Changes to NASA FAR Supplement Cross-Waiver of Liability Clauses in NASA Contracts

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1828 and 1852

RIN 2700-AB12

Changes to NASA FAR Supplement Cross-Waiver of Liability Clauses

in NASA Contracts

AGENCY: Office of Procurement, Contract Management Division, National

Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: This final rule is the regulatory basis for cross-waiver

clauses to be included in contracts for NASA Space Shuttle services,

ELV launches, and Space Station activities. These clauses represent the

required implementation of a previously published final rule regarding

NASA's policy of cross-waivers of liability in agreements for Space

Shuttle services, ELV launches, and Space Station activities. By

incorporating these cross-waivers of liability clauses in contracts for

Space Shuttle services, ELV launches, and Space Station activities,

NASA and the other parties agree not to bring claims against each other

for any damage to property or for injury or death of employees that

occurs during the time a cross-waiver is in effect. In addition, the

clauses implement another requirement of the agreements which is to

flow down these cross-waivers to their related entities ensuring that a

party, its contractors, and subcontractors, waive their right to sue

the other party, its contractors, and subcontractors for damages

sustained in connection with activities conducted under the agreements.

EFFECTIVE DATE: December 31, 1994.

ADDRESSES: Office of Procurement, Contract Management Division (Code

HK), National Aeronautics and Space Administration, 300 E Street, SW,

Washington, DC 20546.

FOR FURTHER INFORMATION CONTACT:

Ms. Deborah O'Neill, Telephone: (202) 358-0440.

SUPPLEMENTARY INFORMATION:

Background

In September 1991, NASA published a final rule (14 CFR Part 1266)

that established cross-waivers of liability as the regulatory basis for

cross-waiver provisions to be included in agreements for NASA Space

Shuttle launch services, space station activities, and ELV program

launches. By developing broad, consistent cross-waivers, NASA

established a known regime of liability limitation to encourage space

exploration and investment by reducing insurance costs and the

potential for litigation.

To be made fully effective, the cross-waivers needed to be

incorporated into applicable NASA prime contracts as well as

subcontracts. This final rule establishes the regulatory basis for

inclusion of these new cross-waivers in contracts for Space Shuttle

services, Space Station activities, and ELV program launches.

NASA published an interim rule (58 FR 54050) on October 20, 1993,

amending the NASA FAR Supplement to provide for revised cross-waivers

of liability clauses for Space Shuttle services and Space Station

activities and to provide for a new cross-waiver of liability for

Expendable Launch Vehicle (ELV) launches. The existing cross-waiver

clause for Space Shuttle was revised and the ELV program launch cross-

waiver clause was developed to be consistent with the cross-waiver

clause that had been in effect for space station activities, because it

was becoming increasingly complex for users, customers, contractors,

and NASA to work under somewhat inconsistent cross-waivers of liability

in agreements for Space Station activities, ELV launches, and Shuttle

launch services not related to Space Station.

Based upon a review of public comments on the interim rule, only

minor changes needed to be made to NASA FAR Supplement clause 1852.228-

76, ``Cross-waiver of Liability for Space Station Activities,'' since

it already contained language corresponding with the provision in the

original final rule regarding cross-waiver agreements. No changes

needed to be made to NASA FAR Supplement clauses 1852.228-72, ``Cross-

Waiver of Liability for Space Shuttle Services,'' and 1852.228-78

``Cross-Waiver of Liability for NASA Expendable Launch Vehicle

Launches,'' but both these clauses are reprinted in this final rule in

their entirety.

For these reasons, NASA has adopted, for use in contracts for Space

Shuttle services and ELV launches, the new cross-waiver clauses set

forth in this rule. Like the Space Station cross-waiver, the new

Shuttle and ELV cross-waivers will apply to all activities done in

implementation of Shuttle and ELV contracts. However, when an activity

that involves Shuttle launch services or a NASA ELV launch is to be

conducted under the Space Station program, the Space Station cross-

waiver, not the respective Shuttle or ELV cross-waiver, will be

utilized in the agreement governing that activity.

NASA received thirteen comments in response to the Interim Rule.

Several comments suggest that there may be some misunderstanding about

the nature and the purpose of the cross-waiver clauses. The cross-

waiver clause is not the waiver between the Government and the

contractor but rather the fulfillment of NASA's obligation to flow down

the cross-waiver in order to bar claims by NASA contractors against

parties or users with whom NASA has entered into agreements for

services. The language in 1828.371(a) clarifies this intent. The

language in paragraph (a) of the clauses also states the purpose and

objective of the cross-waiver clauses. Several other comments suggest

there may be some misunderstanding between the nature of the cross-

waivers and of indemnification under Public Law 85-804. When the

Government provides indemnification coverage to its contractor, the

Government will hold a contractor harmless from third party liability,

as well as from damage or harm to Government and contractor employees

and property, as a result of exposure to unusually hazardous risks.

Indemnification represents a relationship between the Government and

its contractor. A cross-waiver does not provide indemnification

protection as it does not waive third party liability between the

Government and its contractors. When the Government flows down a cross-

waiver of liability to its contractors, there is a waiver of liability

between the Parties involved in Protected Space Operations, not between

the Government and its contractors (recognizing that the cross-waiver

shall apply only if the person, entity, or property causing the damage

is damaged as a result of its involvement in Protected Space

Operations). A cross-waiver represents a relationship between Parties

involved in Protected Space Operations as well as between the Parties'

related entities involved in Protected Space Operations. Therefore,

claims between the Government and its contractor are not covered by the

cross-waiver. The cross-waiver clauses remain unchanged, since no

modification is necessary to address coverage for indemnification-

related issues. Since indemnification is a separate issue from cross-

waiver liability, no change is made to the cross-waiver clauses stating

that they must be inserted in a contract that contains indemnification

coverage under Public Law 85-804. As stated in 1828.371, the

appropriate cross-waiver clause is inserted in solicitations or

contracts of $100,000 or more when the work to be performed involves

Protected Space Operations.

The remaining comments will be addressed individually as follows.

One comment noted that the definition of ``Partner State'' in clause

1852.228-76 includes signatories to the current Intergovernmental

Agreement. This definition fails to include Russia's or any other

unforeseen future partner's involvement. For this reason, the

definition of ``Partner State'' in 48 CFR 1852.228-76(b)(3) has been

changed to include any future signatories to the Intergovernmental

Agreement. A second comment states that the definition of ``Protected

Space Operations'' in each clause differs from the current 1852.228-72

clause which defines the end of the activity period in detail. The

comment recommends that the new clauses better define the end of

Protected Space Operations. This Final Rule leaves the definition of

``Protected Space Operations'' unchanged. The definition as well as the

scope of cross-waivers have been broadened intentionally as set forth

in the final rule for agreements in September 1991. There is no

latitude to change this definition in the flow down from agreements to

contract clauses. The third comment recommended that the words ``or

gross negligence'' be added after the words ``willful misconduct'' in

(c)(4)(iii) of each clause. The rationale mentioned that omission of

the phrase ``gross negligence'' would raise a potential conflict

between the clause and the laws of most states which refuse to

recognize advance agreements to waive liability based on gross

negligence as being contrary to public policy. The clauses remain

unchanged, because it is U.S. Federal policy to waive all degrees of

negligence when the Federal Government is involved in space launch

activities. A fourth comment stated the cross-waiver does not address

the situation in which one of the parties fails to obtain the waiver

agreement. The clauses remain unchanged. There is no requirement to

state that the contractor's failure to flow down clauses does not

obviate application of the substantive aspects of the clause to that

contractor. Another comment requested that paragraph (b)(3), the

definition of ``Party,'' clarify that the U.S. Government agency

signing the agreement is signing on behalf of the United States and all

its related entities. While the clauses remain unchanged, clarification

of this point may be necessary. The U.S. Government agency signing the

agreement is definitely signing on behalf of the United States and all

its related entities.

Availability of NASA FAR Supplement

The NASA FAR Supplement, of which this will become a part, is

codified in 48 CFR, chapter 18, and is available in its entirety on a

subscription basis from the Superintendent of Documents, Government

Printing Office, Washington, DC 20402. Cite GPO Subscription Stock

Number 933-003-00000-1. It is not distributed to the public, whether in

whole or in part, directly by NASA.

Regulatory Flexibility Act

NASA certifies that this Final Rule will not have significant

economic impact on a substantial number of small entities within the

meaning of the Regulatory Flexibility Act (5 U.S.C. 601, et seq.).

Paperwork Reduction Act

This Final Rule does not impose any reporting or record keeping

requirements subject to the Paperwork Reduction Act.

List of Subjects in 48 CFR Parts 1828 and 1852

Government procurement.

Thomas S. Luedtke,

Deputy Associate Administrator for Procurement.

Accordingly, 48 CFR Parts 1828 and 1852 are amended as follows.

PART 1828--BONDS AND INSURANCE

1. The authority citation for 48 CFR Parts 1828 and 1852 continues

to read as follows:

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

1828.001 [Removed]

2. Section 1828.001 is removed.

3. Section 1828.371 is revised to read as follows:

1828.371 Clauses for cross-waivers of liability for Space Shuttle

services, Expendable Launch Vehicle (ELV) launches, and Space Station

activities.

(a) In agreements covering Space Shuttle services, certain ELV

launches, Space Station activities, NASA and other signatories (the

Parties) agree not to bring claims against each other for any damage to

property or for injury or death of employees that occurs during the

time such a cross-waiver is in effect. These agreements involving NASA

and other Parties include, but are not limited to, Memoranda of

Understanding with foreign governments, Launch Services Agreements, and

other agreements for the use of NASA facilities. These agreements

require the Parties to flow down the cross-waiver provisions to their

related entities so that contractors, subcontractors, customers, and

other users of each Party also waive their right to bring claims

against other Parties and their similarly related entities for damages

arising out of activities conducted under the agreements. The purpose

of the clauses prescribed in this section is to flow down the cross-

waivers to NASA contractors and subcontractors.

(b) The contracting officer shall insert the clause 1852.228-72,

Cross-Waiver of Liability for Space Shuttle Services, in solicitations

and contracts of $100,000 or more when the work to be performed

involves ``Protected Space Operations'' (applicable to the Space

Shuttle) as that term is defined in the clause. If Space Shuttle

services under the contract are being conducted in support of the Space

Station program, the contracting officer shall insert the clause

prescribed by paragraph (d) of this section and designate application

of that clause to those particular activities.

(c) The contracting officer shall insert the clause at 1852.228-78,

Cross-Waiver of Liability for NASA Expendable Launch Vehicle (ELV)

Launches, in solicitations and contracts of $100,000 or more for the

acquisition of ELV launch services when the service is being acquired

by NASA pursuant to an agreement described in paragraph (a) of this

section. If, under a contract that covers multiple launches, only some

of the launches are for payloads provided pursuant to agreements, an

additional clause shall be inserted in the contract to designate the

particular launches to which this clause applies. If a payload is being

launched by use of an ELV in support of the Space Station program, the

contracting officer shall insert the clause prescribed by paragraph (d)

of this section and designate application of that particular launch.

(d) The contracting officer shall insert the clause at 1852.228-76,

Cross-Waiver of Liability for Space Station Activities, in

solicitations and contracts of $100,000 or more when the work is to be

performed involves ``Protected Space Operations'' (relating to the

Space Station) as that term is defined in the clause.

(e) At the contracting officer's discretion, the clauses prescribed

by paragraphs (b), (c), and (d) of this section may be used in

solicitations, contracts, new work modifications, or extensions, to

existing contracts under $100,000 involving Space Shuttle activities,

ELV launch services, or 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 Space Shuttle

services, ELV launches, or Space Station activities.

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

4. Section 1852.228-72 is revised to read as follows:

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)

5. Section 1852.228-76 is revised to read as follows:

1852.228-76 Cross-Waiver of liability for space station activities.

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

Cross-Waiver of Liability for Space Station Activities (Dec 1994)

(a) The Intergovernmental Agreement for the Space Station

contains a broad cross-waiver provision to encourage participation

in the exploration and use of outer space through the Space Station.

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 this objective of encouraging participation in space

activities.

(b) As used in this clause, the term:

(1) 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.

(2) 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.

(3) Partner State means each contracting party for which the

``Agreement among the Government of the United States of America,

Governments of Member States of the European Space Agency,

Government of Japan, and the Government of Canada on Cooperation in

the Detailed Design, Development, Operation, and Utilization of the

Permanently Manned Civil Space Station'' (the ``Intergovernmental

Agreement'') has entered into force, in accordance with Article 25

of the Intergovermental Agreement, and also includes any future

signatories of the Intergovernmental Agreement. It includes the

Cooperating Agency of a Partner State. The National Aeronautics and

Space Administration (NASA) for the United States, the Canadian

Space Agency (CSA) for the Government of Canada, the European Space

Agency (ESA) and the Science and Technology Agency of Japan (STA)

are the Cooperating Agencies responsible for implementing Space

Station cooperation. A Partner State also includes any entity

specified to the Memorandum of Understanding (MOU) between NASA and

the Government of Japan to assist the Government of Japan

Cooperating Agency in the implementation of that MOU.

(4) Payload means all property to be flown or used on or in a

launch vehicle or the Space Station.

(5) Protected Space Operations means all launch vehicle

activities, space station activities, and payload activities on

Earth, in outer space, or in transit between Earth and outer space

performed in furtherance of the Intergovernmental Agreement or

performed under this contract. ``Protected Space Operations'' also

includes all activities related to evolution of the Space Station as

provided for in Article 14 of the Intergovernmental Agreement.

``Protected Space Operations'' excludes activities on Earth which

are conducted on return from the Space Station to develop further a

payload's product or process except when such development is for

Space Station-related activities in implementation of the

Intergovernmental Agreement or in performance of this contract. It

includes, but is not limited to:

(i) Research, design, development, test, manufacture, assembly,

integration, operation, or use of launch or 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 Partner State's Contractors or sub-contractors at any

tier;

(ii) A Partner State's users or customers at any tier; or

(iii) A Contractor or subcontractor of a Partner States's user

or customer at any tier.

(7) Contractors and Subcontractors include suppliers of any

kind.

(c) (1) The Contractor agrees to a cross-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 cross-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 Partner State other than the United States;

(ii) A related entity of any Partner State other than the United

States; and

(iii) The employee of any of the entities identified in

paragraphs (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 the United States and its related entities or

claims between the related entities of any Partner State (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)

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

1852.228-78 Cross-Waiver of liability for NASA expendable launch

vehicle launches.

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

Cross-Waiver of Liability for NASA Expendable Launch Vehicle (ELV)

Launches (Sep 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; and

(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 persons, 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)

[FR Doc. 94-31147 Filed 12-20-94; 8:45 am]

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