The Subcontractor shall only furnish items/components provided by distributors duly authorized by the Original Equipment Manufacturer (OEM), not from independent distributors or brokers, unless specifically authorized in writing by the SP. Items/components furnished by an independent distributor or broker shall still meet all OEM specifications and industry standards.
If the Subcontractor enters into any proceeding relating to bankruptcy, it shall give written notice via certified mail to the SP responsible for this subcontract within five (5) days of initiation of the proceedings. The notification shall include the date on which the proceeding was filed, the identity and location of the court and a listing of the agreement numbers for which final payment has not been made.
(a) NTESS may cancel this subcontract, in whole or in part, if the Subcontractor fails to comply with any of the terms of this subcontract or fails to provide adequate assurance of future performance. In that event, NTESS shall not be liable for any amount for item or services not yet accepted by NTESS.
(b) NTESS may terminate this subcontract for the convenience of NTESS or the government, in whole or in part, for any item or services not yet accepted by NTESS. In that event NTESS shall be liable for the purchase price of item or services already completed or identified to this subcontract but not yet accepted by NTESS.
(c) Subcontractor shall not be liable for delays in performance occasioned by causes beyond Subcontractor's reasonable control and without Subcontractor's fault or negligence.
(d) The rights and remedies of NTESS in this clause are subject to the Disputes clause of this subcontract.
(a) The SP may at any time, by written notice, make changes to the SOW of this subcontract in any one or more of the following:
1. Description of the services to be performed
2. Place of performance
3. The amount of services to be furnished
(b) If any such change causes a difference in the cost of, or the time required for performance, an equitable adjustment shall be made in the price and/or delivery schedule and other affected provisions.
1. Such adjustment shall be made by written revision to this subcontract signed by both parties.
2. Any claim for adjustment by Subcontractor must be made within thirty (30) days from the date of receipt of NTESS' change notice, although NTESS in its sole discretion may receive and act upon any claim for adjustment at any time before final payment.
(c) Nothing in this clause, including any disagreement with NTESS about the equitable adjustment, shall excuse Subcontractor from proceeding with the subcontract as changed.
Unless otherwise approved by NTESS, all personnel of the Subcontractor and its lower-tier subcontractors who will perform work on this subcontract and who will require physical and/or cyber access to NTESS-controlled, government-controlled or government-owned sites, information, technology, or cyber resources, to include remote access must be United States citizens, or foreign nationals who are legal aliens or have the required authorization to perform work in the United States and must meet rules of the site for access to the work areas in place at the time of performance of this subcontract. The Subcontractor agrees and shall ensure that non-United States citizen personnel, to include lower-tier subcontractor personnel, who will require physical and/or cyber access to NTESS-controlled, government-controlled or government- owned sites, information, technology, or cyber resources to perform work on this subcontract are identified and receive prior approval from NTESS Security, in accordance with all laws, regulations, policies, and site access rules, including, but not limited to DOE and NTESS security requirements, before access is granted.
Subcontractor shall procure all necessary permits or licenses and abide by all applicable foreign, federal, state and local laws, ordinances, or regulations, in which any work under this subcontract is performed which are in any way applicable to the SOW of this subcontract.
(a) The Subcontractor shall promptly, and before the conditions are disturbed, give a written notice to the SP of:
1. Subsurface or latent physical conditions at the site which differ materially from those indicated in this subcontract
2. Unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the subcontract.
(b) The SP shall investigate the site conditions promptly after receiving the notice. If the conditions do materially so differ and cause an increase or decrease in the Subcontractor's cost of, or the time required for, performing any part of the work under this subcontract, whether or not changed as a result of the conditions, an equitable adjustment shall be made under this clause and the subcontract modified in writing accordingly.
(c) No request by the Subcontractor for an equitable adjustment to the subcontract under this clause shall be allowed, unless the Subcontractor has given the written notice required; provided, that the time prescribed above for giving written notice may be extended by the SP.
(d) No request by the Subcontractor for an equitable adjustment to the subcontract for different site conditions shall be allowed if made after final payment under this subcontract.
This clause applies to subcontracts that include the delivery of software (including software residing on hardware).
Subcontractor shall disclose in writing any FLOSS and/or TPS delivered in connection with this subcontract. Send written disclosures to the SP listed on this first page of this subcontract and contractnotification@sandia.gov.
(a) FLOSS refers to software that incorporates, embeds, uses, bundles, or otherwise associates with any of the following:
1. Open source, publicly available, or "free" software, library or documentation
2. Software licensed under a FLOSS License
3. Software provided under a license that subjects the delivered software to any FLOSS License, or requires the delivered software to be licensed for the purpose of making derivative works or be redistributable at no charge
(b) FLOSS License(s) include any Free Software, Open Source and Public License(s). FLOSS License also refers to: General Public License (GPL), Lesser/Library GPL (LGPL), the Affero GPL (APL), the Apache license, the Berkeley Software Distribution (“BSD”) license, the MIT license, the Artistic License (e.g., PERL), the Mozilla Public License (MPL), or variations thereof.
(a) Any claim of Subcontractor for any sum of money or other remedial action shall be handled in accordance with the provisions of this clause prior to commencing any form of litigation.
1. A claim by the Subcontractor shall be made in writing and submitted to the SP within one (1) year after the completion of the subcontract.
2. The Subcontractor shall provide the certification specified below when submitting any claim exceeding $100,000. The certification shall state as follows: "I certify that the claim is made in good faith; that the supporting data is accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the subcontract adjustment for which the Subcontractor believes NTESS is liable; and that I am duly authorized to certify the claim on behalf of the Subcontractor.” The certification may be executed by any person duly authorized to bind the Subcontractor with respect to the claim.
3. For Subcontractor-certified claims over $100,000, the SP must, within sixty (60) days, decide the claim or notify the Subcontractor of the date by which the decision will be made. The SP's decision shall be final unless the Subcontractor appeals the SP decision in writing to the SP.
4. For Subcontractor claims of $100,000 or less, the SP must, if requested in writing by the Subcontractor, render a decision within sixty (60) days of the request.
(b) If the Subcontractor appeals the SP decision, the SP shall have sixty (60) days to reach a mutual agreement with the Subcontractor on a form of alternate dispute resolution that will be employed.
1. If the parties fail to reach an agreement within the sixty (60) days after written appeal, the SP’s decision stands unless the Subcontractor shall commence litigation in a court of competent jurisdiction in accordance with the Applicable Law clause of this Subcontract.
2. The Subcontractor shall proceed diligently with performance of this subcontract, pending final resolution of any request for relief, claim, appeal, or action arising under the subcontract, and comply with any decision of the SP pending any final resolution.