[Code of Federal Regulations]
[Title 14, Volume 5]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 14CFR1266.104]

[Page 416-418]
 
                     TITLE 14--AERONAUTICS AND SPACE
 
                   CHAPTER V--NATIONAL AERONAUTICS AND
                          SPACE ADMINISTRATION
 
PART 1266_CROSS-WAIVER OF LIABILITY--Table of Contents
 
Sec.  1266.104  Cross-waiver of liability for NASA expendable launch vehicle (ELV) program launches.

    (a) The purpose of this section is to establish a cross-waiver of 
liability between the parties to agreements for NASA ELV program 
launches, and the parties' related entities, in the interest

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of encouraging space exploration and investment. The cross-waiver of 
liability shall be broadly construed to achieve this objective.
    (b) As used in this section, the term:
    (1) Party means a person or entity that signs an agreement involving 
an ELV launch;
    (2) 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. Contractors and ``Subcontractors'' include suppliers of any 
kind.
    (3) Damage means:
    (i) Bodily injury to, or other impairment to 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;
    (4) Payload means any property to be flown or used on or in an ELV; 
and
    (5) Protected Space Operations means all expendable launch vehicle 
and payload activities on Earth, in outer space, or in transit between 
Earth and outer space in implementation of the agreement. 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: expendable launch vehicles (ELV), 
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. Protected Space Operations excludes activities on Earth which 
are conducted on return from space to develop further a payload's 
product or process for use other than for ELV-related activities 
necessary to complete implementation of the agreement.
    (c)(1) Each Party agrees to a cross-waiver of liability pursuant to 
which each Party waivers all claims against any of the entities or 
persons listed in paragraphs (c)(1)(i) through (c)(1)(iii) of this 
section 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, including but not 
limited to delict and tort (including negligence of every degree and 
kind) and contract, against:
    (i) Another Party;
    (ii) A related entity of another Party;
    (iii) The employees of any of the entities identified in paragraphs 
(c)(1)(i) and (ii) of this section.
    (2) In addition, each Party shall extend the cross-waiver of 
liability as set forth in paragraph (c)(1) of this section to its own 
related entities 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 section.
    (3) For avoidance of doubt, this cross-waiver of liability includes 
a cross-waiver of liability arising from the Convention on International 
Liability for Damage Caused by Space Objects (Mar. 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) 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 section, this 
cross-waiver shall not be applicable to:
    (i) Claims between a Party and its own related entity or between its 
own related entities;
    (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;
    (iv) Intellectual property claims;

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    (v) Contract claims between the Parties based on the express 
contractual provisions of the agreement;
    (vi) Claims for damage based on a failure of the Parties or their 
related entities to flow-down the cross-waiver.
    (5) Nothing in this section 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.