * and contracts to perform work in support of NASA's obligations 
under the IGA and these related agreements.'' It appears that the 
capitalized ``Agreements'' in this sentence refers to the IGA; however, 
``Agreement'' is defined in the clause to mean otherwise. Recommend 
clarifying the distinction.
    NASA response: Agreements as used in 1852.228-76(b)(7) is 
consistent with the definition of Agreement in the clause. It does not 
refer specifically to the IGA.
    6. 1852.228-76(c)(1): Recommend changing ``the contractor'' to 
``each party''.
    NASA response: The ``contractor'' is the correct term. The purpose 
of the clause is to require the contractor to agree to a waiver of 
liability. The clause does not apply to ``each party'' to other 
agreements.
    7. 1852.228-76(c)(2): Recommend changing ``the contractor'' to 
``each party'' and ``subcontractors'' to ``related entities''.
    NASA response: The clause is correct as written. The clause 
requires the contractor to extend the cross-waiver liability to its 
subcontractors at any tier. Use of the terms ``Party'' or ``related 
entities'' would, for reasons stated above, be incorrect. 1852.228-
76(c)(2)(ii): Recommend changing ``subcontractors'' to ``related 
entities.''
    NASA Response: See response to 7.
    8. 1852.228-76(c)(4)(i): Recommend changing ``the Government'' to 
``a Party'', and ``own contractors or between its own contractors and 
their subcontractors and subcontractors'' to '' related entities''.
    NASA Response: The clause is correct as written. Cross-waivers do 
not apply between the Government and its contractors or between a 
contractor and its subcontractors. Contract terms and conditions apply 
to these relationships.
    9. 1852.228-76(c)(4)(v): Recommend changing ``contractor'' to 
``party'' and ``subcontractor'' to ``related entity''.
    NASA Response: See response to 9.
    10. 1852.228-76(c)(4)(vi): Recommend changing ``Government'' to ``a 
Party'' and ``contractor's'' to ``other Party's'' inserting the word 
``contractual'' before ``obligations '' and changing ``contract'' to 
``agreement''.
    NASA Response: The clause is correct as written. Specifically, 
1852.228-76(c)(4)(vi) refers to the relationship

[[Page 59341]]

between NASA and its contractor and does not include any other parties 
or any agreements.
    11. 1852.228-78(b)(1): NASA contracts should be amended to add the 
definition of ``Agreement'' to ensure that the cross-waiver clauses 
include FAR-based contracts. We recommend amending the definition as 
follows: ``Agreement'' refers to any NASA Space Act agreements or 
contracts that contain the cross-waiver of liability provisions 
authorized by 14 CFR Part 1266-104.''
    NASA Response: This rule amends the NASA FAR Supplement which 
applies only to contracts and not Space Act Agreements. Also see 
response to 2.
    12. 1852.228-78(b)(4): Recommend the definition of ``Party'' be 
amended to add NASA contracts.
    NASA Response: See response to 3.
    13. 1852.228-78(b)(5): Recommend adding ``Transfer Vehicle'' to the 
definition of ``Payload''.
    NASA Response: See response to 4.
    14. 1852.228-78(c)(1): Recommend changing ``contractor'' to ``each 
Party''.
    NASA Response: The clause is correct as written. The contract 
clause obligates the contractor. See response to 6 above.
    15. 1852.228-78(c)(2): Recommend changing ``contractor'' to 
``party'' and ``own subcontractors at all tiers'' to ``related 
entities''.
    NASA Response: The clause is correct as written. See response to 7.
    16. 1852.228-78(c)(4)(i): Recommend changing ``Government'' to ``a 
Party'' and ``own contractors or between its own contractors and their 
subcontractors'' to '' Related Entities''.
    NASA Response: The clause is correct as written. See response to 9.
    17. 1852.228-78(c)(4)(v): Recommend changing ``contractor'' to ``a 
Party'' and ``subcontractors'' to ``related entities'' .
    NASA Response: The clause is correct as written. See response to 9.
    18. 1852.228-78(c)(4)(6): Recommend changing ``Government'' to ``a 
party'' and ``contractor's'' to ``other party's'' and inserting the 
word ``contractual'' before ``obligations '' and ``contract'' to 
``agreement''.
    NASA Response: See response to 11.

3. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health, and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993. This rule is not a major rule 
under 5 U.S.C. 804.

4. Regulatory Flexibility Act

    NASA certifies that this final rule will not have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, at 5 U.S.C. 601, et. seq., 
because it the rule does not impose any additional requirements on 
small business. The rule updates and realigns already-existing 
requirements.

5. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 104-13) is not applicable 
because the NFS changes do not impose information collection 
requirements that require the approval of the Office of Management and 
Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 1812, 1828, and 1852

    Government procurement.

William P. McNally,
Assistant Administrator for Procurement.
    Accordingly, 48 CFR parts 1812, 1828, and 1852 are amended as 
follows:

0
1. The authority citation for 48 CFR parts 1812, 1828, and 1852 
continues to read as follows:

    Authority:  42 U.S.C. 2455(a), 2473(c)(1).

PART 1812--ACQUISITION OF COMMERCIAL ITEMS

0
2. In section 1812.301, paragraph (f)(i)(K) is removed and reserved, 
and paragraphs (f)(i)(L) and (f)(i)(M) are revised to read as follows:


1812.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

    (f)(i) * * *
    (L) 1852.228-76, Cross-Waiver of Liability for International Space 
Station Activities.
    (M) 1852.228-78, Cross-Waiver of Liability for Science or Space 
Exploration Activities unrelated to the International Space Station.
* * * * *

PART 1828--BONDS AND INSURANCE

0
3. Section 1828.371 is revised to read as follows:


1828.371  Clauses incorporating cross-waivers of liability for 
International Space Station activities and Science or Space Exploration 
activities unrelated to the International Space Station.

    (a) In contracts covering International Space Station activities, 
or Science or Space Exploration activities unrelated to the 
International Space Station that involve a launch, NASA shall require 
the contractor to agree to waive all claims against any entity or 
person defined in the clause 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-
waivers will require the contractor to extend the cross-waiver 
provisions to their subcontractors at any tier and related entities 
ensuring those subcontractors and related entities also waive all 
claims against any entity or person defined in the clause for damages 
arising out of Protected Space Operations. The purpose of the clauses 
prescribed in this section is to extend the cross-waivers under other 
agreements to NASA contractors that perform work in support of NASA's 
obligations under these agreements.
    (b) The contracting officer shall insert the clause at 1852.228-78, 
Cross-Waiver of Liability for Science or Space Exploration Activities 
unrelated to the International Space Station, in solicitations and 
contracts above the simplified acquisition threshold for the 
acquisition of launches for science or space exploration activities 
unrelated to the International Space Station or for acquisitions for 
science or space exploration activities that are not related to the 
International Space Station but involve a launch. If a science or space 
exploration activity is in support of the International Space Station, 
the contracting officer shall insert the clause prescribed by paragraph 
(c) of this section and designate its application to that particular 
launch.
    (c) The contracting officer shall insert the clause at 1852.228-76, 
Cross-Waiver of Liability for International Space Station Activities, 
in solicitations and contracts above the simplified acquisition 
threshold when the work to be performed involves Protected Space 
Operations, as that term is defined in the clause, relating to the 
International Space Station.
    (d) At the contracting officer's discretion, the clauses prescribed 
by paragraphs (b) and (c) of this section may be used in solicitations, 
contracts,

[[Page 59342]]

new work modifications, or extensions to existing contracts under the 
simplified acquisition threshold involving science or space exploration 
activities unrelated to the International Space Station, or 
International Space Station activities, respectively, in appropriate 
circumstances. Examples of such circumstances are when the value of 
contractor property on a Government installation used in performance of 
the contract is significant, or when it is likely that the contractor 
or subcontractor will have its valuable property exposed to risk or 
damage caused by other participants in the science or space exploration 
activities unrelated to the International Space Station, or 
International Space Station activities.

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

1852.228-72  [Removed]

0
4. Section 1852.228-72 is removed.
0
5. Section 1852.228-76 is revised to read as follows:


1852.228-76  Cross-waiver of liability for international space station 
activities.

    As prescribed in 1828.371(c) and (d), insert the following clause:

CROSS-WAIVER OF LIABILITY FOR INTERNATIONAL SPACE STATION ACTIVITIES 
(OCT 2012)

    (a) The Intergovernmental 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) for the 
International Space Station (ISS) contains a cross-waiver of 
liability provision to encourage participation in the exploration, 
exploitation, and use of outer space through the ISS. The objective 
of this clause is to extend this cross-waiver of liability to NASA 
contracts 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 this 
cross-waiver of liability be broadly construed to achieve this 
objective.
    (b) As used in this clause, the term:
    (1) ``Agreement'' refers to any NASA Space Act agreement that 
contains the cross-waiver of liability provision authorized by 14 
CFR 1266.102.
    (2) ``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.
    (3) ``Launch Vehicle'' means an object, or any part thereof, 
intended for launch, launched from Earth, or returning to Earth 
which carries Payloads or persons, or both.
    (4) ``Partner State'' includes each Contracting Party for which 
the 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.
    (5) ``Party'' means a party to a NASA Space Act agreement 
involving activities in connection with the ISS and a party that is 
neither the prime contractor under this contract nor a subcontractor 
at any tier.
    (6) ``Payload'' means all property to be flown or used on or in 
a Launch Vehicle or the ISS.
    (7) ``Protected Space Operations'' means all Launch 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 the IGA, MOUs concluded pursuant to the IGA, 
implementing arrangements, and contracts to perform work in support 
of NASA's obligations under these Agreements. It includes, but is 
not limited to:
    (i) Research, design, development, test, manufacture, assembly, 
integration, operation, or use of Launch 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.
    (8) ``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.
    (9) ``Transfer Vehicle'' means any vehicle that operates in 
space and transfers Payloads or persons or both between two 
different space objects, between two different locations on the same 
space object, or between a space object and the surface of a 
celestial body. A Transfer Vehicle also includes a vehicle that 
departs from and returns to the same location on a space object.
    (c) Cross-waiver of liability:
    (1) The Contractor agrees to a cross-waiver of liability 
pursuant to which it waives all claims against any of the entities 
or persons listed in paragraphs (c)(1)(i) through (c)(1)(iv) of this 
clause 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) A Party as defined in (b)(5) of this clause;
    (ii) A Partner State other than the United States of America;
    (iii) A Related Entity of any entity identified in paragraph 
(c)(1)(i) or (c)(1)(ii) of this clause; or
    (iv) The employees of any of the entities identified in 
paragraphs (c)(1)(i) through (c)(1)(iii) of this clause.
    (2) In addition, the contractor shall, by contract or otherwise, 
extend the cross-waiver of liability set forth in paragraph (c)(1) 
of this clause to its subcontractors at any tier by requiring them, 
by contract or otherwise, to:
    (i) Waive all claims against the entities or persons identified 
in paragraphs (c)(1)(i) through (c)(1)(iv) of this clause; and
    (ii) Require that their subcontractors waive all claims against 
the entities or persons identified in paragraphs (c)(1)(i) through 
(c)(1)(iv) of this clause.
    (3) For avoidance of doubt, this cross-waiver of liability 
includes a cross-waiver of claims arising from the Convention on 
International Liability for Damage Caused by Space Objects, which 
entered into force on September 1, 1972, where the person, entity, 
or property causing the Damage is involved in Protected Space 
Operations and the person, entity, or property damaged is damaged by 
virtue of its involvement in Protected Space Operations.
    (4) Notwithstanding the other provisions of this clause, this 
cross-waiver of liability shall not be applicable to:
    (i) Claims between the Government and its own contractors or 
between its own contractors and subcontractors;
    (ii) Claims made by a natural person, his/her estate, survivors 
or subrogees (except when a subrogee is a Party to an 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 the contractor 
to extend the cross-waiver of liability to its subcontractors and 
related entities, pursuant to paragraph (c)(2) of this clause;
    (vi) Claims by the Government arising out of or relating to the 
contractor's failure to perform its obligations under this contract.
    (5) Nothing in this clause shall be construed to create the 
basis for a claim or suit where none would otherwise exist.
    (6) This cross-waiver shall not be applicable when 49 U.S.C. 
Subtitle IX, Chapter 701 is applicable.

    (End of clause)

[[Page 59343]]


0
6. Section 1852.228-78 is revised to read as follows:


1852.228-78  Cross-waiver of liability for science or space exploration 
activities unrelated to the International Space Station.

    As prescribed in 1828.371(b) and (d), insert the following clause:

CROSS-WAIVER OF LIABILITY FOR SCIENCE OR SPACE EXPLORATION ACTIVITIES 
UNRELATED TO THE INTERNATIONAL SPACE STATION

    (OCT 2012)

    (a) The purpose of this clause is to extend a cross-waiver of 
liability to NASA contracts for work done in support of Agreements 
between Parties involving Science or Space Exploration activities 
that are not related to the International Space Station (ISS) but 
involve a launch. This cross-waiver of liability shall be broadly 
construed to achieve the objective of furthering participation in 
space exploration, use, and investment.
    (b) As used in this clause, the term:
    (1) ``Agreement'' refers to any NASA Space Act agreement that 
contains the cross-waiver of liability provision authorized in 14 
CFR 1266.104.
    (2) ``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;
    (3) ``Launch Vehicle'' means an object, or any part thereof, 
intended for launch, launched from Earth, or returning to Earth 
which carries Payloads or persons, or both.
    (4) ``Party'' means a party to a NASA Space Act agreement for 
Science or Space Exploration activities unrelated to the ISS that 
involve a launch and a party that is neither the prime contractor 
under this contract nor a subcontractor at any tier hereof.
    (5) ``Payload'' means all property to be flown or used on or in 
a Launch Vehicle.
    (6) ``Protected Space Operations'' means all Launch 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 Science or Space Exploration activities unrelated to 
the ISS that involve a launch. Protected Space Operations begins at 
the signature of the Agreement and ends when all activities done in 
implementation of the Agreement are completed. It includes, but is 
not limited to:
    (i) Research, design, development, test, manufacture, assembly, 
integration, operation, or use of Launch 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 which 
are conducted on return from space to develop further a payload's 
product or process other than for the activities within the scope of 
an Agreement.
    (7) ``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.
     Note to paragraph (a)(7): The terms ``contractors'' and 
``subcontractors'' include suppliers of any kind.
    (8) ``Transfer Vehicle'' means any vehicle that operates in 
space and transfers Payloads or persons or both between two 
different space objects, between two different locations on the same 
space object, or between a space object and the surface of a 
celestial body. A Transfer Vehicle also includes a vehicle that 
departs from and returns to the same location on a space object.
    (c) Cross-waiver of liability:
    (1) The Contractor agrees to a waiver of liability pursuant to 
which it waives all claims against any of the entities or persons 
listed in paragraphs (c)(1)(i) through (c)(1)(iv) of this clause 
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 waiver shall apply to 
any claims for Damage, whatever the legal basis for such claims, 
against:
    (i) A Party;
    (ii) A Party to another NASA Agreement or contract that includes 
flight on the same Launch Vehicle;
    (iii) A Related Entity of any entity identified in paragraphs 
(c)(1)(i) or (c)(1)(ii) of this clause; or
    (iv) The employees of any of the entities identified in 
(c)(1)(i) through (iii) of this clause.
    (2) The Contractor agrees to extend the cross-waiver of 
liability as set forth in paragraph (c)(1) of this clause to its own 
subcontractors at all tiers by requiring them, by contract or 
otherwise, to:
    (i) Waive all claims against the entities or persons identified 
in paragraphs (c)(1)(i) through (c)(1)(iv) of this clause; and
    (ii) Require that their Related Entities waive all claims 
against the entities or persons identified in paragraphs (c)(1)(i) 
through (c)(1)(iv) of this clause.
    (3) For avoidance of doubt, this cross-waiver of liability 
includes a cross-waiver of claims arising from the Convention on 
International Liability for Damage Caused by Space Objects, entered 
into force on 1 September 1972, in which the person, entity, or 
property causing the Damage is involved in Protected Space 
Operations and the person, entity, or property damaged is damaged by 
virtue of its involvement in Protected Space Operations.
    (4) Notwithstanding the other provisions of this clause, this 
cross-waiver of liability shall not be applicable to:
    (i) Claims between the Government and its own contractors or 
between its own contractors and subcontractors;
    (ii) Claims made by a natural person, his/her estate, survivors, 
or subrogees (except when a subrogee is a Party to an Agreement or 
is otherwise bound by the terms of this cross-waiver) for bodily 
injury to, or other impairment of health, or death of such person;
    (iii) Claims for Damage caused by willful misconduct;
    (iv) Intellectual property claims;
    (v) Claims for damages resulting from a failure of the 
contractor to extend the cross-waiver of liability to its 
subcontractors and related entities, pursuant to paragraph (c)(2) of 
this clause; or
    (vi) Claims by the Government arising out of or relating to a 
contractor's failure to perform its obligations under this contract.
    (5) Nothing in this clause shall be construed to create the 
basis for a claim or suit where none would otherwise exist.
    (6) This cross-waiver shall not be applicable when 49 U.S.C. 
Subtitle IX, Chapter 701 is applicable.

    (End of Clause)

[FR Doc. 2012-23715 Filed 9-26-12; 8:45 am]
BILLING CODE 7510-01-P