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Northrop Grumman Systems Corporation

SUBCONTRACT CLAUSES — FIXED-PRICE SUBCONTRACT

FOR SUPPLIES, Research and Development, AND SERVICES

SECTION 1

Northrop Grumman Systems Corporation STANDARD CLAUSES

CLAUSE INDEX:

1. General Instructions to Seller

2. Subcontract Definitions

3. Validity of Individual Provision

4. Waiver of Breach

5. Governing Law

6. Compliance with Laws

7. Assignment of Claims

8. Independent Contractor

9. Clause Modification Required by Buyer’s Customer

10. Superseding or Supplementary Specifications

11. Default for Insolvency

12. Drawing and Specification Review

13. Quality Control System

14. Disclosure of Information

15. Proprietary Information

16. Buyer’s Use of Seller’s Data

17. Data--Withholding of Payment

18. Indemnification

19 Buyer-Owned Property Furnished to Seller

20. Reserved

21. Requirements for Cost or Pricing Data or Information Other Than Cost or Pricing Data

22. Disputes

23. Price Reduction for Defective Cost or Pricing Data/Noncompliance with CAS

24. Export Related Requirements

25. Incremental Funding

26. Procurement Integrity

27. Intellectual Property Indemnity

28. Subcontracting

29. Taxes

30. Set-Off

31. Warranties

32. Insurance

33. Compliance with Wiring Codes

34. Customs-Trade Partnership Against Terrorism
(C-TPAT)

35. Language

CLAUSE NO. 1 - GENERAL INSTRUCTIONS TO SELLER

a. Subcontract Number Identification for Invoicing and Shipping: This Subcontract number (including any modification or release designation) shall appear (i) on each invoice, packing list, and bill of lading; and (ii) on each package, container, or envelope for each shipment made pursuant to this Subcontract.

b. Bills of Lading: A bill of lading shall be sent in triplicate to the destination address shown within this Subcontract, or to consignee, on the day shipment is made.

c. Packing List: A packing list shall accompany each shipment of goods pursuant to this Subcontract and, if such shipment will complete delivery, the following notation shall appear thereon: “This shipment completes this order.”

d. Subcontract Number Identification on Data: Seller shall mark this Subcontract number and Seller’s address on all data delivered hereunder.

e. Packaging and Insurance: No additional charge for packaging or insurance shall be allowed (as a price, estimated or target cost, or fee adjustment) unless specifically provided for herein. Goods shall be packaged to ensure safe arrival at destination; and goods shall be described to conform with Carrier’s Classification Rules so as to obtain lowest transportation cost. Seller shall not insure or declare value on shipments beyond the FOB point.

CLAUSE NO. 2 - SUBCONTRACT DEFINITIONS

As used throughout all clauses of this form, the following terms shall have the meanings set forth below, except where otherwise a purposeful distinction is made clear.

a. The term “prime contract” means the Government prime contract between Buyer and the United States of America (hereinafter called the “Government” or “U.S. Government”), or the subcontract between Buyer and a Government prime contractor or subcontractor of any tier under which this Subcontract is issued, unless otherwise made clear.

b. The term “subcontract” or “subcontractor” means any subcontract, or modification thereof, or subcontractor of Seller under this Subcontract at any tier.

c. The term “the Schedule” means the Schedule of this Subcontract (so labeled, or if not so labeled, identified as the section of this Subcontract containing the “Articles”).

d. The terms “this Subcontract” and “this contract” are interchangeable and wherever appearing herein shall be deemed to mean this Subcontract.

CLAUSE NO. 3 - VALIDITY OF INDIVIDUAL PROVISION

The invalidity, in whole or in part, of any provision of this Subcontract shall not void or otherwise affect the validity of any other provision.

CLAUSE NO. 4 - WAIVER OF BREACH

No waiver of a breach of any provision of this Subcontract shall constitute a waiver of any other breach or of such provision. Failure of either party to enforce at any time, or from time to time, any provision of this Subcontract shall not be construed as a waiver thereof. The remedies herein reserved shall be cumulative and additional to any other remedies in law or equity.

CLAUSE NO. 5 - GOVERNING LAW

This Subcontract, and the acceptance thereof, shall be a contract made in the state identified in Buyer’s address in this Subcontract and shall be governed by, and construed according to, the laws thereof if to be wholly performed within such state; provided, however, Government contract clauses included herein shall be construed and interpreted according to the federal law of Government contracts as enunciated and applied by federal statutes and regulations, and by federal judicial bodies, boards of contract appeals, and other judicial and quasi-judicial agencies of the federal government.

CLAUSE NO. 6 - COMPLIANCE WITH LAWS

Seller agrees to comply with all applicable federal, state and municipal laws and ordinances and all rules and regulations thereunder, and all provisions required thereby to be included herein are hereby incorporated herein by reference. Seller agrees to indemnify and hold Buyer harmless for all costs (including attorney’s fees), liabilities, and judgments incurred by Buyer and caused by Seller’s failure to comply with such laws, ordinances, rules, or regulations.

CLAUSE NO. 7 - ASSIGNMENT of claims

Assignment of this Subcontract, or any interest therein or any payment due or to become due thereunder, without the prior written consent of Buyer shall be void. Should Buyer approve any assignment thereof, in no event shall any copy of any part or all of this Subcontract (including any plan, specification, or other document relating to work under this Subcontract) which is marked “Top Secret,” “Secret,” or “Confidential” be furnished to any assignee of any claim arising under this Subcontract, or to any other person not entitled to receive the same, without the prior written consent of Buyer.

CLAUSE NO. 8 - INDEPENDENT CONTRACTOR

It is understood and agreed that the Seller shall be deemed to be an independent contractor in all its operations and activities hereunder; that the employees furnished by Seller to perform work hereunder shall be deemed to be Seller’s employees exclusively, without any relation whatever to Buyer as employees of an independent contractor; that said employees shall be paid by Seller for all services in this connection; and that Seller shall be responsible for all obligations and reports covering social security, unemployment insurance, workers’ compensation, income tax, and other reports and deductions required by state or federal law.

CLAUSE NO. 9 - CLAUSE MODIFICATON REQUIRED BY BUYER’S CUSTOMER

Seller agrees to incorporate into this Subcontract any revised clause or additional clause as Buyer may reasonably deem necessary to enable Buyer to comply with the provisions of the prime contract or higher-tier subcontract with its customer and any modifications thereto. If any such revised clause or additional clause causes any increase or decrease in the cost of or time required for performance of the Subcontract work, an equitable adjustment shall be made in accordance with the procedures of the Changes clause hereof.

CLAUSE NO. 10 - SUPERSEDING OR SUPPLEMENTARY SPECIFICATIONS

All references in any Buyer document or Government specification (excluding those incorporated in Seller’s model specification) incorporated herein to any other Buyer or Government specifications shall be deemed to include any and all specifications superseding or supplementary to the specifications so referred to, to the extent that such superseding or supplementary specifications are in effect on the effective date of this Subcontract or on the effective date of any incorporating change notice, if Seller was furnished or otherwise had been notified of the existence of such superseding or supplementary specifications by that effective date.

CLAUSE NO. 11 - DEFAULT FOR INSOLVENCY

Buyer may terminate forthwith this Subcontract for default in accordance with the Default clause of this Subcontract in the event of the occurrence of any of the following: (i) insolvency of Seller (Seller shall be deemed to be insolvent if it has ceased to pay its debts in the ordinary course of business or cannot pay its debts as they become due, whether it has committed an act of bankruptcy or not and whether insolvent within the meaning of the Federal Bankruptcy Act or not); (ii) the filing of a voluntary petition to have Seller declared bankrupt; (iii) the appointment of a receiver or trustee for Seller; or (iv) the execution by Seller of an assignment for the benefit of creditors.

CLAUSE NO. 12 - DRAWING AND SPECIFICATION REVIEW

If, during the term of this Subcontract, Buyer representatives review drawings, specifications, or other data developed by Seller in connection with this Subcontract and make suggestions or comments, or approve such documents and data, such action shall not serve to relieve Seller of any responsibility for the reliability, quality, rate of output, cost, delivery, performance, or any other requirements of this Subcontract.

CLAUSE NO. 13 - QUALITY CONTROL SYSTEM

Seller agrees to provide and maintain a quality control system acceptable to Buyer and the Government and to provide access to Seller’s facilities at all reasonable times for surveillance periodically by Buyer and authorized Government representatives. Seller agrees to include, and to require its subcontractors to include, the substance of this paragraph, including this sentence, in each of its subcontracts under this Subcontract.

CLAUSE NO. 14 - DISCLOSURE OF INFORMATION (Also note clause of DFARS 252.204-7000)

Seller shall not, in any manner, advertise or publish the fact that it has furnished or contracted to furnish Buyer the goods or services herein mentioned without prior written consent of Buyer. Seller shall not disclose any details in connection with this Subcontract to any party except as may be otherwise provided.

CLAUSE NO. 15 – proprietary information

  1. If a separate Proprietary Information Agree­ment exists between the Parties, which relates to the subject matter of this Order, then Proprietary Information furnished by one Party to the other Party shall be protected pursuant to such Proprie­tary Information Agreement.

  2. If no separate Proprietary Information Agreement exists between the Parties, Seller agrees to keep confidential and not to disclose to any other person any Proprietary Information received from Buyer in connection with this Order. Seller further agrees to use Proprietary Information only for purposes necessary for performing this Order, without first obtaining Buyer’s written authoriza­tion.

  3. Seller may disclose Proprietary Information to its subcontractors as required for the performance of this Order, provided that each such subcontractor first assumes by written agreement the same obligations imposed on Seller under this Order relating to such Proprietary Information.

  4. All documents and other tangible media (exclud­ing Products) containing or conveying Proprietary Information and transferred in connection with this Order, together with any copies thereof, are and remain the property of Buyer.

  5. Neither the existence of this Order nor the disclo­sure hereunder of Proprietary Informa­tion or any other information shall be construed as granting expressly by implication, by estoppel or otherwise, a license under any invention or patent now or hereafter owned or controlled by Buyer or Buyer’s customer, except as specifically set forth herein.

f. Seller’s obligations with respect to Proprietary Information disclosed hereunder prior to the performance in full, termination or cancellation of this Order shall not, except as expressly set forth herein, be affected by such performance in full, termination, or cancellation.

g. Unless otherwise provided herein, or authorized by Buyer in writing, Seller shall use Proprietary Information and/or data only in the performance of this Order, however, the foregoing limitation shall not apply to items produced for direct sale to the U.S. Government in the event that the U.S. Government has an unlimited right to license or use Buyer’s Proprietary Information.

CLAUSE NO. 16 - BUYER’S USE OF SELLER’S DATA

Seller agrees that all information heretofore or hereafter furnished or disclosed to Buyer by Seller in connection with the placing or performance of this Subcontract is furnished or disclosed as a part of the consideration for this Subcontract; that such information is not, unless otherwise agreed to by Buyer in writing, to be treated as confidential or proprietary; and that Seller shall assert no claims (other than for patent infringement) by reason of the use or disclosure of such information by Buyer, its assigns, or its customers. No employee of Buyer has the authority to make an agreement providing for the confidential treatment of, or limiting the use of or disclosure of, information so furnished or disclosed, unless such agreement is made in writing and signed by Buyer’s cognizant general manager or his authorized representative who has been delegated authority to sign such agreements. In the event this Subcontract is issued under a U.S. Government prime contract and any regulatory rights in technical data clause is incorporated into this Subcontract, such clause shall apply and this clause shall be deemed to be deleted; however, Buyer shall have the right to utilize Seller’s data in the performance of the prime contract.

CLAUSE NO. 17 - DATA--WITHHOLDING OF PAYMENT

If data or other deliverable information (hereinafter called “data”), or any part thereof, is not delivered within the time specified by this Subcontract, or is deficient upon delivery (including having restrictive markings not specifically authorized by this Subcontract), Buyer may, until such data is delivered or deficiencies are corrected, withhold payment to Seller of ten percent (10%) of the total Subcontract price, unless a lesser withholding is specified in the Schedule. Payments shall not be withheld nor any other action taken pursuant to this clause where Seller’s failure to make timely delivery, or to deliver data without deficiencies, arises out of causes beyond the control and without the fault or negligence of Seller within the meaning of the Default clause of this Subcontract. The withholding of any amount or subsequent payment thereof to Seller shall not be construed as a waiver of any rights accruing to the U.S. Government or Buyer under this Subcontract.

CLAUSE NO. 18 - INDEMNIFICATION

Seller shall indemnify, defend, protect, and hold harmless Buyer, its officers, employees, and agents from and against all cost, losses, expense, damages, claims, suits, or any liability whatsoever (including attorney’s fees), arising out of or in connection with the work to be performed hereunder, or any act or omission of Seller, its agents, employees, or subcontractors; except to any extent otherwise expressly provided elsewhere within this Subcontract.

CLAUSE NO. 19 - BUYER-OWNED PROPERTY FURNISHED TO SELLER

a. Title to all property (other than Government property as defined at FAR 45.101) furnished to Seller by Buyer or paid for by Buyer shall remain with Buyer. Seller shall not alter or use such property for any purpose other than that specified by Buyer without the prior written consent of Buyer. Seller shall keep adequate records, which shall be made available to Buyer upon request, and shall store, protect, preserve, repair, and maintain such property in accordance with sound industrial practice, all at Seller’s expense.

b. Buyer does not provide any warranties with respect to its property, which is to be provided to Seller in “as is” condition, and notwithstanding the actual condition of such property, all items delivered or services performed by Seller shall be in strict accordance with the requirements of this Subcontract; unless otherwise expressly provided for elsewhere within this Subcontract.

c. In the event that Buyer’s property becomes lost or damaged for any reason while in Seller’s possession, Seller agrees to replace (if lost or irreparable) or repair (if reparable) such property, at Seller’s expense, in accordance with Buyer’s request. At the completion of delivery of the goods or services ordered by Buyer in this Subcontract for which Buyer’s property was required, or the termination of this Subcontract, Seller shall request disposition instructions for all such Buyer’s property, or the remainder thereof, whether in its original form or in semi-processed form. Seller agrees to make such property available to Buyer at Buyer’s request, in the manner requested by Buyer, including preparation, packaging, and shipping as directed. Expenses for preparation and for shipment shall be for Seller’s account, and shipment shall be made FOB Seller’s plant. Buyer may, at its sole discretion and by written notice, divest itself of title in favor of Seller.

CLAUSE 20. Reserved.

CLAUSE NO. 21 - requiremeNts for cost or pricing data or information other than cost or pricing data

Cost proposals are to be submitted in accordance with the applicable requirements of the Section 3 clauses hereof at FAR 52.215-12. 52.215-13, 52.215-20, and 52.215-21.

CLAUSE NO. 22 - DISPUTES

a. Any dispute arising under, out of, or in connection with this Subcontract, that is not resolved by agreement of the parties or pursuant to paragraph b. or c. below may be resolved by appropriate legal proceedings. Pending any decision, appeal, or judgment, or the settlement of any such dispute, Seller shall proceed diligently with the per-formance of this Subcontract (except with respect to any Buyer cancellation or termination of Subcontract work).

b. Notwithstanding any provision of this Subcontract to the contrary, if a decision on any question under, out of, or relating to the prime contract is made by the Government, and such question also arises under, out of, or relates to this Subcontract, said decision if binding upon Buyer shall in turn be binding upon Buyer and Seller with respect to such question under this Subcontract; provided, however, that if Seller disagrees with any such decision made by the Government, and if Buyer elects not to invoke remedies under Public Law No. 95-653 (as amended), the Contract Disputes Act of 1978, to the extent Buyer has the right to invoke such remedies, Seller shall have the right to invoke the said remedies in the name of Buyer; provided further, that notice of Seller’s intention to do so is furnished to Buyer in writing within thirty days from the date on which Seller receives notice of such decision and Buyer’s election not to pursue its available remedies. If Buyer elects not to contest any such decision where it is Buyer’s right to do so, Buyer agrees to notify Seller within ten days after receipt of such decision and to provide reasonable assistance to Seller in its prosecution of any resulting litigation. If Buyer elects to contest any such decision of the Government, Buyer agrees to promptly furnish Seller with a copy of the appeal or other initial pleadings. Any decision or judgment rendered pursuant to the Contract Disputes Act of 1978 (as amended), if binding upon Buyer, shall, in turn, be binding upon Seller. All costs of pursuing remedies invoked by Seller shall be paid by Seller, without prejudice to any right Seller may have to recovery or allowance thereof.

c. If Seller is otherwise adversely affected by any decision made by any representative of the Government on any question of fact or law arising under the prime contract, which is also related to this Subcontract, from which an appeal under the Disputes clause in the prime contract is not available, said decision if binding upon Buyer shall, in turn, be binding upon Buyer and Seller with respect to such question as it relates to this Subcontract; provided, however, if Seller is adversely affected by any such decision and, in good faith, disagrees with such decision, and if Buyer elects not to bring suit against the Government with respect to such decision, Buyer shall promptly notify Seller, and Seller shall have the right to bring suit against the United States in the name of Buyer. A final judgment or ruling in any such action, if binding upon Buyer shall, in turn, be binding upon Seller and Buyer under this Subcontract, with respect to the question decided as it relates to this Subcontract. Buyer agrees to provide reasonable assistance in the prosecution of any such action in every reasonable manner. All costs of any such suit, or of any appeal prosecuted by Seller, shall be paid by Seller, without prejudice to any right Seller may otherwise have to recovery or allowance thereof.

d. Any claim (as defined in the clause of FAR 52.233-1) or amendment thereof shall be made in writing, signed by a senior official in charge at the plant or location involved, and submitted to the subcontract manager. Seller shall certify any such claim or amendment thereof that exceeds $100,000 as follows:

“I certify that this claim is made in good faith, that the supporting data are accurate and complete to the best of my knowledge and belief, and that the amounts requested accurately reflect the subcontract adjustment for which the Seller believes Buyer is liable.”

Subcontractor’s Name

By (Signature)

Date

Title

e. If, as a result of any decision or judgment that is binding upon Seller and Buyer, Buyer is unable to obtain 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 of cost or fee for which Buyer has reimbursed Seller, Seller shall, on demand, promptly repay such amount to Buyer.

f. The rights and obligations herein shall survive completion of and final payment under this Subcontract.



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