Section II.Cover Page.pdf

Section II Sample Subcontract

PPPL General Provisions Part T – Provisions for Work Performed on the PPPL Site

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T1. PERMITS AND RESPONSIBILITIES (NOV 1991)

The Subcontractor shall, without additional expense to Princeton, be responsible for obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal laws, codes, and regulations applicable to the performance of the work. The Subcontractor shall also be responsible for all damages to persons or property that occurs as a result of the Subcontractor's fault or negligence. The Subcontractor shall also be responsible for all materials delivered and work performed until completion and acceptance of the entire work, except for any completed unit of work that may have been accepted under the contract.

T2. COMPLIANCE WITH 10 CFR 851 AND PRINCETON WORKER SAFETY AND HEALTH

PROGRAM BY INTEGRATION OF ENVIRONMENT, SAFETY AND HEALTH INTO WORK PLANNING

AND EXECUTION (OCT 2015)

(a) In performing work under this Subcontract, the Subcontractor and all of its lower-tier subcontractors at all levels shall comply with all applicable federal, state and local environment, safety and health laws and regulations. The Subcontractor and all of its lower-tier subcontractors at all levels must comply with 10 CFR 851 Worker Safety and Health Program, Princeton’s Worker Safety and Health Program, and DEAR 970.5223- 1, Integration of ES&H into Work Planning and Execution (Dec. 2000). Compliance with 10 CFR 851 and DEAR 970.5223-1 is to be guided by following paragraphs (b) through (g) set forth below.

(b) The Subcontractor shall perform work safely, in a manner ensuring adequate protection for employees, the public, and the environment and will be held accountable for the safe performance of work. The Subcontractor will exercise a degree of care commensurate with the work and the associated hazards.

The Subcontractor will ensure that management of environment, safety and health (ES&H) functions and activities becomes an integral and visible part of the Subcontractor's work planning and execution process. The Subcontractor will, in the performance of work, ensure that:

(1) Personnel possess the experience, knowledge, skills, and abilities that are necessary to discharge their responsibilities, and will retain records respecting such competency and qualifications, making them available upon request.

(2) Resources are effectively allocated to address ES&H, programmatic, and operational considerations. Protecting employees, the public and the environment is a priority whenever activities are planned and performed.

(3) Prior to work performance, the associated hazards will be evaluated and a set of ES&H standards and requirements will be established and implemented to provide assurance that employees, the public, and the environment are protected from adverse consequences.

(4) Administrative and engineering controls to prevent and mitigate hazards are tailored to the work being performed and associated hazards. Emphasis will be on designing the work and/or controls to reduce or eliminate the hazards and to prevent accidents and unplanned releases and exposures.

(5) Line management is responsible for the protection of employees, the public, and the environment.

Line management includes those Subcontractor and lower-tier subcontractor employees managing or supervising employees performing work.

(6) Clear and unambiguous lines of authority and responsibility for ensuring ES&H compliance will be established and maintained at all organizational levels.

(c) The Subcontractor, relative to the Statement of Work and Subcontract specifications, agrees to accept Princeton’s DOE-approved Worker Safety and Health Program and the Integrated Safety Management

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System as its own, and perform and manage work in accordance with such program. The Subcontractor shall demonstrate through documentation and work practices that performance of work under this Subcontract:

(1) fulfills the scope of work set out in the Subcontract;

(2) identifies and analyzes specific, task-level hazards associated with the work;

(3) develops and implements hazard controls;

(4) allows the performance of work within the controls

(5) provides feedback on the adequacy of controls and continued improvement in safety management.

(d) In performing work in accordance with Princeton’s DOE-approved Worker Safety and Health Program and the Integrated Safety Management System the Subcontractor will, prior to initiation of work:

(1) Demonstrate well-established safety protocols applicable to the scope of work and consistent with the requirements of this clause.

(2) Prior to commencement of work on any construction activity, the Subcontractor must prepare a written Integrated Safety Management (ISM) Plan (construction project safety and health plan) that implements the requirements of items A-G below for the construction work under their responsibility and obtain approval of the plan by the Princeton Technical Representative (PTR) prior to commencement of any work covered by the plan. In the plan, the Subcontractor must designate the individual(s) responsible for its on-site implementation, specify qualifications for those individuals, and provide a list of those project activities for which subsequent job hazard analyses are to be performed (see item A). The level of detail within the ISM Plan should be commensurate with the size, complexity and risk level of the construction project. In addition, the Subcontractor must:

A. Prepare, and have approved by the Princeton Technical Representative, job hazard analyses (JHAs) in accordance with PPPL procedure ESH-004 prior to commencement of affected work. The JHAs must identity foreseeable hazards and protective measures, and address further hazards revealed by any supplemental information provided by the Princeton Technical Representative.

B. Provide (for approval by the Princeton Technical Representative) drawings and/or other documentation of protective measures for which applicable OSHA standards require preparation by a Professional Engineer or other qualified individual (these should be included in the ISM Plan).

C. Identify for approval by the Princeton Technical Representative competent persons for activities as required by applicable OSHA standards (these should be included in the ISM Plan).

D. Ensure workers are aware of foreseeable hazards and the protective measures as defined by the JHAs and require that workers acknowledge being so informed.

E. Ensure that workers not following the safe work practices are subject to the Subcontractor’s disciplinary process.

F. Maintain a designated representative onsite during all active construction that is knowledgeable of the associated hazards and has the authority to act on behalf of the Subcontractor; and that makes frequent and regular inspections of the construction

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G. Instruct workers to report to the Subcontractor’s designated representative, hazards not previously identified or evaluated. If immediate corrective action is not possible or the hazard falls outside the project scope, the Subcontractor must immediately notify affected workers, post appropriate warning signs, modify the appropriate JHAs, implement needed interim control measures, and notify the Princeton Technical Representative of the action taken. The Subcontractor or the designated representative must stop work in the affected area until appropriate protective measures are established.

(e) The Subcontractor’s on-site ES&H activities will be subject to review by the Technical Representative of this Subcontract. Other representatives of PPPL may conduct periodic inspections of the Subcontractor’s on-site offices, equipment, work and storage areas for compliance with the applicable ES&H requirements. The Princeton Administrative Representative for this Subcontract will notify the Subcontractor in writing of any observed non-compliance with applicable ES&H requirements. The Subcontractor shall immediately take appropriate corrective action. The Subcontractor shall advise the Princeton Administrative Representative, in writing, within five (5) working days of the corrective action taken on any safety non-compliance noted. If the Subcontractor fails or refuses to correct the safety non-compliance, Princeton may perform, or cause to be performed, the necessary corrective work and unilaterally charge the Subcontractor for the cost thereof. Such charges will be deducted from payments otherwise due the Subcontractor under this Subcontract. Repeated or willful non-compliances with applicable ES&H requirements by the Subcontractor shall constitute a default under other provisions of this Subcontract and Princeton may terminate the Subcontract in accordance with those provisions.

(f) The Subcontractor shall promptly evaluate and resolve any non-compliance with applicable ES&H requirements. If the Subcontractor fails to provide resolution or if, at any time, the Subcontractor’s acts or failure to act causes substantial harm or an imminent danger to the environment, or health and safety of employees or the public, any employee, subcontractor, visitor, or other individual at Princeton may issue an order stopping work in whole or in part and the Subcontractor shall be liable for the delay and any costs thereby incurred. Any stop-work order issued by Princeton under this clause (or issued by the Subcontractor to a lower-tier subcontractor in accordance with this clause) shall be without prejudice to any other legal or contractual rights of Princeton. In the event that Princeton issues a stop-work order, an order authorizing the resumption of the work may be issued at the discretion of Princeton.

The Subcontractor shall not be entitled to an extension of time, or additional cost or fee, or damages by reason of, or in connection with, any work stoppage ordered in accordance with this clause.

(g) The Subcontractor is responsible for its lower-tier subcontractors’ compliance with the ES&H requirements of this Subcontract. The Subcontractor shall include a clause substantially the same as this clause in lower-tier subcontracts involving complex or hazardous construction work on site at a DOE-owned or –leased facility. Such lower-tier subcontracts shall provide for the right to stop work under the conditions described herein.

T3. WORKPLACE SUBSTANCE ABUSE PROGRAMS AT DOE SITES (DEC 2010)

(This clause is applicable if subcontract is greater than $25,000 AND if Subcontractor personnel working on site at PPPL are performing functions subject to the requirements of 10 CFR 707.2, i.e., subcontracts that involve (i) access to or handling of classified information or special nuclear materials, (ii) high risk of danger to life, the environment, public health and safety, or national security; or (iii) transportation of hazardous materials to or from a DOE site.)

(a) Program Implementation. The Subcontractor shall, consistent with 10 CFR part 707.2, Workplace Substance Abuse Programs at DOE Sites, incorporated herein by reference with full force and effect, develop, implement, and maintain a workplace substance abuse program.

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(b) Remedies. In addition to any other remedies available to Princeton, subcontractor's failure to comply with the requirements of 10 CFR part 707.2 or to perform in a manner consistent with its approved program may render the Subcontractor subject to: the suspension of subcontract payments, or, where applicable, a reduction in award fee; termination for default; and suspension or debarment.

(c) Lower-Tier Subcontracts.

(1) The Subcontractor agrees to notify the Princeton Procurement Specialist reasonably in advance of, but not later than 30 days prior to, the award of any lower tier subcontract the Subcontractor believes may be subject to the requirements of 10 CFR Part 707.

(2) Princeton shall require all lower-tier subcontracts, subject to the provisions of 10 CFR Part 707.2, to agree to develop and implement a workplace substance abuse program that complies with the requirements of 10 CFR Part 707.2, Workplace Substance Abuse Programs at DOE Sites, as a condition for award of the lower-tier subcontract. Princeton shall review and approve each lower-tier subcontractor’s program and shall periodically monitor each subcontractor’s implementation of the program for effectiveness and compliance with 10 CFR Part 707.2.

(3) The Subcontractor agrees to include, and require the inclusion of, the requirements of this clause in all subcontracts, at any tier, that are subject to the provisions of 10 CFR Part 707.2.

T4. TERMS AND CONDITIONS OF INSURANCE (MAR 2019)

(a) Where this Agreement requires the furnishing of on-site labor, the Subcontractor shall maintain and keep in force at Subcontractor’s expense, the following minimum liability insurance coverage during the Agreement period of performance:

TYPE IN THE

NAME OF LIMITS

(i) Workers Compensation Subcontractor Statutory

(ii) General Liability - General Aggregate Subcontractor $1,000,000

Completed Operations Aggregate Limit $1,000,000

Personal & Advertising Injury Per Offense Limit $300,000

Each Occurrence Limit $300,000

Damage to Premises Rented to You Limit $100,000

Medical Expense Limit per Occurrence $5,000

Coverage A Employee Injury Aggregate Limit $500,000

Coverage A Employee Injury Limit - BI by Disease each Employee

$100,000

(iii) Automobile Liability Bodily Injury and Property Damage (minimum required)

$300,000

$300,000 Deductible

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(b) If the Subcontractor is required to maintain a professional license in order to practice his/her profession, Contractor must maintain professional liability insurance in the amount of $2 million per occurrence. Professions this applies to, but is not limited to, include architects, engineers, attorneys, physicians, nurses and physical therapists. This sample list of professions is representative only and is not meant to be complete.

(c) The Subcontractor shall insert the substance of this clause, including this paragraph (c), in lower-tier subcontracts under this subcontract that require work on a Government installation and shall require subcontractors to provide and maintain the insurance required in paragraph (a) above. At least 5 days before entry of each such subcontractor's personnel on the Government installation, the Subcontractor shall furnish (or ensure that there has been furnished) to PPPL a current certificate of insurance, meeting the requirements of paragraph (b) above, for each such subcontractor.

(d) The Automobile Liability insurance specified in subparagraph (a)(iii) shall provide coverage for any vehicle used by the Subcontractor.

(e) All policies shall be underwritten by a carrier licensed in the State of New Jersey and rated at least

“A- ” in Best’s Key Rating Guide. “The Trustees of Princeton University, including its officers, employees and agents” and the U.S. Government shall be named as additional insureds in the General Liability policy specified in subparagraph (a)(ii). The policies evidencing required insurance shall contain an endorsement to the effect that any cancellation or any material change adversely affecting the Government's interest shall not be effective (1) for such period as the laws of the State in which this subcontract is to be performed prescribe or (2) until 30 days after the insurer or the Subcontractor gives written notice to PPPL, whichever period is longer. Additionally, each policy of insurance shall contain an endorsement reading substantially as follows: "The insurer waives any right of subrogation against the United States of America and Princeton Plasma Physics Laboratory, which might arise by reason of any payment made under this policy."

(f) The amounts, where specified above, are minimums but shall not be construed to be sufficient for any particular subcontract. It shall be the Subcontractor’s full responsibility to determine, obtain and maintain the insurance coverage necessary to adequately protect people and property during the performance of this Subcontract.

(g) The Subcontractor shall be solely responsible for payment of premiums and deductibles for all of the aforesaid insurance. Should any of the aforesaid insurance policies be cancelled or materially changed, the Subcontractor shall provide thirty (30) days prior written notice to Princeton. The Subcontractor shall not change the levels of coverage or permit coverage to expire until all the Services have been completed and accepted.

(h) Certificate(s) evidencing the above insurance coverages, with statement thereon that Princeton and the U.S. Government is an additional named insured as required above, shall be sent to the Procurement Specialist before the Subcontractor’s work begins. Renewal certificates shall be provided annually until the Subcontractor’s work is completed. The Subcontractor shall not enter Princeton’s facilities to perform its work unless it is and remains insured in accordance with the above requirements, unless waived by mutual written agreement of Princeton and the Subcontractor. The Subcontractor shall indemnify Princeton for any loss suffered by Princeton for the failure of the Subcontractor to be so insured.

T5. SUBCONTRACTOR EMPLOYEE STOP WORK AUTHORITY (OCT 2015)

In the event that a subcontractor employee becomes aware of a condition at the job site which creates an imminent danger to an individual, property and/or the environment, the subcontractor employee has the authority and responsibility to require that all work related to the dangerous condition be stopped immediately. Individuals who receive a notification to stop work must comply with that request immediately.

Subcontracted personnel who are capable of doing so should place the system/hardware in a safe

PPPL-PD-T; Rev 5; 09-2022 Page 6 of 9 shutdown status as part of the stop work. In those cases where the danger can be corrected immediately, work can resume when the situation is corrected and clearance to resume work is received from the Princeton Technical Representative. In those cases where the danger cannot be immediately corrected, the Princeton Technical Representative and the PPPL ES&H Department Head must be notified immediately. Work shall not resume until a report is completed and the Princeton Technical Representative authorizes and documents resumption of the activity with the concurrence of the ES&H Department Head.

T6. NOTIFICATION REQUIREMENTS FOR OFF-NORMAL EVENTS (MAR 2019)

This notification must be in all on-site work SOWs and must be posted in a highly visible location where the work is to be performed.

The Subcontractor shall notify PPPL within 15 minutes of becoming aware of off- normal events and issues;

off-normal events and issues include:

● Personnel injuries of any kind

● Near misses that could have resulted in significant (recordable injury or worse) worker injuries

● Uncontrolled or unforeseen personnel exposure to radiation, chemical, biological or physical hazards (e.g., noise, laser, ultraviolet light, heat, etc.)

● Fire emergency of any kind

● Any unexpected discovery of an uncontrolled hazardous energy source (e.g., live electrical power circuit, etc.) not including discoveries made by zero-energy checks and other precautionary investigations made before work is authorized to begin

● Any failure to follow a prescribed hazardous energy control process (e.g., lockout/tagout)

● Damage of any kind to Laboratory property

● Damage of any kind to personal property owned by PPPL employees, guests and visitors

● Any spills of chemicals, fuels, lubricants, etc.

● Other off-normal events and issues deemed by the Subcontractor to require notification

Note: Contacting the PPPL Emergency Services Unit at X3333 to obtain emergency assistance and taking immediate actions to protect workers, guests and visitors takes precedence over the notification requirements described herein.

Regarding these off-normal events or issues, no recovery actions (other than those immediately required to preserve life safety) or repairs are to take place until they are reviewed by the Subcontractor and PPPL, and specifically authorized by the PPPL PTR or ESH Department Head. Resumption of work that has been stopped by PPPL due to off-normal events and issues must follow the provisions of PPPL Policy P-012.

T7. SPILL PREVENTION, RESPONSE & CLEANUP (MAR 2019)

(a) The Subcontractor shall perform all work in accordance with and shall comply with all environmental laws, regulations, rules, orders, ordinances and requirements of any and all governmental authorities as well as the requirements of any insurance company which is then insuring the Subcontractor and/or performance of the Subcontractor's work.

(b) Subcontractor shall be responsible for securing all environmental licenses, permits and approvals required for the performance of the Subcontractor’s work and shall further be responsible for providing all notices required for performance of the work and for posting any bond or security which may be required for performance of Subcontractor’s work.

(c) All preventative measures shall be taken by the Subcontractor (its agents, employees, or lower tier subcontractors) to avoid spillage or leaks of petroleum products, chemicals, hazardous materials, and other contaminant pollutants. Subcontractor shall provide to the Princeton Technical Representative a material inventory and Safety Data Sheets (SDS) for all chemicals and hazardous materials on-site for the subcontract. This list along with appropriate SDSs shall be kept at the project site at all times.

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(d) The Subcontractor is responsible for the prompt notification to the PPPL Emergency Services Unit

(ESU) at (609) 243-3333 in the event of a spill or other the discharge to the environment of any contaminant, including, but not limited to, petroleum hydrocarbons, e.g., fuels, motor oils and lubricating oils, which occurs as a result of any action taken by the Subcontractor's officers, employees, agents or lower tier subcontractors.

(e) A written follow-up report shall be submitted to the Princeton Technical Representative not later than 24 hours after the initial notification. The written report shall be in narrative form and, at a minimum, include the following:

(1) Description of the item spilled (including identity, quantity, manifest number (if applicable), etc.);

(2) Whether the amount spilled is required to be reported to the EPA or other federal, state or local agency, and if so whether it was reported;

(3) Exact time and location of the spill including a description of the area involved;

(4) Containment procedure initiated;

(5) Summary of any communications Subcontractor has with the press, federal, state or local officials;

(6) Description of clean up procedures employed, or to be employed, at the site including the location of the spill residue.

(f) In the event of such a discharge, the Subcontractor will be responsible for notification as required in (c) above and for complete and thorough remediation of the discharge in accordance with requirements of any and all governmental authorities.

(g) The Subcontractor is solely responsible for any and all spills or discharges of contaminants during the performance of this subcontract, which occur as a result of, or are contributed to, by the actions of its agents, employees, or lower tier subcontractors. The Subcontractor agrees to clean up all such spills or leaks to the satisfaction of PPPL and in a manner that complies with the applicable federal, state and local laws and regulations. Subcontractor must supply all materials and equipment necessary for the spill cleanup. The Subcontractor shall be responsible for all cost incurred for the cleanup, waste disposal, site restoration, and any other actions necessary at no cost to PPPL.

(h) In all cases in which a spill or discharge of contaminants into the environment is required to be reported to PPPL pursuant to subparagraph (c) of this clause, the PPPL reserves the option and right to take over and complete the cleanup of the spill or discharge without the assistance of the Subcontractor.

This right may be exercised at the sole discretion of the PPPL. Repeated spills or contaminant releases are grounds for termination of the contract for cause. All reasonable costs incurred by the PPPL in the cleanup of such spills or discharges will be offset against amounts owed or payable to the Subcontractor on this and other Subcontracts with the PPPL. If such amounts are not sufficient to cover all reasonable costs of the spill cleanup the Subcontractor will be billed for the remainder.

T8. FOREIGN GOVERNMENT-SPONSORED TALENT RECRUITMENT

(This clause is applicable to subcontracts for Research, Development, Consultants, Professional and Temporary Staffing. Prior to gaining access to PPPL and associated systems, Subcontracted Personnel will be required to complete a disclosure form.)

In compliance with DOE Order 486.1A, Foreign Government Sponsored or Affiliated Activities, participation in any Foreign Government-Sponsored Talent Recruitment Program of a Foreign Country of Risk, as defined in DOE Order 486.1A, Attachment 2, is prohibited. Participation in any Other Foreign Government Sponsored or Affiliated Activity is restricted. Subcontracted personnel performing work on-site under this prime contract, are required to disclose any participation as defined by the Order. The Department of Energy (DOE) will review each instance individually and individuals may be required to withdraw from such programs to remain under the DOE Prime Contract.

https://www.directives.doe.gov/directives-documents/400-series/0486.1-BOrder-a

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T9. GLOBAL PANDEMIC COVID-19 - GENERAL

As a result of the Global Pandemic COVID-19, the following requirements, in conjunction with FAR 52.223- 99, Ensuring Adequate COVID Safety Protocols for Federal Contractors, will remain in effect until otherwise notified. In addition to the existing contractual requirements for compliance with PPPL safety policies and procedures, the following guidelines must be followed at all times when on the PPPL Campus.

• Vaccinations: Princeton University will require that all faculty, staff, researchers, appointed visiting faculty and researchers, temporary employees, subcontracted personnel and independent contractors (i.e., individuals working alongside with or providing services to students and/or employees) receive and provide proof of having received a COVID-19 vaccine authorized by the U.S. Food and Drug Administration (FDA) and/or World Health Organization.

Vaccinations are required for subcontracted personnel that will continuously be in close proximity with PPPL staff or that are required to attend General Employee Training (GET) training to obtain a PPPL badge.

Subcontractor must provide an attestation that subcontracted employees accessing PPPL are fully vaccinated.

Subcontracted personnel will be required to:

• Be fully vaccinated or meet a legal exemption;

• Complete and retain the Certification of Vaccination (OMB Form 3206-0277);

• Complete PPPL’s mandatory online COVID Safety Training;

• Subcontracted personnel will fully comply with PPPL health screening requirements for facility access. Such screening may include, until otherwise directed, a daily questionnaire, and temperature monitoring.

• If deemed appropriate by PPPL safety health officials, screening may include diagnostic testing for COVID-19 and/or associated antibodies.

• Subcontracted personnel who are sick, should not enter PPPL. Subcontracted personnel who self-disclose potential risk factors identified during health screening, will be denied access to PPPL. In order to gain entry, the subcontractor employee must be cleared by the subcontractor’s occupational medicine personnel and documentation must be submitted to PPPL’s occupational medicine office (OMO). Subcontracted personnel will not be allowed to enter PPPL until cleared for entry by PPPL’s occupational medicine personnel.

• Face Mask/face covering is required in accordance with CDC guidelines. The mask must cover the nose, mouth, and is secured under the chin.

• Social Distancing Rules must be followed.

• Limit equipment and tool sharing, if possible. Clean and disinfect:

Frequently touched surfaces in vehicles and work areas Equipment and tools prior to and after each use

• Subcontracted personnel must maintain a daily log of close contacts that occur during the course of the workday at PPPL. For these purposes, “close contact” is defined as less than 6

PPPL-PD-T; Rev 5; 09-2022 Page 9 of 9 feet separation, for more than 10 minutes, with one employee or more not wearing specified face coverings. The log will only be requested if needed for contact tracing.

• Comply with US Center for Disease Control (CDC) recommendations

T10. GLOBAL PANDEMIC COVID-19 – JOB HAZARD ANALYSIS (JHA)

(This clause is applicable for subcontracts requiring Safety and Health Plan and Job Hazard Analysis (JHA) submittals. The Princeton Technical Representative will provide the JHA templates to the subcontractor.)

To ensure the safety of subcontractor, subcontractor employees and PPPL workers, the subcontractor shall, at the direction of the PTR, provide, for PPPL review, an updated (or new) Job Hazard Analysis (JHA) or worker Safety and Health Plan. The plan and/or JHA shall, in addition to other hazards, address COVID- 19 infection control practices as recommended by the US Center for Disease Control (CDC) and conforms to those listed below. The subcontractor shall provide and maintain, as appropriate, all required materials necessary to protect their employees in the conduct of work at PPPL.

PPPL General Terms and Conditions for Commercial Items and Services

{00158413.1}

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❖ The following clauses, and those incorporated in A39, are hereby made part of this Agreement.

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 subcontract; 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) “Subcontractor” means any person or organization, supplier, distributor, vendor, or firm (including a consultant) that furnishes supplies or services to or for a prime contractor that has entered into this Agreement with Princeton.

(e) “Subcontract” 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 Subcontractor that creates the Agreement.

(f) “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.

(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.

(j) The term “Contractor” shall mean the Contractor, the term “Contract” shall mean this Agreement, and where noted or where necessary to derive proper meaning in a subcontract situation the terms “DOE”, “Government” and “Contracting Officer” shall mean Princeton

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

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

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A6 UNENFORCEABILITY OF UNAUTHORIZED OBLIGATIONS

(a) Except as stated in paragraph (b) of this clause, 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 the Subcontractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C 1341), the following shall govern:

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

(2) 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. If the EULA, TOS, or similar legal instrument or agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind Princeton or any Princeton authorized end user to such clause.

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

(b) Paragraph (a) of this clause does not apply to indemnification by Princeton that is expressly authorized by statute and specifically authorized under applicable Princeton procedures.

A7 REPORTING ENVIRONMENTAL, SAFETY, HEALTH & TECHNICAL CONCERNS

The Subcontractor will ensure that all Subcontractor 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 (the DOE DPO) process can be found in 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 Subcontractor except as expressly authorized in writing by Princeton, provided that the Subcontractor 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 Subcontractor for the operation of PPPL. The Subcontractor agrees to look solely to the Government or to such successor Subcontractor for payment of the part so assigned, and to execute a novation agreement so recognizing the successor Subcontractor 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 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 Subcontractor 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

PPPL-PD-CTC; Rev.26; 02-2024 Page 3 of 11 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 Subcontractor 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 Subcontractor 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 Subcontractor 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 Subcontractor 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 EXCUSABLE DELAYS

The Subcontractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Subcontractor 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 Subcontractor 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.

A12 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 Subcontractor 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 Subcontractor can demonstrate to Princeton’s satisfaction using its standard record keeping system, have resulted from the termination. The Subcontractor 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.

A13 TERMINATION FOR DEFAULT

(a) Ten days after giving the Subcontractor written notice of its intent, Princeton may terminate this Agreement for default, in whole or in part, if the Subcontractor 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 Subcontractor to deliver any supplies and materials, manufacturing materials, and manufacturing drawings that the Subcontractor 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 Subcontractor 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.

A14 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 and accepted based upon Article A16. Unless otherwise provided, terms of payment shall be Net 30 days from submission of the Subcontractor’s proper invoice (unless Princeton does not approve such invoice). Invoices submitted by the Subcontractor 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 Subcontractor. Payments may be made either by 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.

mailto:Accounts_Payable@pppl.gov

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

A15 CHANGES

Any changes or modifications in the Terms and Conditions of this Agreement may be made only by written agreement of the parties and with written approval of PPPL’s Procurement Division Director or designee.

A16 INSPECTION AND ACCEPTANCE

The Subcontractor shall only tender for acceptance those items that conform to the requirements of this Agreement. Princeton reserves the right to inspect or test any supplies or services that have been tendered for acceptance. Princeton may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in price. Princeton must exercise its post-acceptance rights:

(a) within a reasonable time after the defect was discovered, and

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

A17 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 Princeton is exempt from New Jersey State and local sales and use taxes under Exempt Organization Certificate E-210-634-501.

A18 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 Subcontractor until delivery of the items to the destination specified in the Agreement.

A19 WARRANTY

Subcontractor warrants that the items under this Agreement shall be in accordance with Subcontractor’s affirmation, description, sample, or model and compliant with all requirements of this Agreement. The warranty shall begin upon acceptance and extend for a period of:

(a) the manufacturer’s warranty period or six months, whichever is longer, if the Subcontractor is not the manufacturer and has not modified the item; or,

(b) one year or the manufacturer’s warranty period, whichever is longer, if the Subcontractor is the manufacturer of that item or has modified it.

If any nonconformity with the item appears within that time, the Subcontractor shall promptly repair or replace such items or re-perform services.

Transportation of replacement items and return of nonconforming items and repeat performance of services shall be at the Subcontractor’s expense. If repairs or replacement items or reperformance of services is not timely, Princeton may elect to return the nonconforming items or repair or replace them or reprocure the services at the Subcontractor’s expense. The Subcontractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this Agreement.

A20 LIMITATION OF LIABILITY

Except as otherwise provided by an express or implied warranty, the Subcontractor will not be…