SUBCONTRACT AGREEMENT
TITLE
"SMALL TUG: MINIATURE FLIGHT EXPERIMENT DEMONSTRATING CISLUNAR CARGO TUG
TECHNOLOGIES"
SELLER: SPACEDEV, INC.. . . . . . . SUBCONTRACT #:N0405-SC-NNM05AA92C-01
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MODIFICATION #:
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ADDRESS: 00000 XXXXX XXXXX. . . . . SUBPROJECT #:
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XXXXX, XX 00000 DATE:
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TYPE: FIRM FIXED PRICE
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VALUE:
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Non disclosure
INTRODUCTION
This Subcontract Agreement (the "Subcontract") is made between Xxxxxxx Space,
Inc. (hereinafter known as "Buyer"), a Washington corporation, with principal
offices in Seattle, Washington, and SpaceDev, Inc. (hereinafter known as
"Seller"), a Colorado corporation, with principal offices in Poway, CA The
effort to be performed by Seller under this Subcontract will be part of Buyer's
Prime Contract (number) NNM05AA92C which has been issued by National Aeronautics
and Space Administration, "NASA". The work, defined in Attachment I "Statement
of Work" will be performed on a Firm Fixed Price basis, in accordance with the
following terms and conditions
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1. INVOICES
Invoices shall be prepared in duplicate and contain the following information;
Subcontract number, Subproject number, labor categories, hourly rates, labor
hours, extended totals by category, material and other direct costs detail shall
be separated from labor costs. Invoices will be mailed to:
(2 copies unless otherwise specified):
Xxxxxxx Space, Inc.
000 0xx Xxxxxx, Xxxxx, Xxxxx 000
Xxxxxxx XX 00000
Invoices shall clearly reference a unique invoice number on each invoice, period
of incurred costs, and the date of the invoice. Invoices shall include the
"Amount Previously Billed," the "Amount of this Invoice," the "Withhold Amount",
and the "Total Amount Billed to Date" for each labor category. Seller shall
submit invoices for the full amount stating the amount of withhold/retention for
each line item billed.
Example: Line Item 1 $10,000
- Less withhold 1,000
Total Amount Owed 9,000
2. 1852.216-78 FIRM FIXED PRICE (DEC 1988)
(a) The total firm fixed price of this Subcontract is $1,249,493
(b) The following milestone payment schedule is established for the Fixed Price
Base Year:
PHASE I FIXED PRICE MONTHLY PAYMENT SCHEDULE
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WORK MONTH MONTHLY PAYMENT CUMULATIVE PAYMENT
---------- ---------------- -------------------
Jun-05 . . $ 100,000 $ 100,000
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Jul-05 . . $ 104,000 $ 204,000
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Aug-05 . . $ 97,000 $ 301,000
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Sep-05 . . $ 131,000 $ 432,000
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Oct-05 . . $ 142,000 $ 574,000
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Nov-05 . . $ 142,000 $ 716,000
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Dec-05 . . $ 135,000 $ 851,000
---------- ---------------- -------------------
Jan-06 . . $ 165,000 $ 1,001,000
---------- ---------------- -------------------
Feb-06 . . $ 83,194 $ 1,166,000
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Mar-06 . . $ 1,249,194
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The final payment will not made until the Final Report is accepted by the Buyer.
3. DESCRIPTION/SPECIFICATIONS/STATEMENT OF WORK (FEB 2001)
The Description/Specifications/Statement of Work is Attachment A-1.
4. TECHNICAL AND CONTRACTUAL REPRESENTATIVES
The following authorized representatives are hereby designated for this
Subcontract:
Seller: Buyer:
Technical __Keith Beals_____________ Technical __Eric Wetzel_____
Contractual __Michelle Crouch__________ Contractual __Marian Joh____
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Either Party may change their authorized representative(s) by giving advance
written notification to the other Party.
4.1. CONTACTS
Contacts with Buyer which affect the subcontract prices, schedule, statement of
work, and Subcontract terms and conditions shall be made with the authorized
Contractual Representative. No changes to this Subcontract shall be binding upon
Buyer unless incorporated in a written modification to this Subcontract and
signed by Buyer's contractual representative.
4.2. CHANGES
Buyer may, by written notice to Seller at any time before completion of this
Subcontract, make changes within the general scope of this Subcontract in any
one of the following: (a) drawings, designs, or specifications; (b) quantity;
(c) delivery; (d) method of shipment or routing; and (e) make changes in the
amount of Buyer furnished property. If any such change causes a material
increase or decrease in any hourly rate or the not-to-exceed price, or the time
required for the performance of any part of the work under this Subcontract, the
Buyer shall make an equitable adjustment in the price, hourly rates or delivery
schedule, and shall modify the Subcontract not-to-exceed price. As a condition
precedent to any equitable adjustment, the Seller must notify Buyer in writing
of any request for adjustment within twenty (20) days from the date Seller
receives notice from Buyer of a change, or from the date of any act of Buyer
which Seller considers to constitute a change. Failure to agree to any
adjustment shall be a dispute under the Disputes clause of this Subcontract.
However, Seller shall proceed with the work as changed without interruption and
without awaiting settlement of any such claim.
5. 1852.235-71 KEY PERSONNEL AND FACILITIES (MAR 1989)
(a) The personnel and/or facilities listed below (or specified in the
subcontract Schedule) are considered essential to the work being performed under
this Subcontract. Before removing, replacing, or diverting any of the listed or
specified personnel or facilities, the Seller shall (1) notify the Buyers
Contractual Representative reasonably in advance and (2) submit justification
(including proposed substitutions) in sufficient detail to permit evaluation of
the impact on this Subcontract.
(b) The Seller shall make no diversion without the Buyers Contractual
Representative's written consent; provided, that the Buyers Contractual
Representative may ratify in writing the proposed change, and that ratification
shall constitute the Buyers Contractual Representative's consent required by
this clause.
(c) The list of personnel and/or facilities (shown below or as specified in the
contract Schedule) may, with the consent of the contracting parties, be amended
from time to time during the course of the Subcontract to add or delete
personnel and/or facilities.
PERSONNEL: XXXXX XXXXX, XXXX XXXXXXXXXX, XXXXX XXXXXXXXX, XXXX
XXXXXXX, XXXX XXXXXX, XXX XXXXX, XXXXXX XXXXXX, AND XXXXX XXXXXXXXX
FACILITIES:
6. PERIOD OF PERFORMANCE
The period of performance of this Subcontract shall be from the effective date
through MARCH 31, 2006.
7. OPTION TO EXTEND THE TERM OF THE SUBCONTRACT (FAR 52.217-9) (MAR 2000)
(a) The Buyer may extend the term of this subcontract by written notice to the
Seller within a reasonable time; provided that the Buyer gives the Seller a
preliminary written notice of its intent to extend at least 15 days before the
contract expires. The preliminary notice does not commit the Buyer to an
extension.
(b) If the Buyer exercises this option, the extended Subcontract shall be
negotiated prior to the end of this Subcontract.
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(c) The total duration of this Subcontract shall not exceed 1 Year.
(d) The Buyer may exercise the option in its entirety or in increments of one
month or more.
8. PATENT INDEMNITY
The Seller shall indemnify the Buyer and its officers, employees and agents
against liability, including costs, for actual or alleged direct or contributory
infringement of, or inducement to infringe, any United States or foreign patent,
trademark or copyright, arising out of the conduct of Seller in the performance
of this Subcontract, provided the Seller is reasonably notified of such claims
and proceedings.
9. RISK OF LOSS
Unless the Subcontract specifically provides otherwise, risk of loss or damage
to the supplies provided under this Subcontract shall remain with the Seller
until, and shall pass to the Buyer upon:
(a) Delivery of the supplies to a carrier, if transportation is f.o.b.
origin; or
(b) Delivery of the supplies to the Buyer at the destination specified in
the Subcontract, if
transportation is f.o.b. destination.
10. TAXES
The Subcontract price includes all applicable Federal, State, and local taxes
and duties.
11. TERMINATION FOR THE BUYER'S CONVENIENCE
The Buyer reserves the right to terminate this Subcontract, or any part hereof,
for its sole convenience. In the event of such termination, the Seller shall
immediately stop all work hereunder and shall immediately cause any and all of
its suppliers and subcontractors to cease work. Subject to the terms of this
Subcontract, the Seller shall be paid for the portion of the work performed. The
Seller shall not be required to comply with the cost accounting standards or
subcontract cost principles for this purpose. This paragraph does not give the
Buyer any right to audit the Seller's records. The Seller shall not be paid for
any work performed or costs incurred which reasonably could have been avoided.
12. TERMINATION FOR CAUSE
The Buyer may terminate this Subcontract, or any part hereof, for cause in the
event of any default by the Seller, or if the Seller fails to comply with any
Subcontract terms and conditions, or fails to provide the Buyer, upon request,
with adequate assurances of future performance. In the event of termination for
cause, the Buyer shall not be liable to the Seller for any amount for supplies
or services not accepted, and Buyer may exercise any and all rights and remedies
provided by law. If it is determined that the Buyer improperly terminated this
Subcontract for default, such termination shall be deemed a termination for
convenience.
13. TITLE
Unless specified elsewhere in this Subcontract, title to items furnished under
this Subcontract shall pass to the Buyer when the Buyer takes physical
possession.
14. WARRANTY
The Seller warrants and implies that the hours and/or items delivered hereunder
are merchantable and fit for use for the particular purpose described in this
Subcontract.
15. OTHER COMPLIANCES
The Seller shall comply with all applicable Federal, State and local laws,
executive orders, rules and regulations applicable to its performance under this
Subcontract.
16. COMPLIANCE WITH LAWS UNIQUE TO GOVERNMENT SUBCONTRACTS
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The Seller agrees to comply with 31 U.S.C. 1352 relating to limitations on the
use of appropriated funds to influence certain Federal subcontracts; 18 U.S.C.
431 relating to officials not to benefit; 40 U.S.C. 327, et seq., Subcontract
Work Hours and Safety Standards Act; 41 U.S.C. 51-58, Anti-Kickback Act of 1986;
41 U.S.C. 265 and 10 U.S.C. 2409 relating to whistleblower protections; 49
U.S.C. 40118, Fly American; and 41 U.S.C. 423 relating to procurement integrity.
17. DISPUTES
(a) Notwithstanding any provisions herein to the contrary:
(1) If a decision relating to the Prime Contract is made by NASA and such
decision is also related to this Subcontract, said decision, if binding upon
Buyer under the Prime Contract shall in turn be binding upon Buyer and Seller
with respect to such matter; provided, however, that if Seller disagrees with
any such decision made by NASA and Buyer elects not to appeal such decision,
Seller shall have the right reserved to Buyer under the Prime Contract with the
NASA to prosecute a timely appeal in the name of Buyer, as permitted by the
contract or by law, Seller to bear its own legal and other costs. If Buyer
elects not to appeal any such decision, Buyer agrees to notify Seller in a
timely fashion after receipt of such decision and to assist Seller in its
prosecution of any such appeal in every reasonable manner. If Buyer elects to
appeal any such decision of NASA, Buyer agrees to furnish Seller promptly with a
copy of such appeal. Any decision upon appeal, if binding upon Buyer, shall in
turn be binding upon Seller. Pending the making of any decision, either by the
NASA or on appeal, Seller shall proceed diligently with performance of this
Subcontract.
(2) If, as a result of any decision or judgment which is binding upon
Seller and Buyer, as provided above, Buyer is unable to obtain payment or
reimbursement from the NASA under the Prime Contract for, or is required to
refund or credit to the NASA, any amount with respect to any item or matter for
which Buyer has reimbursed or paid Seller, and which relates to services
performed by Seller, Seller shall, on demand, promptly repay such amount to
Buyer. Additionally, pending the final conclusion of any appeal hereunder,
Seller shall, on demand, promptly repay any such amount to Buyer. Buyer's
maximum liability for any matter connected with or related to this Subcontract
which was properly the subject of a claim against the NASA under the Prime
Contract shall not exceed the amount of Buyer's recovery from the NASA.
(3) Seller agrees to provide certification that data supporting any claim
made by Seller hereunder is made in good faith and that the supporting data is
accurate and complete to the best of Seller's knowledge or belief, all in
accordance with the requirements of the Contract Disputes Act of 1978
(41USC601-613) and implementing regulations. If any claim of Seller is
determined to be based upon fraud or misrepresentation, Seller agrees to defend,
indemnify and hold Buyer harmless for any and all liability, loss, cost or
expense resulting therefrom.
(b) Any dispute not addressed in paragraph (a) above, will be resolved in the
following manner:
(1) Buyer and Seller 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.
(2) If negotiations are unsuccessful, Buyer and Seller agree to enter into
binding Arbitration. The American Arbitration Association (AAA) Commercial
Arbitration Rules (most recent edition) are to govern this Arbitration. The
Arbitration shall take place in Seattle, Washington. The Arbitrator shall be
bound to follow the applicable Subcontract provisions and Washington law in
adjudicating the dispute. It is agreed by both parties that the Arbitrator's
decision is final, and that no party may take any action, judicial or
administrative, to overturn such decision. The judgment rendered by the
Arbitrator may be entered in any court having jurisdiction thereof.
(3) Pending any decision, appeal or judgment referred to in this
provision or the settlement of any dispute arising under this Subcontract,
Seller shall proceed diligently with the performance of this Subcontract.
18. INTELLECTUAL PROPERTY RIGHTS
Buyer shall own all right, title and interest in and to all tangible and
intangible results and items arising in the course of performing or constituting
the results of the work performed under this Subcontract, including without
limitation all inventions, know-how, documentation, software and data (the
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"Technology"), and all intellectual property rights therein, including without
limitation all current and future worldwide patents and other patent rights,
copyrights, trade secrets, and all applications and registrations with respect
to and of the foregoing. The Seller hereby irrevocably transfers, conveys and
assigns to Buyer in perpetuity all right, title and interest in and to the
Technology, including without limitation all intellectual property rights with
respect thereto. Buyer shall have the exclusive right to apply for or register
patents, copyrights, and such other proprietary protections as it wishes.
Except as expressly authorized in writing by the Buyer, the Seller shall not
retain any rights to use, sell, distribute, publish, reproduce, modify, create
derivative works of, make or have made, any of the Technology. Nothing
otherwise contained in this Subcontract shall be implied to grant the Seller any
license with respect to the Technology or to the work performed hereunder or the
results thereof.
19. LIMITED RELEASE OF CONFIDENTIAL BUSINESS INFORMATION
(a) Buyer and/or NASA may find it necessary to release information submitted by
the Seller, pursuant to the provisions of this Subcontract, to individuals not
employed by NASA or Buyer. Business information that would ordinarily be
entitled to confidential treatment may be included in the information released
to such individuals. Accordingly, by signature on this Subcontract, the Seller
hereby consents to a limited release of its confidential business information
("CBI").
(b) Possible circumstances where Buyer or NASA may release the Seller's CBI
include, but are not limited to, the following:
(1) To other contractors and subcontractors, and their employees tasked
with assisting NASA in handling and processing of information and documents in
the evaluation, the award or the administration of contracts, such as providing
both pre-award and post-award audit support and specialized technical support to
NASA's technical evaluation panels;
(2) To NASA contractors and subcontractors, and their employees engaged in
information systems analysis, development, operation, and maintenance, including
performing data processing and management functions.
(c) Buyer and NASA recognizes its obligation to protect the Seller from
competitive harm that could result from the release of such information to a
competitor. Except where otherwise provided by law, Buyer/ and or NASA will
permit the limited release of CBI under subparagraphs (1) or (2) only pursuant
to non-disclosure agreements signed by the assisting contractor or
subcontractor, and their individual employees who may require access to the CBI
to perform the assisting contract).
(d) NASA's responsibilities under the Freedom of Information Act are not
affected by this clause.
(e) The Seller agrees to include this clause, including this paragraph (e), in
all subcontracts at all levels awarded pursuant to this Subcontract that require
the furnishing of confidential business information by the subcontractor.
20. INDEMNIFICATION
(a) Seller shall indemnify, defend, and save Buyer harmless from and
against any and all liability for injury to persons or property occasioned
wholly or in part by an act or omission of Seller, its lower-tier
subcontractors, agents, or employees, including any and all expense, legal or
otherwise, incurred by Buyer in the defense of any claim or suit arising out of
the work performed under this Subcontract; provided, however, that Seller shall
not be liable for injury to persons or property caused by the sole negligence of
Buyer, its agents and employees. Such damages include but are not limited to
injury or death of persons (including employees of Seller), loss of or damage to
property (including loss of use thereof), and economic loss, including lost
profit or opportunity, pollution, and environmental impairment, and natural
resource damages.
(b) Buyer shall promptly notify Seller of any claim against Buyer which is
covered by this indemnification provision and shall authorize representatives of
Seller to settle or defend any such claim or suit and to represent Buyer in, or
to take charge of, any litigation in connection therewith.
(c) Seller shall indemnify, defend, and save Buyer harmless from and
against any and all liability for any tax, including but not limited to sales,
use, or value-added tax, arising out of or relating to Seller's delivery of
goods or services to Buyer, or Seller's performance of this Subcontract. Buyer
shall promptly notify Seller of any claim against Buyer for such taxes. Seller
agrees to promptly take over and defend, at its own expense, any actions to
collect such taxes, and shall pay any claims, demands, judgments and awards,
including penalties and interest related thereto. The provisions of this
paragraph shall continue in effect upon completion or termination of this
Subcontract.
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21. INSPECTION AND ACCEPTANCE
The following FAR clauses are hereby incorporated by reference (see paragraph
26):
Clause
Number Title Date
------ ----- ----
52.246-7 Inspection Of Research And Development AUG 1996
-Fixed Price
52.246-9 Inspection of Research and Development APR 1984
(Short Form)
22. 1852.227-72 DESIGNATION OF NEW TECHNOLOGY REPRESENTATIVE AND PATENT
REPRESENTATIVE (JUL 1997)
(a) For purposes of administration of the clause of this contract entitled "New
Technology" or "Patent Rights -- Retention by the Subcontractor (Short Form)",
whichever is included, the following named representatives are hereby designated
by the Buyers Contractual Representative to administer such clause:
New Technology Representative
Xxxxxxx Space
000 0xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx XX 00000
Attn: Xxx Xxxxxx
Patent Representative
Xxxxxxx Space
000 0xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx XX 00000
Attn: Xxx Xxxxxx
(b) Reports of reportable items, and disclosure of subject inventions,
interim reports, final reports, utilization reports, and other reports required
by the clause, as well as any correspondence with respect to such matters,
should be directed to the New Technology Representative unless transmitted in
response to correspondence or request from the Patent Representative. Inquires
or requests regarding disposition of rights, election of rights, or related
matters should be directed to the Patent Representative. This clause shall be
included in any subcontract hereunder requiring a "New Technology" clause or
"Patent Rights--Retention by the Subcontractor
(Short Form)" clause, unless otherwise authorized or directed by the
Contracting Officer. The
respective responsibilities and authorities of the above-named representatives
are set forth in
1827.305-370 of the NASA FAR Supplement.
23. 1852.245-73 FINANCIAL REPORTING OF NASA PROPERTY IN THE CUSTODY OF
CONTRACTORS (OCT 2003)
(a) The Seller shall submit annually a NASA Form (NF) 1018, NASA Property in the
Custody of Subcontractors, in accordance with the provisions of 1845.505-14, the
instructions on the form, subpart 1845.71, and any supplemental instructions for
the current reporting period issued by NASA.
(b) (1) Seller use of NF 1018 is not required by this clause; however, the
Seller shall include data on property in the possession of subcontractors in the
annual NF 1018.
(2) The Seller shall mail the original signed NF 1018 directly to the
cognizant NASA Center Deputy Chief Financial Officer, Finance, unless the Seller
uses the NF 1018 Electronic Submission System (NESS) for report preparation and
submission.
(3) One copy shall be submitted Xxxxxxx Space.
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(c) (1) The annual reporting period shall be from October 1 of each year
through September 30 of the following year. The report shall be submitted in
time to be received by October 15. The information contained in these reports
is entered into the Buyer's accounting system to reflect current asset values
for financial statement purposes. Therefore, it is essential that required
reports be received no later than October 15. Some activity may be estimated
for the month of September, if necessary, to ensure the NF 1018 is received when
due. However, Seller's procedures must document the process for developing
these estimates based on planned activity such as planned purchases or NASA Form
533 (NF 533 Subcontractor Financial Management Report) cost estimates. It
should be supported and documented by historical experience or other
corroborating evidence, and be retained in accordance with FAR Subpart 4.7,
Subcontractor Records Retention. Subcontractors shall validate the
reasonableness of the estimates and associated methodology by comparing them to
the actual activity once that data is available, and adjust them accordingly.
In addition, differences between the estimated cost and actual cost must be
adjusted during the next reporting period. Subcontractors shall have formal
policies and procedures, which address the validation of NF 1018 data, including
data from subcontractors, and the identification and timely reporting of errors.
The objective of this validation is to ensure that information reported is
accurate and in compliance with the NASA FAR Supplement. If errors are
discovered on NF 1018 after submission, the contractor shall contact the
cognizant NASA Center Industrial Property Officer (IPO) within 30 days after
discovery of the error to discuss corrective action.
(2) The Buyer may, in the Buyer's and/or NASA's interest, withhold payment
until a reserve not exceeding $25,000 or 5 percent of the amount of the
contract, whichever is less, has been set aside, if the Seller fails to submit
annual NF 1018 reports in accordance with 1845.505-14 and any supplemental
instructions for the current reporting period issued by NASA. Such reserve
shall be withheld until the Buyers Contractual Representative has determined
that Buyer has received the required reports. The withholding of any amount or
the subsequent payment thereof shall not be construed as a waiver of any
Government and/or Buyer rights.
(d) A final report shall be submitted within 30 days after disposition of all
property subject to reporting when the contract performance period is complete
in accordance with (b)(1) through (3) of this clause.
24. SAFETY AND HEALTH (APR 2002)
(a) Safety is the freedom from those conditions that can cause death, injury,
occupational illness, damage to or loss of equipment or property, or damage to
the environment. NASA's safety priority is to protect: (1) the public, (2)
astronauts and pilots, (3) the NASA workforce (including contractor employees
working on NASA contracts), and (4) high-value equipment and property.
(b) The Seller shall take all reasonable safety and occupational health measures
in performing this Subcontract. The Seller shall comply with all Federal, State,
and local laws applicable to safety and occupational health and with the safety
and occupational health standards, specifications, reporting requirements, and
any other relevant requirements of this contract.
(c) The Seller shall take, or cause to be taken, any other safety, and
occupational health measures the Buyers Contractual Representative may
reasonably direct. To the extent that the Seller may be entitled to an
equitable adjustment for those measures under the terms and conditions of this
contract, the equitable adjustment shall be determined pursuant to the
procedures of the changes clause of this contract; provided, that no adjustment
shall be made under this Safety and Health clause for any change for which an
equitable adjustment is expressly provided under any other clause of the
contract.
(d) The Seller shall immediately notify and promptly report to the Buyer or a
designee any accident, incident, or exposure resulting in fatality, lost-time
occupational injury, occupational disease, contamination of property beyond any
stated acceptable limits set forth in the contract Schedule; or property loss of
$25,000 or more, or Close Call (a situation or occurrence with no injury, no
damage or only minor damage (less than $1,000) but possesses the potential to
cause any type mishap, or any injury, damage, or negative mission impact) that
may be of immediate interest to NASA and/or the Buyer, arising out of work
performed under this contract. The Seller is not required to include in any
report an expression of opinion as to the fault or negligence of any employee.
In addition, service contractors (excluding construction contracts) shall
provide quarterly reports specifying lost-time frequency rate, number of
lost-time injuries, exposure, and accident/incident dollar losses as specified
in the Subcontract Schedule.
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(e) The Seller shall investigate all work-related incidents, accidents, and
Close Calls, to the extent necessary to determine their causes and furnish the
Buyers Contractual Representative a report, in such form as the Buyers
Contractual Representative may require, of the investigative findings and
proposed or completed corrective actions.
(f) (1) The Buyers Contractual Representative may notify the Seller in
writing of any noncompliance with this clause and specify corrective actions to
be taken. When the Buyers Contractual Representative becomes aware of
noncompliance that may pose a serious or imminent danger to safety and health of
the public, astronauts and pilots, the NASA workforce (including contractor
employees working on NASA contracts), or high value mission critical equipment
or property, the Buyers Contractual Representative shall notify the Seller
orally, with written confirmation. The Seller shall promptly take and report any
necessary corrective action.
(2) If the Seller fails or refuses to institute prompt corrective action in
accordance with subparagraph (f)(1) of this clause, the Buyers Contractual
Representative may invoke the stop-work order clause in this Subcontract or any
other remedy available to the Xxxx in the event of such failure or refusal.
(g) The Seller (or subcontractor or supplier) shall insert the substance of this
clause, including this paragraph (g) and any applicable Schedule provisions and
clauses, with appropriate changes of designations of the parties, in all
solicitations and subcontracts of every tier, when one or more of the following
conditions exist:
(1) The work will be conducted completely or partly on premises owned or
controlled by the Government.
(2) The work includes construction, alteration, or repair of facilities in
excess of the simplified acquisition threshold.
(3) The work, regardless of place of performance, involves hazards that could
endanger the public, astronauts and pilots, the NASA workforce (including Seller
employees working on NASA contracts), or high value equipment or property, and
the hazards are not adequately addressed by Occupational Safety and Health
Administration (OSHA) or Department of Transportation (DOT) regulations (if
applicable).
(4) When the Seller (or subcontractor or supplier) determines that the assessed
risk and consequences of a failure to properly manage and control the hazard(s)
warrants use of the clause.
(h) The Seller (or subcontractor or supplier) may exclude the provisions of
paragraph (g) from its solicitation(s) and subcontract(s) of every tier when it
determines that the clause is not necessary because the application of the OSHA
and DOT (if applicable) regulations constitute adequate safety and occupational
health protection. When a determination is made to exclude the provisions of
paragraph (g) from a solicitation and subcontract, the Seller must notify and
provide the basis for the determination to the Contracting Officer. In
subcontracts of every tier above the micro-purchase threshold for which
paragraph (g) does not apply, the Seller (or subcontractor or supplier) shall
insert the substance of paragraphs (a), (b), (c), and (f) of this clause).
(i) Authorized Buyer representatives shall have access to and the right to
examine the sites or areas where work under this contract is being performed in
order to determine the adequacy of the Seller's safety and occupational health
measures under this clause.
(j) The Seller shall continually update the safety and health plan when
necessary. In particular, the Seller shall furnish a list of all hazardous
operations to be performed, and a list of other major or key operations required
or planned in the performance of the contract, even though not deemed hazardous
by the Seller. The Buyer and the Seller shall jointly decide which operations
are to be considered hazardous, with Buyer as the final authority. Before
hazardous operations commence, the Seller shall submit for Buyer concurrence -
(1) Written hazardous operating procedures for all hazardous operations;
and/or
(2) Qualification standards for personnel involved in hazardous operations.
25. 1852.223-75 MAJOR BREACH OF SAFETY OR SECURITY (FEB 2002)
(a) Safety is the freedom from those conditions that can cause death, injury,
occupational illness, damage to or loss of equipment or property, or damage to
the environment. Safety is essential to NASA and is a material part of this
contract. NASA's safety priority is to protect: (1) the public; (2) astronauts
and pilots; (3) the NASA workforce (including contractor employees working on
NASA contracts); and (4) high-value equipment and property. A major breach of
safety may constitute a breach of contract that entitles the Government and/or
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the Buyer to exercise any of its rights and remedies applicable to material
parts of this contract, including termination for default. A major breach of
safety must be related directly to the work on the contract. A major breach of
safety is an act or omission of the Seller that consists of an accident,
incident, or exposure resulting in a fatality or mission failure; or in damage
to equipment or property equal to or greater than $1 million; or in any
"willful" or "repeat" violation cited by the Occupational Safety and Health
Administration (OSHA) or by a state agency operating under an OSHA approved
plan.
(b) Security is the condition of safeguarding against espionage, sabotage, crime
(including computer crime), or attack. A major breach of security may
constitute a breach of contract that entitles the Government and/or the Buyer to
exercise any of its rights and remedies applicable to material parts of this
contract, including termination for default. A major breach of security may
occur on or off Government installations, but must be related directly to the
work on the contract. A major breach of security is an act or omission by the
Seller that results in compromise of classified information, illegal technology
transfer, workplace violence resulting in criminal conviction, sabotage,
compromise or denial of information technology services, equipment or property
damage from vandalism greater than $250,000, or theft greater than $250,000.
(c) In the event of a major breach of safety or security, the Seller shall
report the breach to the Buyers Contractual Representative. If directed by the
Buyers Contractual Representative, the Seller shall conduct its own
investigation and report the results to the Buyers Contractual Representative.
The Seller shall cooperate with the Government and/or Buyers investigation, if
conducted.
26. 1852.225-70 EXPORT LICENSES (FEB 2000)
(a) The Seller shall comply with all U.S. export control laws and regulations,
including the International Traffic in Arms Regulations (ITAR), 22 CFR Parts 120
through 130, and the Export Administration Regulations (EAR), 15 CFR Parts 730
through 799, in the performance of this contract. In the absence of available
license exemptions/exceptions, the Seller shall be responsible for obtaining the
appropriate licenses or other approvals, if required, for exports of hardware,
technical data, and software, or for the provision of technical assistance.
(b) The Seller shall be responsible for obtaining export licenses, if required,
before utilizing foreign persons in the performance of this contract, including
instances where the work is to be performed on-site at MSFC, where the foreign
person will have access to export-controlled technical data or software.
(c) The Seller shall be responsible for all regulatory record keeping
requirements associated with the use of licenses and license
exemptions/exceptions.
(d) The Seller shall be responsible for ensuring that the provisions of this
clause apply to its subcontractors.
27. EDUCATION AND PUBLIC OUTREACH
At least one (1) percent of the total contract value of this effort shall be
invested in education and public outreach activities as further delineated in
the statement of work.
28. INCORPORATION OF FAR AND NASA FAR SUPPLEMENT CLAUSES
(a) The following FAR and NASA FAR Supplement clauses are hereby incorporated by
reference. In all such clauses, unless the context of the clause requires
otherwise, the term "Subcontractor" shall mean Seller, the term "Contract" shall
mean this Subcontract, and the terms "Government," "Contracting Officer" and
equivalent phrases shall mean Buyer and Buyers Contractual Representative,
respectively. It is intended that the referenced clauses shall apply to Seller
in such manner as is necessary to reflect the position of Seller as a
subcontractor to Buyer, to insure Seller's obligations to Buyer and to the
United States Government, and to enable Buyer to meet its obligations under its
Prime Contract or Subcontract.
(b) The following definitions apply unless otherwise specifically stated:
"Buyer" - the legal entity issuing this Subcontract.
"Subcontract Administrator" - Buyers Contractual Representative
"Seller" - the legal entity which contracts with the Buyer.
"This Subcontract" - this contractual instrument, including changes.
"Prime Contract" - the Government contract under which this
Subcontract is issued.
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"FAR" - the Federal Acquisition Regulation.
(c) Federal Acquisition Regulation (48 CFR Chapter 1) Clauses Incorporated
herein:
This Subcontract incorporates one or more clauses by reference, with the same
force and effect as if they were given in full text. Upon request, Buyer will
make their full text available. Also, the full text of a clause may be accessed
electronically at this/these address(es):
This contract incorporates one or more clauses by reference, with the same force
and effect as if they were given in full text. Upon request, the Contracting
Officer will make their full text available. Also, the full text of a clause
may be accessed electronically at this/these address(es):
FAR Clauses: xxxx://xxx.xxxxx.xxx/xxx/
NASA FAR Supplement clauses:
xxxx://xxx.xx.xxxx.xxx/xxxxxx/xxxxxxxxxxx/xxxx/xxxxxx.xxx
MSFC Clauses: xxxx://xx.xxxx.xxxx.xxx/xxxx/xxxx_xxx.xxxx
PART A: FEDERAL ACQUISITION REGULATION (48 CFR CHAPTER 1)
Clause
Number. . . . . . . . Title Date
--------------------- ------------------------------------------------------ --------
52.202-1. . . . . . . Definitions JUL 2004
52.203-3. . . . . . . Gratuities APR 1984
52.203-5. . . . . . . Covenant Against Contingent Fees APR 1984
52.203-6. . . . . . . Restrictions on Subcontractor Sales to the JUL 1995
Government
52.203-7. . . . . . . Anti-Kickback Procedures JUL 1995
52.203-8. . . . . . . Cancellation, Rescission, and Recovery of JAN 1997
Funds for Illegal or Improper Activity
52.203-10 . . . . . . Price or Fee Adjustment for Illegal or JAN 1997
Improper Activity
52.203-12 . . . . . . Limitation on Payments to Influence Certain JUN 2003
Federal Transactions
52.204-1 Approval of Contract DEC 1989
52.204-4. . . . . . . Printed or Copied Double-Sided on Recycled AUG 2000
Paper
52.204-7. . . . . . . Central Contractor Registration OCT 2003
52.209-6. . . . . . . Protecting the Government's Interest When JAN 2005
Subcontracting with Contractors Debarred,
Suspended, or Proposed for Debarment
52.211-15 . . . . . . Defense Priority and Allocation Requirements SEP 1990
52.215-2. . . . . . . Audit and Records-Negotiation JUN 1999
52.215-8. . . . . . . Order of Precedence-Uniform Contract Format OCT 1997
52.215-11 . . . . . . Price Reduction for Defective Cost or Pricing Data- OCT 1997
Modifications
52.215-13 . . . . . . Subcontractor Cost or Pricing Data-Modifications OCT 1997
52.215-14 . . . . . . Integrity of Unit Prices OCT 1997
52.215-15 . . . . . . Pension Adjustments and Asset Reversions OCT 2004
52.215-17 . . . . . . Waiver of Facilities Capital Cost of Money OCT 1997
52.215-18 . . . . . . Reversion or Adjustment of Plans for OCT 1997
Postretirement Benefits (PRB) Other Than
Pensions
52.215-21 . . . . . . Requirements for Cost or Pricing Data or OCT 1997
Information Other Than Cost or Pricing
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Data-Modifications
52.215-21 . . . . . . Requirements for Cost or Pricing Data or OCT 1997
Information Other Than Cost or Pricing
Data-Modifications (Alternate II)
52.222-3. . . . . . . Convict Labor JUN 2003
52.222-21 Prohibition of Segregated Facilities FEB 1999
52.222-26 . . . . . . Equal Opportunity APR 2002
52.222-35 . . . . . . Equal Opportunity for Special Disabled Veterans, DEC 2001
Veterans of the Vietnam Era, and Other Eligible
Veterans
52.222-36 . . . . . . Affirmative Action for Workers with Disabilities JUN 1998
52.222-37 . . . . . . Employment Reports on Special Disabled DEC 2001
Veterans, Veterans of the Vietnam Era, and
Other Eligible Veterans
52.223-3. . . . . . . Hazardous Material Identification and JUL 1995
Material Safety Data (Alternate I)
52.223-6. . . . . . . Drug-Free Workplace MAY 2001
52.223-14 . . . . . . Toxic Chemical Release Reporting AUG 2003
52.225-1. . . . . . . Buy American Act- Supplies JUN 2003
52.225-13 . . . . . . Restrictions on Certain Foreign Purchases DEC 2003
52.227-1. . . . . . . Authorization and Consent (Alternate I) JUL 1995
52.227-14 . . . . . . Rights In Data-General JUN 1987
52.227-16 Additional Data Requirements
52.227-23 . . . . . . Rights To Proposal Data (Technical) JUN 1987
52.228-5. . . . . . . Insurance-Work on a Government Installation JAN 1997
52.229-3. . . . . . . Federal, State, and Local Taxes APR 2003
52.232-2. . . . . . . Payments under Fixed-Price Research APR 1984
and Development Contracts
52.232-9. . . . . . . Limitation on Withholding of Payments APR 1984
52.232-16 . . . . . . Progress Payments (Alternate I) MAR 2000
52.232-17 . . . . . . Interest JUN 1996
52.232-23 . . . . . . Assignment Of Claims JAN 1986
52.232-25 . . . . . . Prompt Payment OCT 2003
52.232-34 . . . . . . Payment By Electronic Funds Transfer- MAY 1999
Other Than Central Contractor Registration
52.233-1. . . . . . . Disputes JUL 2002
52.233-3. . . . . . . Protest After Award AUG 1996
52.233-4. . . . . . . Applicable Law for Breach of Contract Claim OCT 2004
52.242-13 . . . . . . Bankruptcy JUL 1995
52.243-1. . . . . . . Changes Fixed-Price AUG 1987
52.243-1. . . . . . . Changes Fixed-Price (Alternate V) APR 1984
52.243-7. . . . . . . Notification of Changes APR 1984
52.244-2. . . . . . . Subcontracts AUG 1998
52.244-5. . . . . . . Competition in Subcontracting DEC 1996
52.244-6. . . . . . . Subcontracts for Commercial Items DEC 2004
52.245-2. . . . . . . Government Property (Fixed-Price Contracts) MAY 2004
52.246-23 . . . . . . Limitation of Liability FEB 1997
52.249-2. . . . . . . Termination for Convenience of the MAY 2004
Government (Fixed-Price)
52.249-9. . . . . . . Default (Fixed-Price Research and Development) APR 1984
52.253-1. . . . . . . Computer Generated Forms JAN 1991
PART B: NASA FAR SUPPLEMENT (48 CFR CHAPTER 18) CLAUSES
------------------------------------------------------
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Clause
Number. . . . . . . . Title Date
--------------------- ------------------------------------------------------ --------
1852.203-70 Display of Inspector General Hotline Posters JUN 2001
1852.219-77 NASA Mentor-Prot g Program MAY 1999
1852.223-74 Drug and Alcohol-Free Workforce MAR 1996
1852.225-70 Export Licenses FEB 2000
1852.227-14 Rights in Data--General **Modifies FAR Clause** JUN 1987
1852.235-70 Center for Aerospace Information FEB 2003
1852.242-75 Earned Value Management Systems MAR 1999
1852.242-76 Modified Cost Performance Report MAR 1999
29. MSFC 52.252-90 REPRESENTATIONS, CERTIFICATIONS, AND OTHER STATEMENTS OF
OFFERORS OR QUOTERS INCORPORATED BY REFERENCE (FEB 2001)
The Representations, Certifications, and Other Statements of Offerors or Quoters
(Section K of the solicitation document) as completed by the Seller are hereby
incorporated in their entirety by reference, with the same force and effect as
if they were given in full text.
30. 1852.204-76 SECURITY REQUIREMENTS FOR UNCLASSIFIED INFORMATION
TECHNOLOGY RESOURCES (NOV 2004)
(a) The Seller shall be responsible for Information Technology security for all
systems connected to a NASA or Buyer's network or operated by Seller for NASA or
Buyer, regardless of location. This clause is applicable to all or any part of
the Subcontract that includes information technology resources or services in
which the Buyer must have physical or electronic access to NASA's sensitive
information contained in unclassified systems that directly support the mission
of NASA. This includes information technology, hardware, software, and the
management, operation, maintenance, programming, and system administration of
computer systems, networks, and telecommunications systems. Examples of tasks
that require security provisions include:
(1) Computer control of spacecraft, satellites, or aircraft or their
payloads;
(2) Acquisition, transmission or analysis of data owned by NASA with
significant replacement cost should the contractor's copy be corrupted; and
(3) Access to NASA networks or computers at a level beyond that granted the
general public, e.g. bypassing a firewall.
(b) The Buyer shall provide, implement, and maintain an IT Security Plan. This
plan shall describe the processes and procedures that will be followed to ensure
appropriate security of IT resources that are developed, processed, or used
under this Subcontract. The plan shall describe those parts of the Subcontract
to which this clause applies. The Buyer's IT Security Plan shall be compliant
with Federal laws that include, but are not limited to, the Computer Security
Act of 1987 (40 U.S.C. 1441 et seq.) and the Government Information Security
Reform Act of 2000. The plan shall meet IT security requirements in accordance
with Federal and NASA policies and procedures that include, but are not limited
to:
(1) OMB Circular A-130, Management of Federal Information Resources,
Appendix III, Security of Federal Automated Information Resources;
(2) NASA Procedures and Guidelines (NPR) 2810.1, Security of Information
Technology; and
(3) Chapter 3 of NPR 1620.1, NASA Security Procedures and Guidelines.
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(d) (1) Contractor personnel requiring privileged access or limited
privileged access to systems operated by the Contractor for NASA or
interconnected to a NASA network shall be screened at an appropriate level in
accordance with XXX 0000.0, Section 4.5; XXX 0000.0, Chapter 3; and paragraph
(d)(2) of this clause. Those Contractor personnel with non-privileged access do
not require personnel screening. NASA shall provide screening using standard
personnel screening National Agency Check (NAC) forms listed in paragraph (d)(3)
of this clause, unless contractor screening in accordance with paragraph (d)(4)
is approved. The Contractor shall submit the required forms to the NASA Center
Chief of Security (CCS) within fourteen (14) days after contract award or
assignment of an individual to a position requiring screening. The forms may be
obtained from the CCS. At the option of the government, interim access may be
granted pending completion of the NAC.
(2) Guidance for selecting the appropriate level of screening is based on
the risk of adverse impact to NASA missions. NASA defines three levels of risk
for which screening is required (IT-1 has the highest level of risk):
(i) IT-1 -- Individuals having privileged access or limited privileged
access to systems whose misuse can cause very serious adverse impact
to NASA missions. These systems include, for example, those that can
transmit commands directly modifying the behavior of spacecraft,
satellites or aircraft.
(ii) IT-2 -- Individuals having privileged access or limited
privileged access to systems whose misuse can cause serious adverse
impact to NASA missions. These systems include, for example, those
that can transmit commands directly modifying the behavior of payloads
on spacecraft, satellites or aircraft; and those that contain the
primary copy of "level 1" data whose cost to replace exceeds one
million dollars.
(iii) IT-3 -- Individuals having privileged access or limited
privileged access to systems whose misuse can cause significant
adverse impact to NASA missions. These systems include, for example,
those that interconnect with a NASA network in a way that exceeds
access by the general public, such as bypassing firewalls; and systems
operated by the contractor for NASA whose function or data has
substantial cost to replace, even if these systems are not
interconnected with a NASA network.
(3) Screening for individuals shall employ forms appropriate for the level
of risk as follows:
(i) IT-1: Fingerprint Card (FC) 258 and Standard Form (SF) 85P,
Questionnaire for Public Trust Positions;
(ii) IT-2: FC 258 and SF 85, Questionnaire for Non-Sensitive
Positions; and
(iii) IT-3: NASA Form 531, Name Check, and FC 258.
(4) The Contracting Officer may allow the Contractor to conduct its own
screening of individuals requiring privileged access or limited privileged
access provided the Contractor can demonstrate that the procedures used by the
Contractor are equivalent to NASA's personnel screening procedures. As used
here, equivalent includes a check for criminal history, as would be conducted by
NASA, and completion of a questionnaire covering the same information as would
be required by NASA.
(5) Screening of contractor personnel may be waived by the Contracting
Officer for those individuals who have proof of -
(i) Current or recent national security clearances (within last three
years);
(ii) Screening conducted by NASA within last three years; or
(iii) Screening conducted by the Contractor, within last three years,
that is equivalent to the NASA personnel screening procedures as
approved by the Contracting Officer under paragraph (d)(4) of this
clause.
(e) The Contractor shall ensure that its employees, in performance of the
contract, receive annual IT security training in NASA IT Security policies,
procedures, computer ethics, and best practices in accordance with XXX 0000.0,
Section 4.3 requirements. The contractor may use web-based training available
from NASA to meet this requirement.
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(f) The Contractor shall afford NASA, including the Office of Inspector General,
access to the Contractor's and subcontractors' facilities, installations,
operations, documentation, databases and personnel used in performance of the
contract. Access shall be provided to the extent required to carry out a program
of IT inspection, investigation and audit to safeguard against threats and
hazards to the integrity, availability and confidentiality of NASA data or to
the function of computer systems operated on behalf of NASA, and to preserve
evidence of computer crime.
(g) The Contractor shall incorporate the substance of this clause in all
subcontracts that meet the conditions in paragraph (a) of this clause.
31. 1852.228-75 MINIMUM INSURANCE COVERAGE (OCT 1988)
The Seller shall obtain and maintain insurance coverage as follows for the
performance of this contract:
(a) Worker's compensation and employer's liability insurance as required by
applicable Federal and state workers' compensation and occupational disease
statutes. If occupational diseases are not compensable under those statutes,
they shall be covered under the employer's liability section of the insurance
policy, except when contract operations are so commingled with the Seller's
commercial operations that it would not be practical. The employer's liability
coverage shall be at least $100,000, except in States with exclusive or
monopolistic funds that do not permit workers' compensation to be written by
private carriers.
(b) Comprehensive general (bodily injury) liability insurance of at least
$500,000 per occurrence.
(c) Motor vehicle liability insurance written on the comprehensive form of
policy which provides for bodily injury and property damage liability covering
the operation of all motor vehicles used in connection with performing the
contract. Policies covering motor vehicles operated in the United States shall
provide coverage of at least $200,000 per person and $500,000 per occurrence for
bodily injury liability and $20,000 per occurrence for property damage. The
amount of liability coverage on other policies shall be commensurate with any
legal requirements of the locality and sufficient to meet normal and customary
claims.
(d) Comprehensive general and motor vehicle liability policies shall contain a
provision worded as follows:
"The insurance company waives any right of subrogation against the United States
of America which may arise by reason of any payment under the policy."
(e) When aircraft are used in connection with performing the contract, aircraft
public and passenger liability insurance of at least $200,000 per person and
$500,000 per occurrence for bodily injury, other than passenger liability, and
$200,000 per occurrence for property damage. Coverage for passenger liability
bodily injury shall be at least $200,000 multiplied by the number of seats or
passengers, whichever is greater.
32. GENERAL RELATIONSHIP
Buyer is not an employee of Seller for any purpose whatsoever. Seller agrees
that in all matters relating to this Subcontract it shall be acting as an
independent contractor and shall assume and pay all liabilities and perform all
obligations imposed with respect to the performance of this Subcontract. Seller
shall have no right, power or authority to create any obligation, expressed or
implied, on behalf of Buyer and/or the Government and shall have no authority to
represent Buyer as an agent.
33. NON-WAIVER OF RIGHTS
The failure of Buyer to insist upon strict performance of any of the terms and
conditions in the Subcontract, or to exercise any rights or remedies, shall not
be construed as a waiver of its rights to assert any of the same or to rely on
any such terms or conditions at any time thereafter. The invalidity in whole or
in part of any term or condition of this Subcontract shall not affect the
validity of other parts hereof.
34. APPLICABLE STATE LAW AND COMPLIANCE
This Subcontract shall be governed by and construed in accordance with the laws
of the State of Washington. Seller agrees to comply with the applicable
provisions of any federal, state or local law or ordinance and all rules and
regulations issued thereunder.
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35. ENTIRE AGREEMENT
The parties hereby agree that this Subcontract, including all documents attached
hereto and/or incorporated herein by reference, shall constitute the entire
agreement and understanding between the parties hereto and shall supersede and
replace any and all prior or contemporaneous representations, agreements or
understandings of any kind, whether written or oral, relating to the subject
matter hereof.
IN WITNESS WHEREOF, the duly authorized representatives of Buyer and the Seller
have executed this Subcontract on the Dates shown.
SELLER: BUYER:
SpaceDev, Inc. Xxxxxxx Space, Inc.
By: /s/Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxx
---------------------------- ---------------------
Xxxxxxx X. Xxxxxxx Xxxxxx Xxx
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LIST OF ATTACHMENTS
ATTACHMENT NO. DESCRIPTION PAGES
--------------- ----------- -----
A-1 Statement of Work
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