Section II.Cover Page.pdf

Section II Sample Subcontract

PPPL General Terms and Conditions for Non-Commercial Items and Services

Part A - Common Clauses

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PPPL-PD-A; Rev 24; 9-2022 Page 1 of 26

The following clauses, the full texts of which are set forth below, and those incorporated in A45, are hereby incorporated, and made part of this Agreement.

A1 ISSUANCE UNDER GOVERNMENT CONTRACT 3

A2 DEFINITIONS 3

A3 ORDER OF PRECEDENCE 4

A4 ACCEPTANCE OF AGREEMENT, SURVIVABILITY 4

A5 COMPLETE AGREEMENT 4

A6 UNAUTHORIZED OBLIGATION 4

A7 REPORTING ENVIRONMENTAL, SAFETY, HEALTH AND TECHNICAL CONCERNS 5

A8 ASSIGNMENT 5

A9 DISPUTES 5

A10 NO WAIVER 7

A11 NEW MATERIALS 7

A12 HAZARDOUS MATERIALS IDENTIFICATION AND MATERIAL SAFETY DATA 7

A13 EXCUSABLE DELAYS 7

A14 TERMINATION FOR CONVENIENCE 8

A15 TERMINATION FOR DEFAULT 8

A16 PAYMENT 8

A17 CHANGES 9

A18 INSPECTION AND ACCEPTANCE 10

A19 TAXES 10

A20 TITLE AND RISK OF LOSS 11

A21 WARRANTY 11

A22 EXTRAS 11

A23 LIMITATION OF LIABILITY 12

A24 COMPLIANCE WITH LAWS 12

A25 PATENT INDEMNITY-SUPPLIES AND SERVICES 12

A26 REPORTING OF ROYALTIES 13

A27 NOTICE & ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT 13

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A28 SUSPECT/ COUNTERFEIT ITEMS 14

A29 APPLICABLE LAW 15

A30 SUSPENSION OF WORK 15

A31 BANKRUPTCY 16

A32 WALSH-HEALY PUBLIC CONTRACTS ACT 16

A33 INTELLECTUAL PROPERTY INDEMNITY 16

A34 INDEMNITY FOR DEFECTIVE COST OR PRICING DATA 16

A35 LIABILITY WITH RESPECT TO COST ACCOUNTING STANDARDS 17

A36 WHISTLEBLOWER PROTECTION FOR CONTRACTOR EMPLOYEES 17

A37 PRESS RELEASES AND OTHER PUBLIC DISSEMINATION OF CONTRACT

INFORMATION 17

A38 REPORTING EXECUTIVE COMPENSATION (Agreements valued at $30,000 or more) 18

A39 IDENTIFICATION OF EMPLOYEES FAR 52.222-54 19

A40 KEY PERSONNEL 19

A41 COMMON SECURITY CONFIGURATIONS IN INFORMATION TECHNOLOGY

ACQUISITIONS (applicable to acquisition of computer hardware and software) 19

A42 ACQUISITION OF EPEAT®-REGISTERED EQUIPMENT 20

A43 REPRESENTATION REGARDING CERTAIN TELECOMMUNICATIONS AND VIDEO

SURVEILLANCE SERVICES OR EQUIPMENT 20

A44 ENSURING ADEQUATE COVID-19 SAFETY PROTOCOLS FOR FEDERAL

CONTRACTORS (applicable to acquisition of services) 21

A45 CLAUSES, STATUTES OR EXECUTIVE ORDERS INCORPORATED BY REFERENCE 22

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A1 ISSUANCE UNDER GOVERNMENT CONTRACT

This Agreement is issued under a prime contract between Princeton University and United States Department of Energy (Contract No. DE-AC02-09CH11466) to manage and operate the Princeton Plasma Physics Laboratory. This Agreement does not bind or purport to bind the United States Government notwithstanding any approval or consent that may be required hereunder.

A2 DEFINITIONS

The following terms shall have the meanings below:

(a) "Agreement" means the contract; or purchase order; or Basic Ordering Agreement (BOA); or Task Agreement, and any modifications thereto, including all contract documents (Contract Documents). The Agreement includes without limitation the specifications, drawings, General Terms and Conditions and any special or supplemental terms and conditions, when incorporated into this Agreement by reference or otherwise.

(b) “Princeton” means Princeton University acting under a Prime Contract between Princeton and the United States Government (Government) for the operation of Princeton Plasma Physics Laboratory (referred to as PPPL or Laboratory), and includes the successor to, or any duly authorized representative of Princeton.

(c) “PPPL,” or “the Laboratory” refers to the Princeton Plasma Physics Laboratory site at Forrestal Campus, Plainsboro, New Jersey.

(d) “Contract” is the document (including but not limited to contract; or purchase order;

or Basic Ordering Agreement (BOA); or Task Agreement) that is executed by both Princeton and the Contractor that creates the Agreement.

(e) “Contract Documents” means all documents that comprise this Agreement including without limitation, the specifications, drawings, the General Terms and Conditions and any special or supplemental terms and conditions, when incorporated into this Agreement by reference or otherwise.

(f) “Contractor” means any person or organization that has entered into this Agreement with Princeton.

(g) “Government” means the United States of America including the U.S. Department of Energy (DOE) or any duly authorized representative(s) thereof.

(h) “Prime Contract” means the contract between Princeton and the Government.

(i) The clause at FAR 52.202-1, Definitions, is incorporated herein by reference.

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A3 ORDER OF PRECEDENCE

In the event of an inconsistency among provisions of this Agreement, the inconsistency shall be resolved by giving precedence in the following order:

(a) the Contract,

(b) special terms and conditions included in or incorporated by reference in the Contract,

(c) Supplemental Terms and Conditions,

(d) General Terms and Conditions,

(e) the Statement of Work,

(f) specifications, and

(g) drawings, if any, incorporated in this Agreement by reference or otherwise.

A4 ACCEPTANCE OF AGREEMENT, SURVIVABILITY

(a) By signing the Contract, delivering the supplies, or performing the requirements indicated herein, the Contractor agrees to comply with all the terms and conditions and all specifications and other documents incorporated in this Agreement by reference or otherwise.

(b) An attempted acknowledgment or acceptance which contains provisions conflicting with or additional to these Terms and Conditions or which varies any terms or conditions shall have no force or effect.

(c) All rights and obligations of the parties shall survive final performance of this Agreement.

A5 COMPLETE AGREEMENT

This Agreement expresses the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any prior oral and written agreements between the parties. It may only be modified in writing executed by both Princeton and the Contractor except as otherwise stated herein.

A6 UNAUTHORIZED OBLIGATION

When any supply or service acquired under this contract is subject to any End Use License Agreement (EULA), Terms of Service (TOS), or similar legal instrument or agreement, that includes any clause requiring Princeton or the Government to indemnify

PPPL-PD-A; Rev 24; 9-2022 Page 5 of 26 the Contractor or any person or entity for damages, costs, fees, or any other loss or liability, the following shall govern:

(i.) Any such clause is unenforceable against Princeton and the Government unless separately and specifically agreed to.

(ii.) Neither Princeton nor any Princeton authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the EULA, TOS, or similar legal instrument or agreement.

(iii.) Any such clause is deemed to be stricken from the EULA, TOS, or similar legal instrument or agreement.

A7 REPORTING ENVIRONMENTAL, SAFETY, HEALTH AND TECHNICAL

CONCERNS

The Contractor will ensure that all Contractor employees are notified quarterly that they have the right to report environment, safety, health and technical concerns that have not been resolved through routine work processes through the Department of Energy Differing Professional Opinion (DPO) process (Attachment 2 to DOE O 442.2 and at https://www.energy.gov/ehss/doe-differing-professional-opinions).

The notification must provide points of contact (name, phone number and email addresses of DPO Managers) as listed on the DOE DPO web page, as well as the DOE DPO web page address.

A8 ASSIGNMENT

Neither this Agreement nor any interest therein nor claim there under shall be assigned or transferred by the Contractor except as expressly authorized in writing by Princeton, provided that the Contractor or its assignee’s rights to be paid amounts due as a result of performance of this Agreement may be assigned to a bank, trust company or other financing institution, including any federal lending institution. This Agreement is assignable by Princeton to the Government or to a successor contractor for the operation of PPPL. The Contractor agrees to look solely to the Government or to such successor contractor for payment of the part so assigned, and to execute a novation agreement so recognizing the successor contractor if requested to do so by Princeton.

A9 DISPUTES

(a) Good Faith Negotiation. The parties agree that they will attempt in good faith to resolve through negotiation any dispute, claim or controversy arising out of or relating to this Agreement. Either party may initiate negotiations by providing written notice in letter form to the other party, setting forth the subject of the dispute and the relief requested.

The recipient of such notice agrees to respond in writing within five days with a statement of its position on and recommended solution to the dispute. If the dispute is not resolved by this exchange of correspondence, then representatives of each party

PPPL-PD-A; Rev 24; 9-2022 Page 6 of 26 with full settlement authority will meet at a mutually agreeable time and place within fifteen days of the date of the initial notice in order to exchange relevant information and perspectives, and to attempt to resolve the dispute. If the dispute is not resolved by these negotiations, the matter will be submitted to Judicial Arbitration and Mediation Services (JAMS), or its successor, for mediation, following the procedure described in Subparagraph B, below. Pending settlement or a final judgment, the Contractor will proceed diligently with performance of this Agreement according to the instructions of Princeton’s contractual representative.

(b) Mediation. Except as provided in this Agreement, the parties agree that neither will commence any civil action with respect to any dispute, claim or controversy arising out of or relating to this Agreement until the matter has been submitted to JAMS (45 Broadway, 28th Floor, New York, NY 10006, 212-751-2700), its successor, for mediation and that process has been completed. Either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties agree to cooperate with JAMS and with one another in selecting a mediator from JAMS panel of neutrals, and in scheduling the mediation proceedings. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. The parties further agree that they will treat as confidential all offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator and any JAMS employees. The parties also agree that they will treat any such communications as privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable will not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either party may seek equitable relief prior to the mediation to preserve the status quo pending the completion of that process. Except for such an action to obtain equitable relief, neither party may commence a civil action with respect to the matters submitted to mediation until after the completion of the initial mediation session, or forty-five (45) days after the date of filing the written request for mediation, whichever occurs first. Mediation may continue after the commencement of a civil action, if the parties so desire. The provisions of this Article may be enforced by any court of competent jurisdiction, and the party seeking enforcement will be entitled to an award of all costs, fees and expenses, including attorney’s fees, to be paid by the party against whom enforcement is ordered.

(c) Waiver of Right to Litigate in Court Before Completing Negotiation and Mediation and Waiver of Right to Jury Trial and Designation of Court Sitting in the State of New Jersey. The Contractor agrees to submit all disputes, claims or controversies arising out of or relating to this Agreement to negotiation and then mediation as described above before bringing any action in court. The Contractor further acknowledges that, in the event it brings any such action in court, it will bring that action in a court sitting in the State of New Jersey, and it further acknowledges that it is hereby waiving any right that it might possess to demand a jury trial for the litigation of that action. The Contractor

PPPL-PD-A; Rev 24; 9-2022 Page 7 of 26 further acknowledges that it is giving up any rights to judicial remedies and procedures to the extent that this agreement does not specifically provide for them. The Contractor further acknowledges that its agreement to the provision for this Agreement is voluntary

A10 NO WAIVER

Princeton’s acceptance of the goods or services delivered hereunder, and its subsequent use thereof shall not constitute a waiver of any improper materials or workmanship, or Princeton’s rights and remedies with respect to them. Princeton’s acceptance and its subsequent use of goods or services delivered after the agreed upon delivery date shall not constitute a waiver by Princeton of any rights arising from said late delivery.

A11 NEW MATERIALS

Unless otherwise specified in this Agreement, all supplies delivered hereunder shall consist of new materials. “New” is defined as previously unused which may include residual inventory or unused former Government surplus property. This does not exclude use of recycled or recovered material as defined by the Environmental Protection Agency in 40 CFR 247.

A12 HAZARDOUS MATERIALS IDENTIFICATION AND MATERIAL SAFETY DATA

With or before each delivery, the Contractor shall submit a Material Safety Data sheet, as prescribed in 29 CFR 1910.1200 and the latest version of Federal Standard No. 313, for all hazardous material delivered under this Agreement which will involve exposure to hazardous materials or items containing these materials, whether or not it is listed in Appendix A of the Standard. As used in this Article, “hazardous material” is as defined in the latest version of Federal Standard No. 313, including revisions adopted during the term of this Agreement.

A13 EXCUSABLE DELAYS

The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as acts of God or the public enemy, acts of Princeton, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify Princeton in writing as soon as it is reasonably possible 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 Princeton of the cessation of such occurrence.

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A14 TERMINATION FOR CONVENIENCE

Princeton reserves the right to terminate this Agreement, or any part hereof, for its convenience or that of the Government. In the event of such termination, Princeton’s Procurement Division shall deliver a notice specifying the extent of the termination and its effective date. The Contractor shall immediately stop all work so terminated and shall immediately cause any and all of its affected suppliers and subcontractors to cease work. Subject to the terms of this Agreement, Princeton shall be liable only for payment under the payment provisions of this Agreement for services rendered prior to the notice of termination, plus reasonable charges that the Contractor can demonstrate to Princeton’s satisfaction using its standard record keeping system, have resulted from the termination. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided. In no event shall the agreed amount exceed the total price of the Agreement.

A15 TERMINATION FOR DEFAULT

(a) Ten days after giving the Contractor written notice of its intent, Princeton may terminate this Agreement for default, in whole or in part, if the Contractor fails to comply with any of the terms of this Agreement, fails to make progress so as to endanger performance of this Agreement or fails to provide adequate assurance of future performance. In this event, Princeton shall not be liable for any services or supplies not accepted.

(b) If this Agreement is terminated for default, Princeton may require the Contractor to deliver any supplies and materials, manufacturing materials, and manufacturing drawings that the Contractor has specifically produced or acquired for the terminated portion of this Agreement. Princeton shall pay the agreed-upon price for services performed and accepted in addition to completed supplies delivered and accepted.

Princeton and the Contractor shall agree on the amount of payment for all other deliverables.

(c) Princeton’s rights and remedies under this Article are in addition to any other rights and remedies provided by law or under this Agreement.

A16 PAYMENT

(a) Princeton shall make payment for accepted services performed and/or items that have been delivered to the destination(s) set forth in this Agreement. Unless otherwise provided, terms of payment shall be net 30 days from submission of the Contractor’s proper invoice (unless Princeton does not approve such invoice). Invoices submitted by the Contractor anywhere other than to Accounts_Payable@pppl.gov unless otherwise specified in this Agreement, are not deemed to have been officially received for payment term purposes. Any offered discount shall be taken if payment is made within the discount period indicated by the Contractor. Payments may be made either by mailto:Accounts_Payable@pppl.gov

PPPL-PD-A; Rev 24; 9-2022 Page 9 of 26 check or electronic funds transfer, at Princeton’s option. Payment shall be deemed to have been made as of the date of mailing or the date on which the electronic funds transfer was made. Unless otherwise specified in this Agreement, Princeton may make payment on partial deliveries which it accepts.

(b) If the Contractor becomes aware of a duplicate contract financing or invoice payment or that Princeton has otherwise overpaid on a contract financing or invoice payment, the Contractor shall remit the overpayment amount to the payment office cited in the Contract along with a description of the overpayment.

A17 CHANGES

(a) At any time, Princeton may, by written notice, make changes within the general scope of this Agreement, in any or all of the following:

(i.) scope of work to be performed, (ii.) method and manner of performance, (iii.) place of performance, (iv.) drawings, designs or specifications if the Agreement calls for delivery of supplies specially manufactured for Princeton, (v.) method of shipping or packing the supplies, and (vi.) place of delivery.

If any such change causes an increase or decrease in the price or estimated cost of or the time required for performance of any part of the work hereunder, whether or not changed by the order, or otherwise affects any other terms and conditions of this Agreement, Princeton shall make an equitable adjustment in the price or estimated cost and/or performance schedule and other affected terms and shall modify the agreement accordingly. Such adjustment shall be made by written amendment to this Agreement signed by both parties. The Contractor must assert any claim for adjustment within 30 days from the date it receives Princeton’s change notice; however, Princeton may, in its sole discretion, receive and act on any claim for adjustment at any time before final payment. Failure to agree to any adjustment shall be settled in accordance with the Disputes article of these General Terms and Conditions. Nothing in this clause, including any disagreement with Princeton about the equitable adjustment, shall excuse the Contractor from proceeding with work hereunder, as changed.

(b) Only Princeton’s Procurement Division is authorized to issue changes, whether formal or informal, on Princeton’s behalf. If the Contractor considers that any direction or instruction by Princeton’s technical personnel constitutes a change, the Contractor shall not rely on such direction or instruction without obtaining written confirmation from Princeton’s Procurement Division.

(c) When costs are a factor in any determination of a price adjustment pursuant to this clause or any provision of this Agreement, such cost shall be in accordance with the cost principles and procedures in FAR Subpart 31 and DEAR Subpart 931.

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A18 INSPECTION AND ACCEPTANCE

(a) Princeton has the right to inspect and test all items and services (including, but not limited to, raw materials, components, intermediate assemblies and end products) to the extent practicable at all times and places including the period of manufacture, and in any event prior to acceptance. Princeton shall perform inspections and tests in a manner that will not unduly delay the work. If Princeton performs tests or inspections on the contractor’s premises or that of a subcontractor, the Contractor shall furnish, or cause to be furnished, all reasonable facilities and assistance for the safe and convenient performance of these duties at no additional cost to Princeton. Princeton assumes no contractual obligation to perform any test or inspection for the Contractor’s benefit unless specifically set forth elsewhere in this Agreement. Princeton’s failure to inspect the items and services shall not relieve the Contractor from responsibility, nor impose liability on Princeton, for nonconformity.

(b) If Princeton specifies an inspection system elsewhere in this Agreement, the Contractor shall provide and maintain such inspection system and deliver only those items and services that have been found to conform to the requirements of this Agreement. The Contractor shall maintain complete records of all inspections and make them available to Princeton during performance and for as long as this Agreement requires.

(c) If Princeton finds the materials or work to be defective, the Contractor shall promptly repair or replace such materials or work as directed by Princeton at no increase in the agreement price. The Contractor shall bear the transportation cost. If the Contractor fails to act as directed within 10 days from Princeton’s written notice, Princeton may repair or replace such materials or work by contract or otherwise and assess the Contractor the excess cost it incurred as a result and/or terminate the Contractor for default. If the Contractor is not ready for inspection or if prior rejection makes re-inspection or retest necessary, Princeton may charge the Contractor the additional cost of test and/or inspection. The Contractor shall not tender for acceptance corrected or rejected items or services without disclosing the former rejection or requirement for correction and shall disclose the corrective action taken.

(d) Princeton shall affect acceptance of all materials and services ordered hereunder within a reasonable time after delivery. Except as otherwise provided for in this Agreement, acceptance shall be conclusive except as regards latent defects, fraud, or such gross mistakes as amount to fraud.

A19 TAXES

The Agreement price includes all applicable federal, state, and local taxes and duties. In determining the applicability of any tax or duty, due consideration shall be given to the relationship of the subject matter of this Agreement to the Government, and the fact that

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Princeton is exempt from New Jersey State and local sales and use taxes under Exempt Organization Certificate E-210-634-501.

A20 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 Princeton takes physical possession. If Princeton makes partial or progress payments, title shall pass to the Government for the items covered by the payment.

Unless the Agreement specifically provides otherwise, risk of loss or damage to the items provided under this Agreement shall remain with the Contractor until delivery of the items to the destination specified in the Agreement.

A21 WARRANTY

Notwithstanding inspection and acceptance by Princeton under any provision of this Agreement, the Contractor warrants that the material, supplies and/or equipment delivered (hereinafter called “the goods”) and any services performed hereunder, shall be of first-class quality and shall accord in every respect with the description, specifications, drawings, and/or samples elsewhere identified in this Agreement. The Contractor also warrants that all goods delivered hereunder shall be free from defects in design (unless the design is furnished by the Buyer), material and workmanship. The warranty shall begin on acceptance and extend for a period of one year or the manufacturer’s warranty period, whichever is longer. If any nonconformity appears within that time, Princeton, in addition to any other rights and remedies provided by law, or under other provisions of this Agreement, may require the Contractor to:

(a) replace or repair the goods and/or re-perform the services at no increase in price or

(b) reduce the Agreement price to reflect the reduced value of the Contractor’s performance.

When supplies are returned, the Contractor shall bear the risk of loss and transportation cost. If the Contractor fails to replace or repair the goods or re-perform the services within 10 days of Princeton’s written notice to do so, Princeton shall have the right by contract or otherwise to replace or repair the goods or re-perform the services, and charge the Contractor the cost occasioned thereby. Furthermore, the warranties provided for in this paragraph shall be in addition to such other warranties as may be specifically provided for elsewhere in this Agreement.

A22 EXTRAS

Except as otherwise provided in this Agreement, Princeton shall not pay for extras unless authorized in writing by Princeton.

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A23 LIMITATION OF LIABILITY

Except as otherwise provided by an express or implied warranty, the Contractor will not be liable to Princeton for consequential damages resulting from any defect or deficiencies in accepted items.

A24 COMPLIANCE WITH LAWS

(a) The Contractor shall comply with all applicable federal, state, local laws and ordinances, executive orders, all pertinent lawful orders, rules and regulations, including those applicable by reason of the fact that this Agreement is issued under the Prime Contract and such compliance shall be a material requirement of this Agreement. If the Contractor is required to obtain licenses and/or permits to comply with this Article, it will do so without additional expense to Princeton.

(b) The Contractor warrants that each chemical substance constituting or contained in items furnished by this Agreement is on the list of substances published by the Administrator of the Environmental Protection Agency pursuant to the Toxic Substances Control Act, as amended. With each delivery the Contractor shall provide Princeton any applicable Material Safety Data Sheet as required by the Occupational Safety and Health Act and applicable regulations including, without exception, 29 CFR 1910.1200.

(c) The Contractor shall perform work under this Agreement in a manner that is safe, healthy and environmentally acceptable, and shall develop and manage a comprehensive program in support of these objectives. Specific requirements may be included in special or supplemental terms to this Agreement.

(d) The Contractor shall include this clause in all subcontracts, at any tier, involving performance of this Agreement.

A25 PATENT INDEMNITY-SUPPLIES AND SERVICES

If the amount of this Agreement is in excess of $10,000, the Contractor shall indemnify Princeton, the Government, and their officers, agents, and employees against liability, including costs, for infringement of any United States letters patent (except U.S. letters patent issued upon an application which is now or may hereafter be kept secret or otherwise withheld from issue by order of the Government) arising out of the manufacture or delivery of supplies or out of construction, alteration, modification, or repair of real property (hereinafter referred to as "construction work") under this Agreement, or out of the use or disposal by or for the account of the Government or Princeton of such supplies or construction work. The foregoing indemnity shall not apply unless the Contractor shall have been informed as soon as practicable by the Government (with notice to Princeton) of the suit or action alleging such infringement, and shall have been given such opportunity as is afforded by applicable laws, rules, or

PPPL-PD-A; Rev 24; 9-2022 Page 13 of 26 regulations to participate in the defense thereof, and further, such indemnity shall not apply to:

(a) An infringement resulting from compliance with specific written instructions of Princeton or the Government directing a change in the supplies to be delivered or in the materials or equipment to be used or directing a manner of performance of the Agreement not normally used by the Contractor.

(b) An infringement resulting from addition to, or change in, such supplies or components furnished, or construction work performed which addition or change was made subsequent to delivery or performance by the Contractor, or

(c) A claimed infringement which is settled without the consent of the Contractor, unless required by final decree of a court of competent jurisdiction.

A26 REPORTING OF ROYALTIES

If this Agreement is in an amount which exceeds $10,000 and if any royalty payments totaling more than $250 are directly involved in the Agreement or are reflected in the Agreement price to Princeton, the Contractor agrees to report in writing to the Government through Princeton during the performance of this Agreement and prior to its completion or final settlement the amount of any royalties or other payments paid or to be paid by it directly to others in connection with the performance of this Agreement together with the names and addresses of licensors to whom such payments are made and either the patent numbers involved or such other information as will permit identification of the patents or other basis on which royalties are to be paid. The approval of DOE or Princeton of any individual payments or royalties shall not stop the Government at any time from contesting the enforceability, validity or scope of, or title to, any patent under which a royalty or payments are made.

A27 NOTICE & ASSISTANCE REGARDING PATENT AND COPYRIGHT

INFRINGEMENT

The provisions of this clause shall be applicable only if the amount of this Agreement exceeds $100,000.

(a) The Contractor shall report to the Government through Princeton promptly and in reasonable written detail, each notice or claim of patent or copyright infringement based on the performance of this Agreement of which the Contractor has knowledge.

(b) In the event of any claim or suit against the Government on account of any alleged patent or copyright infringement arising out of the performance of this Agreement or out of the use of any supplies furnished or work or services performed hereunder, the Contractor shall furnish to the Government when requested by the Government or Princeton, all evidence and information in possession of the Contractor pertaining to

PPPL-PD-A; Rev 24; 9-2022 Page 14 of 26 such suit or claim. Such evidence and information shall be furnished at the expense of the Government except where the Contractor has agreed to indemnify the Government or Princeton.

(c) This clause shall be included in all subcontracts.

A28 SUSPECT/ COUNTERFEIT ITEMS

(a) "Suspect Items" are items, for which there is an indication by visual inspection, testing, or other information that it may not conform to established Government or industry-accepted specifications or national consensus standards. “Counterfeit Items” are suspect items that are a copy or substitute without legal authority to do so or whose material, performance, or characteristics are knowingly misrepresented by the supplier, distributor, or manufacturer.

Forms of misrepresentation include, but are not limited to, the following:

(b) falsified product sources (counterfeits);

(c) falsified or modified quality assurance records;

(d) false marking as to class, type, or grade;

(e) mixing of unmarked materials with marked materials;

(f) false labeling as to qualification or acceptance by testing/certifying organizations;

(g) used and/or refurbished products misrepresented as new products;

(h) Types of materials, parts, and components, known to have been misrepresented include, but are not limited to:

(i) lifting materials such as slings, hooks, cables, and shackles;

(j) threaded fasteners fraudulently marked as high-strength bolts;

(k) refurbished electrical circuit breakers sold under false certifications;

(l) valves;

(m) piping and piping components;

(n) electrical devices;

(o) channel members, plate, bar, and flanges;

(p) and other structural items. S/CIs may pose immediate and potential threats to the safety of DOE and contractor workers, the public, and the environment. Failure of a

PPPL-PD-A; Rev 24; 9-2022 Page 15 of 26 safety or mission critical system due to an S/CI could also have security implications at DOE facilities.

(q) Items furnished to Princeton under this Agreement shall not include suspect/counterfeit parts nor shall such parts be used in performing any work under this Agreement whether on or off the Laboratory site.

(r) If suspect/counterfeit parts are furnished under this Agreement and are found on the Laboratory site, such parts shall be impounded by Princeton or they shall be removed by the Contractor as directed by Princeton. The Contractor shall promptly replace such parts with supplies acceptable to Princeton and the Contractor shall be liable for all costs relating to impoundment, removal, and replacement. Princeton may turn such parts over to the U.S. Office of the Inspector General for investigation and reserves the right to withhold payment pending the outcome of any investigation.

(s) The rights of Princeton in this clause are in addition to any other rights provided by law or under this Agreement.

A29 APPLICABLE LAW

The parties agree that the federal common law of government contracts will govern the construction and interpretation of this Agreement and all claims arising under or related to this Agreement or work performed under this Agreement or claims of breach of this Agreement, regardless of the forum in which any party to this Agreement brings action.

For purposes of this Agreement, the federal common law of government contracts will consist of the interpretation of contract clauses and the law enunciated and applied to government contracts by the Boards of Contract Appeals, the Comptroller General (CG), and Federal Courts having jurisdiction over the Boards or the CG. The term "Board of Contract Appeals" means those established under the Contract Disputes Act of 1978, 41 U.S.C. 607(a)(1), and successor bodies.

A30 SUSPENSION OF WORK

(a) At any time, Princeton may, by written notice to the Contractor, require the Contractor to suspend, delay or interrupt all or any portion of the work called for by this Agreement for a period of up to 90 days after the notice is delivered to the Contractor, or for any other period to which the parties may agree. On receipt of this notice, the Contractor shall immediately comply with its provisions and take all reasonable steps to minimize the incurrence of costs associated with such suspension as directed by Princeton.

(b) Prior the expiration of the suspension notice, Princeton shall either:

(i.) cancel or extend the notice; or

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(ii.) terminate the work covered by the notice as provided in the Termination Articles of these General Provisions.

If the suspension is canceled or allowed to expire, the Contractor shall resume work.

Any claim by the Contractor resulting from a Suspension of Work Notice shall be governed by the Changes Article of these General Provisions.

A31 BANKRUPTCY

If the Contractor enters into any proceeding relating to bankruptcy, it shall give written notice to Princeton’s Procurement Division via certified mail with five (5) days of initiating 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 Contract number, of all Princeton agreements for which final payment has not been made.

A32 WALSH-HEALY PUBLIC CONTRACTS ACT

If this Contract is for the manufacture or furnishing of materials, supplies, articles, or equipment in an amount which exceeds or may exceed $15,000 and is otherwise subject to the Walsh-Healy Public Contracts Act, as amended (41 USC 35-45), there are hereby incorporated by reference all 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.

A33 INTELLECTUAL PROPERTY INDEMNITY

The Contractor shall indemnify Princeton and the Government and their officers, agents, and employees against alleged or actual liability, including costs of any nature whatsoever, for the Contractor’s infringement or misappropriation of third-party intellectual property, including, but not limited to, patents, copyrights, trademarks, or trade secrets that the Contractor has used, included, or embodied in its performance of the Contract. The Contractor will promptly notify Princeton in the event it is notified that it has infringed or misappropriated a third party's intellectual property; in the event that infringement or misappropriation has occurred, in addition to the indemnification and at Princeton's sole option, the Contractor will either procure the rights for Princeton and the Government to use the intellectual property or Princeton will terminate the Contract for cause.

A34 INDEMNITY FOR DEFECTIVE COST OR PRICING DATA

The Contractor hereby indemnifies and agrees to hold Princeton harmless from any and all price or cost reductions made pursuant to the FAR 52.215-10 “Price Reduction for

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Defective Cost or Pricing Data” clause or the FAR 52.215-11 “Price Reduction for Defective Cost or Pricing Data - Modifications” clause, or any other provisions of the prime contract under which this Agreement is issued, and from and against any and all cost disallowances or non-recognitions of costs under such prime contract, if such price or cost reduction, cost disallowance or non-recognition of costs arises or results directly or indirectly because:

(a) Contractor, or any of Contractor’s subcontractor or prospective subcontractor at any tier hereunder, furnished cost or pricing data that were not complete, accurate and current as certified in Contractor’s Certificate of Current Cost or Pricing Data; or

(b) Contractor, or any of Contractor’s subcontractor or prospective subcontractor at any tier, hereunder, furnished data of any description that were not accurate.

Accordingly, without limitation of the foregoing, the price of this Agreement shall be reduced and the Agreement shall be modified in writing as necessary to reflect the full amount of any and all such price or cost reductions and any and all such cost disallowances or non-recognitions of costs. The rights and remedies of Princeton under or pursuant to this indemnity shall be cumulative and additional to any other or further rights and remedies provided under this Agreement or at law or in equity.

A35 LIABILITY WITH RESPECT TO COST ACCOUNTING STANDARDS

The Contractor shall be liable to the Government for increased costs or interest resulting from the Contractor’s failure to comply with the Cost Accounting Standards and related clauses, if these clauses are incorporated in this Agreement.

A36 WHISTLEBLOWER PROTECTION FOR CONTRACTOR EMPLOYEES

(a) The Contractor shall comply with the requirements of "DOE Contractor Employee Protection Program" at 10 CFR Part 708 for work performed on behalf of DOE directly related to activities at DOE owned or leased sites.

(b) The Contractor shall insert or have inserted the substance of this clause, including this paragraph (b) in subcontracts, at all tiers, for subcontracts involving work performed on behalf of DOE directly related to activities at DOE owned or leased sites.

A37 PRESS RELEASES AND OTHER PUBLIC DISSEMINATION OF CONTRACT

INFORMATION

Press releases through print, broadcast or other media concerning the award, performance, results or conclusions from the work under this Contract shall not be made or otherwise distributed to the public without prior written consent by Princeton.

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Any material proposed to be released shall be submitted to the Princeton Contractual Representative no later than two weeks prior to the intended press release.

A38 REPORTING EXECUTIVE COMPENSATION (Agreements valued at $30,000 or more)

In accordance with FAR 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards, and as a condition of award of this Agreement, the Contractor will be required to provide to the PPPL’s Procurement Division information relative to executive total compensation, as directed below. This requirement does not apply to Agreements with individuals. For purposes of this Article, “executive” means officers, managing partners, or any other employees in management positions. “Total Compensation” means the cash and noncash dollar value earned by the executive during the Contractor’s preceding fiscal year and includes the following (for more information see 17 CFR 229.402(c)(2)):

(a) Salary and bonus.

(b) Awards of stock, stock options, and stock appreciation rights. Use the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2004) (FAS 123R), Shared Based Payments.

(c) Earnings for services under non-equity incentive plans. This does not include group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of executives and are available generally to all salaried employees.

(d) Change in pension value. This is the change in present value of defined benefit and actuarial pension plans.

(e) Above-market earnings on deferred compensation which is not tax-qualified.

(f) Other compensation, if the aggregate value of all such other compensation (e.g., severance, termination payments, value of life insurance paid on behalf of the employee, perquisites or property) for the executive exceeds $10,000.

The Contractor agrees to report, by the end of the month following award of the Agreement, and annually thereafter, the names and total compensation of each of the five most highly compensated executives for the Contractor’s preceding completed fiscal year, if—

(g) In the Contractor’s preceding fiscal year, the Contractor received—

(i) 80 percent or more of its annual gross revenues from Federal contracts (and subcontracts), loans, grants (and subgrants) and cooperative agreements; and

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(ii) $25,000,000 or more in annual gross revenues from Federal contracts (and subcontracts), loans, grants (and subgrants) and cooperative agreements; and

(h) The public does not have access to information about the compensation of the executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986.

A39 IDENTIFICATION OF EMPLOYEES FAR 52.222-54

Employment Eligibility Verification, which is included in this Agreement, requires the Contractor to use an electronic Employment Eligibility Verification (E-Verify) system designated by the Secretary of Homeland Security to verify the eligibility of:

(a) all persons hired during the Agreement term by the Contractor to perform duties within the United States; and

(b) all persons assigned by the Contractor to perform work within the United States on the Federal Contract. The Contractor agrees to incorporate FAR 52.222-54 and the substance of this clause in all subcontracts issued under this Agreement.

A40 KEY PERSONNEL

(Applicable when invoked in the Subcontract Agreement)

The key personnel specified in this subcontract are considered to be essential to the work being performed. At least 30 days prior to diverting any of the specified individuals to other programs or contracts (or as soon as possible, if an individual must be replaced, for example, as a result of leaving the employ of the Subcontractor), the Subcontractor shall notify the Princeton’s Procurement Specialist and shall submit comprehensive justification for the diversion or replacement request (including proposed substitutions for key personnel) to permit evaluation by Princeton of the impact on performance under this subcontract. The Subcontractor shall not divert or otherwise replace any key personnel without the written consent of the Princeton’s Procurement Specialist. Princeton may modify the subcontract to add or delete key personnel at the request of the Subcontractor or Princeton.

A41 COMMON SECURITY CONFIGURATIONS IN INFORMATION TECHNOLOGY

ACQUISITIONS (applicable to acquisition of computer hardware and software)

All information technology acquired under this Subcontract shall include and incorporate 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.

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A42 ACQUISITION OF EPEAT®-REGISTERED EQUIPMENT

When the Subcontract requires the specification or delivery of imaging equipment, televisions or personal computers products for Government use, or furnish for use at a Federally controlled facility, the Subcontractor will specify or deliver only equipment that, at the time of submission of proposals and at the time of award, were EPEAT® bronze-registered or higher. Information on EPEAT-registered imaging equipment is available at https://www.epa.gov/greenerproducts.

A43 REPRESENTATION REGARDING CERTAIN TELECOMMUNICATIONS AND

VIDEO SURVEILLANCE SERVICES OR EQUIPMENT

(a) Definitions. As used in this clause—

Backhaul means intermediate links between the core network, or backbone network, and the small subnetworks at the edge of the network (e.g., connecting cell phones/towers to the core telephone network). Backhaul can be wireless (e.g., microwave) or wired (e.g., fiber optic, coaxial cable, Ethernet).

Covered foreign country means The People’s Republic of China.

Covered telecommunications equipment or services means–

(1) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities);

(2) For the purpose of public safety, security of Government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities);

(3) Telecommunications or video surveillance services provided by such entities or using such equipment; or

(4) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.

Reasonable inquiry means an inquiry designed to uncover any information in the entity's possession about the identity of the producer or provider of covered telecommunications equipment or services used by the entity that excludes the need to include an internal or third-party audit.

https://www.epa.gov/greenerproducts

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Roaming means cellular communications services (e.g., voice, video, data) received from a visited network when unable to connect to the facilities of the home network either because signal coverage is too weak or because traffic is too high.

Substantial or essential component means any component necessary for the proper function or performance of a piece of equipment, system, or service.

(b) Contractors are prohibited from providing-Any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception at paragraph (c) of this clause applies

(c) Exceptions include

(1) A service that connects to the facilities of a third-party such as backhaul, roaming, or interconnection arrangements; or

(2) Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.

(d) Reporting requirement. (1) In the event the Contractor identifies covered telecommunications equipment or services used as a substantial or essential component of any system, or as critical technology as part of any system, during contract performance, or the Contractor is notified of such by a subcontractor at any tier or by any other source, within…