TITLE 48 - FEDERAL ACQUISITION REGULATIONS SYSTEM

CHAPTER 18 - NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

SUBCHAPTER H - CLAUSES AND FORMS

PART 1852 - SOLICITATION PROVISIONS AND CONTRACT CLAUSES

1852.228 - 72 - Cross - waiver of liability for space shuttle services.

As prescribed in 1828.371 (b) and (e), insert the following clause: Cross-Waiver of Liability for Space Shuttle Services (SEP 1993) (a) As prescribed by regulation (14 CFR part 1266), NASA agreements involving Space Shuttle flights 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 related entities under their contracts.

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 a Space Shuttle service; (4) Payload means all property to be flown or used on or in the Space Shuttle; and (5) Protected Space Operations means all Space Shuttle and payload activities on Earth, in outer space, or in transit between Earth and outer space performed in furtherance of an agreement involving Space Shuttle services or performed under this 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 Space Shuttle-related activities necessary to implement an agreement involving Space Shuttle services or to perform this contract. It includes, but is not limited to: (i) Research, design, development, test, manufacture, assembly, integration, operation, or use of the Space Shuttle, 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 paragraph (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. This 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 (c)(1)(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 Protection 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 waiver of liability shall not be applicable to: (i) Claims between any party and its related entities or claims between the Government'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.

(End of clause) [59 FR 65730, Dec. 21, 1994]