As prescribed in 1828.371(c) and (e), insert the following clause:
CROSS-WAIVER OF LIABILITY FOR NASA EXPENDABLE
LAUNCH VEHICLE (ELV) LAUNCHES
(SEPTEMBER 1993)
(a) As prescribed by regulation (14 CFR Part 1266), NASA agreements involving ELV launches are required to contain broad cross-waivers of liability among the parties and the parties related entities to encourage participation in space exploration, use, and investment. The purpose of this clause is to extend this cross-waiver requirement to Contractors and subcontractors as related entities of NASA. This cross-waiver of liability shall be broadly construed to achieve the objective of encouraging participation in space activities.
(b) As used in this clause, the term:
(1) "Contractors" and "Subcontractors" include suppliers of any kind.
(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) "Party" means a person or entity that signs an agreement involving an ELV launch;
(4) "Payload" means all property to be flown or used on or in the ELV; and
(5) "Protected Space Operations" means all ELV and payload activities on Earth, in outer space, or in transit between Earth and outer space performed in furtherance of an agreement involving an ELV launch or performed under the contract. "Protected Space Operations" excludes activities on Earth which are conducted on return from space to develop further a payload's product or process except when such development is for ELV-related activities necessary to implement an agreement involving an ELV launch or to perform this contract. It includes, but is not limited to:
(i) Research, design, development, test, manufacture, assembly, integration, operation, or use of ELVs, transfer vehicles, payloads, related support equipment, and facilities and services;
(ii) All activities related to ground support, test, training, simulation, or guidance and control equipment, and related facilities or services.
(6) "Related entity" means:
(i) A party's Contractors or subcontractors at any tier;
(ii) A party's users or customers at any tier; or
(iii) A Contractor or subcontractor of a party's user or customer at any tier.
(c)(1)The Contractor agrees to a waiver of liability pursuant to which the Contractor waives all claims against any of the entities or persons listed in paragraphs (c)(1)(i) through (c)(1)(iii) of this clause based on damage arising out of Protected Space Operations. This 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, including but not limited to delict (a term used in civil law countries to denote a class of cases similar to tort) and tort (including negligence of every degree and kind) and contract, against:
(i) Any party other than the Government;
(ii) A related entity of any party other than the Government; and
(iii) The employees of any of the entities identified in (c)(1)(i) and (ii) of this clause.
(2) The Contractor agrees to extend the waiver of liability as set forth in paragraph (c)(1) of this clause to subcontractors at any tier by requiring them, by contract or otherwise, to agree to waive all claims against the entities or persons identified in paragraphs (c)(1)(i) through (c)(1)(iii) of this clause.
(3) For avoidance of doubt, this cross-waiver includes a cross-waiver of liability arising from the Convention on International Liability for Damage Caused by Space Objects, (March 29, 1972, 24 United States Treaties and other International Agreements (U.S.T.) 2389, Treaties and other International Acts Series (T.I.A.S.) No. 7762) in which the person, entity, or property causing the damage is involved 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 any party and its related entities or claims between any party's related entities (e.g., claims between the Government and the Contractor are included within this exception);
(ii) Claims made by a natural person, his/her estate, survivors, or subrogees for injury or death of such natural person;
(iii) Claims for damage caused by willful misconduct; and
(iv)Intellectual property claims.
(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 the Commercial Space Launch Act cross-waiver (49 U.S.C. App. 2615) is applicable.
(End of clause)
