USEC PROPRIETARY INFORMATION CONTRACT NO. 727613 CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE REDACTED PORTIONS. THE CONFIDENTIAL REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH...
EXHIBIT 10.3
USEC PROPRIETARY INFORMATION
CONTRACT NO. 727613
CONTRACT NO. 727613
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE REDACTED PORTIONS. THE CONFIDENTIAL REDACTED
PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH REDACTIONS.
PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH REDACTIONS.
Centrifuge Commercial Plant Casing Manufacturing
| CONTRACT NUMBER: | 727613 | |
| CONTRACTOR: | Major Tool and Machine, Inc | |
| DATE: | August 30, 2007 |
| USEC Inc. | Major Tool and Machine, Inc. | |
| By: /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: Director, Contracts and Materials |
By: /s/ J. Xxxxxxx Xxxxxxxx Name: J. Xxxxxxx Xxxxxxxx Title: President and CEO |
USEC PROPRIETARY INFORMATION
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CONTRACT NO. 727613
CONTRACT NO. 727613
CONTRACT
BETWEEN
AND
Major Tool and Machine, Inc
In consideration of the mutual promises hereinafter set forth, USEC Inc., a Delaware Corporation,
(“Corporation”), and Major Tool and Machine, Inc., an Indiana corporation
(“Contractor”) (the Corporation and Contractor being referred to herein individually as a
“Party” and together, as the “Parties”) hereby agree to the following contract
(which, including the General Terms and Conditions attached hereto as Exhibit A (the
“General Terms and Conditions”), and including the Attachments attached hereto, is hereinafter
referred to as this “Contract”).
| This is a contract for purchase of assemblies consisting of casings with internal Heat Xxxxxxx as specified in Attachment I hereto (“Casings”) to be delivered to the Corporation’s American Centrifuge Plant in Piketon, Ohio (ACP). This contract is for delivery by Contractor and purchase by Corporation of 11,520 Casings to support start up of the 3.8 million SWU ACP. The Contractor will manufacture and deliver Casings in accordance with this Contract and shall perform the following for effective performance under this Contract: |
a. Maintain a quality program consistent with and meeting applicable requirements of
the Corporation’s Quality Assurance Program and NRC license to build and operate the
Piketon, OH facility and comply with all regulatory requirements applicable to the
performance of Contractor’s obligations under this Contract and be responsive to all
regulatory questions and directions throughout the life of this Contract.
b. Ensure a safety culture is in place that assures safety takes priority over cost,
schedule, manufacturing or any other considerations. The Contractor shall comply
with all applicable state and federal requirements related to performance of
Contractor’s obligations under this Contract.
c. Maintain an effective program that maintains compliance with all NRC and DOE
requirements and regulations related to performance of Contractor’s obligations
under this Contract, including, but not limited to all applicable export control
regulations.
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d. Coordinate with other contractors as necessary to assure centrifuge machines are
assembled and delivered in accordance with the schedule contemplated by this
Contract.
e. Establish or maintain a configuration control program for the design,
specifications, manufacturing processes, quality requirements and all other
attributes necessary to deliver Casings in accordance with the terms and conditions
of this Contract.
f. Maintain a capability to process all reasonable proposed or directed changes of
Corporation (at the expense of Corporation) with minimum impact on technical,
schedule, and cost elements of this Contract.
g. Maintain an effective value engineering program directed at reducing costs
through recommended design changes.
h. Develop a transportation plan using shipping trailers, with a design that is
mutually agreed upon by Corporation and Contractor, for timely delivery of all
Casings Piketon, OH; provided that if mutual agreement can not be achieved,
Corporation’s design decision shall be final, subject to the other provisions of
this Contract.
This Contract shall be effective when fully executed by both parties and shall remain in
effect through December 31, 2012. Effective upon full execution of this Contract, the
Letter Contract awarded July 18, 2007, as extended, shall be terminated and superseded in
all respects by this Contract. During the term of this Contract (prior to December 31,
2012), Corporation will purchase from Contractor (and pay for in accordance with the terms
hereof) 11,520 Casings.
| III. | Non-Recurring Costs |
Corporation will provide the firm, non-refundable fixed amount of $***** for start-up of the
Casings program contemplated hereby (the “Start-Up Fee”), in increments per the
Non-Recurring Milestone Schedule, Attachment II, to Contractor over the next year to
support Contractor’s outlays necessary to acquire equipment and other items and services to
be used for manufacturing Casings under this Contract. As an inducement to Corporation to
enter into this Contract and to secure performance of Contractor’s production obligations
under this Contract, Contractor agrees that Corporation will have a lien on and security
interest in the equipment described in Attachment II purchased by Contractor for the Casings
production program out of the Start-Up Fee as set forth in that certain Security Agreement
to be mutually agreed upon by the Parties and executed and delivered by the Parties within
ten (10) days of the date hereof.
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Contractor shall remain responsible for the payment of all other costs associated with the
manufacture and delivery of the Casings under this Contract except as explicitly stated
elsewhere in this Contract.
| IV. | Pricing |
The initial unit price for Casings delivered prior to the date on which Contractor’s new
automated facility is fully operational or prior to *****, whichever is earlier, shall be
$***** plus material and fuel escalation, to the extent applicable from time to
time.
The unit price for Casings delivered after the date on which Contractor’s new automated
facility is fully operational or after ***** (which ever occurs first), shall be the Base
Price for the applicable year in which the delivery is completed, as specified in clause (C)
below, plus material and fuel escalation, to the extent applicable from time to
time.
The Base Price of Casings through ***** shall be $*****.
Casings delivered after the following dates (and prior to the next following date, if any)
will have the following Base Price:
*****
The total cost in the proposal submitted by Contractor for metal is $***** per Casing. This
amount will be escalated/deescalated based on American Metals Market (xxx.xxx) index for
steel base pricing, specifically listed under Steel Base Prices, Plate-Carbon Grade Plate,
National Xxxxx, cut to length, using the average of the past three months for the next three
months usage. The Base Index shall be $*****. On the first working day of each quarter,
Contractor will calculate the cost of metal for the next three months deliveries the price
of which will be adjusted accordingly. *****.
In the event Contractor completes its new Casing production facility (demonstrated by the
manufacture of at least one acceptable Casing per the requirements in the Specifications)
prior to *****, Contractor shall be paid an incentive fee of $*****.
| VI. | Fuel Escalation |
There will be a fuel price adjustment billed/credited each quarter as a separate line item
for Casings shipped during the quarter. The price adjustment will be based on the average
price of diesel fuel during the last quarter. The upward or downward unit price adjustment
will be based on *****. This index is updated on a weekly basis. The calculation and
pricing is in U.S. gallons and will be:
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*****. A negative number implies a credit and a positive number implies an additional
charge.
| VII. | Buffer Quantity |
Contractor shall begin providing Casings for buffer storage beginning on, or shortly after,
the date the new automated manufacturing facility becomes fully operational. Contractor
shall manufacture, while maintaining the required delivery schedule per Attachment
III (the “Schedule”), twenty (20) additional Casings per month until the
Corporation has 200 Casings for a buffer in storage at its plant in Piketon, Ohio. Such
buffer Casings shall be packaged to meet all requirements of Specification ECS-1150-0002,
Rev.1; Section 4.9 and shall be purchased and paid for by Corporation in accordance with the
terms and conditions of this Contract.
| VIII. | Delivery Penalty |
Contractor understands that time is of the essence and delivery of Casings in accordance
with the Schedule is of critical importance to the ACP. If at any time after the buffer
storage of 200 Casings is established by Contractor in accordance with the terms of this
Contract, Contractor fails to deliver or delivers non-conforming Casings (in any such case
other than due to actions or inactions of Corporation or due to a Force Majeure), and at
such time the entire number of available buffer Casings have been used by Corporation as a
substitute for such failed or non-conforming deliveries, then the unit price for each Casing
delivered thereafter will be reduced by $***** until Contractor has replenished
Corporation’s buffer storage of 200 Casings with timely delivery of Casings in accordance
with the Schedule for daily deliveries.
In the event Contractor fails to deliver or delivers non-conforming Casings (in any such
case other than due to actions or inactions of Corporation or due to a Force Majeure) that
results in the Corporation using Casings stored in the long term storage buffer, Contractor
shall ship Casings to replenish the quantity of long term storage units used. The buffer
storage shall be fully replenished as soon as is reasonably practicable. The replenishment
quantities are over and above the regularly scheduled quantities. These Casings shall be
packaged to meet all requirements of Specification ECS-1150-0002 Rev.1; Section 4.9 and
shall be purchased and paid for by Corporation in accordance with the terms and conditions
of this Contract.
Nothing in this section limits Corporation’s rights of termination under Paragraph 21 titled
Termination and Suspension of the General Terms and Conditions if otherwise applicable in
accordance with their terms.
| IX. | Nuclear Regulatory Commission (NRC) U.S. Department of Energy (DOE) and other Regulatory Support |
Contractor shall provide support for any NRC, DOE or other regulatory authority inspections,
audits, request for information or other regulatory requirements related to Work performed
under this Contract. Contractor shall provide up to 20 hours of non-production support
labor per month for inspections or audits that are performed at Contractor’s facility at no
additional cost to the Corporation. If requested by
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Corporation, Contractor will supply additional non-production support and Corporation will
reimburse Contractor for the additional non-production support labor that is requested
beyond 20 hours per month at the rate of $***** payable in accordance with the terms and
conditions of this Contract.
| X. | Delivery |
Contractor will perform all transportation related to the Casing manufacturing. Contractor
will deliver finished casings on a daily basis per the Schedule. Trucks shall be scheduled
for departure/arrival throughout the day as mutually agreed by the Parties. Empty trailers
will be returned to Contractor to be re-loaded for the next day’s shipments. All
transportation costs are included in the Casing unit price, subject to the fuel escalation
provided for herein; provided that Corporation shall be fully responsible for the direct
payment of or reimbursement of Contractor Ohio sales and use taxes arising out of the sale
of the Casings to Corporation. Portable casing trolleys will be returned to Contractor from
Piketon on a periodic basis on a returning truck.
Delivery shall be FOB Destination, Freight included in the agreed price.
The Corporation will provide to Contractor a design for trailers to transport Casings to the
ACP. The Contractor will review the design and provide comments to the Corporation within
thirty (30) days of its receipt of the design. Contractor shall purchase the trailers
after it receives a Task Order authorizing the purchase. Corporation will promptly
reimburse Contractor for the cost incurred by Contractor for the trailers with a reasonable
markup mutually agreed upon by the Parties to reflect the time spent by Contractor in
assisting in design and coordinating purchase of the trailers. Routine maintenance of
non-special design aspects of these trailers (e.g. tires, brakes, required inspections,
etc.) shall be the responsibility of Contractor but Corporation shall reimburse
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Contractor for its costs with a reasonable xxxx-up on such costs. Maintenance of special
design features of these trailers (e.g. hydraulic lifts) shall be the responsibility of
Contractor with reimbursement by Corporation of costs, with a reasonable xxxx-up on such
costs. Should such maintenance of special design features be necessary, Contractor shall
inform Corporation and shall perform such maintenance upon receipt of a Task Order
authorizing it. The Parties shall in good faith consider and negotiate alternative
provisions with respect to the trailers that contemplate that Contractor will be fully
responsible for the trailers in exchange for appropriate compensation paid by Corporation to
Contractor; provided that (a) the foregoing provisions shall control unless and until any
such provisions are mutually agreed upon by the Parties by way of an amendment to this
Contract and (b) until otherwise mutually agreed upon by the Parties by way of an amendment
to this Contract, the trailers will be owned by Corporation and Corporation shall be
responsible for all taxes assessed with respect to the trailers and for all fees, license
plates, licenses, approvals and authorizations necessary to use the trailers as contemplated
by this Contract.
Corporation shall furnish the following equipment to the Contractor (and Corporation shall
retain full ownership of, shall insure, and shall pay all property taxes assessed on such
equipment):
*****. One machine is to be used as a primary production machine with the remaining
unit to be held in reserve as a back-up in case of failure of the primary machine.
Contractor shall be responsible for routine maintenance on both units prior to, during and
post operation. As authorized by a Task Order signed by the Buyer, Contractor shall perform
any non-routine repairs, software programming or upgrades, and the Corporation shall
reimburse Contractor for its costs with a reasonable xxxx-up on such costs. All maintenance
or repair and any software programming shall be done by a qualified, trained technician.
| XIV. | Warranty |
The warranties in Paragraph 9 of the General Terms and Conditions are hereby amended and
shall be for a period of the lesser of
(a) ***** from the time of shipment to Corporation or
(b) ***** of service life
(b) ***** of service life
A design change or modification initiated by Corporation resulting in a reduction in the
cost of manufacturing of Casings shall be applied ***** toward reducing the cost of any
Casing actually produced with such change or modification. A design change or modification
initiated by Contractor and accepted by Corporation (which acceptance shall not be
unreasonably withheld or delayed) resulting in a reduction in the cost of manufacturing of
Casings or assembly activities of Corporation shall be *****. In the case of such a change
on modification initiated by Contractor *****.
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Contractor will maintain the Casing manufacturing facility and equipment in a stand by
condition at no cost to Corporation, able to resume manufacturing within a reasonable period
of time, for a period of six months after shipment of the last Casing under this Contract;
provided, however, this obligation shall not exist after any termination of this Contract
due to a breach by Corporation or a termination or suspension under Paragraph 21 (a)(i) of
the General Terms and Conditions.
Contractor grants Corporation an option exercisable after December 31, 2009 and prior to
September 30, 2011 to extend this Contract for the purchase of additional Casings past the
scheduled delivery of the 11,520th unit for the first 3.8 Million SWU plant. The Parties
agree that the “Base Price” for such Casings shall be mutually agreed upon by the Parties in
December of 2009 based upon all relevant facts, extensive experience and a completed
learning curve, including a fair profit for Contractor. If the Parties are unable to
mutually agree upon a “Base Price” in December of 2009, then the option hereunder shall
expire on December 31, 2009 and shall be of no further force and effect. If the option is
exercised, the Parties will enter into good faith negotiations within a month to determine
appropriate labor escalation to be applied to the base price and the schedule for delivery.
The material escalation method in Article IV D and the Fuel Escalation in
Article VI hereof shall remain in effect for additional Casings purchased over and
above the 11,520 to be manufactured and sold under this Contract as of the effective date of
this Contract.
In the event Corporation chooses to not order more Casings after the purchase by Corporation
of 11,520 Casings hereunder prior to December 31, 2012, then for a period of six months
after the expiration of this Contract on December 31, 2012, Corporation shall have the
option to purchase any or all of the manufacturing equipment and tooling dedicated to
manufacture of the Casings. The price for such equipment and tooling shall be ***** of the
original purchase price for the equipment or tooling to be purchased, plus the actual costs
to remove (and repair damage caused by said removal) and transport the equipment without
markup or fee. This purchase option shall automatically expire if (a) the Corporation shall
exercise its extension option under Article XVII, (b) this Contract shall terminate
due to a default by Corporation or (c) a termination or suspension is invoked under
Paragraph 21 (a)(i) of the General Terms and Conditions.
In the event Contractor ceases production of Casings for more than thirty (30) days before
delivery of all contracted quantities, other than as a result of a default by Corporation
(or other action or inaction of Corporation), a termination or suspension under Paragraph
21(a)(i) of the General Terms and Conditions or due to a Force Majeure, Contractor will
provide any reasonable support requested by Corporation to permit continued production and
to mitigate any damages to the Corporation. These efforts may include, but are not limited
to:
| • | Assigning any contracts to other suppliers. |
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| • Transferring title to and shipping production equipment dedicated to providing Casings (and in which Corporation has a security interest under the Security Agreement) to another supplier. |
| • Allowing Corporation or its replacement contractor to operate the Casing production facility with necessary services provided on an actual cost reimbursement basis without markup or fee. |
| XX. | Invoicing |
Invoices are to be submitted weekly by facsimile or other agreed electronic transmission
media to:
Attn: Accounts Payable
*****
*****
Payment shall be due ***** days after receipt of invoice and shall be made by USEC weekly by
transfer of electronic funds to Contractor to an account designated by Contractor or in the
absence of such designation by check to:
Major Tool and Machine, Inc.
XX Xxx 00000
Xxxxxxxxxxxx, XX 00000
Attn: Chief Financial Officer
XX Xxx 00000
Xxxxxxxxxxxx, XX 00000
Attn: Chief Financial Officer
This Contract constitutes the entire agreement between the Contractor and the Corporation,
subject to and including the Attachments referenced herein and the General Terms and
Conditions.
| XXII. | Employee Protection |
a. Section 211 of the Energy Reorganization Act of 1974, as amended (the “ERA”), or 10 CFR
Section 70.7 of the NRC regulations (applicable to item/services provided in support
Corporation Inc’s centrifuge lead cascade or production facility) or 10 CFR Part 708 of the
DOE regulations (applicable to item/services provided in support of Corporation’s centrifuge
demonstration project), implementing Section 211, as applicable applies to the performance
of Work under this Contract. Contractor acknowledges its obligation to comply with the
requirements of Section 211 of the Energy Reorganization Act of 1974, as amended (the
“ERA”), 10 CFR Section 70.7 of the NRC regulations or 10 CFR Part 708 of the DOE regulations
implementing Section 211.
b. In the event that an employee of Contractor, or an employee of any subcontractor, files a
complaint with the United States Department of Labor (the “DOL”) alleging that Contractor,
or any of its subcontractors, violated the requirements of Section 211 with
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respect to such employee while he or she was performing Services in connection with this
Contract, Contractor shall promptly notify the Buyer of the filing of such complaint, and
shall keep the Buyer apprised of the status of the complaint itself and all material
developments in any DOL or judicial proceedings related to the complaint.
c. In the event that Contractor becomes aware of an allegation of retaliation or safety
raised to the NRC or DOE, Contractor shall promptly notify the Buyer of the filing of such
allegation, and shall keep the Buyer apprised of the status of the allegation itself and all
material developments in any NRC, DOE or judicial proceedings related to the allegation.
d. Contractor further agrees to indemnify and hold the Corporation harmless against any and
all costs, losses, claims, damages, liabilities, civil penalties and expenses, including
reasonable attorneys’ fees, imposed upon or incurred by the Corporation in connection with
(A) any DOL proceeding brought against the Corporation by an employee or former employee of
Contractor, or any subcontractor of Contractor, based upon Contractor’s or its
subcontractor’s actual or alleged violation of Section 211 with respect to such employee or
former employee, (B) any investigation or enforcement action by the NRC based upon such an
actual or alleged violation of Xxxxxxx 000, 00 XXX Section 70.7 or 10 CFR Part 708; and (C)
any civil action brought against the Corporation based upon Contractor’s, or its
Subcontractor’s, actual or alleged violation of Section 211. Such costs, losses, claims,
damages, liabilities, civil penalties and expenses, including reasonable attorney’s fees,
shall not be recoverable from the Corporation under any other provisions of this Contract.
e. Contractor shall notify the Buyer if any Contractor employee is subject to an NRC or DOE
Order or enforcement action. The Corporation reserves the right to determine that the
employee may not be used in the performance of this Contract.
| XXIII. | Subcontract and Consultants |
a. Contractor shall ensure that all subcontracts placed under the Contract (and all
lower-tier subcontracts) include (i) any requirements applicable to the subcontracted work
as to quality and performance which are at least as stringent as are imposed on Contractor
by this Contract; (ii) any requirements imposed by applicable law and regulation; (iii) the
same requirements to maintain the confidentiality of Corporation Proprietary Information,
and provide and protect the intellectual property rights of the Corporation as are imposed
on Contractor by the Contract; and (iii) any other provisions in this Contract required to
be included in such subcontracts including, but not limited to, the following articles of
the General Terms and Conditions if applicable: Article 5 (Standard of Performance), Article
32 (Confidentiality), Article 33, (Intellectual Property), Article 34 (Security of
Classified Information and Controlled Areas), Article 35 (Waiver for Claims Due to Nuclear
Incidents, Article 36 (Representation Concerning Nuclear Hazards).
b. The Contractor further agrees to pass the requirements imposed by this Section to its
subcontractors by including a provision similar to this section in all Subcontracts for the
performance of Services in connection with the Task Orders.
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c. Subcontractor Conflicts of Interest. Contractor shall ensure that subcontracts include
protection against Conflicts of Interest acceptable to the Corporation. If required by the
Corporation, Contractor shall cause subcontractors to execute agreements with the
Corporation for the protection of Contractor Proprietary Information, prior to engaging
subcontractors in work.
| XXIV. | Notices |
Any notice, request, demand, claim or other communication related to this Contract shall be
in writing and delivered by hand or transmitted by telecopier, registered mail (postage
prepaid), email or overnight courier to the other Party at the following numbers and
addresses:
Contractor: *****
Corporation: *****
The Corporation’s Technical Representative, with overall responsibility for coordinating
work under this Contract is *****. In addition, the Corporation may designate a specific
Technical Representative for individual technical areas.
| XXVI. | Code of Conduct |
(a) The Contractor agrees that its employees performing services under this Contract who
represent the Corporation, or may be viewed as representing the Corporation, shall abide by
the Corporation’s Code of Conduct (the “Code”). The Code can be accessed at:
xxx.XXXX.xxx/x0000_00/Xxxxxxx/XxxxxXXXX/XXXXXxxxxxXxxxxxxxXxxxxxx.xxx.
(b) The Contractor further agrees that it will use its reasonable best efforts to ensure
that its employees covered by this Paragraph are provided access to the Code and that they
have read and understand its requirements and prohibitions.
(i) Definition. “Export Controlled Information” or “ECI” means all information and contract
documents (purchase orders, drawings, specifications, etc.) furnished by Corporation to be
used in connection with proposal/offer preparation or performance under a contract, which
are identified as ECI. The ECI identification will be determined by an appropriate ECI
review authority as specified by the DOE Office Export Control Policy and Corporation
(NA-242).
(ii) Oral or Visual Disclosure. A Party that discloses Export Controlled Information orally
or visually shall identify it as Export Controlled Information at the time of disclosure.
(iii) Marking. All tangible objects, such as drawings, reports, programs or documents,
which constitute and/or contains or may contain Export Controlled Information shall be
Marked “Export Controlled information” or “Information Contained Within May Contain
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Export Controlled Information” or such other markings as required or permitted by DOE
guidance. Markings inadvertently omitted from Export Controlled Information when disclosed
to a recipient shall be applied by such recipient promptly when requested by the disclosing
Party, and such Export Controlled Information shall thereafter continue to be treated as
provided by this Agreement.
(iv) Export Controlled Information shall be protected in accordance with the DOE
guidelines on Export Control and Nonproliferation and with U.S. Government export control
laws and regulations. Each recipient shall not disclose the information to suppliers or
contractors who are not U.S. owned and managed or to employees who are not U.S. Citizens,
except in accordance with the DOE Guidelines on Export Control and Nonproliferation, and
with U.S. Government export control laws and regulations. This restriction applies to
written and oral guidance concerning performance, which may be provided by Corporation
technical representatives.
(v) Unless specifically and expressly approved in writing by Corporation, Contractor shall
not disclose any ECI or information that may contain ECI provided or furnished by
Corporation for any purpose to any individual who is not a U.S. citizen or to any non-U.S.
person or entity (including any non-U.S. employee, supplier or contractor). For purposes of
this Section, a person or entity is considered to be non-U.S. if it is incorporated,
organized or created under the laws of a foreign country, or is foreign owned, controlled or
influenced as defined in applicable regulations and guidelines. This restriction applies to
written and oral information and guidance which may be provided by Corporation and applies
to any information provided by any contractor, or subcontractor to the Corporation or any
other person acting on behalf of Corporation. Prior to disclosing any ECI to any person,
Contractor shall include this Section in a contract or agreement with the recipient.
| XXVIII. | Termination by Contractor |
In the event that Corporation shall default in the performance of its obligations under this
Contract and it shall fail to cure such default within ***** days after Contractor shall
notify Corporation in writing of such default, then, in addition to all other rights and
remedies available to Contractor at law or in equity, (a) Contractor may terminate this
Contract and in such event such termination shall be treated as a termination or suspension
of this Contract by Corporation under Paragraph 21(a)(i) of the General Terms and Conditions
and (b) the security interest granted to Corporation under the Security Agreement shall
automatically expire (and Corporation shall be obligated to promptly terminate all public
record filings with respect to such security interest).
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TABLE OF CONTENTS
| Heading | Paragraph | |||
Applicable Law |
22. | |||
Assignment |
3. | |||
Compliance with Laws |
23. | |||
Confidentiality |
32. | |||
Conflict of Interest |
7. | |||
Contract Management |
18. | |||
Contract Modifications |
19. | |||
Contractor Representations |
4. | |||
Contractor Status |
28. | |||
Definitions |
1. | |||
Delivery |
6. | |||
Dispute Resolution |
20. | |||
Entire Agreement |
2. | |||
Furnished Property |
24. | |||
Hazardous Material and Asbestos |
12. | |||
Headings |
27. | |||
Indemnification |
14. | |||
Inspection and Rejection |
8. | |||
Intellectual Property |
33. | |||
Invoices |
16. | |||
Materials and Heat Treatment |
13. | |||
Non Waiver or Default |
25. | |||
Payment |
15. | |||
Precedence |
31. | |||
Remedies for Breach of Warranty |
10. | |||
Representation Concerning Nuclear Hazards |
36. | |||
Indemnification Agreement |
||||
Security of Classified Information and Controlled Areas |
34. | |||
Severability |
30. | |||
Standards of Performance |
5. | |||
Survival |
26. | |||
Taxes |
17. | |||
Termination and Suspension of This Contract |
21. | |||
Third Party Beneficiaries |
29. | |||
Title and Risk of Loss |
11. | |||
Waiver for Claims Due to Nuclear
Incidents |
35. | |||
Warranties |
9. | |||
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1. DEFINITIONS.
As used throughout this Contract, the following terms, whether in the singular or plural, when used
with initial capitalization, shall have the meanings set forth below:
(a) The term “Buyer” means the Corporation’s Procurement Director or his/her
designated Procurement representative.
(b) The term “Conflict Of Interest” means that, because of other activities or
relationships with other persons (including, without limitation, competitors of the Corporation)
Contractor is unable or potentially unable to render impartial assistance or advice to the
Corporation, or Contractor’s objectivity in performing under this Contract is or might be otherwise
impaired.
(c) The term “Contract” means the contractual agreement between the Corporation and
Contractor which includes (i) the terms and conditions herein, (ii) any supplements to the terms
and conditions herein agreed by the Parties, (iii) any item descriptions, Specifications or
Drawings incorporated herein or attached hereto, and (iv) any instructions submitted to Contractor
by Buyer in connection with this Contract, provided that in the case of clause (iv) any
instructions that change the terms and conditions of this Contract in any material respect shall be
subject to and treated as a Contract modification under Paragraph 19 for which an equitable
adjustment shall be made as provided in Paragraph 19.
(d) The term “Contract Price” means the price for the Supplies specified in the
Contract and includes all applicable Federal, State and local taxes and duties except for those set
forth in Paragraph 17(a).
(e) The term “Contractor” means the individual or business entity that has entered
into this Contract with the Corporation.
(f) The term “Corporation” means United States Enrichment Corporation when the “Xxxx
to” address is “United States Enrichment Corporation”. The term means USEC Inc when the “Xxxx to”
address is “USEC Inc”.
(g) The term “Corporation Facility” means any property or facility owned or leased
by the Corporation.
(h) The term “Default” shall have the meaning ascribed to it in the Paragraph entitled
“Termination and Suspension of this Contract.”
(i) The term “Drawings” means all the drawings, sketches, or maps referenced in this
Contract and also such supplementary drawings, sketches or maps as the Buyer may issue from time to
time.
(j) The term “Force Majeure” shall have the meaning ascribed to it in the Paragraph
entitled “Termination and Suspension of This Contract.”
(k) The term “Furnished Property” shall have the meaning ascribed to it in the
Paragraph entitled “Furnished Property”.
(l) The term “Party” refers to the Corporation or the Contractor individually and the
term “Parties” refers to both the Corporation and the Contractor collectively.
(m) The term “Specifications” means all the terms and stipulations contained in the
document entitled “Casing Specification” Doc. No. ECS-1150-002 Rev. 1 (March 27, 2007) (including,
as of March 27, 2007, all codes, standards, documents, drawings and other materials referenced
therein) and includes those portions known as “specific contract requirements” and such amendments,
revisions, deductions or additions as may be issued in writing, from time to time, by the Buyer and
agreed to in writing by Contractor, pertaining to the quantities and qualities of the Supplies to
be furnished under this Contract.
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(n) The term “Supplies” means any materials, components or goods required to be furnished by
the Contractor under this Contract.
(o) The term “Work” means the Supplies.
2. ENTIRE AGREEMENT.
The whole and entire agreement of the Parties with respect to the subject matter hereto, is set
forth in this Contract; and the Parties are not bound by any prior agreements, understandings or
conditions other than as expressly set forth herein.
3. ASSIGNMENT.
| Contractor may not assign this Contract. The rights and obligations of Contractor under this Contract are personal to Contractor and may not be delegated or subcontracted to any other entity, in whole or in part, without the prior written consent of the Corporation. The Corporation shall have the right to assign this Contract including all rights, benefits and obligations hereunder to any affiliate of the Corporation without Contractor’s consent, provided that no such assignment shall be deemed to be a novation (and Corporation shall remain jointly and severally liable for performance of all obligations of Corporation under this Contract without regard to such assignment). |
4. CONTRACTOR’S REPRESENTATIONS.
(a) Contractor’s Representations. The Contractor hereby makes the following
representations to the Corporation:
(i) The Contractor is a merchant in the business of providing the Supplies called by this
Contract and is not acting as an agent for any other person or entity in providing such Supplies;
(ii) The Contractor has all power and authority required to execute, deliver and perform this
Contract, and the Contractor has sufficient staff and other resources to carry out its duties
hereunder in a prompt, efficient and diligent manner;
(iii) The execution, delivery and performance of this Contract by the Contractor and by the
person signing this Contract on behalf of the Contractor have been duly authorized by all necessary
corporate or partnership action;
(iv) This Contract constitutes a legal, valid and binding agreement of the Contractor,
enforceable against the Contractor in accordance with its terms, except as limited by bankruptcy,
insolvency, receivership or other similar laws affecting or relating to the rights of creditors
generally;
(v) The Contractor has or will obtain, maintain and comply with all licenses and permits
necessary to legally and validly execute, deliver and perform this Contract;
(vi) The representations and certificates made in, or submitted with, the Contractor’s
proposal, have been duly authorized, made and executed and are true and correct as if made herein
and as of the date hereof; and
(vii) The Contractor has the right to make all disclosures to, and assignments of intellectual
property rights to, the Corporation as required under this Contract.
(viii) Except as disclosed in an attached schedule, Contractor has no Conflict of Interest in
performing this Contract.
(b) Condition. The Contractor acknowledges that the Corporation has relied on the
truth, accuracy and completeness of the foregoing representations in entering into this Contract.
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5. STANDARDS OF PERFORMANCE.
The Contractor shall be responsible for the professional quality, technical accuracy and the
coordination of all Supplies furnished by the Contractor under this Contract. In connection with
the foregoing, the Contractor shall expend its best professional efforts to perform this Contract
with all due diligence, economy and efficiency, generally accepted techniques and practices in the
Contractor’s industry, sound management and technical practices, and applicable law and
regulations.
6. DELIVERY.
(a) The Contractor shall deliver the Supplies in accordance with the delivery terms specified
elsewhere in this Contract.
(b) UNLESS OTHERWISE STATED IN THIS CONTRACT, TIME SHALL BE DEEMED OF THE ESSENCE FOR DELIVERY
OF SUPPLIES. If the Contractor becomes aware of difficulty in providing the Supplies, the
Contractor shall timely notify the Buyer, in writing, giving pertinent details of the difficulty.
This notification shall not change any delivery schedule.
7. CONFLICT OF INTEREST
(a) Prohibited Activities. Without the Corporation’s prior written consent, during
performance of this contract (and if this Contract is terminated by Corporation due to an uncured
Default of Contractor, or expires by its terms on or after December 31, 2012, for a period of two
(2) years after such termination or expiration hereof), Contractor shall not (i) represent or
otherwise perform work that is the same or substantially related to the Work for a competitor of
the Corporation; or (ii) represent any other party, or otherwise perform work for a party that is
the same or substantially related to the Work, where such representation or work would, in the
Corporation’s judgment, be materially adverse to the interests of the Corporation.
(b) Disclosure of Conflicts of Interest. In the event that Contractor discovers
either a Conflict of Interest during the contract term or a material change in a Conflict of
Interest that existed as of the date this Contract was awarded but that was waived by the
Corporation, Contractor shall make an immediate end full disclosure thereof in writing to the
Corporation including a description of the action that Contractor has taken or proposes to take to
avoid or mitigate such new conflict or material change in a pre-existing conflict. Without
limiting any other rights it may have under law or equity, the Corporation reserves the right to
terminate this contract for default if it determines that the Contractor was aware of a Conflict of
Interest prior to the award of this Contract and did not disclose the conflict in the Corporation
prior to its award, or if the Contractor becomes aware of the Conflict of Interest after the award
of this Contract and failed to promptly disclose such conflict to the Corporation.
(c) Subcontracts. The Contractor shall ensure that all subcontracts include
protection against Conflicts of Interest acceptable to the Buyer.
8. INSPECTION AND REJECTION.
(a) Inspection by the Corporation. The Corporation shall have the right to inspect and
test the Supplies, to the extent practical, at all times and places, including during
manufacturing, to determine whether the Supplies meet all applicable Contract requirements.
Inspection may occur before or after delivery or both. The Contractor shall give the
Corporation reasonable access to the Contractor’s facilities to permit such inspection.
However, the Corporation’s inspection or
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failure to inspect shall not limit the Corporation’s rights under any provision of this Contract
or applicable law. If any inspection or test is made by the Corporation on the premises of the
Contractor or a subcontractor, the Contractor, without additional charge shall provide all
reasonable facilities and assistance for the safety and convenience of the inspectors in the
performance of their duties. If the Corporation’s inspection or testing of the Supplies is made
at a point other than the premises of the Contractor or a subcontractor, it shall be at the
expense of the Corporation except as otherwise provided in this Contract; provided, that
in case of rejection the Corporation shall not be liable for any reduction in value of samples
used in connection with such inspection or test. All inspections and tests by the Corporation
shall be performed in such a manner as not to unduly delay the work. The Corporation reserves the
right to charge to the Contractor any additional cost to the Corporation of inspection and testing
when Supplies are not ready at the time inspection and testing is requested by the Corporation or
when reinspection or retesting is necessitated by prior rejection. Acceptance or rejection of the
Supplies shall be made as promptly as practicable after delivery, except as otherwise provided in
this Contract; but failure to inspect and accept or reject Supplies shall neither relieve the
Contractor from responsibility for Supplies that do not conform to Contract requirements nor
impose liability on the Corporation. The inspection and testing by the Corporation of any
Supplies or lots thereof does not relieve the Contractor from any responsibility regarding defects
or other failures to meet the Contract requirements which may be discovered prior to acceptance.
Except as otherwise provided in this Contract, acceptance shall be conclusive except for latent
defects, fraud, or such gross mistakes as amount to fraud, and shall not relieve the Contractor of
its responsibility under the paragraph entitled “Warranties.”
(b) Rejection by the Corporation. The Corporation may, at any time up to thirty (30)
days after delivery, reject any defective (i.e., non-conforming) Supplies tendered by the
Contractor under this Contract. The Corporation shall not be obligated to accept or pay for any
defective Supplies, but may elect to accept such defective Supplies and either (a) equitably reduce
the price therefor or (b) exercise its warranty rights with respect to the defective Supplies (see
the Paragraph entitled “Warranties”). The Corporation shall be deemed to have accepted the
Supplies if it fails to notify the Contractor of a defect within the applicable thirty (30) day
period, or if a substantial change occurs in the condition of the Supplies that is not due to the
defect or inspection or testing by the Corporation. The provisions of Subparagraph (d) of the
Paragraph entitled “Warranties” shall apply to any rejected Supplies that the Corporation elects to
return to the Contractor. The Corporation’s payment for Supplies shall not constitute acceptance
thereof; and such payment shall (i) be refunded in full if the Corporation does not elect to accept
such defective Supplies, or (ii) refunded in part if the Corporation elects an equitable reduction in price.
The rights and remedies of the Corporation provided in this Paragraph are in addition to and do not limit any
rights afforded to the Corporation by applicable law or any other term of this Contract.
9. WARRANTIES.
(a) The Contractor warrants that the Supplies provided to the Corporation under this Contract
shall:
(i) conform to all item descriptions contained in the Specifications; and
(ii) conform to all standards or requirements expressly applicable thereto under the terms of
this Contract.
(b) The Contractor warrants that the Supplies shall be new, not refurbished or reconditioned,
preserved, packaged, marked and prepared for shipment in a manner conforming to the
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requirements of applicable law and regulation and this Contract, and of an even kind, quality and
quantity within each unit and among all units.
(c) The Contractor warrants that the Supplies shall be free and clear of any liens,
encumbrances, security interests or other claims (collectively, “Liens”), other than those created
by the Corporation, and, to the extent permitted by law and without regard to the degree of fault
or negligence of either Party, the Contractor shall indemnify, hold harmless and (if requested by
the Corporation) defend the Corporation against any such Liens of Contractor and any cost or
expenses incurred by the Corporation (including reasonable attorney’s fees) as result of such Liens
or any claim thereto.
(d) The Contractor shall bear all costs and risk for correction or replacement of defective
Supplies and for the cost of returning the defective Supplies to the Contractor and their return to
the Corporation. Corrected or replacement Supplies shall also be subject to the terms of this
paragraph to the same extent as the Supplies initially delivered.
(e) At the Corporation’s option, the Contractor shall perform corrective work at the site
where the Supplies were installed pursuant to this Contract and the Contractor shall be liable for
all costs occasioned in the performance of such corrective work.
(f) The rights and remedies of the Corporation provided in this Paragraph are in addition to
and do not limit any rights afforded to the Corporation by applicable law or any other term of this
Contract.
(g) Without limiting the Contractor’s liability under the warranties set out above, the
Contractor shall assign to the Corporation all manufacturer’s warranties for Supplies provided to
the Corporation or other property acquired by the Contractor at the Corporation’s expense to which
the Corporation takes title under the Paragraph entitled “Title and Risk of Loss.”
(h) Except as specifically set forth above, the Contractor hereby disclaims any and all
express or implied warranties, including but not limited to, the warranties of merchantability and
fitness for a particular purpose imposed by law or which could otherwise arise in connection with
the Contractor’s performance hereunder.
10. REMEDIES FOR BREACH OF WARRANTY.
(a) The Corporation shall give written notice to the Contractor of any breach of warranties
within sixty (60) days after discovery of a defect.
(b) The Contractor shall have fifteen (15) days after receiving such written notice to provide
to the Corporation a cure schedule and, unless otherwise agreed, such cure shall be completed
within (30) days after the Contractor’s receipt of such notice.
(c) If the Contractor fails to cure within the time established in this Paragraph, the
Corporation may, by Contract or otherwise, correct or replace the nonconforming Supplies with
similar Supplies from another source. The Contractor shall promptly reimburse the Corporation for
any costs incurred by the Corporation in correcting or replacing the nonconforming Supplies (or if
the Corporation has not yet fully paid for such Supplies, the amount by with such costs exceed the
price that the Corporation has not previously paid).
(d) If the Contractor fails to cure or the Corporation determines that a cure is not feasible,
the Corporation may obtain replacement Supplies from another source or waive the cure and accept
the Supplies subject to an equitable reduction in the price for the nonconforming Supplies. If the
Corporation has already paid for such Supplies, the Contractor shall promptly refund to the
Corporation the price paid for the replaced Supplies or, in the case of an equitable reduction in
price, the amount of the reduction.
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(e) If the Contractor disputes the Corporation’s warranty claim, the Contractor shall
nevertheless proceed with any written request issued by the Buyer under this Paragraph to correct
or replace the nonconforming Supplies. In the event it is later determined that the Supplies did,
in fact, conform to the requirements of the Contract, the Corporation shall equitably adjust the
Contract Price to account for any additional Supplies provided by the Contractor subject to offset
for any conforming Supplies returned by the Corporation.
(f) The Contractor shall provide instructions for pick up or disposal of nonconforming
Supplies. If the Contractor fails to furnish timely disposition instructions, the Corporation may
dispose of the nonconforming Supplies in a reasonable manner. The Corporation is entitled to
reimbursement from the Contractor, or from the proceeds of such disposal, for the reasonable
expenses of the care and disposition of the nonconforming Supplies, as well as for excess costs
incurred or to be incurred.
(g) The rights and remedies of the Corporation in this Paragraph are in addition to, and do
not limit, any rights afforded to the Corporation by applicable law or any other term of this
Contract.
(h) Any Supplies corrected or furnished in replacement under this Paragraph shall also be
subject to the applicable warranty in the Paragraph entitled “Warranties.”
11. TITLE AND RISK OF LOSS.
(a) Unless this Contract specifically provides otherwise, title to, and risk of loss of,
Supplies shall remain with the Contractor until, and shall pass to the Corporation upon, delivery
of the Supplies (i) to the carrier, if transportation is other than F.O.B. Destination; or (ii) the
designated destination, if delivery is F.O.B. Destination. In the event that delivery is other
than F.O.B. Destination, the Contractor shall, upon the Buyer’s request, arrange for delivery of
the Supplies to the destination requested by the Corporation at the Corporation’s cost. If the
Supplies are subsequently rejected by the Corporation, title to, and risk of loss of (other than any loss due to
the gross negligence of the Corporation), the Supplies shall revert to the Contractor on the date
of such rejection. Rejected Supplies shall be disposed of in accordance with Subparagraph (f) of
the Paragraph entitled “Remedies for Breach of Warranty.”
(b) Unless otherwise provided explicitly in this Contract, the Corporation shall be deemed to
acquire title to all equipment, supplies and materials (collectively, “Property”) acquired by the
Contractor hereunder at the Corporation’s expense, upon the Corporation’s payment therefor.
(c) Notwithstanding this Paragraph, title to and risk of loss of defective Supplies that are
returned for replacement or refund shall revert to the Contractor upon notice of the defect. If
the Contractor fails to furnish timely disposition instructions, the Corporation may dispose of the
defective Supplies for the Contractor’s account in a reasonable manner.
12. HAZARDOUS MATERIAL AND ASBESTOS.
Unless otherwise authorized elsewhere in this Contract, all Supplies furnished hereunder shall not
contain asbestos or any other hazardous material.
13. MATERIALS AND HEAT TREATMENT.
In the event that the Contract includes material and heat treatment requirements, the Contractor
shall furnish a statement signed by an authorized person within its quality organization stating
that such requirements have been met. When a choice of materials is authorized, the statement
shall indicate which materials were used in performance of this Contract.
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To the maximum extent permitted by law and without regard to the fault or negligence of either
Contractor or the Corporation (except as specifically provided in this Paragraph entitled
“Indemnification”), Contractor shall indemnify, save harmless and defend (if requested by the
Corporation) the Corporation, its directors, officers, employees, contractors, affiliates and
agents from and against any and all liabilities, claims, penalties, forfeitures and suits
(“Liabilities”) and the costs and expenses incident thereto (including costs of defense, settlement
and reasonable attorneys’ fees) (“Costs”), which they or any of them may hereafter incur, become
responsible for or pay out as a result of death or bodily injuries to any person, destruction or
damage to any property, contamination of or adverse effects on the environment, or any violation of
laws, regulations or orders, caused by or arising out of, in whole or in part, Contractor’s
obligations under this Contract, or arising from the breach of any representation or warranty made
by Contractor herein except to the extent such Liabilities and Costs arise from the willful
misconduct or gross negligence of the Corporation.
(a) Upon the submission of an acceptable invoice and subject to acceptance by the Corporation
of the Supplies covered thereby, the Corporation shall pay the Contractor the Contract Price for
such Supplies, to the extent that the Contractor has not been previously paid therefor.
(a) Unless otherwise specifically provided elsewhere in this Contract, the Contractor shall
submit one invoice upon each delivery of Supplies.
(b) Invoices shall be submitted to the attention of the Corporation’s Accounts Payable Group
at the address shown on the face of the Contract.
(c) Only invoices that are determined by the Corporation to be acceptable will be processed
for payment. Invoices must include:
(i) The Contractor’s name and address;
(ii) Invoice date;
(iii) Contract number and line item number;
(iv) Description, quantity, unit of measure, unit price and extended price of Supplies
delivered;
(v) All federal, state and local taxes which must be paid by the Contractor (i.e. those taxes
that the Corporation does not pay directly to a State or Commonwealth on its direct payment
permits);
(vi) Shipping number and date of shipment including the xxxx of lading number and weight of
shipment if shipped other than F.O.B. Destination;
(vii) Terms of any prompt payment discount offered;
(viii) Name, title and mailing address of person or office to whom payment is to be sent;
(ix) Name, title, phone number and mailing address of person to be notified in event of an
unacceptable invoice; and
(x) Any information or document required by the other requirements of this Contract.
(d) If any invoice is determined to be unacceptable, the Corporation shall notify the
Contractor of the defect within a reasonable time after receipt of the invoice by the Accounts
Payable Group.
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(a) Sales and Use Tax. The Contractor agrees that the prices, fees, charges (including
expenses for which the Contractor seeks reimbursement to or other consideration (such prices, fees,
charges and other consideration being referred to herein as “Consideration”)) to be paid by the
Corporation under the Contract shall not include any state sales or use taxes which shall be paid
directly by the Corporation. Any state sales or use taxes applicable to this Contract for Supplies
delivered in Ohio or Kentucky shall be paid directly to the State by the Corporation on a Direct
Payment Permit. If Supplies are delivered in other states, sales or use taxes may be paid by the
Contractor and billed to the Corporation.
(b) Prices Include Taxes. Except for taxes in Subparagraph (a) of this Paragraph, the
Contractor agrees that amounts payable as Consideration under the Contract include all applicable
federal, state and local taxes, duties and governmental charges (“Taxes”) that the Contractor is
legally obligated to charge to, and collect from, the Corporation. Taxes shall be listed
separately on any invoice for Supplies provided under this Contract. The Contractor shall take any
steps reasonably requested by the Corporation to lawfully minimize the Corporation’s liability for
taxes.
(c) Exclusive Liability for Certain Taxes. The Contractor hereby assumes sole and
exclusive liability for income, franchise or other taxes associated with the Contractor’s business
operations and for all taxes and/or contributions, however they may be designated, the payment of
which may be required under the Federal Social Security Act and under unemployment insurance laws
or unemployment compensation laws, however they may be designated, of the several states, with
respect to employees employed by the Contractor in the performance of services subject to this
Contract.
(d) Disclosure. The Corporation (and each employee, representative, or other agent
of the Corporation) may disclose to any and all persons, without limitation of any kind, the tax
treatment and tax structure of the transaction and all materials of any kind (including opinions or
other tax analyses) that are provided to the Corporation relating to such tax treatment and tax
structure.
(a) Buyer. Unless otherwise stated in this Contract, any action that may be taken by
the Corporation in this Contract may only be taken by the Buyer (such action shall bind the
Corporation unless it exceeded the authority of the Buyer or violates applicable law or
governmental regulations). In addition to the foregoing authority, the Buyer may also take any
action expressly reserved for the Technical Representative (as described in subparagraph (b) of
this Paragraph), if any, and may override any decision of the Technical Representative. All
actions taken by the Buyer shall bind the Corporation unless such actions exceed the authority of
the Buyer or violates applicable law or governmental regulations. The Buyer may replace the
Technical Representative and shall provide written notice thereof to the Contractor.
(b) Technical Representative. The Technical Representative, if one is designated
elsewhere in this Contract, shall be authorized to provide Technical Direction (as defined in
Subparagraph (c)) relating to the performance of the Contractor’s obligations under this Contract.
All actions taken by the Technical Representative prior to his or her replacement hereunder shall
bind the Corporation unless such action exceeded the authority of the Technical Representative
under this Contract or violates applicable law or governmental regulations. If no Technical
Representative is designated in this Contract, all actions shall be taken by the Buyer.
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(c) Technical Direction. (i) The Contractor’s performance of this Contract shall be
subject to the Technical Direction of the Technical Representative if one is so designated or the
Buyer if a Technical Representative is not designated. “Technical Direction” includes,
without limitation: (A) directions to the Contractor that shift work emphasis between work areas of
this Contract, require pursuit of certain lines of inquiry, fill in details or otherwise serve to
accomplish performance of this Contract; (B) provision of written information to the Contractor
that assists in the interpretation of drawings, specifications or technical portions of this
Contract; and (C) review and acceptance, on the Corporation’s behalf, of anything required to be
provided by the Contractor under this Contract; provided, however that none of the
foregoing Technical Direction shall be deemed to alter the status of the Contractor as an
independent contractor and in no event may any Technical Direction alter or modify the terms and
conditions of this Contract without the prior written consent of Contractor.
(ii) All Technical Direction must be within the scope of this Contract and significant
Technical Direction shall be issued in writing by the Technical Representative or the Buyer. Any
Technical Direction issued pursuant to this Subparagraph (c) shall not result in any additional
payment to the Contractor. The Technical Representative does not have the authority to, and may
not, issue any Technical Direction that: (A) requires additional services outside of the scope of
this Contract; (B) alters any written performance schedule included in the Contract or agreed to by
the Buyer; (C) changes the terms of this Contract; or (D) interferes with the Contractor’s right to
perform its obligations in accordance with this Contract.
(iii) The Contractor shall proceed promptly to perform any Technical Direction issued by the
Technical Representative in the manner prescribed by and within the Technical Representative’s
authority. If, in the opinion of the Contractor, any Technical Direction violates Subparagraph
(c)(ii) of this Paragraph, the Contractor shall: (A) notify the Buyer in writing promptly after
receipt of any such Technical Direction; (B) request in writing that the Buyer modify this Contract
accordingly; and (C) unless otherwise directed by the Buyer, continue performance of this Contract
without complying with the Technical Direction in question, pending a decision by the Buyer. Upon
receiving any such notification from the Contractor, the Buyer shall: (X) advise the Contractor in
writing as soon as possible after receipt of the Contractor’s letter that the Technical Direction
is within the scope of this Contract and does not constitute a change; or (Y) advise the Contractor
in writing within a reasonable time that the Corporation shall modify this Contract in accordance
with the Paragraph entitled “Contract Modifications.” Any disagreement between the Corporation and
the Contractor regarding the Buyer’s determination of whether a Technical Direction is within the
scope of this Contract or whether, or in what amount, to allow for an equitable adjustment, shall
be resolved in accordance with the Paragraph entitled “Dispute Resolution.”
The Buyer may at any time by written order and without advance notice or notice to any sureties,
make changes within the general scope of this Contract. If any such modification results in a
change in the cost of, or the time required for, performance of this Contract (including any delay
or postponement of the schedule for purchase of Casings by Corporation), Corporation and Contractor
shall in good faith mutually agree upon an equitable adjustment to the Contract Price, delivery
schedule or other affected Contract terms; provided, that the Contractor has requested an
equitable adjustment within thirty (30) days from receipt of the written order and prior to final
payment under this Contract. A dispute involving any equitable adjustment shall not excuse the
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Contractor from performing the Contract, as modified, so long as Corporation is negotiating the
equitable adjustment in good faith.
(a) Mutual Agreement. Any controversy or claim (a “Dispute”) between the Parties
arising out of or relating to this Contract, or the breach, termination or validity hereof that is
not resolved by mutual agreement shall be decided by the Buyer. The Buyer shall, in writing,
notify the Contractor of its final decision (“Final Decision”) and designate such notice as the “Final
Decision Notice.” In the event the Contractor disagrees with the Buyer’s Final Decision, the
Contractor shall notify the Buyer of its disagreement within thirty (30) days after receipt of the
Final Decision Notice; otherwise, the Final Decision shall be final and no action shall lie against
the Corporation arising out of said Dispute.
(b) Disputes Subject to Arbitration. In the event the Contractor notifies the Buyer
of its disagreement with the Final Decision within the time period in Subparagraph (a) of this
Paragraph, the Dispute shall be finally settled by binding arbitration in accordance with
the CPR Non-Administered Arbitration Rules (the “Rules”) as in effect on the effective date of this
Contract, as modified by this Paragraph, and by a single arbitrator appointed in accordance with
the Rules. The arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. §1
et seq., (the “Act”) and shall be held in Columbus, Ohio or Indianapolis, Indiana, as
determined by the Buyer.
(c) Hearings and Award. To the extent feasible (as determined by the arbitrator), all
hearings shall be held within ninety (90) days following the appointment of the arbitrator. At a
time designated by the arbitrator, each Party shall simultaneously submit to the arbitrator and
exchange with the other Party its final proposal for damages and/or any other applicable remedy.
Either Party may elect by notice given no later than ten (10) days after appointment of the
arbitrator to require that, in rendering the final award, the arbitrator shall be limited to
choosing the award proposed by a Party without modification. In no event shall the arbitrator
award damages inconsistent with any of the terms and conditions of this Contract. Absent (i) a
determination by the arbitrator that extraordinary circumstances require additional time or (ii)
agreement of the Parties, the arbitrator shall issue the final award no later than thirty (30) days
after completion of the hearings. Judgment on any award may be entered in any court having
jurisdiction thereof.
(d) Confidentiality. The fact that either Party has invoked the provisions of this
Paragraph, and the proceedings of, and award resulting from, an arbitration hereunder shall be
considered to be confidential information subject to the confidentiality provisions of this
Contract.
(e) Arbitration Award Binding Upon Successors. This agreement to arbitrate and any
award made hereunder shall be binding upon the successors and assigns and any trustee or receiver
of each Party.
(a) Termination or Suspension. The Corporation may terminate or suspend this Contract,
in whole or in part, (i) at the Corporation’s discretion, upon forty-five (45) days prior
written notice to the Contractor or (ii) if the Contractor Defaults (as defined in
Subparagraph (b) of this Paragraph) and, where a right of cure is provided, fails to cure
such Default within the applicable
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cure period, if one is provided, or if none is provided, forty-five (45) days (unless extended in
writing by the Buyer) after receiving notice from the Buyer specifying the Default.
(b) Definition of Default. “Default” includes: (i) the Contractor is adjudged
bankrupt or insolvent; (ii) the Contractor makes a general assignment for the benefit of its
creditors; (iii) a trustee or receiver is appointed for the Contractor or any of its property;
(iv) the Contractor files a 30-day cure petition to take advantage of any debtor’s act or to reorganize under the
bankruptcy or similar laws; (v) the Contractor fails to make prompt payments to subcontractors or
suppliers for labor, materials or equipment (except to the extent a good faith dispute exists with
any such person provided Contractor promptly obtains a full release of any liens or attachments
claimed in any property, materials or equipment to be delivered under the Contract or necessary to
perform the Contract); or (vi) except to the extent caused by Force Majeure, the Contractor fails
to make progress in the work so as to endanger performance of this Contract, (vii) the Contractor
fails to cure a defect that it is required to cure under the provisions of this Contract, (viii)
the Contractor breaches in any material respect any warranty or representation made in this
Contract; or (ix) the Contractor breaches any other term of this Contract and such breach has or
could have a material adverse effect on the performance of this Contract. Force Majeure shall
excuse a Default by the Contractor under item (vi) if the Contractor promptly gives notice to the
Buyer of the effect of such Force Majeure on performance of this Contract and the likely duration
thereof, if reasonably known, and keeps the Buyer informed of any changes in such circumstances,
including when such Force Majeure ends; Provided, the Contractor uses all reasonable
efforts to continue to perform this Contract, to remedy the circumstances constituting the Force
Majeure and to mitigate the adverse effects of such Force Majeure on performance of this Contract.
For these purposes, “Force Majeure” means an unforeseeable occurrence beyond the reasonable
control of the Contractor and without its fault or negligence such as, acts of God or the public
enemy, acts of the U.S. Government in its sovereign capacity, fires, floods, epidemics, quarantine
restrictions, unusually severe weather and any labor disputes, stoppages, slow-downs or strikes or
material shortages.
(c) Contractor’s Obligations Upon Termination or Suspension. (i) Upon the
Corporation’s termination or suspension of this Contract, the Contractor shall (A) cease work on
the terminated or suspended portions of this Contract on and as of the effective date of
termination or suspension, and shall not incur further expenses in connection with the terminated
or suspended portions of this Contract, until, in the event of suspension, the Buyer notifies the
Contractor that the suspension has been lifted and that the Contractor may resume work; (B)
continue to perform those portions of this Contract that are not terminated or suspended; (C)
terminate and/or assign to the Corporation or to an affiliate, contractor or a supplier of the
Corporation (at the Corporation’s discretion) all of the Contractor’s right, title and interest in
subcontracts and purchase orders relating to the terminated or suspended portion of this Contract;
(D) take actions necessary to protect, preserve and (in the case of a termination of this Contract)
promptly transfer title to and possession of all work, materials and information (regardless of
form), but not equipment or facilities owned by Contractor, related to performance of this
Contract, to the Corporation or (if so directed by the Buyer) to an affiliate, contractor or a
supplier of the Corporation; and (E) in the case of termination or suspension for any reason other
than an uncured Default, provide supporting cost data as requested by the Corporation and to permit
Corporation auditors access to all records within the Contractor’s custody or control and that of
its subcontractors to verify such cost data in order to facilitate the determination of the
appropriate compensation due to Contractor.
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(ii) In the case of a termination of this Contract for any uncured Default, the Contractor
shall also take all other actions necessary to enable the Corporation or an affiliate, contractor
or supplier of the Corporation to complete performance of this Contract or, if requested by the
Corporation, sell or transfer to the Corporation any work or material related to this Contract and
equipment purchased with the Start-Up Fee and pay the proceeds of any such sale and deliver any
such work, material or equipment to the Corporation. All such activities shall be at the
Contractor’s cost.
(iii) In the case of a termination of this Contract for an uncured Default, the Contractor
shall pay (A) the Corporation’s reasonable costs (including reasonable attorney’s fees) incurred in
negotiating and executing a contract with a replacement contractor or supplier to provide the
Supplies which the Contractor failed to provide under the Contract (“Terminated Supplies”); and (B)
the price charged by, and costs reimbursed to, such replacement contractor or supplier for such
Terminated Supplies, but only to the extent such price and costs exceed the amount that would have
been paid to the Contractor under this Contract for the Terminated Supplies; and the Contractor
shall refund to the Corporation any amounts already paid for the Terminated Supplies. If the
Corporation elects to produce the Terminated Supplies itself or through an affiliate, the
Contractor shall reimburse the Corporation for the costs thereof; but only to the extent the cost
exceeds the amount that would have been paid to the Contractor under this Contract for such
Terminated Supplies. The Corporation may elect to delay payment of any amount due to the
Contractor until the Corporation, its affiliate or the replacement contractor or supplier produce
the Terminated Supplies.
(d) The Corporation’s Obligations Upon Termination or Suspension. Upon the
Corporation’s termination or suspension of this Contract for any reason other than an uncured
Default, the Corporation shall pay (i) the Contractor’s actual, reasonable and verifiable costs and
expenses, including reasonable indirect, overhead and administrative costs (which is mutually
agreed by the Parties to be an amount equal to *****) as a consequence of such termination or
suspension, (ii) any costs which the Corporation is required to reimburse the Contractor under this
Contract, and (iii) all amounts due and payable to Contractor under this Contract for performance
prior to the date of termination or suspension. Except as provided above, Corporation shall not be
liable for lost or anticipated profit or unabsorbed indirect costs or overheads; provided, however,
notwithstanding anything in this Contract to the contrary, Corporation shall be obligated to pay
Contractor, upon termination or suspension for any reason other than an uncured Default (x) prior
to completion of the Casing production facility actual costs incurred or obligated to be paid for
such facility up to $***** or (y) on or after completion of the Casing production facility an
additional amount equal to $*****. In no event, shall the Corporation’s liability for all such
termination expenses exceed the unpaid balance that would have been payable by Corporation if both
Parties had fully performed under this Contract through the scheduled expiration date of this
Contract The right of reimbursement and compensation set forth herein shall be the Contractor’s
exclusive remedy in the event of such termination or suspension. Upon the Corporation’s payment to
the Contractor in accordance with this Subparagraph, title to any completed Supplies, manufacturing
materials and other things for which the Corporation has paid (other than any equipment) shall vest
in the Corporation, and the Contractor shall protect and preserve the property in its possession in
which the Corporation has an interest and, upon the Buyer’s direction, deliver same to the
Corporation (at Corporation’s expense). Alternatively, at the Buyer’s option, the Contractor shall
attempt to sell or dispose of all or part of the same,
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whereupon the Corporation shall be entitled to the benefits of any value received (less any
expenses of sale which shall be retained by Contractor).
(e) Limitation of Liability. The Corporation shall in no event have any liability to
the Contractor for incidental, consequential, special, indirect or other damages except as provided
in paragraph (d) above.
(f) Other Remedies. Nothing herein shall be deemed to limit any other remedy that the
Corporation or Contractor may have under this Contract or applicable law.
This Contract shall be governed by the laws of the laws of the State or the Commonwealth from which
this Contract was awarded. In no event shall the U.N. Convention on the International Sale of
Goods apply to this Contract.
(a) The Contractor shall comply with all applicable federal, state and local laws, rules,
regulations, orders, codes and standards in performing this Contract. The cost of such compliance
shall be borne by the Contractor.
(b) The Vendor represents that each chemical substance constituting or contained in the
Supplies sold or otherwise transferred to the Corporation hereunder is on the list of chemical
substances compiled and published by the Administrator of the Environmental Protection
Administration pursuant to the Toxic Substances Control Act (15 U.S.C., Sec. 2601 et seq.) as
amended.
(c) The Vendor shall provide to the Corporation with each delivery any Material Safety Data
Sheet applicable to the Supplies in conformance with and containing such information as required by
the Occupational Safety and Health Act of 1970 and regulations promulgated thereunder, or its state
approved counterpart.
(a) The Corporation may provide to the Contractor property owned or controlled by the
Corporation (“Furnished Property”). Furnished Property shall be used only for the
performance of the Work.
(b) Title to Furnished Property shall not pass to Contractor. The Contractor shall clearly
xxxx (if not so marked) all Furnished Property to show that it is Furnished Property. The
Contractor, as part of the Work, shall (i) provide approved storage facilities for Furnished
Property and (ii) unload, provide receipts for, and store all such Furnished Property. If such
items are already in storage, the Contractor shall take custody of them when directed by the Buyer
or his designee. The Contractor shall check, account and care for, and protect such items in
accordance with good commercial practice and in the same manner as if such items were to be
furnished by the Contractor under this Contract.
(c) Except for reasonable wear and tear or expected consumption of the Furnished Property in
the performance of the Work, the Contractor shall be responsible for, and shall promptly notify the
Corporation of, any loss or destruction of, or damage to, Furnished Property. The Contractor
shall be liable for loss or destruction of, or damage to, Furnished Property and for expenses
incidental to such loss, destruction or damage or replacement or repair of such property.
(d) At the Buyer’s request and/or upon completion or term of this Contract, the Contractor
shall submit in a form acceptable to the Buyer, inventory lists of Furnished Property and
shall deliver
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or make such other disposal of Furnished Property as may be directed by the Buyer, at
Corporations’ expense.
Any failure by the Corporation at any time, or from time to time, to enforce or require the strict
keeping and performance of any of the terms or conditions of this Contract shall not constitute a
waiver of such terms or conditions and shall not affect or impair such terms or conditions in any
way nor the right of the Corporation.
Upon expiration or termination (for any reason) of this Contract, all provisions of this Contract
dealing with conflicts of interest, intellectual property, confidentiality, proprietary data and
ownership rights, termination or suspension rights of either Party, as well as the provisions of
the Paragraphs hereof entitled “Contractor’s Representations,” “Indemnification” “Termination and
Suspension of This Contract” and “ Waiver for Claims Due to Nuclear Incidents” and any other
provision of this Contract that expressly states that it will survive expiration or termination
hereof, shall survive and remain binding upon the Parties hereto and upon their successors and
assigns.
The headings and subheadings of the Paragraphs contained in this Contract are inserted for
convenience only and shall not affect the meaning or interpretation of this Contract or any
provision hereof.
The Contractor is an independent Contractor. Without limiting (a) the Corporation’s right to
provide Technical Direction as set forth in the Paragraph entitled “Contract Management” or (b) any
requirement in this Contract regarding subcontractors and consultants, the Corporation shall have
no right to control or direct the details, means or methods by which the Contractor performs this
Contract. The Contractor is not authorized to act for, or enter into any agreement on behalf of,
the Corporation without written authorization therefor.
Except as provided in the Paragraph entitled “Waiver for Claims Due to Nuclear Incidents,” nothing
in this Contract shall be interpreted as creating any right of enforcement of any provision herein
by any person or entity that is not a Party to this Contract.
If any provision of this Contract is held invalid by a court of competent jurisdiction, such
provision shall be severed from this Contract and, to the extent possible, this Contract shall
continue without effect to the remaining provisions.
Any
inconsistencies in this Contract shall be resolved in accordance with the following descending order of precedence: (a) face of the Contract and Articles I-XXVIII, (b) the General Terms and
Conditions herein, (c) Specifications and (d) Drawings.
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(a) Information, in any form whether written, electronic oral or other, developed by,
communicated to, or acquired (including by observation) by Contractor in the performance of the
Work as well as the contents of this Contract (collectively “USEC Proprietary Information”), is of
a highly confidential and proprietary nature. Without the Corporation’s prior written consent,
Contractor shall not (1) use any such USEC Proprietary Information for any purpose except to
perform the Work under this Contract; or (2) disclose in any manner (oral, written or otherwise)
any such USEC Proprietary Information either during or after the term of this Contract to any
persons, other than (i) Contractor’s employees who have a need for access to such USEC Proprietary
Information in order to perform the Work under this Contract provided they are advised of the
proprietary nature of the information, and are bound by a written agreement or by a legally
enforceable code of professional responsibility to protect the confidentiality of the Proprietary
Information; or (ii) other persons including subcontractors of Contractor who may be designated by
the Corporation to work with Contractor. Contractor shall require in legally binding agreement
that each of its subcontractors maintain the confidentiality of USEC Proprietary Information in the
same manner as required in this Paragraph entitled “Confidentiality” and that the Corporation may
enforce such agreement.
(b) The restrictions in this Paragraph entitled “Confidentiality” do not apply to
information which:
(i) is in the public domain as of the date this Contract was awarded to Contractor or enters
the public domain thereafter other than through a breach hereof by Contractor,
(ii) is disclosed to Contractor by a third party that is legally entitled to disclose such
information,
(iii) was known by Contractor prior to its receipt from the Corporation, or is developed by
Contractor independently of Contractor’s Work under this Contract or any disclosures by the
Corporation to Contractor of such information, or
(iv) is required to be disclosed by order of a court of competent jurisdiction, administrative
agency or governmental body, or by subpoena, summons or other legal process, or by law, rule or
regulation, or by applicable regulatory or professional standards.
(c) All Contractor Work Product and Corporation Technology shall be the property of the
Corporation and treated by Contractor and its subcontractors as USEC Proprietary Information.
Unless directed by the Corporation otherwise, Contractor may maintain a reasonable number of
copies of Contractor Work Product for archival purposes only. All retained copies of Contractor
Work Product shall be marked as confidential and protected from disclosure to third persons in
accordance with the provisions of this Paragraph entitled “Confidentiality” for so long as
Contractor retains such copies.
(d) If Contractor receives a request for USEC Proprietary Information pursuant to Section
(b)(iv) of this Paragraph or is otherwise required by law to disclose USEC Proprietary
Information, Contractor shall promptly notify the Corporation of such request prior to any
disclosure by Contractor (unless such notification or disclosure is prohibited by applicable law,
regulation or order). If the Corporation determines that such USEC Proprietary Information (or
portions thereof) should not be disclosed, Contractor shall assist the Corporation (i) obtain
relief from the requested disclosure or (ii) secure confidential treatment and minimization of any
such USEC Proprietary Information that must be disclosed to the governmental authority.
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(e) Subject to applicable law, Contractor shall not issue any press release or make any public
statement regarding this Contract or performance hereunder without the prior written approval of
the Corporation.
(f) Contractor agrees that (i) violation of this Paragraph entitled “Confidentiality” would
cause irreparable harm to the Corporation which could not be adequately remedied by damages; and
(ii) injunctive or other equitable relief is an appropriate remedy for violation of this Paragraph.
Contractor also agrees to waive any requirement for the securing or posting of any bond by the
Corporation in connection with such a remedy.
(g) If Contractor has previously executed a confidentiality agreement with the Corporation,
the terms and conditions of this Paragraph entitled “Confidentiality” shall not be interpreted or
construed to replace, modify or diminish the requirements of said confidentiality agreement, but
shall be in addition thereto. In the event of a conflict, the more restrictive requirements shall
apply.
(a) All inventions, discoveries, improvements, documents, drawings, designs, specifications,
notebooks, tracings, photographs, negatives, reports, findings, recommendations, data and memoranda
of every description, including material maintained in any form or medium, concepts, ideas,
methods, methodologies, procedures, processes, know-how and techniques (including without
limitation, function, process, system and data models); templates, the generalized features of the
structure, sequence and organization of software, user interfaces and screen designs; general
purpose consulting and software tools, utilities and routines; and logic, coherence and methods of
operation or systems (whether or not patentable, or copyrightable that are conceived or first
actually reduced to practice or first prepared by Contractor, its personnel or its
subcontractor(s), in the performance of the Work or prepared at the Corporation’s expense
(collectively, “Contractor Work Product”) shall be the property of the Corporation and treated by
Contractor and its subcontractor as confidential USEC Proprietary Information. Unless directed by
the Corporation otherwise, Contractor may maintain a reasonable number of copies of Contractor Work
Product for archival purposes only. All retained copies shall be marked as confidential and
protected from disclosure to third persons in accordance with the provisions of
the Paragraph of this Contract entitled “Confidentiality” for so long as Contractor retains such
copies.
(b) The Corporation shall acquire all of Contractor’s right, title and interest in and to all
Contractor Work Product by written assignment or as a work for hire. Contractor hereby assigns all
its right, title and interest in such Contractor Work Product to the Corporation, and Contractor
shall execute any documents and otherwise assist in obtaining, maintaining, or enforcing the
Corporation’s intellectual property rights in and to Contractor’s Work Product, as the Corporation
may reasonably require to preserve the Corporation’s rights therein. No additional compensation
shall be paid to Contractor for, or as result of, providing such assistance. To the extent
Contractor Technology (as defined below) is incorporated into Contractor Work Product, Contractor
hereby grants to the Corporation a fully-paid, world-wide, non-exclusive, irrevocable,
transferable, perpetual license to make, have made, use, sell, offer to sell, reproduce, prepare
derivative works, perform and/or display publicly, and sublicense such Contractor Technology to the
extent necessary for the Corporation to exercise its rights of ownership in Contractor Work
Product. No additional compensation shall be paid to Contractor for, or as result of, such
license.
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(c) The Corporation acknowledges that Contractor may have created, acquired or otherwise have
rights in (and may, in connection with the performance of the Work, employ, provide, modify,
acquire or otherwise obtain rights in) various inventions, discoveries, improvements, data,
concepts, ideas, methods, methodologies, procedures, processes, know-how and techniques (including
without limitation, function, process, system and data models); templates, the generalized features
of the structure, sequence and organization of software, user interfaces and screen designs;
general purpose consulting and software tools, utilities and routines; and logic, coherence and
methods of operation or systems (collectively, the “Contractor Technology”). Contractor Technology
shall not include any Contractor Work Product
(d) Even if used in connection with the performance of the Work, Contractor Technology shall
remain the property of Contractor and the Corporation shall acquire no right or interest in such
property, except for the license provided in Subparagraph (b) above in respect of Contractor
Technology incorporated into Contractor Work Product. Similarly, property of the Corporation
(including, without limitation, the Corporation Technology(as defined below) and any equipment,
material, hardware and software of the Corporation) shall remain the property of the Corporation
and Contractor shall acquire no right or interest in such property.
(e) The term “Corporation Technology” means all inventions, discoveries, improvements,
documents, drawings, designs, specifications, notebooks, tracings, photographs, negatives, reports,
findings, recommendations, data and memoranda of every description, including material maintained
in any form or medium, concepts, ideas, methods, methodologies, procedures, processes, know-how and
techniques (including without limitation, function, process, system and data models); templates,
the generalized features of the structure, sequence and organization of software, user interfaces
and screen designs; general purpose consulting and software tools, utilities and routines; and
logic, coherence and methods of operation or systems (whether or not patentable, or copyrightable)
owned by, or licensed to the Corporation or to which the Corporation otherwise has rights to use or
possess.
(f) Nothing in this agreement shall be construed as expressly or impliedlly granting a license
to Contractor of any Corporation Technology, including without limitation intellectual property
rights, except for the limited purpose of performing its Work under the Contract.
(a) Classified Information Access. (i) “Classified Information” means any
information or material, regardless of its physical form or characteristics, that has been
determined pursuant to Executive Order 12356 or prior Executive Orders to require protection
against unauthorized disclosure, and which is so designated; and all data concerning design,
manufacture or utilization of atomic weapons, the production of special nuclear material, or the
use of special nuclear material in the production of energy, but shall not include the data
declassified or removed from the Restricted Data category pursuant to Section 142 of the Atomic
Energy Act of 1954, as amended (the “AEA”) unless protected under Section 142d of the AEA.
(ii) Security Clearance. The Parties recognize that the Department of Energy
(“DOE”) or the Nuclear Regulatory Commission may determine security classifications and
issue security clearances required for performance of all or part of this Contract. Contractor
shall follow the applicable rules and procedures of DOE, NRC and other responsible governmental
authorities regarding access to and safeguarding of Classified Information, security clearances and
other security matters, including the requirements of DOE Acquisition Regulations (the
“DEAR”) (see 48 C.F.R Chapter 9) 952.204-2, Security, DEAR 952.204-70
Classification/Declassification, 10
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C.F.R. 95, and the procedures with respect to Foreign Ownership Control and Interest
(“FOCI”) in DEAR 904.7000 et seq. and DEAR 952.204-73, Facility Clearance.
Contractor shall not permit any individual to have access to any level or category of classified
information, except in accordance with applicable laws and procedures. Contractor shall not be
granted access to any classified information until the Buyer has notified Contractor that such
access has been approved by a DOE FOCI determination.
(b) Site Access. Certain Corporation Facilities are each enclosed by a perimeter
fence establishing a controlled area. At the time of initial entrance to the site, Contractor’s
employees shall report to the applicable badge office for security processing. Processing of
Contractor’s employees will be done without charge to Contractor. All Contractor employees
performing hereunder must be United States citizens. If naturalized, proper evidence must be
furnished. All employees must have picture identification with them upon arrival at the applicable
badge office. Unless informed by the Buyer of a different procedure, Contractor shall ensure that,
once issued, badges are worn by Contractor’s employees at all times while on site. The continued
presence of Contractor’s employees on-site is subject to review by the Corporation, DOE and/or
other Corporation or DOE contractors based upon a check of appropriate records of law enforcement
agencies.
(c) Technology Transfer Controls. Even if not classified, information related to
enrichment, an enrichment facility or a component of an enrichment facility, are subject to U.S.
Government restrictions on technology transfers, including, but not limited to, those found in 10
C.F.R. parts 110, 810, or 1017 or 15 C.F.R. part 779. Accordingly, Contractor shall not disclose
such information in any manner inconsistent with any such U.S. Government restriction. Further,
Contractor shall not use, nor permit any subcontractor to use, any non-U.S. national or non-U.S.
owned entity in connection with (i) delivery to, or work at, a controlled area or (ii) Work
involving information, Work or goods that are subject to U.S. government control, without first
ensuring that such activities fully comply with all applicable restrictions.
(d) Foreign Nationals. Foreign nationals are not permitted to perform work at
Corporation Facilities without prior written permission from the Buyer. Written requests for use
of foreign nationals must be submitted to the Buyer at least ten (10) weeks prior to their
anticipated work date. Failure of the Buyer to approve the use of a foreign national shall not
constitute excusable delay nor entitle Contractor to an increase in the Contract Price.
Certain of the Corporation’s contracts with its customers require the Corporation to seek from its
suppliers a waiver of any claim against the Corporation’s customers for loss, damage or loss of use
of, property resulting from a nuclear incident (as defined in Section 11 of the Atomic Energy Act
of 1954, as amended) (the “AEA”) at the Corporation Facility. To facilitate the
Corporation’s compliance with the foregoing requirement, Contractor hereby waives any such claims
it may now or hereafter have against any and all of the Corporation’s customers (but not against
the Corporation) resulting from a nuclear incident at the Corporation Facility to the extent such
customers have also waived such claims against Contractor. Contractor shall include this Paragraph
in any subcontract entered into by Contractor in connection with this Contract and shall require
that this Paragraph be included in all lower tier subcontracts.
36. REPRESENTATION CONCERNING NUCLEAR HAZARDS INDEMNIFICATION AGREEMENT.
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The Corporation shall not be liable to Contractor or its subcontractors for any loss or damage that
they or any of them may suffer as a result of a nuclear incident (as defined in Section 11 of the
AEA), at a Corporation Facility nor shall the Corporation indemnify Contractor or its
subcontractors for public liability (as defined in the AEA) arising from such a nuclear incident.
However, the Corporation represents that there is an indemnity agreement, entered into by the
Corporation with the United States Department of Energy under the authority of Section 170 of the
AEA for the areas leased by the Corporation from DOE at the Portsmouth, Ohio and Paducah Kentucky
Gaseous Diffusion Plants and the K-1600 facility at the East Tennessee Technology Park in Oak Ridge
Tennessee. Under such indemnity agreement, the Department of Energy has indemnified the Corporation
and other persons indemnified under the AEA against claims for public liability brought against
them arising out of in connection with activities under the Corporation’s lease of the GDPs or
K-1600 from the Department of Energy (“DOE”). The indemnity applies to covered nuclear
incidents which (a) take place at one of the Gaseous Diffusion Plants or the K-1600 facility
arising out of, or in connection with, activities under the lease; or (b) occur during
uninterrupted transportation within the United States of source, special nuclear or byproduct
material (all as defined under Section 11 of the AEA), to or from one of the GDPs or the K-1600
facility in connection with, or arising out of, activities under the lease. The obligation of the
Department of Energy to indemnify is subject to the conditions stated in the indemnity agreement
and the AEA.
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