1
EX 10.17
Purchase Order# 10147520-001 Schedule
(2/6/98)
SUBCONTRACT AGREEMENT BETWEEN
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
UNIVERSITY OF CALIFORNIA, SAN DIEGO, PURCHASING SUBCONTRACTS
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AND
TERA COMPUTER COMPANY
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TABLE OF CONTENTS
Page
1 SUPPLIES OR SERVICES..................................................1
1.1 Scope of Work................................................1
1.2 Contract Type: Cost Plus Fixed Fee...........................1
2 PERIOD OF PERFORMANCE.................................................1
3 COST, FUNDING AND PAYMENT.............................................2
3.1 Cost.........................................................2
3.2 Allowable Costs..............................................2
3.3 Travel.......................................................2
3.4 Subcontracts.................................................3
3.5 Limitation of Funds..........................................3
3.6 Estimated Funding for Project Period.........................3
3.7 Invoicing and Payment........................................3
4 PACKAGING AND MARKING OF REPORTS AND DELIVERABLES.....................4
5 REPORTS AND DELIVERABLES..............................................4
5.1 Deliverables.................................................4
5.2 Delivery of Reports..........................................4
5.3 Contract Data Requirements List..............................4
5.4 Articles.....................................................5
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5.5 Closeout Reports.............................................6
6 CONTRACT ADMINISTRATION DATA..........................................6
6.1 Prime Sponsor's Key Personnel and Responsibility.............6
6.1.1 Government Contract Administrator...................6
6.2 University's Key Personnel and Responsibility................6
6.2.1 Principal Investigator..............................6
6.2.2 Project Director....................................7
6.2.3 Subcontract Officer.................................7
6.3 Authorized Changes...........................................7
6.4 Subcontractor's Key Personnel and Responsibility.............7
6.4.1 Technical Representative............................8
6.4.2 Project Director....................................8
6.4.3 Contracts Officer...................................8
7 CHANGES AND MODIFICATIONS.............................................9
8 DISPUTES..............................................................9
9. PUBLICATIONS ACKNOWLEDGMENT AND DISCLAIMER...........................10
9.1 Publications................................................10
9.2 Acknowledgment..............................................10
9.3 Disclaimer..................................................10
10 EQUIPMENT AND REAL PROPERTY..........................................10
11 PATENTS AND INVENTIONS...............................................10
11.1 Applicable Law..............................................10
11.2 Invention Disclosure........................................11
11.3 Joint Inventions............................................11
12 RIGHTS IN DATA.......................................................11
13 UNIVERSITY ACCESS TO PROJECT INFORMATION.............................11
14 INDEMNIFICATION......................................................12
15 EXCUSABLE DELAYS.....................................................12
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16 FAR CLAUSES INCORPORATED BY REFERENCE................................12
16.1 Prime Award Clauses.........................................12
16.2 Supplement 5................................................13
17 SUSPENSION OR TERMINATION............................................13
17.1 Suspension.........................................13
17.2 Termination........................................13
17.3 No-Cost Settlement..........................................13
18 CLOSEOUT.............................................................13
18.1 Post-Closeout Audit.........................................13
18.2 Required Reports and Documents..............................14
18.2.1 Final Invoice.......................................14
18.2.2 Release and Assignment Forms........................14
18.2.3 Certification of Final Indirect Costs...............14
18.2.4 Other Reports and Documents ........................14
18.2.5 A Final Report of Inventions........................14
19 ATTACHMENTS, ORDER OF PRIORITY.......................................14
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Purchase Order# 10147520-001 Schedule
(2/6/98)
This Agreement is executed by and between The Regents of the University
of California, University of California, San Diego, a corporation of the State
of California (hereinafter referred to as "the University"), and Tera Computer
Company, A WASHINGTON CORPORATION, (hereinafter referred to as "Subcontractor").
WHEREAS, the University is the recipient of Contract No.
DABT63-97-CA-0028 ("Prime Award") issued by the Defense Advanced Research
Projects Agency (DARPA) ("Prime Sponsor") for the conduct of a project entitled:
"Evaluation of a Multithreaded Architecture for Defense Applications"
("Project") which is attached hereto, identified as Attachment A, Prime Award
and incorporated herein by references as an integral part of this Agreement; and
WHEREAS, it is considered in the best interest of the United States
Government and the University for the Subcontractor to participate in this
Project;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the University and the Subcontractor agree to a
cost-reimbursement subcontract ("Agreement") under said Prime Award.
1 SUPPLIES OR SERVICES
1.1 Scope of Work
Subcontractor shall furnish the necessary materials, facilities,
equipment, and services for performance of Subcontractor's performance as
detailed in Attachment B, Statement of Work, and if and to the extent updated by
a Supplemental Statement of Work, all incorporated herein by reference as an
integral part of this Agreement.
1.2 Contract Type: Cost Plus Fixed Fee
This Agreement is a cost reimbursement, fixed fee, subcontract for
research and development work.
2 PERIOD OF PERFORMANCE
This Agreement Project Period shall begin on 7/1/97 and shall terminate
on 12/31/98 subject to continuation and prime funding of the Project. For
purposes of allowable expenditures of funds allocated hereunder, the funding
period ("Budget Period") is from
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7/1/97 through 12/31/98 . Services to be furnished hereunder shall be performed
and completed within the Project Period unless this Agreement is extended or
terminated as provided herein. Unless otherwise approved when/if additional
funds are allocated, funds not expended in one Budget Period may not be carried
forward into subsequent Budget Periods.
3 COST, FUNDING AND PAYMENT
3.1 Cost
In consideration of the services rendered and items delivered or
reported by the Subcontractor in accordance with Article 1 above and revisions
thereto, the University will provide compensation to the Subcontractor for any
work on a cost reimbursement basis. The Subcontractor agrees to use its best
efforts to perform all work and obligations under this Agreement within the
estimated cost in the period of performance set forth above. The amount allotted
for the first Budget Period shall not exceed the amount of One million, eighty
thousand dollars ($1,080,000.00) as detailed in the budget included in
Attachment B. Regardless of the cumulative amount of funds allotted under this
Agreement, Subcontractor may not expend funds except in accordance with
Statement of Work which has been approved by the University's Principal
Investigator and, if necessary, by the Prime Sponsor's Project Director and/or
Contracts Officer.
3.2 Allowable Costs
Allowable costs are those as itemized on the budget included in
Attachment B. Notwithstanding the above, the Subcontractor shall be reimbursed
for cost incurred in accordance with Prime Award and FAR 52.216-7 "Allowable
Cost and Adjustment" (MAR 97), as limited by Article 3.5 below, and with
procedures and practices as approved by the University and the Subcontractor's
cognizant government audit agencies. At the University's sole discretion, the
University may request audit or examination by the cognizant government agencies
or Contract Office, to the extent permitted by law and provisions of this
Agreement, of all books, records, invoices and other materials of the
Subcontractor. In the event the Subcontractor's cognizant government audit
agencies or Contract Office refuse to audit, the University shall have the right
to audit. Subcontractors shall not purchase any materials, supplies, or
equipment unless they are necessary to the performance of the requirements of
the subcontract and/or authorized under the terms of the subcontract or approved
or directed by the University's ACO.
3.3 Travel
All travel costs, including per diem rates, must be approved in writing
in advance, regardless of whether costs are included on budget included in
Attachment B. (Prime H.3)
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3.4 Subcontracts
Subcontractor is authorized to issue the subcontracts (third-tier) to
the vendors and in the amounts as indicated on the budget included in Attachment
B, provided however that such third tier subcontracts include all applicable
terms of prime award Attachment A, as well as this Purchase Order Subcontract,
and provided further that Subcontractor complies with all applicable procurement
regulations with regard to determining, applying and documenting appropriate
source selection and price reasonableness procedures.
3.5 Limitation of Funds
The amount currently available for payment hereunder is limited to the
Cumulative Allotted Funds noted on the face page of above-referenced Purchase
Order and any modifications or Change Orders subsequently issued thereto. It is
estimated that the Cumulative Allotted Funds will cover the cost of performance
through the Budget Period specified in Article 2, above, as noted on the face
page of the PO or Change Order. Allowable costs constitute those costs incurred
by Subcontractor in the performance of this Agreement in accordance with Article
3.2 above, and as limited by FAR 52.232-20 entitled "Limitation of Cost" (APR
1984). Accordingly, no legal liability on the part of the Prime Sponsor or the
University for payment in excess of the cumulative amount allotted shall arise
unless additional funds are made available and are incorporated/allocated as a
modification to this Agreement. Subcontractor agrees to give timely written
notification to the University Subcontract Officer at any time Subcontractor has
reason to believe the total cost to the University will be GREATER or LESS than
the estimated costs set forth in the approved budget (Attachment B) and
allocated hereunder. Subcontractor will comply with the provisions of Article
H.10 of the Prime Award (Attachment A) in giving such notice.
3.6 Estimated Funding for Project Period
A total amount of funding for the entire Project Period may be
estimated in Subcontractor's budget included in Attachment B, and as modified
from time to time. While the parties may estimate or project future funding for
the entire Project Period, in no event is the University or the Prime Sponsor
liable to reimburse Subcontractor for expenses incurred, whether or not
projected in Subcontractor's Statement of Work or budget, in excess of the
Cumulative Allotted Funds under above-referenced Purchase Order. Allocation of
additional incremental funding to Subcontractor is dependent upon satisfactory
progress, the proposed Statement of Work, and the availability of funds.
3.7 Invoicing and Payment
The Subcontractor shall submit invoices not more frequently than
monthly for the allowable costs incurred in the performance of the work
hereunder to the University. Costs
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must be identified on each invoice by line item similar to the budget in
Attachment B. Invoices in triplicate shall be submitted to:
DISBURSEMENTS OFFICE, 0955
UNIVERSITY OF CALIFORNIA, SAN DEF-GO
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To expedite approval and payment of Subcontractor invoices,
Subcontractor may submit a courtesy copy of all invoices to the University's
Project Director. For coordination of invoices telephone ▇. ▇▇▇▇▇▇▇▇ at (619)
534-0907. The University will make provisional payment on all invoices submitted
in accordance with the terms of this Agreement.
4 PACKAGING AND MARKING OF REPORTS AND DELIVERABLES
All deliverable reports required hereunder shall be marked with the
following information:
UCSD PO number: 10147520
Prime Contract Number: DABT63-97-C-0028
Prime Contract Requisition/Purchase Request and commitment Number
(PR&C):
HJ1500-7074 0297
Prime AAP Number: DAR7-F188/00
Project Title: Evaluation of a Multithreaded Architecture for
Defense Applications
5 REPORTS AND DELIVERABLES
5.1 Deliverables
Deliverables under this Agreement are the reports as specified in
Article 5.3 below. No other tangible personal property is deliverable hereunder.
5.2 Delivery of Reports
Unless otherwise directed, reports are to be transmitted electronically
to the University's Principal Investigator and Project Manager at the e-mail
addresses in Article 6.2 below. The University Project Manager will provide
electronic report templates based on MS Word 6.0 and MS Excel 5.0.
5.3 Contract Data Requirements List
Attachment A, Prime Award, includes "Exhibit A" which is DD Form 1423,
Contract Data Requirement List (CDRL), A001 through A003, and Data Item
Description
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(DID) forms. Subcontractor is required to submit reports in accordance with CDRL
and DID information in Attachment A, Exhibit A, and summarized below:
CDRL Title of Data Item DID number Due Date - to UCSC
Data (form number)
Item
A001 Scientific and DI-MISC-80711 Final: due 10 working
Technical Report (SF 298) days after end of Budget
Period (Project Period)
A002 R&D Status Report DI-A-3002A Quarterly: due 10
(brief narrative working days after end
in letter of quarter (on 9/30/97,
format) 12/31/97, 3/31/98,
6/30/98, 9/30/98 and
12/31/98)
A003 Funds and Man- ▇▇-▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: due 13
hour Expenditure (*see footnote working days after end
Report immediately of quarter (on 9/30/97,
below table) 12/31/97, 3/31/98,
6/30/98, 9/30/98 and
12/31/98)
*Notwithstanding the information required for Data Item A003,
Subcontractor shall not be required to submit Funds Expenditure and Work
Completed Graphs. In satisfaction of this reporting requirement, Subcontractor
shall be required to report the percentage of work planned and work actually
completed during the reporting period.
5.4 Articles
One copy of each paper planned for publication in appropriate
professional journals shall be submitted to the Prime Contractor via the
Principal Investigator, both before proposed publication and after publication.
Proposed publications may be submitted electronically or hard copies may be
mailed to the address specified in Article 6.2. (Prime, Article H.5).
5.5 Closeout Reports
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Purchase Order# 10147520-001 Schedule
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In addition to reports as required above, upon termination or
expiration of this Agreement Subcontractor agrees to comply with the closeout
guidance set forth in the Prime Award, and to submit final reports as provided
in Article 17, Closeout, below.
6 CONTRACT ADMINISTRATION DATA
6.1 Prime Sponsor's Key Personnel and Responsibility
6.1.1 Government Contract Administrator
The Government Contract Administrator will act as the Prime Sponsor's
representative for administrative matters pertaining to changes/increases in the
scope of work, technical oversight, or funding.
The contract administrator is:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ phone: ▇▇▇ ▇▇▇-▇▇▇▇
Directorate of Contracting fax: ▇▇▇ ▇▇▇-▇▇▇▇
Attn.: ATZS-DKO-I
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6.2 University's Key Personnel and Responsibility
6.2.1 Principal Investigator
The University's Principal Investigator (Technical Representative) of
the Prime Award is ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ who shall coordinate the performance of
the various investigators and all subcontractors under the Prime Award, and
under this Agreement, and who is responsible for the overall management of the
effort necessary for the timely and professional execution of the project and
for attaining the project goals. The University's PI does not have authority to
issue contractual modifications or changes to the terms and conditions of this
Agreement.
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Principal Investigator Fax: (▇▇▇) ▇▇▇-▇▇▇▇
University of California, San Diego E-mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
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6.2.2 Project Director
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The University's Project Director is ▇▇. ▇▇▇ ▇'▇▇▇▇▇ who is designated
the University's (UCSD) Project Management Representative(s) and who is
responsible for day-to-day management and project direction for the University,
and for coordination of the work with the Subcontractor's project director(s)
and investigator(s). The Project Director is delegated by the Principal
Investigators to give direction, clarification and approval which lies within
the scope of the Agreement.
▇▇. ▇▇▇ ▇'▇▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Project Manager Fax: (▇▇▇) ▇▇▇-▇▇▇▇
San Diego Supercomputer Center E-mail: ▇▇▇▇▇▇@▇▇▇▇.▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
6.2.3 Subcontract Officer
The University's Subcontract Officer is ▇▇▇▇ ▇▇▇▇▇ who, upon the
request of the University PI, has the authority to issue contractual
modifications or changes to the terms of this Agreement. In the event that the
Subcontractor effects any change at the direction of any person other than the
Subcontract Officer, the change will be considered to have been made without
authority and no adjustment will be made in the Subcontract price to cover any
increase in charges incurred as a result thereof.
▇▇▇▇ ▇▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Purchasing, Business Contracts Fax: (▇▇▇) ▇▇▇-▇▇▇▇
University of California, San Diego E-mail: ▇▇▇▇▇▇@▇▇▇▇.▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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6.3 Authorized Changes
Except as specified above, no order, statement, or conduct of Prime
Sponsor or University personnel who visit the Subcontractor's facilities or in
any other manner communicate with Subcontractor personnel during the performance
of this Agreement shall constitute a change under "Changes and Modifications"
article of this Agreement. The Subcontractor shall not comply with any order,
direction or request of Prime Sponsor or University personnel unless it is
issued in writing and signed by the University's Subcontract Officer, or is
pursuant to specific authority otherwise included as part of this Agreement.
6.4 Subcontractor's Key Personnel and Responsibility
6.4.1 Technical Representative
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Subcontractors's Technical Officer is Mr. John Fao. who is responsible
for the conduct of research by Subcontractor, and who shall coordinate the
performance of the various investigators and be responsible for day-to-day
management and project direction for the Subcontractor. As such, his/her
services are considered to be essential to the performance of the work and any
change must be approved by the University. Subcontractor's Technical Officer
does not have the authority to issue contractual modifications or changes to the
terms and conditions of this Agreement.
Mr. John Fao Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Technical Representative Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tera Computer Company E-mail: ▇▇▇▇@▇▇▇▇.▇▇▇
10100 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
6.4.2 Project Director
Subcontractor's Project Director (Principal Investigator) is ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ who is designated Subcontractors Project Management Representative and
who is responsible for coordination of the work with Subcontractor's
subcontractors. The Project Director shall give direction, clarification and
approval which lies within the scope of this Agreement, and has authority,
together with the Subcontractor's Contracts Officer, to issue contractual
modifications or changes to the terms of this Agreement. The Subcontractor has
full responsibility for the conduct of the project or activity and for the
results which are supported by this Agreement, in accordance with all of the
terms and conditions of this Agreement, including Attachments and applicable
regulations incorporated herein by reference.
Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Project Director Fax: (206) 490-
Tera Computer Corporation E-mail: ▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
6.4.3 Contracts Officer
Subcontractor's Contracts Officer is ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, who, together
with Subcontractor's Project Director, has the authority to issue contractual
modifications or changes to the terms of this Agreement. In the event that the
Subcontractor effects any change at the direction of any person other than the
Project Director or Contracts Officer, the change will be considered to have
been made without authority.
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Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Contracts Officer Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tera Computer Corporation E-mail: ▇▇▇@▇▇▇▇.▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
7 CHANGES AND MODIFICATIONS
All substantive changes and modifications to this Agreement must be
approved by both parties by means of a written modification to this Agreement,
signed by individuals with authority to enter into such agreements at a level
equal to the authority to enter into the original Agreement. Depending upon the
terms and conditions of the Prime Award, changes and modifications to this
Agreement may require approval of the Prime Sponsor. Substantive modifications
in any of the terms of this Agreement which require a specific written approval
by the Prime Sponsor shall not be effective prior to receipt of the written
acceptance or ratification by the Prime Sponsor to the change, modification, or
amendment. Neither the University nor the Prime Sponsor is obligated to pay for
additional costs authorized by formal change or modification until such change
or modification is approved by both parties hereunder.
8 DISPUTES
If either party believes there is a dispute either of fact or of
interpretation arising from the performance or administration of this Agreement,
they will promptly notify the other party, and the parties agree to exercise
their best efforts to reach a fair and equitable resolution of the dispute. The
parties involved in the dispute, including any subcontractors engaged by the
Subcontractor, shall proceed diligently with performance of this Agreement
including any subcontracts issued by Subcontractor hereunder, as directed by
University, pending final resolution of any request for relief, claim, appeal or
action related to this Agreement. If the dispute cannot be resolved by the
parties involved, the complainant may file a protest or notice of other
controversy with the University's Contractual Officer, at the address in Article
6.2.2. All protests or notices must be in writing. The parties' respective
Contractual Officers shall be delegated with the authority to investigate the
issues involved in the dispute, analyze the findings, consult with the parties'
respective legal counsel where appropriate, and attempt to mediate a resolution
to the dispute. The University's Contractual Officer shall hand down a written
decision which shall be final and conclusive upon the parties as to questions of
fact. Compliance with this Article does not preclude use of any other legal
remedies by the parties.
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9. PUBLICATIONS ACKNOWLEDGMENT AND DISCLAIMER
9.1 Publications
All news releases, public information brochures, publications, and
other similar items (not limited to printed media, and including video, etc.)
prepared by the either party and/or it's employees or contractors, which
describe activities or results under this Agreement ("Publications") shall be
coordinated with the other party and the Prime Sponsor Responsible Official
before release. The publishing party will provide advance copies of all proposed
technical articles to the other party sufficiently in advance of proposed
publication to permit the other party to comment.
9.2 Acknowledgment
It is the intent of this article that presentations, publications
(e.g.) pamphlets, journal articles, reports, books, teaching guides, software),
audiovisuals (e.g. posters, slides, videotapes, film), or other materials that
result from activities of this Project should indicated or show program
attribution. All Publications shall acknowledge the sponsorship of the Prime
Sponsor in substantially the following terms: "This material is (partially)
based on work sponsored by Contract #N00164-96-C-0022. The Government has
certain rights to this material."
9.3 Disclaimer
All materials, except scientific articles or papers published in
scientific journals, must also contain the following: "Any opinions, findings,
and conclusions or recommendations expressed in this publication are solely the
responsibility of the author(s) and do not necessarily represent or reflect the
official views of the Government or the Regents of the University of
California."
10 EQUIPMENT AND REAL PROPERTY
No equipment or real property may be acquired by Subcontractor
hereunder.
11 PATENTS AND INVENTIONS
11.1 Applicable Law
Patents and inventions arising under this Agreement shall be subject to
the provisions of Far 52.227-11, Patent Rights -- Retention by the Contractor
(Short Form) (Jun 1989).
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11.2 Invention Disclosure
Any invention or patentable idea developed, made or conceived by
employees of the Subcontractor, in the course of research performed under this
Agreement, and upon disclosure to the Subcontractor, shall be reported to the
Prime Sponsor with a copy of the report provided to the University. Upon
request, Subcontractor agrees to provide an annual and final report of
inventions to the University.
11.3 Joint Inventions
For inventions made jointly by University and Subcontractor employees,
the University and Subcontractor will reach agreement through good faith
discussions as to which party shall handle the reporting and other
administrative matters pertaining to inventions made with Government support
under this Cooperative Agreement, and to negotiate in good faith regarding the
disposition of rights, including copyright, patent and license of joint
inventions, such disposition taking into consideration the relative
contributions of the inventors.
12 RIGHTS IN DATA
The Government shall have unlimited rights in Technical Data provided
hereunder by subcontractor, including all reports and other deliverables. (Prime
H.11).
13 UNIVERSITY ACCESS TO PROJECT INFORMATION
In order for University to perform as required under the Prime Award
and to coordinate collaborative work among Subcontractor and other parties
contracting with University for this Project, University must have access to
some existing data and proprietary software (including source code kernels), as
well as data and software which may be developed by contractors during the
course of the Project, including Project-related Inventions, Technical Data,
software and source code kernels ("Project Information"). Subcontractor agrees
to grant University access to all of Subcontractor's Project Information upon
request. Where appropriate, Subcontractor will ▇▇▇▇ all Project Information
which Subcontractor 'deems to be confidential or proprietary as "Confidential or
Proprietary Project Information". University will use any such Confidential or
Proprietary Project Information only for the purposes of the Project, will treat
it with the same degree of care University treats its own confidential
information, will not disclose or transfer it to other parties and will return
or destroy it when the Project is concluded. Subcontractor will include this
requirement for University access to Project Information in any subcontracts
issued by Subcontractor to third-tier subcontractors, unless University has
entered into separate agreement(s) with such third-tier subcontractor(s) to
receive access to Project Information
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Purchase Order# 10147520-001 Schedule
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directly. This limited right to use Project Information is granted to the
University, not as consideration for this award, but in order to support the
research and educational mission of the University of California and to enable
University to perform its obligations in the Project.
14 INDEMNIFICATION
Each party shall be solely responsible for the performance of the work
hereunder. Each party, shall reimburse the other party for and defend, indemnify
and hold the other party harmless from and against any and all liability, loss,
expenses, attorneys' fees, or claims for injury or damages arising out of the
performance of this Agreement but only in proportion to and to the extent such
liability, loss, expense, attorney's fees, or claims for injury or damages are
caused by or result from the negligent or intentional acts or omissions of the
indemnifying party, its, officers, agents, or employees. Notwithstanding any
other provision of this Agreement, neither party shall be liable to the to the
other party for consequential, incidental, special, indirect, exemplary or
punitive damages arising from or related to the indemnifying party's performance
under this Agreement.
15 EXCUSABLE DELAYS
In the event of a delay caused by inclement weather, fire, flood,
strike or other labor dispute, acts of God, acts of Governmental officials or
agencies, or any other cause beyond the control of the Subcontractor, the time
for performance shall be extended hereunder for the periods of time attributable
to such a delay, which may extend beyond the time lost due to one or more of the
causes mentioned above. In the event of any such delay, subject to prior
approval by the Prime Sponsor and by mutual agreement between the University and
the Subcontractor, this Agreement may be revised by changing the maximum amount,
performance period, and other provisions, as appropriate.
16 FAR CLAUSES INCORPORATED BY REFERENCE
16.1 Prime Award Clauses
All Contract Clauses incorporated by reference into Attachment A, Prime
Award, Section "I", Contract Clauses, are incorporated by reference into this
Agreement, with the same force and effect as if they were given in full text. In
all such clauses, to the extent applicable, the word "Government" applies to the
Prime Sponsor and the University, and references to "Contractor" apply to
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16.2 Supplement 5
University of California, Special Terms and Conditions for Federal
Government Contracts ("Supplement 5") is also incorporated by reference into
this Agreement..
17 SUSPENSION OR TERMINATION
17.1 Suspension
The University may suspend this Agreement in whole or in part, (1) when
the University believes that the Subcontractor has materially failed to comply
with the terms and conditions of this Agreement (2) for any reason by mutual
agreement between the University and the Subcontractor upon the request of
either party, or (3) when the parties cannot agree to the extent of a
termination.
17.2 Termination
This Agreement may be terminated by either party at any time upon the
issuing of notice sixty (60) days prior to effective date of termination. In
such event, the Subcontractor shall exert its best efforts and will proceed in
an orderly fashion to limit or to terminate any outstanding commitments and to
conclude the work. All costs, up to the amount of the Cumulative Allotted Funds
specified on the Purchase Order or Change Order issued hereunder by University,
associated with the termination (including indirect costs) shall be allowable,
including without limitation, uncancellable costs incurred prior to the
effective date of termination, which have not been reimbursed to the
Subcontractor. In the event of termination, the Subcontractor shall submit a
final report of expenditures (within 90 days after the 60 day termination
period) of all costs incurred and all funds received.
17.3 No-Cost Settlement
Article H.6 of the Prime Award, Attachment A, is specifically
incorporated herein.
18 CLOSEOUT
18.1 Post-Closeout Audit
This Agreement may be closed out without a specific (transactional)
audit or without an organization-wide or single audit covering the entire period
of Federal or University support. The closeout of this Agreement shall not
affect the retention period for, or University or Federal right of access to,
Project records. After closeout, the University may nevertheless disallow and
recover from the Subcontractor an appropriate amount, on the basis of a
subsequently received audit report of any other available information.
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Purchase Order# 10147520-001 Schedule
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18.2 Required Reports and Documents
Subcontractor agrees to provide the following reports and documents at
closeout, whether for termination or expiration of this Purchase Order
Subcontract:
18.2.1 Final Invoice - a final request for reimbursement for all
expenses during final billing period, as well as a summary of all expenses
billed and reimbursed through end date, and such final billing shall be marked
"FINAL";
18.2.2 Release and Assignment Forms - Upon closeout, University will
provide certificates for Subcontractor's Release and Subcontractor's Assignment
of Refunds, Rebates Credits, and Other Amounts which will be executed and
returned to University;
18.2.3 Certification of Final Indirect Costs, if applicable to
Subcontractor's type of organization, as required under FAR 52.242-4;
18.2.4 Other Reports and Documents - any other reports, documents or
deliverables, if specified or required on the face of the Purchase Order
Subcontract; and
18.2.5 A Final Report of Inventions shall be submitted within 90 days
of the end of the year or final termination of this Project.
19 ATTACHMENTS, ORDER OF PRIORITY
This Agreement consists of the Purchase Order referenced above, this
Subcontract Schedule, and the attachments listed below. In the event of a
conflict or inconsistency in the terms of these documents, the terms of the PO
and this Subcontract Schedule shall control, and the attachments shall be
applied in the order of priority listed below. Attachments:
Attachment A Prime Award (including all attachments and exhibits)
Attachment B Subcontractor's Statement of Work (including approved
Budget)
Supplement 5 University of California, Special Terms and
Conditions for Federal Government Contracts
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