Purchase_Agreement--Master_Form_Template_(Rev_9-2014)-.docx

These Terms And Conditions, along with the Purchase Order incorporating or referencing these Terms and Conditions or the Purchase Order which these Terms and Conditions are attached to or accompany, and any exhibits, schedules, and other documents attached hereto, constitute the Purchase Agreement between Alutiiq and Seller (“this Agreement’), and in addition to the provisions set forth in the Purchase Order Alutiiq and Seller agree as provided below. Unless otherwise stated, all capitalized terms are as defined in the Purchase Order. As used herein, the term “Alutiiq” refers to the entity (Alutiiq, LLC or its subsidiary or affiliate) which issued the Purchase Order to which these Terms and Conditions relate.

1. Shipping/Acceptance.

1.1 Shipping shall be F.O.B. as indicated in this Agreement. Seller must ensure that all items are preserved, packaged, packed, and marked in accordance with best commercial practices and in conformity with carrier requirements and all applicable international, federal, state and local laws and regulations. A complete packing list must be enclosed with all shipments. Unless the Prime Contract specifically provides otherwise, all risk of loss or damage to the Supplies shall remain with Seller until delivery F.O.B. destination, provided however that the risk of loss shall remain with Seller as to Supplies which are not accepted or are rejected by Alutiiq or the Owner.

2. Compensation.

2.1. Alutiiq shall pay Seller for the Supplies and/or Services in accordance with the prices specified in this Agreement. Unless Seller is provided a resale or tax exemption certificate, or as otherwise provided herein, such prices include all applicable international, federal, state and local taxes. Payment will only be made for items or services accepted by Alutiiq that have been delivered to the specified destinations.

2.2. Unless otherwise specified in this Agreement, Seller, not more than once a month, will submit to Alutiiq an original invoice for any amounts payable hereunder for Supplies and/or Services rendered during the prior month. The invoice will be in form and content acceptable to, and as may be reasonably specified by, Alutiiq and will include, without limitation, a detailed description of the Supplies and/or Services performed, the time spent by Seller in the performance of the Supplies and/or Services, and an itemization of any reimbursable expenses for such payment period. Seller will also furnish such receipts, documents and information as Alutiiq may reasonably request to verify any invoice submitted by Seller.

2.3. Within thirty (30) days after Alutiiq's receipt of each invoice, Alutiiq will pay Seller the amounts properly payable pursuant to such invoice; however, payments to Seller are expressly conditioned upon the receipt of payment by Alutiiq from the Owner. All amounts payable under this Agreement and any Task Order are denominated in United States dollars, and Alutiiq shall pay all such amounts in lawful money of the United States. Alutiiq reserves the right to withhold payment pending correction of clerical errors that are not adequately supported by documentation, or correction of other mistakes in Seller's invoices. Payment by Alutiiq of Seller’s invoices shall be without prejudice to Alutiiq’s right to audit Seller’s records to confirm the correctness of the invoices at any time.

2.4. Alutiiq will not reimburse Seller for expenses that have not been authorized in advance in writing by Alutiiq.

3. Warranty. The following apply in addition to any other warranties required by the Prime Contract:

3.1. Seller warrants that each item delivered hereunder shall be (a) new unless otherwise specified, (b) free from defects in materials or workmanship, (c) as to Services, performed with the highest degree of professional skill and sound practice and judgment, (d) merchantable and fit for its intended purpose, (e) free from defects in design, unless furnished pursuant to detailed designs provided by Owner or Alutiiq, (f) in strict compliance with all specifications, requirements or other descriptions upon which this Agreement is based, and (g) provided with clear and good title, free from all liens, chattel mortgages, conditional sales contracts, and all other encumbrances and claims. Any third-party warranty shall be passed on or assigned as appropriate to Alutiiq and the Owner without charge.

3.2. Seller guarantees all Supplies and Services for a period for one (1) year from the date of first operation at final acceptance from the Alutiiq and/or the Owner at final destination or eighteen (18) months from date of shipment, or Seller’s standard warranty period, or for a period as proposed by Seller, whichever is longer. Notwithstanding the foregoing, Seller shall comply with all terms and conditions relating to warranties which are applicable to the Seller under the Prime Contract.

3.3. Seller agrees to repair, replace or re-perform all defective or non-conforming items or work and such repair, replacement and re-performance will be made free of charge.

3.4. All warranties, both express and implied, including the above, and all guarantees, shall constitute conditions, shall survive delivery, inspection, test, acceptance, use and payment, and shall inure to Alutiiq and the Owner.

4. Changes.

4.1. Alutiiq may at any time make changes in quantity, drawings and specifications, methods of shipment and packaging, schedules, and the place of delivery as to any Supplies or Services. In such event, an equitable adjustment in price and time of performance mutually satisfactory to Alutiiq and the Seller will be negotiated. Any claim by Seller for an adjustment must be made in writing within thirty (30) days from date of receipt by Seller of notification of the change or suspension. Seller will not suspend performance of this Agreement while Alutiiq and Seller are in the process of making such changes and any related adjustments. No substitutions shall be made in the Supplies or Services without the prior written authorizations of Alutiiq.

5. Confidentiality.

5.1. Seller acknowledges and agrees that all trade secrets and proprietary information of Alutiiq and all information communicated to Seller by Alutiiq in connection with the performance of this Agreement shall be treated as confidential, shall be used only for purposes of this Agreement, and no such confidential information shall be disclosed by Seller, its agents or personnel without the prior written consent of Alutiiq. Seller will deliver any and all such information in Seller's possession and all copies thereof to Alutiiq, at no charge, within five (5) days of either (i) Alutiiq's or the Owner’s request or (ii) termination of this Agreement for any reason. Except to the extent otherwise required by applicable law or professional standards, Seller's obligations under this section do not apply to information that (a) is or becomes generally available to the public other than as a result of disclosure by Seller, (b) was known to Seller or had been previously possessed by Seller without restriction against disclosure at the time of receipt thereof by Seller, (c) was independently developed by Seller without violation of this Agreement or (d) Alutiiq and Seller agree in writing from time to time to disclose.

5.2. If Seller is required by applicable law or regulation, or receives a subpoena or other validly issued administrative or judicial demand, or receives a request necessary for the administration of a U.S. Government Prime Contract from a federal representative authorized to make such request, requiring Seller to disclose Alutiiq's confidential information, Seller shall provide prompt written notice to Alutiiq of such demand in order to permit Alutiiq to seek a protective order or otherwise protest the disclosure. So long as Seller gives notice as provided herein, Seller shall thereafter be entitled to comply with such demand to the extent permitted by law, subject to any protective order or the like that may have been entered in the matter.

5.3. If applicable, this Agreement shall not limit any Seller use of information that the Government owns or has a right to use on the Seller’s direct contracts with the Government.

6. Intellectual Property.

7. Personnel.

7.1. Personnel will at all times be considered employees or agents of the party providing such personnel and will not for any purpose be considered employees or agents of the other party. Each party shall assume full responsibility for the actions or inactions of the personnel it provides, and shall be solely responsible for the supervision, direction, control, salaries, workers’ compensation coverage, disability and other insurance, benefits, and all other obligations required by law relating to its personnel.

7.2. During the term of this Agreement and for one year following termination of this Agreement for any reason, Seller shall not solicit for employment employees of Alutiiq who have been directly involved in the Supplies and/or Services covered by this Agreement, unless (i) Alutiiq has given its written consent, (ii) the employee has voluntarily terminated from Alutiiq more than six (6) months previously or (iii) notice of termination has been given to the employee by Alutiiq and the termination was not mandated by the Government.

7.3. Seller and its employees, agents, and representatives shall cooperate with Alutiiq in responding to any actual or threatened governmental proceeding or investigation, including, but not limited, actions relating to health and safety or environmental issues. Seller shall allow Alutiiq reasonable access to Seller's employees, agents, and representatives for purposes of investigating or defending any actual or threatened governmental proceeding or investigation.

8. Insurance. The following shall apply only if Seller’s employees, subcontractors, or other person’s under Seller’s control are to perform services of any nature at the place or jobsite where Supplies or Services described herein are to be used, installed, or performed pursuant to the Agreement, or any place deemed to be under the Owner’s control:

8.1 Seller will maintain such insurance policies as may be sufficient to protect Seller against all applicable risks, both generally and specifically with respect to the provision of the Supplies and/or Services pursuant to this Agreement, and at such levels and types of insurance coverage which may be specified by Alutiiq, including but not limited to, when appropriate, Workers Compensation, General Liability, Automobile, and Errors and Omissions Insurance. Seller will provide Alutiiq with certificates of insurance and other supporting materials as Alutiiq may reasonably request to verify Seller's continuing compliance with this Section 8. Seller will be liable for all loss or damage, other than ordinary wear and tear, to Alutiiq's property in Seller's possession or control. In the event of any such loss or damage, Seller will pay Alutiiq the full current replacement cost of such equipment or property within thirty (30) days after its loss or damage.

8.2 Additional Insured - The following shall be listed as Additional Insured’s on each required policy save Workers’ Compensation: The Owner and Alutiiq and Afognak Native Corporation, including all agents, assigns, subsidiaries, subcontractors, employees, and volunteers. The Seller shall continue to name the Owner and Alutiiq and Afognak as Additional Insured’s on all applicable policies for two years after the completion of “your work” for Personal Injury, Bodily Injury and Property Damage arising out of, or as a result of, “your work.”

8.3 Primary and Non-Contributory - Coverage shall be primary to the Additional Insured’s, and not contributing with any other insurance or similar protection available to the Additional Insured’s, whether the other available coverage is primary, contributing or excess.

8.4 Cancellation Notice - All insurance policies required hereunder shall include a signed endorsement stating the following: “Any cancellation or any material change adversely affecting the Government’s interest shall not be effective 1) for such period as the laws of the state in which this contract is to be performed prescribe or 2) Until 30 days after the insurer or the contractor give written notice to the contracting officer whichever period is longer.” Endorsement must also state: “Thirty (30) days Advance Written Notice of Cancellation or Non-Renewal shall be sent to: Afognak Native Corporation, Attn: Corporate Risk Manager, 3909 Arctic Blvd., Suite 400, Anchorage, Alaska 99503.

8.5 Waiver of Subrogation – Seller and Alutiiq shall have no liability to one another, or to any insurer, by way of subrogation or otherwise, on account of any loss or damage regardless of whether such loss or damage is caused by the negligence of Seller or Alutiiq, arising out of any of the perils or casualties insured against by the insurance coverage carried, or required to be carried, by the parties pursuant to this Agreement. The insurance coverage obtained by Seller and Owner pursuant to this Agreement shall permit waivers of subrogation which the insurer may otherwise have against the non-insuring party. In the event the policy or policies do not allow waiver of subrogation prior to loss, either Seller or Alutiiq shall, at the request of the other party, deliver to the requesting party a waiver of subrogation endorsement in such form and content as may reasonably be required by the requesting party or its insurer."

9. Termination.

9.1 Alutiiq may terminate or cancel this Agreement, in whole or in part, at any time for its convenience, further performance of all or any separable part of this Agreement by written notice to Seller. On the date of such termination or cancellation stated in said notice, Seller will discontinue all work pertaining to this Agreement, place no additional orders and preserve and protect materials on and purchased for or committed to this order, work in progress, and completed work both in its own and in its supplier’s plants pending Alutiiq’s instructions.

9.2 Either party may terminate this Agreement upon the other party's material breach of this Agreement, provided that (i) the non-breaching party sends written notice to the breaching party describing the breach in reasonable detail, (ii) the breaching party does not cure the breach within three (3) days following its receipt of such notice, and (iii) following the expiration of the 3-day cure period, the non-breaching party sends a second written notice to the breaching party indicating the non-breaching party's desire to terminate this Agreement.

9.3 This Agreement may be terminated immediately upon written notice by either party if the other party (i) becomes insolvent or involved in a liquidation or termination of its business, (ii) is generally not paying its debts as they become due, (iii) commences any proceedings relating to such party under any federal or state law relating to bankruptcy, insolvency, reorganization or similar laws, (iv) applies for the appointment of a trustee, liquidator or receiver of any part of its assets, (v) has a proceeding commenced against it relating to the appointment of a trustee, liquidator or receiver or pursuant to any proceedings under any federal or state law relating to bankruptcy, insolvency, reorganization or similar laws (if not dismissed within 30 days of filing), (vi) becomes involved in an assignment for the benefit of its creditors, (vii) becomes adjudicated bankrupt; or (viii) defaults on payment obligations owed to other business or teaming partners of Alutiiq.

10. Effect of Termination.

10.1 If this Agreement is terminated pursuant to and in accordance with Section 9, unless otherwise specifically provided in the applicable Agreement, upon delivery of a notice of termination (a) the parties shall cooperate to effect an orderly, efficient, effective and expeditious termination of their respective activities under this Agreement; (b) Seller shall return to Alutiiq any and all items delivered by Alutiiq to Seller; (c) Seller shall reimburse Alutiiq for any prepaid expenses not incurred prior to delivery of the notice of termination; and (d) the parties' respective rights and obligations under Sections 6, 7, 8, 10, 17, 18 and 19 of this Agreement shall survive.

10.2. If Seller is not in default hereunder, Seller shall be paid by Alutiiq for that portion of the Supplies and/or Services actually performed and for documented expenses incurred by Seller and authorized by Alutiiq prior to delivery of the notice of termination, provided, however, that Alutiiq shall not be held liable for any other damages, including any loss of anticipated profits.

10.3 If Seller terminates this Agreement for any reason other than a payment default by Alutiiq hereunder, Alutiiq may withhold payments otherwise due hereunder, procure substitute Supplies and/or Services from third-party vendors, seek damages from the Seller, and/or proceed against Seller in a court of competent jurisdiction for any and all other remedies available in equity or at law.

10.4 In furtherance of and not in limitation of the foregoing, upon termination or expiration of this Agreement, Seller shall return all documents, reports, files, programs, access badges, and any other materials used in the performance of the Supplies and/or Services. This requirement expressly includes Seller’s obligation to deliver in electronic format all materials related to the work, including spreadsheets, e-mails, presentations, photos, or other electronic documents or media.

11. Limitation of Liability. In no event shall either Seller or Alutiiq be liable to the other for any punitive, exemplary, special, indirect, incidental or consequential damages (including, but not limited to, lost profits or lost business opportunities) arising out of or relating to this Agreement, regardless of the legal theory under which such damages are sought, and even if the parties have been advised of the possibility of such damages or loss. However, this section shall not apply to liquidated damages, if any, imposed under the Prime Contract.

12. Compliance with Laws. Seller will (a) pay for all local, state and federal income tax and other withholding relating to Seller's compensation, (b) pay all social security, unemployment, disability and other taxes as required under local, state and federal laws, (c) provide all worker's compensation and other insurance relating to Seller's employment, (d) obtain and pay for all required permits and licenses, and pay all fees or other required charges, and (e) comply with all local, state and federal laws, ordinances, regulations, directives, authorities, and orders with respect to its performance of the Supplies and/or Services including but not limited to laws pertaining to employment, health and safety and any and all laws applicable to performance of the Supplies and/or Services. Seller will provide Alutiiq with such documents and other support materials as Alutiiq may reasonably request to evidence Seller's continuing compliance with the provisions of this Section. Seller’s violation of this Section 12 is considered a material breach of this Agreement.

12.1 Corrupt Practices.

(i) Alutiiq and Seller shall comply with the federal Foreign Corrupt Practices Act, 15 U.S.C. §78dd-2, any other applicable anti-bribery and anti-corrupt practices laws and regulations, and Alutiiq’s FCPA Policy in connection with this Agreement. Notwithstanding any other provision of this Agreement, any violation of the FCPA, Alutiiq’s FCPA Policy, or any applicable law or regulation regarding bribery or corrupt practices by the Seller is a material breach of this Agreement, the Seller shall have no right to cure such breach, and such breach shall (1) provide Alutiiq with cause to terminate the contractual relationship and (2) cause a forfeiture of any payments still owing under the terms of this Agreement. Seller shall indemnify and defend Alutiiq for any breach by Seller of the FCPA, Alutiiq’s FCPA Policy, or any applicable law or regulation. Seller will advise Alutiiq in writing of the retention and identity of any agents, contractors, vendors, consultants, partners, venturers and lower-tier subcontractors, and Seller and all such agents, contractors, vendors, consultants, partners, venturers and lower-tier subcontractors will consent to and cooperate in any due diligence which Alutiiq believes is appropriate to facilitate Alutiiq’s FCPA Policy. Seller will immediately identify to Alutiiq any employees, agents, affiliates, contractors, vendors, consultants, partners, venturers and lower-tier subcontractors of Seller that is a foreign official. Seller shall keep accurate records of all contacts, communications and transactions involving foreign officials, and will make available to Alutiiq such records.

(ii) If this Agreement involves work in or relating to a foreign country or which may result in contact with a foreign official, the following provisions are applicable: (1) Seller must certify annually to Alutiiq that Seller has not violated the FCPA; (2) Alutiiq may continue throughout the term of this Agreement to conduct due diligence of Seller regarding compliance with the FCPA; and (3) in any event every three years Alutiiq will conduct full due diligence in accord with its FCPA Policy to re-qualify Seller as in compliance with the FCPA and the FCPA Policy.

(iii) For the purposes of this section, “foreign official” means any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization. The definition also includes spouses and other immediate family members of foreign officials. In addition, “instrumentality” includes a state-owned or controlled company.

13. Non-Waiver of Rights. The failure of either party to insist upon performance of any provision of this Agreement, or to exercise any right, remedy or option provided herein, shall neither be construed as a waiver of the right to assert any of the same or to rely on any such terms or conditions at any time thereafter, nor in any way affect the validity of this Agreement.

14. Severability. If any covenant, condition, term, or provision contained in this Agreement is held or determined to be invalid, illegal, or unenforceable in any respect, in whole or in part, such covenant, condition, term, or provision shall be severed from this Agreement, and the remaining covenants, conditions, terms and provisions contained herein shall continue in force and effect, and shall in no way be affected, prejudiced or disturbed thereby.

15. Priority; Conflicting Provisions. This Agreement is subject to any Prime Contract (including any task order, directive or other instrument issued under or pursuant to the Prime Contract) to which this Agreement relates, and in the event of any conflict between this Agreement and the Prime Contract, the Prime Contract shall control. This Agreement and any attachments hereto are intended to be read and construed in harmony with each other, but in the event any provision in any attachment conflicts with any provision of this Agreement, then this Agreement shall be deemed to control, and such conflicting provision, to the extent it conflicts, shall be deemed removed and replaced with the governing provision herein. In the event and to the extent of a conflict between these Terms and Conditions and the Purchase Order to which these Terms and Conditions relate, the Purchase Order shall govern.

16. Assignment. Seller shall not sell, assign, transfer, or otherwise convey by contract, operation of law (including by merger or other sale of control) or otherwise any of its rights or delegate any of its duties under this Agreement without the prior written consent of Alutiiq.

17. Applicable Law. If this Agreement is issued pursuant to a U.S. Government Prime Contract, the federal law of government contracts shall apply to the fullest extent applicable. To the extent that federal law does not resolve a particular issue, this Agreement shall be governed by and construed under the laws of the State of Alaska, without regard to its laws relating to conflict of law. Any action relating to this Agreement and the Supplies and/or Services performed hereunder shall be limited to the state and federal courts located in Anchorage, Alaska, and the parties consent to the jurisdiction and venue of said courts.

18. Interpretation. The captions and headings used in this Agreement are solely for the convenience of the parties, and shall not be used in the interpretation of the text of this Agreement. Each party has read and agreed to the specific language of this Purchase Agreement and has had the opportunity to discuss this Purchase Agreement with their respective legal counsel; therefore no conflict, ambiguity, or doubtful interpretation shall be construed against the drafter.

19. Indemnification and Hold Harmless.

19.1 Seller will indemnify, defend and hold harmless Alutiiq and its directors, officers, members, employees, agents, affiliates, subsidiaries, and parents from and against all claims, damages, losses and expenses (including attorneys' fees) arising out of or in connection with (i) any breach of this Agreement by Seller; (ii) any acts or omissions of Seller, its employees or agents in the performance of the Supplies and/or Services; (iii) any inaccuracy in the representations and warranties made by Seller under this Agreement; (iv) any infringement or misappropriation of any patent, copyright, trade secret, trademark or other intellectual property right by the Supplies and/or Services or results or any other work product or materials created or furnished by Seller under this Agreement; (v) any injuries to employees of Seller; or (vi) any claims by employees of Seller that they are entitled to the benefits of employment by Alutiiq.

19.2 Without in any way limiting the foregoing Section 19.1, Seller will indemnify, protect, save, and hold harmless Alutiiq and its directors, officers, employees, agents, subsidiaries, and parents and their property, free and clear of (i) any liens, claims, assessments, fines, levies and/or stop notices ("Liens") asserted by or resulting from the actions or inactions of Seller's employees, agents, sub-contractors, suppliers, vendors, or materialmen, (ii) any Liens asserted by any other third party as a result of Seller’s performance of this Agreement, and (iii) any Liens based on overdue or other deficient handling of charges for labor, equipment and/or materials by Seller. Alutiiq may, in its sole discretion, pay and discharge any Liens or overdue charges for Seller's sub-Sellers, suppliers, vendors, or materialmen, equipment and/or materials under or otherwise in conjunction with this Agreement and may thereupon deduct the amount or amounts so paid by Alutiiq from sums due or which thereafter become due to Seller hereunder

20. Multiple Copies or Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement shall not be effective until the execution and delivery between each of the parties of at least one set of counterparts.

21. Notices. All notices or other written communication required or permitted to be given under any provision of this Agreement shall be deemed to have been given by the notifying party if mailed by certified mail, return receipt requested, to the receiving party addressed to its mailing address set forth in this Agreement, or such other address as a party may designate in writing to the other party. Additionally, notices sent by any other means (U.S. mail, facsimile, overnight delivery, courier, electronically or otherwise) may be acceptable subject to written confirmation of both the transmission and receipt of the notice.

22. Relationship of Parties. Seller will at all times be an independent contractor of Alutiiq in connection with the performance of the Supplies and/or Services as set forth in this Agreement. Seller will (a) not enter into any contract, agreement or other commitment, or incur any obligation or liability, in the name or otherwise on behalf of Alutiiq; (b) not be entitled to any workers' compensation, pension, retirement, insurance or other benefits afforded to employees of Alutiiq; and (c) retain full control over the manner, methods and details by which it performs the Supplies and/or Services. This Agreement will not be construed to create a partnership, joint venture, agency relationship or employment relationship between Seller and Alutiiq.

23. Third Party Beneficiaries. This Agreement does not create, and shall not be construed as creating, any rights or interests enforceable by any person not a party to this Agreement.

24. Waiver or Modification. This Agreement may not be modified, and no part or parts hereof waived, except by an instrument in writing specifically referencing this Agreement and signed by both parties hereto. However, the parties agree to negotiate in good faith to modify or amend this Agreement as necessary in order to comply with the provisions of the applicable Prime Contract or any change thereto.

25. Entire Agreement. This written Agreement contains the entire understanding and agreement of the parties. No prior or contemporaneous statement or representation, whether oral or written, has been relied upon by the parties, except as expressly stated herein.

26. Time of Essence. Time is the essence in every term, covenant and condition of this Agreement.

27. Disputes.

Any and all claims, controversies, or disputes arising out of or relating to this Agreement, including without limitation, any claim, controversy, or dispute concerning any threatened, alleged, or actual breach of this Agreement or any determination, negotiation, or agreement reached by the Parties under this Agreement (each a "Dispute"), shall be resolved exclusively as set forth in this Section 27.

Any claims of Seller arising as a result of direction given by the government and which may properly be submitted for a decision of the government under the Disputes Clause of the Prime Contract shall be resolved exclusively by Alutiiq forwarding such claim to the government for decision, provided that Alutiiq can comply with any certification requirements applying to such claim and provided further that Alutiiq decides, in its sole discretion, that such a claim is warranted. The Government’s decision on such claim shall be final, conclusive and binding upon Seller.

Federal Government Orders The following Sections 28 through 32 apply to all federal government orders, in addition to all Terms and Conditions set out above.

28. Organizational Conflict of Interest.

29. Tax Deficiencies. Seller represents and warrants that: (1) It has not been notified, within a three-year period preceding this contract, of any delinquent Federal taxes in an amount that exceeds $3,000 for which the liability remains unsatisfied; (2) It has filed or obtained extensions for all required Federal tax returns and reports; and (3) It shall immediately notify Alutiiq in writing of any delinquent Federal tax obligation, the filing of any tax lien or a failure to file or obtain an extension for any required Federal tax obligation or report.

30. Intellectual Property. Notwithstanding anything to the contrary in this Agreement, and to the extent required by the Prime Contract all Supplies, Services, designs, drawings, specifications, notes and other works developed in the performance of this Agreement shall, as appropriate, (1) be provided with unlimited rights to the US government, or (2) become the sole property of the Owner and may be used by the Owner on any other design or project without additional compensation to the Subcontractor.

31. Export Control. Seller represents that it is a US firm incorporated under US law. Seller agrees to comply with all applicable U.S. export control laws and regulations, specifically including, but not limited to, the requirements of the Arms Export Control Act, 22 U.S.C.2751-2794, including the International Traffic in Arms Regulation (ITAR), 22 C.F.R. 120 et seq.; and the Export Administration Act 50 U.S.C app. 2401-2420, including the Export Administration Regulations, 15 C.F.R. 730-744; including the requirement for obtaining any export license or agreement, if applicable. Without limiting the foregoing, Seller agrees that it will not transfer any export controlled item, data, or services, to include transfer to foreign persons employed by or associated with, or under contract to Seller or Seller’s lower-tier suppliers, without the authority of an export license, agreement, or applicable exemption or exception. Seller shall immediately notify Alutiiq if Seller is, or becomes, listed in any Denied Parties List of if Seller’s export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. Government entity or agency.

32. E-Verify Compliance. Seller represents, warrants and covenants that it is in compliance with the requirement of FAR 52.222-54, Employment Eligibility Verification, as applicable to this Seller, and acknowledges that it must comply with the obligations arising from FAR 52.222-54 to include its provisions in lower tier subcontracts.

IF THIS CONTRACT IS OVER $30,000, INCLUDE THE FOLLOWING PROVISION

33. Protecting the Government's Interest When Subcontracting With Contractors Debarred, Suspended, or Proposed for Debarment (FAR 52.209-6 DEC 2010).

(a) Definition. Commercially available off-the-shelf (COTS) item, as used in this clause—

(1) Means any item of supply (including construction material) that is—

(i) A commercial item (as defined in paragraph (1) of the definition in FAR 2.101);

(ii) Sold in substantial quantities in the commercial marketplace; and

(iii) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and

(2) Does not include bulk cargo, as defined in section 3 of the Shipping Act of 1984 (46 U.S.C. App. 1702), such as agricultural products and petroleum products.

(b) The Government suspends or debars Contractors to protect the Government's interests. Other than a subcontract for a commercially available off-the-shelf item, the Contractor shall not enter into any subcontract, in excess of $30,000 with a Contractor that is debarred, suspended, or proposed for debarment by any executive agency unless there is a compelling reason to do so.

(c) The Contractor shall require each proposed subcontractor whose subcontract will exceed $30,000, other than a subcontractor providing a commercially available off-the-shelf item, to disclose to the Contractor, in writing pursuant to (f) below, whether as of the time of award of the subcontract, the subcontractor, or its principals, is or is not debarred, suspended, or proposed for debarment by the Federal Government. The subcontractor shall use the form attached hereto to make such disclosure to the Contractor.

(d) A corporate officer or a designee of the Contractor shall notify the Contracting Officer, in writing, before entering into a subcontract with a party (other than a subcontractor providing a commercially available off-the-shelf item) that is debarred, suspended, or proposed for debarment (see FAR 9.404 for information on the Excluded Parties List System). The notice must include the following:

(1) The name of the subcontractor.

(2) The Contractor's knowledge of the reasons for the subcontractor being in the Excluded Parties List System.

(3) The compelling reason(s) for doing business with the subcontractor notwithstanding its inclusion in the Excluded Parties List System.

(4) The systems and procedures the Contractor has established to ensure that it is fully protecting the Government's interests when dealing with such subcontractor in view of the specific basis for the party's debarment, suspension, or proposed debarment.

(e) Subcontracts. Unless this is a contract for the acquisition of commercial items, the Contractor shall include the requirements of this clause, including this paragraph (e) (appropriately modified for the identification of the parties), in each subcontract that—

(1) Exceeds $30,000 in value; and

(2) Is not a subcontract for commercially available off-the-shelf items.

(f) By its signature on this Agreement, the subcontractor certifies to the best of its knowledge and belief that it and its principals:

0. Are not presently debarred, suspended, proposed for disbarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency;

0. Have not within a three-year period preceding this application been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;

0. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (b) of this certification; and

0. Have not within a three-year period preceding this application had one or more public transactions (Federal, State, or local) terminated for cause or default.

Where the subcontractor is unable to certify to any of the statements in this subsection (f), such subcontractor shall attach a written explanation to this Agreement.

(g) As used in this section: the term “Contractor” means Alutiiq; the terms “subcontract” and “Agreement” both include subcontracts, purchase orders, and any other contract, agreement, invoice or order for goods and/or services; and the term “subcontractor” includes subcontractors, consultants, suppliers and vendors under any “subcontract” or “Agreement” as previously defined.

34. Affirmative Action Notice. Vendors and subcontractors are notified that they may be subject to the provisions of: 41 CFR Section 60-300.5(a); 41 CFR Section 60-741.5(a); 41 CFR Section 60-1.4(a) and (c); 41 CFR Section 60-1.7(a); 48 CFR Section 52.222-54(e); and 29 CFR Part 471, Appendix A to Subpart A with respect to affirmative action program and posting requirements.

This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities.

35. ALUTIIQ FLOW DOWN PROVISIONS FOR SUBCONTRACT/PURCHASE ORDERS FOR ITEMS UNDER A U.S. GOVERNMENT PRIME CONTRACT – DOMESTIC AND INTERNATIONAL/COMMERCIAL AND NON-COMMERCIAL ITEMS is hereby incorporated into this Agreement. Access to this document is available on the Alutiiq website at: [ENTER WEBSITE LINK]

37. Modifications. The following provisions of these Terms and Conditions are waived or modified as stated:

Alutiiq Standard Purchase Agreement Terms And Conditions

FORM PA 09/2014