SUBCONTRACT AGREEMENT DATED 6/26/97 Non-Disclosure Agreement This Agreement is made between CELERITY SYSTEMS, INC., ("CELERITY") and UNISYS Corporation - Federal Systems Division. ("UNISYS") and concerns the handling, safeguarding and exchange of sensitive, proprietary or confidential information (collectively "Proprietary Information"). It is agreed and understood that any exchange of such Proprietary Information is expressly for the sole purpose of CELERITY and UNISYS evaluating a possible business arrangement involving an existing UNISYS contract with a federal government agency. 1. For the purposes hereof, Proprietary Information shall be any documents, materials or information that (i) is in tangible form and clearly marked as being proprietary, confidential or sensitive and (ii) is received by one party to this Agreement ("Recipient") from the other party to this Agreement ("Transmitter"). 2. The Recipient agrees to safeguard, protect and handle all Proprietary Information made available under this Agreement with the same degree of care and procedures as Recipient applies to its own confidential or proprietary information. Without the written consent of the Transmitter, the Recipient of Proprietary Information agrees (i) not to disclose, disseminate, reproduce or otherwise distribute such information and materials to any third party, except a governmental judicial authority's issued order and (ii) not to use such information for any other purposes beyond that expressly set forth in this Agreement. 3. All Proprietary Information disclosed under this Agreement shall remain the property of the Transmitter. It is agreed that the Recipient does not obtain any title or license rights to the Proprietary Information furnished under this Agreement. 4. All Proprietary Information exchanged under this Agreement shall be returned or destroyed in accordance with written instructions upon the earlier of a written request from the Transmitter or termination of this Agreement. Either party may terminate this Agreement, at any time, by providing written notice to the receiving party. Termination of this Agreement shall not be construed as relieving the Recipient of its obligations to safeguard, protect and dispose of the Proprietary Information as set forth in this Agreement. 5. The Recipient's obligations to protect, safeguard and handle Proprietary Information received hereunder shall not be binding if such Proprietary Information (i) is in the public domain through no fault of the Recipient, (ii) is known to the Recipient prior to disclosure hereunder, (iii) is lawfully disclosed to Recipient by a third party. The Recipient's obligations shall survive until the Proprietary Information has been returned, destroyed in accordance with written instructions or covered by a subsequent agreement between CELERITY and UNISYS for the contemplated services. This represents the entire agreement of the parties relative to the subject matter and shall be governed and construed under the laws of the Commonwealth of Virginia. Accepted by: UNISYS Corporation CELERITY SYSTEMS, INC. By: /s/ Dennis A. Chaloux By: /s/ William R. Chambers ---------------------------------- ---------------------------- Name: Dennis A. Chaloux Name: William R. Chambers -------------------------- Title: Sr. Subcontract Administrator Title: Vice President ------------------------- Date: 6/30/97 Date: 6/26/97 SUBCONTRACT BETWEEN UNISYS CORPORATION 8008 Westpark Drive McLean, Virginia 22102 AND CELERITY SYSTEMS, INC. 9051 Executive Park Drive, Suite 400 Knoxville, Tennessee 37923 SUBCONTRACT NUMBER: 97-IW0324-CELERITY PRIME CONTRACT NUMBER: 263-96-D-0324 PERIOD OF PERFORMANCE: (Reference Section 2.0) SUBCONTRACT TYPE: Firm-Fixed-Price (FFP) Time & Material (T&M) Purchase Orders SUBCONTRACT AMOUNT: (Reference Section 1.0) PAYMENT TERMS: Payment shall be made upon receipt of proper invoice, Net (30) days (Reference Section 13.) PRIORITY RATING: N/A SECURITY CLASSIFICATION: None UNISYS SUBCONTRACT ADMINISTRATOR: Dennis A. Chaloux TABLE OF CONTENTS ARTICLE PAGE 1.0 Supplies/Services and Prices..........................................3 2.0 Period of Performance.................................................5 3.0 Packaging Labeling and Shipping.......................................5 4.0 Inspection and Acceptance 5.0 Assignment 6.0 Changes 7.0 Disputes Involving the Government 8.0 Binding Arbitration...................................................6 9.0 Delays 10. Default 11. Notices 12. Invoices/Payments 13. Patent Indemnity......................................................7 14. Risk of Loss 15. Termination 16. Title.................................................................8 17. Warranty 18. Limitation of Liability 19. Compliance With Laws 20. Relationship of the Parties..........................................12 21. Indemnification 22. Limitation of Obligation 23. Release of News Information 24. Non-Waiver Rights 25. Representations and Certifications...................................13 26. Ethical Conduct 27. Severability 28. Applicable State Law 29. Attachments/Exhibits 30. Statement of Work 31. Complete Agreement...................................................14 2 RECITALS This Agreement is entered into by and between Unisys Corporation, Federal Systems Division, a Delaware corporation, with its principal offices located at 8008 Westpark Drive, McLean, Virginia 22102 (hereinafter referred to as the "BUYER"), and Celerity Systems, Inc. (hereinafter referred to as the "SELLER") with offices located at 9051 Executive Park Drive, Suite 400, Knoxville, Tennessee 37923. WlTNESSETH THAT In consideration of mutual promises, covenants, and agreements herein set forth, the Parties agree that the SELLER shall furnish and deliver to the BUYER all of the supplies, and perform all of the services set forth herein, for the consideration stated therein. The rights and obligations of the Parties to this Agreement shall be subject to and governed by the terms of this Agreement and other documents or specifications attached hereto or Referenced herein. This Agreement shall not be varied in its terms or conditions by any oral Agreement or representation, or otherwise than by an instrument in writing, unless executed by both SELLER and BUYER. The section titles used herein are for convenience only and shall in no way be construed as part of this Subcontract or as an indication of the meaning of the particular section. 1.0 SUPPLIES/SERVICES AND PRICES SELLER shall provide the necessary personnel and facilities to furnish the supplies/services as determined by or specified in individual Purchase Orders issued to the SELLER by the BUYER. All purchase orders shall be issued pursuant to and in accordance with this Agreement. Prices set forth in this Agreement include taxes, duties, similar charges and include shipping charges. All charges for deliveries to the Washington, D.C. Metropolitan Area are included in the item prices. Transportation charges for deliveries outside the Washington, D.C., Metropolitan Area will be negotiated on an individual Purchase Order basis. Unless otherwise provided in writing by the Subcontract Administrator, the costs of the following items or activities shall be unallowable as a direct cost: 1. Special rearrangement or alteration of facilities 2. Purchase or lease of any item of general purpose office furniture, office equipment or FIP equipment regardless of dollar value. (General purpose equipment is defined as any items of personal property which are usable for purposes other than research, such as office equipment and furnishings, pocket calculators, etc.); 3. Travel to attend meetings unless specified in the purchase order issued by the Unisys Subcontract Administrator 4. Capitalized nonexpendable equipment (defined as having an acquisition cost of $1,000 or more and a life expectancy of more than two years). 3 5. Travel Costs unless specified in the specific Purchase Order. When authorized, expenditures for domestic travel (transportation, lodging, subsistence, and incidental expenses) incurred in direct performance of the resultant subcontract shall be subject to the provisions of Section 24 of Public Law 99-234 which amends the Office of Federal Procurement Policy Act to provide that Subcontractor costs for travel, including lodging, other subsistence, and incidental expenses, shall be allowable only to the extent that they do not exceed the amount allowed for federal employees. The Subcontractor, therefore, shall invoice and be reimbursed for all Travel costs in accordance with guidelines published in the Federal Register, Vol. 58, No. 42, Friday March 5, 1993. 6. Postage shall be unallowable unless specifically stated in the Purchase Order. 7. If appropriate, any and all Other Direct Costs (ODC's) shall be specified in the individual Purchase Orders. TRAVEL AND PER DIEM (a) Outside the Washington, D.C. Metropolitan Area: Travel by air will be reimbursed at actual not to exceed coach fare. Travel subsistence reimbursement will be authorized under the rates and conditions of the Federal Travel Regulations and if applicable, an Agency's Department Travel Manual. Per Diem will be reimbursed at actual, not to exceed the Per Diem rates set forth in Federal Property Management Regulations (FPMR) 41 CFR Chapter 101, Chapter 7, GSA Bulletin FPMR A-40 Supplement (in effect at time of travel). Travel of more than 10 hours, but less than 24 hours, when no lodging is required, Per Diem shall be one-half of the Meals and Incidental Expenses (M&IE) rate prescribed for the location where the majority of the time is spent performing official business. The Per Diem allowance shall not be allowed when the period of official travel is 10 hours or less during the same calendar day. Travel by privately owned vehicle will be reimbursed at the current GSA approved mileage rate. If the Subcontractor incurs travel costs in excess of the amount show in each Purchase Order, it is at its own expense. (b) Inside the Washington, D.C. Metropolitan Area: (1) Travel will be reimbursed based on the policies stated in paragraph (a) above. (2) Normal commuting expenses are not allowed. (c) Travel will be reimbursed on a cost basis only. Any burden added to the travel costs will be allowed only as defined in the Subcontractor's standard accounting practice or disclosure statement. The prices for the supplies/services to be provided by the SELLER are as follows: CLIN SUPPLIES/SERVICES QTY. UNIT PRICE NET PRICE ---- ----------------- ---- ---------- --------- **To be determined on an individual Purchase Order Proposal Basis.** 4 2.0 PERIOD OF PERFORMANCE The term of this Agreement shall be from the date of execution through 14 August 1997. The Agreement term may be extended four (4) additional twelve-month periods upon the BUYER's prior written notice of each such twelve-month extension period; provided, however, that this Agreement is not otherwise terminated pursuant to the Termination clause herein. 3.0 PACKAGING LABELING AND SHIPPING BUYER shall provide SELLER with packaging, labeling and shipping instructions with each purchase order issued pursuant to this Agreement. SELLER agrees to ship products ordered by BUYER in accordance with such instructions. 4.0 INSPECTION AND ACCEPTANCE SELLER shall only tender for acceptance those items that conform to the requirements of this Agreement. Unisys reserves the right to inspect or test any supplies or services that have been tendered for acceptance. Unisys may require repair or replacement of nonconforming supplies or reperformance of nonperforming services at no additional cost. Unisys agrees to exercise its post acceptance rights (1) within a reasonable time after the defect was discovered or should have been discovered; and (2) before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item. The Unisys approving and accepting authority for inspection and acceptance of CLIN's will be the Program Manager or his designated representative. The Program Manager's designated representative will be identified on each individual P.O. issued pursuant to any resulting subcontract agreement. Unless advised otherwise in individual Purchase Orders, inspection and acceptance of all CLIN's hereunder shall take place at the Government installation site. The installation site location shall be set forth in individual Purchase Orders. 5.0 ASSIGNMENT SELLER may assign it's rights to be paid amounts due as a result of performance under this contract, to a bank, trust company or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. 3727) 6.0 CHANGES Changes in the terms and condition of this Agreement may be made only by written agreement of the parties hereto. 7.0 DISPUTES INVOLVING THE GOVERNMENT This Agreement is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613). Failure of the parties to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this Agreement shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1 Disputes, which is incorporated herein by reference. SELLER shall proceed diligently with performance of this Agreement, pending final resolution of any dispute arising under this Agreement. 5 Any decision on appeal, or any other decision of the Government under the Prime Contract which cannot be appealed under the "Disputes" clause of the Prime Contract, if binding on the BUYER shall also bind the SELLER to the extent that it relates to this Agreement, provided the BUYER shall have promptly notified the SELLER of such decision and, if requested by SELLER, shall have brought suit or filed claim, as appropriate against the Government. A final judgment in any such suit or final disposition of such claim shall be conclusive upon the BUYER and the SELLER. For any action brought by the BUYER on behalf of the SELLER pursuant to this clause, the SELLER agrees to indemnify and hold the BUYER harmless from all costs and expenses incurred by the BUYER in prosecuting any such appeal initiated by the BUYER at the Seller's request. All costs and expenses incurred by the BUYER shall be paid by the SELLER and shall not be reimbursed or compensable as a cost under the Agreement, unless recovered by the BUYER under the Prime Contract or as part of an award of damages to the BUYER based on such a claim. 8.0 BINDING ARBITRATION Any dispute or controversy between the BUYER and SELLER which concerns only the BUYER and the SELLER or which does not involve a final decision of the Government Contracting Officer, and which cannot be resolved by mutual agreement of the parties hereto, shall be settled by arbitration in accordance with the commercial rules then in effect of the American Arbitration Association. The place of such arbitration shall be Washington, D.C. Each party shall select one arbitrator and the two arbitrators so selected shall select the third arbitrator. The arbitrators shall be knowledgeable in Government procurement matters related to the types of supplies and services provided pursuant to this Agreement. The arbitration decision and award shall be binding on the parties, and judgment thereon may be entered in any court of competent jurisdiction. 9.0 DELAYS SELLER shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the SELLER and without its fault or negligence. SELLER shall notify the BUYER in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the BUYER of the cessation of such occurrence. 10. DEFAULT If either party hereto fails to perform an obligation under this Agreement, the other party, may issue a default termination letter to the party in default of an obligation under this Agreement to cure the default condition. If the default condition is not remedied within ten (10) calendar days from the day of receipt of such letter, the issuer of the default termination letter may the without the necessity of any further notice, discontinue performance and terminate this Agreement for default and pursue any other remedies available at law or in equity. Any failure to exercise rights under this Article shall not constitute a waiver of any past, present or future right or remedy. 11. NOTICES All correspondence or notifications required under this Agreement shall be addressed as follows: UNISYS Corporation Celerity Systems, Inc. 6 Attention: Dennis A. Chaloux 8008 Westpark Drive, Mail Stop W5A12 McLean, Virginia 22102 Phone: (703) 556-5578 Fax: (703) 556-5283 Attention: Bill Chambers 9051 Executive Park Drive, Suite 400 Knoxville, Tennessee 37923 Phone: (423) 539-5300 Fax: (423) 539-5390 12. INVOICES/PAYMENTS SELLER shall submit an original invoice and two (2) copies to: UNISYS Corporation Attention: Frederick W. Garner III 8008 Westpark Drive, Mail Stop W5F39 McLean, Virginia 22102 SELLER's invoice must include: (l) Name and address of the SELLER, (2) Invoice Date (3) Prime Contract Number, contract line item number and purchase order number (4) Description, quantity, unit of measure, unit price and extended price of the items delivered. (5) Shipping number and date of shipment including the bill of lading number and weight of shipment. Shipping charges shall be itemized separately. (6) Terms of any prompt payment discount if offered. (7) Name and address of official to whom payment is to be sent; and (8) Name, title and phone number of person to be notified in event of defective invoice. SELLER shall submit invoices for payment for the Products and Services accepted under this Agreement. Invoices for Products and Services may be submitted after the date of delivery of such Products and/or Services to the F.O.B. destination site. Upon receipt of a proper invoice, BUYER agrees to pay SELLER for accepted Products and Services net forty-five (45) days. 13. PATENT INDEMNITY SELLER agrees to indemnify BUYER, the United States Government and their respective officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of performance under this Agreement. 14. RISK OF LOSS Unless the Agreement specifically provides otherwise, risk of loss of damage to the supplies 7 provided hereunder shall remain with the SELLER until, and shall pass to the BUYER upon; (1) delivery of the supplies to a carrier, if transportation is f.o.b. origin; or (2) delivery of the supplies to the BUYER at the destination specified i
Subcontract Agreement - Celerity Systems Inc. and Unisys Corp.
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