09123-09 subcontract - University of North Dakota

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Research Partnership to Secure Energy for America programs and software or other technical or proprietary information furnished, loaned or bailed by RPSEA hereunder (hereinafter collectively referred to as “Items/Information”), and use such Items/Information only in the performance of this Subcontract or, if authorized, other orders from RPSEA and not otherwise, without RPSEA's prior written consent. In order to be deemed confidential hereunder, Items/Information must qualify for at least one exception to North Dakota’s open records laws. Notwithstanding any other provision herein, RPSEA and SUBCONTRACTOR shall each retain ownership of, and all right, title and interest in and to, their respective pre-existing Intellectual Property. All such Items furnished, loaned or bailed by RPSEA hereunder, or fabricated, manufactured, purchased, or otherwise acquired by SUBCONTRACTOR for the performance of this Subcontract and specifically charged to RPSEA, are the property of RPSEA. Upon completion, expiration or termination of this Subcontract, SUBCONTRACTOR shall return all such Items in good condition, reasonable wear only excepted, together with all spoiled and surplus Items to RPSEA, or make such other disposition thereof as may be directed or approved by RPSEA. SUBCONTRACTOR agrees to replace, at its expense, all such Items not so returned. SUBCONTRACTOR shall make no charge for any storage, maintenance or retention of such Items. SUBCONTRACTOR shall bear all risk of loss for all such Items in SUBCONTRACTOR's possession. SUBCONTRACTOR also agrees to use any designs or data contained or embodied in such Items in accordance with any restrictive legends placed on such Items by RPSEA or any third party. If RPSEA furnishes any material for fabrication hereunder, SUBCONTRACTOR agrees: (i) not to substitute any other material for such fabrication without RPSEA's prior written consent, and (ii) that title to such material shall not be affected by incorporation in or attachment to any other property. Nothing in this article is intended to conflict with North Dakota State Law and is not applicable to items furnished, loaned, or bailed with cost share funds, or other partnering sponsors. 10.0 DISPUTES Any dispute not disposed of in accordance with the "Disputes Clause" of Schedule B, if any, shall be determined in the following manner. (a) RPSEA and SUBCONTRACTOR agree to enter into negotiation to resolve any dispute. Both parties agree to negotiate in good faith to reach a mutually agreeable settlement within a reasonable amount of time. (b) If negotiations are unsuccessful, any controversies arising out of the terms of this Agreement or its interpretation may, upon agreement of the parties be presented to non-binding arbitration with the American Arbitration Association in a place agreed to by both parties. (c) Neither party waives its right to a jury trial. Pending any decision, appeal or judgment referred to in this provision or the settlement of any dispute arising under this Subcontract, SUBCONTRACTOR shall proceed diligently with the performance of this Subcontract. 11.0 DEFAULT (a) RPSEA may, by written notice of default to the SUBCONTRACTOR, terminate the whole or any part of this Subcontract in any one of the following circumstances: (i) if SUBCONTRACTOR fails to make progress in the work so as to endanger performance or (ii) if SUBCONTRACTOR fails to perform any of the other provisions of this Subcontract in accordance with its terms, and in either of these two 09123-09 - University of North Dakota (WANG) Schedule A 8
Research Partnership to Secure Energy for America circumstances does not cure such failure within a period of ten (10) days (or such longer period as RPSEA may authorize in writing) after receipt of notice from RPSEA specifying such failure; or (iii) SUBCONTRACTOR becomes insolvent or the subject of proceedings under any law relating to bankruptcy or the relief of debtors or admits in writing its inability to pay its debts as they become due. (b) If this Subcontract is so terminated, SUBCONTRACTOR shall submit a final termination settlement proposal to RPSEA. The SUBCONTRACTOR shall submit the proposal promptly but no later than three (3) months from the effective date of the termination. If SUBCONTRACTOR fails to submit the proposal within the time allowed, RPSEA may determine the amount, if any, due the SUBCONTRACTOR because of the termination. The amount will be determined in accordance with FAR Clause 52.249-5 in effect on the date of the prime contract. (c) SUBCONTRACTOR shall transfer title and deliver to RPSEA, in the manner and to the extent requested in writing by RPSEA at or after termination such complete articles, partially completed articles and materials, parts, tools, dies, patterns, jigs, fixtures, plans, drawings, information and contract rights as SUBCONTRACTOR has produced or acquired for the performance of the terminated part of this Subcontract, and RPSEA will pay SUBCONTRACTOR the contract price for complete articles delivered to and accepted by RPSEA and the fair value of the other property of SUBCONTRACTOR so requested and delivered. (d) SUBCONTRACTOR shall continue performance of this Subcontract to the extent not terminated. RPSEA shall have no obligations to SUBCONTRACTOR with respect to the terminated part of this Subcontract except as herein provided. In case of SUBCONTRACTOR’s default, RPSEA’s rights as set forth herein shall be in addition to RPSEA’s other rights although not set forth in this Subcontract. (e) SUBCONTRACTOR shall not be liable for damages resulting from default due to causes beyond the SUBCONTRACTOR’s control and without SUBCONTRACTOR’s fault or negligence in accordance with FAR Clause 52.249-14 “Excusable Delays” provided, however, that if SUBCONTRACTOR’s default is caused by the default of a subcontractor or supplier, such default must arise out of causes beyond the control of both SUBCONTRACTOR and subcontractor or supplier, and without the fault or negligence of either of them, provided further, the supplies or services to be furnished by the subcontractor or supplier were not obtainable from other sources. 12.0 SUBCONTRACT CLOSEOUT Quick-closeout procedures are applicable when the conditions in FAR 42.708(a) are satisfied. The SUBCONTRACTOR and RPSEA Contracts Manager shall execute a written understanding setting forth the subcontract closeout requirements and final indirect cost rates. The understanding shall specify (i) the agreed-upon final annual indirect cost rates, (ii) the bases to which the rates apply, (iii) the periods for which the rates apply, (iv) any specific indirect cost items treated as direct costs in the settlement, and (v) the affected subcontract, identifying any with advance agreements or special terms and the applicable rates. The understanding shall not change any monetary ceiling, contract obligation, or specific cost allowance or disallowance provided for in this Subcontract. The understanding is 09123-09 - University of North Dakota (WANG) Schedule A 9
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09123-09 subcontract - University of North Dakota

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