General Provisions for Equipment Lease.pdf

University of California Lawrence Berkeley National Laboratory

General Provisions Rev. 12/22/22 Equipment Lease Page 1 of 7

GENERAL PROVISIONS FOR EQUIPMENT LEASE

INDEX

1. DEFINITIONS 17. SERVICE AND MAINTENANCE

2. SCOPE OF SUBCONTRACT 18. ALTERATIONS

3. ACCEPTANCE OF SUBCONTRACT 19. INDEMNIFICATION

4. INSPECTION 20. LAWS, REGULATIONS, AND DOE DIRECTIVES

5. DOCUMENTS OF SUBCONTRACTOR 21. ASSIGNMENTS

6 TERMS OF USE 22. NOTIFICATIONS

7 CHANGES 23. DISPUTES

8. TERMINATION 24. EXCUSABLE DELAYS

9. TITLE 25. WORKER SAFETY AND HEALTH

10. RISK OF LOSS 26. INJURY REPORTING

11. PAYMENT 27. GOVERNING LAW AND VENUE

12. TAXES 28. RELEASE OF INFORMATION AND PUBLICATION

13. PROPERTY TAX EXEMPTION 29. WALSH-HEALY PUBLIC CONTRACTS ACT

14. WARRANTY 30. ENTIRE AGREEMENT AND ORDER OF PRECEDENCE

15. PROPRIETARY RIGHTS INDEMNITY 31. TECHNOLOGY EXPORT CONTROL AND NOTIFICATION

16. TRANSPORTATION AND INSTALLATION 32. CLAUSES INCORPORATED BY REFERENCE

CLAUSE 1 – DEFINITIONS

As used herein, the following terms shall have the indicated meanings:

● "CFR" means the U.S. Code of Federal Regulations.

● "DEAR" means the DOE Acquisition Regulation.

● "DOE" means the U.S. Department of Energy.

● "FAR" means the Federal Acquisition Regulation.

● "Government" means the United States Government.

● “Items” means the equipment leased under the Subcontract, and any related supplies and services.

● "LBNL" means the Lawrence Berkeley National Laboratory.

● "Subcontract" means the subcontract between the University and the Subcontractor which includes these General Provisions.

● "Subcontractor" means the party who has entered into the

Subcontract with the University, as identified in the Subcontract.

● The lower-case term "subcontractor" means the Subcontractor's subcontractor(s).

● "University" means The Regents of the University of California, acting through the LBNL.

CLAUSE 2 – SCOPE OF SUBCONTRACT

The scope of the Subcontract shall be limited to the lease of equipment.

The Subcontract is entered into under the University's Prime Contract No.

DE-AC02-05CH11231 with DOE for management and operation of LBNL.

CLAUSE 3 – ACCEPTANCE OF SUBCONTRACT

The equipment, supplies and services covered by this Subcontract shall be furnished by the Subcontractor subject to all the terms and conditions set forth in this Subcontract, which the Subcontractor, in accepting this Subcontract agrees to be bound by and to comply with in all particulars and no other terms or conditions shall be binding upon the parties unless hereafter accepted by them in writing. Written acceptance or shipment of all or any portion of the materials or supplies or the performance of all or any portion of the services covered by this Subcontract shall constitute unqualified acceptance of all terms and conditions herein.

CLAUSE 4 –INSPECTION

The equipment, supplies and services furnished shall be exactly as specified in this Subcontract, free from all defects in manufacturer's design, workmanship and materials, and, except as otherwise provided in this Subcontract, shall be subject to inspection and testing by the University at all times and places. If, prior to final acceptance, any equipment, supplies or services are found to be defective or not as specified, the University may reject them, require the Subcontractor to correct them without charge, or require delivery of such equipment, supplies, or services at a reduction in price which is equitable under the circumstances. If the Subcontractor is unable or refuses to correct such items within a time deemed reasonable to the University, the University may terminate the Subcontract in whole or in part. The Subcontractor shall bear all risks as to rejected equipment, supplies and services and, in addition to any costs for which the Subcontractor may become liable to the University under other provisions of this Subcontract, shall reimburse the University for all transportation costs, other related costs incurred, or payments to the Subcontractor in accordance with the terms of this Subcontract for unaccepted equipment, supplies and services.

Notwithstanding final acceptance and payment the Subcontractor shall be liable for latent defects, fraud or such gross mistakes as amount to fraud.

CLAUSE 5 – DOCUMENTS OF SUBCONTRACTOR

The provisions of any quotation or other documents of the Subcontractor referenced in or incorporated as a part of this Subcontract are referenced or incorporated only for the purpose of specifying the nature of the materials, supplies, or services ordered, the price therefor, and/or the delivery thereof, and any terms and conditions contained in such referenced or incorporated documents shall not apply unless specified otherwise in the Subcontract.

CLAUSE 6 – TERMS OF USE

Except as otherwise provided in this Subcontract, the specified rental payments shall entitle the University to unlimited use and operation of said equipment at any time and any place and for any period of time at the convenience of the University (exclusive of the time required for preventive and remedial maintenance) and shall not be restricted to consecutive hours, length of personnel shifts, or any other restrictions.

CLAUSE 7 – CHANGES

No change to the Subcontract shall be allowed without written approval of the University. Any claim of the Subcontractor for an adjustment under this Article must be made in writing within thirty (30) days from the date of receipt notification of such change unless the University waives this condition in writing. Nothing in the clause shall excuse the Subcontractor from proceeding with performance of the Subcontract as changed hereunder.

CLAUSE 8 – TERMINATION

The University may at its option, by written notice stating the extent and effective date, terminate this order at the anniversary date of the Subcontract or at the end of any fiscal year (September 30) in whole or in part in the event the funding agency does not appropriate sufficient funds to continue the lease payments.

The University may by written notice terminate this Subcontract for the Subcontractor's default, in whole or in part, at any time, if the Subcontractor refuses or fails to comply with the provisions of this Subcontract, or so fails to make progress as to endanger performance and does not cure such failure within a reasonable period of time, or fails to make deliveries of said equipment or supplies or perform the services within the time specified or any written extension thereof.

In the event the University defaults in the payment of any amount due or to become due under the terms of the Subcontract or defaults in the performance of any of the terms and conditions hereof, all the University's

Equipment Lease Page 2 of 7 rights hereunder as to use and possession of the equipment shall, at the option of the Subcontractor, terminate and the Subcontractor shall become entitled to retake possession of the property, provided however, that in such event neither the Subcontractor nor the University shall have the right to rent said equipment to any third party so long as it remains on the premises of the University.

CLAUSE 9 – TITLE

The Subcontractor covenants that it is the sole owner of said property, and that no other person, party, firm or corporation has any right, title, interest in or to same and that during the term of this Subcontract said the Subcontractor will not sell or encumber said property, or any interest therein, except subject to the rights given the University by virtue of the Subcontract. Title to said property, including any accessories and devices furnished by the Subcontractor except those subsequently purchased by the University, vests in the Subcontractor, and said property may be removed by the Subcontractor at or after termination of this Subcontract unless purchased by the University pursuant to its Purchase Option, if any.

CLAUSE 10 – RISK OF LOSS

During the period of time that property covered by this Subcontract is in the possession of the University, the University (and its customers, if installed on the University's customers' premises) shall take good care of the property and the University shall be responsible for any loss of or damage to the property caused by the University while in its possession and control, unless such damage or loss is a consequence, directly or indirectly of intentional or negligent acts or omissions of the Subcontractor or the Subcontractor's agents.

CLAUSE 11 – PAYMENT

Unless otherwise provided for in this Subcontract, lease charges shall be invoiced in arrears and shall be payable thirty (30) days after the end of the period for which the charges accrue or thirty (30) days after the University's receipt of invoice, whichever is later. Any offered discount may be taken if payment is made within the discount period indicated by the Subcontractor. Payments may be made electronically or by check, at the option of the University, and shall be deemed to have been made as of the date the electronic payment was made or the check was mailed.

Information on electronic payments is available at:

https://cfo.lbl.gov/services/accounts-payable/po-supplier-forms

CLAUSE 12 – TAXES

The Subcontractor alone shall pay any license fees, assessments, sales, use and other taxes lawfully imposed during the term hereof upon the equipment, supplies or services furnished pursuant to this Subcontract.

CLAUSE 13 – PROPERTY TAX EXEMPTION

The Subcontractor agrees to cooperate with the University and do all acts reasonably necessary and appropriate to secure and maintain tax exemption of the property leased hereunder as may be applicable pursuant to Article 13, section 3 of the California Constitution. The Subcontractor agrees to apply the amount of any reduction of tax resulting from such exemption as a credit against rental payments otherwise due by the University to the Subcontractor hereunder.

CLAUSE 14 – WARRANTY

The Subcontractor warrants that said equipment, including accessories, will be in good operating condition when installed and that any subsequent defects in design, materials or workmanship during the term of this Subcontract will be corrected by the Subcontractor at its sole expense. In the event of defect in design, material, or workmanship during the term of the Subcontract, the Subcontractor will assert any Manufacturer's Warranty in effect between the Subcontractor and the Manufacturer at the time the defect becomes apparent. The Subcontractor shall also assign to the University, in accordance with the terms of service and maintenance under this agreement, any and all of the manufacturer’s warranties expressed or implied, issued on or applicable to each unit of equipment covered hereunder in the event service and maintenance is not covered under this Subcontract. In such an event, the Subcontractor shall authorize the University to obtain all warranties and services furnished in connection therewith by the manufacturer. The Subcontractor will inform the University of the terms and conditions of the manufacturer's warranty in effect on the commencement date of this Subcontract, and shall execute, if applicable, such documents of assignment as the University may reasonably request and will otherwise use its best efforts to make available to the University all of its rights under the manufacturer’s warranties on the equipment.

CLAUSE 15 – PROPRIETARY RIGHTS INDEMNITY

In addition to FAR 52.227-3 - Patent Indemnity, the Subcontractor shall indemnify, defend, and hold harmless University, its officers, agents, and employees against all losses, damages, liabilities, costs, and expenses (including but not limited to attorney’s fees) resulting from any judgment or proceeding in which it is determined, or any settlement agreement arising out of the allegation, that Subcontractor’s furnishing or supplying University with parts, goods, components, programs, practices, or methods under this order constitutes an infringement of any patent, copyright, trademark, trade name, trade secret, or other proprietary or contractual right of any third party. The foregoing shall not apply unless University has informed Subcontractor as soon as practicable of the suit or action alleging such infringement. Subcontractor shall not settle such suit or action without the consent of University. University retains the right to participate in the defense against any such suit or action.

CLAUSE 16 – TRANSPORTATION AND INSTALLATION

Unless otherwise provided for in this Subcontract, the Subcontractor will be responsible for all transportation and handling costs related to the shipment to and from the University of the leased equipment. Should the equipment require specialized installation, the Subcontractor will provide the required technical assistance at no charge.

CLAUSE 17 – SERVICE AND MAINTENANCE

In the event this Subcontract includes service and maintenance of said equipment, the Subcontractor will provide such service and maintenance required to keep said equipment in good working condition throughout the term of Subcontract. The service and maintenance will consist of not less than: (1) periodic cleaning, and adjustments in the mechanisms and replacing unserviceable parts, and (2) emergency repair service, including replacement of unserviceable parts. In order to perform maintenance service hereunder the Subcontractor shall have reasonable access to the leased equipment to the extent practical in consonance with operational requirements. The Subcontractor agrees that its failure to provide service and maintenance to keep the equipment in good operating condition shall result on a credit of 1/30th of the monthly lease payments for every twenty-four (24) hour period or portion thereof following the first twenty-four (24) hours after notification to the Subcontractor that the equipment is inoperative.

If this Subcontract does not include service or maintenance, the University will be responsible for general maintenance and repair and protect said equipment from deterioration, other than normal wear and tear, and will not use the equipment for any purpose other than that for which it was designed during the term of the Subcontract.

CLAUSE 18 – ALTERATIONS

The University or its authorized agents may make alterations or install attachments to the equipment and the Subcontractor shall be so notified.

In the event that such changes substantially increase the cost of maintenance, mutually agreeable arrangements for additional maintenance service shall be made on an individual installation basis.

Such alterations or attachments which are not the property of the Subcontractor shall be removed immediately after discontinuation of Subcontract (unless the University elects to exercise its Purchase Option) and the equipment restored to the prior configuration (ordinary wear and tear only excluded) at the University's expense. The Subcontractor shall inform the University of any provisions in the manufacturer's warranty which may cause the warranty to be affected by any such alterations or attachments.

CLAUSE 19 – INDEMNIFICATION

(a) Liens. The Subcontractor agrees that, at any time upon the request of the University, it will submit a sworn statement setting forth the services performed or goods furnished by lower-tier subcontractors and the amount due and to become due to each, and that before the final payment called for hereunder, it will, if requested, submit to the University a complete set of vouchers showing what payments have been made for goods and labor used in connection with the work called for hereunder.

(b) Indemnify, Defend and Hold Harmless.

(1) The Subcontractor shall indemnify, defend and hold harmless the University and the Government from all claims, demands, causes of action, or suits, of whatever nature, arising out of the services, labor, and goods furnished by the Subcontractor or its lower-tier subcontractors https://cfo.lbl.gov/services/accounts-payable/po-supplier-forms

Equipment Lease Page 3 of 7 under the Subcontract, and from all laborers', material providers’, and mechanics' liens upon the real property upon which the work is located or any other property of the University or the Government; and

(2) Promptly notify the University, in writing, of any such claims, demands, causes of action, or suits brought to its attention. The Subcontractor shall forward with such notification copies of all pertinent papers received by the Subcontractor with respect to any such claims, demands, causes of action, suits, or liens and, at the request of the University, shall do all things and execute and deliver all appropriate documents and assignments in favor of the University or the Government of all the Subcontractor's rights and claims growing out of such asserted claims as will enable the University and the Government to protect their respective interests by litigation or other means. The final payment shall not be made until the Subcontractor, if required, shall deliver to the University a complete release of all liens arising out of the Subcontract or receipts in full in lieu thereof, as the University may require, and if required in either case, an affidavit that as far as it has knowledge or information, the receipts include all the labor and goods for which a lien could be filed;

but the Subcontractor may, if any lower-tier subcontractor refuses to furnish a release or receipt in full, furnish a bond satisfactory to the University to indemnify it against any claim by lien or other means. If any lien or claim remains unsatisfied after all payments are made, the Subcontractor shall refund to the University all moneys that the latter may be compelled to pay in discharging such lien or claim, including all costs and reasonable attorney's fees.

CLAUSE 20 – LAWS, REGULATIONS, AND DOE DIRECTIVES

All delivered items and all services performed under this Subcontract shall be in compliance with all applicable federal, state, and local laws, ordinances, statutes, codes, rules, and regulations (including DOE regulations), including but not limited to those relating to wages, hours, employment, discrimination, immigration, and safety (including OSHA The Subcontractor shall also comply with the Contractor Requirements Document (CRD) of any DOE Directive referenced within the Subcontract or these General Provisions.

Except as otherwise directed in writing by the University Representative, the Subcontractor shall procure all necessary permits or licenses required for the performance of work under this Subcontract.

CLAUSE 21 – ASSIGNMENTS

(a) This Subcontract may be assigned by the University to the U.S.

Government or a successor-in-interest for management and operation of

LBNL.

(b) Except as to assignment of payment due hereunder, the Subcontractor shall have no right, power or authority to sell, mortgage, transfer or assign this Subcontract, any portion hereof, any interest herein or any claim hereunder, nor allow or permit any other party or parties to have any interest in or use any part of the rights or obligations granted hereunder for any purpose whatsoever without the prior written consent of the University.

(c) Neither this Subcontract nor any interest created thereby or any claim here under shall pass by operation of law or otherwise to any trustee or receiver in bankruptcy or to any other receiver or assignee for the benefit of creditors, or to any other party or parties, except as expressly authorized by the University. The breach of the foregoing prohibition, whether voluntary, or by operation of law, by any process or proceeding of any court or by attachment, execution, proceeding in reorganization, composition, insolvency, or bankruptcy, whether voluntary or involuntary, shall be cause for default under this Subcontract.

CLAUSE 22 – NOTIFICATIONS

(a) The Subcontractor shall immediately notify the University Procurement Representative in writing of: (1) any action, including any proceeding before an administrative agency, filed against the Subcontractor arising out of the performance of this Subcontract; and (2) any claim made against the Subcontractor, the cost of which is reimbursable hereunder.

(b) The Subcontractor agrees to notify the University of any government tax, fee, or charge levied or purported to be levied on or collected from the Subcontractor in connection with this Subcontract which the Subcontractor has reason to believe may be inapplicable or invalid, and which would be reimbursable or the University has claimed an exemption hereunder.

Subcontractor also agrees to refrain from paying any such tax, fee, or charge, unless otherwise authorized by the University, and to take such steps as may be required by the University to cause such tax, fee, or charge to be paid under protest and, if so directed by the University, to cause to be assigned to the University or its designee any and all rights to the abatement or refund of any such tax, fee, or charge, and to permit the University or its designee to join with the Subcontractor in any proceedings for the recovery thereof or to sue for recovery in the Subcontractor's name.

(c) If, at any time during the performance of this Subcontract, the Subcontractor becomes aware of any circumstances which may jeopardize its performance of all or any portion of the Subcontract, it shall immediately notify the University Procurement Representative in writing of such circumstances, and the Subcontractor shall take whatever action is reasonably necessary to resolve such circumstances within the shortest possible time.

CLAUSE 23 – DISPUTES

Except as otherwise provided in this Subcontract, any non-routine claim under this Subcontract not resolved in the ordinary course of business shall be referred in writing to the University Procurement Representative and the executive management of the Subcontractor with the authority to settle the dispute, within 30 days of the act, event, or order giving rise to the claim. The representatives of the parties, or their designees, shall then attempt in good faith to resolve the dispute by negotiations. All negotiations shall be confidential and shall be treated as compromise and settlement negotiations, for the purposes of application of rules of evidence. Pending resolution of the dispute, the Subcontractor shall proceed diligently with the performance of the Subcontract, in accordance with its terms and conditions.

Any unresolved dispute with a value under $100,000 relating to the Subcontract (whether contract, tort, or both), or the breach of the Subcontract may be arbitrated by and in accordance with the then existing commercial arbitration rules of the American Arbitration Association (AAA). Judgment on the award rendered by the arbitrator may be entered in any court in Alameda County, CA having jurisdiction.

If arbitration is selected, the following modifications are made to the AAA rules: (1) the arbitrator shall be neutral and appointed by the AAA.; (2) the location for all arbitrations shall be in Alameda County; and (3) each party to the arbitration shall pay its pro rata share of the arbitrator's fees not including counsel fees or witness fees or other expenses incurred by a party for its own benefit.

The parties shall consider the use of a form of alternate disputes resolution (ADR), including non-binding mediation and binding arbitration, for any unresolved dispute with a value of $100,000 or more. In the event that ADR fails or is not used for such disputes, the parties may thereafter pursue any remedy they may have, at law or in equity, in a court of competent jurisdiction, in accordance with the clause of these General Provisions entitled Governing Law and Venue.

CLAUSE 24 - EXCUSABLE DELAYS

The Subcontractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of Subcontractor and without its fault or negligence, which include by way of illustration, but not limitation, acts of God or the public enemy, acts of the federal, state or local government in either its sovereign or contractual capacity, fires, flood, epidemics and quarantines, civil disobedience, strikes, lock-outs, freight embargoes, inclement weather, delays of common carriers, or any other condition beyond the Subcontractor’s reasonable control. The Subcontractor shall notify the University in writing as soon as reasonably possible after 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 the University written notice of the cessation of such occurrence.

A Subcontractor invoking this provision shall have the burden of proving that such occurrence(s) delayed or prevented its performance despite its diligent efforts to perform and shall produce such supporting documentation as the University may reasonably request. After receipt of such notification, the University may elect either to cancel the Agreement or to extend the time for performance as reasonably necessary.

CLAUSE 25 – WORKER SAFETY AND HEALTH

(Applicable if the Subcontract involves performance at an LBNL site.)

The Subcontractor and its lower-tier subcontractors performing work at an LBNL worksite are subject to the DOE Worker Safety and Health Program regulation at 10 CFR 851, and shall perform the work in compliance with the LBNL Health and Safety Manual, available at https://sites.google.com/lbl.gov/eshmanual/home, which implements the requirements of 10 CFR 851, and in compliance with their Cal/OSHA https://sites.google.com/lbl.gov/eshmanual/home

Equipment Lease Page 4 of 7 mandated Injury and Illness Prevention Plan (IIPP) or equivalent and all other LBNL safety procedures and policies communicated to the Subcontractor. The Subcontractor is responsible for ensuring that its lower-tier subcontractors comply with these requirements. Violations of these requirements may subject the Subcontractor and its lower-tier subcontractors to civil penalties.

The Subcontractor shall ensure that all workers requiring unescorted/ badged access to an LBNL site complete the General Employee Radiological Training (GERT). The on-line training is available at https://training.lbl.gov/ehs/training/webcourses/EHS0470/.

CLAUSE 26 – INJURY REPORTING

(Applicable if the Subcontract involves performance by ten or more Subcontractor employees at LBNL sites.)

(a) Subcontractor shall report all injuries to Subcontractor's employees that qualify for inclusion on Subcontractor's Cal-OSHA log to the University within 10 days of occurrence of the injury. Subcontractor shall furnish a copy of its supplemental injury report form (OSHA form 301 or equivalent) for each such case. This report shall be emailed to injury-review@lbl.gov.

In addition, serious injuries resulting in death (including any death occurring 30 days following a work-related incident) or in-patient hospitalization and all amputations and all losses of an eye shall be reported by telephone immediately to the LBNL Health Services, (510) 486-6266.

(b) Subcontractor shall report to the University the hours worked by Subcontractor's employees on the LBNL Site on a quarterly basis. For each quarter, the hours worked shall be reported in writing no later than the 10th day of the month following the end of the quarter (i.e. January 10th, April 10th, July 10th, October 10th). This report shall be emailed to injury-review@lbl.gov.

CLAUSE 27 – GOVERNING LAW AND VENUE

The Subcontract shall be interpreted in accordance with the substantive and procedural laws of the State of California. Any action at law or judicial proceeding instituted by either party pertaining to the Subcontract shall be instituted in the State of California in the Superior Court of Alameda County.

CLAUSE 28 - RELEASE OF INFORMATION AND PUBLICATION

(a) The Subcontractor agrees that information regarding this Subcontract, any data developed or obtained, and the name of the University, the Lawrence Berkeley National Laboratory (LBNL), or the Government shall not be disclosed in any publications, news releases, advertising, speeches, technical papers, photographs, and other releases of information without prior written approval from the University Procurement Representative.

(b) The Subcontractor shall closely coordinate with the University's Technical Representative regarding any proposed scientific, technical or professional publication of the results of the work performed or any data developed under this Subcontract. The Subcontractor shall provide the University an opportunity to review any proposed manuscripts describing, in whole or in part, the results of the work performed or any data developed under this Subcontract at least forty-five (45) days prior to their submission for publication. The University will review the proposed publication and provide comments. A response shall be provided to the Subcontractor within forty-five (45) days; otherwise, the Subcontractor may assume that the University has no comments. The Subcontractor agrees to address any concerns or issues identified by the University prior to submission for publication.

(c) Subcontractor shall acknowledge the University and Government sponsorship of the work as appropriate, and shall include a statement that such sponsorship does not constitute endorsement by the University or the Government of the views expressed in the publication.

CLAUSE 29 – WALSH-HEALEY PUBLIC CONTRACTS ACT

If this Subcontract is for the manufacture or furnishing of materials, supplies, articles, or equipment in an amount which exceeds or may exceed $15,000.00 and is otherwise subject to the Walsh-Healey Public Contracts Act, as amended (41 U.S.C. 35), there are hereby incorporated by reference all representations and stipulations required by said Act and regulations issued thereunder by the Secretary of Labor, such representations and stipulations being subject to all applicable rulings and interpretations of the Secretary of Labor which are now or may hereafter be in effect.

CLAUSE 30 – ENTIRE AGREEMENT AND ORDER OF PRECEDENCE

This Subcontract shall consist of the Subcontract document (including any signature page and schedule of articles), these General Provisions, and any other referenced or incorporated clauses, provisions, and documents, which is the entire agreement between the parties concerning the subject matter hereof and supersedes all prior proposals, representations, negotiations, or agreements, whether written or oral.

Any inconsistencies in the terms and conditions comprising the Subcontract shall be resolved by giving precedence in the following order:

(a) the Subcontract document; (b) these General Provisions, including the FAR and DEAR clauses listed in the clause entitled Clauses Incorporated by Reference; (c) any specifications; (d) other documents listed in the Subcontract Article entitled Incorporated Documents, if any, in the order in which they are listed; and (e) any other referenced or incorporated clauses, provisions, and documents.

CLAUSE 31 – TECHNOLOGY EXPORT CONTROL AND

NOTIFICATION

(a) If any of the ordered items (including data, software, or services) are export controlled under the International Traffic in Arms Regulations (22 CFR sections 120-130, aka “ITAR”); the Export Administration Regulations (15 CFR sections 730-744, aka “EAR”); the Nuclear Related Regulations (10 CFR 110 and 10 CFR 810); the Foreign Assets Control Regulations (31 CFR section 500-599, aka "OFAC"); or if sourced internationally, i.e. Controlled under a country’s equivalent dual use or military strategic goods list, then the Subcontractor agrees to provide the Procurement Representative with written notification of the export controlled status prior to shipment or transfer to the University. The notification must specifically identify the export-controlled items and its export classification. The University reserves the right to cancel or modify any part of the Subcontract that includes export-controlled items, data, software, or services prior to accepting delivery. Subcontractor agrees to comply with this notification provision. Subcontractor understands that materials and information resulting from the performance of this Subcontract may be subject to export control laws and that Subcontractor is responsible for compliance with such laws.

(b) Subcontractor shall indemnify the University and the Government for all export enforcement mitigation costs, fines, or penalties incurred by the University, specifically arising from Subcontractor’s failure to comply with this notification provision and the University’s reliance on the Subcontractor’s representation as provided.

CLAUSE 32 – CLAUSES INCORPORATED BY REFERENCE

The FAR and DEAR clauses listed below, which are located in Chapters 1 and 9 of CFR Title 48 and available at https://www.ecfr.gov/current/title- 48, are hereby incorporated by reference as a part of these General Provisions, as prescribed below. The Subcontractor shall include the listed clauses in its subcontracts at any tier, to the extent applicable.

As used in the clauses, the term "contract" shall mean this Subcontract;

the term "Contractor" shall mean the Subcontractor; the lower-case term "subcontractor" shall mean the Subcontractor's subcontractor; and the terms "Government" and "Contracting Officer" shall mean the University, except in FAR 52.227-1, 52.227-2, 52.227-3, 52.227-14, and 52.227-19, and DEAR 970.5232-3 and 970.5227-5, in which clauses "Government" shall mean the U.S. Government and "Contracting Officer" shall mean the DOE Contracting Officer for Prime Contract DE-AC02-05CH11231 with the University. As used in DEAR 952.227-9 and 970.5232-3, the term "DOE" shall mean DOE and the University.

For clauses that reference a “DEVIATION” see clause text in Prime Contract DE-AC02-05CH11231 with the University.

THE FOLLOWING CLAUSES APPLY TO ALL SUBCONTRACTS:

DEAR 952.203-70 WHISTLEBLOWER PROTECTION FOR

CONTRACTOR EMPLOYEES (DEC 2000). Applies if the Subcontract involves any work at a DOE-owned or leased site.

DEAR 952.204-71 SENSITIVE FOREIGN NATIONS CONTROLS

(MAR 2011). Applies when Subcontract involves making unclassified information about nuclear technology available to sensitive foreign nations.

DEAR 952.204-77 COMPUTER SECURITY (AUG 2006).

Applies if the Subcontractor has access to any computers owned, leased or operated by or on behalf of LBNL or DOE.

https://training.lbl.gov/ehs/training/webcourses/EHS0470/ https://www.ecfr.gov/current/title-48 https://www.ecfr.gov/current/title-48 https://www.ucop.edu/laboratory-management/contracts/lbnl/index.html https://www.ucop.edu/laboratory-management/contracts/lbnl/index.html

Equipment Lease Page 5 of 7

FAR 52.203-19 PROHIBITION ON REQUIRING CERTAIN

INTERNAL CONFIDENTIALITY AGREEMENTS

OR STATEMENTS (JAN 2017)

FAR 52.204-23 PROHIBITION ON CONTRACTING FOR

HARDWARE, SOFTWARE, AND SERVICES

DEVELOPED OR PROVIDED BY KASPERSKY

LAB AND OTHER COVERED ENTITIES (NOV

2021)

FAR 52.204-25 PROHIBITION ON CONTRACTING FOR

CERTAIN TELECOMMUNICATIONS AND VIDEO

SURVEILLANCE SERVICES OR EQUIPMENT

(NOV 2021) Exclude paragraph (b)(2).

FAR 52.211-17 DELIVERY OF EXCESS QUANTITIES (SEP 1989)

FAR 52.217-8 OPTION TO EXTEND SERVICES (NOV 1999)

FAR 52.217-9 OPTION TO EXTEND THE TERM OF THE

CONTRACT (MAR 2000)

FAR 52.222-4 CONTRACT WORK HOURS AND SAFETY

STANDARDS ACT – OVERTIME

COMPENSATION (MAY 2018). Only applies when work involves the employment of laborers or mechanics and is for other than "commercial products" or “commercial services”.

FAR 52.222-21 PROHIBITION OF SEGREGATED FACILITIES

(APR 2015)

FAR 52.222-26 EQUAL OPPORTUNITY (SEP 2016)

Note: Download the required Know Your Rights Poster at:

https://webapps.dol.gov/elaws/firststep/poster_dire ct.htm?p_eeo=1&_ga=2.162302842.738766324.1 605452866-895731500.1605452866

FAR 52.222-50 COMBATING TRAFFICKING IN PERSONS (NOV

2021)

FAR 52.223-3 HAZARDOUS MATERIAL IDENTIFICATION AND

MATERIAL SAFETY DATA (FEB 2021), with ALTERNATE I (JUL 1995). Applies only if the Subcontract involves the delivery or on-site use of any hazardous materials.

FAR 52.223-11 OZONE-DEPLETING SUBSTANCES AND HIGH

GLOBAL WARMING POTENTIAL

HYDROFLUOROCARBONS (JUN 2016). Applies as prescribed in FAR 23.804 (a) (1).

FAR 52.223-12 MAINTENANCE, SERVICE, REPAIR OR

DISPOSAL OF REFRIGERATION EQUIPMENT

AND AIR CONDITIONERS (JUN 2016). Applies as prescribed in FAR 23.804(a)(2).

FAR 52.223-15 ENERGY EFFICIENCY IN ENERGY-

CONSUMING PRODUCTS (MAY 2020) Applies as prescribed in FAR 23.206.

FAR 52.223-16 ACQUISITION OF EPEAT® - REGISTERED

PERSONAL COMPUTER PRODUCTS (OCT

2015) Applies as prescribed in FAR 23.705(d)(1).

FAR 52.223-17 AFFIRMATIVE PROCUREMENT OF EPA-

DESIGNATED ITEMS IN SERVICE AND

CONSTRUCTION CONTRACTS (AUG 2018)

Applies as prescribed in FAR 23.406(e).

DEAR 970.5223-4 WORKPLACE SUBSTANCE ABUSE PROGRAMS

AT DOE SITES (DEC 2010). Applies if the Subcontract involves any of the hazardous activities stipulated in 10 CFR 707.2.

DEAR 970.5225-1 COMPLIANCE WITH EXPORT CONTROL LAWS

AND REGULATIONS (NOV 2015)

FAR 52.225-13 RESTRICTIONS ON CERTAIN FOREIGN

PURCHASES (FEB 2021)

DEAR 952.227-9 REFUND OF ROYALTIES (MAR 1995). Applies if royalties greater than $250.00 are reported during negotiation of the Subcontract.

FAR 52.227-14 RIGHTS IN DATA-GENERAL (MAY 2014), with ALTERNATE I (DEC 2007) and V (DEC 2007) and ALTERNATE VIII of DEAR 952.227-14 (Text for ALT VIII is made available in the LBNL GENERAL

PROVISIONS PATENT AND DATA RIGHTS

CLAUSES (12/22/22) at:

http://procurement.lbl.gov/welcome-to-procurement-property/become-a-supplier/general-provisions/).

Applies if any data, including technical data or computer software, will be produced, furnished, acquired, or delivered under this Subcontract.

If delivery of Limited Rights Data is required, then ALTERNATE II (DEC 2007) shall apply, with the following disclosure purposes added to the end of paragraph (a) of the Limited Rights Notice:

1. Use (except for manufacture) by support services contractors or subcontractors;

2. Evaluation by non-government evaluators;

3. Use (except for manufacture) by other contractors or subcontractors participating in the Government’s program of which the specific subcontract is a part;

4. Emergency repair or overhaul work; and

5. Release to a foreign government, or its instrumentalities, if required to serve the interests of the U.S. Government, for information or evaluation or for emergency repair or overhaul work.

If delivery of Restricted Computer Software is required, then ALTERNATE III (DEC 2007) shall apply.

FAR 52.227-19 COMMERCIAL COMPUTER SOFTWARE

LICENSE (DEC 2007). Applies if the Subcontract involves the acquisition of commercial computer software (other than from GSA’s Multiple Award Schedule contracts).

DEAR 952.227-82 RIGHTS TO PROPOSAL DATA (APR 1994)

Applies if there is technical proposal data.

DEAR 970.5204-2 LAWS, REGULATIONS AND DOE DIRECTIVES

(DEC 2000) (DEVIATION) References in this clause to "Appendix I", "Appendix I/List A" or “Appendix B” is replaced with "these General Provisions" and the words "Contract", "Contractor" and "Contracting Officer" are replaced with "Subcontract", “Subcontractor" and “University Procurement Representative", respectively.

DEAR 970.5232-3 ACCOUNTS, RECORDS, AND INSPECTION

(OCT 2021) (PF 2022-23 DEVIATION), only paragraphs (a) through (h). Applies only when costs are a factor in determining the amount payable to the Subcontractor. Alternate I applies if FAR 52.215-11 is also applicable.

FAR 52.232-11 EXTRAS (APR 1984)

FAR 52.232-39 UNENFORCEABILITY OF UNAUTHORIZED

OBLIGATIONS (JUN 2013)

FAR 52.232-40 PROVIDING ACCELERATED PAYMENTS TO

SMALL BUSINESS SUBCONTRACTORS (NOV

2021)

FAR 52.242-15 STOP-WORK ORDER (AUG 1989)

FAR 52.243-1 CHANGES – FIXED PRICE (AUG 1987) with applicable ALTERNATE

FAR 52.244-6 SUBCONTRACTS FOR COMMERCIAL

PRODUCTS AND COMMERCIAL SERVICES

(JAN 2022) Applies for subcontracts for commercial products or commercial services.

FAR 52.246-26 REPORTING NONCONFORMING ITEMS (NOV

2021) Applies as prescribed in 46.317.

FAR 52.247-63 PREFERENCE FOR U.S.-FLAG AIR CARRIERS

(JUN 2003). Applies as prescribed in FAR 47.405.

https://webapps.dol.gov/elaws/firststep/poster_direct.htm?p_eeo=1&_ga=2.162302842.738766324.1605452866-895731500.1605452866 https://webapps.dol.gov/elaws/firststep/poster_direct.htm?p_eeo=1&_ga=2.162302842.738766324.1605452866-895731500.1605452866 https://webapps.dol.gov/elaws/firststep/poster_direct.htm?p_eeo=1&_ga=2.162302842.738766324.1605452866-895731500.1605452866 https://drive.google.com/file/d/1MyW_GIoMpnl8FPGsNebVUhW9dwYVwU2b/view?usp=share_link https://drive.google.com/file/d/1MyW_GIoMpnl8FPGsNebVUhW9dwYVwU2b/view?usp=share_link https://drive.google.com/file/d/1MyW_GIoMpnl8FPGsNebVUhW9dwYVwU2b/view?usp=share_link http://procurement.lbl.gov/welcome-to-procurement-property/become-a-supplier/general-provisions/ http://procurement.lbl.gov/welcome-to-procurement-property/become-a-supplier/general-provisions/ http://procurement.lbl.gov/welcome-to-procurement-property/become-a-supplier/general-provisions/

Equipment Lease Page 6 of 7

FAR 52.247-64 PREFERENCE FOR PRIVATELY OWNED U.S.-

FLAG COMMERCIAL VESSELS (NOV 2021).

Applies as prescribed in FAR 47.507(a).

FAR 52.249-4 TERMINATION FOR CONVENIENCE OF THE

GOVERNMENT (SERVICES) (SHORT FORM)

(APR 1984). Only applies if the Subcontract is for services.

THE FOLLOWING CLAUSES APPLY IF THE SUBCONTRACT

EXCEEDS $3,500:

FAR 52.222-54 EMPLOYMENT ELIGIBILITY VERIFICATION

(NOV 2021). Applies if the Subcontract is for construction or services performed in the U.S., except for commercial services that are part of the purchase of a 'commercially available off-the-shelf' (COTS) item, or a COTS item with minor modifications, normally provided for that COTS item, and performed by the COTS provider.

THE FOLLOWING CLAUSES APPLY IF THE SUBCONTRACT

EXCEEDS $10,000:

FAR 52.222-40 NOTIFICATION OF EMPLOYEE RIGHTS UNDER

THE NATIONAL LABOR RELATIONS ACT (DEC

2010), if performed wholly or partially in the United States, unless exempted by the rules, regulations, or orders of the Secretary of Labor issued pursuant to section 3 of Executive Order 13496

FAR 52.223-18 ENCOURAGING CONTRACTOR POLICIES TO

BAN TEXT MESSAGING WHILE DRIVING (JUN

2020)

FAR 52.225-1 BUY AMERICAN ACT - SUPPLIES (NOV 2021)

MODIFIED BY DEAR 970.2570-1

THE FOLLOWING CLAUSE APPLIES IF THE SUBCONTRACT

EXCEEDS $15,000:

FAR 52.222-36 EQUAL OPPORTUNITYFOR WORKERS WITH

DISABILITIES (JUN 2020)

THE FOLLOWING CLAUSE APPLIES IF THE SUBCONTRACT

EXCEEDS $35,000:

FAR 52.209-6 PROTECTING THE GOVERNMENT'S INTEREST

WHEN SUBCONTRACTING WITH

CONTRACTORS DEBARRED, SUSPENDED, OR

PROPOSED FOR DEBARMENT (NOV 2021)

THE FOLLOWING CLAUSES APPLY IF THE SUBCONTRACT

EXCEEDS $150,000:

FAR 52.203-7 ANTI-KICKBACK PROCEDURES (JUN 2020),

excluding paragraph (c)(1)

FAR 52.203-12 LIMITATION ON PAYMENTS TO INFLUENCE

CERTAIN FEDERAL TRANSACTIONS (JUN 2020)

THE FOLLOWING CLAUSE APPLIES IF THE SUBCONTRACT IS

$250,000 OR LESS:

FAR 52.249-1 TERMINATION FOR CONVENIENCE OF THE

GOVERNMENT (FIXED PRICE) (SHORT FORM)

(APR 1984)

THE FOLLOWING CLAUSES APPLY IF THE SUBCONTRACT

EXCEEDS $250,000:

FAR 52.203-6 RESTRICTIONS ON SUBCONTRACTOR SALES

TO THE GOVERNMENT (JUN 2020). Alternate I applies if Subcontract is for a commercial product or commercial service as defined in FAR2.101.

FAR 52.203-10 PRICE OR FEE ADJUSTMENT FOR ILLEGAL OR

IMPROPER ACTIVITY (MAY 2014) Applies as prescribed in FAR 3.104-9(b).

FAR 52.203-17 CONTRACTOR EMPLOYEE WHISTELEBLOWER

RIGHTS AND REQUIREMENT TO INFORM

EMPLOYEES OF WHISTLEBLOWER RIGHTS

(JUN 2020)

FAR 52.219-8 UTILIZATION OF SMALL BUSINESS CONCERNS

(OCT 2018). The Subcontractor must flow down this requirement to lower-tier subcontractors when the Subcontract is greater than the threshold specified in FAR 19.702(a) on the date of Subcontract award. This requirement does not apply if the Subcontractor is a small business.

FAR 52.227-1 AUTHORIZATION AND CONSENT (JUN 2020)

FAR 52.227-2 NOTICE AND ASSISTANCE REGARDING

PATENT AND COPYRIGHT INFRINGEMENT

(JUN 2020).

FAR 52.227-3 PATENT INDEMNITY (APR 1984) Applies if commercial product(s) could be delivered or commercial service(s) could be provided.

FAR 52.229-3 FEDERAL, STATE, AND LOCAL TAXES (FEB

2013)

FAR 52.244-2 SUBCONTRACTS (JUN 2020), with ALTERNATE I (JUN 2020). Applies as prescribed in FAR 44.204(a).

FAR 52.249-2 TERMINATION FOR CONVENIENCE OF THE

GOVERNMENT (FIXED PRICE) (APR 2012).

FAR 52.249-8 DEFAULT (FIXED-PRICE SUPPLY AND

SERVICE) (APR 1984)

DEAR 970.5227-5 NOTICE AND ASSISTANCE REGARDING

PATENT AND COPYRIGHT INFRINGEMENT

(DEC 2000) (DEVIATION)

THE FOLLOWING CLAUSE APPLIES IF THE SUBCONTRACT

EXCEEDS $750,000:

FAR 52.219-9 SMALL BUSINESS SUBCONTRACTING PLAN

(NOV 2021) Applies unless the Subcontractor is a small business.

THE FOLLOWING CLAUSES APPLY IF THE SUBCONTRACT

EXCEEDS $2,000,000:

FAR 52.215-10 PRICE REDUCTION FOR DEFECTIVE COST OR

PRICING DATA (AUG 2011). Applies if certified cost or pricing data is required.

FAR 52.215-11 PRICE REDUCTION FOR DEFECTIVE

CERTIFIED COST OR PRICING DATA –

MODIFICATIONS (JUN 2020). Applies if certified cost or pricing data is required.

FAR 52.215-12 SUBCONTRACTOR COST OR PRICING DATA

(JUN 2020). Applies if certified cost or pricing data is required.

FAR 52.215-13 SUBCONTRACTOR COST OR PRICING DATA -

MODIFICATIONS (JUN 2020). Applies if certified cost or pricing data is required.

THE FOLLOWING CLAUSES APPLY IF THE SUBCONTRACT

EXCEEDS $6,000,000:

FAR 52.203-13 CONTRACTOR CODE OF BUSINESS ETHICS

AND CONDUCT (NOV 2021). Applies if the Subcontract has a performance period of more than 120 days. All disclosures of violation of the civil False Claims Act or of Federal criminal law shall be directed to the DOE Inspector General, with a copy to the Contracting Officer.

FAR 52.203-14 DISPLAY OF HOTLINE POSTER(S) (NOV 2021)

MODIFIED BY DEAR 903.1004(b)(2)(ii). Does not apply if Subcontract is for commercial products or commercial services or if performed entirely outside U.S. Download the required poster at:

http://ig.energy.gov/hotline.htm

Equipment Lease Page 7 of 7

THE DOE ORDERS (CONTRACTOR REQUIREMENTS DOCUMENTS

ONLY) BELOW APPLY TO ALL SUBCONTRACTS. They can be found at http://www.directives.doe.gov/ :

DOE O 221.1B REPORTING FRAUD, WASTE AND ABUSE TO

THE OFFICE OF INSPECTOR GENERAL (CRD

only) (9/27/16) Applies when the Subcontract exceeds $5.5 million and lasts more than 120 days.

DOE O 221.2A COOPERATION WITH THE OFFICE OF

INSPECTOR GENERAL (CRD only) (2/25/08)

DOE O 414.1D

Admin Chg 2 (LtdChg)

QUALITY ASSURANCE (CRD only) (9/15/20)

DOE O 442.1B DEPARTYMENT OF ENERGY EMPLOYEE

CONCERNS PROGRAM (CRD only) (1/31/19)

DOE O 550.1

Chg 1 (LtdChg)

OFFICIAL TRAVEL (CRD only) (12/13/19)

END OF GENERAL PROVISIONS

http://www.directives.doe.gov/