Attachment A_Terms-Conditions-Commerical-Item-August-29-2023 (2).pdf

Terms & Conditions – Commercial Item

Terms & Conditions – Commercial Item Page 1 of 14

BSD-CS-2146

August 29, 2023

Table of Contents

PART 1. APPLICABLE TO ALL TRANSACTIONS

DEFINITIONS

RESOLUTION OF DISPUTES

ORDER OF PRECEDENCE

PAYMENT AND ADMINISTRATION

ACCEPTANCE OF TERMS AND CONDITIONS

COMMUNICATION AND PRIVITY OF CONTRACT WITH GOVERNMENT

INSPECTION AND ACCEPTANCE

WARRANTY

ASSIGNMENT, NOVATION, NAME CHANGE, INVERTED COMPANY

MATERIAL REQUIREMENTS

TRANSPORTATION

SHIPPING TERMS – DELIVERY DRIVERS MUST BE U.S. CITIZENS:

TITLE AND RISK OF LOSS

PAYMENT

COMPLIANCE WITH LAWS

1.13b FINES AND PENALTIES 1.14a TERMINATION FOR DEFAULT 1.14b TERMINATION FOR CONVENIENCE

BANKRUPTCY

INCORPORATION BY REFERENCE

ENVIRONMENT, SAFETY AND HEALTH PROTECTION

ELECTRICAL EQUIPMENT REQUIREMENTS

EXPORT CONTROL

GRATUITIES

FOREIGN CORRUPT PRACTICES ACT

PUBLIC RELEASE OF INFORMATION

FALSE LABELING OF PRODUCTS AS AMERICAN-MADE

GOVERNMENT PROPERTY

CHANGES

Excusable delay

EMPLOYEE CONCERNS PROGRAM / DIFFERING PROFESSIONAL OPINIONS

INFORMATION TECHNOLOGY

PART 2. APPLICABLE WHEN ITEMS INCLUDE SERVICES

SELLER’S RESPONSIBILITIES

PART 3. APPLICABLE WHEN SELLER PERSONNEL WORK ON DOE SITE

INCORPORATION BY REFERENCE

FACILITIES ACCESS AND BADGES

RETURN OF BADGES AND PROXIMITY CARDS

ENVIRONMENT, SAFETY AND HEALTH PROTECTION

APPLICABLE WHEN WORK INVOLVES ACCESS TO CLASSIFIED INFORMATION, SPECIAL NUCLEAR MATERIAL OR

AUTHORIZED UNRESTRICTED ACCESS TO AREAS CONTAINING THESE

INCORPORATION BY REFERENCE

PERSONNEL SECURITY CLEARANCES

Terms & Conditions – Commercial Item

Terms & Conditions – Commercial Item Page 2 of 14

August 29, 2023

PART 5. APPLICABLE TO ALL AGREEMENTS IN EXCESS OF $100,000

INCORPORATION BY REFERENCE

PART 6. APPLICABLE TO ALL AGREEMENTS IN EXCESS OF THE SIMPLIFIED ACQUISITION THRESHOLD

INCORPORATION BY REFERENCE

PART 7. APPLICABLE TO ALL AGREEMENTS IN EXCESS OF $500,000

INCORPORATION BY REFERENCE

PART 8. APPLICABLE ONLY TO CERTAIN AGREEMENTS

INCORPORATION BY REFERENCE

COMMERCIAL COMPUTER SOFTWARE

CONFERENCE MANAGEMENT

EMPLOYMENT ELIGIBILITY VERIFICATION

EQUAL OPPORTUNITY PREAWARD CLEARANCE OF SUBCONTRACTORS

INTERNET PROTOCOL TECHNOLOGY

REPORTING WASTE FRAUD AND ABUSE

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PART 1. APPLICABLE TO ALL TRANSACTIONS

DEFINITIONS

The following terms shall have the meanings below:

Government means the United States of America and includes the U.S. Department of Energy (DOE) or any duly authorized representative thereof.

Company means UT-Battelle, LLC, acting under Contract No. DE-AC05-00OR22725 with DOE.

Seller means the person or organization that has entered into this Agreement with Company.

Agreement means Purchase Order, Subcontract, Price Agreement, Marketplace Agreement, Basic Ordering

Agreement, Task Order, or Modification thereof.

Procurement Officer means Company’s cognizant Contracts Division representative.

Item means “commercial item” and “commercial component” as defined in FAR 2.101.

Day means calendar day unless otherwise specified.

RESOLUTION OF DISPUTES

Seller and Company agree to make good-faith efforts to settle any dispute or claim that arises under this Agreement through discussion and negotiation. The parties may consider the use of alternative disputes resolution (ADR). In the event mediation or arbitration is mutually agreed upon, costs shall be mutually shared by Seller and Company and it is agreed that there shall be no pre-decisional interest costs, and each party shall bear its discretionary costs.

In the event that ADR fails or is not used, the parties agree that the appropriate forum for resolution shall be as follows: (1) any litigation shall be brought and prosecuted exclusively in Federal District Court, with venue in the United States Court for the Eastern District of Tennessee, Northern Division; (2) provided, however, that in the event the requirements for jurisdiction in Federal District Court are not present, such litigation shall be brought in the Chancery Court of Knox or Roane County, Tennessee.

The parties agree that substantive issues presented for mediation, arbitration, dispute, claim, litigation, or other effort at resolution shall be determined in accordance with Federal law. To the extent there is no Federal law, Tennessee state law shall apply.

It is agreed that in the event of a dispute, there shall be no interruption in the performance of the work, and Seller shall proceed diligently with the performance of this Agreement pending final resolution of any dispute arising under this Agreement between the parties hereto or between Seller and its sub-tier subcontractors.

ORDER OF PRECEDENCE

Any inconsistencies between sections of the Agreement shall be resolved in accordance with the following descending order of precedence:

Prime flowdowns;

Special Provisions;

Inspection and Acceptance;

Agreement Form; Supplies or Services and Prices/Costs; Delivery, Shipping, Packaging; Performance

Period/Payment Information; List of Attachments;

General Provisions;

Specifications/Statement of Work.

PAYMENT AND ADMINISTRATION

Company shall make payments under this Agreement from funds advanced by the Government and agreed to be advanced by DOE, and not from its own assets. Administration of this Agreement may be transferred, in whole or in part, to DOE or its designee(s), and to the extent of such transfer and notice thereof to Seller, Company shall have no further responsibilities hereunder.

ACCEPTANCE OF TERMS AND CONDITIONS

Seller, by signing this Agreement or delivering the supplies or performing the services identified herein, agrees to comply with all the terms and conditions and all specifications and other documents that this Agreement incorporates by reference or attachment. Company hereby objects to any terms and conditions contained in any acknowledgment of this Agreement that are different from or in addition to those mentioned in this document. Failure of Company to enforce any of the provisions of this Agreement shall not be construed as evidence to interpret the requirements of this Agreement, nor a waiver of any requirement, nor of the right of Company to enforce each and every provision.

All rights and obligations shall survive final performance of this Agreement.

COMMUNICATION AND PRIVITY OF CONTRACT WITH GOVERNMENT

Seller does not have any privity with the Government. Seller shall not communicate with Company’s customer or higher tier customer in connection with this Contract, except as expressly permitted by Company. This clause does not prohibit Seller from communicating with the Government with respect to (1) matters Seller is required by law or regulation to communicate to the Government, (2) fraud, waste, or abuse communicated to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information, (3) any matter for which this Subcontract, including a FAR or FAR Supplement clause included in this Subcontract, provides for direct communication by Seller to the Government, or (4) any material matter pertaining to payment or utilization.

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August 29, 2023

INSPECTION AND ACCEPTANCE

The Seller shall only tender for acceptance those items that conform to the requirements of this Agreement.

Company reserves the right to inspect or test any supplies or services that have been tendered for acceptance.

Company may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in Agreement price. If repair/replacement or reperformance will not correct the defects or is not possible, Company may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. Company must exercise its post-acceptance rights—

(1) Within a reasonable time after the defect was discovered or should have been discovered; and

(2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

Company shall accept supplies or services that conform to the terms of the Agreement and it reserves the right to reject non-conforming supplies or services. Seller may be subject to specific acceptance requirements in the Agreement.

WARRANTY

Notwithstanding inspection and acceptance by the Company under any provision of this Agreement, Seller warrants that services performed and the supplies furnished under this Agreement shall be free from defects in workmanship, be in accordance with Seller’s affirmation, description, sample, or model, and compliant with all requirements of this Agreement. The warranty for services shall begin on acceptance and extend for 6 months. The warranty for supplies shall begin upon acceptance and extend for a period of (1) the manufacturer’s warranty period or six months, whichever is longer, if Seller is not the manufacturer and has not modified the supply or (2) one year or the manufacturer’s warranty period, whichever is longer, if Seller is the manufacturer of the supply or has modified it.

If any nonconformity appears within that time, Company, in addition to any other rights and remedies provided by law, or under other provisions of this Agreement, may require Seller, at no increase in price, to (1) reperform the services and correct or replace the supplies or (2) reduce the Agreement price to reflect the reduced value of Seller’s performance. When supplies are returned, Seller shall bear the transportation cost. If within ten (10) calendar days of Company’s written notice, Seller fails to reperform or correct or replace, as required, Company shall have the right by contract or otherwise to perform the services, replace or correct such supplies, and charge to Seller the cost occasioned the Company thereby and/or terminate this Agreement for default.

When personnel work on DOE site, Seller is responsible for ensuring that all work performed by Seller, subcontractors, manufacturers, or suppliers under this clause is in accordance with Part 3.3, Environment, Safety and Health Protection.

ASSIGNMENT, NOVATION, NAME CHANGE, INVERTED COMPANY

Assignment - Seller shall not assign its rights to third parties without the prior written consent of Company. However, Seller may assign rights to be paid amounts due or to become due to a financing institution if Company is promptly furnished written notice and a signed copy of such assignment.

Novation – Seller shall inform Company of the transfer of Seller’s assets, rights, obligations and/or liabilities under this Agreement to a separate legal entity and submit written proof of such transfer. Company at its sole discretion may recognize the transfer. The novation shall not be effective until all three parties enter into and execute a Novation Agreement.

Change of Name – Seller shall inform Company of a corporate name change and submit documents as proof of such change. Both parties must enter into and execute a Name Change Agreement.

Reorganization – If Seller reorganizes as an inverted domestic corporation or becomes a subsidiary of an inverted domestic corporation at any time during the period of performance of this subcontract, the Company may be prohibited to pay for Seller Activities performed after the date of when it becomes an inverted domestic corporation or subsidiary. The Seller shall immediately notify the Company regarding this change. Company at its sole discretion may recognize the change.

MATERIAL REQUIREMENTS

As provided by FAR 52.211-5 Material Requirements, unless this Agreement specifically requires virgin material or supplies composed of or manufactured from virgin material, Seller shall provide supplies that are composed of unused components, whether manufactured from virgin material, recovered material in the form of raw material, or materials and by-products generated from, and reused within, an original manufacturing process. Used, reconditioned, or remanufactured supplies, or unused Government surplus property shall not be provided unless the Company has authorized their use.

TRANSPORTATION

If transportation is specified “FOB Origin,” (a) no insurance cost shall be allowed unless authorized in writing and (b) the bill of lading shall indicate that transportation is for DOE and the actual total transportation charges paid to the carrier(s) by Company shall be reimbursed by the Government pursuant to Contract No. DE-AC05-00OR22725. Confirmation may be made by the DOE Oak Ridge Office, Contracts Division, P. O. Box 2001, Oak Ridge, TN 37831-8756.

SHIPPING TERMS – DELIVERY DRIVERS MUST BE U.S. CITIZENS:

All deliverables coming onsite to a DOE laboratory, including Oak Ridge National Laboratory (ORNL), must be delivered by a United States citizen. If a foreign national attempts to deliver anything to the ORNL site, the driver will be instructed to turn around and will not be allowed onsite.

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TITLE AND RISK OF LOSS

Unless specified elsewhere in this Agreement, title to items furnished under this Agreement shall pass to the Government upon acceptance, regardless of when or where Company takes physical possession. Unless the Agreement specifically provides otherwise, risk of loss or damage to the items provided under this Agreement shall remain with the Seller until delivery of the items to the destination specified in the Agreement.

PAYMENT

Company shall pay the Seller the prices stipulated in this Agreement for supplies delivered and accepted or services rendered and accepted. Unless otherwise provided, terms of payment shall be net 30 days from the latter of (1) receipt of Seller’s proper invoice, if required (unless such invoice is not approved), or (2) delivery of items/completion of work if invoice is not required.

Any offered discount shall be taken if payment is made within the discount period that Seller indicates. Payments shall be made by electronic funds transfer. The form for enrolling is available in the Electronic Funds Transfer section of our website https://contracts.ornl.gov/. Payment shall be deemed to have been made as of the date on which an electronic funds transfer was made. Company may deduct from any amount owed to Seller any amount owed to Company whether or not in connection with this Agreement. Applicable IRS forms (available at http://web.ornl.gov/adm/ap) must be submitted to ORNL Accounts Payable Department at aptax@ornl.gov. If the appropriate IRS form is not received, payment may be delayed or applicable IRS percentage may be withheld from invoice payment.

Ariba Network for Suppliers: For detailed payment information or inquiries concerning invoices and payments please access the Ariba Network account for your organization at https://supplier.ariba.com/ or email your questions to ornlap@ornl.gov.

COMPLIANCE WITH LAWS

Seller shall comply with all applicable federal, state, and local laws and regulations and such compliance shall be a material requirement of this Agreement. Seller shall, without additional Company expense, be responsible for obtaining any necessary licenses and permits.

Seller shall include this clause in all subcontracts, at any tier, involving the performance of this Agreement.

1.13b FINES AND PENALTIES In the event that any actions that result in fines and/or penalties are taken by a local, state, or federal agency against Company or the Government for a regulatory and/or permit noncompliance that resulted from a failure of Seller to perform in accordance with this Agreement or local, state, or federal law, Seller shall reimburse Company or the Government for the amount of the resultant fine and/or penalty including the cost of any additional work required as a result of the enforcement action to the extent caused by Seller's and its lower-tier subcontractors' negligence and/or failure. Company may withhold such amounts from the future payment due Seller.

1.14a TERMINATION FOR DEFAULT

Company may terminate this Agreement for default, in whole or in part, if Seller (1) fails to supply enough properly skilled workers or proper materials or equipment so as to endanger performance of this Agreement; (2) fails to make payment to subcontractors for materials or labor in accordance with the respective agreements between the Seller and the subcontractors; (3) disregards applicable laws, ordinances, rules, regulations, directives, or orders, or instructions of the Company; (4) fails to adhere to the time specified in this Agreement for performance of services or delivery of supplies; or (5) fails to comply with any of the material terms of this Agreement. In that event, Company shall not be liable for any amount for services or supplies not accepted. The Company’s right to terminate this Agreement under (1), (2), (3), or (5) of this paragraph (a) may be exercised if the Seller does not cure such failure within ten (10) calendar days after receipt of notice from the Company specifying the failure. If Company terminates this Agreement in whole or in part, it may acquire, under the terms and in the manner it considers appropriate, supplies or services similar to those terminated, and Seller will be liable to Company for any excess costs for those supplies or services.

If this Agreement is terminated for default, Company may require Seller to transfer title and deliver to Company any supplies and materials, manufacturing materials, manufacturing drawings, and contract rights that Seller has specifically produced or acquired for the terminated portion of this Agreement. Company shall pay the agreed-upon price for completed items delivered and accepted. Company and Seller shall agree on the amount of payment for all other deliverables.

Except for defaults of lower-tier subcontractors, Seller shall not be in default because of failure to perform if the failure arises from causes outlined below in Part 1.26 Excusable Delay – Force Majeure. Seller will not be deemed to be in default for failure to perform caused by the failure of a lower-tier subcontractor if the failure arose from causes outlined below in Part 1.26; however, Seller will be in default if Company directed Seller to purchase these supplies or services from another source and Seller failed to comply. A termination which was originally determined to be for default shall be treated as a termination for convenience if the Seller was not in default.

The rights and remedies of Company in this clause are in addition to any other rights and remedies provided by law or under this Agreement.

1.14b TERMINATION FOR CONVENIENCE Company reserves the right to terminate this Agreement, or any part hereof, for the convenience of itself or the Government.

In the event of such termination, the Procurement Officer shall deliver a notice specifying the extent of the termination and its https://contracts.ornl.gov/ http://web.ornl.gov/adm/ap mailto:aptax@ornl.gov https://supplier.ariba.com/ mailto:ornlap@ornl.gov

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August 29, 2023 effective date. Seller shall immediately stop all work terminated and shall immediately cause any and all of its affected suppliers and subcontractors to cease work. Subject to the terms of this Agreement, Seller shall be paid a percentage of the price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges that Seller can demonstrate to Company’s satisfaction using its standard record keeping system, have resulted from the termination. Seller shall within 6 months of the effective date of the termination submit a final settlement proposal to Company. Seller shall not be paid for any work performed or costs incurred which reasonably could have been avoided. The cost principles and procedures of Part 31 of the Federal Acquisition Regulation, as supplemented by Part 931 of the Department of Energy Acquisition Regulation, in effect on the date of this Agreement, shall govern all costs claimed. In no event shall the agreed amount exceed the total price of the Agreement.

BANKRUPTCY

If Seller enters into any proceeding relating to bankruptcy, it shall give written notice via certified mail to the Procurement Officer within five (5) calendar days of initiation of the proceedings. The notification shall include the date on which the proceeding was filed, the identity and location of the court and a listing, by Company Agreement number, of all Company Agreements for which final payment has not been made.

INCORPORATION BY REFERENCE

This Agreement incorporates certain provisions by reference. These articles and clauses apply as if they were set forth in their entirety. For FAR and DEAR provisions incorporated by reference, “Contractor” means Seller and “Contracting Officer” means Procurement Officer. Company clauses incorporated by reference are available in the Documents Index and then Special Articles and Forms or Exhibits section of our website https://contracts.ornl.gov/. The FAR and DEAR may be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C., or from Government web sites https://www.acquisition.gov/far/ for FAR and http://energy.gov/management/office-management/operational-management/procurement-and-acquisition/guidance-procurement for DEAR and DOE Directives and Orders. The following clauses are incorporated by reference:

FAR 52.232-39 Unenforceability of Unauthorized Obligations (June 2013)

Taxes: Fixed-Price (Company – July 2006) Counterfeit/Suspect Materials (Company – Sept 2013) Hazardous Material Identification and Material Safety Sheets (Company – July 21, 2015) Insurance – Form 1 (Company – March 2011); if agreement includes services Exhibit 3 - Authorization and Consent (Company – July 2010)

Exhibit 5 - Patent Indemnity (Company – Apr 1984) Protection of Personally Identifiable Information (PII) (10/2018) Supplier Code of Conduct (Company – July 26, 2023)

ENVIRONMENT, SAFETY AND HEALTH PROTECTION

Seller shall perform this Agreement in a manner that ensures adequate protection for workers, the public, and the environment, and shall be accountable for actions of itself and its lower-tier subcontractors, agents and employees.

Seller shall exercise a degree of care commensurate with the work and the associated hazards. Seller shall ensure that management of environment, safety and health (ES&H) functions and activities is an integral and visible part of Seller’s work planning and execution process. In the event that Seller fails to comply with this Agreement, Company may, without prejudice to any other legal or contractual rights, issue an order stopping all or any part of the work; thereafter a start order for resumption of work may be issued at Company’s discretion. Seller shall make no claim for an extension of time or for compensation or damages by reason of or in connection with such work stoppage. In addition, Company may require, in writing, that Seller remove from the work any employee the Company deems unsafe, incompetent, careless, or otherwise objectionable.

If work is going to be performed at the Seller’s facility, Seller shall perform work in accordance with its own ES&H requirements and any ES&H requirements included in this Agreement.

If work is going to be performed at a third-party facility, which is a facility not owned or leased by DOE, Company or Seller, the Seller shall follow the ES&H requirements pertaining to the third-party facility and any ES&H requirements of this Agreement.

If Seller is performing any of this work outdoors at a location(s) not owned or leased by DOE, Company or Seller, such work shall be considered “field work.” Seller shall follow the ES&H requirements pertaining to the field work location(s). Seller shall also perform work in accordance with the ES&H requirements of this Agreement.

ELECTRICAL EQUIPMENT REQUIREMENTS

Unless stated elsewhere in this Agreement, all electrical equipment, assemblies, or items: (1) Shall be listed by a nationally recognized testing laboratory (NRTL) or (2) Shall be field evaluated and labeled by a NRTL at the Seller’s expense. The NRTL’s evaluation label must appear on the equipment, and the Seller shall provide the NRTL’s evaluation report with the equipment.

EXPORT CONTROL

The Seller must comply with all U.S. export control laws and regulations, including the International Traffic in Arms

Regulations (ITAR), 22 CFR Parts 120 through 130, Export Administration Regulations (EAR), 15 CFR Parts 730 through 774, and Atomic Energy Act of 1954 (Public Law 83-703), Nuclear Regulatory Commission 10 CFR Part https://contracts.ornl.gov/ https://www.acquisition.gov/far http://energy.gov/management/office-management/operational-management/procurement-and-acquisition/guidance-procurement http://energy.gov/management/office-management/operational-management/procurement-and-acquisition/guidance-procurement https://contracts.ornl.gov/wp-content/uploads/2023/07/Supplier-Code-of-Conduct-BSD-CS-2280.pd

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August 29, 2023

110 and Department of Energy 10 CFR Part 810, in the performance of this Agreement. In the absence of available license exemptions or exceptions, the Seller must obtain the appropriate licenses or other approvals, if required, for exports of hardware, technical data, and software, or for the provision of technical assistance.

The Seller must obtain export licenses, if required, before using foreign persons in the performance of this Agreement, where the foreign person will have access to export-controlled technical data or software.

The Seller is responsible for all regulatory record-keeping requirements associated with the use of licenses and license exemptions and exceptions.

the Seller shall include this clause in subcontracts hereunder.

GRATUITIES

Seller, its agent or anyone acting on its behalf, shall not offer any gratuity (e.g., entertainment, gift, or cash) or special treatment to any employee of Company with the intent of obtaining a subcontract or other agreement or favorable treatment. If the Company determines that the provisions of this clause were violated, it may terminate the agreement for default and pursue any other remedies provided by law or this Agreement.

FOREIGN CORRUPT PRACTICES ACT

Seller understands and agrees to comply with the United States Foreign Corrupt Practices Act, which prohibits Company and Seller from providing anything of value to a foreign public official in order to obtain or retain business. Seller agrees not to give anything of value, including but not limited to business gratuities and reimbursement of travel, to any foreign government officials. Seller agrees to ensure that it complies with all requirements relevant to its business arrangement with Company, including any registration requirements, and warrants that this Agreement is in compliance with all applicable laws and regulations of the country or countries in which it performs any services for the Company.

PUBLIC RELEASE OF INFORMATION

Company does not endorse products or services. Accordingly, Seller agrees not to use Company’s name, the name Oak Ridge National Laboratory (ORNL), the name of any of its projects or programs, or identifying characteristics of any of these for advertising, marketing, or other promotional purposes, raising of capital, recommending investments, sale of securities, or in any way that implies endorsement by UT-Battelle, ORNL, or DOE. Any media releases concerning this Agreement are prohibited without written consent of the Procurement Officer.

FALSE LABELING OF PRODUCTS AS AMERICAN-MADE

Providing products falsely labeled as made in America is prohibited. If the Company becomes aware of a possible violation of the prohibition, the matter shall be reported to DOE for potential debarment of the entity affixing the false label pursuant to FAR 9.406-2(a)(4) and 9.406-2(b)(1)(iii).

GOVERNMENT PROPERTY

Company may furnish to Seller property as may be required for performance of work under this Agreement, or have

Seller acquire such property as mutually agreed. Title to property furnished or acquired shall vest in the Government, and hereafter be referred to as "Government property." If Seller purchases property for which it is entitled to be reimbursed as a direct item of cost, title shall pass to the Government upon delivery of the property to Seller. Title to all other property, the cost of which is reimbursable to Seller, shall pass to the Government upon the earliest of (1) issuance of property for use in performance, (2) processing property for use in performance, or (3) reimbursement of cost of property. Title shall not be affected by the incorporation or attachment to any property not owned by the Government, nor shall any Government property become a fixture or lose its identity because it is affixed to any realty.

Company shall deliver to Seller the Government property stated in this Agreement. If the property is not suitable for its intended use or is not delivered to Seller as specified in this Agreement, Company shall equitably adjust affected provisions when the facts warrant an equitable adjustment and Seller submits a written request for such adjustment within fourteen (14) calendar days of delivery of the Government property. Said equitable adjustment shall be Seller’s exclusive remedy.

Seller shall establish and maintain a property control program for use, maintenance, repair, protection and preservation of Government property consistent with good business practices and as may be prescribed by Company until disposed of in accordance with this clause. Seller shall report any acquisition of property and materials not considered consumable or general office supplies, as defined in DEAR 970.5245-1 Property. Upon notification, the Seller shall provide requested information regarding Government property and materials by the requested due date (i.e. annual inventory reporting, requests for information regarding acquisitions, audits, reviews, etc.). Seller shall cause all Government property to be clearly marked as Government property. Except as may be authorized in writing, Government property shall be used only for the performance of this Agreement.

Seller shall be responsible for loss or damage to Government property required for performance of this Agreement.

Company and the Government shall have access at all reasonable times to the premises where any Government property is located for the purpose of inspecting the property.

Upon completion of the work under this Agreement, Seller shall submit, in a form acceptable to Company, inventory schedules covering all Government property not consumed in the performance of this Agreement (including any scrap). Seller shall hold the same at no charge for a period up to sixty (60) calendar days or a longer period if mutually agreed. After this, Seller shall dismantle, prepare for shipment, and at Company direction, store or deliver said property (at Company expense), or make such other disposal of the property as directed by Company. The

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August 29, 2023 net proceeds of any such disposal shall be credited to the cost of the work covered by this Agreement or shall be paid as Company may direct.

CHANGES

(a) Only the Procurement Officer is authorized on behalf of Company to issue changes. If Seller considers that any direction or instruction by Company personnel constitutes such a change, Seller shall not rely upon such instruction or direction without written confirmation from the Procurement Officer. Nothing in this clause, including any disagreement with Company about the equitable adjustment, shall excuse Seller from proceeding with the Agreement as changed.

(b) Company may at any time, by written notice, make changes within the general scope of this Agreement in any one or more of the following: (1) description of the work or services to be performed, (2) place of performance, and (3) the amount of work or services to be furnished. If any such change causes a difference in the cost of, or the time required for performance, an equitable adjustment shall be made in the price and/or delivery schedule and other affected provisions. Such adjustment shall be made by written amendment to this Agreement signed by both parties.

Any claim for adjustment by Seller must be made within thirty (30) calendar days from the date of receipt of Company’s change notice, although Company in its sole discretion may receive and act upon any claim for adjustment at any time before final payment. Failure to agree to any adjustment shall be settled in accordance with Part 1.2 of this Agreement.

EXCUSABLE DELAY

(a) The Seller shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of Seller or its lower-tier subcontractors and without its or its lower-tier subcontractor’s fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, pandemics, quarantine restrictions, strikes, named weather event (i.e., hurricane, typhoon, cyclone/tornado) causing loss, and delays of common carriers. The Seller shall notify the Company in writing within three (3) working days after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Company within three (3) working days of the cessation of such occurrence.

(b) If the Company determines that any failure to perform results from one or more of the causes above, only the delivery schedule shall be revised, subject to the rights of the Company under the termination clause of this Agreement.

Notwithstanding the above in (a), any such event to which Seller may be entitled to an adjustment, in schedule delivery, shall be handled in accordance with Part 1.25 Changes.

EMPLOYEE CONCERNS PROGRAM / DIFFERING PROFESSIONAL OPINIONS

DOE Order 442.1B (available at https://www.directives.doe.gov/directives-documents/400-series/0442.1-BOrder- B) establishes an Employee Concerns Program (ECP).The ECP applies to any person working for DOE or a contractor or subcontractor on a DOE project. The ECP provides a means for employees to raise good-faith concerns that a policy or practice of DOE or one of its contractors or subcontractors should be improved, modified, or terminated. Concerns can address health, safety, the environment, management practices, fraud, waste, or reprisal for raising a concern.

DOE Order 442.2 (available at https://www.directives.doe.gov/directives-documents/400-series/0442.2-BOrder-chg1-pgchg) establishes the Differing Professional Opinions (DPO) process. The DPO process is available to employees of contractors or subcontractors to facilitate dialogue and resolution on technical issues involving environment, safety, and health (ES&H), which have not been resolved through routine work processes.

In addition, the Company has its own ECP and a DPO process. Subcontractor employees may raise concerns about actions of the Company or its employees directly with the Company.

The Seller must notify its employees at least annually that:

(1) DOE and the Company have ECPs and DPO processes.

(2) Employees are encouraged to first seek resolution with first-line supervisors or through other in-house complaint or dispute resolution systems.

(3) Employees have the right to report concerns through the Company ECP (1-888-280-0616) or the DOE ECP

(1-800-676-3267 or 1-865-241-3267), if a concern is not resolved by supervisors, or if the employee elects not to raise the concern with supervisory personnel.

(4) Employees have the right to report differences of professional opinion through the Company ECP (1-888-280- 0616), or through the DOE DPO process using contact information contained at https://www.energy.gov/ehss/doe-differing-professional-opinions

(5) DOE and the Company will not tolerate reprisals against or intimidation of employees who have reported concerns.

Upon request, the Seller must assist DOE and the Company in resolution of employee concerns.

The Seller shall include this clause in subcontracts hereunder.

https://www.law.cornell.edu/definitions/index.php?width=840&height=800&iframe=true&def_id=32f75fc7b0fa4d5ebfd765568456a1aa&term_occur=999&term_src=Title:48:Chapter:1:Subchapter:H:Part:52:Subpart:52.2:52.212-4 https://www.directives.doe.gov/directives-documents/400-series/0442.1-BOrder-B https://www.directives.doe.gov/directives-documents/400-series/0442.1-BOrder-B https://www.directives.doe.gov/directives-documents/400-series/0442.2-BOrder-chg1-pgchg https://www.directives.doe.gov/directives-documents/400-series/0442.2-BOrder-chg1-pgchg https://www.energy.gov/ehss/doe-differing-professional-opinions

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INFORMATION TECHNOLOGY

All information technology acquisitions shall include the appropriate information technology security policies and requirements, including use of common security configurations available from the National Institute of Standards and Technology’s website at http://checklists.nist.gov commensurate with the mission of the subcontract and conducive to the research and development efforts of the ORNL.

PART 2. APPLICABLE WHEN ITEMS INCLUDE SERVICES

SELLER’S RESPONSIBILITIES

Seller shall act in performance of this Agreement as an independent contractor and not as an agent for Company or the Government in performing this Agreement, maintaining complete control over its employees and all lower-tier subcontractors. Nothing contained in this Agreement or any lower-tier subcontract shall create any contractual relationship between any such lower-tier subcontractor and the Government or Company. Seller is solely responsible for the actions of itself and its lower-tier subcontractors, agents or employees.

Seller shall be responsible for all liability and related costs resulting from (1) injury, death, disease, damage to or loss of property or (2) violation of Part 1.13a Compliance with Laws, which is in any way connected with its performance of work under this Agreement. Seller’s responsibility shall apply to activities of Seller, its agents, lower-tier subcontractors, or employees and such responsibility includes the obligation to indemnify, defend, and hold harmless the Government and the Company for Seller's conduct. However, such liability and indemnity does not apply to injury, death, or damage to property to the extent it arises from the negligent or willful misconduct of Company.

If Company’s costs are determined to be unallowable, its fee reduced, or it incurs any cost or damages as a result of Seller’s violation of applicable laws, orders, rules, regulations, or ordinances, or the submission of defective cost or pricing data, Company may make an equivalent reduction in amounts due Seller.

PART 3. APPLICABLE WHEN SELLER PERSONNEL WORK ON DOE SITE

For information on clauses incorporated by reference, see Part 1.16. The following clauses are incorporated by reference:

FAR 52.223-6 Drug-Free Workplace (May 2001) FAR 52.237-2 Protection of Government Buildings, Equipment, and Vegetation (Apr 1984)

Foreign Nationals (Company – August 2021) Hazardous Materials Reporting (Company – July 2006) Required Training (Company – July 2006)

FACILITIES ACCESS AND BADGES

This clause applies if the performance of this Agreement requires that the Seller, its agents, employees, or lower-tier subcontractor employees have physical access to Oak Ridge National Laboratory (ORNL) facilities; however, this clause does not control requirements for employees and agents of Seller and any lower-tier subcontractors obtaining a security clearance. The Seller understands and agrees that the Company has a prescribed process with which the Seller, its agents, employees, and lower-tier subcontractor employees must comply in order to receive a badge that allows such physical access. The Seller further understands that it must propose employees and agents of Seller and any lower-tier subcontractors whose background offers the best prospect of obtaining a badge approval for access. The denial or revocation of a badge may occur considering the following criteria, which are not all inclusive and may vary depending on access requirements and circumstances:

(1) is, or is suspected of being, a terrorist;

(2) is the subject of an outstanding warrant;

(3) has deliberately omitted, concealed, or falsified relevant and material facts from any Questionnaire for National

Security Positions (SF-86), Questionnaire for Non-Sensitive Positions (SF-85), or similar form;

(4) has presented false or forged identity source documents;

(5) has been barred from Federal employment;

(6) is currently awaiting a hearing or trial or has been convicted of a crime;

(7) is awaiting or serving a form of pre-prosecution probation, suspended or deferred sentencing, probation or parole in conjunction with an arrest or criminal charges against the individual for a crime that is punishable by imprisonment of six (6) months or longer; or

(8) positive drug test for the presence of illegal substances.

The Seller shall assure:

(1) In initiating the process for gaining physical access, (i) compliance with procedures established by the Company in providing employee(s) and agent(s) of Seller and any lower-tier subcontractors with any forms directed by the Company, (ii) that the employee(s) and agent(s) of Seller and any lower-tier subcontractors properly complete any forms, and (iii) that the employee(s) and agent(s) of Seller and any lower-tier subcontractors submit the forms to the person designated by the Company.

(2) In completing the process for gaining physical access, that employee(s) and agent(s) of Seller and any lower-tier subcontractors (i) cooperate with Company officials responsible for granting access to ORNL facilities and

(ii) provide additional information requested by those Company officials.

http://checklists.nist.gov/

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August 29, 2023

The Seller understands and agrees that the Company or DOE may unilaterally deny or revoke a facility access or badge to an employee or agent of Seller or lower-tier subcontractor and that the denial or revocation remains effective for that employee or agent of Seller or lower-tier subcontractor unless the Company or DOE subsequently determines that access may be granted or restored. Upon notice from the Company or DOE that an employee’s application for a badge is or will be denied or revoked, the Seller shall promptly identify and submit the forms referred to in subparagraph (b)(1) of this clause for the substitute employee or agent. The denial or revocation of a badge to access ORNL to individual employees or agents of Seller or any lower-tier subcontractor by the Company or DOE shall not be cause for extension of the period of performance of this Agreement or any Seller claim against the Company or DOE.

The Seller shall return to the Company the badge(s) or other credential(s) provided by the Company pursuant to this clause, granting physical access to ORNL facilities by employees and agents of Seller and any lower-tier subcontractors, upon (1) the termination of this Agreement; (2) the expiration of this Agreement; (3) the termination of employment on this Agreement by an individual employee or agent of Seller or any lower-tier subcontractor; or

(4) demand by the Company or DOE for return of the badge.

The Seller shall include this clause, including this paragraph (e), in any subcontract, awarded in the performance of this Agreement, in which an employee(s) or agent of the subcontractor will require physical access to ORNL facilities.

RETURN OF BADGES AND PROXIMITY CARDS

Badges and proximity cards issued to Seller and its lower-tier subcontractor employees remain the property of the

U.S. Government and must be returned to the Company at the earliest of any of the following, unless otherwise determined by the Company:

(1) When no longer needed for Agreement performance.

(2) Upon completion of the Seller or lower-tier subcontractor employee’s employment.

(3) Upon completion or termination of this Agreement.

Failure to do so may result in the loss of future work with the Company and may delay final payment.

Failure by employees of the Seller and its lower-tier subcontractors to return badges will result in a charge of $100 per badge. The charge shall be deducted from payments otherwise due the Seller or may be billed to Seller. Refund of charges, previously collected for badges subsequently found, may not be made after the date of final payment to the Seller.

The $100 charge will not be assessed against badges that are lost or stolen during performance of the Agreement if replacement badges are issued to allow Seller or lower-tier subcontractor employees to return to work.

ENVIRONMENT, SAFETY AND HEALTH PROTECTION

This clause applies to the extent Seller is performing any of the work on a DOE site which is defined as a facility that is DOE-owned or leased, or UT-Battelle leased.

Worker Safety and Health Program. Seller shall perform work in accordance with a DOE-approved Worker Safety and Health Program (WSHP) (also referred to in DEAR 970.5223-1 as the Safety Management System) as described below:

(1) Seller shall demonstrate well-established safety protocols applicable to the scope of work and consistent with the required elements stated in this clause. Prior to the commencement of any on-site work, the Seller shall either:

(A) Accept and agree to work pursuant to Company’s WSHP available at http://www.ornl.gov/adm/contracts/wsh_10cfr851.shtml; provided, however, Seller shall be responsible for having its own occupational medicine program that is compliant with 10 C.F.R. § 851.24, Appendix A, Section 8, and paragraph (d) hereof. In those cases where the Seller’s on-site activities are limited to an office or meeting environment, the WSHP and Hazard Analysis (HA) requirements can be met through a site orientation briefing.

(B) Submit its own DOE-approved WSHP, including an occupational medicine program, that is compliant with 10 C.F.R. § 851 and DEAR 970.5223-1 to the Procurement Officer for Company’s review.

(2) When requested, Seller shall submit to Company for review safety and health plans/programs and a HA, including hazard controls, for the affected work.

(3) Seller is responsible for complying with applicable Occupational Safety and Health Act (OSHA) standards and requirements where development of supplemental substance/activity specific compliance plans and training are required. All such plans developed by the Seller shall be made available to the Company for review, upon request.

Integrated Safety Management.

(1) Seller shall perform this Agreement in a manner that ensures adequate protection for workers, the public, and the environment, and shall be accountable for the safe performance of work. The Seller shall exercise a degree of care commensurate with the work and the associated hazards. Seller shall ensure that management of ES&H functions and activities is an integral and visible part of Seller’s work planning and execution processes.

In performance of this work, the Seller shall:

(A) Establish and maintain clear and unambiguous lines of authority and responsibility for ES&H matters at all organizational levels.

(B) Ensure personnel possess the experience, the knowledge, skills, and abilities that are necessary to discharge their responsibilities.

http://www.ornl.gov/adm/contracts/wsh_10cfr851.shtml

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August 29, 2023

(C) Effectively allocate resources to address ES&H, programmatic, and operational considerations.

Protecting employees, the public, and the environment shall be a priority whenever activities are planned and performed.

(D) Before work is performed, evaluate the associated hazards and establish ES&H standards and requirements which will protect employees, the public, and the environment from adverse consequences.

(E) Establish tailored administrative and engineering controls to prevent and mitigate hazards for work being performed.

(F) Ensure that line management is responsible for the protection of employees, the public and the environment. Line management includes those contractor and subcontractor employees managing or supervising employees performing work.

(2) In accordance with the SOW and this Agreement, Seller shall demonstrate through documentation and work practices that its performance of the work under this Agreement:

(A) Fulfills the scope of work as outlined in the SOW and this Agreement;

(B) Identifies and analyzes hazards associated with the work;

(C) Develops and continuously implements hazard controls related to this work;

(D) Allows the performance of work within the hazard controls; and,

(E) Provides feedback to the Company and Seller’s employees on adequacy of hazard controls and opportunities for continuous improvement.

Exposure Monitoring/Occupational Medicine. Seller shall perform the following additional hazard identification tasks consistent with the WSHP and HA:

(1) Seller shall be responsible for identifying all potential exposures (chemical, biological, radiological, physical) to which its employees and the employees of lower-tier subcontractors may be exposed while performing any work under this contract. Seller is responsible for providing the required exposure monitoring and providing employees appropriate personal protective equipment to minimize exposures.

(2) For each of its employees and each of its lower-tier subcontract employees that the Seller has identified to be at risk of potential exposure, the Seller shall notify Company of the potential exposure as part of the HA.

Company will review this information before work under this contract can begin. Seller, upon obtaining the results of any exposure monitoring, shall provide the data to the Company.

(3) Seller shall have an occupational medicine program that is compliant with the applicable requirements of 10 C.F.R.