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BOSTON // HARTFORD // NEW YORK // NEWARK // PHILADELPHIA // STAMFORD // WASHINGTON, DC // WILMINGTON Negotiating a Subcontract that Pleases Both Sides Daniel J. Kelly NCMA Boston Chapter 57th Annual March Workshop March 7, 2018 Top 9 Negotiated Contract Terms*

Limitation of Liability Indemnification Changes Service Levels and Warranties Payment Intellectual Property Performance/Guarantees/Undertakings Termination Delivery/Acceptance *Per International Association for Contract and Commercial Management 2015 Study

(Red Terms top terms since surveys began 2000) 2 Top 9 Suggested Collaborative Terms* Alignment on Scope/Goals Change Management

Communication/Reporting Responsibility of the Parties Service Levels/Warranties Changes in Price Limitation of Liability Delivery Acceptance Dispute Resolution * Per IACCM Survey 3 And the Nominees are 4 LIMITATION ON LIABILITY

5 FAR 52.212-4(p)* Limitation of liability. Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items. *May be tailored to reflect customary commercial practices (FAR 12.203(b)) 6 Subcontractor Wish List expand scope of damages covered expand scope of actions covered extend limitations or cap limitations extend categories of persons/entities protected

by limitation include statute of limitations extend to third party actions 7 Raytheon General Terms and Conditions of Purchase TC-001 (10/17) NO CLAUSE Northrop Grumman Terms and Conditions, Firm Fixed Price Order for Non-Commercial Items U.S. Government CTM-P-ST-002 (1/2/18) and Firm Fixed Price Order for Commercial Items (CTM-P-ST-001) NO CLAUSE Lockheed Martin CORPDOC 2 General Provisions for Subcontracts/POs for Commercial Items Under a U.S. Government Prime Contract (2018) NO CLAUSE

8 NG Non-Commercial Item Form Subcontract 15. Disputes E. In no event shall Buyer be liable for anticipated profits, incidental damages or consequential damages. Buyers liability on any claim, of any kind and for any loss or damage arising out of, connected with or resulting from this Order, or from the performance or breach thereof shall, in no case, exceed the price allocable to the Products and/or Services . . . which give rise to the claim. Buyer shall not be liable for penalties of any description. Any action resulting from any breach on the part of the Buyer as to the Products and/or Services delivered hereunder must be commenced within one year after the cause of action has accrued. One-sided Limit on type of damages

Expansive definition of claim Cap on damages Statute of limitations on bringing claims 9 GD Mission Systems FFP PO (U.S. Government) (Commercial and Non-Commercial) (2018) 19.0 Limitation of Liability In addition to any other limitations on buyers liability set forth herein, in no event shall buyer, its employees, agents or representatives be liable by reason of buyers breach or termination of this order or for any buyer acts or omissions in connection with this order for any special, incidental or consequential damages of any kind, however caused, including, but not limited to, loss of profits or revenue, loss of data, work interruption, or any claims or demands against seller by any other entity, whether such remedy is sought in contract, tort (including negligence), strict liability or otherwise. In no event shall buyers liability for damages in any circumstances set forth in this clause exceed the

price payable for the work to be performed by seller under the order. This order shall neither create for nor give to any third party any claim or right of action against seller or buyer which would not otherwise arise without this order. Expands scope of limitation on types of damages Extends to third party claims Extends parties who benefit from clause 10 INDEMNIFICATION 11 FAR 52.212-4(h)* Patent indemnity. The Contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or

contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings. *May be tailored to reflect customary commercial practices (FAR 12.203(b)) 12 NEED FOR CLARITY IN PATENT INDEMNITY CLAUSES

define term indemnification (does it include defense?) temporal limits add right to control defense and settlement provide option to modify, substitute or obtain license establish more cooperation make it contingent on no bad conduct by Government or prime Relationship with Authorization and Consent 13 Common Embedded Indemnity Provisions Infringement

Compliance with the Law Export Control Defective Cost or Pricing Data Contract Disputes Act Appeals Made on Subs Behalf Seller shall indemnify and hold Buyer and its customers harmless from any and all expenses, liability, and loss of any kind (including all costs and expenses including attorneys fees) arising out of claims, suits, or actions . . . . 14

SUBCONTRACTOR WISH LIST limitations on types of claims limiting indemnitees adding concept of fault or negligence limitations on who is making the claim notice

opportunity to defend and settle caps (e.g., at insurance) carving out nature of work being performed at prime reasonableness of costs, expenses and fees 15 Raytheon Indemnity Against Claims (b) Seller shall, without limitation, indemnify and save Buyer and its customer(s) and their respective officers, directors, employees and agents harmless from and against (i) all claims (including claims under Workers Compensation or Occupational Disease laws or other equivalent laws in Sellers country) and resulting costs, expenses (including attorney fees and costs) and liability which arise from personal injury, death, or property loss or damage attributed to, or caused by, the goods supplies, or the services performed by Seller pursuant to this Purchase Order, including, without limitation, latent defects in such goods and/

or services, except to the extent that such injury, death, loss or damage is caused solely and directly by the negligence of Buyer, and (ii) all claims (including resulting costs, expenses and liability) by the employees of Seller or any of its subcontractors. 16 NG (FP NC and CI) 26. INDEMNIFICATION Seller shall indemnify, defend, and hold harmless the Indemnitees . . . from and against all costs, losses, expenses, damages, claims, suits, or any liability whatsoever (including attorneys fees), arising out of or in connection with the work to be performed hereunder, or the Products to be sold hereunder, or any act or omission of Seller, its agents, employees, or subcontractors, except to any extent otherwise expressly provided for elsewhere within this Order. . . . Buyer will inform Seller of any claim, demand or suit asserted or instituted against it and, with Buyers consent, permit Seller to defend the same or make settlement in respect thereof. Buyer shall have the right to participate in the defense of any such claim, demand or suit with counsel of its choosing at Buyers expense and Seller may not settle,

compromise or consent to the entry of any judgment in respect thereof, without Buyers prior written consent, unless such settlement, compromise or consent: (i) includes an unconditional release of Buyer from all liability arising out of such claim, demand or suit; (ii) is solely monetary in nature and (iii) does not include an admission of fault by Buyer or otherwise adversely affect Buyer. If Seller fails to indemnify, defend and hold harmless Buyer as provided in this clause, then Seller shall pay for any damages, attorneys fees, and any other fees, costs, and expenses that may be incurred by Buyer in the defense of any action related to this Order and/or in the prosecution of any action to enforce the provisions of this clause. Definition of Indemnitees: Buyer, its directors, officers, employees, consultants, agents, affiliates, successors, permitted assigns and customers 17 LM 17. INDEMNITY

SELLER shall defend, indemnify, and hold harmless LOCKHEED MARTIN, its officers, directors, employees, consultants, agents, affiliates, successors, permitted assigns and customers from and against all losses, costs, claims, causes of action, damages, liabilities, and expenses, including attorneys fees, all expenses of litigation and/or settlement, and court costs, arising from any act or omission of SELLER, its officers, employees, agents, suppliers, or subcontractors at any tier, in the performance of any of its obligations under this Contract. 18 GD Mission Systems Section 28.3 Indemnification Seller agrees to indemnify, defend and hold harmless Buyer, its affiliates, subsidiaries, directors, officers, employees and agents from and against any and all actions, causes or action, liabilities, claims, expenses (including reasonable attorneys fees and court costs), losses, damages, penalties, fines, forfeitures, suits, judgments, liens, awards and damages of

any kind and nature whatsoever for (a) property damage, (b) personal injury, including death, and (c) all violations of applicable laws which arise out of, or are in any way related to Sellers or any of its suppliers breach of obligations or responsibilities arising from this Order or 2) failure to comply with all applicable Federal, state and local laws and regulations in the performance of this Order. Sellers obligation hereunder is not limited to insurance available to or provided by Seller or any of its suppliers. . . . This duty to defend, indemnify, and hold harmless extends to any suit, liability, claim, judgment, or demand that may arise out of or in connection with the performance or nonperformance of this Order by Seller or its agents, breach of warranty by Seller or its agents, any defective work performed or delivered by Seller or its agents . . . or any other breach of Sellers obligations hereunder, whether such suit, liability, claim, judgment, or demand is based upon contract, warranty, strict liability in tort, negligence, or other legal theory, and extends not only to third party claims but also to any direct loss suffered by Buyer. Buyer will inform Seller of any claim, demand, judgment, or suit asserted or instituted against it to which this provision may apply. Agents as used herein includes, but is not limited to, Sellers employees, subcontractors, and suppliers.

19 CHANGES IN PRICE 20 FAR 52.212-4(c)* Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties. 21 SUBCONTRACTOR WISH LIST mutuality limiting breadth

tied to government action addressing constructive changes and authority claim process no unreasonable deadlines flexibility with duty to continue performing limiting verification of claim 22 Raytheon 15. Changes Buyer shall have the right by written notice to suspend or stop work or to make changes from time to time in the services to be rendered or the goods to be furnished by Seller hereunder or the delivery schedule. If such suspension, stoppage, or changes cause an increase or decrease in the cost of performance of this Purchase Order or in the time required for its performance, an equitable adjustment shall be negotiated promptly and the Purchase Order shall be modified in writing accordingly. Any claim by Seller for adjustment . . . must be

asserted in writing within twenty (20) days from the date of receipt by Seller of notification of the change or suspension and shall be followed as soon as practicable with specification of the amount claimed and supporting cost figures. Failure to agree to any such change shall be resolved in accordance with Section 7 Disputes and Governing law herein. However, nothing herein shall excuse Seller from proceeding with this Purchase Order as changed pending resolution of the claim. unilateral

breadth not tied to government action what about constructive changes and authority claim process duty to continue performing verification of claim 23 NG (FP NC and CI) 13. Changes A. Buyers PCO may at any time, by written order, and without notice to sureties or assignees, if any, make changes within the general scope of this Order, in (1) drawings, designs, statement of work, specifications, planning and/or other technical documents; (2) method of shipment, packaging, or packing; (3) time and place of inspection, delivery or acceptance; (4) reasonable adjustments in quantities and/or delivery schedules; (5) place of performance of the Service; (6) the amount of Buyer/Government furnished property; and (7) terms and conditions required to meet Buyers obligations under its Prime Contracts, including, but not limited to, any mandatory flowdown clauses.

B. If any authorized change causes an increase or decrease in the cost or time required to perform this Order, Buyer and Seller shall negotiate an equitable adjustment in the price and/or schedule, to reflect the increase or decrease. Buyer shall modify this Order in writing accordingly. 1. Any claim for adjustment shall be unconditionally waived unless: (i) asserted in writing and delivered to Buyer within fifteen (15) days of the date of the written change order and (ii) a fully supported proposal is delivered to Buyers PCO within thirty (30) days of the date of the written change order. ... 3. Buyer, its authorized representatives, and its customer have the right to examine any of Sellers pertinent books and records for the purpose of verifying Sellers claim. However, at Sellers request, in lieu of Buyer, a mutually agreeable third party can examine books and records to verify Sellers claim. 4. Failure to agree to any adjustment shall be a dispute within the meaning of the Disputes clause hereof. However, Seller shall not be excused from proceeding with this Order as changed. C. Buyers engineering, technical personnel and other representatives may from time to time render assistance or give technical advice or discuss issues or engage in an exchange of information with Sellers personnel concerning the Products or Services hereunder. No such action shall be deemed to be a change, nor shall it be the basis for an equitable adjustment, and no such action shall relieve Seller of its obligations under this Order.

24 DELIVERY/ACCEPTANCE 25 FAR 52.212-4(a)* Inspection/Acceptance. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. If repair/replacement or reperformance will not correct the defects or is not possible, the government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must 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. Acceptance is defined in Prompt Payment Act regs as an acknowledgement by the Government that goods received and services rendered conform with the contract requirements. 26 Delivery to Warranty Timeline Delivery Inspection Rejection/Repair/Replace/Price Adj. Acceptance Warranty

27 Delivery to Warranty Pressure Points Who can inspect and when and where? Time period for acceptance once delivered/inspected Remedies other than rejection repair and replace, cost adjustment, cost or third party repair or replace Time limits for acceptance Is Customer acceptance an issue Latent defects and fraud Seller notice of defects and seller assurances Watch out for creeping warranties 28 Raytheon

Section 14 Inspection (a) All goods and services shall be subject to inspection and test at all reasonable times and places by Buyer or Buyers customer before, during, and after performance and delivery. Buyer may require Seller to repair, replace or reimburse the purchase price of rejected goods or Buyer may accept any goods and upon discovery of nonconformance, may reject or keep and rework any such goods not so conforming. Cost of repair, rework, replacement, inspection, transportation, repackaging, and/or reinspection by Buyer shall be at Sellers expense. Buyers acceptance of goods and services shall not be deemed to diminish Buyers rights or be final or binding on Buyer if latent defects, fraud, or misrepresentation on the part of Seller exists. (c) Neither Buyers inspection nor Buyers failure to inspect shall relieve Seller of any responsibility to perform according to the terms of this Purchase Order. Notwithstanding any other provision of the Purchase Order, the risk of loss of, or damage to, nonconforming goods remains with Seller until cure or acceptance.

29 NG (FP for NC and CI) Section 9 Defective Work A. Notwithstanding any prior acceptance, Buyer may reject or require prompt correction of any Products or Services which are, in Buyers judgment, defective in material or workmanship or otherwise fail to meet the drawings, designs, statement of work, specifications or other technical documents, or other requirements of this Order. B. If Seller delivers defective or nonconforming Products or Services, Buyer may: 1. Accept all or part of the defective or nonconforming Products or Services at an equitable price reduction or credit against any amounts that may be owed to Seller under this Order or otherwise; or 2. Reject all or any part of a delivery or performance of defective or nonconforming Products or Services and demand delivery of conforming Products or re-performance of

Services. All rejected Products shall be shipped back to Seller at Sellers expense and any reperformance of defective or nonconforming Services shall be at no cost to Buyer; or 3. Make or perform, or have a third party make or perform, all repairs, modifications, or replacements necessary to enable such Product or Service to comply in all respects with Order requirements and charge the expense to Seller; or 4. Terminate this Order for default in whole or in part. C. Any rejected or corrected Products or Services shall not thereafter be tendered for acceptance unless the former rejection or requirement for correction is disclosed. All repair, replacement and other correction and redelivery shall be completed within the original delivery schedule unless otherwise directed by Buyer. D. Seller shall immediately notify Buyer upon discovery of actual or potential defects or nonconformance affecting delivered Product or performed Service. 30 Lockheed

Section 21 Inspection and Acceptance (a) LOCKHEED MARTIN and its customer may inspect all Work at reasonable times and places, including, when practicable, during manufacture and before shipment. SELLER shall provide all information, facilities, and assistance necessary for safe and convenient inspection without additional charge. (b) No such inspection shall relieve SELLER of its obligations to furnish and warrant all Work in accordance with the requirements of this Contract. LOCKHEED MARTINs final inspection and acceptance shall be at destination. (c) If SELLER delivers nonconforming Work, LOCKHEED MARTIN may, in addition to any other remedies available at law or at equity: (i) accept all or part of such Work at an equitable price reduction; or (ii) reject such Work; or (iii) require SELLER, at SELLERs cost, to make all repairs, modifications, or replacements at the direction of LOCKHEED MARTIN necessary to enable such Work to comply in all respects with Contract requirements. (d) SELLER shall not re-tender rejected Work without disclosing the corrective action taken.

31 GD Mission Systems Section 12.0 Acceptance and/or Rejection Buyer shall accept the Goods or give Seller notice of rejection within thirty calendar days after delivery, notwithstanding any payment or prior test or inspection. No inspection, test, delay, or failure to inspect/test or failure to discover any defect or other nonconformance shall relieve Seller of any of its obligations under this Order or impair any rights or remedies of Buyer or Buyers customers. Buyer may revoke acceptance of Goods if the Goods are not conforming and if Buyers acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the Sellers assurances. If Seller delivers nonconforming Goods, Buyer may require Seller to promptly correct or re-perform the nonconforming Goods. Redelivery to Buyer of any corrected or re-perform Goods shall be at Sellers expense. In addition, Buyer may at its sole option (i) correct the nonconforming Goods, or (ii) obtain replacement Goods from another source at Sellers expense, and reduce the Order price by the costs to correct or obtain replacement. Seller shall disclose any corrective action taken. All

repair, replacement and other correction and redelivery shall be completed within the original delivery schedule or such later time as Buyers Authorized Procurement Representative may reasonably direct. All costs and expenses and loss of value incurred as a result of or in connection with nonconformance and repair, replacement or other correction may be recovered from Seller by equitable price reduction or credit against any amounts that may be owed to Seller under this Order or otherwise. 32 WARRANTIES 33 FAR 52.212-4(o)* Warranty. The Contractor warrants and implies that the items delivered hereunder are merchantable and

fit for use for the particular purpose described in this contract. *May be tailored to reflect customary commercial practices (FAR 12.203(b)) 34 Warranty Common Pressure Points Excluding implied warranties Limiting warranty period When does warranty period commence Limitations on remedy Subject matter of warranty Defects in workmanship and materials Defects in design Conform to specifications High professional standards

35 Raytheon Section 13 Warranty (a) Seller warrants that the goods shall be (i) new; (ii) free from defects in workmanship, materials, and design, and (iii) in accordance with all the requirements of this Purchase Order. Seller further warrants that the performance of work and services shall conform with the requirements of this Purchase Order and to high professional standards. (b) Unless Buyer expressly identifies the goods that are procured under this Purchase Order as non-technical and for Buyers internal use only, Seller warrants without limitation as to time that the goods delivered pursuant to this Purchase Order shall (i) be and only contain materials obtained directly from the Original Component Manufacturer (OCM) or the Original Equipment Manufacturer (OEM) (collectively, the Original Manufacturer (OM)) or an authorized OM reseller or distributor (collectively, an Authorized Distributor); (ii)

not be or contain Counterfeit Items or Suspect Counterfeit Items, as defined below; and (iii) contain only authentic, unaltered OM labels and other markings. Seller shall obtain and retain all documentation required to fully trace the distribution and sale of the goods delivered hereunder back to the relevant OM, and, on request of Buyer, shall provide such authenticating documentation. 36 .... (d) Seller warrants without limitation as to time that any hardware, software and firmware goods delivered under this Purchase Order: (i) shall not contain any viruses, malicious code, Trojan horse, worm, time bomb, self-help code, back door, or other software code or routine designed to : (a) damage, destroy or alter any software or hardware; (b) reveal, damage, destroy, or alter any data; (c) disable any computer program automatically; or (d) permit unauthorized access

to any software or hardware; (ii) shall not contain any third party software (including software that may be considered free software or open source software) that (a) may require any software to be published, accessed or otherwise made available without the consent of Buyer, or (b) may require distribution, copying or modification of any software free of charge; and (iii) shall not infringe any patent, copyright, trademark, or other proprietary right of any third party or misappropriate any trade secret of any third party. (e) These warranty entitlements shall inure to the benefit of both Buyer and Buyers customers. As used in this Purchase Order, Buyers customer(s) shall include its direct and indirect customers such as direct sale end-users, higher-tier subcontractors, prime contractors and the ultimate user under relevant prime contract(s). 37 (f) Seller shall be liable for and save Buyer harmless from any loss,

damage, or expense that Buyer may suffer from breach of any of these warranties. Remedies shall be at Buyers election, including, but not limited to, the prompt repair, replacement, or reimbursement of the purchase price of nonconforming goods and, in the case of services either the prompt correction of the defective services at no cost or reimbursement of the amounts paid for such services. Return to Seller of defective or nonconforming goods and redelivery to Buyer of repaired or replaced goods shall be at Sellers expense. Goods or services required to be corrected, repaired or replaced shall be subject to this Section and the Inspection Section of this Purchase Order in the same manner and to the same extent as goods or services originally delivered under this Purchase Order, but only as to the repaired or replaced goods or parts thereof or the corrected service thereof. Seller shall promptly comply with Buyers direction to (i) repair, rework, or replace the goods, (ii) furnish any material or parts and installation required to successfully correct the defect or nonconformance or (iii) successfully correct the defective or

nonconforming service. 38 NG FP (NC and CI) Section 12 Warranty A. Seller expressly warrants that all Product(s) delivered and Service(s) performed hereunder shall be free from defects, shall be of good materials and workmanship, shall conform to all requirements of this Order, and shall be free of any claim of any third party. B. The foregoing warranties shall survive inspection and acceptance of, and payment for, the Product(s) delivered and Service(s) performed hereunder and shall remain in effect as to each Product furnished or Service performed and shall run to Buyer, it successors, assigns, and customers. These warranties shall not be deemed to limit any warranties of additional scope given to Buyer by Seller, nor limit Buyers rights or Sellers obligations under any

other provision of this Order, at law or in equity. No warranties are waived by Buyer supplying, reviewing, commenting upon, or approving plans, specifications, or Data, issuing changes to this Order, or inspecting or accepting the Product(s) or Service(s). 39 Lockheed Section 42 Warranty SELLER warrants that all Work furnished pursuant to this Contract shall strictly conform to applicable specifications, drawings, samples, descriptions, and other requirements of this Contract and be free from defects in design, material, and workmanship. This warranty shall begin upon final acceptance and extend for a period of one (1) year. If any nonconforming Work is identified within the warranty period, SELLER, at

LOCKHEED MARTINs option, shall promptly repair, replace, or reperform the Work. Transportation of replacement Work, return of nonconforming Work, and reperformance of Work shall be at SELLERs expense. If repair, or replacement, or reperformance of Work is not timely, LOCKHEED MARTIN may elect to return, reperform, repair, replace, or reprocure the nonconforming Work at SELLERs expense. All warranties shall run to LOCKHEED MARTIN and its customers. 40 GD Mission Systems Section 6.0 Warranty Seller warrants that all Goods furnished under this Order shall conform at time of delivery to all specifications and requirements of this Order and shall be free from defects in materials and workmanship. To the extent Goods are not manufactured pursuant to detailed designs and specifications furnished by Buyer, the Goods shall be free from design and specification defects.

This warranty shall survive inspection, test, acceptance of, and payment for the Goods. This warranty extends to Buyer and its successors, assigns and customers. Such warranty shall begin with Buyers final acceptance and run for a period of one year. Unless otherwise provided in this Order, at Buyers option, Buyer may (i) return the defective goods for credit or refund, or (ii) direct Seller to promptly repair or replace defective goods, or (iii) repair or replace the defective goods using Buyers employees or third parties and recover the cost of such repair or replacement from Seller. Return to Seller of defective Goods and redelivery to Buyer of corrected or replaced Goods shall be at Sellers expense. Goods required to be corrected or replaced shall be subject to this Article 6.0 in the same manner and to the same extent as Goods originally delivered under this Order, but only as to the corrected or replaced part or parts thereof. Even if the parties disagree about the existence of a breach of this warranty, Seller shall promptly comply with Buyers direction to: (i) repair, rework or replace the Goods, or (ii) furnish any materials or parts and installation instructions required to successfully correct the defect or nonconformance. If the parties later determine that Seller did not breach this warranty, the parties shall equitably adjust the Order price. 41

PAYMENT 42 FAR 52.212-4(I) Payment. (1) Items accepted. Payment shall be made for items accepted by the Government that have been delivered to the delivery destinations set forth in this contract. (2) Prompt Payment. The Government will make payment in accordance with the Prompt Payment Act (31 U.S.C. 3903) and prompt payment regulations at 5 CFR Part 1315. (6) Interest. (i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the interest rate established by

the Secretary of the Treasury as provided in 41 U.S.C. 7109, which is applicable to the period in which the amount becomes due, as provided in (i)(6)(v) of this clause, and then at the rate applicable for each six-month period at fixed by the Secretary until the amount is paid. 43 Prompt Payment Act Fundamentals 5 CFR Part 1315; FAR 32.9; 52.232-25. Payment period begins on receipt of a proper invoice when required Payment is due 30 days of start of payment period unless specified in contract or if accelerated payment methods are not used An invoice is deemed received on the later of (1) actual receipt of an invoice or (2) the 7th day after the date goods are delivered or performance of services is completed or if a longer acceptance period is specified in the contract (constructive acceptance period for calculating interest)

PPA regs require acceptance to be executed as promptly as possible. Commercial items not be subject to extensive acceptance period Acceptance is defined as an acknowledgement by the Government that goods received and services rendered conform with the contract requirements. For cost reimbursement contracts, payment is 30 days after date of receipt of a proper invoice. Not applicable to subcontracts except for construction contracts (payment within seven days of payment from agency) 44 Raytheon TC-002 (10/17) Looks to the FAR for Cost and T&M Contracts 52.216-7 Allowable Cost and Payment 52.216-8 Fixed Fee (allows withholding of a reserve) 52.232-7 Payments Under T&M and Labor Hour

Contracts 52.232-20 Limitation of Cost (fully funded POs) 52.232-22 Limitation of Funds (incrementally funded Pos) 45 NG (FP NC and CI) Section 6 Payment Payment terms will be stated in the Order. Payment due dates, including discount periods, will be calculated from the date of Buyers receipt of acceptable Product(s) or Service(s) or correct invoice, whichever is later. Any applicable discount will be taken on the full amount invoiced. Buyer has the right, without loss of discount privileges, to pay invoices covering Products shipped in advance of schedule on the normal maturity after the date specified for delivery. Payment shall not constitute acceptance or approval of Products or Services rendered. At any time

prior to final payment under this Order, Buyer may have invoices validated. Payment of Sellers invoices shall be subject to adjustment for any amounts found to have been improperly invoices. Buyer shall be entitled at all times to set off (a) any amount owing at any time from Seller to Buyer or any of its affiliated companies; (b) any damages resulting from Sellers default under or breach of any contract (including any purchase order and these terms); (c) any adjustment for shortage or rejection and any associated costs, against any amount payable at any time by Buyer or any of its affiliated companies to Seller. In the event the Order does not include payment terms, payment will occur within forty-five (45) days from Buyers receipt of acceptable Product(s) or Service(s) or correct invoice, whichever is later. WHEN DOES ACCEPTANCE OCCUR? 46 Lockheed Section 27 Payments, Taxes and Duties

(a) Unless otherwise provided, terms of payment shall be net thirty (30) days from latest of the following: (1) LOCKHEED MARTINs receipt of SELLERs proper invoice; (2) scheduled completion of performance date of the Work; or (3) actual completion of performance of the Work. (b) Each payment made shall be subject to reduction to the extent of amounts which are found by LOCKHEED MARTIN or SELLER not to have been properly payable, and shall also be subject to reduction for overpayments. SELLER shall promptly notify LOCKHEED MARTIN of any such overpayments and remit the amount of the overpayment except as otherwise directed by LOCKHEED MARTIN. (c) LOCKHEED MARTIN shall have a right of setoff against payments due or at issue under this Contract or any other Contract between parties. (d) Payment shall be deemed to have been made as of the date of mailing LOCKHEED MARTINs payment or electronic funds transfer. (e) Unless otherwise specified, prices include all applicable federal, state, and local taxes, duties, tariffs, and similar fees imposed by any government, all of this shall

be listed separately on the invoice. 47 GD Mission Systems FP Section 15.0 Invoice and Payment Payment of the Order price or any portion thereof for Goods delivered shall not constitute acceptance. Buyer shall pay for all Goods within sixty calendar days from (1) the date Goods are received if Seller is on the Pay From Receipt Program or (2) the date of a receipt of an acceptable invoice if later unless the Parties agree to a cash discount. In the event of early-unauthorized delivery of Goods by Seller, payment shall be computed from the scheduled delivery date, including discount periods. Buyer may pay Seller by electronic funds transfer (EFT) or by check unless otherwise stated in the Order. Seller shall provide Buyer with its EFT information. Payment is made on the day Buyer gives instructions

to execute payment, or the date Buyers check is deposited into the U.S. mail, or payment is otherwise tendered. Seller shall promptly repay to Buyer any amounts paid in excess of amounts due Seller. 48 INTELLECTUAL PROPERTY 49 Raytheon Preamble: For the avoidance of doubt, the words Government and Contracting Officer do not change: when a right, act, authorization, or obligation can be granted or performed only by the Government or the prime contract Contracting Officer or duly authorized representative . . . or when title is to be

transferred directly to the Government. FAR 52.227-11 (Applicable to POs for experimental, developmental, or research work to be performed by a small business concern or nonprofit organization) FAR 52.227-14 Rights in Data -- General 50 Raytheon Preamble: With respect to any DFARS clause . . . relating to rights in noncommercial technical data and noncommercial computer software and noncommercial computer software documentation, the Seller grants to Buyer the right to use, disclose, modify, combine, integrate or make derivative works of any [such data] delivered . . . to the extent necessary, and for such period as required, for Buyer to complete its performance under the Buyers U.S. Government programs. 252.227-7038 Patent Rights Ownership by the Contractor (Large Business)

252.227-7013 Rights in Technical Data Noncommercial Items (tied to delivery of technical data) 252.227-7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation (tied to delivery) 252.227-7015 Technical Data Commercial Items (tied to delivery) 252.227-7017 Identification and Assertion of Use, Release, or Disclosure Restrictions 252.227-7019 Validation of Asserted Restrictions Computer Software 252.227-7026 Deferred Delivery of Technical Data or Computer Software 252.227-7027 Deferred Ordering of Technical Data or Computer Software 51 TERMINATION 52

FAR 52.212-4(l)* Termination for the Governments convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractors records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided. *May be tailored to reflect customary commercial practices (FAR 12.203(b))

53 FAR 52.212-4(m)* (m) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience. *May be tailored to reflect customary commercial practices (FAR 12.203(b)) 54

WHAT DOES THE PRIME CONTRACTOR ALWAYS DO? Watch out for 52.249-2 incorporated by reference. 55 Raytheon Section 5 Termination for Default (a) Buyer may, after providing Seller with ten (10) calendar days written notice, and upon Sellers failure to cure such default in that ten (10) day period (Cure Period), terminate this Purchase Order in whole or in part at any time by notice in writing for (i) breach of any one or more of its terms, (ii) failure to deliver goods or services within the time specified by this Purchase Order or any written extension, (iii) failure to make progress so as to endanger performance of this Purchase Order, or (iv) failure to provide

adequate assurance of future performance; provided, however, there shall be no Cure Period for default related to failure to meet the delivery schedule or defaults incapable of cure. Buyer may also terminate this Purchase Order in whole or in part without a Cure Period in the event of Sellers suspension of business, insolvency, appointment of a receiver for Sellers property or business, or any assignment, reorganization or arrangement by Seller for the benefit of its creditors. In the event of partial termination, Seller is not excused from performance of the non-terminated balance of work under the Purchase Order. (b) In the event of Sellers default hereunder, Buyer may exercise any or all rights and remedies accruing to it, both at law, including without limitation, those set forth in Article 2 of the Uniform Commercial Code, or in equity, including but not limited to, Sellers liability for Buyers excess re-procurement costs for goods or services. (c) If this Purchase Order is terminated for default, Buyer may require Seller to transfer title to, and deliver to Buyer, as directed by Buyer, any (1) completed supplies, and (2) partially completed supplies and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights that Seller has specifically produced or acquired for the termination portion of this Purchase Order. Upon direction of Buyer, Seller shall also protect and preserve property in its possession in which Buyer has an

interest. 56 Section 6 Force Majeure Except for a default of Sellers subcontractor at any tier, neither Buyer or Seller shall be liable for any failure to perform due to any cause beyond their reasonable control and without their fault or negligence. Such causes include, but are not limited to, acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, terrorism, quarantine restrictions, strikes, freight embargoes, and unusually severe weather. In the event that performance of this Purchase Order is hindered, delayed or adversely affected by causes of the type described above (Force Majeure), then the Party whose performance is so affected shall so notify the other Partys authorized representative in writing and, at

Buyers option, this Purchase Order may be completed with such adjustments to delivery schedule as may reasonably be required by the existence of Force Majeure. 57 SUBCONTRACTOR FLOW-DOWNS 58 Flow-Down Clauses Required Flow-Downs vs. Discretionary Flow-Downs Some cannot be flowed down e.g., Disputes Clause Some are to protect the primes interests e.g., termination, stop work, suspension, changes,

warranty, DPAS, and IP rights clauses 59 Mandatory Flow-Down Clauses Non-Negotiable Often Conditioned on Contract Type, Type of Work to be Performed and Total Anticipated Contract Value FAR and DFARS limit flow-downs on commercial item subcontracts (listed in FAR 52.212-5(e)(1), FAR 52.2446(c)(1)) and 252.224-7000) plus a minimal number of additional clauses necessary to satisfy . . . Contractual obligations 60 More on Commercial Item Subcontracts FAR 12.504 and FARS 212.504 lists laws that are not

subject to subcontracts at any tier. Some exemptions listed in clauses themselves: FAR 52.203-14 Display of Hotline Posters FAR 52.219-9 Small Business Subcontracting Plan 61 How to Flow Down Clauses FAR 52.102 recommends incorporation by reference versus full text and that they be tailored on a contract-bycontract basis. Primes must flow down version of the clause in the Prime contract. Earlier versions of clauses available at Archives tab of website Primes should alter terms to fit the subcontract but watch for global alterations 62

Suggested Categories for Flow-Downs Prime (Commercial) Prime (Non-Commercial) Sub (Non-Commercial) Prime (Non-Commercial) Sub (Commercial) Regardless of contract value Value exceeds certain dollar amounts DoD Prime Contract 63

The following FAR clauses apply to this Contract regardless of value 52.202-1 DEFINITIONS. 52.204-21 BASIC SAFEGUARDING OF COVERED CONTRACTOR INFORMATION SYSTEMS (Applicable to all Orders where Seller will have Federal contract information, as defined by the clause, residing in or transiting through its information system). 52.219-8 UTILIZATION OF SMALL BUSINESS CONCERNS. 52.222-21 PROHIBITION OF SEGREGATED FACILITIES. 52.222-26 EQUAL OPPORTUNITY. 52.222-41 SERVICE CONTRACT LABOR STANDARDS (Applicable to Orders that are subject to the Service Contract Labor Standards statute). The following FAR clause(s) apply to this Contract if the value of this Contract is equal to or exceeds $150,000

52.203-19 PROHIBITION ON REQUIRING CERTAIN INTERNAL CONFIDENTIALITY AGREEMENTS OR STATEMENTS. 52.215-2 AUDIT AND RECORDS NEGOTIATION. 52.222-17 NONDISPLACEMENT OF QUALIFIED WORKERS (Applicable when Services are to be performed by the Seller (1) under service contracts, (2) that succeed Orders for performance of the same or similar work at the same location, and (3) that are not exempt by FAR 22.1203-3 or waived in accordance with FAR 22.1203-3. Seller to furnish information needed by Buyer to comply with the paragraphs (d) and (e) of this clause). 52.222-35 EQUAL OPPORTUNITY FOR VETERANS. 52.222-37 EMPLOYMENT REPORTS ON VETERANS. 52.227-1 AUTHORIZATION AND CONSENT (Applicable to Orders that exceed the simplified acquisition threshold). 64 A. The following DFARS clauses are applicable if this Order is placed under a

Department of Defense Prime Contract and is for procuring commercial items 1. The following DFARS clauses apply to this Contract regardless of value 252.204-7012 SAFEGUARDING COVERED DEFENSE INFORMATION AND CYBER INCIDENT REPORTING (Applicable to Orders for operationally critical support or for which performance will involve covered defense information, as defined in this clause. Buyer shall notify Seller when submitting a request to vary from a NIST SP 800-171 security requirement to the Governments Contracting Officer, in accordance with paragraph (b)(2)(ii)(B) of this clause; and provide to the Buyer the incident report number, automatically assigned by DoD as soon as practicable, when reporting a cyber incident to DoD as required in paragraph (c) of the clause.). 252.204-7015 NOTICE OF AUTHORIZED DISCLOSURE OF INFORMATION FOR LITIGATION SUPPORT. 252.223-7008 PROHIBITION OF HEXAVALENT CHROMIUM (Applicable to all Orders for supplies, maintenance and repair services or construction materials). 252.225-7000 BUY AMERICAN--BALANCE OF PAYMENTS PROGRAM CERTIFICATE. 252.225-7009 RESTRICTION ON ACQUISITION OF CERTAIN ARTICLES CONTAINING SPECIALTY METALS (Applicable, except for paragraph (d) and (e)(1) which are deleted from

this clause) (Applicable to Orders for items containing specialty metals to ensure compliance of the end products that Buyer will deliver to the Government). 252.225-7020 TRADE AGREEMENTS CERTIFICATE . 65

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