EXHIBIT 10.12.1
SUBCONTRACT AGREEMENT
FIXED PRICE LEVEL OF EFFORT
SUBCONTRACTOR: SUBCONTRACT #: 4400093943
NANOSYS INC. MODIFICATION #: BASIC
ADDRESS: SUBPROJECT #: 01-1339-34-5717-901
0000 XXXXXXX XXXXXX DPAS RATING:N/A
XXXX XXXX, XX 00000 TYPE: FIXED PRICE, LEVEL OF EFFORT
VALUE: $8,216,827
INTRODUCTION
This Subcontract Agreement, effective JULY 9, 2004 is made between SCIENCE
APPLICATIONS INTERNATIONAL CORPORATION (hereinafter known as "Buyer"), a
Delaware corporation with principal offices in San Diego, California, and
NANOSYS INC. (hereinafter known as "Seller"), a Delaware CORPORATION, with
principal offices in Palo Alto, CA. The effort to be performed by Seller under
this Subcontract will be part of Buyer's Prime Contract # [*** Redacted] that
has been issued by [*** Redacted]. The work, defined in Attachment I (Statement
of Work and Schedule) will be performed on a Fixed-Price/Level - of-Effort
(FP/XXX) basis, in accordance with Schedule A (Specific Terms and Conditions),
and any referenced documents listed in 17.0 ORDER OF PRECEDENCE section of this
agreement.
SCHEDULE A
SPECIFIC TERMS AND CONDITIONS
1.0 PRICE
The total firm fixed price for the work to be performed under this Subcontract
is as follows:
CLIN PERIOD PROPOSED AMOUNT PERIOD OF PERFORMANCE
---------- ----------------- --------------- ---------------------
1 BASE-YEAR 1 $1,493,215 7/9/04-6/24/05
2 OPTION 1 - YEAR 2 $1,567,474 6/25/05-6/24/06
3 OPTION 2-YEAR 3 $1,642,610 6/25/06-6/24/07
4 OPTION 3- YEAR 4 $1,721,508 6/25/07-6/24/08
5 OPTION 4-YEAR 5 $1,791,480 6/25/08-6/24/09
TOTAL $8,216,287
This Subcontract is INCREMENTALLY funded in the amount of $746,600.00 including
profit, through 12/24/04. This Subcontract shall be fully funded for the
remaining amount of CLIN 1, and any option years set forth in CLIN 2 through
CLIN 5, as set forth above, upon funding of such amounts by the Customer under
Buyer's Prime Contract.
1.1 [*** Redacted].216-01 LEVEL OF EFFORT
(a) The subcontractor shall apply best efforts toward accomplishing the
contract work effort. The level-of-effort required under this
subcontract shall consist of a labor expenditure not less than 96
percent and not more than 104 percent of the total labor hours
specified for each XXX CLIN of this subcontract.
(b) The subcontractor shall promptly notify the buyer in writing when
there is an indication that premature exhaustion of the total labor
hours will occur.
(c) It is understood and agreed that the monthly labor hour expenditure
rate may fluctuate in pursuit of the technical objective. However,
such fluctuations will be controlled to avoid exhaustion of total
labor hours before the expiration of the term of the subcontract.
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***Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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(d) It is further agreed that the subcontractor may submit written
requests to accelerate the labor hour expenditure rate to exhaust
the total authorized labor hours prior to the expiration date of
this subcontract. If approved by the Buyer, the accelerated
performance shall be without increase in fee or profit, as
applicable, and the transaction shall be formalized by a
modification to this subcontract.
(e) Upon subcontract completion, the seller shall submit to the Buyer a
certified statement of the labor hours actually expended in the
performance of this subcontract. If task orders or delivery orders
are issued under this subcontract, the subcontractor must submit a
separate certification of utilization of hours to the final payment
voucher indicating the total number of hours expended.
(f) For fixed-price subcontracts, the fixed price for performance is
predicated upon the seller furnishing at least the minimum and not
more than the maximum effort specified. In the event the minimum
effort is not provided as specified, the seller may either require
the contractor to continue to perform work under the contract until
the minimum level of effort has been provided or negotiated an
equitable downward adjustment in contract price.
Breakdown of the level of effort are as follows:
CLIN PERIOD TOTAL XXX MINIMUM (96%) MAXIMUM (104%)
---- ----------------- --------- ------------- --------------
1 BASE-YEAR 1 4792 4600 4984
2 OPTION 1 - YEAR 2 4906 4710 5102
3 OPTION 2-YEAR 3 4742 4552 4932
4 OPTION 3- YEAR 4 5206 4998 5414
5 OPTION 4-YEAR 5 5076 4873 5279
TOTAL 24722 23733 25711
1.2 PERFORMANCE
The effort required by this subcontract shall be delivered in accordance with
the Statement of Work contained in this agreement. The dates specified for
performance is of the essence of this contract. The date specified for
performance is the required start date at Buyer's plant, unless otherwise
specifically noted herein. All items furnished under this subcontract shall be
delivered FOB Destination, unless specified otherwise in writing by the Buyer's
contractual representative. Delivery shall not be deemed complete until the
goods have been actually received and accepted by Buyer, notwithstanding
delivery to any carrier, or until orders for services have been performed,
received, and accepted by Buyer.
1.3 INSPECTION
All goods supplied and services performed pursuant hereto shall be subject to
inspection and test by buyer and its agents and by its customers at all times
and places, during the period of performance, and in any event before
acceptance. In the event that goods supplied are not performed in accordance
with the specifications and instructions of Buyer, Buyer may require prompt
correction thereof, or as to services, require that the services be rendered
again at Seller's expense. If such defects exist and if Seller is unable or
refuses to replace the goods or render the services again promptly, Buyer is
entitled to repayment of such portion of the contract price as is equitable
under the circumstances.
1.4 INVOICES
Invoices shall be prepared in duplicate and contain the following information;
subcontract number, subproject number, item number, description of articles,
sizes, quantities, unit prices and extended totals. Invoices shall clearly
reference a unique invoice number on each invoice, and the date of the invoice.
Invoices shall include the" the "Amount/Hours of this Invoice," and the "Total
Amount/Hours Billed to Date". Invoices shall be submitted to:
Science Applications International Corporation
Attention: [*** Redacted]
0000 XXXX Xxxxx, [*** Redacted] McLean, VA 2210
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***Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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The Seller may request payment twice per month for all labor hours expended by
the Seller to accomplish the work specified in this subcontract. In no instance
shall the total number of labor hours for which payment has been requested for a
particular CLIN exceed the total amount set forth in the subcontract for that
CLIN. The Seller shall advise the Buyer in writing ninety days in advance of
reaching the 85% of the hours specified in any CLIN has been expended.
To support final payment for work performed, the Seller shall attach a
certification to the final payment indicating the total number of labor hours
expended for each CLIN during the period of contract performance.
If the Seller provides fewer than the number of hours set forth in Article 1.1
in performance of the work called for therein, the total subcontract price shall
be equitably decreased prior to payment. Failure of the parties to agree upon
the amount of decrease shall be resolved under the Disputes clause.
1.5 PAYMENT
(a) Payment terms will be NET 30 Days and paid within Thirty 30 Days
after receipt of a proper invoice or acceptance of work delivered or
services rendered by the Buyer, which ever occurs later, unless
otherwise specified in this subcontract. Payment shall be made upon
acceptance of any portion of the work delivered or rendered for
which a price is separately stated in the contract. Payment shall
not constitute final acceptance. Buyer may offset against any
payment hereunder any amount owed to Buyer by Seller.
1.6 WARRANTY
Seller represents and warrants (1) that the price charged for the goods and/or
services purchased pursuant hereto shall be no higher than Seller's current
price to any other customer for the same quality and quantity of such goods or
services; (2) that all goods and services delivered pursuant hereto will be new,
unless otherwise specified, and free from defects in material and workmanship;
(3) that all goods and services will conform to applicable specifications,
drawings, and standards of quality and performance, and that all items will be
free from defects in design and suitable for their intended purpose; (4) that
the goods covered by this order are fit and safe for consumer use, if so
intended. All representations and warranties of Seller together with its service
warranties and guarantees, if any, shall run to Buyer and Buyer's customers. The
foregoing warranties shall survive any delivery, inspection, acceptance, or
payment by Buyer. Not withstanding any of the foregoing, nothing in this
agreement obligates either party to provide any goods or services that exceed
the specifications set forth in the statement of work and the applicable terms
and conditions.
2.0 TECHNICAL AND CONTRACTUAL REPRESENTATIVES
The following authorized representatives are hereby designated for this
Subcontract:
SELLER: BUYER:
TECHNICAL: Xxxxx Xxxxx TECHNICAL: [*** Redacted]
CONTRACTUAL: Xxxxx Xxxxxxx CONTRACTUAL: [*** Redacted]
2.1 CONTACTS
Contacts with Buyer that affect the subcontract prices, schedule, statement of
work, and subcontract terms and conditions shall be made with the authorized
contractual representative. Except as expressly provided elsewhere herein, no
changes to this Subcontract shall be binding upon either party unless
incorporated in a written modification to the Subcontract and signed by both
parties contractual representative.
2.2 CHANGES
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***Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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Buyer may, by written notice to Seller at any time before complete delivery is
made under this subcontract, make changes within the general scope of this
subcontract in any one of the following: (a) drawings, designs, or
specifications; (b) quantity; (c) delivery; (d) method of shipment or routing;
and (e) make changes in the amount of Buyer furnished property. If any such
change causes a material increase or decrease in the cost of, or the time
required for the performance of any part of the work under this subcontract, the
Buyer shall make an equitable adjustment in the subcontract price or delivery
schedule, or both, and shall modify the subcontract. As a condition precedent to
any equitable adjustment, the Seller must notify Buyer in writing of any request
for adjustment within twenty (20) days from the date Seller receives notice from
Buyer of a change, or from the date of any act of Buyer that Seller considers to
constitute a change. Failure to agree to any adjustment shall be a dispute under
the Disputes clause of this subcontract. However, Seller shall proceed with the
work as changed without interruption and without awaiting settlement of any such
claim.
3.0 DISCLOSURE
Neither party shall disclose information concerning work under this Subcontract
to any third party, unless such disclosure is necessary for the performance of
that which is supported by this subcontract effort. No news releases, public
announcement, denial or confirmation of any part of the subject matter of this
Subcontract or any phase of any program hereunder shall be made by one party
without prior written consent of the other party, which consent shall not be
unreasonably withheld. The restrictions of this paragraph shall continue in
effect upon completion or termination of this Subcontract for such period of
time as may be mutually agreed upon in writing by the parties. In the absence of
a written established period, no disclosure is authorized. Failure to comply
with the provisions of this Clause may be cause for termination of this
subcontract.
4.0 KEY PERSONNEL
(a) For purposes of this clause, Buyer and Seller define "Key Personnel" as
those individuals who are mutually recognized as essential to the
successful completion and execution of this Subcontract.
(b) Personnel designated as "Key Personnel" shall be assigned to the extent
necessary for the timely completion of the task to which assigned. Any
substitution or reassignment involving Seller's "Key Personnel" assigned
to this work shall be made only with persons of equal abilities and
qualifications and is subject to prior approval of Buyer, in writing.
(c) Buyer reserves the right to direct the removal of any individual assigned
to this Subcontract. Such request shall not be unreasonably denied.
(d) Seller's Key Personnel are: XXXXX XXXXX, [*** Redacted], [*** Redacted]
5.0 ASSIGNMENTS AND SUBCONTRACTS
This Subcontract is not assignable and shall not be assigned by Seller without
the prior written consent of Buyer. Further, Seller agrees to obtain Buyer's
approval before subcontracting this order or any substantial portion thereof;
provided, however, that this limitation shall not apply to the purchase of
standard commercial supplies or raw materials.
6.0 INSURANCE
Without prejudice to Seller's liability to indemnify Buyer as stated in the
INDEMNIFICATION provision of this Agreement, Seller shall procure, at its
expense, and maintain for the duration of the Agreement, the insurance policies
described below with financially responsible insurance companies, reasonably
acceptable to Buyer, with policy limits not less than those indicated below.
Notwithstanding any provision contained herein, the Seller, and its employees,
agents, representatives, consultants and lower-tier subcontractors and
suppliers, are not insured by Buyer, and are not covered under any policy of
insurance that Buyer has obtained or has in place.
SPECIAL PROVISIONS APPLICABLE TO SELLER'S INSURANCE COVERAGE:
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***Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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1. Additional Insured - Seller shall have all policies, except Workers'
Compensation and Employer's Liability, endorsed to name Buyer as an
Additional Insured with respect to the work to be performed by the Seller.
2. Waiver of Subrogation - Seller shall have all policies endorsed to waive
the insurer's rights of subrogation in favor of Buyer.
3. Deductibles - Subject to the reasonable review and approval of Buyer, the
Seller may arrange deductibles or self-insured retention's as part of the
required insurance coverage's. However, it is expressly agreed that all
deductibles or self-insured retention's are the sole responsibility of the
Seller.
4. Adequacy of Insurance Limits - The insurance coverage limits stated below
are minimum coverage requirements, not limits of liability, and shall not
be construed in any way as Buyer's acceptance of responsibility of the
Seller.
5. Certificates of Insurance - Prior to commencement of any work under this
Agreement, the Seller shall furnish Buyer with Certificates of Insurance,
in a format acceptable to Buyer, evidencing the insurance coverage
required in this Agreement and containing the following information:
a. Identify Buyer as an "Additional Insured" with respect to all
policies except Workers' Compensation and employers' liability.
b. State that all policies have been endorsed to waive subrogation in
favor of Buyer.
c. State that the underwriters agree to provide Buyer with at least 30
days prior written notice of any cancellation or material change in
the coverage.
6. Work Within 50' of a Railroad - Exclusion deleted. (If applicable due to
performance of work within 50 feet of a railway)
6.1 COVERAGE
A. Workers' Compensation - Insurance for statutory obligations imposed by law
including, where applicable, coverage under United States Longshoremen's
and Harbor Workers' Act and Xxxxx Act. (if applicable, Defense Base Act
for those employees working on a U.S. Military installation outside of the
United States).
B. Employers Liability - Insurance with limits of $[*** Redacted] for bodily
injury by accident and $[*** Redacted] for bodily injury by disease,
including, if applicable, maritime coverage endorsement.
C. Commercial General Liability - (Standard ISO occurrence form) - including
products and completed operations coverage, full fire legal liability and
contractual liability, with a per occurrence limit of $[*** Redacted].
D. Business Auto Liability - Coverage for bodily injury and property damage
liability for all owned, hired or non-owned vehicles, with an each accident
limit of $[*** Redacted].
7.0 INDEMNIFICATION
(a) Each party (the Indemnifying Party) agrees to indemnify, defend and save
harmless the other party (the Indemnified Party) from and against any and
all liability for injury to persons or damage to or loss of property to
the extent caused by the negligent act or omission of the Indemnifying
Party, its lower-tier subcontractors, agents or employees, including any
and all expense and cost, legal or otherwise, incurred by the Indemnified
party in the defense of any claim, demand or action arising out of the
work performed under this Agreement; provided, however, that the
Indemnifying Party shall not be liable for injury to persons or damage to
or less of property caused by the sole negligence of the Indemnified
Party, its subcontractors, agents or employees.
(b) The Indemnified Party shall promptly notify the Indemnifying Party of any
claim, demand or action which is covered by this indemnification provision
and shall authorize representatives of the Indemnifying Party, at its sole
cost and expense, to settle or defend any such claim, demand or action and
to represent the Indemnified Party in, or to take charge of, any
litigation in connection therewith.
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***Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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8.0 INFRINGEMENT INDEMNITY
In lieu of any warranty by or Seller against infringement, statutory or
otherwise, it is agreed that Seller shall defend, at its expense, any suit
against Buyer or its customers to the extent it is based on a claim that
possession and use of a deliverable, or use of a service, is a direct
infringement of a copyright, trademark, or, a United States patent, and will pay
all damages awarded by a court of competent jurisdiction attributable to such
claim, provided that Buyer (i) provides prompt notice of the claim to Seller;
(ii) gives Seller sole control of the defense and settlement of the claim; (iii)
provides to Seller all reasonably available information, assistance, and
authority to defend; and (iv) has not compromised or settled such proceeding
without Seller's prior written consent. Seller's indemnity obligation under this
paragraph shall not extend to any claims arising out of (i) services which are
performed in accordance with specifications designated by Buyer; (ii) any
modification of a deliverable by Buyer without Seller's prior written approval;
(iii) use of a deliverable in a manner for which it was not designed; or (iv)
combination of a deliverable with hardware or software not provided by Seller in
a manner not intended for its use. In the event of any such claim, or if Seller
has a reasonable basis for believing that such a claim may be alleged, Seller
may, at its option, (i) modify the deliverable so that it is no longer
infringing but functionally equivalent; (ii) replace the deliverable with a
non-infringing but functionally equivalent replacement; (iii) obtain for Buyer
the rights necessary to use such deliverable at Seller's expense; or (iv) if
none of the foregoing is commercially practicable, terminate this Agreement and
refund the fees paid by Buyer for such infringing deliverable. Such termination
shall not affect Seller's other indemnity obligations under this Agreement.
B. Notwithstanding the foregoing paragraph, when this order is performed under
the Authorization and Consent of the U.S. Government to infringe U.S. Patents,
Seller's liability for infringement of such Patents in such performance shall be
limited to the extent of the obligation of Buyer to indemnify the U.S.
Government.
C. Buyer will defend, at its expense, any legal proceeding brought against
Seller to the extent it is based on a claim that possession and use of any
Buyer-provided information, as provided by Buyer and used by Seller as intended
by Buyer, is a direct infringement of a copyright, trademark, or, to Buyer's
knowledge, a United States patent, and will pay all damages awarded by a court
of competent jurisdiction attributable to such claim, provided that Seller (i)
provides prompt notice of the claim to Buyer; (ii) gives Buyer sole control of
the defense and settlement of the claim; (iii) provides to Buyer all available
information, assistance, and authority to defend; and (iv) has not compromised
or settled such proceeding without Buyer's prior written consent.
9.0 PROPRIETARY INFORMATION, TOOLS, MATERIALS, ETC.
(a) Either party agrees it will keep confidential and not use any material,
jigs, dies, fixtures, molds, patterns, taps, gauges, other equipment,
designs, sketches, specifications, drawings, computer programs and
software, financial data, employee lists and rates or other information
furnished by other party for any purpose whatsoever other than as herein
specified. All materials, jigs, dies, fixtures, molds, patterns, taps,
gauges, other equipment, designs, sketches, specifications, drawings,
computer programs and software, financial data, employee lists and rates
or other data or information furnished by a party, whether loaned to the
other party or fabricated, manufactured, purchased, or otherwise acquired
by a party for the performance of this Subcontract and specifically
charged to a party are the property of that party. They are to be marked
for identification as each party may designate, and upon completion or
termination of this Subcontract shall be returned to the owner in good
condition, reasonable wear only excepted, together with all spoiled and
surplus material, unless otherwise directed in writing by the owner. Each
party agrees to replace, at its expense, all such items not so returned.
Each party shall make no charge for any storage, maintenance or retention
of such property of other party. Each party shall bear all risk of loss
for all the other party's property in its possession.
Rights and obligations as amended under this clause is subject to the data
rights of the prime contract as a flow down provision.
(b) If Buyer furnishes any material for fabrication hereunder, Seller agrees:
(i) not to substitute any other material in such fabrication without
Buyer's prior written consent, (ii) that title to such material shall not
be affected by incorporation in or attachment to any other property; and
(iii) to state and warrant on its packing sheet and invoice for final
parts: "All materials furnished by Buyer on this order (except that which
becomes normal industrial waste or was replaced at Seller's expense) has
been returned in the form of parts or held as unused material for Buyer's
disposition."
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10.0 DISPUTES
Any dispute not disposed of in accordance with the "Disputes Clause" of Schedule
B, if any, shall be determined in the following manner.
(a) Buyer and Seller agree to enter into Negotiation to resolve any dispute.
Both parties agree to negotiate in good faith to reach a mutually
agreeable settlement within a reasonable amount of time.
(b) If negotiations are unsuccessful, Buyer and Seller agree to enter into
binding Arbitration. The American Arbitration Association (AAA) Commercial
Arbitration Rules ( most recent edition ) are to govern this Arbitration.
The Arbitration shall take place in the County of San Diego, State of
California. The Arbitrator shall be bound to follow the applicable
subcontract provisions and California law in adjudicating the dispute. It
is agreed by both parties that the Arbitrator's decision is final, and
that no party may take any action, judicial or administrative, to overturn
this decision. The judgment rendered by the Arbitrator may be entered in
any court having jurisdiction thereof.
Pending any decision, appeal or judgment referred to in this provision or
the settlement of any dispute arising under this Subcontract, each party
shall proceed diligently with the performance of this Subcontract.
11.0 DEFAULT
(a) The Buyer may, by written notice of default to the Seller, terminate the
whole or any part of this Subcontract in any one of the following
circumstances: (i) if Seller fails to perform the work under the contract
within the time specified in this contract or any extension; or (ii) if
Seller fails to Prosecute the work so as to endanger performance of this
contract; or (iii) perform any of the other provisions of this Subcontract
in accordance with its terms, and in either of these two circumstances
does not cure such failure within a period of 10 days (or such longer
period as Buyer may authorize in writing) after receipt of notice from the
Buyer specifying such failure; or (iv) Seller becomes insolvent or the
subject of proceedings under any law relating to bankruptcy or the relief
of debtors or admits in writing its inability to pay its debts as they
become due.
(b) If this Subcontract is so terminated, Buyer may procure or otherwise
obtain, upon such terms and in such manner as Buyer may deem appropriate,
supplies or services similar to those terminated, Seller, subject to the
exceptions set forth below, shall be liable to Buyer for any excess costs
of such similar supplies or services.
(c) Seller shall transfer title and deliver to Buyer, in the manner and to the
extent requested in writing by Buyer at or after termination such complete
articles, partially completed articles and materials, parts, tools, dies,
patterns, jigs, fixtures, plans, drawings, information and contract rights
as Seller has produced or acquired for the performance of the terminated
part of this Subcontract, and Buyer will pay Seller the contract price for
complete articles delivered to and accepted by Buyer and the fair value of
the other property of Seller so requested and delivered.
(d) Seller shall continue performance of this Subcontract to the extent not
terminated. Buyer shall have no obligations to Seller with respect to the
terminated part of this Subcontract except as herein provided. In case of
Seller's default, Buyer's rights as set forth herein shall be in addition
to Buyer's other rights although not set forth in this Subcontract.
(e) Seller shall not be liable for damages resulting from default due to
causes beyond the Seller's control and without Seller's fault or
negligence, provided, however, that if Seller's default is caused by the
default of a subcontractor or supplier, such default must arise out of
causes beyond the control of both Seller and subcontractor or supplier,
and without the fault or negligence of either of them and, provided
further, the supplies or services to be furnished by the subcontractor or
supplier were not obtainable from other sources.
12.0 INTELLECTUAL PROPERTY
(a) The Parties shall each retain ownership of and all right, title and
interest in and to their respective pre-existing Intellectual
Property (as that term is defined in Article 4(c) below), and no
license or right to use therein, whether express or implied, is
granted by this Subcontract or as a result of the work performed by
either Party
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hereunder or in pursuit hereof. To the extent the Parties wish to
grant to the other rights or interests in pre-existing Intellectual
Property, separate license agreements on mutually acceptable terms
will be executed.
(b) For all Intellectual Property developed under this Subcontract by
the Parties (hereinafter referred to as "Collaboration Intellectual
Property"), all Nanotechnology Related Collaboration Intellectual
Property shall be solely owned by Seller, regardless of
inventorship. For purposes of this Subcontract, "Nanotechnology
Related Collaboration Intellectual Property" is Intellectual
Property in [*** Redacted] nanomaterials having at least
[*** Redacted] of [*** Redacted], including [*** Redacted] of such
materials, composites including such materials, nano to macro world
interface technology for such materials, and the fabrication and
processing of such materials. All non-Nanotechnology Related
Collaboration Intellectual Property such as systems, use, and
applications shall be owned according to U.S. laws of intellectual
property inventorship and ownership with Collaboration Intellectual
Property that is solely conceived by the employees, agents or
contractors of one Party being solely owned by that Party with all
rights appurtenant thereto, and with non-Nanotechnology related
Collaboration Intellectual Property that is jointly conceived by the
employees, agents or contractors of both Parties being jointly
owned, with all joint rights appurtenant thereto and without
obligation to obtain consent or account to the other Party to
exploit, license or transfer jointly owned Intellectual Property.
(c) As used herein the term "Intellectual Property" shall mean patents,
copyrights, trade marks, trade names, inventions (whether or not
patentable), works of authorship, trade secrets, techniques,
know-how, ideas, concepts, algorithms and all other forms of
intellectual property rights. As used herein the term "pre-existing
Intellectual Property" means any Intellectual Property previously
conceived, developed or reduced to tangible medium as demonstrated
by written documentation.
(d) Notwithstanding anything contained above in sub-paragraphs (a), (b)
or (c), Seller hereby grants to Buyer only such license rights
necessary in any and all Intellectual Property created by or
developed under this Subcontract solely in order to allow Buyer to
provide to its customer, the [*** Redacted], all Intellectual
Property rights required by such customer under all relevant FAR
clauses incorporated in the Prime Contract identified at the
beginning of this Subcontract.
13.0 GENERAL RELATIONSHIP
The Subcontractor is not an employee of SAIC for any purpose whatsoever. Seller
agrees that in all matters relating to this Subcontract it shall be acting as an
independent contractor and shall assume and pay all liabilities and perform all
obligations imposed with respect to the performance of this Subcontract. Seller
shall have no right, power or authority to create any obligation, expressed or
implied, on behalf of Buyer and/or the Government and shall have no authority to
represent Buyer as an agent.
14.0 NON-WAIVER OF RIGHTS
The failure of either party to insist upon strict performance of any of the
terms and conditions in the Subcontract, or to exercise any rights or remedies,
shall not be construed as a waiver of its rights to assert any of the same or to
rely on any such terms or conditions at any time thereafter. The invalidity in
whole or in part of any term or condition of this subcontract shall not affect
the validity of other parts hereof.
15.0 APPLICABLE STATE LAW AND COMPLIANCE
This Subcontract shall be governed by and construed in accordance with the laws
of the State of California. Seller agrees to comply with the applicable
provisions of any federal, state or local law or ordinance and all orders, rules
and regulations issued there under.
15.0 REPRESENTATIONS OF REQUIRED FLOW DOWNS
Buyer hereby represents and warrants that all Government acquisition regulations
(FARs, DFARs, NFARs, or acquisition regulations of a specific agency) referenced
herein as being applicable to this Subcontract to the best of our knowledge are
those acquisition regulations that are required to be applied to subcontracts
under Buyer's Prime Contract, and that no
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***Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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acquisition regulations that are required by Buyers' prime contract to be
applied to this Subcontract are omitted herefrom. Buyer and Seller further agree
that to the extent an acquisition regulation is referenced herein, but is not
required to be applied to this Subcontract under Buyer's Prime Contract, that
Seller is under not obligation with respect to such acquisition regulation
merely by virtue of its inclusion or reference herein.
16.0 EXPORT CONTROL COMPLIANCE FOR FOREIGN PERSONS
The subject technology of this Subcontract (together including data, services,
and hardware provided hereunder) may or may not be controlled for export
purposes under the International Traffic in Arms Regulations (ITAR) controlled
by the U.S. Department of State or the Export Administration Regulations ("EAR")
controlled by the U.S. Department of Commerce. ITAR controlled technology may
not be exported without prior written authorization and certain EAR technology
requires a prior license depending upon its categorization, destination,
end-user and end-use. Exports or re-exports of any U.S. technology to [any
destination under U.S. sanction or embargo are forbidden.
Access to certain technology ("Controlled Technology") by Foreign Persons
(working legally in the U.S.), as defined below, may require an export license
if the Controlled Technology would require a license prior to delivery to the
Foreign Person's country of origin. SELLER is bound by U.S. export statutes and
regulations and shall comply with all U.S. export laws. SELLER shall have full
responsibility for obtaining any export licenses or authorization required to
fulfill its obligations under this Subcontract.
SELLER hereby certifies that all SELLER employees who have access to the
Controlled Technology are U.S. citizens, have permanent U.S. residency or have
been granted political asylum or refugee status in accordance with 8 U.S.C.
1324b(a)(3). Any non-citizens who do not meet one of these criteria are "Foreign
Persons" within the meaning of this clause but have been authorized under export
licenses to perform their work hereunder.
17.0 ORDER OF PRECEDENCE
The documents listed below are hereby incorporated by reference. In the event of
an inconsistency or conflict between or among the provisions of this
Subcontract, the inconsistency shall be resolved by giving precedence in the
following order:
1. Attachment I: Statement of Work and Schedule dated 1/18/04.
2. Schedule A: Specific Terms and Conditions Form 0-000-000 (Rev. 9/19/03).
3. Schedule B: Part I U.S. Government Terms and Conditions Form 0-000-000 (Rev.
7/1/02). And [*** Redacted] clauses
4. IP Rights Form dated 7/1/04.
----------
***Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
Page 9 of 10
18.0 ENTIRE AGREEMENT
The parties hereby agree that this Subcontract, including all documents
incorporated herein by reference, shall constitute the entire agreement and
understanding between the parties hereto and shall supersede and replace any and
all prior or contemporaneous representations, agreements or understandings of
any kind, whether written or oral, relating to the subject matter hereof.
In witness whereof, the duly authorized representatives of Buyer and the Seller
have executed this Subcontract on the Dates shown.
SELLER: BUYER:
NANOSYS, INC. SCIENCE APPLICATIONS INTERNATIONAL
CORPORATION
/s/ Xxxxxxx Xxxxxx /s/ [*** Redacted]
------------------------------------------- ----------------------------------
(Signature) (Signature)
NAME: XXXXXXX XXXXXX NAME: [*** Redacted]
------------------------------------------- ----------------------------------
(Type or Print) (Type or Print)
TITLE: VICE PRESIDENT, INTELLECTUAL PROPERTY TITLE: SENIOR SUBCONTRACT
ADMINISTRATOR
DATE: JULY 9, 2004 DATE: JULY 9, 2004
----------
***Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
Page 10 of 10
[*** REDACTED] NANO-COMPOSITE SOLAR CELL UNIT PROTOTYPE DEVELOPMENT PROGRAM
SUBCONTRACTOR STATEMENT OF WORK (SOW)
A. SCOPE
The proposed effort's scope covers the development and testing of prototype
nano-composite solar cells over a five-year period. The base phase provides for
the first year. Pending satisfactory incremental technical success (improving
solar cell efficiencies), contractor programmatic performance and government
availability of funds, additional years (options 1-4) will be activated.
Significant increases in laboratory efficiencies of nano-composite solar cells
will be achieved, and independent laboratory testing will be conducted to
demonstrate these major milestones:
1. A [*** Redacted]% efficient demonstration cell by the end of the first
year.
2. A [*** Redacted]% efficient demonstration cell by the end of the second
year.
3. A [*** Redacted]% efficient demonstration cell by the middle of the fourth
year.
4. A [*** Redacted]% efficient demonstration cell by the end of the fifth
year.
The year 2009 goal is [*** Redacted]% efficiency ([*** Redacted] state of the
art).
In addition, independent laboratory testing is required to document radiation
and thermal effects of representative space environments. Given the proprietary
nature of the nano-composite cell, members of Nanosys may accompany the cells to
the independent test facility and be present for these power conversion
efficiency and radiation and thermal effects tests.
A four-part approach to technical development is proposed to achieve these
milestones:
1. Continuation of strategies initiated in the proof-of-concept effort
supported by [*** Redacted] ([*** Redacted]) Director's Innovation
Initiative (DII) program to optimize the power conversion efficiencies in
a [*** Redacted];
2. Addressing all issues associated with incorporating [*** Redacted] into a
solar cell;
3. Assessment of engineering parameters required to ensure long-term
operation of nano-composite solar cell devices, and development of
strategies for [*** Redacted] the devices;
4. Establishment of final nano-composite solar cell requirements for their
integration into [*** Redacted] systems.
The proposed Work Breakdown Structure (WBS) in Figure 1 is built on this
approach to technical development of the nano-composite solar cells. In addition
to development, the WBS contains tasks for integration, testing and
demonstration, and management, which is necessary to ensure proper allocation of
resources, management of risk, and reporting visibility.
FIGURE 1. PROPOSED WORK BREAKDOWN STRUCTURE
1.0 Development
1.1 [*** Redacted] Cell Optimization
1.1.1 Polymer optimization
1.1.2 Nanocrystal shape, size, material
1.1.3 Nanocrystal [*** Redacted]
1.1.4 Charge transfer
1.1.4.1 [*** Redacted] levels
1.1.4.2 [*** Redacted]
----------
***Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
Page 1 of 6
1.1.4.3 Electrodes
1.1.4.4 [*** Redacted]
1.2 [*** Redacted] Cell Optimization
1.2.1 Cell absorption profile optimization
1.2.2 Charge transfer optimization
1.2.2.1 [*** Redacted]
1.2.2.2 Electrode pinouts
1.3 Device [*** Redacted]
1.3.1 [*** Redacted]
1.3.2 [*** Redacted]
1.3.3 [*** Redacted]
1.3.4 [*** Redacted]
2.0 Integration
2.1 Requirements
2.2 Modeling and Simulation
2.3 System Design
2.4 Cost Estimation
3.0 (A) Test and Demonstration - Power Conversion Efficiency
3.1 Nanosys Testing
3.2 Independent Testing/Milestone Demonstrations
3.0 (B) Test and Demonstration - [*** Redacted] Effects
3.3 Independent Testing/Milestone Demonstrations
4.0 Management
4.1 Program Oversight
4.2 Schedule
4.3 Technical/Cost Risk Management
4.4 Reviews
4.5 Documentation and Reporting
Deliverables for the project are shown in Table 1 and discussed in further
detail in the task descriptions below.
TABLE 1. PROJECT DELIVERABLES AND DELIVERY SCHEDULE
1. Monthly Status Bulleted lists of activities and corresponding 15 days following reporting period
Reports photographs and figures should be provided in
electronic form (MS Word or Powerpoint).
2. Demonstration Prototype cell will be delivered to independent lab end of first contract year
([*** Redacted]% for efficiency testing. Prototype cell will be
Efficient Cell) delivered to independent lab for [*** Redacted]
testing. Pre-test results, including data,
photographs, and figures should be provided in
electronic form (MS Word or Powerpoint).
3. Demonstration Prototype cell will be delivered to independent lab end of second contract year
([*** Redacted]% for efficiency testing. Prototype cell will be
Efficient Cell) delivered to independent lab for [*** Redacted]
testing. Pre-test results, including data,
photographs, and figures should be provided in
electronic form (MS Word or Powerpoint).
4. Demonstration Prototype cell will be delivered to independent lab middle of fourth contract year
([*** Redacted]% for efficiency testing. Prototype cell will be
Efficient Cell) delivered to independent lab for [*** Redacted]
testing. Pre-test results, including data,
photographs, and figures should be provided in
electronic form (MS Word or Powerpoint).
5. Demonstration Prototype cell will be delivered to independent lab end of fifth contract year
([*** Redacted]% for efficiency testing. Prototype cell will be
Efficient Cell) delivered to independent lab for [*** Redacted]
testing. Pre-test results, including data,
photographs, and figures should be provided in
electronic form (MS Word or Powerpoint).
----------
***Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
Page 2 of 6
In addition to the above deliverables, the subcontractor will be requested to
provide review of major task deliverables to [*** Redacted], including Annual
Reports, Demonstration Reports, Draft Final Project Report, and Final Project
Report.
B. TASK/TECHNICAL REQUIREMENTS
Major tasks (first and second level WBS) that will be performed to successfully
accomplish the proposed objectives are described below.
TASK 1.0 - DEVELOPMENT
1.1 [*** Redacted] Cell Optimization
Optimization of the [*** Redacted] efficiency will be accomplished by
addressing the various loss mechanisms affecting cell performance through
development of the nano-composite layer and the device architecture. In
this task, we will address the [*** Redacted], [*** Redacted], [***
Redacted], and [*** Redacted] and [*** Redacted] efficiency through
improvements in the nanocrystal design (material type, size, and shape),
composite formation, [*** Redacted], [*** Redacted] control and [***
Redacted].
1.2 [*** Redacted] Cell Optimization
[*** Redacted] devices will be extended into a [*** Redacted] design to
harness gains in cell efficiencies. The optimal device architecture and
nanomaterial components of the various [*** Redacted] will be determined
through modeling and simulations of the light absorption and current
matching. In fabricating [*** Redacted] devices, methods for [***
Redacted] of the device [*** Redacted] will be developed, such that the
functionality of the [*** Redacted] is unaffected by the [*** Redacted] of
the [*** Redacted].
1.3 Device Packaging
Packaging of a nano-composite solar cell device is critical for ensuring
its long-term stability and lifetime in the [*** Redacted]. This task will
encompass modeling of the [*** Redacted] environments that such a device
would experience in a [*** Redacted]. Strategies based on [*** Redacted],
and careful [*** Redacted] properties, for example, will be developed and
tested based on the modeling results. The final packaging approach will
also be evaluated to ensure that the other advantageous properties of [***
Redacted] low cost, etc. of the cells are maintained.
TASK 2.0 - INTEGRATION
Support system integration to ensure that the overall power source developed
will meet the requirements of [*** Redacted]. The feedback generated by
monitoring performance in a complete system will permit design of a strategy for
full production of maximum efficiency solar cells for [*** Redacted]. The
feedback generated by monitoring the performance of a complete system will
provide the tools necessary for later development of a design strategy for
future production of maximum efficiency solar cells for [*** Redacted].
2.1 Requirements
Support functional analysis to define system requirements for supporting
mission goals and to allocate requirements to hardware elements. Support a
system level tradeoff analyses to optimize performance with respect to
cost.
-----------
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commision. Omitted portions
have been filed separately with the Commission.
Page 3 of 6
2.2 Modeling and Simulation
Support extension of the existing device model to include experimental
performance data and theoretical computational results arising from the
technical development tasks performed in the course of the work outlined
in this proposal. In particular, the resultant cell model will incorporate
improved submodels resulting from the [*** Redacted] and [*** Redacted]
cell optimization tasks (Tasks 1.1 and 1.2) through quantum mechanical
calculations of [*** Redacted] and [*** Redacted] and properties, [***
Redacted] and performance estimates of engineering methods for [***
Redacted], [*** Redacted], electrical interfaces, and scale dependencies.
An associated device model will also incorporate work performed under the
device packaging subtask (Task 1.3) involving device performance
parameters including: [*** Redacted]; application and performance of [***
Redacted]; and device properties such as [*** Redacted] and cost. This
model will permit evaluation, optimization, and system trade-offs of new
devices, the comparison of new devices to baseline devices, as well as to
fielded and developing devices based on other technologies. Finally, the
models will incorporate the results of all tests and demonstrations
performed under Task 3 in the proposed SOW.
2.3 Device Design
Support a system analyses to incorporate the models developed under Task
2.2 and the system requirements elucidated under Task 2.1. Results of
these analyses and actual device performance assessment will result in the
development and analysis of functional interfaces between device elements
to support technical integration and to ensure compatibility as newer
versions of the device are developed. Support analysis of functional
interfaces between system elements and support technical integration to
ensure compatibility. A configuration control process for for
nano-composite solar cell Program will be established and must be
followed.
2.4 Feasibility and Follow-On
Support documentation of lessons learned for the prototype device
development undertaken in the proposed program will be incorporated with
the device performance evaluations, optimizations, and system trade-offs,
so that a consistent picture of design dependence on development process
and device scale will be available.
TASK 3.0 (A) - TEST AND DEMONSTRATION - POWER CONVERSION EFFICIENCY
3.1 Nanosys Testing
Conduct testing at Nanosys facility during development to document
progress and ensure cell readiness for independent lab testing and
milestone efficiency demonstrations.
3.2 Independent Testing/Milestone Demonstrations
Demonstration of conversion efficiencies in a laboratory environment per
the milestones and schedule outlined above is required. The subcontractor
shall make the nano-composite cells available for independent testing and
confirmation of conversion efficiencies. Given the proprietary nature of
the nano-composite cell, members of Nanosys may accompany the cells to the
independent test facility and be present for such testing.
In addition, the subcontractor shall support the preparation of a Detailed
Test Plan for each phase, selected electronic systems and components to be
designed, demonstrated
--------
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commision. Omitted portions
have been filed separately with the Commission.
Page 4 of 6
and tested. For each phase, the Detailed Test Plans will clearly specify
the test objectives, requirements, and entrance and exit criteria for each
system to be tested. Based on these criteria, specific critical
operational issues (COIs), measures of effectiveness (XXXx), and measures
of performance (MOPs) will be developed which, in turn, will determine
specific data collection requirements.
TASK 3.0 (B) - TEST AND DEMONSTRATION - [*** Redacted]
3.3 Independent Testing/Milestone Demonstrations
Demonstration of [*** Redacted] and [*** Redacted] in a laboratory
environment per the milestones and schedule outlined above is required.
The subcontractor shall make the nano-composite cells available for
independent testing to gather data on [*** Redacted] and [*** Redacted].
Given the proprietary nature of the nano-composite cell, members of
Nanosys may accompany the cells to the independent test facility and be
present for such testing.
In addition, the subcontractor shall support the preparation of a Detailed
Test Plan for each phase, selected electronic systems and components to be
designed, demonstrated and tested. For each phase, the Detailed Test Plans
will clearly specify the test objectives, requirements, and entrance and
exit criteria for each system to be tested. Based on these criteria,
specific critical operational issues (COIs), measures of effectiveness
(XXXx), and measures of performance (MOPs) will be developed which, in
turn, will determine specific data collection requirements.
TASK 4.0 - MANAGEMENT
The activities outlined in this proposal will be coordinated through an
effective overall management effort that will ensure that all the individual
tasks are coordinated and are completed on schedule and within budget. The
project will also leverage the knowledge and experience of [*** Redacted] and
its contractors, as well as other external laboratories and agencies, such as
AFRL. This interface will be accomplished through the establishment of and
participation in information exchange forums such as working groups, and annual
and topical workshops for the classified and unclassified communities.
4.1 Program Oversight
Support functions necessary for the efficient management of all
administrative aspects of this contract and shall perform all necessary
tasks for researching, developing, and demonstrating a prototype
nano-composite solar cell. This may include development of a Program
Management Plan which will serve as a road map for accomplishing a
balanced development program. The plan shall contain a management section
that will describe the management approach and organization; identify the
principal investigator for each phase and key supporting personnel
contributing to the program; summarize the individual tasks to be
accomplished and estimate the resources required for each task.
4.2 Schedule
Support all tasks necessary for contract administration, technical, and
cost control reporting requirements.
4.3 Technical/Cost Risk Management
------------
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commision. Omitted portions
have been filed separately with the Commission.
Page 5 of 6
Support preparation of a Risk Management Plan, which will identify and
track risk drivers, establish risk abatement plans, and provide for
continuous risk assessment throughout the program.
4.4 Reviews
The subcontractor shall support and participate in program review meetings
to be held annually and at project completion, at a minimum. At customer
direction, there may be up to two additional status reviews and one
additional program review meeting per year. The subcontract shall also
participate in up to two design review meetings per year.
4.5 Documentation and Reporting
Support the technical documentation of the detailed specifications,
requirements and design criteria for the Nano-composite solar cell
Program. Support preparation of briefings and materials to support
Nano-composite solar cell Program presentations to senior officials in DOD
and other government agencies on subjects pertaining to Nano-composite
solar cell systems engineering and integration activities, demonstrations,
and system designs. Support preparation and review of reports, white
papers, talking points, and other materials.
Page 6 of 6
[SAIC LOGO]
SCHEDULE B - U.S. GOVERNMENT TERMS AND CONDITIONS
Applicable to all U.S. Government subcontracts
PART I - FAR CLAUSES
1. DEFINITIONS
In all such clauses, unless the context of the clause requires otherwise, the
term "Contractor" shall mean Seller, the term "Contract" shall mean this Order,
and the terms "Government," "Contracting Officer" and equivalent phrases shall
mean Buyer and Buyer's Purchasing Representative, respectively. It is intended
that the referenced clauses shall apply to Seller in such manner as is necessary
to reflect the position of Seller as a subcontractor to Buyer, to insure
Seller's obligations to Buyer and to the United States Government, and to enable
Buyer to meet its obligations under its Prime Contract or Subcontract.
The following definitions apply unless otherwise specifically stated:
"Buyer" - the legal entity issuing this Order.
"Purchasing Representative" - Buyer's authorized representative.
"Seller" - the legal entity which contracts with the Buyer.
"This Order" - this contractual instrument, including changes.
"Prime Contract" - the Government contract under which this Order is issued.
"FAR" - the Federal Acquisition Regulation.
2. IDENTIFICATION OF CONTRACT NUMBERS
Government contract numbers shown on this Order shall be included in
subcontracts and purchase orders issued by Seller hereunder.
3. DISPUTES
(a) Notwithstanding any provisions herein to the contrary:
(1) If a decision relating to the Prime Contract is made by the
Contracting Officer and such decision is also related to this Order,
said decision, if binding upon Buyer under the Prime Contract shall
in turn be binding upon Buyer and Seller with respect to such
matter; provided, however, that if Seller disagrees with any such
decision made by the Contracting Officer and Buyer elects not to
appeal such decision, Seller shall have the right reserved to Buyer
under the Prime Contract with the Government to prosecute a timely
appeal in the name of Buyer, as permitted by the contract or by law,
Seller to bear its own legal and other costs. If Buyer elects not to
appeal any such decision, Buyer agrees to notify Seller in a timely
fashion after receipt of such decision and to assist Seller in its
prosecution of any such appeal in every reasonable manner. If Buyer
elects to appeal any such decision of the Contracting Officer, Buyer
agrees to furnish Seller promptly with a copy of such appeal. Any
decision upon appeal, if binding upon Buyer, shall in turn be
binding upon Seller. Pending the making of any decision, either by
the Contracting Officer or on appeal, Seller shall proceed
diligently with performance of this Order.
(2) If, as a result of any decision or judgment which is binding upon
Seller and Buyer, as provided above, Buyer is unable to obtain
payment or reimbursement from the Government under the Prime
Contract for, or is required to refund or credit to the Government,
any amount with respect to any item or matter for which Buyer has
reimbursed or paid Seller, Seller shall, on demand, promptly repay
such amount to Buyer. Additionally, pending the final conclusion of
any appeal hereunder, Seller shall, on demand, promptly repay any
such amount to Buyer. Buyer's maximum liability for any matter
connected with or related to this Order which was properly the
subject of a claim against the Government under the Prime Contract
shall not exceed the amount of Buyer's recovery from the Government.
(3) If this Order is issued by Buyer under a Government Subcontract
rather than a Prime Contract, and if Buyer has the right under such
Subcontract to appeal a decision made by the Contracting Officer
under the Prime Contract in the name of the Prime Contractor (or if
Buyer is subject to any arbitrator's decision under the terms of its
subcontract), and said decision is also related to this Order, this
Disputes Clause shall also apply to Seller in a manner consistent
with its intent and similar to its application had this Order been
issued by Buyer under a Prime Contract with the Government.
Page 1 of 5
[SAIC LOGO]
(4) Seller agrees to provide certification that data supporting any
claim made by Seller hereunder is made in good faith and that the
supporting data is accurate and complete to the best of Seller's
knowledge or belief, all in accordance with the requirements of the
Contract Disputes Act of 1978 (41USC601-613) and implementing
regulations. If any claim of Seller is determined to be based upon
fraud or misrepresentation, Seller agrees to defend, indemnify and
hold Buyer harmless for any and all liability, loss, cost or expense
resulting therefrom.
(b) Any dispute not addressed in paragraph (a) above, will be subject to the
disputes clause of Schedule A of this subcontract agreement.
4. OTHER GOVERNMENT PROCUREMENT
Nothing contained herein shall be construed as precluding the Seller from
producing items for direct sale to the Government, utilizing therefore all
hardware and/or software, including designs, drawings, engineering data or other
technical or proprietary information furnished Seller by Buyer, provided the
Government has the unrestricted right to permit the use thereof for such
purpose.
5. INDEMNIFICATION - COST OR PRICING DATA - COST ACCOUNTING STANDARDS
Seller agrees to indemnify and hold Buyer harmless to the full extent of any
cost or price reduction effected by Buyer's customer, which may result from (i)
certified cost or pricing data submitted by Seller or its lower-tier
subcontractors which is not accurate, current or complete as certified by
Seller; (ii) the failure by Seller or its lower-tier subcontractors to disclose
and consistently follow applicable cost accounting practices and standards or
otherwise comply with pertinent parts of the FAR, applicable agency supplements
thereto, and regulations promulgated by the Cost Accounting Standards Board.
6. TERMINATION FOR CONVENIENCE
The Buyer may terminate performance of work under this subcontract in whole, or
in part if the Purchasing Representative determines that a termination is in the
Buyer's interest. The Buyer shall terminate by delivering to the Seller a Notice
of Termination specifying the extent of termination and the effective date. If
this is a Fixed Price subcontract, the termination will be in accordance with
FAR 52.249-2 and FAR 52.249-4. If this is a Cost Reimbursable subcontract, the
termination will be in accordance with FAR 52.249-6. If this is a Cost
Reimbursement subcontract for Educational or Other Nonprofit Institutions, then
termination will be in accordance with FAR 52.249-5.
7. GOVERNMENT PROPERTY
Seller shall comply with the Government Property requirements contained in FAR
clause 52.245-2 if this is a fixed priced contract and FAR clause 52.245-5
(substituting 52.245-2 subparagraph (g) for 52.245-5 subparagraphs (g) (1), (2),
and (3) if this is a cost reimbursement contract.
8. CONTRACT COST PRINCIPLES AND PROCEDURES
Seller agrees that to the extent applicable, costs allocated to this contract
shall be in full compliance with Subpart 31.2 of FAR (Subpart 31.3 for
Educational Institutions) and the applicable agency supplements thereto, if any,
set forth in Part II hereof. In the event such compliance is not maintained,
Seller agrees to compensate Buyer to the full extent of any prices or costs,
including any penalties or interest, which are determined by Buyer's customer to
be unallowable or unreasonable or not allocable, under Buyer's contract with its
customer.
9. FAR CLAUSES APPLICABLE TO THIS ORDER
The clauses in FAR Subpart 52.2 referenced in subparagraph (a), the clauses
applicable at the dollar thresholds in subparagraph (b), and those clauses
referenced and checked in subparagraph (c) below, in effect on the date of this
Order, are incorporated herein and made a part of this Order. To the extent that
an earlier version of any such clause is included in the Prime Contract or
Subcontract under which this Order is issued, the date of the clause as it
appears in such Prime Contract or Subcontract shall be controlling and said
version shall be incorporated herein.
Page 2 of 5
[SAIC LOGO]
(a) The following clauses are applicable to this Order:
Clause # & FAR Ref. Title of Clause
--------------- ---------------
52.203-3 Gratuities
52.211-5 Material Requirements
52.211-15 Defense Priority and Allocation Requirements
52.222-1 Notice to the Government of Labor Disputes
52.222-26 Equal Opportunity (Only Paragraphs (b)(1) through (b)(11)
52.223-3 Hazardous Material Identification and Material Safety Data
52.225-13 Restrictions on Certain Foreign Purchases
52.229-3 Federal, State, and Local Taxes
(b) The following clauses are applicable to this Order at the indicated dollar
values:
Clause # & FAR Ref. Title of Clause
------------------ -----------------
52.203-5 Covenant Against Contingent Fees* (*if order exceeds $50,000)
52.203-6 Restrictions on Subcontractor Sales to the Government*
(*if order exceeds $100,000)
52.203-7 Anti-Kickback Procedures* (*if order exceeds $100,000)
52.203-8 Cancellation, Rescission, and Recovery of Funds for Illegal or Improper Activity
52.203-10 Price or Fee Adjustment for Illegal or Improper Activity * (*If order exceeds
$50,000)
52.203-11 Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions*
(*if order exceeds or is expected to exceed $100,000)
52.203-12 Limitation on Payments to Influence Certain Federal Transactions*
(*if order exceeds or is expected to exceed $100,000)
52.209-6 Protecting the Governments Interest when Subcontracting with Contractors Debarred,
Suspended, or Proposed for Debarment*
(*if Order exceeds $25,000)
52.215-2 Audit and Records-Negotiation* (*if Order exceeds $50,000)
52.219-8 Utilization of Small Business Concerns* (*if Order exceeds $100,000)
52.219-9 Small Business Subcontracting Plan*
(*if Subcontract exceeds or is expected to exceed $500,000)
52.222-4 Contract Work Hours & Safety Standards Act - Overtime Compensation*
(*if Order exceeds $100,000)
52.222-35 Affirmative Action for Disabled Veterans & Veterans of the Vietnam Era*
(*if Order exceeds $10,000)
52.222-36 Affirmative Action for Workers with Disabilities*
(*if Order exceeds $2,500)
52.222-37 Employment Reports on Special Disabled Veterans and Veterans of the Vietnam Era*
(*if Order exceeds $10,000)
52.227-2 Notice and Assistance Regarding Patent and Copyright Infringement*
(*if Order exceeds $50,000)
52.246-16 Responsibility for Supplies* (*if order exceeds $50,000)
52.247-63 Preference for U.S. Flag Air Carriers* (*if order exceeds $50,000)
Page 3 of 5
[SAIC LOGO]
(c) The following clauses are applicable to this Order if checked:
Clause # & FAR Ref. Title of Clause
------------------ ----------------
X 52.204-4 Printing/Copying Double Sided on Recycled Paper
X 52.215-10 Price Reduction for Defective Cost or Pricing Data
X 52.215-12 Subcontractor Cost or Pricing Data
X 52.215-15 Pension Adjustments and Asset Reversions
X 52.215-18 Reversion or Adjustment of Plans for Post-Retirement Benefits Other Than Pensions
X 52.215-19 Notification of Ownership Changes
X 52.215-21 Requirements for Cost or Pricing Data or Information Other Than Cost or Pricing Data -
Modifications
X 52.219-22 Small Disadvantaged Business Status
X 52.222-3 Convict Labor
X 52.222-18 Certification Regarding Knowledge of Child Labor for Listed End Products
X 52.222-20 Xxxxx-Xxxxx Public Contracts Act (if Order exceeds $10,000)
X 52.222-21 Prohibition of Segregated Facilities
X 52.223-5 Pollution Prevention and Right-to-Know Information
X 52.223-6 Drug-Free Workplace
X 52.223-13 Certification of Toxic Chemical Release Reporting
X 52.223-14 Toxic Chemical Release Reporting
X 52.225-16 Sanctioned European Union Country Services
X 52.227-1 Authorization and Consent -Alternate I
X 52.227-6 Royalty Information
X 52.227-7 Patents - Notice of Government Licensee
X 52.227-11 Patent Rights - Retention by the Contractor (Short Form)
X 52.227-14 Rights in Data - General (Alternate I, II, III, IV, or V)
X 52.227-15 Representation of Limited Rights Data and Restricted Computer Software
X 52.230-2 Cost Accounting Standards
X 52.232-17 Interest
X 52.232-23 Assignment of Claims
X 52.242-1 Notice of Intent to Disallow Costs
X 52.242-15 Stop-Work Order
X 52.242-13 Bankruptcy
X 52.243-2 Changes - Cost-Reimbursement - Alternate V
X 52.244-2 Subcontracts (August 1998)
X 52.244-5 Competition in Subcontracting
X 52.244-6 Subcontracts for Commercial Items and Commercial Components
X 52.246-7 Inspection of Research and Development - Fixed Price
X 52.247-34 F.O.B. Destination
X 52.253-1 Computer Generated Forms
(d)The following [*** Redacted] clauses are applicable to this Order:
[*** Redacted].246-001 Inspection and acceptance at destination (Mar 1996)
[*** Redacted].246-006 Requirement for data acceptance (Mar 1996)
[*** Redacted].203-002 Prohibition on persons convicted of fraud or other defense-contract-related
felonies (May 2003)
[*** Redacted]-204-002 Oral Attestation of security responsibilities (Jun 2003)
[*** Redacted].204-004 Telecommunications Security Equipment, Devices, Techniques, and Services (Jun 2003)
[*** Redacted].204-005 Protection Against Compromising Emanations (Jun 2003)
------------
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commision. Omitted portions
have been filed separately with the Commission.
Page 4 of 5
[SAIC LOGO]
[*** Redacted].209-002 Disclosure of Foreign Ownership, Control, or Influence
[*** Redacted].209-003 Organizational Conflict of Interest Certification
[*** Redacted]-209-004 Organizational Conflict of Interest
[*** Redacted].209-005 Protection of Information
[*** Redacted].215-002 Intention to Use Consultants
[*** Redacted].219-001 Utilization of Small Business Concerns
[*** Redacted].222-001 Equal Employment Opportunity
[*** Redacted].223-006 Contractor Compliance with Environmental, Occupational Safety and Health, and
System Safety Requirements
[*** Redacted].227-001 Technical Data an Computer Software: Commercial Items
[*** Redacted].227-015 Data Requirements
[*** Redacted].242-002 Contractor Performance Assessment Review
[*** Redacted].245-005 Prohibition on Contractor Acquisition of Personal Property for Use by Government
Employees
[*** Redacted].245-006 Identification of Promotional Items
[*** Redacted].204-003 Special Notification and Approval Requirements
[*** Redacted].209-006 Enabling Clause for Prime and Support Contractor Relationships
[*** Redacted].211-001 Use of the Metric System of Measurement
[*** Redacted].211-003 [*** Redacted] Standards Document Compliance
[*** Redacted].216-001 Level of Effort
[*** Redacted].223-005 Prohibition on Storage and Disposal of Toxic And Hazardous Materials
--------------
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commision. Omitted portions
have been filed separately with the Commission.
Page 5 of 5
ATTACHMENT 2
IP RIGHTS FORM DATED 7/1/04
Technical Data or Computer Software to be Assorted Rights Name of Person Asserting
Delivered with Restrictions Basis for Assertion Category Restrictions
(List) (List) (List) (List)
------ ------ ------ ------
Methods for synthesizing and processing nanocrystals Pre-existing intellectual Limited Rights Data Xxxxxxx Xxxxxx
to yield compositions of [*** Redacted] property developed with
private funds
[*** Redacted] semiconductor nanocrystal compositions Pre-existing intellectual Limited Rights Data Xxxxxxx Xxxxxx
and methods of making/processing them property developed with
private funds
[*** Redacted] for integrating nanocrystals into Pre-existing intellectual Limited Rights Data Xxxxxxx Xxxxxx
[*** Redacted] property developed with
private funds
[*** Redacted] composition of [*** Redacted] Pre-existing intellectual Limited Rights Data Xxxxxxx Xxxxxx
property developed with
private funds
[*** Redacted] and device architecture Pre-existing intellectual Limited Rights Data Xxxxxxx Xxxxxx
property developed with
private funds
---------
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
