1. ACCEPTANCE. Acceptance of this Agreement must be in accordance with and strictly limited to these Terms and Conditions. An attempted acknowledgment or acceptance which contains provisions conflicting or additional to these Terms and Conditions or which varies any terms or conditions shall have no force or effect. Performance by the Seller without an executed acknowledgment shall be deemed to be performance in accordance with these Terms and Conditions.

2.  DEFINITIONS. The following terms shall have the meanings below:

(a) "Government" means the United States of America and includes the U.S. Department of Energy (DOE) or any duly authorized representative thereof. This Agreement does not bind nor purport to bind the Government.
(b)"Brookhaven", "BNL", "the Laboratory", and/or "the Buyer" mean Brookhaven Science Associates, LLC (BSA), acting under Prime Contract No. DE-AC02-98CH10886 between BSA and the Government for the operation of Brookhaven National Brookhaven (BNL), and includes the successor to, or any duly authorized representative of BSA.
(c)"Seller" means the person or organization that has entered into this Agreement with Brookhaven.
(d)"Agreement" means purchase order, contract, basic ordering agreement (BOA), blanket order, or modification thereof.
(e) The clause at FAR 52.202-1, Definitions, is incorporated herein by reference.

3.  DISPUTES. The Seller agrees to submit all disputes, claims or controversies arising out of or relating to this agreement to negotiation and then mediation before bringing any action in court. The Seller further acknowledges that, in the event it brings any such action in court, that it will bring that action in a court sitting in the State of New York, and it further acknowledges that it is hereby waiving any right that it might possess to demand a jury trial for the litigation of that action. The Seller further acknowledges that it is giving up any rights to judicial remedies and procedures to the extent that this Agreement does not specifically provide for them. The Seller further acknowledges that its agreement to the provision for this contract is voluntary. Pending settlement or a final judgment, the Seller shall proceed diligently with the performance hereof according to Brookhaven's decisions and instructions.

4. EXCUSABLE DELAYS. The 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 such as acts of God or the public enemy, acts of Brookhaven, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Seller shall notify Brookhaven 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 Brookhaven of the cessation of such occurrence.

5. TERMINATION FOR BROOKHAVEN'S CONVENIENCE. Brookhaven reserves the right to terminate this Agreement, or any part hereof, for its sole convenience. In the event of such termination, the Seller shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and sub-contractors to cease work. Subject to the terms of this Agreement, the Seller shall be paid a percentage of the agreement price reflecting the percentage of the work performed and/or items delivered and accepted prior to the notice of termination, plus reasonable charges that the Seller can demonstrate to the satisfaction of Brookhaven using its standard record keeping system, have resulted from the termination. The Seller shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give Brookhaven any right to audit the Seller's records. The Seller shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

7. CHANGES. Any changes or modifications in the Terms and Conditions of this Agreement may be made only by written agreement of the parties and with written approval of Brookhaven's Procurement and Property Management Division Manager, or designee.

8.  INSPECTION. The Seller shall only tender for acceptance those items that conform to the requirements of this Agreement. Brookhaven reserves the right to inspect or test any supplies or services that have been tendered for acceptance. Brookhaven may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in price. Brookhaven must exercise its post-acceptance rights:

 (a) within a reasonable time after the defect was discovered and,
(b) before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

9. PAYMENT. Payment shall be made for items accepted by Brookhaven that have been delivered to the delivery destinations set forth in this Agreement. Invoices sent by the Seller anywhere other than to Accounts Payable, Bldg. 134B, are not deemed to have been officially received for payment term purposes. Upon the submission of proper invoices or vouchers, Brookhaven shall make payment at the prices stipulated in the Agreement by check, electronic funds, or as the parties may otherwise agree. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the date on which an electronic funds transfer was made.

11. ASSIGNMENT. Neither this Agreement nor any interest therein nor claim there under shall be assigned or transferred by the Seller except as expressly authorized in writing by Brookhaven, provided that the Seller or its assignee’s rights to be paid amounts due as a result of performance of this Agreement may be assigned to a bank, trust company or other financing institution, including any Federal lending institution. This Agreement is assignable by Brookhaven to the Government or to a successor contractor for the operation of Brookhaven National Laboratory.

12. TITLE. Unless specified elsewhere in this Agreement, title to items furnished under this Agreement shall pass to the Government upon acceptance, regardless of when or where Brookhaven takes physical possession. If Brookhaven makes partial or progress payments, title shall pass to the Government for the items covered by the payment.

13. RISK OF LOSS. Unless the Agreement specifically provides otherwise, risk of loss or damage to the supplies provided under this Agreement shall remain with the Seller until delivery of the supplies to the destination specified in the Agreement.

14.     WARRANTY. Seller warrants that the items under this Agreement shall be in accordance with Seller’s affirmation, description, sample, or model and compliant with all requirements of this Agreement. The warranty shall begin upon acceptance and extend for a period of (1) the manufacturer’s warranty period or six months, whichever is longer, if the Seller is not the manufacturer and has not modified the item; or, (2) one year or the manufacturer’s warranty period, whichever is longer, if the Seller is the manufacturer of that item or has modified it. If any nonconformity with the item appears within that time, the Seller shall promptly repair or replace such items or re-perform services. Transportation of replacement items and return of nonconforming items and repeat performance of services shall be at the Seller’s expense. If repairs or replacement items or reperformance of services is not timely, Brookhaven may elect to return the nonconforming items or repair or replace them or reprocure the services at the Seller’s expense. The Seller warrants and implies that the terms delivered hereunder are merchantable and fit for use for the particular purpose described in this Agreement.

16.    COMPLIANCE WITH LAWS. The Seller shall comply with all applicable federal, state, local laws and ordinances, executive orders, all pertinent lawful orders, rules and regulations and such compliance shall be a material requirement of this Agreement. Seller warrants that each chemical substance constituting or contained in items furnished by this contract is on the list of substances published by the Administrator of the Environmental Protection Agency pursuant to the Toxic Substances Control Act, as amended. With each delivery Seller shall provide Brookhaven any applicable Material Safety Data Sheet as required by the Occupational Safety and Health Act and applicable regulations including, without exception, 29 CFR 1910.1200.

17. AUTHORIZATION AND CONSENT. The Government has given its authorization and consent for all use and manufacture of any invention described in and covered by a patent of the United States in the performance of this Agreement or any part hereof or any amendment hereto or any subcontract hereunder (including any lower-tier subcontract) which is expected to exceed $100,000.

18. PATENT INDEMNITY-SUPPLIES AND SERVICES. If the amount of this Agreement is in excess of $10,000, the Seller shall indemnify Brookhaven, the Government, and their officers, agents, and employees against liability, including costs, for infringement of any United States letters patent (except U.S. letters patent issued upon an application which is now or may hereafter be kept secret or otherwise withheld from issue by order of the Government) arising out of the manufacture or delivery of supplies or out of construction, alteration, modification, or repair of real property (hereinafter referred to as "construction work") under this contract, or out of the use or disposal by or for the account of the Government or Brookhaven of such supplies or construction work. The foregoing indemnity shall not apply unless the Seller shall have been informed as soon as practicable by the Government (with notice to Brookhaven) of the suit or action alleging such infringement, and shall have been given such opportunity as is afforded by applicable laws, rules, or regulations to participate in the defense thereof, and further, such indemnity shall not apply to:

(a) An infringement resulting from compliance with specific written instructions of Brookhaven or the Government directing a change in the supplies to be delivered or in the materials or equipment to be used, or directing a manner of performance of the Agreement not normally used by the Seller.
(b) An infringement resulting from addition to, or change in, such supplies or components furnished or construction work performed which addition or change was made subsequent to delivery or performance by the Seller, or
(c) A claimed infringement which is settled without the consent of the Seller, unless required by final decree of a court of competent jurisdiction.

19. REPORTING OF ROYALTIES. If this Agreement is in an amount which exceeds $10,000 and if any royalty payments totaling more than $250 are directly involved in the Agreement or are reflected in the Agreement price to Brookhaven, the Seller agrees to report in writing to the Government through Brookhaven during the performance of this Agreement and prior to its completion or final settlement the amount of any royalties or other payments paid or to be paid by it directly to others in connection with the performance of this contract together with the names and addresses of licensors to whom such payments are made and either the patent numbers involved or such other information as will permit identification of the patents or other basis on which royalties are to be paid. The approval of DOE or Brookhaven of any individual payments or royalties shall not stop the Government at any time from contesting the enforceability, validity or scope of, or title to, any patent under which a royalty or payments are made.   

20. NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT. The provisions of this clause shall be applicable only if the amount of this Agreement exceeds $100,000.

(a) The Seller shall report to the Government through Brookhaven promptly and in reasonable written detail, each notice or claim of patent or copyright infringement based on the performance of this Agreement of which the Seller has knowledge.
(b) In the event of any claim or suit against the Government on account of any alleged patent or copyright infringement arising out of the performance of this Agreement or out of the use of any supplies furnished or work or services performed hereunder, the Seller shall furnish to the Government when requested by the Government or Brookhaven, all evidence and information in possession of the Seller pertaining to such suit or claim. Such evidence and information shall be furnished at the expense of the Government except where the Seller has agreed to indemnify the Government or Brookhaven.
(c) This clause shall be included in all subcontracts.

21.  SUSPECT/ COUNTERFEIT PARTS.

(a) "Suspect/Counterfeit Parts" are parts that may be of new manufacture, but labeled to represent a different class of parts, or used and/or refurbished parts, complete with false labeling, that are represented as new parts. Three categories of suspect/counterfeit parts exist:

(1) Fasteners, including bolts and nuts, made of carbon steel (designated as grade five or grade eight) or stainless steel, with headmarks or stamps shown on the headmark list that was prepared by the United States Customs Service.
(2) Piping valves and flanges bearing labels ASME or that falsely indicate that the items meet recognized ASTM consensus standards, and;
(3) Used or refurbished molded-case electrical circuit breakers or similar type switch gear.

(b) Supplies furnished to Brookhaven under this contract shall not include suspect/counterfeit parts nor shall such parts be used in performing any work under this contract whether on or off the Laboratory site.

(c) If suspect/counterfeit parts are furnished under this Agreement and are found on the Laboratory site, such parts shall be impounded by Brookhaven or they shall be removed by the Seller as directed by Brookhaven. The Seller shall promptly replace such parts with supplies acceptable to Brookhaven and the Seller shall be liable for all costs relating to impoundment, removal, and replacement.

(d) The rights of Brookhaven in this clause are in addition to any other rights provided by law or under this Agreement.

22. APPLICABLE LAW. The parties agree that the Federal common law of government contracts will govern the construction and interpretation of this Agreement and all claims arising under or related to this Agreement or work performed under this Agreement or claims of breach of this Agreement, regardless of the forum in which any party to this Agreement brings action. For purposes of this Agreement, the Federal common law of government contracts will consist of the interpretation of contract clauses and the law enunciated and applied to government contracts by the Boards of Contract Appeals, the Comptroller General (CG), and Federal Courts having jurisdiction over the Boards or the CG. The term "Board of Contract Appeals" means those established under the Contract Disputes Act of 1978, 41 U.S.C. 607(a)(1), and their predecessor bodies.

23. STATUTES OR EXECUTIVE ORDERS INCORPORATED BY REFERENCE. The Seller agrees to comply with the following FAR clauses, which are incorporated in this Agreement by reference as they exist on the date of this Agreement, to implement provisions of law or executive orders applicable to acquisitions of commercial items. For FAR provisions incorporated by reference, "Government" means "Brookhaven", "Contracting Officer" means "Brookhaven’s Division of Procurement and Property Management authorized personnel", and "Contractor" means "Seller" except where statute or regulation vests authority exclusively in specific agencies or officials. The FAR clauses may be obtained from the Superintendent, U.S. Government Printing Office, Washington, D.C. or through the General Services Administration (GSA) at http://www.arnet.gov/far/ . To the maximum extent practicable, the Seller shall incorporate, and require its subcontractors, divisions, subsidiaries, or affiliates at all tiers to incorporate commercial items or non-developmental items as components of items to be supplied under this Agreement. The Seller is not required to include any FAR provisions or clauses other than those listed below to the extent that they are applicable and as may be required to establish the reasonableness or prices under FAR Part 15, in a subcontract at any tier for commercial items or components. The Seller shall include the terms of this clause, including this statement, in subcontracts awarded under this contract.

•  23.1     FAR 52.209-6, Protecting the Government’s Interest when Subcontracting with Contractors Debarred,             Suspended, or Proposed for Debarment.

•  23.2     FAR 52.219-8. Utilization of Small Business Concerns (for orders greater than $500,000, required flowdown to lower tier subcontracts that offer subcontracting opportunities).

• 23.3     FAR 52.222-26, Equal Opportunity (E.O. 11246) (agreements greater than $10,000).

• 23.4     23.4 FAR 52.222-35, Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era (agreements greater than $10,000).

• 23.5     FAR 52.222-36, Affirmative Action for Workers with Disabilities (agreements greater than $10,000).

• 23.6     FAR 52.247-64, Preference for Privately Owned U.S. Flagged Commercial Vessels

(Rev.1, Aug 01)