1. AGREEMENT
This Agreement between the parties shall take effect upon either (a) Seller’s written approval of CCAT’s Purchase Order or (b) Seller’s performance of CCAT’s Purchase Order. This writing does not constitute a firm offer and may be revoked at any time prior to agreement. Any terms or conditions contained in any acknowledgement, invoice or other communication of Seller, which are inconsistent with the terms and conditions of this Agreement are rejected.
To the extent that this Agreement might be treated as an approval of Seller’s prior offer, approval is expressly made on condition of assent by Seller to these terms and shipment of the Goods or beginning performance of any Services by Seller shall constitute assent.
Upon acceptance of a purchase order, shipment of Goods or commencement of a Service, Seller shall be bound by the provisions of this Agreement as between merchants, including all provisions set forth on the face of any applicable purchase order, whether Seller acknowledges or otherwise signs this Agreement or the purchase order, unless Seller objects to such terms in writing prior to shipping Goods or commencing Services.
2. DEFINITIONS
As used throughout this Agreement, the following definitions apply as between merchants unless otherwise specifically stated:
“Acceptance” occurs when CCAT (a) after a reasonable opportunity to inspect the goods signifies to the Seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or (b) fails to make an effective rejection within a reasonable time after delivery or tender, but such acceptance does not occur until the Buyer has had a reasonable opportunity to inspect them; or (c) does any act inconsistent with the Seller’s ownership; but if such act is wrongful as against the Seller it is an acceptance only if ratified by him.
“Buyer” means Connecticut Center for Advanced Technology, Inc. (“CCAT”), the non-profit legal entity issuing this Agreement.
“Purchase Order”, “Order”, or “Agreement” means this agreement, including change notices, supplements, amendments, or modifications, except were the context indicates that a particular Purchase Order document or other particular document is being referred to.
“Goods” means goods, supplies, Service deliverables, items, computer software or hardware (including any software, firmware, or other hardwired logic embedded within the hardware), intellectual property, technical information, or programs furnished by Seller in connection with the principal equipment purchased by CCAT (whether or not owned by Seller and whether or not deemed a part of those goods), that are described in any purchase order, request for proposal or request for quote.
“Services” means any effort supplied by Seller incidental to the sale of Goods by Seller under this Agreement including, without limitation, installation, repair and maintenance Services. The term “Services” shall also include, without limitation, any effort specifically required by the Agreement, including all associated efforts such as design, engineering, repair, maintenance, technical, construction, consulting, professional, or other services.
“Sale” consists of passing of title from the Seller to CCAT for a price.
“Seller” means the legal entity who sells or contracts to sell Goods or Services or otherwise performs work pursuant to this Agreement.
“Intellectual Property” means all patents, copyrights, mask works, trademarks, trade secrets and other rights and information of a similar nature worldwide to the extent that such rights o r information are created or made possible by Seller alone (or acting with CCAT or others) and result from Seller’s performance under this Agreement or any Goods or Services provided to CCAT. Such information includes, without limitation, designs, unique processes, drawings, prints, unique specifications, reports, data, and other technical information, regardless of form, and all unique equipment, tools, gauges, patterns, process sheets or work instructions related to such Goods or Services.
[“Work Product” shall include, without limitation, all designs, discoveries, creations, works, devices, masks, models, work in progress, Service deliverables, inventions, products, computer programs, procedures, improvements, developments, drawings, notes, documents, business processes, information and materials made, conceived or developed by Seller alone or with others which result from or relate to the Services performed. Standard Goods manufactured by Seller and sold to CCAT without having been designed, customized or modified for CCAT do not constitute Work Product.]
3. DELIVERY.
Time is of the essence regarding all aspects of Seller’s performance of this agreement. Without limitation, the delivery schedule specified in this Agreement must be strictly observed by Seller both as to time and quantity, via the carrier and to the place specified on the face of the applicable purchase order. CCAT reserves the right to return, and collect all shipping charges for all Goods received outside the delivery schedule. If no delivery schedule is specified, the order shall be filled promptly via land transportation. If no method of shipment is specified in the purchase order, Seller shall use the least expensive carrier. In the event Seller fails to deliver the Goods within the time specified, CCAT may, at its option, (i) decline to accept the Goods and terminate the Agreement, (ii) demand its allocable fair share of Seller’s available Goods and terminate the balance of the Agreement, or (iii) require Seller, at Seller’s sole cost and expense, to ship all of the items covered by this Agreement by air or railway express or by such other means as may be designated by CCAT. Seller shall package all items in suitable containers to permit safe transportation and handling. Each delivered container must be labeled and marked to identify contents without opening and all boxes and packages must contain packing sheets listing contents. CCAT’s purchase order number must appear on all shipping containers, packing sheets, delivery tickets and bills of lading.
CCAT reserves the right to reschedule any delivery or cancel any purchase order issued at any time prior to shipment of the Goods or prior to commencement of any Services. CCAT shall not be subject to any charges or other fees as a result of such cancellation.
Acceptance by CCAT of all or part of the items shall not constitute a waiver by CCAT of its claims arising from delays in delivery.
4. SHIPPING INSTRUCTIONS
Shipments Originating and Terminating in the United States – Unless otherwise specified by CCAT, all shipments that originate and terminate in the United States shall be FOB destination.
Shipments Originating or Terminating Outside the United States – Unless otherwise specified in the Agreement, all shipments (a) which originate outside the United States and terminate in the United States shall be delivered DDU, United States port of entry; and (b) which originate and terminate outside the United States shall be delivered DDU at the point designated in the Agreement (or if there is no designation of any DDU point in the Agreement, DDU at CCAT’s facility). Except as otherwise specified in the Agreement, the term “DDU” and the rights and obligations of CCAT and Seller will be as defined by Incoterms 2000, the ICC Official Rules for the Interpretation of Trade Terms.
5. IDENTIFICATION, RISK OF LOSS & DESTRUCTION OF GOODS.
Seller assumes all risk of loss until receipt by CCAT. Title to the Goods shall pass to CCAT upon receipt by it of the Goods at the designated destination. If the Goods ordered are destroyed prior to title passing to CCAT, CCAT may at its option cancel the Agreement or require delivery of substitute Goods of equal quantity and quality. Such delivery will be made as soon as commercially practicable. If loss of Goods is partial, CCAT shall have the right to require delivery of the Goods not destroyed.
6. INSPECTION; REJECTION.
All materials and workmanship entering into the performance of this Agreement may be inspected and tested at all times and places by representatives of CCAT, including during the period of manufacture or performance. If made on the premises of Seller or its supplier, such tests and inspections shall be made in a manner that will not unduly delay work under this Agreement, and Seller shall furnish without additional charge all reasonable facilities and assistance for the safety and convenience of CCAT’s representatives in the performance of their duties. Seller shall tender to CCAT for acceptance only goods that have been manufactured under, and inspected by, appropriate quality control and inspection systems maintained by Seller and have been found to be in conformity with the requirements of this Agreement. As part of these systems, Seller shall prepare records evidencing all inspections made under this Agreement and their outcome, which records shall be complete and available to CCAT upon request during the performance of this Agreement and for two years after final payment.
Unless agreed to otherwise CCAT shall have forty-five (45) days, unless under the circumstances a longer period of time is required, to inspect the Goods or Services before payment, for conformity. However, CCAT’s right of review, whether or not exercised, does not relieve Seller of any of its obligations for inspection, testing, performance, or associated documentation. Use of a portion of the Goods for the purpose of testing shall not constitute an acceptance of the Goods. If Goods tendered do not wholly conform to these provisions, CCAT shall have the right to reject such Goods.
7. PAYMENT.
The parties agree that, upon signing this Agreement, CCAT obtains a special property and insurable interest in the Goods or Services that are the subject of this Agreement. Any deposit or partial payment made by CCAT is refundable upon breach by the Seller, subject to the remedies provided for in this Agreement. As full consideration for the performance of the Services, delivery of the Goods and the assignment of rights to CCAT as provided, CCAT shall pay Seller (i) the amount agreed upon and specified in the applicable purchase order, or (ii) Seller’s quoted price on date of shipment (for Goods), or the date Services were started (for Services), whichever is lower. Seller acknowledges that no sales, use or other taxes will be due upon the sale because CCAT is a 501(c)(3) tax-exempt corporation. At Seller’s request, CCAT shall provide appropriate documentation of its tax-exempt status. Other charges such as shipping costs, duties, customs, tariffs, imposts and government-imposed surcharges shall be stated separately on Seller’s invoice. Payment is made when CCAT’s check is mailed. Payment shall not constitute acceptance. All personal property taxes assessable upon the Goods prior to receipt by CCAT of Goods conforming to the purchase order shall be borne by Seller. Seller shall invoice CCAT for all Goods delivered and all Services actually performed. Each invoice submitted by Seller must be provided to CCAT within ninety (90) days of completion of the Services or delivery of Goods and must reference the applicable purchase order, and CCAT reserves the right to return all incorrect invoices. CCAT will receive a 2% discount of the invoiced amount for all invoices that are submitted more than ninety (90) days after completion of the Services or delivery of the Goods. Unless otherwise specified on the face of a purchase order, CCAT shall pay the invoiced amount within forty-five (45) days after receipt of a correct invoice. Seller will receive no royalty or other remuneration on the production or distribution of any products developed by CCAT or Seller in connection with or based on the Goods or Services provided.
8. WARRANTIES.
8.1 Services: Seller represents and warrants that all Services shall be completed in a professional and workmanlike manner, with the degree of skill and care that is required by current, good, sound, and generally accepted professional procedures, by appropriately licensed personnel who are trained and experienced in the appropriate fields. Further, Seller represents and warrants that the Services shall be completed in accordance with applicable specifications and shall be correct and appropriate for the purposes contemplated in this Agreement. Seller warrants that the Services to be provided by Seller shall be performed in a timely and professional manner that enables the goods to perform in the manner contemplated by the parties. Seller represents and warrants that the performance of Services under this Agreement will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which Seller is bound.
8.2 Goods: Seller warrants to CCAT, its successors, assigns, customers, and users of Goods sold by CCAT that all Goods provided shall be: (i) merchantable, (ii) new (unless specifically agreed to in writing), (iii) free from defects in material and workmanship, (iv) with regard to Goods designed by Supplier, free from defects in design, (v) suitable for the particular purposes intended whether expressed or reasonably implied, (vi) free from any security interest or other lien or encumbrance of which CCAT at the time of contracting has no knowledge, (vii) of good title and (viii) in compliance with all applicable specifications, drawings, and performance requirements which may be attached to this Agreement. Seller agrees that it will make spare parts available to CCAT for a period of five (5) years from the date of shipment at Sellers then current price, less applicable discounts.
The warranty period shall begin as of when the Goods or Services are placed in use and shall extend for a period of fifteen (15) months or for a period provided in the Seller’s standard warranty, whichever is longer. Replacement and repaired Goods shall be warranted for the remainder of the warranty period or six (6) months, whichever is longer. All warranties shall be construed as conditions as well as warranties and shall not be exclusive. Seller shall furnish to CCAT Seller’s standard warranty and service guaranty applicable to the Goods.
These warranty provisions survive any inspection, delivery, acceptance, payment, expiration or earlier termination of this Agreement and such warranties shall run to CCAT, its successors, assigns, employees, students, and users of the material.
8.3 Price: Seller warrants that the prices for the Goods sold or Services provided to CCAT are not more than those currently extended to any other customer for the same or similar Goods or Services in similar quantities. In the event Seller reduces its price for such Goods or Services during the term of this Agreement Seller agrees to reduce the prices of this Agreement correspondingly. No additional charges or rates of any type shall be added without CCAT’s prior written consent.
9. REMEDIES.
If Seller breaches this Agreement, CCAT shall have all remedies available by law and at equity, including but not limited to, cancellation, rescission, rejection, revocation of acceptance, substitute goods, specific performance, and recovery of all damages and deduction of damages from the price.
Without limiting the forgoing remedies, with respect to any Goods or Services not conforming to Seller’s warranties under this Agreement, CCAT may, by written notice to Seller: (a) rescind this Agreement as to such non-conforming material; (b) accept such material at an equitable reduction in price; (c) reject such nonconforming material and require repair or the delivery of suitable replacements; (d) credit CCAT’s account for the same or (e) elect to repair at Seller’s expense. Repair shall be performed solely by Seller or its authorized agents. Cost of replacement, rework, inspection, repackaging and transportation of such corrected material shall be at the Seller’s expense. Deliveries of corrected or replaced Goods or Services shall be accomplished promptly and shall be accompanied by written notice specifying that such Goods or Services are corrected or replaced. If Seller fails to deliver suitable replacements promptly or if re-performance does not remedy Seller’s unsatisfactory performance, CCAT reserves the right to procure substitute services from another source or sources and to charge Seller with the costs or terminate this Agreement for default.
The rejected goods returned to Seller shall not be repaired or replaced by Seller except upon written instructions from CCAT. Rejected goods shall not again be tendered to CCAT for acceptance without disclosure of former rejection. Seller shall not use any Goods purchased for the performance of this Agreement for any other Agreement. Should CCAT elect to repair the nonconforming goods, all terms and conditions of this Agreement shall remain in full force and effect as to the goods furnished by Seller. Acceptance shall be conclusive except as regards latent defects, fraud, or such gross mistakes as amount to fraud. CCAT’s rights under this section shall be in addition to and shall not be deemed to diminish its rights under the warranties section of this Agreement.
In the event that CCAT incurs additional costs or CCAT’s customer charges CCAT for additional costs related to a breach of Seller’s warranties or a breach of delivery terms by Seller, Seller agrees that CCAT shall have the right to: (i) reduce the amount payable under this Agreement; including, without limitation, deduction or setoff pursuant to this Agreement; and (ii) charge Seller for additional costs or customer charges greater than the amount of this Agreement or otherwise not deductible against this Agreement.
Seller acknowledges that CCAT may recover all damages or costs it incurs as a result of or relating to Seller’s breach of any warranties of the failure of Seller to correct defects in or replace nonconforming Goods promptly. While CCAT may have available to it contractual or other limitations with respect to its own customers, CCAT may in some instances decide to provide corrective Goods or Services, or reimburse such customers for quality issues, losses and for damages beyond CCAT’s strict contractual or legal obligations. Where such corrective action payments or expenses by CCAT result from or are related to defects or failures by Seller in Seller’s Goods or Services, CCAT may recover for such corrective action, payment and expenses from Seller.
10. INTELLECTUAL PROPERTY RIGHTS,
CCAT is licensed to copy, embed and use all software provided under this Agreement onto a computer memory device and to make back-up copies of such software. Unless otherwise provided for in this Agreement, or in a prior written Agreement directed to the software provided here, CCAT’s sole obligation with respect to software provided under this Agreement shall be to use the software in compliance with applicable U.S. copyright laws and regulations, irrespective of any other license agreement including, but not limited to, any license agreement packaged with such software.
Seller agrees that, for any works of authorship created by Seller or any employees or subcontractors of Seller in the course of this Agreement, those works that come under one of the categories of “Works Made for Hire” in 17 U.S.C. 101 shall be considered Works Made for Hire. For any works of authorship that do not come under such categories, Seller warrants that it has right to do so, hereby assigns and agrees to assign all right, title, and interest it has to any copyright in such works and will execute or cause to be executed at Seller’s expense any documents required to establish CCAT’s ownership of such copyright.
11. CHANGES
CCAT, at any time, shall have the right to make changes within the general scope of this Agreement, including, but not limited to any one or more of the following: (i) shipping or packing instructions, (ii) place of delivery or delivery schedule, (iii) any changes in the quantities, drawings, designs or specifications, (iv) services, or (v) the method or manner of performance of the services. If any change under this section causes an increase or decrease in the cost of or the time required for performance, an equitable adjustment shall be made in price or delivery schedule or both, and the Agreement shall be modified in writing accordingly.
Information, such as technical direction or guidance provided to Seller by representatives of CCAT in connection with the Seller’s performance of this Agreement, shall not be constructed either as a change within the meaning of this section, or as direction to proceed outside the scope of this purchase order. No change will be binding on CCAT unless issued in writing by an authorized representative of CCAT’s purchasing department.
Notwithstanding the pendency of any claim for an adjustment submitted by Seller under this Agreement, Seller shall diligently proceed with the performance of the Agreement, as directed by CCAT, and nothing in this agreement shall be construed as relieving Seller of its obligations to perform including without limitation the failure of the parties to agree upon Seller’s entitlement to, or the amount or nature of, any such adjustment.
12. INDEPENDENT CONTRACTOR.
CCAT is interested only in the results obtained under this Agreement; the manner and means of achieving the results are subject to Seller’s sole control. Seller is an independent contractor for all purposes, without express or implied authority to bind CCAT by contract or otherwise. Neither Seller nor its employees, agents or subcontractors (“Seller’s Assistants”) are agents or employees of CCAT, and therefore are not entitled to any employee benefits of CCAT, including but not limited to, any type of insurance. Seller shall be responsible for all costs and expenses incident to performing its obligations under this Agreement and shall provide Seller’s own supplies and equipment.
13. SELLER RESPONSIBLE FOR TAXES AND RECORDS.
Seller shall be solely responsible for filing the appropriate federal, state and local tax forms, including, without limitation, a Schedule C or a Form 1020, and paying all such taxes or fees, including estimated taxes and employment taxes, due with respect to Seller’s receipt of payment under this Agreement. Seller further agrees to provide CCAT with reasonable assistance if there is a government audit. CCAT shall have no responsibility to pay or withhold from any payment to Seller under this Agreement, any federal, state or local taxes or fees. CCAT will regularly report amounts paid to Seller by filing Form 1099-MISC with the Internal Revenue Service.
14. INSURANCE.
Seller shall maintain and require Seller’s Assistants to maintain such adequate health, auto, workers’ compensation, unemployment compensation, disability, liability, and other insurance as CCAT specifically requires or as is required by law or as is the common practice in Seller’s and Seller’s Assistants’ trades or businesses whichever affords greater coverage. Upon request, Seller shall provide CCAT with certificates of insurance or evidence of coverage before commencing performance under this Agreement. Seller shall provide adequate coverage for any CCAT property under the care, custody or control of Seller or Seller’s Assistants.
15. LIMITATION OF LIABILITY.
IN NO EVENT SHALL CCAT BE LIABLE TO SELLER OR SELLER’S ASSISTANTS, OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT CCAT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
16. INDEMNIFICATION.
Seller shall indemnify, hold harmless, and at CCAT’s request, defend CCAT, its officers, directors, customers, agents and employees, against all claims, liabilities, damages, losses and expenses, including attorneys’ fees and cost of suit arising out of or in any way connected with the Goods or Services provided under this Agreement, including, without limitation, (i) any claim based on the death or bodily injury to any person, destruction or damage to property, or contamination of the environment and any associated clean up costs, (ii) Seller failing to satisfy the Internal Revenue Service’s guidelines for an independent contractor, (iii) any claim based on the negligence, omissions or willful misconduct of Seller or any Seller’s Assistants, and (iv) any claim by a third party against CCAT alleging that the Goods or Services, the results of such Services, or any other products or processes provided under this Agreement, infringe a patent, copyright, trademark, trade secret or other proprietary right of a third party, whether such are provided alone or in combination with other products, software or processes. Seller shall not settle any such suit or claim without CCAT’s prior written approval. Seller agrees to pay or reimburse all costs that may be incurred by CCAT in enforcing this indemnity, including attorneys’ fees.
Should CCAT’s use, or use by its distributors, subcontractors or customers, of any Goods or Services purchased from Seller be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Seller shall, at is sole cost and expense, either (a) substitute fully equivalent non-infringing Goods or Services; (b) modify the Goods or Services so that they no longer infringe but remain fully equivalent in functionality; (c) obtain for CCAT, its distributors, subcontractors or customers the right to continue using the Goods or Services; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing Goods or Services.
17. CONFIDENTIALITY.
Technical and business information and ideas disclosed to Seller by CCAT (“CCAT Confidential Information”) in connection with this Agreement, includes but is not limited to all information, whether written or oral, in any form, including without limitation, HIPPA-protected information, information relating to the research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, Work Product and other material or information considered proprietary by CCAT relating to the current or anticipated business or affairs of CCAT which is disclosed directly or indirectly to Seller and are entrusted to Seller only for use on behalf of CCAT. In addition, CCAT Confidential Information means any third party’s proprietary or confidential information disclosed to Seller in the course of providing Services or Goods to CCAT. Seller shall keep proprietary information in confidence and shall neither use (other than in performance under this Agreement or other Agreements from CCAT) nor disclose such proprietary information except as authorized in writing by CCAT. On completion of this or all subsequent related orders (as appropriate), Seller shall deliver to CCAT or destroy to CCAT’s satisfaction all material embodying proprietary information, including all reproductions, unless otherwise instructed by CCAT.
CCAT Confidential Information does not include, and Seller shall not be liable for use or disclosure of any proprietary information (i) which Seller lawfully knew without restriction on disclosure before CCAT disclosed it to Seller, (ii) which is now or becomes publicly known through no wrongful act or failure to act of Seller, (iii) which Seller developed independently without use of the CCAT Confidential Information, as evidenced by appropriate documentation, or (iv) which is lawfully furnished to Seller by a third party as a matter of right and without restriction on disclosure. In addition, Seller may disclose Confidential Information which is required to be disclosed pursuant to a requirement of a government agency or law so long as Seller provides prompt notice to CCAT of such requirement prior to disclosure.
Seller agrees not to copy, alter or directly or indirectly disclose any CCAT Confidential Information. Additionally, Seller agrees to limit its internal distribution of CCAT Confidential Information to Seller’s Assistants who have a need to know, and to take steps to ensure that the dissemination is so limited, including the execution by Seller’s Assistants of nondisclosure agreements with provisions substantially similar to those set forth in this Agreement. In no event will Seller use less than the degree of care and means that it uses to protect its own information of like kind, but not less than reasonable care to prevent the unauthorized use of CCAT Confidential Information.
Seller further agrees not to use the CCAT Confidential Information except in the course of performing this Agreement and will not use such CCAT Confidential Information for its own benefit or for the benefit of any third party. The mingling of the CCAT Confidential Information with information of Seller shall not affect the confidential nature or ownership of the same. Seller agrees not to design or manufacture any products that incorporate CCAT Confidential Information. All CCAT Confidential Information is and shall remain the property of CCAT. Upon CCAT’s written request or the termination of this Agreement, Seller shall return, transfer or assign to CCAT all CCAT Confidential Information, including all Work Product and all copies.
18. OWNERSHIP OF WORK PRODUCT.
All Work Product shall at all times be and remain the sole and exclusive property of CCAT. Seller agrees to irrevocably assign and transfer to CCAT and does assign and transfer to CCAT all of its worldwide right, title and interest in and to the Work Product including all associated intellectual property rights. CCAT will have the sole right to determine the treatment of any Work Product, including the right to keep it as trade secret, execute and file patent applications on it, to use and disclose it without prior patent application, to file registrations for copyright or trademark in its own name or to follow any other procedure that CCAT deems appropriate. Seller agrees: (a) to disclose promptly in writing to CCAT all Work Product in its possession; (b) to assist CCAT in every reasonable way, at CCAT’s expense, to secure, perfect, register, apply for, maintain, and defend for CCAT’s benefit all copyrights, patent rights, mask work rights, trade secret rights, and all other proprietary rights or statutory protections in and to the Work Product in CCAT’s name as it deems appropriate; and (c) to otherwise treat all Work Product as CCAT Confidential Information as described above. These obligations to disclose, assist, execute and keep confidential survive the expiration or termination of this Agreement. All tools and equipment supplied by CCAT to Seller shall remain the sole property of CCAT.
Seller will ensure that Seller’s Assistants appropriately waive any and all claims and assign to CCAT any and all rights or any interests in any Work Product or original works created in connection with this Agreement. Seller irrevocably agrees not to assert against CCAT or its direct or indirect customers, assignees or licensees any claim of any intellectual property rights of Seller affecting the Work Product.
CCAT will not have rights to any works conceived or reduced to practice by Seller which were developed entirely on Seller’s own time without using equipment, supplies, facilities or trade secret or CCAT Confidential Information, unless (i) such works relate to CCAT’s business, or CCAT’s actual or demonstrably anticipated research or development, or (ii) such works result from any Services performed by Seller for CCAT.
19. SUSPENSION AND DEBARMENT
Seller shall promptly notify CCAT if Seller is suspended, debarred, or proposed for suspension or debarment. If Seller fails to so notify CCAT within a reasonable time, Seller shall indemnify and hold CCAT harmless against any loss or damage suffered by CCAT as a result of its issuing any subcontracts to Seller after such notice should have been given.
20. NONINTERFERENCE WITH BUSINESS.
During and for a period of two years immediately after the termination or expiration of this Agreement, Seller agrees not to unlawfully interfere with the business of CCAT in any manner, and further agrees not to solicit or induce any employee or independent contractor to terminate or breach an employment, contractual or other relationship with CCAT.
21. TERMINATION.
21.1 Termination for Default: CCAT may terminate this entire Agreement upon written notice to Seller for default in any of the following circumstances: (i) Seller fails to deliver the Goods or perform the Services required by this Agreement within the time specified, or any extension granted by CCAT in writing; (ii) Seller fails to perform any of the other provisions of this Agreement or fails to make progress so as to endanger performance of this Agreement in accordance with its terms and Seller does not cure or submit to CCAT a plan to cure such failure to CCAT’s reasonable satisfaction within a period of ten (10) days after receipt of notice from CCAT specifying such failure; (iii) Seller admits in writing its inability to pay its debts generally as they come due, or make a general assignment for the benefit of creditors; (iv) Seller files a petition in bankruptcy, becomes insolvent or dissolves; (v) the appointment, with or without Seller’s consent, of any trustee, liquidator, assignee, custodian, sequestrator or receiver for any substantial portion of Seller’s assets; or (vii) Seller’s demonstrated inability to pay its debts generally as they come due.
If this Agreement is entirely or partially terminated by CCAT for Default, CCAT may procure, upon such terms and in such manner as CCAT may deem appropriate, Goods or Services similar to those terminated, and Seller shall be liable to CCAT for all reprocurement costs, including any price for such similar Goods or Services that is higher than this Agreement, provided however, that Seller shall continue the performance of this Agreement to the extent not terminated. Seller shall not be liable for such additional costs if Seller’s failure to perform arises out of causes beyond the control and without the fault or negligence of Seller as described in the section entitled “Force Majeure”.
If this Agreement is entirely or partially terminated under this section, CCAT, in addition to any other rights, may require Seller to: (i) transfer title and deliver to CCAT in the manner and to the extent directed by CCAT any completed Goods and any partially completed Goods and materials, parts, components, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights (“contract materials”) as the Seller has specifically produced or specifically acquired for the performance of such part of this Agreement as has been terminated; or (ii) protect and preserve property in the possession of Seller in which CCAT has an interest.
Payment for completed Goods delivered or rendered to and accepted by CCAT, and for the protection and preservation of property, shall be in an amount agreed upon by Seller and CCAT.
If, after notice of termination under this section, it is determined that Seller was not in default, or that the default was excusable CCAT shall pay Seller according to the provisions under the section entitled “Termination for Convenience,”
21.2 Termination for Convenience: The performance of work under this Agreement may be terminated, in whole or in part, or from time to time in part, by CCAT for its convenience by delivery to Seller of a notice of termination specifying the extent to which performance of work under the Agreement is terminated, and the date which such termination becomes effective. After receipt of a notice of termination and except as otherwise directed by CCAT, Seller shall immediately: (i) Stop work on the date and to the extent specified in the notice of termination; (ii) Place no further orders or suborders for materials, services, or facilities except as may be necessary for completion of such portions of the work under the Agreement that is not terminated; (iii) Terminate all orders and suborders to the extent that they relate to the performance of any work terminated by the notice of termination; (iv) Assign to CCAT, in the manner, and to the extent directed by CCAT all of the right, title and interest of Seller under the Agreements or subcontracts terminated; (v) Settle all outstanding liabilities and all claims arising out of such termination of Agreements and subcontracts subject to the approval or ratification of CCAT to the extent CCAT may require, which approval or ratification shall be final for all the purposes of this section; and (vi) Transfer title and deliver in the manner, to the extent, and at the times directed by CCAT (a) the fabricated or unfabricated parts, work in process, completed work, supplies, and other material produced as a part of, or acquired in connection with the performance of, the work terminated by the notice of termination, and (b) the completed or partially completed plans, drawings, information, and other property which, if the Agreement had been completed, would be required to be furnished to CCAT.
CCAT shall pay Seller for the portion of the Services satisfactorily performed or those conforming Goods delivered to and accepted by CCAT through the date of termination, less appropriate offsets, including any additional costs to be incurred by CCAT in completing the Services.
22. FORCE MAJEURE.
CCAT shall not be liable for any failure to perform including failure to accept performance of Services or, take delivery of the Goods as provided, and Seller shall not be liable for delays or defaults in delivery caused by circumstances beyond their control which make such performance commercially impractical including, but not limited to, acts of God, fire, flood, acts of war, acts of terrorism, government action, accident, labor difficulties or shortage, inability to obtain materials, equipment or transportation. Either party’s performance shall be suspended for the duration of the event rendering proper performance impractical or impossible provided, however, that if such suspension shall continue in excess of thirty (30) days, the parties shall meet to effect a mutually acceptable compromise, failing which, either party may terminate this Agreement in respect of the affected goods upon thirty (30) days prior written notice to the other party.
23. ENTIRE AGREEMENT; AGREEMENT IN WRITING.
These Standard Terms and Conditions, together with CCAT’s purchase order, request for proposal or request for quote and Seller’s work proposal or quote for Goods and Services constitutes the complete, final and exclusive agreement of purchase and sale between the parties and supersedes all prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter contained in this Agreement. Any terms and conditions proposed in Seller’s acceptance or in any acknowledgment, invoice, or other form of Seller that add to, vary from, or conflict with these terms are rejected.
24. SEVERABILITY.
If any provision of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
25. ASSIGNMENT; WAIVER.
Seller may not assign this Agreement, in whole or in part, or any of its rights or obligations under this Agreement, without the prior written consent of CCAT. Any assignment or transfer without such written consent shall be null and void and shall be deemed a material breach of this Agreement. This Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of CCAT without restriction. If CCAT fails to insist in any instance on the strict performance of any provision of this Agreement or to exercise any right or privilege granted to CCAT, that failure is not a waiver of any such provision or right and that provision shall continue in force. In any event, a waiver of any default or of any term or condition of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.
In no event shall any documents, relating to work under this Agreement, marked with Government security classifications such as “Top Secret,” “Secret,” or “Confidential” be furnished to an assignee or to any other person not otherwise authorized to receive the same without the prior written authorization of the Contracting Officer.
26. NONEXCLUSIVE AGREEMENT.
This is not an exclusive agreement. CCAT is free to engage others to perform Services or provide Goods the same as or similar to Seller’s. Seller is free to, and is encouraged to, advertise, offer and provide Seller’s Services or Goods to others; provided however, that Seller does not breach this Agreement.
27. NOTICES.
Except for Purchase Orders which may be sent by local mail, facsimile transmission, or electronically transmitted, all notices and other communications shall be in writing, and shall be addressed to Seller or to an authorized CCAT representative, and shall be considered given when (a) delivered personally, (b) sent by confirmed telex or facsimile, (c) sent by commercial overnight courier with written verification receipt, or (d) three (3) days after having been sent, postage prepaid, by first class or certified mail.
28. SURVIVAL OF OBLIGATIONS.
Any obligations and duties, which by their nature extend beyond the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement.
29. GOVERNING LAW; DISPUTE RESOLUTION.
This Agreement shall be construed in accordance with, and disputes shall be governed by, the laws of the State of Connecticut, excluding its conflict of law rules. The venue for resolution of any disputes under this Agreement shall be in Hartford, Connecticut.
The parties intend to forsake litigation and resolve with finality any and all disputes arising under or related to this Agreement exclusively by the process identified in this Section. This Section shall remain effective in the event that a petition in bankruptcy is filled by or against a party to this Agreement, or if a party makes an assignment for the benefit of creditors, or if any other insolvency proceeding is commenced against a party. Invocation of this Section shall not relieve either part of any obligation, right or duty of performance arising under or related to this Agreement.
Any and all disputes, controversies or claims arising under or relating to this Agreement or the breach, termination or invalidation of this Agreement shall, upon written notice, be referred to a senior management representative from each of the parties who will confer in Good faith to attempt to resolve the matter. The party sending the first written notice (the “initial notice”) shall (a) set forth in detail, all of its claims or issues in dispute and (b) designate its representative. The other party shall have 5 business days to designate its representative and add any other issues or claims for resolution not identified in the initial notice. The representatives shall have 30 days from the date of the initial notice to resolve the issues identified in the notices. If the representatives are unable to resolve the matter, either party may refer the matter to administered mediation. Such mediation shall be started within 30 days from the date of referral, and the mediation process must be concluded within 30 days from the start date.
If the dispute or claim is not fully resolved pursuant to the above paragraph, either party may, after 90 days, but not later than 120 days from the date of the initial notice, make a written demand for binding arbitration to be administered by the American Arbitration Association (AAA) by one arbitrator in accordance with its commercial arbitration rules, and judgment on the awarded rendered by the arbitrator may be entered in any court of competent jurisdiction. A party’s failure to make a timely demand for arbitration shall result in the forfeiture of all the claims and issues that party identified in its written notice.
Each party will be permitted to take the deposition of one individual, limited to no longer than four hours. No other discovery shall be conducted except by the written agreement of both parties. The parties shall share all fees and expenses of the arbitration equally; however, each party shall bear the expense of its own counsel, experts, witnesses, and preparation and presentation of proofs. The arbitrator shall have no authority to award punitive or other damages beyond the prevailing party’s actual damages and shall not, in any event make any ruling, finding, or award that does not conform to the terms and conditions of this Agreement. The arbitration award shall be in writing and shall specify the factual and legal basis for the award. The right to appeal the award shall be governed b Connecticut law.
Either party may at any time, without inconsistency with this Agreement, seek from a court of general jurisdiction, any equitable interim or provisional relief only to avoid irreparable injury.
The parties intend all statements made and documents provided or exchanged in connection with this dispute resolution process to be confidential and neither party shall disclose the existence or content of the dispute or claim, or the results of any dispute resolution process, to third parties other than outside counsel, except with the prior written consent of the party or pursuant to legal process.
The parties may, by written mutual consent, agree to date and times other than those set forth in this Section.
The provisions of this Section shall not modify or displace the procedures for Termination of the Agreement for Convenience. In addition, this Section shall not apply to and will not bar litigation regarding any claims related to a party’s proprietary or intellectual property rights.
Any legal action (including, without limitation, any action in respect to any warranty claim) with respect to any such transaction must be commenced within four (4) years after the cause of action has accrued. The applicability of the UN Convention on Contracts for the International Sale of Goods is expressly waived by the parties and shall not apply to the terms and conditions of this Agreement.
30. COMPLIANCE WITH LAWS.
30.1 General: Seller shall comply fully with all applicable federal, state and local laws in the performance of this Agreement including, but not limited to, all applicable employment, tax, export control and environmental laws.
30.2 Federal Regulations
The funds needed to pay Seller are from public sources. Seller agrees to comply with federal regulations including but not limited to, the Rehabilitation Act of 1973 [29 U.S.C. 794], Drug-Free Workplace, Title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d], the Handicapped Act, the Age Discrimination Act of 1975 [42 U.S.C. 6101 et seq.], the Smoke-Free Workplace, the Equal Employment Opportunity [E.O. 11246 (3 CFR, 1964-1965 Comp. p 339}, Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c), Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7), Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), Rights to Interventions Made Under a Contract, Grant or Cooperative Agreement, Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), as amended Byrd Anti-Lobbying Amendment (31 U.S.C. 1352), and Debarment and Suspension (E.O.S 12549 and 12689).
If applicable, Seller will comply with the following Federal Acquisition Regulations: (i) 52.222-26 “Equal Opportunity”, (ii) 52.222-35 “Affirmative Action for Special Disabled and Vietnam Veterans”, (iii) 52.222-36 “Affirmative Action for Handicapped Workers.”
30.3 State Regulations
Seller will comply with all provisions of Executive Order 11246 of September 24, 1965, as amended, and by the regulations and relevant orders of the U.S. Secretary of Labor’s guidelines on Equal Opportunity Employment. Upon request, seller will furnish all information and reports required by Executive Order 11246 and by the rules, regulations, and orders of the Secretary of Labor and will permit access to Seller’s books, records, and accounts, by the federal granting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and others.
The Seller agrees and warrants that in the performance of the Agreement such Seller will not discriminate or permit discrimination against any person or group of persons on the grounds of race, color, religious creed, age, marital status, national origin, ancestry, sex, gender identity or expression, mental retardation, mental disability or physical disability, including, but not limited to, blindness, unless it is shown by such Seller that such disability prevents performance of the work involved, in any manner prohibited by the laws of the United States or of the State of Connecticut; and the Seller further agrees to take affirmative action to insure that applicants with job-related qualifications are employed and that employees are treated when employed without regard to their race, color, religious creed, age, marital status, national origin, ancestry, sex, gender identity or expression, mental retardation, mental disability or physical disability, including, but not limited to, blindness, unless it is shown by the Seller that such disability prevents performance of the work involved; (2) the Seller agrees, in all solicitations or advertisements for employees placed by or on behalf of the Seller, to state that it is an “affirmative action‑equal opportunity employer” in accordance with regulations adopted by the Commission; (3) the Seller agrees to provide each labor union or representative of workers with which the Seller has a collective bargaining Agreement or other contract or understanding and each vendor with which the Seller has a contract or understanding, a notice to be provided by the Commission, advising the labor union or workers’ representative of the Seller’s commitments under this section and to post copies of the notice in conspicuous places available to employees and applicants for employment; (4) the Seller agrees to comply with each provision of this Section and Connecticut General Statutes §§ 46a-68e and 46a-68f and with each regulation or relevant order issued by said Commission pursuant to Connecticut General Statutes §§ 46a-56, 46a-68e and 46a-68f; and (5) the Seller agrees to provide the Commission on Human Rights and Opportunities with such information requested by the Commission, and permit access to pertinent books, records and accounts, concerning the employment practices and procedures of the Seller as relate to the provisions of this Section and Connecticut General Statutes § 46a-56. If the contract is a public works contract, the Seller agrees and warrants that he will make good faith efforts to employ minority business enterprises as subcontractors and suppliers of materials on such public works projects.
The Seller agrees and warrants that in the performance of the Agreement such Seller will not discriminate or permit discrimination against any person or group of persons on the grounds of sexual orientation, in any manner prohibited by the laws of the United States or the State of Connecticut, and that employees are treated when employed without regard to their sexual orientation; (2) the Seller agrees to provide each labor union or representative of workers with which such Seller has a collective bargaining Agreement or other contract or understanding and each vendor with which such Seller has a contract or understanding, a notice to be provided by the Commission on Human Rights and Opportunities advising the labor union or workers’ representative of the Seller’s commitments under this section, and to post copies of the notice in conspicuous places available to employees and applicants for employment; (3) the Seller agrees to comply with each provision of this section and with each regulation or relevant order issued by said Commission pursuant to Connecticut General Statutes § 46a-56; and (4) the Seller agrees to provide the Commission on Human Rights and Opportunities with such information requested by the Commission, and permit access to pertinent books, records and accounts, concerning the employment practices and
procedures of the Seller which relate to the provisions of this Section and Connecticut General Statutes § 46a-56.
In accordance with Executive Order No. 16, Seller agrees to prohibit its employees from bringing into the work site, using, attempting to use, or threatening to use any weapon or dangerous instrument and from causing or threatening to cause physical injury or death to any individual on the work site.
30.4 Hazardous Substances: Seller warrants that, except as specified on the face of the purchase order, none of the chemical substances constituting or contained in the Goods sold or otherwise transferred to CCAT under this Agreement, are “hazardous substances” as defined in the Comprehensive, Environmental Response, Compensation and Liability Act (CERCLA), and Seller agrees to supply CCAT with any and all required material data safety sheets.
Seller represents and warrants that Seller understands the nature of any hazards associated with the manufacture, handling and transportation of such hazardous materials, and that it shall perform all activities related to its manufacturing processes in compliance with all applicable federal, state, and local environmental, health and safety laws and regulations.
Seller represents and warrants that it will use best efforts to prevent and minimize accidental release of hazardous substances or constituents to the environment, as well as prevent and minimize risk of endangerment to human health or the environment from any manufacturing process.
Seller represents and warrants that in the event of a release or spill, it will use best efforts to mitigate actual or potential impacts to the environment or human health.
30.5 Asbestos: Seller agrees to provide Goods which are free of asbestos, unless Seller has notified CCAT in advance and has obtained CCAT’s prior written consent to the use of asbestos. Seller agrees to include this clause in any subcontracts issued under this Agreement. If Seller intends to rely upon any drawing that requires or permits the use of asbestos, written notice to and approval by, the cognizant buyer must be obtained prior to use.
30.6 Use of Cadmium: Unless specifically defined as a requirement by CCAT engineering drawings or specifications, the use of cadmium plating or nickel cadmium plating is strictly prohibited in the manufacture of this Good. The use of cadmium plating or nickel cadmium plating is strictly prohibited on all tooling, fixturing, and test equipment that is used for manufacturing, assembly test, or material handling of the Good unless Seller has notified CCAT in advance and has obtained its prior written consent to such use. Approval shall not be granted where there is a potential for Seller’s product to come into contact with titanium containing items.
30.7 Ozone Depleting Substances (“ODS’S”): Seller agrees to comply with the U.S. Clear Air Act amendments of 1990 regarding warning statements on products manufactured with ODS’S, products containing ODS’S, and containers containing ODS’S. The need for warning statements, the specific wording of statements, and the placement of statements shall be in accord with requirements of the U.S. Environmental Protection Agency Implementing Regulations. Any usage of Class I ODS’S is subject to evaluation and approval of CCAT or the U.S. Government. For purchases of materials to be supplied to the U.S. Government, Seller shall also comply with any labeling requirements arising under the Federal Acquisition Regulations (FAR).
Seller will eliminate the use of Class I ODS’S to the maximum extent possible. Any usage of Class I ODS’S which cannot be eliminated is subject to evaluation and approval by CCAT or the U.S. Government. Seller will notify CCAT of any such use of Class I ODS’S which cannot be eliminated and will provide CCAT with any requested information that may be required in order to complete the evaluation and approval of the continued usage.
30.8 Waste Management: Seller shall be directly and solely responsible for managing all wastes associated with its manufacturing process. Seller shall manage any and all such wastes in compliance with applicable federal, state and local laws and regulations.
30.9 Waste Disposal Certifications: Seller agrees to generate and maintain detailed records certifying the proper disposal of all wastes associated with its manufacturing process, including wastes generated from the remediation or cleanup of any releases, leaks or spills. Such records will include the names and addresses of any treatment, storage or disposal facility receiving such wastes, the amount of waste received, and the dates of shipment and receipt. Seller shall maintain all records relating to environmental compliance and waste disposal.
30.10 Process Flow Diagram and Material Balance: Where Seller is relying upon CCAT engineering drawings to provide products, upon request of CCAT, Seller agrees to make available to Purchaser detailed process flow diagrams for its manufacturing processes, identifying unit quantities of raw material and associated waste. The process flow diagram will contain a material balance for the processes and will indicate the ultimate fate of each raw material or associated waste.
30.11 Hazardous Material Identification: Seller shall identify hazardous materials contained in items delivered to CCAT, provide Material Safety Data Sheets (“MSDS”) for such items and, where applicable, comply with the OSHA Hazard Communication Standard, 29 C.F.R. 1910.1200 (“HAZCOM”). For each such material identification Seller shall reference the stock or part number of the delivered item. Hazardous materials shall include, but are not limited to, materials embedded in a delivered product in such a manner as to present a potential for personal injury or harm or property damage in the course of normal use, repair, accidents or disposal. All MSDS forms and hazard warning labels required under this section and HAZCOM shall be provided to (CCATS Address Attn: Health & Safety Rep.)
30.12 Customs: Upon CCAT’s request, Seller will promptly provide CCAT with a statement of origin for all Goods and United States Customs documentation for Goods wholly or partially manufactured outside of the United States.
The United States of America prohibits the importation of Goods or Services from embargoed countries. No Goods or Services from these prohibited countries may be used directly or indirectly in the design, manufacture, test, or other methods of providing any of the items (whether Goods, Services, or otherwise) covered by this Agreement. The list of prohibited countries can change from time to time and it is Seller’s responsibility to ensure compliance with such list at all times. Current information can be obtained by accessing the Internet at URL http://www.opls.gov/TerList1.html.
31. EXPORT AND INTERNATIONAL TRAFFIC-IN-ARMS REGULATIONS
Seller agrees to comply with all export regulations and the international traffic-in-arms regulations including, but not limited to, Parts 122 entitled “Registration of Manufacturer and Exporter” and 130 entitled “Political Contributions, Fees and Commissions.”
With respect to defense articles and services furnished under this agreement, Seller certifies that it has not paid, offered or agreed to pay, and agrees that it shall not pay, offer or agree to pay, for the purpose of soliciting, promoting or otherwise to secure the sale of defense articles and services to or for the use of the armed forces of an international organization or non-U.S. country any (i) fees or commissions or (ii) political contribution (including any gift, rebate or payment of expenses) to anon-U.S. person or entity.
If Seller intends to conduct work for CCAT in a foreign country, including but not limited to the use of Seller’s own facility outside of the U.S. or the use of a foreign affiliate or unrelated subcontractor, Seller must provide advance written notification to CCAT. Seller is responsible for compliance with applicable export control laws and regulations and for obtaining all export control licenses required by law or requested by CCAT.APPENDIX I
Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”), and NASA FAR Supplement (“NFS”) TERMS & CONDITIONS
In interpreting and applying the following clauses, and as the context requires, the term “Contractor” shall mean Seller, the term “Contract” shall mean this Agreement, and the term “Government”, “Contracting Officer” and equivalent phrases shall mean CCAT or CCAT’s purchasing representative.
However, the terms “Government” and “Contracting Officer” do not change: (i) In the phrases “Government Property,” “Government-Furnished Property,” and “Government-Owned Property;” and (ii) in the Patent Rights clauses incorporated; (iii) and when a right, act, authorization or obligation can be granted or performed only by the Government or a Contracting Officer or his/her duly-authorized representative; and (iv) when title to property is to be transferred directly to the Government; and (v) when access to proprietary financial information or other proprietary data is required, except as otherwise provided in this Agreement; and (vi) where specifically modified and provided, further, that all references to the clause entitled “Disputes” shall be deemed deleted.
Clauses included herein may require submission of certificates in conformity. Unless previously submitted, Seller shall promptly furnish such certificates in accordance with the clause of this Agreement entitled “Certificates.” U.S. Government required representations and certifications made by Seller in connection with this Agreement, including all certifications submitted by Seller with its offer, are incorporated by reference. Seller shall furnish to CCAT (or directly to the Government upon request of CCAT) any certificate required to be furnished by any provision of this Agreement (including the FAR, DFARS, and NFS clauses) and any certificate required by any further law, ordinance, or regulation with respect to Seller’s compliance with the terms and provisions of laws, ordinances, or regulations. As used in this paragraph, the word “certificate” shall include any plan or course of action or record keeping function, as, for example, a small business subcontracting plan required by FAR.
The following FAR and FAR Supplement clauses (including alternates), as modified by Federal Acquisition Circulars and other agency Acquisition Circulars respectively, on the date of and required by the prime contract identified on the face of this Agreement, are incorporated by reference and made a material part of this Agreement. If there is a conflict between or among one or more clauses, or an addition to a clause after the effective date of this Agreement, the version of the clause applicable to this Agreement shall be the version of the clause in the prime contract.
FAR Clauses
Additional clauses may be required if specified on the Agreement or Contract.
If this Agreement identifies a Government prime contract number, the following FAR provisions apply:
52.202-1 Definitions
52.203-2 Certificate of Independent Price Determination
52.203-3 Gratuities
52.203-5 Covenant Against Contingent Fees (orders over $100,000 only)
52.203-6 Restrictions on Subcontractor Sales to the Government (orders over $100,000 only)
52.203-7 Anti-Kickback Procedures (excluding
paragraph (c)(1); applies to orders over
$100,000 only)
52.203-8 Cancellation, Rescission, and Recovery of
Funds for Illegal or Improper Activity
52.203-10 Price or Fee Adjustment for Illegal or
Improper Activity
52.203-11 Certification and Disclosure Regarding
Payments to Influence Certain Federal
Transactions (orders over $100,000 only)
52.203-12 Limitation on Payments to Influence Certain
Federal Transactions (orders over $100,000
only. Certifications and disclosures shall be
submitted to Buyer)
52.204-2 Security Requirements (if access to
classified information is involved)
52.204-3 Taxpayer Identification
52.204-4 Printed or Copied Double-Sided on Recycled Paper
52.204-5 Women-Owned Business
52.204-6 DUNS Number
52.204-7 Central Contractor Registration
52.207-4 Economic Purchase Quantity – Supplies
52.208-8 Helium Requirement Forecast & Required
Sources for Helium
52.209-5 Certification Regarding Debarment,
Suspension, proposed Debarment, and
Other Responsibility Matters
52.209-6 Protecting the Government’s Interest When
Subcontracting with Contractors Debarred,
Suspended, or Proposed for Debarment
52.211-5 Material Requirements
52.211-14 Notice of Priority Rating for National
Defense Use [Does not apply to foreign entities]
52.211-15 Defense Priority & Allocation Requirements
[Does not apply to foreign entities]
52.214-26 Audit and Records – Sealed Bidding (orders
over $10,000 only)
52.214-27 Price Reduction for Defective Cost or
Pricing Data – Modifications – Sealed Bidding
52.214-28 Subcontractor Cost or Pricing Data –
Modifications – Sealed Bidding
52.214-30 Annual Representations & Certifications – Sealed Bidding [Applicable to subcontractors who provide annual certifications and representations only]
52.215-2 Audit & Records – Negotiation
52.215-7 Annual Representations & Certifications – Negotiation [Applicable to subcontractors who provide annual certifications and representations only]
52.215-6 Place of Performance
52.215-8 Order of Precedence Uniform Contract Format
52.215-9 Changes or Additions to Make-Or-Buy Program
52.215-10 Price Reduction for Defective Cost or
Pricing Data
52.215-11 Price Reduction for Defective Cost or
Pricing Data – Modifications
52.215-12 Subcontractor Cost or Pricing Data
52.215-13 Subcontractor Cost or Pricing Data –
Modifications
52.215-14 Integrity of Unit Prices (excluding paragraph
(b), but including Alternate I)
52.215-15 Pension Adjustments & Asset Reversions [If
52.215-12 applies]
52.215-16 Facilities Capital Cost of Money [If 52.215
12 applies]
52.215-17 Waiver of Facilities Capital Cost of Money
[If 52.215-12 applies]
52.215-18 Reversion or Adjustment of Plans for
Postretirement benefits (PRB) Other than
Pensions [If 52.215-12 applies]
52.215-19 Notification of Ownership Changes
52.215-20 Requirements for Cost or Pricing Data or
Information Other Than Cost or Pricing Data
52.215-21 Requirements for Cost or Pricing Data or
Information Other than Cost or Pricing Data
– Modifications
52.216-7 Allowable Cost and Payment (cost
reimbursement orders only)
52.216-8 Fixed Fee (cost reimbursement orders only)
52.216-10 Incentive Fee (cost reimbursement orders
issued on an incentive fee basis only)
52.216-11 Cost Contract (cost-no fee orders only)
52.216-12 Cost Sharing Contract – No Fee (cost
sharing, no fee orders only)
52.216-15 Predetermined Indirect Cost Rates (cost
reimbursement orders only)
52.219-1 Small Business Program Representations
52.219-8 Utilization of Small Business Concerns
52.219-9 Small Business Subcontracting Plan
52.219-10 Incentive Subcontracting Program
52.219-16 Liquidated Damages – Subcontracting Plan
52.219-22 Small Disadvantaged Business Status
52.219-25 Small Disadvantaged Business Participation Program – Disadvantaged Status and Reporting
52.219-26 Small Disadvantaged Business Participation program – Incentive Subcontracting
52.222-1 Notice to the Government of Labor Disputes
52.222-2 Payment for Overtime Premiums
52.222-3 Convict Labor (E.O. 11755)
52.222-4 Contract Work Hours and Safety Standards Act – Overtime Compensation
52.222-20 Walsh-Healy Public Contracts Act
52.222-21 Prohibition of Segregated Facilities
52.222-22 Previous Contracts & Compliance Reports
52.222-24 Preaward On-Site Equal Opportunity Compliance Evaluation
52.222-25 Affirmative Action Compliance
52.222-26 Equal Opportunity
52.222-29 Notification of Visa Denial
52.222-35 Affirmative Action for Special Disabled Veterans and Veterans of the Vietnam Era
52.222-36 Affirmative Action for Workers With Disabilities
52.222-37 Employment Reports on Special Disabled and Veterans of the Vietnam Era
52.222-41 Service Contract Act of 1965, As Amended
52.223-3 Hazardous Material Identification and Material Safety Data
52.223-4 Recovered Material Certification
52.223-5 Pollution Prevention & Right-To-Know Information
52.223-6 Drug-Free Workplace
52.223-7 Notice of Radioactive Materials
52.223-9 Certification and Estimate of Percentage of Recovered Material Content for EPA Designated Items
52.223-11 Ozone-Depleting Substances
52.223-13 Certification of Toxic Chemical Release Reporting
52.223-14 Toxic Chemical Release Reporting
52.224-2 Privacy Act
52.225-1 Buy American Act – Balance of Payment Program – Supplies
52.225-2 Buy American Act – Balance of Payments Program Certificate
52.225-3 Buy American Act – North American Free Trade Agreement – Israel Trade Act – Balance of Payments Program
52.225-4 Buy American Act – North American Free Trade Agreement – Israel Trade Act – Balance of Payments Program Certificate
52.225-5 Trade Agreements
52.225-6 Trade Agreements Certificate
52.225-7 Waiver of Buy American Act for Civil Aircraft & Related Articles
52.225-8 Duty-Free Entry
52.225-13 Restrictions on Certain Foreign Purchases
52.225-15 Sanctioned European Union Country End Products
52.226-1 Utilization of Indian Organizations & Indian-Owned Economic Enterprises
52.226-2 Historically Black College or University and Minority Institution Representation
52.227-1 Authorization & Consent
52.227-2 Notice and Assistance Regarding Patent & Copyright Infringement
52.227-3 Patent Indemnity
52.227-6 Royalty Information
52.227-9 Refund of Royalties
52.227-10 Filing of Patent Applications – Classified
Subject Matter
52.227-11 Patent Rights – Retention by the Contractor
(Short Form)
52.227-12 Patent Rights – Retention by the Contractor
(Long Form)
52.227-13 Patent Rights – Acquisition by the
Government
52.227-14 Rights in Data – General
52.227-15 Representation of Limited Rights Data &
Restricted Rights Computer Software
52.227-16 Additional Data Requirements
52.227-17 Rights in Data – Special Works
52.227-18 Rights in Data – Existing Works
52.227-19 Commercial Computer Software –
Restricted Rights
52.227-20 Rights in Data – SBIR Program
52.227-21 Technical Data Declaration, Revision, and
Withholding of Payment – Major Systems
52.227-22 Major System – Minimum Rights
52.227-23 Rights to Proposal Data (Technical)
52.228-3 Worker’s Compensation Insurance
(Defense Base Act)
52.228-4 Workers’ Compensation & War-Hazard
Insurance Overseas
52.228-5 Insurance – Work on a Government
Installation
52.228-7 Insurance-Liability to Third Persons (cost
reimbursement orders only; applicable only
after written approval by the Government)
52.229-2 North Carolina State & Local Sales & Use
Tax
52.229-3 Federal, State & Local Taxes
52.229-4 Federal, State & Local Taxes
(Noncompetitive Contract)
52.229-5 Taxes – Contracts Performed in US
Possessions or Puerto Rico
52.229-6 Taxes – Foreign Fixed Price Contracts
52.229-7 Taxes – Fixed Price Contracts with Foreign
Governments
52.229-8 Taxes – Foreign Cost Reimbursement
Contracts
52.229-10 State of New Mexico Gross Receipts &
Compensating Tax
52.230-1 Cost Accounting Standards Notices and
Certification
52.230-2 Cost Accounting Standards
52.230-3 Disclosure and Consistency of Cost
Accounting Practices
52.230-4 Consistency in Cost Accounting Practices
52.230-5 Cost Accounting Standards – Educational Institution
52.230-6 Administration of Cost Accounting
Standards (if order exceeds $500,000)
52.230-16 Progress Payments (applies only if Specified in Order)
52.232-2 Payments Under Fixed-Price R&D Contracts
52.232-17 Interest
52.232-20 Limitation of Cost (cost reimbursement
orders only)
52.232-22 Limitation of Funds (incrementally funded
cost reimbursement orders only)
52.232-32 Performance-Based Payments
52.233-1 Disputes
52.234-1 Industrial Resources Developed Under
Defense Production Act Title III
52.237-8 Restriction on Severance Payments to
Foreign Nationals
52.237-10 Identification of Uncompensated Overtime
[If for professional or technical services]
52.242-2 Production Progress Reports
52.242-3 Penalties for Unallowable Costs
52.242-4 Certification of Final Indirect Costs[applicable to cost reimbursement subcontracts over $500,000]
52.242-13 Bankruptcy
52.242-15 Stop-Work Order. “90 days” is modified to
read “180 days.”
52.243-1 changes – Fixed Price – Alternate V
52.244-2 Subcontracts
52.244-5 Competition in Subcontracting
52.244-6 Subcontracts for Commercial Items &
Commercial Components
52.245-1 Property Records
52.245-2 Government Property (Fixed Price
Contracts)
52.245-3 Identification of Government Property
52.245-5 Government Property (Cost,
Reimbursement, Time & Material, and
Labor Hour contracts)
52.245-9 Use & Charges
52.245-17 Special Tooling
52.245-18 Special Test Equipment
52.245-19 Government Property Furnished “As-Is”
52.246-23 Limitation of Liability (subject to approval by
the Government)
52.246-24 Limitation of Liability – High-Value Items
(subject to approval by the Government)
52.246-25 Limitation of Liability – Services
52.247-1 Commercial Bill o Lading Notations (applies only where direst shipment to the government is specified)
52.247-63 Preference for US Flag Air Carriers
52.247-64 Preference for Privately Owned US Flag
Commercial Vessels
52.248-1 Value Engineering
52.249-2 Termination for Convenience of the Government (Fixed Price)
52.249-9 Default (Fixed Price R&D)
52.249-14 Excusable Delays
52.250-1 Indemnification Under Public Law 85-804
(prior written approval by the Government is
required)
52.253-1 Computer Generated Forms
DFARS Clauses
If this order identifies a Department of Defense prime contract number, the following DFARS provisions apply to this order:
Special Prohibition on Employment. “Government” is not changed in this clause. A new paragraph (f) has been added as follows “Seller shall not employ or allow to serve, as a director or consultant of Seller, any person in contravention of paragraph (b).” 252.203-7001(f) is changed to (g) and the flowdown provision at 252.203-7001(g) has been deleted.
252.201-7000 Contracting Officer’s Representative
252.203-7001 Prohibition on Person’s Convicted of Fraud or other Defense-Contract-Related Felonies
252.204-7000 Disclosure of Information
252.204-7003 Control of Government Personnel Work Product
252.204-7004 Central Contractor Registration Alternate A
252-206-7000 Domestic Source Restrictions
252.209-7000 Acquisitions from Subcontractors
Subject to On-Site Inspection under the
INF Treaty.” This clause does not
apply to subcontracts for the acquisition
of commercial items or supplies.
252.209-7001 Disclosure of Ownership or Control by
the Government of a Terrorist Country
252.209-7002 Disclosure of Ownership or Control by
a Foreign Government
252-209-7003 Compliance with Veterans’
Employment Reporting Requirements
Subcontracting With Firms That Are
Owned or Controlled by the
Government of a Terrorist Country
252.211-7000 Acquisition Streamlining (orders over
$1,000,000)
252.215-7000 Pricing Adjustments
252.215-7002 Cost Estimating System Requirements
252.217-7026 Identification of Sources of Supply
252.219-7003 Small, Small Disadvantaged and
Women-Owned Small Business
Subcontracting Plan (DOD Contracts)
252.219-7004 Small Business and Small
Disadvantaged Business
Subcontracting Plan (Test Program)
252.222-7000 Restrictions on Employment of
Personnel
252.222-7002 Compliance With Local Labor Laws
(Overseas)
252.223-7001 Hazard Warning Labels
252.223-7002 Safety Precautions for Ammunition and
Explosives
252.223-7003 Change in Place of Performance –
Ammunition & Explosives
252.223-7004 Drug-Free Work Force
252.223-7006 Prohibition on Storage and Disposal of
Toxic and Hazardous Materials
252.223-7007 Safeguarding Sensitive Conventional
Arms, Ammunition, and Explosives
252.225-7000 Buy American Act and Balance of
Payments Program Certificate
252.225-7001 Buy American Act and Balance of
Payments Program. “Government” is
not changed in this clause.
252.225-7002 Qualifying Country Sources as
Subcontractors
252.225-7003 Information For Duty-Free Entry
Evaluation
252.225-7005 Identification of Expenditures in the
Unites States
252.225-7006 Buy American Act-Trade Agreements
Act-Balance of Payments Program
Certificate
252.225-7007 Buy American Act-Trade Agreements
Act-Balance of Payments Program
252.225-7008 Supplies to be Accorded Duty Free
Entry
252.225-7009 Duty-Free Entry-Qualifying Country
Supplies (End Products and
Components). This clause applies to subcontracts involving supplies to be
accorded duty-free entry under the
prime contract. Paragraph (e) is
modified to read “Buyer will obtain from the Government duty-free entry of qualifying country supplies for which the shipping documents bear the notation specified in paragraph (f) of this clause.” No change to “Contracting Officer,” “Government,” “prime contractor,” or “prime contract” in paragraphs (c), (d), (i) or (k); except change “Contracting Officer administering the prime contract” and “contract administration office” in paragraph (i) to “Buyer’s Purchasing Representative” and “Contracting Officer” in paragraph (i)(10) to “Government.”
252.225-7010 Duty Free Entry Additional Provisions. Delete “administering the prime contract” after “Contracting Officer” and “contract or” before “subcontract” in paragraph (c). No change to “Government” in (c)(10), (e)(1) or (g)(1). No change to “Contracting Officer” in (d), but change “Contracting Officer” in (c)(10) to “Government.”
252.225-7011 Restriction on Acquisition of Supercomputers
252.225-7012 Preference for Certain Domestic Commodities
252.225-7014 Preference for Domestic Specialty Metals
252.225-7015 Preference for Domestic Hand or Measuring Tools
252.225-7016 Restriction on Acquisition of Ball or Roller Bearings
252.225-7018 Notice of Prohibition of Certain Controls with Foreign Entities for the Conduct of Ballistic Missile Defense
252.225-7019 Restriction on Acquisition of Anchor and mooring Chain
252.225-7020 Trade Agreements Certificate
252.252-7021 Trade Agreements
252.225-7022 Restrictions on Acquisition of Polyacrylonitrile Carbon Fiber
252.225-7024 Restriction on Acquisition of Night Vision Image Intensifier Tubes and Devices
252.225-7025 Restrictions on Acquisition of Forgings
252.225-7026 Reporting of Contract Performance Outside the United States. Paragraphs (a)(1), (b)(1) and (b)(3) are deleted. Paragraph (c) is deleted. Paragraphs (a)(2), (a)(3) and (b)(2) have been renumbered and revised as follows: (a)(1) “Subcontracts exceeding $500,000 that could be performed . . ..” (a)(2) “Subcontracts exceeding $25,000 that could be performed . . ..” (b)(1) delete everything after “known.” Paragraph (a)(3)(ii) is renumbered and changed to read “Seller’s” for “Offeror’s.” Delete “Offeror” in (b)(4).
252.225-7027 Restriction on Contingent Fees for Foreign Military Sales
252.225-7028 Exclusionary Policies and Practices of Foreign Governments
252.225-7029 Preference for United States or Canadian Air Circuit Breakers
252.225-7030 Restriction of Acquisition of Carbon, Alloy, and Armor Steel Plate
252.225-7031 Secondary Arab Boycott of Israel
252.225-7032 Waiver of United Kingdom Levies (applicable to subcontracts with U.K. firms)
252.225-7033 Restriction on Acquisition of 4 Ton Dolly Jacks
252.225-7035 Buy American Act-North American Free Trade Agreement Implementation Act-Balance of Payments Program Certificate
252.225-7036 Buy American Act-North American Free Trade Agreement Implementation Act-Balance of Payments Program
252.225-7037 Duty-Free Entry — Eligible End Products. Paragraph (e) is modified to read “Buyer will obtain from the Government duty-free entry certificates and afford such assistance as appropriate to obtain the duty-free entry of qualifying country supplies for which the shipping documents bear the notation specified in paragraph (f) of this clause.” No change to Contracting Officer,” “Government,” “prime contractor” or “prime contract” in paragraphs (c), (d), (I) or (k); except change “Contracting Officer administering the prime contract” and “contract administration office” in paragraph (I) to “Buyer’s Purchasing Representative” and “Contracting Officer” in paragraph (I)(10) to “Government.”
252.225-7038 Restriction on Acquisition of Aircraft Fuel Cells
252.225-7042 Authorization to Perform
252.225-7043 Antiterrorism/Force Protection Policy for Defense Contractors Outside the US
252.226-7001 Utilization of Indian Organizations and Indian-Owned Economic Enterprises
252.227-7013 Rights in Technical Data – Noncommercial Items. This clause is applicable when technical data, but not software, will be delivered to the Government by the prime contractor from the subcontractor. “[T]o the Contractor” has been deleted from (b)(1)(vi) and “contract or” and “thereunder” have been deleted from (b)(1)(ix). “Buyer or” is added before “Government” in (c) and (I). The second and third occurrences of “Contracting Officer” are changed to “Government” in (e)(4). “And the Government” is added after “parties” in (h)(1). In (h)(2) “sixty (60)” is changed to “fifty (50)” days. No substitutions for “Government” have been made.
252.227-7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation. This clause is applicable when software and software documentation will be delivered to the Government by the prime contractor from the subcontractor. “[T]o the Contractor” has been deleted from (b)(1)(iii) and “contract or” and “thereunder” have been deleted from (b)(1)(vi). “Buyer or” is added before “Government” in (i). The second and third occurrences of “Contracting Officer” have been changed to “Government” in (e)(4). “And the Government” is added after “parties” in (h)(1). In (h)(2) “sixty (60)” is changed to “fifty (50)” days. No substitutions for “Government” have been made.
252.227-7015 Technical Data – Commercial Items (In lieu of DFARS 252.227–7013 for Commercial Items). This clause is applicable only when commercial item (as defined in the FAR) technical data is deliverable to the Government by the prime from the subcontractor. No substitutions for “Contracting Officer” or “Government” have been made.
252.227-7016 Rights in Bid or Proposal Information. This clause applies when clause 252.227-7013 is used. No substitutions for “Government” or “Contracting Officer” are made.
252.227-7017 Identification and Assertion of Use, Release, or Disclosure Restrictions
252.227-7018 Rights in Noncommercial Technical Data and Computer Software-Small Business Innovative Research (SBIR) Program
252.227-7019 Validation of Asserted Restrictions — Computer Software.” This clause applies when clause 252.227-7014 is used. “Buyer’s Purchasing Representative” is substituted for “Contracting Officer” in paragraph (b), otherwise no substitutions are made for “Contracting Officer” or “Government.” In paragraphs (f)(5) and (f)(6), “the prime contract” is substituted for “this contract.”
252.227-7020 Rights in Special Works
252.227-7021 Rights in Data – Existing Works
252.227-7022 Government Rights – Unlimited
252.227-7023 Drawings and Other Data To Become Property of the Government
252.227-7024Notice and Approval of Restricted Designs
252.227-7025 Limitations on the Use or Disclosure of Government-furnished Information Marked with Restrictive Legends. This clause applies when clause 252.227-7013 or 252.227-7014 are used. No substitution is made for “Government.”
252.227-7026 Deferred Delivery of Technical Data or Computer Software
252.227-7027 Deferred Ordering of Technical Data or Computer Software
252.227-7028 Technical Data or Computer Software Previously Delivered to the Government
252.227-7030 Technical Data – Withholding of Payment.” This clause is applicable when clause is used. “Buyer” is substituted for “Contracting Officer” in paragraph (a). In paragraph (b), “or Buyer” is added after “Government.”
252.227-7032 Rights in Technical Data and Computer Software (Foreign)
252.227-7033 Rights in Shop Drawings
252.227-7034 Patents-Subcontracts
252.227-7036 Certification of Technical Data Conformity
252.227-7037 Validation of Restrictive Markings on Technical Data.” This clause applies when clause 252.227-7013, 252.227-7014 or 252.227-7015 are used. In paragraph (b), “Contractor’s” remains in the clause with a lower case “c.” In paragraphs (c) and (d)(1), “hereunder” is inserted after “subcontract.” In paragraphs (f) and (g)(2)(i), change “this contract” to “the prime contract,” and in paragraph (I), change “a contract” to “the prime contract.” No substitutions for “Government” or “Contracting Officer” are made.
252.227-7039 Patents – Reporting of Subject Inventions
252.228-7000 Reimbursement for War Hazard Losses
252.228-7001 Ground & Flight Risk
252.228-7002 Aircraft Flight Risk
252.228-7003 Capture and Detention
252.228-7005 Accident Reporting and Investigation – Aircraft, Missiles, and Space Launch Vehicles
252.229-7000 Invoices Exclusive of Taxes or Duties
252.229-7001 Tax Relief
252-229-7002 Customs Exemptions (Germany)
252.229-7003 Tax Exemptions (Italy)
252.229-7004 Status of Contractor As A Direct Contractor (Spain)
252.229-7005 Tax Exemptions (Spain)
252.229-7006 Value Added Tax Exclusion (United Kingdom)
252.229-7007 Verification of US Receipt of Goods
252.229-7008 Relief from Import Duty (United Kingdom)
252.231-7000 Supplemental Cost Principles
252.232-7003 Flexible Progress Payments (applies only if specified in order)
252.232-7004 DOD Progress Payment Rates (applies only if specified in order)
252.234-7000 Notice of Earned Value Management System
252.234-7001 Earned Value management System
252.235-7000 Indemnification Under 10 USC 2354- Fixed Price (Subject to prior government approval)
252.235-7001 Indemnification Under 10 USC 2354- Cost Reimbursement (Subject to prior government approval)
252.235-7003 Frequency Authorization
252.235-7005 Contractor-acquired Property
252.235-7006 Title to Contractor-acquired Property
252.242-7004 Material Management and Accounting System
252.242-7005 Cost/Schedule Status Report
252.242-7006 Cost/Schedule Status Report Plans
252.243-7000 Engineering Change Proposals
252.243-7001 Pricing of Contract Modifications
252.243-7002 Request for Equitable Adjustment
252.244-7000 Subcontracts For Commercial items and Commercial Components (DOD)
252.245-7001 Reports of Government Property
252.246-7001 Warranty of Data (if order requires technical data)
252.247-7007 Liability & Insurance
252.247-7022 Representation of Extent of Transportation by Sea
252.247-7023 Transportation of Supplies by Sea. “Prime contractor” in paragraph (a)(5) is changed to “Seller,” and “the prime contract” to “this order.” Paragraph (b), second sentence has been modified as to read “The Seller and its subcontractors may request that the Buyer obtain Government authorization for shipment . . ..” In paragraph (c) “Contracting Officer” is changed to “Buyer” in the second sentence. “45” is changed to “60” days in paragraph (c) and “30” to “25” in paragraph (d). In paragraph (d) “and the Division of National Cargo, Office of Market Development, Maritime Administration, U.S. Department of Transportation, Washington, DC 20590,” is deleted. In paragraph (f) “for the purposes of the Prompt Payment clause of this contract” is deleted.
252.247-7024 Notification of Transportation of Supplies by Sea. This clause applies to subcontracts when the prime’s original response to the solicitation stated that no transportation by sea was contemplated. Paragraph (a) has been modified to read “If, after the award of this order, the Seller learns that supplies . . . .” (This clause does not apply to subcontracts for the acquisition of commercial supplies or items.)
252.248-7000 Preparation of Value Engineering Proposals
252.249-7000 Special Termination Costs
252.249-7002 Notification of Anticipated Contract Terminations or Reductions. “Buyer” is substituted for “Contracting Officer” throughout. Paragraph (d)(1) is modified to read “Provide notice of the proposed termination or reduction to each subcontractor with a subcontract of $100,000 or more under the program . . . .”
NASA FAR Supplement Clauses
If this order identifies a NASA prime contract number, the following NASA FAR Supplement (NFS) clauses, in addition to the applicable FAR/DFARS clauses set forth above, are hereby incorporated by reference and made a part of this order. The clauses cited below shall be the clauses in effect on the date of, and as required by, Buyer’s prime contract identified on the face of this order.
18-52.204-75 Security Classification Requirements
18-52.204-76 Security Requirements for Unclassified Automated Information Resources
18-52.208-81 Restrictions on Printing and Duplicating
18-52.209-70 Product Removal from Qualified Products List
18-52.209-71 Limitation of Future Contracting
18-52.209-72 Composition of the Contractor
Packaging, Handling and Transportation
18-52.215-73 Small, Small Disadvantaged, and Women-owned Small Business Subcontracting Plan
18-52.215-78 Make or Buy Program Requirements
18-52.215-79 Price Adjustments for “Make-or-Buy” Changes
18-52.219-74 Use of Rural Area Small Businesses
18-52.219-75 Small Disadvantaged, and Women-owned Small Business Subcontracting Reporting
18-52.219-76 NASA 8 Percent Goal
18-52.223-70 Safety and Health
18-52.223-71 Frequency Authorization
18-52.223-73 Safety & Health Plan
18-52.223-74 Drug and Alcohol-Free Workforce
18-52.223-75 Major Breach of Safety or Security
18-52.225-8 Duty-Free Entry of Space Articles
18-52.225-70 Export Licenses
18-52.227-11 Patent Rights – Retention by the Contractor (Short Form)
18-52.227-14 Rights in Data – General
18-52.227-17 Rights in Data – Special Works
18-52.227-19 Commercial Computer Software – Restricted Rights
18-52.227-70 New Technology
18-52.227-71 Requests for Waiver of Rights to Inventions
18-52.227-72 Designation of New Technology Representative and Patent Representative
18-52.227-84 Patent Rights Clauses
18-52.227-85 Invention Reporting and Rights – Foreign
18-52.227-86 Commercial Computer Software – Licensing
18-52.227-87 Transfer of Technical Data Under Space Station International Agreement
18-52.228-72 Cross-Waiver of Liability for Space Shuttle Services
18-52.228-75 Minimum Insurance Coverage
18-52.228-76 Cross-Waiver of Liability for Space Station Services
18-52.228-78 Cross-Waiver of Liability for NASA Expendable Launch Vehicle (ELV) Launches
18-52.231-71 Determination of Compensation Reasonableness
18-52.232-82 Submission of Requests for Progress Payments
18-52.235-70 Center for Aerospace Information
18-52.237-71 Pension Portability
18-52.242-70 Technical Direction, where “COTR” shall be deemed to be Buyer’s Purchasing Representative
18-52.242-71 Travel Outside the U.S.
18-52.242-73 NASA Contractor Financial Management Reporting
18-52.243-70 Engineering Change Proposals.” “Contracting Officer” shall mean Buyer’s Purchasing Representative.
18-52.243-71 Shared Savings. “Contracting Officer” shall mean “Buyer’s Purchasing Representative”
18-52.244-70 Geographic Participation in the Aerospace Program
18-52.245-70 Contractor Requests for Government
Owned Equipment
18-52.245-71 Installation-Provided Government Property
18-52.245-72 Liability for Government Property Furnished for Repair or Other Services
18-52.245-73 Financial Reporting of NASA Property. Reports shall be made directly to Buyer.
18-52.245-74 Contractor – Accountable On-Site Government Property
18-52.245-75 Title to Equipment
18-52.245-76 List of Government-furnished Property
18-52.245-77 List of Installation-Provided Property and Services
18-52.245-79 Use of Government-Owned Property
18-52.245-80 Use of Government Production and Research Property on a No-Charge Basis. All requests shall be made through and approved by Buyer.
18-52.246-70 Mission Critical Space System Personnel Reliability Program
18-52.246-72 Material Inspection & Receiving Report
18-52.246-73 Human Space Flight Item
18-52.247-71 Protection of the Florida Manatee
INDEX
Definitions
1. Acceptance
2. Workmanship
3. Warranties
4. Inspection
5. Rejection
6. Infringement Indemnity
7. Excusable Delays and Relevant Work Conditions
8. Changes
9. Compliance With Laws
10. Gifts/Kickbacks
11. Contractor’s Status
12. Termination for Default
13. Termination for Convenience
14. Contractor’s Financial Status
15. Liens
16. Indemnification
17. Insurance
18. Title
19. State and Federal Laws and Regulations
20. Return of Blueprints, Drawings, Tracings and Photographs
21. Clean-Up
22. Coordination – Method of Carrying on the Work
23. Confidential Disclosure
24. Equipment, Tools, Materials and Labor
25. Industrial Security, Environment, Health and Safety
26. Interpretation
27. Partial Invalidity
28. Waiver
29. Dispute Resolution
30. Assignment of Performance
31. Assignment of Payment & Setoff
32. Captions
33. Cumulative Remedies
34. News Releases
35. Order of Precedence
Definitions
As used throughout this document, the following definitions apply unless otherwise specifically stated:
I. ” Buyer” means Connecticut Center for Advanced Technology, Inc. (CCAT).
II. “Order” means this contractual instrument including change notices, supplements, amendments, or modifications thereto.
III. “Contract” means the purchase order executed by CCAT and the Contractor.
IV. “Work” means all labor, materials, equipment and/or services to be furnished under this Order including, but not limited to, installation, repair and maintenance services. The term “Work” shall also include, without limitation, any effort specifically required by an Order such as design, engineering, maintenance, technical, construction, consulting or professional services.
V. “Contractor” means the person, firm or corporation entering into the contract with CCAT to perform and complete the work involved in this order.
VI. “Contract Coordinator” means the representative designated by Buyer as the primary contact for the Contractor.
VII. “Subcontractor” means a person, firm or corporation supplying labor and/or materials for work at the site of the project for, and under separate contract or agreement with the Contractor.
VIII. “Government” means the Government of the United States unless otherwise specified.
1. Acceptance
The provision by Contractor of any Work, the furnishing of any Work, the acceptance of any payment by Contractor, or any other conduct by Contractor which recognizes the existence of a contract shall constitute an unqualified acceptance by Contractor of these terms and conditions. Any terms and conditions proposed in Contractor’s acceptance of Buyer’s offer or in any acknowledgment, invoice, or other form of Contractor that add to, vary from, or conflict with these terms are hereby objected to. Any such proposed terms shall be void and these terms and conditions (l) shall constitute the complete and exclusive statement of the terms and conditions of the contract between the parties and apply to each shipment received by Buyer from Contractor and (2) may be modified only by written instrument executed by the authorized representatives of both parties.
2. Workmanship
The Contractor agrees to perform the Work in accordance with directions, drawings and specifications pertaining to the Work in the best and most workmanlike manner employing qualified, careful and efficient workers. Contractor shall not employ on the Work any unfit person or anyone not skilled in the work assigned to him/her. Unless otherwise specified, all materials and equipment furnished hereunder shall be new.
3. Warranties
A. In addition to any other express or implied warranties, Contractor warrants to Buyer, its successors, assigns, customers, and users of Work sold by Buyer that all Work shall be (i) of the grade and quality specified, (ii) free from defects in material and workmanship; (iii) with regard to Work designed by Contractor, free from defects in design; (iv) suitable for the purposes intended whether expressed or reasonably implied; (v) in compliance with all applicable specifications, drawings, and performance requirements; and (vi) with regard to Work free from liens or encumbrances on title. Delivery, inspection, test, acceptance or use of or payment for the Work shall not affect Contractor’s obligation under this warranty. Contractor agrees to correct defects in the Work performed or replace any Work not conforming to the foregoing warranty promptly, without expense to Buyer, when notified of such nonconformity by Buyer, provided Buyer elects to provide Contractor with the opportunity to do so. All deliveries of corrected or replaced Work made pursuant to Buyer’s election shall be accompanied by a written notice specifying that such Work are corrections or replacements. In the event that Contractor is directed to correct defects in the Work performed or replace non-conforming Work and fails to do so promptly, Buyer, after reasonable notice to Contractor, shall have the right to correct or replace such Work and charge Contractor for the cost incurred by Buyer in doing so.
B. Contractor warrants that the prices for the Work sold to Buyer are not less favorable than those currently extended to any other customer for the same or similar Work in similar quantities. In the event Contractor reduces its price for such Work during the term of an Order, Contractor agrees to reduce the prices hereof correspondingly. Contractor warrants that prices shown on an Order shall be complete, and no additional charges of any type shall be added without Buyer’s express written consent.
4. Inspection
All Work shall be subject to inspection, examination, and test by personnel employed at or designated by Buyer at any and all times during the performance of this Order and at any and all places where such Work is performed.
5. Rejection
Notwithstanding prior inspection, payment for, or use of Work furnished under this Order, Buyer shall have the right, exercisable within six (6) months after first use of the Work by Buyer, to reject any of such Work which does not conform to the requirements of the Order. Upon notice of such rejection, Contractor shall promptly repair or replace the defective Work at its expense, and shall be liable to Buyer for any consequential or incidental damage resulting from said defective work or the repairing thereof. Should Buyer and Contractor agree in writing that defective work shall be repaired by Buyer at Contractor’s expense, all purchase order terms and conditions herein shall remain in full force and effect as to that Work furnished by Contractor. Buyer’s rights under this Paragraph 5 shall be in addition to, and shall not be deemed to diminish, its rights under Paragraph 3 “Warranties” of the Order.
6. Infringement Indemnity
A. As to the Work provided hereunder, Contractor shall be liable for and shall indemnify and save Buyer and each subsequent purchaser or user thereof harmless from any infringement claim, suit or action, including proceedings under 28 U.S.C. Section 1498, alleging that the manufacture, use or sale of such Work infringes any patent, trademark, copyright, or other proprietary right; except, however, that when such alleged infringement arises as a necessary consequence of Contractor’s compliance with specifications or designs furnished by Buyer which describe that aspect of the Work on which such alleged infringement is based, then Buyer shall be liable and shall save Contractor harmless therefrom, but this exception shall not apply if the subject matter giving rise to the claim for infringement either (i) was derived from, or selected by Contractor, or (ii) relates to materials of compositions, or processes relating to materials or compositions.
B. The party against whom such infringement claim is made, or such suit or action is commenced, shall promptly notify the other party in writing. The party required to indemnify under the provisions of Paragraph (a) hereof shall promptly assume and diligently conduct the entire defense of such alleged infringement at its own expense, provided that such party receives prompt written notice of such claim, suit, or action if such is commenced against the other party. Insofar as its interests are affected, the other party shall have the right, at its own expense and without releasing any obligation, liability, or undertaking of the party required to indemnify, to: (i) cooperate in the defense of such claim, and (ii) with permission of the court, to intervene in any such suit or action.
C. Notwithstanding any of the above provisions, Buyer shall have the further right, at its own election, to supersede Contractor in the defense of any such alleged infringement and thereafter to assume and conduct the same according to Buyer’s sole discretion, in which event Contractor shall be released from any obligation arising from such infringement claim, suit or action under this infringement indemnity clause. Further, Contractor, if requested in writing by Buyer, shall cooperate with Buyer in Buyer’s defense of any alleged infringement claim.
7. Excusable Delays and Relevant Work Conditions
A. Both Buyer and the Contractor shall be excused for any failure or delay in the performance of its obligations hereunder due to acts of God or of the public enemy, compliance in good faith with any applicable Government regulation or order whether or not proven to be invalid, fires, riots, labor disputes, unusually severe weather or any other cause beyond the reasonable control of the party affected. Should the progress or completion of the several portions or whole of the Work be delayed as a result of one or more of the excusable delays set forth herein for which the Contractor is not responsible, and Buyer does not elect to terminate the Order as otherwise provided for herein, or should the Contractor be delayed in the prosecution of the Work through the fault of any other Contractor employed by Buyer, or because of Buyer, the time of completion of such portion or portions of the Work directly affected by such delay shall be extended for a period equivalent to the time lost, which period shall be determined by Buyer. Contractor shall give Buyer prompt notice in writing whenever it appears that any such cause is delaying or is likely to delay the completion of the Work and no such extension shall be given unless the Contractor, within forty-eight (48) hours of the occurrence of the cause of any such delay, notifies Buyer in writing that such cause has occurred and makes a written application for the specific extension of time claimed to be due to such cause. The Contractor shall have no claim against Buyer for damage, loss, expense, or other compensation on account of any such delays nor shall Buyer be held responsible for any damage, loss or expense incurred by the Contractor through the fault of any other Contractor employed by Buyer.
B. The Contractor represents hereby that it has had an opportunity to examine, has examined, and has received copies of all of the attachments referred to herein and has fully acquainted itself with obstructions, actual levels, excavating, filling in, and all other conditions relevant to the Work, the site of the Work, and its surroundings, and assumes the risk of any variances in said attachments; that it has made all investigations essential to full understanding of the difficulties which may be encountered in performing the Work; and that anything in any of the said Attachments or in any representations, statements or information made or furnished by Buyer notwithstanding, the Contractor will, regardless of any such conditions relevant to the Work, satisfactorily complete the Work in accordance with the provisions of this Order.
8. Changes
A. Buyer may, at any time and without notice to sureties (if any), unilaterally make changes within the general scope of an Order, including, but not limited to, changes to any one or more of the following: (i) place of Work performance, (ii) any drawings, designs, or specifications, (iii) the statement of Work, (iv) the method or manner of performance of the Work, (v) Buyer-furnished property, facilities, equipment, materials, or Work, or (vi) the schedule of performance of the Work. Contractor shall perform any changes ordered by Buyer.
B. Subject to Paragraph (c) hereof, if any change under this clause causes an increase or decrease in the cost of or the time required for performance, an equitable adjustment shall be made in the cost/price or delivery schedule or both, and the order shall be modified in writing accordingly. Any claim by Contractor for adjustment under this clause, however, must be submitted in writing in the form of a complete change proposal, fully supported by factual information, to Buyer’s Purchasing Department not later than fifteen (15) business days after the date of receipt by Contractor of the change order, or within such extension of the fifteen day period as Buyer, in its sole discretion, may grant in writing at Contractor’s request, except that no claim for equitable adjustment hereunder shall be allowed if it is asserted after final payment of the order.
C. Notwithstanding the pendency of any claim for an adjustment submitted by Contractor, Contractor shall diligently proceed with the performance of the Order, as directed by Buyer, and nothing herein shall be construed as relieving Contractor of its obligations to so perform, including, but not limited to, the failure of the parties to agree upon Contractor’s entitlement to, or the amount or nature of, any such adjustment.
D. No change will be binding on Buyer unless issued in writing by an authorized representative of Buyer. Any other written or oral order will be treated as a change if and only if, prior to performance of such order, Contractor gives Buyer written notice stating the date, circumstances, and source of the order and stating that Contractor regards such order as a change.
E. Where the cost of property made obsolete or excess as a result of a change is included in Contractor’s claim for adjustment, Buyer shall have the right to prescribe the manner of disposition of such property.
9. Compliance With Laws
In the performance of this Order, Contractor shall comply with all applicable federal, state and local laws, ordinances, rules, and regulations, including but not limited to those relating to pollution control, waste disposal, hazardous substances, and protection of the environment and workers and Contractor shall hold Buyer harmless from and against any and all liability due to the Contractor’s failure to so comply. Contractor hereby certifies that the Work called for by this Order has been or will be performed in compliance with the Fair Labor Standards Act of 1938 (29 U.S. Code 201-219) and, insofar as applicable to this Order, the Walsh-Healey Public Contracts Act (41 U.S. Code 35-45) and the Work Hours Act of 1962 (40 U.S. Code 327-332), and any amendments thereto, as well as with the provisions of any other federal or state law with respect to labor relations, minimum wages and hours of employment, now in effect or hereafter enacted, and with any and all rules and regulations issued under each and every such act. Contractor agrees that this certification may be considered as the certificate contemplated by the amendment dated October 26, 1949 to the Fair Labor Standards Act of 1938.
10. Gifts/Kickbacks
Buyer’s policy is that its employees may not accept gifts, entertainment, or other gratuities (collectively called “kickbacks”) from anyone seeking a contract with or purchase from Buyer (in whatever form including purchase orders), other than customary business courtesies that are reasonable in frequency and value. Contractor represents and warrants to Buyer that neither Contractor (including any of its officers, partners, employees, or agents) nor any subcontractor below Contractor or subcontractor employee has or will provide(d) or attempt(ed) to provide or offer(ed) to provide any kickback; or
solicit(ed), accept(ed), or attempt(ed) to accept any kickback; or include(d), directly or indirectly, the amount of any kickback in the price applicable to this Order or in the subcontract price charged by any subcontractor to a higher tier subcontractor.
11. Contractor’s Status
The relationship of the Contractor to Buyer shall be that of independent contractor and nothing herein contained shall be construed as creating any other relationship. Contractor acknowledges and agrees that Contractor’s employees assigned to perform the Work are solely and exclusively employees of the Contractor and that Buyer has awarded this Order to Contractor based upon this representation and agreement.
12. TERMINATION FOR DEFAULT
A. Buyer may, by written notice, terminate the whole or any part of an Order for default in either of the following circumstances:
i. if Contractor fails to perform the Work by the specified delivery or completion date or any extension thereof granted by Buyer in writing; or
ii. if Contractor fails to perform any of the other provisions of an Order or so fails to make progress as to endanger performance of the order in accordance with its terms and Contractor does not cure such failure to Buyer’s reasonable satisfaction within a period of ten (10) business days after receipt of notice from Buyer specifying such failure.
B. In the event Buyer terminates an Order in whole or in part as provided in this provision, Buyer may procure, upon such terms and in such manner as Buyer may deem appropriate, Work similar to that so terminated, and Contractor shall be liable to Buyer for any excess costs for such similar Work, provided, however, that Contractor shall continue the performance of the order to the extent not terminated under the provisions of this clause.
C. If the failure to perform is caused by the default of a vendor or subcontractor to Contractor, and if such default arises out of causes beyond the control of both the Contractor and the vendor or subcontractor, and without the fault or negligence of either of them, Contractor shall not be liable for any excess costs for failure to perform, unless the Work to be furnished by the vendor or subcontractor were obtainable from other sources in sufficient time to permit Contractor to meet the required delivery schedule. No cause shall constitute a basis for excusable delay unless Contractor has notified Buyer in writing of the existence of such cause within ten (10) business days from the beginning thereof.
D. If an Order is terminated under this clause, Buyer, in addition to any other rights provided in this Section, may require Contractor to transfer title and deliver any completed or partially completed materials, parts, components, tools, dies, jigs, fixtures, plans, specifications, drawings, information, and contract rights (hereinafter called “contract materials”) as the Contractor has specifically produced or specifically acquired for the performance of such part of the Order as has been terminated; and the Contractor shall upon direction of Buyer, protect and preserve property in the possession of Contractor in which Buyer has an interest. Payment for completed Work delivered or rendered to and accepted by Buyer shall be at the Order price. Payment for contract materials incident to the Work delivered to and accepted by Buyer shall be equal to the materials reasonable value.
E. If, after notice of termination of this contract under this provision, it is determined for any reason that Contractor was not in default, or that the default was excusable, the rights and obligations of the parties shall be the same as if the notice of termination had been issued pursuant to Paragraph 13 entitled “Termination for Convenience.”
F. As used in Paragraph (b) of this clause, the terms “subcontractor” and “sub-contractors” mean subcontractor(s) at any tier and the terms “vendor” and “vendors” mean vendor(s) at any tier.
13. TERMINATION FOR CONVENIENCE
A. Buyer may, by written notice, terminate performance or work under an order in whole or from time to time in part by written notice of termination, whereupon the Contractor will stop work on the date and to the extent specified in the notice and terminate all orders and subcontracts to the extent they relate to the terminated work.
B. Upon receipt of a notice of termination and except as otherwise directed by Buyer, Contractor will:
i. promptly advise the Buyer of the quantities of applicable work and material on hand or purchased prior to termination and the most favorable disposition that the Contractor can make thereof;.
ii. comply with the Buyer’s instruction regarding transfer and disposition of title to the possession of such work and material; and
iii. submit all claims resulting from such termination within sixty (60) calendar days after receipt of such notice of termination the Contractor will submit all its claims resulting from such termination.
C. Buyer will have the right to check such claims at any reasonable time or times by inspecting and auditing records, work, or material of the Contractor relating to the order. Contractor shall keep these records for one year after final settlement without cost to Buyer.
D. Buyer will pay the Contractor, without duplication, the order price for finished work previously delivered and accepted by the Buyer, the reasonable value or cost (whichever is higher) of work in process and raw material allocable to the terminated work based on any audit the Buyer may conduct and on generally accepted accounting principles less the reasonable value or cost (whichever is higher) of any items used or sold by the Contractor or Contractor’s subcontractor.
E. Buyer will not make payments for finished work, work in process, or raw material fabricated or procured by the Contractor in excess of any order. Notwithstanding the above, payments made under this clause shall not exceed the aggregate price specified in the order plus payments otherwise made or to be made.
F. Upon failure of Contractor to submit the Contractor’s termination claim within the time allowed, Buyer may determine, on the basis of information available to Buyer, the amount, if any due to Contractor in respect to the termination.
G. Payment made under this clause will constitute the Buyer’s only liability in the event this order is terminated hereunder.
14. Contractor’s Financial Status
Buyer may terminate an Order for default in the event of:
i. the appointment, with or without Contractor’s consent, of any trustee, liquidator, assignee, custodian, sequestrator or receiver for any substantial portion of Contractor’s assets;
ii. proceedings, voluntary or involuntary, in bankruptcy or insolvency, by or against Contractor;
iii. Contractor’s admission of inability to pay its debts generally as they come due.
15. Liens
A. Contractor agrees to keep Buyer’s property free and clear of all liens, claims, and encumbrances arising from the performance of this Order by the Contractor or its subcontractors. Upon completion and final acceptance by Buyer of the Work, or upon termination of this order, the amount due Contractor will be paid after Contractor shall have furnished Buyer with a complete release, if required, of all claims against Buyer arising under and by virtue of this Order, and a complete release, if required, of all liens of the Contractor, its subcontractors, and materialmen.
B. The Contractor shall include a provision satisfying the requirements of this Paragraph as a part of any and all subcontracts entered into for the Work or any portion thereof.
16. Indemnification
A. To the fullest extent permitted by law, Contractor covenants and agrees at all times to protect, defend, hold harmless and indemnify Buyer and its affiliated companies and subsidiaries and their respective directors, officers, employees, successors and assigns from and against any and all claims for loss, costs (including reasonable attorney’s fees), damage or injury and from and against any suits, actions, or legal proceedings of any kind brought against or sustained by Buyer, or such other parties by or on account of any person, persons, or entities, or on account of any personal injuries or property damage received or sustained by any person, persons, or entities including Buyer in any manner (howsoever arising, including but not limited to, by reason of negligence, breach of warranty, defect in design, material, workmanship, services, or otherwise, and even though strict liability be claimed), directly or indirectly caused by, incident to, or growing out of defects in the design, manufacture or materials used in the goods, or negligence in the manufacture or installation of the goods or any other Work or the breach of any warranties contained in this agreement.
B. Notwithstanding the above provision, Buyer shall have the right, at its own election, and without releasing any obligation, liability, or undertaking of Contractor to indemnify Buyer hereunder, to:
i. cooperate in the defense of such claim,
ii. with permission of the court, to intervene in any such suit or action and
iii. supersede Contractor in the defense of any such claims, suits actions, or legal proceedings.
C. Contractor further agrees to:
i. promptly pay the settlement or judgment pertaining to all such claims, suits, actions or legal proceedings; to hold harmless and indemnify Buyer therefrom; and
ii. promptly pay the costs of attorneys’ fees or other expenses incurred in any such defense either by Contractor and/or Buyer, and to hold harmless and indemnify Buyer therefrom.
D. Contractor agrees that in any instance where such claims in any way affect Buyer’s interests under an Order or otherwise, Contractor shall not consummate any settlement without Buyer’s prior written consent.
E. Contractor’s covenant of indemnity herein shall continue in full force and effect notwithstanding the termination of an Order.
17. Insurance
Contractor agrees to carry as a minimum the following insurance in such form and with such carriers as are satisfactory to Buyer covering the Work hereof:
A. Workmen’s Compensation and Employer’s Liability Insurance in an amount sufficient by virtue of the laws of the state in which the Work or any portion of the Work is performed.
B. General Liability Insurance in which the limits of liability for injuries, including accidental death, shall be $1,000,000 for any one occurrence.
C. General Liability Insurance in which the limits of liability of property damage shall be $1,000,000 for any one occurrence.
D. Automobile Liability Insurance in which the limit of liability for injuries, including accidental death, shall be $1,000,000 for any one occurrence.
E. Automobile Liability Insurance in which the limit of liability for all property damage shall be $1,000,000 for any one occurrence.
F. Contractual Liability Insurance to cover the liabilities herein assumed by the Contractor, with limits of liability not less than those above.
G. Buyer, at its option and for its sole benefit, may during the progress of the Work, procure and maintain fire insurance (including extended coverage) covering all the Work completed and in the course of construction at the site of the Work and all materials which are delivered and stored at the site and which will necessarily be incorporated in the Work but excluding all items of property, equipment, machinery and apparatus, owned by the Contractor, which are used in or are incident to the construction of the Work but do not become a part thereof. Notwithstanding that Buyer may elect to procure and maintain fire insurance as aforesaid covering certain loss or damage, as more fully set forth in said fire and extended coverage insurance policies, Buyer shall have the right to recover from the Contractor for any such loss or damage caused by breach of contract, negligence or bad faith of Contractor or Subcontractors. As to items of property, equipment, machinery and apparatus owned by the Contractor which are used in or are incident to the construction of the Work but do not become a part thereof, it shall be the Contractor’s duty to maintain adequate fire insurance including extended coverage. Except as provided in Paragraph 13 “Termination for Convenience”, if after loss under said fire and extended coverage policies, no special agreement between the parties is entered into, replacement of damage work shall be ordered and executed as provided for in Paragraph 8 “Changes”.
H. The Contractor and any Subcontractor hereunder agrees in the performance of the Work (i) to comply with all applicable fire safety requirements of National Fire Protective Association, (ii) that it will adhere to all Federal, state and local laws pertaining to fire protection, and (iii) that it will abide and be governed by the rules and regulations pertaining to fire and plant protection prescribed by Buyer.
I. All insurance policies shall be issued by companies authorized to do business under the laws of the State of Connecticut, shall be in form satisfactory to Buyer, shall contain a provision prohibiting cancellation except upon at least ten (10) days prior written notice to Buyer and shall contain a complete waiver by the insurer of subrogation against Buyer. All such insurance policies will be primary in the event of a loss arising out of the Contractor’s performance and shall provide that where there is more than one insured, the policy will operate, except for the limits of liability, as if there were a separate policy covering each insured. Contractor agrees that it will, at Buyer’s request, name Buyer as an additional insured to all or some of Contractor’s Liability Insurance Policies. In the event Buyer is named as an additional insured, certified copies of said policies or certificates evidencing such insurance naming Buyer as an additional insured shall be filed with Buyer before Work is started.
J. The Contractor agrees to insert in all subcontracts issued hereunder, provisions which shall conform substantially to the language of this Paragraph, including this Paragraph (J).
18. Title
The title to all Work completed and in the course of construction or installation at the site and of all materials and equipment which are delivered and stored at the site and which will necessarily be incorporated in the Work, as between Buyer and the Contractor or its subcontractors, shall be in Buyer; provided, however, nothing in this Paragraph shall be construed as affecting Buyer’s right to accept or reject the Work in accordance with the Paragraph hereof entitled “Rejection”. Title to any materials, tooling, and equipment furnished by Buyer to Contractor shall remain in Buyer and shall be used by Contractor only in connection with Work connected with an Order. Title to and risk of loss of all other materials, equipment and tools delivered to the site shall be and remain in the Contractor or its subcontractors.
19. State and Federal Laws and Regulations
In the execution of this Order, the Contractor agrees to comply with and give all stipulations and representations required by applicable state and Federal laws, and further agrees to include a similar statement to the foregoing effect as a part of all subcontracts entered into by the Contractor in connection with this Order. Without limiting the generality of the foregoing, if the Contractor is a non-resident contractor, Contractor shall comply with the bond or deposit requirements of the Commissioner of Revenue Services, Conn. General Statutes Section 12-230, and, if Contractor is a non-resident engaging in construction activity in Connecticut, Contractor shall comply with the bonding requirements of the Administrator of Unemployment Compensation, Conn. General Statutes Section 31-225 (i). In addition, Contractor agrees to comply with all applicable rules and regulations of Buyer and shall similarly require compliance with said rules and regulations by any of its subcontractors. This order and the performance hereof, are expressly subject to all the rules, regulations and requirements of the United States Government and of Buyer, and the Contractor recognizes that Buyer is engaged in the performance of contracts with the United States Government by which contracts Buyer is required to meet various requirements as to the exclusion of unauthorized persons from the proximity of operations carried on pursuant to such contracts and as to the maintenance of the secrecy and confidential character of such operations in accordance with the security classification indicated by the United States Government. The Contractor, therefore, agrees that all Work performed hereunder shall be performed by the Contractor, its employees, vendors and subcontractors expressly in accordance with all applicable rules, regulations and requirements of such Government, and of Buyer with regard to such matters and specifically subject to the requirements heretofore or hereafter established pursuant to the Security Agreement between the Department of Defense and CCAT.
20. Return of Blueprints, Drawings, Tracings and Photographs
Upon completion or termination of this Order, the Contractor as directed by Buyer shall deliver or make other disposition of all blueprints, drawings and photographs, together with all original tracings and negatives of photographs furnished to, or produced by, the Contractor in connection with the Work to be performed hereunder.
21. Clean-Up
Upon completion of Work, Contractor shall remove all tools, scaffolding, equipment and materials not the property of Buyer. Upon completion of Work, the Contractor shall leave the Work and premises in a clean, neat and workmanlike condition satisfactory to the Contract Coordinator. If, upon completion of the project, the Contract Coordinator determines that Contractor has not left the premises in a clean, neat and workmanlike condition, then Contractor will have seven days by which it must complete clean-up satisfactory to the Contract Coordinator. If Contractor does not clean accordingly, then it agrees to reimburse Buyer for any costs associated with clean-up that Buyer incurs.
22. Coordination – Method of Carrying on the Work
A. Noninterference: The Contractor shall consult with the Contract Coordinator as to the methods of carrying on the Work so as not to interfere unduly with Buyer’s operations, as well as to space available for storage of materials and location of the facilities, places of access to the work and other similar needs, all to provide the best possible reasonable arrangement to meet the requirements of Buyer.
B. Notice of Impairment: When it becomes necessary to temporarily interrupt or shut down any utilities or other Work, the Contract Coordinator approval shall be requested at least 72 hours prior to such action. The Contractor will notify all affected subcontractors sufficiently in advance to permit schedule adjustments for minimum inconvenience. No interruption or impairment of Work is to occur without prior written approval granted by Buyer.
23. Confidential Disclosure
A. Technical or business information, including HIPPA-protected information, and ideas disclosed to Contractor in connection with an Order at any time in any form (including, but not limited to, orally, visually by examination of the features of parts, equipment, tools, gauges, patterns, or other items furnished or disclosed to Contractor by Buyer, or in designs, processes, drawings, specifications, reports, data, tools, gauges or goods provided hereunder) which Buyer considers Proprietary and so indicates to Contractor at the time of disclosure or within a reasonable time thereafter (“Proprietary Information”) are entrusted to Contractor solely for use on behalf of Buyer in the performance of Buyer’s Order. Contractor shall keep Proprietary Information in confidence and shall neither use (other than in performance of Buyer’s orders) nor disclose such Proprietary Information except as authorized in writing by Buyer. On completion of an order, Contractor shall deliver to Buyer or destroy to Buyer’s satisfaction all material (including but not limited to, documents, software, scrap, tools and goods which may be defective, partially completed, or completed) embodying Proprietary Information, unless otherwise instructed by Buyer. Any such material disposed of by Contractor at any time other than by delivery to Buyer shall be altered to such an extent that prevents discovery of any Proprietary Information embodied therein. However, Contractor shall not be liable for use or disclosure of any Proprietary Information which is shown by clear and convincing proof to either have been known to the Contractor at the time of receipt from Buyer, or to be in the public domain or to subsequently come into the public domain through no fault of the Contractor.
B. Information Developed by Contractor – Information and ideas developed by Contractor under or in the course of performing a Order for Buyer shall be owned by and disclosed to Buyer and, if Buyer so indicates to Contractor, such information and ideas shall be treated as Proprietary Information in accordance with the provisions of Paragraph (a) hereof.
C. Buyer shall have the right to audit all pertinent books and records of Contractor in order to verify compliance with this Section.
24. Equipment, Tools, Materials and Labor
Unless otherwise stipulated, the Contractor shall provide all equipment, tools, materials, labor, transportation, and other facilities necessary for the execution and completion of the work.
25. Industrial Security, Environment, Health and Safety
A. All Contractors, Subcontractors, and their employees shall be subject to and shall at all times conform to Industrial Security, Environment, Health and Safety rules and requirements for the protection of the plant, materials, equipment and personnel. Any violations or disregard of these rules may be cause for removal from or denial of access to Buyer property.
B. Employees of Contractors and Subcontractors requesting admission must be U.S. citizens or resident aliens, and be identified by either the Contractor’s or Subcontractor’s superintendent, foreman, timekeeper, or other supervisory personnel. Contractor’s employees must present acceptable proof of birth and U.S. Citizenship. (In the case of resident aliens, an Alien Registration Card must be presented and a Contractor Registration Form must be filled out). This can be accomplished at the “2R” lobby weekdays between the hours of 8:00 AM and 3:00 PM. Acceptable documents include: a birth certificate (photocopies not acceptable), US Passport, Military Separation Paper (DD214), Certificate of Naturalization, Certificate of Citizenship, or Alien Registration Card or a Driver’s License with a social security card.
C. The Contractor’s and Subcontractor’s employees must remain in the immediate work area.
D. The Contractor agrees not to reveal, and to instruct his employees not to reveal, the specific nature or any details of any of the work being performed at this facility.
E. All property brought onto Buyer’s premises will be subject to Guard inspection upon entering and leaving Buyer’s premises. Firearms may not be brought onto Buyer’s property.
F. Contractor employees admitted to Buyer’s property must conduct themselves in a safe and orderly manner. Fighting or engaging in horseplay, being under the influence of liquor or drugs, or bringing liquor or drugs onto Buyer’s property, gambling, soliciting, stealing, taking pictures or bringing cameras anywhere on Buyer’s property, the use or possession of AM/FM or two-way radios, or tape recorders or tape players, and any immoral or otherwise undesirable conduct will not be permitted.
G. The operation of Contractor vehicles or private vehicles by Contractor’s employees on Buyer’s property shall conform to posted regulations and safe driving practices. All vehicles brought onto Buyer’s property must be registered and road worthy. Operators must have a valid driver’s license appropriate for the type of vehicle being operated. Gasoline-powered equipment of any kind is not permitted in any building on Buyer’s property without approval of Buyer.
H. All applicable Federal Regulations and Codes, National Fire Codes, and OSHA Regulations, State of Connecticut and local laws, ordinances and codes, as well as Buyer’s rules, must be strictly adhered to, and adequate safety precautions taken to protect persons, property, and the environment. Aisles, passageways, alleyways, driveways, entrances or exits and access to fire protection equipment must be kept unobstructed at all times.
I. Buyer’s approval must be obtained for the storage and handling of all flammable liquids and gases, which must be kept to a minimum at all times. Flammable liquids having a flash point below 100 degrees Fahrenheit (gasoline, alcohol, lacquer thinner, etc.) must be dispensed from U.L. listed/FM approved safety cans at all times and must not be used or stored near heat or open flame. Flammable liquids stored in drums or tanks must be arranged and protected in accordance with the National Fire Codes.
J. All containers of any liquid or hazardous material must be provided with appropriate warning labels and description of the contents.
K. Prior to the commencement of Work, the Contractor shall submit a list of hazardous (flammable, corrosive, reactive, toxic, or radioactive) materials and their intended uses to Buyer for their approval. Materials shall be identified by their Chemical Abstract Services (CAS) number.
L. No hazardous materials or chemicals are to be delivered or brought to Buyer’s property until reviewed by the Contract Coordinator. All hazardous materials are to be delivered in unopened original containers with all required labeling intact and meeting OSHA standards. No hazardous materials are to be transferred to other containers, unless use of the materials makes it necessary to change containers. If required to change containers, a label is to be applied beforehand listing all hazardous data contained on the original label, i.e., the hazards associated with the material plus the name of the Contractor.
M. When use of hazardous materials is no longer required for work or project, Contractor is to promptly remove any unused material from Buyer’s property for legal disposal or storage. Contractor is to designate an employee responsible for hazardous material who is to insure that all Contractor and subcontractor employees on the job site have received training in the proper handling of hazardous material prior to the start of work.
N. Flammable gas and cylinders of oxidizers (oxygen) must be separated by 20 feet or a five feet high, 1/8 inch steel fire wall when not in use. All compressed gas cylinders must be properly secured against falling.
O. Buyer’s approval must be obtained for the location and construction of all Contractor’s sheds or buildings.
P. The construction site must be kept clean and orderly, and combustibles kept to a minimum at all times. All rubbish and combustible debris must be removed daily from the building to a safe yard location or else removed from the property. Burning of rubbish or other combustible, flammable, or explosive materials on Buyer’s property is prohibited. Flammable liquids must not be placed in trash containers.
Q. Facilities for adequate fire protection must be provided to keep pace with the progress of work requiring the use of combustible materials. The use of any hydrant or other fire service water supply connection is not permitted without authorization and supervision by Buyer. Buyer’s approval is required at least 24 hours before closing any fire system valve for repairs or alterations.
R. Smoking on Buyer’s property is permitted only in designated locations. Buyer’s restrictions and regulations with respect to smoking must be strictly obeyed.
S. A clearance of at least 18 inches must be maintained below all automatic sprinklers.
T. All liquid waste, except clean water, must be disposed of in proper containers and removed from Buyer’s property by Contractor unless otherwise prearranged with the Contract Coordinator. Contractor shall not discard any liquids into dumpsters, toilets, sinks, stormwater drains, ground or surface waters. Such liquids include but are not limited to fuels, oils, solvents, paints, thinners, etc. Should polychlorinated biphenyl (PCB) labeled materials or devices be encountered during activities on site, Contractor shall notify the Contract Coordinator who will determine disposition.
U. Spills of any liquid, except clean water, any broken utility lines, fire, explosion, leakage or spillage of any flammable liquids, regardless of quantity, must be reported by Contractor to Buyer’s Contract Coordinator or, in the case of fire, by pulling a fire pull box. Spill cleanup and disposal costs incurred by Buyer will be charged back to the Contractor.
V. A hot work permit must be obtained from Buyer prior to beginning any work with flame, spark or heat producing equipment in or near existing buildings. Advance notice must be given when work of this nature is to be performed at night or on weekends or holidays. The use of powder actuated tools such as, but not limited to, “Ramset” or “Hilti” is prohibited unless authorized and supervised by Buyer.
W. The Contractor shall not use or store explosives and radioactive materials, for any purpose whatsoever, without prior written authorization of Buyer and governing authorities. The Contractor shall not consider any initial authorization given as a general license but shall seek Buyer’s permission in each and every instance.
X. In the event that asbestos is encountered during construction, the contractor shall promptly notify the Contract Coordinator for assistance to insure necessary precautions are taken.
Y. All equipment used by the Contractor, their employees or Subcontractors in the performance of this Order shall be maintained in very good to excellent condition; any such equipment leaking any fluids shall be removed promptly from Buyer property by the Contractor.
Z. Forklift trucks, cranes: Certification is required to establish that the Contractor or Subcontractor who has need to employ or operate a crane is operating said equipment in full compliance with OSHA Regulation 1910.180. This certification shall be provided to Buyer prior to use of the crane on the job site. Contractor must also ensure that the operator has been properly trained to safely operate the equipment.
AA. Substitutions of Plastic Materials: If substitution involves the use of plastic construction materials, they must be referred to the Factory Mutual Insurers by United for review and approval before their use can be allowed.
BB. In the event that a medical emergency occurs, the following procedure should be followed by the Contractor:
i. Call Emergency Medical Services and await instructions,
ii. Send the injured person to a medical facility. Contractor shall verify facility location upon initial visit to the site and post its location in conspicuous locations at the construction site) or wait for ambulance depending upon person’s condition, and
iii. Call and inform the responsible Contract Coordinator of the emergency.
CC. Contractor shall indemnify, defend and hold harmless Buyer from any liability associated with Seller’s non-compliance with the provisions of this Section and/or Buyer’s Industrial Security, Environment, Health and Safety rules and requirements.
26. Interpretation
Contractor shall bring to the attention of Buyer at the earliest possible time any ambiguities, discrepancies, inconsistencies, or conflicts herein or in or between any specifications, drawings, or other documents incorporated by reference herein. Ambiguities, inconsistencies, or conflicts in an Order will not be strictly construed against the drafter of the contract language; rather, they shall be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the intentions of the parties at the time of contracting.
27. Partial Invalidity
If in any instance any provision of these terms and conditions shall be determined to be invalid or unenforceable under any applicable law, such provision shall not apply in such instance, but the remaining provisions shall be given effect in accordance with their terms.
28. Waiver
Either party’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege or waiver of any breach hereunder shall not thereafter waive any such terms, conditions, or privileges.
29. Dispute Resolution
A. The Parties shall attempt in good faith to resolve any dispute of whatever nature arising out of the performance of, or otherwise relating to an Order or the breach, termination, enforceability, or validity thereof (hereinafter, “Dispute”), promptly by negotiations between the Parties in the normal course of business. If such good faith attempts do not resolve the Dispute, either Party may give the other party written notice of any such Dispute and request formal negotiations between the Parties. Within twenty (20) calendar days from the date of mailing of such written notice, representatives of both Parties, having the authority to settle the Dispute, shall meet at a mutually acceptable time in East Hartford, Connecticut, and thereafter as often as they reasonably deem necessary, to attempt to resolve the Dispute. If the Dispute has not been resolved within sixty (60) calendar days from the date of mailing of such written notice or a mutually agreed upon extension thereof, or if the Parties fail to meet within such twenty (20) calendar days or a mutually agreed upon extension thereof, either Party may initiate arbitration of the Dispute, by giving notice to the other party, pursuant to Paragraph (B) herein. All negotiations pursuant to this Paragraph 29 are deemed confidential and shall be treated as compromise and settlement negotiations for the purposes of Rule 408 of the Federal Rules of Evidence and any comparable law provision.
B. If the Parties are unable to resolve such Dispute by negotiation within the time limits set forth in (A) above, the Parties shall, within thirty (30) calendar days thereafter, select an arbitrator and begin mandatory arbitration proceedings to be conducted by a single arbitrator in East Hartford, Connecticut. The cost of the arbitration will be shared jointly; however, each Party shall bear its own costs related to travel, food and lodging. Unless the parties agree otherwise, the arbitration shall be conducted in accordance with the applicable Arbitration Rules of the American Arbitration Association (AAA) then in effect, by an arbitrator selected by mutual agreement of the Parties. If the Parties are unable to agree on an arbitrator within such thirty (30) calendar days, or a mutually agreed extension thereof, the arbitrator will be selected by the AAA. The arbitrator shall be an attorney-at-law, shall complete arbitration proceedings within ninety (90) calendar days after his/her appointment, and shall base the award on the terms and conditions of the Order and on Connecticut law (without regard to such state’s conflict of laws principles) and judicial precedent. The findings of the arbitrator shall be final, binding, and enforceable as between the Parties and judgment on any award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
30. Assignment of Performance
Performance of an Order shall not be assigned by the Contractor, in whole or in part, without the prior written consent of Buyer. Any prohibited assignment by Contractor shall be null and void, shall be deemed a material breach of the Order, and Contractor shall remain liable to Buyer for full performance of its covenants, duties, liabilities and obligations
31. Assignment of Payment & Setoff
Claims for money due or to become due to Contractor from Buyer arising out of an Order may not be assigned, unless such assignment is made to one assignee only and covers all amounts payable under an Order and not already paid. Any such assignment shall be subject to Buyer’s rights under Paragraph (B) hereof. Buyer shall be under no obligation to pay such assignee unless and until Buyer shall have received written notice of the assignment from Contractor, a certified copy of the instrument of assignment, and suitable documentary evidence of Contractor’s authority to so assign. However, any payments made to a third party subsequent to Buyer’s receipt of notice that any claims for money due or to become due have been assigned or should be paid thereto shall fulfill Buyer’s requirements to make any such payments.
All claims for money due or to become due from Buyer shall be subject to deduction or setoff by Buyer by reason of any counterclaim arising out of any transaction with Contractor.
32. Captions
Captions, as used herein, are for convenience of reference only and shall not be construed to limit or extend the language of the provisions to which such captions may refer.
33. Cumulative Remedies
The rights and remedies herein shall be cumulative and additional to any other or further rights and remedies provided in law or equity.
34. News Releases
Contractor shall not make any news release of information pertaining to an Order without prior approval of Buyer.
35. Order of Precedence
Any inconsistency or ambiguity in this order shall be resolved by giving precedence in the following order: (a) typewritten changes on the face of the Order or Supplement; (b) these Order Terms and Conditions; and (c) other documents incorporated by reference into this order, unless a contrary intention is expressly indicated on the face of the Order.
Software End User License Agreement – v1.0 5/25/17
By downloading, installing, copying, accessing or using this software, you agree to the terms of this end user license agreement. If you are accepting these terms on behalf of another person or company or other legal entity, you represent and warrant that you have full authority to bind that person, company or legal entity to these terms.
1) License Grant; Proprietary Rights
2) Copy and Use Terms:
3) Technical Support and Maintenance:
CCAT’s standard terms and conditions contained within your Proposal apply to any technical support and maintenance purchased as outlined and referenced in your Proposal.
4) Limited Warranty and Disclaimer:
5) Intellectual Property Indemnity
6) Termination:
Either Party may terminate this Agreement upon thirty (30) days written notice to the other party. Without prejudice to your payment obligations, you may terminate your license at any time by uninstalling the Software. Upon such termination, you shall promptly return or destroy all copies of the Software and Documentation.
7) Additional Terms:
8) Notice to Government End users:
The Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the software and accompanying Documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
9) Privacy and Collection of Personal System Information:
10) Audit:
Upon thirty (30) days’ prior written notice CCAT may request, and you must provide, a Software-facilitated system-generated report (the “System Report”) verifying your Software deployment. You acknowledge that the System Report is based on technological features of the Software that provide Software deployment verification. If the Software does not contain technological features that provide Software deployment verification, you will prepare and provide to CCAT within the thirty (30) day period and accurate Software deployment verification report for the Software. CCAT will only request the System Report (or your prepared Software deployment verification report) one time per year and will not unreasonably interfere with the conduct of your business. However, if a System Report or your prepared Software deployment verification report identifies that you are out of compliance with the license terms of this Agreement, you will be required to purchase the additional licenses and pay any reinstatement fees associated with the licenses and/or support and an out-of-compliance fee may also be assessed.
11) Export:
You acknowledge that the Software may be subject to U.S. export regulations. You shall comply with all applicable export and import laws and regulations for the jurisdiction in which the Software will be imported and/or exported. You shall not export the Software to any individual, entity, or country prohibited by applicable law or regulation. You are responsible, at your own expense, for any local government permits, license or approvals required for importing and/or exporting the Software.
12) Governing Law:
This Agreement shall be interpreted under and governed by the laws of the State of Connecticut. The venue for resolution of any disputes under this Agreement shall be in Hartford County, Connecticut.
The Client and its employees and representatives shall at all times comply with all applicable laws, ordinances, statutes, rules, regulations and orders of governmental authorities, including those having jurisdiction over its registration and licensing to perform services under this Agreement.
13) Arbitration of Disputes:
Any controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by binding arbitration administered in Hartford, Connecticut, or a mutually agreed suburb thereof, by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on any award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
14) Remedies:
CLIENT AGREES THAT CCAT’S ENTIRE LIABILITY, AND CLIENT’S EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO ANY SERVICES PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT THAT CLIENT PAID FOR SUCH SERVICES DURING THE TERM OF THIS AGREEMENT. IN NO EVENT SHALL CCAT, ITS LICENSORS AND ASSIGNEES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL SPECIAL, CONSEQUENTIAL DAMAGES EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN CCAT’S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW IN SUCH STATES.
15) Confidential Information:
Each Party acknowledges that confidential information or material of a commercial value (“Confidential Information”), including but not limited to product/service specifications, prototypes, computer files and programs, models, drawings, marketing plans, financial data, source code, trade secrets, copyrighted material HIPPA protected information, and other information, whether in tangible or intangible form, pertaining to the business of a party, its employees, contractors, clients and/or business associates, has or will come into the possession or knowledge of each party in connection with this Agreement or the performance hereof. Each party further acknowledges that the Confidential Information represents confidential and proprietary trade secrets, whose disclosure to or use by third parties will be damaging to the owner thereof. Each party agrees to hold the other’s Confidential Information in strictest confidence, not make use thereof other than for the performance of this Agreement, to release it only to those persons in their respective organizations requiring such information for the purposes of this Agreement, and not to release or disclose it to any third party without the other party’s consent. These restrictions shall not be construed to apply to information a) generally available to the public; b) released by a disclosing party generally without restriction; c) independently developed or acquired by a party or its personnel without reliance in any way on Confidential Information of the other party; d) approved in writing for use and disclosure by the disclosing party, or its personnel, without restriction; or e) required to be disclosed by law or order of a court or other authority of competent jurisdiction, PROVIDED THAT the disclosing party provides the non-disclosing party notice of such required disclosure sufficiently in advance of the intended disclosure to permit the non-disclosing party to take action to prevent such disclosure if the non-disclosing party so deems necessary.
Neither this Agreement, nor any duties or obligations under this Agreement may be assigned by Client or CCAT without the prior written consent of the other party.
CCAT shall not be liable for its delay or failure in performing under this Agreement due to conditions or events beyond CCAT’s reasonable control, including, without limitation, natural disasters, accidents, power outages, equipment failure, labor disputes or shortages, governmental laws, ordinances, rules and regulations and inability to obtain material, equipment or transportation. If due to any such condition or event, CCAT is unable to supply the Services or Products ordered by Client and some or all of CCAT’s other clients, CCAT shall have the right to allocate Services and Products among its clients in such manner as CCAT in its sole discretion deems fair and equitable.
It is the express intention of the parties that CCAT is an independent contractor and not an employee, agent, joint venture or partner of the Client. Nothing in this agreement shall be interpreted or construed as creating or establishing the relationship pf employer and employee between CCAT and the Client or any employee or agent of CCAT. Both parties acknowledge that CCAT is not an employee for federal or state tax purposes. CCAT shall retain the right to perform services for others during the term of this agreement. CCAT shall use CCAT’s own discretion in performing the tasks assigned, subject to the general direction of the Client and subject to the express condition that CCAT shall at all times comply with applicable law.
The parties agree that the nature of some of the services to be performed by CCAT will necessitate that the services be performed on Client’s premises or at other locations designated by Client. Client therefore agrees to furnish space on such premises for use by CCAT while performing these services.
This Agreement does not authorize CCAT to execute any agreements, sign any checks, or bind Client in any manner, or make any changes or incur or assume any obligations, liabilities, or responsibilities of Client or to perform any other act in the name of, or on behalf of Client other than in accordance with the terms and conditions contained herein.
