Agreement between NASA and The X Prize Foundation for the Lunar Analog Challenge

1 INTRODUCTION

This Agreement is entered into by the National Aeronautics and Space Administration (“NASA”) located in Washington, D.C., and the X PRIZE Foundation (“XPF”), located at 320 Wilshire Blvd., Suite 303, Santa Monica, California. NASA and XPF are collectively referred to as “the Parties”. The legal authority for NASA to enter into this Agreement is found in section 203 (c) (5) and (6), and section 314, of the Space Act of 1958, 42 U.S.C. 2473(c), and 42 U.S.C. 2459f-1.

2 PURPOSE AND OVERVIEW

The purpose of this Agreement is to establish collaboration between the Parties to conduct the Lunar Lander Analog Vehicle Challenge (“Challenge”), a technology demonstration competition resulting in monetary awards to the winning participants. The Parties will collaboratively institute a process for XPF to plan, manage and execute the Challenge that is relevant to suborbital vehicle technologies of interest to the Parties: the Challenge will promote the technology and development of private sector launch vehicle systems for ferrying cargo (and possibly crew) between the lunar surface and low Moon orbit. These technologies will also be beneficial to a broad range of industries in U.S. commerce. The Challenge will be conducted in a safe manner in concurrence with accepted industry standards and practices.

The Challenge may be conducted in the context of the X PRIZE Cup and may be held in conjunction with other XPF competitions and activities. The winner(s) of the Challenge will be selected by a panel of independent judges, convened by XPF with the concurrence of NASA, and based on objective criteria and rules agreed to by the Parties.

For the term of this Agreement, the competition will be conducted by XPF, resulting in a maximum total amount of NASA awards of $2,000,000 (two million U.S. dollars) paid directly to the winner(s) of the Challenge by NASA.

XPF may attract additional funding for the prize and for administrative expenses from other sources, subject to NASA’s prior concurrence. XPF will receive no funding or other resources from NASA to perform its responsibilities under this Agreement.

If the purse is not awarded by December 31, 2010, XPF and NASA may extend this Agreement to extend the deadline of the Challenge subject to written amendment of this Agreement.

3 BACKGROUND

3.1 Centennial Challenges

NASA’s Exploration Systems Mission Directorate (ESMD) has established the “Centennial Challenges” program to conduct prize competitions (or Challenges) that support the Vision for Space Exploration and ongoing NASA programs. Specifically, the Centennial Challenges program conducts prize competitions that stimulate innovation in basic and applied research, technology development, and prototype demonstration that have the potential for application to the performance of the space and aeronautical activities of NASA. Challenge competitions demonstrate new technologies or operational capabilities, and are modeled on past prize competitions, including the 18th century British Longitude Prize, early 20th century aviation competitions, such as the Orteig Prize won by Charles Lindbergh, and the Ansari X PRIZE. By making awards based on actual achievements instead of proposals, Centennial Challenges seeks novel and lower-cost solutions to engineering obstacles in civil space and aeronautics from sources of innovation in industry, academia, and the public.

On November 5, 2004, NASA published notice of the “Centennial Challenges Announcement of Partnership Opportunity,” seeking proposals from potential partner organizations for various prize competitions to be conducted as part of NASA’s Centennial Challenges initiative. (Federal Business Opportunity Announcement Reference Number ESMD-NASA-0403, posted November 5, 2004). The announcement stated that proposing organizations would have the opportunity to collaborate with NASA in the conduct of one or more prize Challenges, demonstrating technologies or operational capabilities, and producing highly visible competitions of interest to the public.

3.2 The X PRIZE Foundation

The X PRIZE Foundation (XPF) is a not-for-profit education organization using competitions to create innovative breakthroughs in space and related technologies for the benefit of mankind. XPF is funded through private donations. Funding for the ANSARI X PRIZE purse was secured from multiple sources including: The Ansari family, The New Spirit of St. Louis Organization, leading St. Louis corporations, FirstUSA (BankOne), and major donors listed on the ANSARI X PRIZE website (www.xprize.org).

XPF submitted a proposal in response to NASA’s November 5, 2004, notice, and was subsequently selected to collaborate with NASA to conduct the Challenge that is the subject of this Agreement. The Challenge will demonstrate technology developments of interest to NASA programs and that relate directly to XPF’s areas of interest.

4 RESPONSIBILITIES OF NASA

NASA will use reasonable efforts to accomplish the following in a timely manner:

a. Review the draft plans specified below to be submitted by XPF, and provide written concurrence when reviews are completed.

b. Collaborate with XPF on the assessment of administrative and technical matters, and facilitate technical help as requested by XPF and as deemed appropriate by NASA.

c. Provide reference links from appropriate locations within NASA web sites to the Challenge web sites maintained by XPF.

d. Concur with XPF on final competition rules for the Challenge prior to registration of teams for the Challenge.

e. Send NASA representative(s) to attend the Challenge competition.

f. Publish article(s) and announcement(s) of the Challenge in NASA’s print or electronic publications upon mutual consent of both parties as needed.

g. Review requests from XPF to mention NASA in appropriate materials (including published, recorded, audio, video, electronic, presented, etc.) related to the Challenge.

h. Provide a total purse award of $2,000,000 (two million U.S. dollars) for the winner(s) of the Challenge to be divided between multiple prizes (e.g. first place, second place) as agreed in writing by NASA and XPF.

i. Provide the purse award directly to the Team Leader (as defined in the agreement between XPF and the winning team) of the winning team(s) for the Challenge within 60 days of the announcement of the winner(s), such winner(s) to be determined by the panel of judges for the Challenge. If no winner is declared for the Challenge, NASA will not provide the purse award for the Challenge.

j. Consider XPF proposals to augment the Challenge purses from other sources.

k. NASA will review and concur on items submitted from XPF covered in Section 5 of this Agreement.

5 RESPONSIBILITIES OF XPF

XPF will use reasonable efforts to accomplish the following in a timely manner:

a. Conduct the Challenge on the schedule set forth below. b. Obtain NASA’s written concurrence on the following:

• Challenge rules. The rules will include the following statement on ineligibility of foreign participants to receive the Challenge prize: “To be eligible to win the Challenge prize, an individual or entity, a) in the case of a private entity, shall be incorporated in and maintain a primary place of business in the United States, and b) in the case of an individual, whether participating individually or as a member of a group/team, shall be a citizen or permanent resident of the United States.”
• Challenge execution plan that may be amended by the Parties through their Responsible Officers (as defined in Section 7 of this Agreement); provided, however, that if any provision of such Challenge execution plan, as amended, conflicts with the provisions of this Agreement, this Agreement will control.
• Team Agreement for the Challenge.
• Panel of the individuals selected as independent judges for the Challenge. Judges selected shall include individuals from outside NASA, including from the private sector. A judge may not have personal or financial interests in, or be an employee, officer, director, or agent of any entity that is a registered participant in a competition or sponsor of a participant. In addition, a judge may not have a familial or financial relationship with an individual who is a registered participant or participant sponsor. XPF, its employees, officers, directors, and the immediate family of such employees, officers, directors and agents are not eligible to be judges or participants in the Challenge.
• Team registration process, including application information requirements to be provided by all candidate teams. The team registration process shall culminate with the execution of Team Agreements for participants in the Challenge.

• XPF will maintain required documentation to prove team registration process fulfillment if requested by NASA. Such documentation shall be made available to NASA upon request.
• As part of the team registration process, XPF will obtain NASA’s written approval of any foreign participants on Challenge teams.

• Public relations and media plan for the Challenge.
• Personnel plan for the Challenge.
• Publicity plan for the Challenge, including Challenge web site creation and maintenance.
• Merchandising plan for the Challenge. This plan will need the approval of NASA Centennial Challenges and the NASA Office of Public Affairs for products or services that include the NASA name or insignia. XPF will retain 100% of the proceeds from the sale of merchandise associated with the Challenge.
• Naming of the Prize.

c. Obtain prior approval from NASA Centennial Challenges for any sponsor/sponsorships of the Challenge. NASA Centennial Challenges will coordinate the approval with the NASA Office of Public Affairs.

d. Submit brief monthly reports for the duration of the Agreement of team registration. Oral reports of team registration will be provided on a more frequent basis if necessary. Content and depth of these reports will be mutually agreed-upon and may be modified from time to time to reflect changing circumstances as deemed necessary by both Parties.

e. Compile team information reports for each registered team and make them publicly available on the Challenge web sites. Reports on new teams shall be made available to the public within one month of the new teams’ completed registration. Content, depth, and updating of these reports will be mutually agreed-upon and may be modified from time to time to reflect changing circumstances as deemed necessary by both Parties.

f. On a quarterly basis in a brief written report, collect and provide NASA with teams’ aggregate reported information on their investments in technology directly related to their participation in the Challenge. Content of these reports are dictated by the terms of the Team Agreements for the Challenge.

g. Respond to all inquiries about the Challenge from the general public, candidate teams, and registered teams.

h. Subject to review by NASA Office of Public Affairs through NASA Centennial Challenges, include recognition of NASA’s contribution to the Challenge in all written, live presentation, recorded, and electronic Challenge materials.

i. Ensure that the judges properly select the winner(s) of the Challenge, and formally notify NASA of the winner(s) of the Challenge.

j. Within a month of the conclusion of the Challenge, provide NASA with a written report on the Challenge just conducted, including an assessment of the effectiveness of the Challenge and recommendations for improvement. Content and depth of this report will be mutually agreed-upon by the Parties.

k. Ensure compliance with U.S. Export Control and nonproliferation laws and regulations and policies in all activities involving foreign participation.

6 SCHEDULE OF MILESTONES

The schedule of major milestones covered in this Agreement is as follows:

7 RESPONSIBLE OFFICERS

The following are Responsible Officers at XPF and NASA for this Agreement.

8 FINANCIAL RESPONSIBILITIES

There will be no transfer of funds or other financial obligation between NASA and XPF in connection with this Agreement. Each Party will fund its own participation under this Agreement.

All NASA activities under or pursuant to this Agreement are subject to availability of appropriated funds, and no provision in this Agreement shall be interpreted to require obligation or payment of funds in violation of the Anti-Deficiency Act, 31 U.S.C. Section 1341.

9 INTELLECTUAL PROPERTY

The patent and invention rights set forth herein are applicable to any employees, contractors, or subcontractors, or other entities having a fiduciary or contractual relationship with XPF that are assigned, tasked, or contracted with to perform specified XPF activities under this Agreement.

Title to inventions made (conceived or first actually reduced to practice) as a consequence of, or direct relation to, the performance of activities under this Agreement will remain with the respective inventing parties and no invention or patent rights are exchanged between the Parties.

Data exchanged between NASA and XPF under this Agreement will be exchanged without restriction as to its disclosure, use, or duplication except as otherwise marked. Thus, it is incumbent upon XPF to affix a copyright notice on data that it exchanges with NASA to which it wants such copyright protections as well as to mark data disclosing inventions as proprietary indicating to NASA to maintain such data disclosing inventions in confidence for a reasonable time in order for a patent application to be filed.

XPF will not require Teams to provide any proprietary technical information except such information needed to ensure safety during the Challenge.

10 USE OF THE NASA NAME, INSIGNIA

Use of the NASA name, initials or insignia by XPF is subject to prior review and written approval by the NASA Assistant Administrator for Public Affairs or designee. XPF agrees to submit to NASA Centennial Challenges for approval by the NASA Office of Public Affairs any material that uses NASA’s name, initials or insignia prior to public use, including all promotional, advertising, and merchandising materials. Approval by the NASA Office of Public Affairs will be based on applicable law and policy governing the use of the words “National Aeronautics and Space Administration,” the letters “NASA,” and the NASA insignia. Requests by XPF for such prior written approval will be addressed by NASA in a timely manner and will not be unreasonably withheld. XPF may make truthful and accurate statements regarding its relationship with NASA under this Agreement without prior approval of NASA.

XPF will obtain written approval by the NASA Office of Public Affairs through NASA Centennial Challenges of all matters pertaining to promotional activities involving the NASA name, initials or insignia, including media advertising (television, radio, print, and press releases). Requests by XPF for such prior written approval will be addressed by NASA in a timely manner and will not be unreasonably withheld.

11 INDEPENDENT RELATIONSHIP

This Agreement is not intended to create, constitute, give the effect of, or otherwise recognize a joint venture, partnership, agency, or formal business of any kind. The rights and obligations of the Parties shall be only those expressly set forth in this Agreement.

12 UNITED STATES GOVERNMENT OFFICIALS NOT TO BENEFIT

No member of or delegate to the United States Congress, or resident commissioner, will be admitted to any share or part of this Agreement, or to any resultant benefit that might arise, but this provision will not be construed to extend to this Agreement if made with a corporation for its general benefit.

13 GOVERNING LAW

The Parties hereby designate United States Federal Law to govern 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. Nothing in this provision is to be construed as invoking the Federal Acquisition Regulations, which are not applicable to this Agreement.

14 ASSIGNMENTS

Except in the event of termination specified below, neither this Agreement nor any rights or obligations of any Party hereunder will be assigned or otherwise transferred by one Party without the prior written consent of the other Party.

15 SIGNATURE AUTHORITY AND MODIFICATION OF AGREEMENT

The signatories to this Agreement covenant and warrant that they have authority to execute this Agreement. Any modification to this Agreement shall be executed in writing and signed by an authorized representative of each Party except in the event of termination specified below in Section

17. This Agreement, and any attachments, set forth the entire and complete agreement between NASA and XPF and may be modified only by written agreement. Any modification that creates an additional commitment of NASA resources must be signed by the original NASA signatory authority or successor, or a higher-level NASA official possessing original or delegated authority to make such a commitment.

16 PERIOD OF AGREEMENT, DISPUTES, AND ORDER OF PRECEDENCE

This Agreement will enter into effect as of the date of the last signature on the signature page hereof and will remain in effect until December 31, 2010, or until NASA has made its final purse payment

for the Challenge completed on or before December 31, 2010, which ever comes last, unless extended or terminated. It is the intent of the Parties to extend the NASA-XPF collaboration on future challenges contingent in part upon good faith negotiations, successful performance during the current Agreement, and NASA policies on competition.

The Agreement Responsible Officers will attempt to resolve all issues and disputes arising under this Agreement. If the Parties are unable to resolve any dispute after having made good faith efforts, the dispute will be referred to higher-level officials of NASA and XPF, as appropriate. If the Parties are unable to resolve the disputes after exhausting the above procedures, NASA will issue a written decision that will be a final NASA decision for all purposes, including judicial review. Pending resolution of any disputes pursuant to this article, the Parties agree that performance of all other obligations will be pursued diligently in accordance with the Agreement unless the Agreement is terminated pursuant to Section 17 below.

17 TERMINATION

Either Party may unilaterally terminate this Agreement prior to the expiration date by providing one hundred eighty (180) calendar days prior written notice to the other Party. Subject to the dispute resolution procedure in Article 16, either Party may terminate this Agreement at any time for failure of the other Party (the “Breaching Party”) to comply with the terms of this Agreement, provided that the Breaching Party has 30 days to cure such failure after notification thereof. In the event of termination:

a. Any continuing obligations of the Parties under Section 9, Intellectual Property, will remain in effect;

b. If termination occurs after the Challenge has been completed and winner(s) declared by the judges’ panel, NASA’s responsibility to pay that prize (Paragraph 4.i above) will remain in effect;

c. The Parties will immediately cease any previously authorized use of each other’s name and insignia, subject to written request for limited use of the other party’s name and insignia for instance, in communicating with Teams. Any approval will be provided in a written amendment to this Agreement; and

d. The Parties waive any and all damages that may arise from or due to termination.

18 LIABILITY

The Parties agree to assume liability for their own risks associated with activities undertaken pursuant to this Agreement. However, XPF agrees to:

a. Obtain liability insurance for conducting each competition, in the amount to be agreed with NASA based on the maximum amount of coverage available at a reasonable commercial rate; and have NASA added as an additional insured under the insurance policy;

b. Indemnify NASA against third party claims for damages arising from or related to activities under this Agreement except to the extent that any such claim arises from or relates to the gross negligence or willful misconduct of NASA. Such indemnity does not include claims by contest winner(s) (declared by the Judges’ Panels during the tenn of this Agreement) for NASA’s specified share of the prizes for the Challenge. “Damages” includes, but is not limited to: bodily injury to, impainnent of health of, or death of any person; hann to, loss of, or loss of use of any property; loss of revenue or profits; any direct, indirect, special, or consequential hann to any person or entity, to include NASA; and,

c. Include in Team Agreements a waiver of claims that states that Teams and Team Members waive all claims, except in the case of willful misconduct, for any injury death, damage, or loss of property, revenue, or profits, whether direct, indirect, or consequential, arising from participation in this competition, whether such injury, death, damage, or loss arises through negligence or otherwise, against XPF and its related entities, including prize contributors such as NASA and its related entities.

19 NONEXCLUSIVITY

This Agreement is not exclusive; accordingly, the Parties may enter similar agreements for the same or similar purposes with other private or public entities, provided, however, that NASA will use reasonable efforts to avoid any commitment for a challenge at a time and location that conflicts with the Challenge subject to this Agreement.

20 EXECUTION

This Agreement and amendments to it may be executed by facsimile signature of in identical

counterparts, each of which will be deemed an original and all of which, when taken together, willconstitute one and the same instrument.

IN WITNESS WHEREOF, each of the Parties hereto have executed or have caused a duly authorized officer or representative to execute this Agreement all effective as of the Effective Date.