Exhibit
10.4
PURCHASE ORDER #H80133
UNISYS
UNISYS Government System, Inc.
7455-J New Ridge Road
Hanover, MD 21076
Division: PAO
Buyer: 69
Date of Order: 98-11-13
Type of Order: Change Order
Same Ship To Address
Terms: Net 30 days
Freight: Prepaid
FOB: Destination
Ship Via: See below
This change order #2. Dated 11/13/98 is issued to :
1) Change requested delivery date to 2/28/99 for all items TSI
letter as
accepted by customer.
All other terms and conditions remain unchanged.
Item Vendor Part Number Delivery Date Quantity Unit Price
001 TSI-TCGS75 99-02098
Redundant CCSDS
Gateway System
Value for Line item
001
Contract: NAS5-96010 Rating: DOA7
002 TSI-RCGS75-MTS 99-02028
RCGS75 Monitoring &
Test System
Value for Line item
002
Contract: NAS5-96010 Rating: DOA7
Total Value of $1,581,204.00
Contract
The following special provisions apply to all items on this
purchase order:
INSPECTION CODES: H
Previous PO Value 1581204.00
Value of Change 0.00
Current PO Value 1581204.00
IMPORTANT SELLER NOTE:
This order is subject to UNISYS specifications. If any
discrepancies exist
between UNISYS specifications and vendor specifications UNISYS
specifications
shall apply. Packing slip must accompany each delivery.
SHOW P.O. NUMBER ON ALL PACKAGES AND DOCUMENTS.
This is a rated order certified for national defense use, and you
are required
to follow all the provisions of the defense priorities and
allocations system
regulation (15 CFR Part 350). Items indicated on this purchase
order are
intended for ultimate use under government contract.
PURCHASE ORDERS UNDER $500.00 REQUIRE NO WRITTEN ACKNOWLEDGEMENT
TO UNISYS.
Address all inquiries to:
Buyer: Robert Fronczak
Phone: 410-694-4300
SUBCONTRACT NUMBER: NAS5-96-010-027
BETWEEN
UNISYS CORPORATION
AND
TSI TELSYS INC.
UNDER
PRIME CONTRACT NO. NAS5-96-010
FOR THE
NASA SCIENTIFIC AND ENGINEERING WORKSTATION PROCUREMENT II
("SEWP II")
PROGRAM
Date: 7/1/1997
TABLE OF CONTENTS
PAGE
NUMBER
Part I Subcontract
Article I Scope 1
1.1 Products 1
1.2 Services 1
1.3 Product Family Category 1
1.4 Discount 1
1.5 Warranty 2
1.6 Extended Warranty/Maintenance 2
1.7 Purchase Orders 2
1.8 Discontinued Products 2
1.9 Technology Refreshment 2
Article II Subcontract Term 3
Article III Packaging, Shipment and Delivery 3
Article IV Invoices and Payment 3
4.1 Invoices 3
4.2 Payment 4
Article V Inspection and Acceptance 4
Article VI Federal Acquisition Regulations 4
6.1 Incorporation by Reference of Certain
Federal
Acquisition Regulation (FAR) Clauses 4
6.2 Subcontracts 4
Article VII Notices 4
Article VIII Order of Precedence 5
Part II: Schedules
The below identified Schedules which are applicable to
this Subcontract
are incorporated herein.
Schedule A: Product Discounts and Pricing
Schedule B: Software/Firmware
Schedule C: Packaging, Shipment and Delivery
Attachment 1: Bar Code Labeling Procedures
Schedule D: Inspection and Acceptance
Schedule E: Warranty
Attachment 1: Standard Commercial Warranty
Procedures
Schedule F: Extended Warranty/Maintenance and Repair
Attachment 1: Extended Warranty/Maintenance
Pricing and Plans
Schedule G: Other Subcontractor Services
Schedule H: Insurance
Schedule I: Federal Acquisition Regulation
Schedule J: Technical Specifications
Schedule K: Subcontractor Representations and Certifications
Schedule L: Special Requirements
Part III: General Provisions
-
1-
SUBCONTRACT
This subcontract, including all Schedules annexed hereto
and any other
documents incorporated herein by reference ("Subcontract") is made
this 1st day
of May, 1997, by and between Unisys Corporation, a Delaware
corporation, with a
place of business at 8008 Westpark Drive, McLean, VA 22102
("Unisys"), and TSI
TelSys Inc., a Maryland corporation, with its principal place
of business at
7100 Columbia Gateway Drive, Columbia Maryland 21046
("Subcontractor"), under
Prime Contract No. NAS5-96-010 ("Prime Contract"), which has the
program name
of SEWP II ("Program").
PART I
IN CONSIDERATION of the mutual covenants herein contained, and for
other good
and valuable consideration, the parties, intending to be legally
bound by the
provisions herein, agree as follows:
ARTICLE I: SCOPE
1.1 PRODUCTS
Products are defined as the hardware, software, firmware and
documentation
listed in Schedule A, including any acceptable new Product
and/or acceptable
replacement, substitute, enhancement, or add-on to an
existing Product.
Product(s) provided hereunder shall conform to the commercial
item definition
provided in FAR Part 2.101.
Subcontractor must make available to Unisys any replacement,
substitute,
enhancement, add-on and/or new product within five (5) business
days after its
first commercial announcement.
1.2 SERVICES
Services are defined as the Warranty and Maintenance of the
Product(s) defined
above. Services shall comply with the requirements of the Prime
Contract and
this Subcontract. Subcontractor's Warranty obligations are
defined in Schedule
E, and Subcontractor's Extended/Maintenance obligations are
defined in Schedule
F.
1.3 PRODUCT FAMILY CATEGORY
Product Family Category is defined as a group of Products.
Products will be
grouped and/or classified into a Product Family Category or
Product Family
Categories. Individual Product items will be grouped into a
single Product
Family Category. Product Family Categories are identified in
Schedule A.
1.4 DISCOUNT
Discount is defined as a firm-fixed discount from the commercial
list price. A
Product Family Category will have a single Discount for
the term of the
Subcontract. Different Product Family Categories may have
different discounts.
Subcontractor will provide all Product grouped into a particular
Product Family
Category at the Discount associated with that Product Family
Category.
If in the course of this Subcontract, a Product's GSA Schedule
price, as a
percentage off its commercial list price, decreases,
Subcontractor's Discount
to Unisys shall also increase by the same change in
percentage. The new
Discount shall be effective on the same date as the new GSA
Schedule price or
change in GSA Schedule discount. At no time will the Discount be
less than the
GSA Schedule discount or that discount offered by
Subcontractor to its most
favored reseller.
1.5 WARRANTY
Warranty is defined as the Subcontractor's standard commercial
warranty, as
modified in Schedule E of this Agreement. Subcontractor shall
furnish a Product
Warranty, for a period of one (1) year for all hardware
Product(s), and, for a
period of ninety (90) days for all software Product(s), in
accordance with the
terms of Schedule E and the Subcontractor's standard
commercial warranty,
incorporated herein as Schedule E, Attachment 1.
Warranty shall be be provided at no additional cost and shall be
included in
the purchase price of the Product(s).
1.6 EXTENDED WARRANTY/MAINTENANCE
Extended Warranty/Maintenance is defined as the terms presented
in Schedule F
and the Subcontractor's hardware and software maintenance plans,
as detailed in
Schedule F Attachment 1. As may be required from time to time
by Unisys,
Subcontractor shall provide Extended Warranty/Maintenance in
accordance with
the terms and pricing specified and incorporated herein as
Schedule F. Unisys
is under no obligation to purchase Extended
Warranty/Maintenance or repair
services from Subcontractor.
1.7 PURCHASE ORDERS
This is an INDEFINITE DELIVERY/INDEFINITE QUANTITY type
subcontract. During the
Term of the Subcontract, Subcontractor agrees to furnish Unisys
the Products
and Services listed in the Schedules at the Discount(s) specified
therein. No
Product or Service is ordered for delivery by virtue of being
listed in any
Schedule hereto. All Products and Services to be
purchased/licensed hereunder
shall be made pursuant to purchase orders ("Purchase Orders")
issued by Unisys
to Subcontractor. The terms and conditions of this Subcontract
shall control
all orders released under the Program, irrespective of whether
this Subcontract
is referenced by the Purchase Order, and no terms or conditions on
any invoice,
form or acknowledgment of either party (other than specific
delivery
instructions consistent with the requirements herein) shall be of
any force or
effect, unless expressly agreed to in a separate writing by both
parties.
Purchase Orders and related instructions which are consistent with
the terms of
this Subcontract shall be accepted by Subcontractor.
1.8 DISCONTINUED PRODUCTS
In order for Product to be replaced it must be discontinued by the
manufacturer. The definition of "discontinued" also encompasses
Product(s)
still advertised by the Subcontractor as available but which can
only be
acquired by special order and therefore, which involves either a
significant
cost in excess of comparable market items or a prohibitive delay
in
availability. Subcontractor must provide Unisys with a notice, in
writing,
sixty (60) days in advance of Product discontinuance or "End-of-
Life".
1.9 TECHNOLOGY REFRESHMENT
A. Replacement, Substitution, Enhancement, and Add-On Products
During the term of this Agreement, Subcontractor may propose
replacement,
substitution, enhancement or add-on products to any Product
which is part
of this Subcontract. Any such product must be offered to
Unisys under the
same Product Family Category, and with the same Discount,
Warranty,
Maintenance, and other terms and conditions as the Product
for which it is
being offered as a replacement, substitution, enhancement, or
add-on. For
each replacement, substitute, enhancement, or add-on product
offered,
Subcontractor shall provide documentation to support that the
functionality and performance characteristics of the
replacement,
substitute, enhancement, or add-on product are equal to or
greater than
the functionality and performance characteristics of the
Product for which
the replacement, substitute, enhancement, or add-on product
is offered.
Those products which are acceptable to Unisys and the
Government will be
added to this Agreement through a unilateral subcontract
modification.
Unisys will have the final determination on any such product
changes and
such decisions shall not be subject to the Disputes provision
of this
Subcontract. Unisys acceptance is conditional on Government
approval.
B. New Products
During the term of this Agreement, upon commercial
announcement of new
products that can be technically added to Products provided
hereunder,
Subcontractor shall offer all said products for addition to
the
Subcontract. Any such product must be offered to Unisys at
the terms and
conditions established in this Agreement. New Product will be
assigned to
a particular Product Family Category, and accorded the
Discount and terms
and conditions specified for that particular Category.
Those products which are acceptable to Unisys and the
Government will be
added to this Agreement through a unilateral subcontract
modification.
Unisys will have the final determination on any such product
changes, and
such decisions shall not be subject to the Disputes provision
of this
Subcontract. Unisys acceptance is conditional on Government
approval.
ARTICLE II: SUBCONTRACT TERM
The Term of this Subcontract shall commence on the effective date
of the Prime
Contract and terminate on November 12, 2000, unless sooner
terminated in
accordance with any provision of this Subcontract. The Prime
Contract is a four
year contract featuring a base year and three (3) one-year
options.
ARTICLE III: PACKAGING, SHIPMENT AND DELIVERY
Products and Services specified in the Schedules shall be
delivered/ provided
by Subcontractor within the timeframe, and at the locations,
specified on the
Purchase Order, and in accordance with the requirements in
Schedule C,
PACKAGING, SHIPMENT AND DELIVERY.
ARTICLE IV: INVOICES AND PAYMENT
4.1 INVOICES
Subcontractor shall submit invoices for payment for the Products
and Services
accepted under this Subcontract by Unisys and/or the Government.
Invoices for
Products may be submitted after the date of delivery of such
Products to the
Government site. Invoices for Services shall be submitted on an
annual basis
in advance of the year for which such Services were rendered. All
invoices
shall provide the following information: (i) name and address of
Subcontractor; (ii) invoice date; (iii) Prime Contract number,
Subcontract
number, Purchase Order number; (iv) Subcontract line item
number(s),
description, serial numbers, quantity and unit and extended
price(s) of
Products delivered or Services performed; (v) date(s) that
Products were
delivered or services rendered; (vi) shipping date(s) and bill of
lading
number(s); (vii) payment terms including any prompt payment
discounts; (viii)
name and address of Subcontractor official to whom payment is to
be sent; (ix)
name, title, phone number and mailing address of person to be
notified in event
of a defective invoice; (x) credits (if applicable); and (xi) any
other
information or documentation required by the Prime Contract or
reasonably
requested by Unisys.
4.2 PAYMENT
A. PRODUCTS AND SERVICES. Unisys shall pay Subcontractor for
Products and
Services net thirty (30) days after Government
acceptance of the
Product/Services, or upon receipt of a proper invoice from
Subcontractor,
whichever is later.
ARTICLE V: INSPECTION AND ACCEPTANCE
The Products and Services ordered hereunder shall not be accepted
and no
charges shall be paid unless and until the Products meet the
standard of
performance set forth in the Prime Contract and Schedule D,
INSPECTION AND
ACCEPTANCE, and are accepted by the Government. Products and
Services will be
accepted by Unisys on the date such Products and Services are
accepted by the
Government. Any Products or Services not accepted by the
Government shall be
rejected by Unisys.
ARTICLE VI: FEDERAL ACQUISITION REGULATION
6.1 INCORPORATION BY REFERENCE OF CERTAIN FEDERAL ACQUISITION
REGULATION (FAR)
CLAUSES AND SUPPLEMENTS.
The FAR and Government supplemental clauses set forth by citation
in Schedule I
hereto are incorporated by reference in this Subcontract with the
same force
and effect as though herein set forth in full text.
6.2 SUBCONTRACTS
To the extent Unisys authorizes Subcontractor to provide any of
the Products or
Services by subcontracting with another person or entity,
Subcontractor shall
incorporate all required FAR and Government supplemental clauses
which are
incorporated herein by reference in any such subcontract.
Subcontractor
further covenants that it will impose this incorporation by
reference
obligation on all of its subcontractors.
ARTICLE VII: NOTICES
All notices contemplated herein shall be sent in writing to the
other party by
certified mail, return receipt requested, or by wire
communications (E.G.,
telex, telefax, twx, etc.) to the following addresses, or to such
other address
as the party may, by written notice, designate to the other from
time to time.
UNISYS: COPY TO:
Unisys Corporation Unisys Corporation
7455-J New Ridge Road 7455-J New Ridge Road
Hanover, Maryland 21076 Hanover, Maryland 21076
Telephone: 410-684-2010 Telephone: 410-684-2010
Telefax: 410-684-2681 Telefax: 410-684-2681
Attn.: Robert Fronczak Attn.: Rebecca Prettyman
Subcontract Manager Manager - Product Management
SUBCONTRACTOR: COPY TO:
TSI TelSys Incorporated TSI TelSys Incorporated
7100 Columbia Gateway Drive 7100 Columbia Gateway Drive
Columbia, Maryland 21046 Columbia, Maryland 21046
Telephone: 410-872-3900 Telephone: 410-872-3900
Telefax: 410-872-3902 Telefax: 410-872-3902
Attn.: Edward O'Malley Attn: Clark Austin
Director, Contracts Vice President, Sales
ARTICLE VIII: ORDER OF PRECEDENCE
Conflicting provisions of this Subcontract, if any, shall
prevail in the
following descending order of precedence:
(i) Part II Schedules, except Schedule I;
(ii) Part I;
(iii) Part III;
(iv) Specifications attached or incorporated by reference;
(v) Schedule I of Part II.
IN WITNESS WHEREOF, the parties have set their hands and
seals to this
Subcontract as of the date first above written.
UNISYS CORPORATION TSI TELSYS INCORPORATED
BY: _________________________ BY: __________________________
NAME: ROBERT FRONCZAK NAME JAMES R. CHESNEY
TITLE: SUBCONTRACTS MANAGER TITLE: PRESIDENT
DATE: _______________________ DATE: ________________________
A-1
PART II: SCHEDULES
SCHEDULE A: PRODUCT
PRODUCT DISCOUNTS AND PRICING
Commercial GSA Product
Family Unisys
MODEL NUMBER DESCRIPTION LIST PRICE PRICE
CATEGORY DISCOUNT
____________ ___________ __________ _____
______________ ________
[Confidential portions omitted and filed with the Commission]
[Headers Cont'd.]
Hardware Software Software Extended Warranty
24 Hr.
Warranty Warranty Upgrade Annual Cost
Board Swap
PERIOD PERIOD SERVICE(ANNUAL) SILVER GOLD
PLATINUM
[Confidential portions omitted and filed with the Commission]
PROPRIETARY INFORMATION
B-
1
SCHEDULE B: SOFTWARE/FIRMWARE
(1) All Software Products shall comply with the
Products published
specifications, unless specifically stated below.
(2) All Software Products provided hereunder shall be non-
developmental,
commercially available software.
(3) LICENSE
Subcontractor hereby grants to Unisys, a perpetual,
irrevocable, world-
wide, non-exclusive right to sublicense to the Software
Products and the
right to sublicense any later provided updates,
improvements, additions,
enhancements and modifications to the Software Products on
the terms and
conditions stated in this Subcontract.
Software may be moved from one system/server to
another with no
restrictions other than its complete removal upon transfer.
(4) NON-SUBCONTRACTOR-OWNED SOFTWARE.
Subcontractor warrants that all Subcontractor-provided
Software which it
does not own has been procured by Subcontractor under a valid
license from
such person, corporation or entity as does own such Software
and that
Subcontractor is not currently in default under any such
license, and that
no additional licenses must be procured by Unisys or the
Government from
any third party or additional fees paid to any third party in
order to use
such Software or transfer such Software to the Government,
except as are
specifically set forth in Schedule A.
C-
1
SCHEDULE C: PACKAGING, SHIPPING AND DELIVERY
(1) DELIVERY SITE.
The designated shipping address will be as specified on an
individual
Purchase Order basis. It is anticipated that all Product
deliveries,
excluding software updates and upgrades, will be to the end-
user and
address noted on the Purchase Order. Unisys receiving
inspection will be
accomplished at Subcontractor's facility, unless otherwise
indicated.
Products shall be delivered FOB Destination, inside delivery.
(2) DELIVERY SCHEDULE.
Unless otherwise specified below, the Subcontractor shall
make its best
efforts to deliver all Products within sixty (60) days of
issuance of the
Purchase Order. Customer requests for modifications to
the commercial
products will require an additional delivery term as
mutually agreed upon
between the parties. Services shall be delivered as stated in
the Purchase
Order requesting the applicable services.
(3) PARTIAL SHIPMENTS
A partial shipment is any order that does not include all
items specified
for delivery. Partial shipments will not be accepted unless
authorized on
the Purchase Order, or by the Buyer's Purchasing Manager
prior to the time
of delivery. Buyer reserves the right to return partial
shipments to the
Subcontractor, transportation charges collect.
(4) PACKAGING AND MARKING
Products shall be packaged, marked or otherwise prepared
for delivery in
accordance with best commercial practices. Material shall be
packed for
shipment to insure acceptance by common carrier and
safe delivery at
destination. Containers and closures shall comply with
the Interstate
Commerce Commission regulations, Uniform Freight
Classification Rules, or
regulations of other carriers as applicable to the mode of
transportation.
Markings shall indicate "NOT FOR OUTSIDE STORAGE."
Packaging and packing
shall provide protection during shipping and storage, and
shall protect
against shock and vibration encountered during shipping
and handling.
Subcontractor will provide a packing list with each
delivery. At a
minimum, the packing list will reference Unisys Purchase
Order number,
product description, product quantity, product part number
and product
serial number.
(5) CARRIER
Unisys reserves the right to direct the use of specific
carriers or
premium modes of transportation and arrange for direct
billing of freight
charges. In any such case Unisys shall be responsible for
incremental
freight charges in excess of general commodity carrier
charges.
However, if such Unisys direction is necessitated by
Subcontractor's
failure to perform in accordance with established schedules
as addressed
on purchase Orders, Subcontractor shall bear any resulting
increase in
transportation and packaging costs.
D-
1
SCHEDULE D: INSPECTION AND ACCEPTANCE
(1) FACTORY INSPECTION AND TEST
All Products supplied to Unisys shall be subject to
inspection and test by
Subcontractor prior to delivery to ensure compliance with
commercial
practice and operation to stated specifications.
(2) IDENTIFICATION/MARKING REQUIREMENTS
All products (hardware, software and documentation) shall
be clearly
marked with part numbers. The markings of the top assembly
level shall be
visible without having to remove or disassemble any part of
the assembly.
The UL and FCC approval labels shall be clearly visible.
The markings
shall clearly reflect the current engineering level,
including optional
parts of the products.
(3) MAINTENANCE, SERVICE AND PARTS
Maintenance service and parts shall be furnished by
Subcontractor at
no additional charge during the test period unless such
service and parts
are required due to fault or negligence of Unisys.
(4) SUBCONTRACTOR ASSISTANCE
Unisys shall give Subcontractor notice of any problems with
acceptance
testing which involves Subcontractor's Products.
Subcontractor shall
provide reasonable assistance to Unisys, at no additional
cost, to solve
such acceptance testing problems caused by Subcontractor's
products.
(5) FINAL INSPECTION AND ACCEPTANCE
All products shall be subject to inspection and acceptance
upon receipt at
customer site.
In case any Products, or lot of Products, is defective
in material or
workmanship, or otherwise not in conformance with the
requirements of
Product's stated specifications, Unisys shall have the
right either to
reject it or require its correction. Any products which have
been rejected
or required to be corrected may be returned to and shall be
replaced or
corrected by and at the expense of the
subcontractor, including
transportation charges. If, after being requested by
Unisys, the
Subcontractor fails to promptly replace or correct
any defective
commodities within five (5) calendar days after receipt of
the returned
materials, Unisys may (I) by contract or otherwise,
replace or correct
such commodities and charge to Subcontractor all costs
incurred by Unisys
thereby, or (II) require a reduction in price which is
equitable under the
circumstances.
Upon the completion of acceptance at the customer site,
the product
warranty period shall begin.
E-
1
SCHEDULE E: WARRANTY
(1) HARDWARE WARRANTY
(A) BASIC HARDWARE WARRANTY
The purchase of hardware includes a basic hardware
warranty, which
provides, at a minimum, the same basic warranty
features the
Subcontractor offers in connection with the sale of
hardware either
(a) on the commercial market, or (b) to the Seller's
most favored
purchasers.
(1) Responsibilities of the Seller
The Subcontractor shall provide warranty service,
and parts.
Warranty service does not include electrical
work external to
the equipment, the furnishing of supplies,
and adding or
removing accessories, attachments, or other
devices. It does
not include the repair of damage resulting from
an accident,
transportation between Government sites,
neglect, misuse,
failure of electrical power, air conditioning,
humidity control,
or causes other than ordinary use.
Subcontractor sponsored alterations or
attachments to the
equipment shall be made only with the consent of
the Government.
(2) Level of Parts Replacement
The level of replacement of worn or defective
parts shall be
consistent with the original manufacturer's
design of the
equipment. The Subcontractor has the
responsibility for
the
repair or the replacement of all faulty hardware
within the
equipment.
(3) Quality of Parts
Only new standard parts, or parts equivalent to
new parts in
performance, shall be used in effecting warranty
repairs. Parts
which have been replaced shall become the
property of the
Subcontractor.
(4) Field Engineering Changes
The Subcontractor shall install all required
field engineering
changes within 30 days/best efforts (based on
reasonable access
to the place of performance) after the
availability of the
change. Concurrence of the Government shall be
required prior to
the installation of the field engineering changes
and they shall
be installed at no additional cost to the
Government. These
field engineering changes shall only take
place during the
warranty or maintenance period, unless the change
affects the
safety or reliability of the unit, as
determined by
Subcontractor.
(B) NETWORK CLASS HARDWARE ADVANCE EXCHANGE
Subcontractor shall make available to Unisys an
advance exchange
program under which Unisys/the end-user can
contact the
Subcontractor and request the next-day delivery of
replacement
hardware. The Subcontractor shall ship via the
Overnight Express
company
of its
choice. Product
will be delivered to the Unisys/end-user site
designated at the time
of the request. Products will be delivered to the
designated site
FOB Destination, inside delivery. Unisys/end-
user will take
ownership of the replacement Product upon delivery at
the designated
site. Product will be returned to the vendor FOB
Destination.
Hardware Advance Exchange will be covered on a unit
price monthly
fee basis. All pricing offered will be firm through the
full term of
the SEWP II contract. Pricing for this advance exchange
program is
contained in Schedule A.
(2) BASIC SOFTWARE WARRANTY
The purchase of software/firmware includes a basic ninety
(90) day software
warranty, which
provides, at a minimum, that the software/firmware delivery
medium is free
from defects. Other software/firmware functions, as listed
below shall
also be included in the basic ninety (90) day software
warranty:
(a) Software/Firmware Patches
Software/firmware patches are modifications to the
software/firmware
which provide bug and security fixes. Software/Firmware
patches
shall be provided to all end-users at no additional
cost beyond the
initial cost of the software/firmware. This condition
shall be in
effect for the life of the contract. Software/firmware
patches shall
be provided to all end-users through the Subcontractors
most
efficient means at the time of the request, preferably
through on-
line access/the World Wide Web (WWW).
(b) Technical Support
Technical software support shall be available from the
Subcontractor
throughout the selected warranty period. Subcontractor
shall provide
a toll-free voice telephone hot-line. The voice hot-
line will be
manned 9 a.m. to 5 p.m. (Eastern Standard Time), Monday
through
Friday (excluding Government holidays).
All other software/firmware warranty functions shall be
provided in
accordance with the Subcontractor's standard commercial
warranty
practices, presented in Attachment 1 to this Schedule
E.
(3) RETURN OF DEFECTIVE PRODUCT
All defective Product shall be returned by Unisys to the
vendor FOB
Destination. Subcontractor shall return repaired/replaced
product to
the designated site FOB Destination, inside delivery.
E-
2
SCHEDULE E
ATTACHMENT 1
STANDARD COMMERCIAL WARRANTY PROCEDURES
TSI TELSYS INC.'S LIMITED HARDWARE WARRANTY
V6 3/17/97
TSI TelSys Inc.'s ("TELSYS") Warranty obligations are limited to
the terms set
forth below:
1. LIMITED WARRANTY. TELSYS warrants this hardware product
against defects in
materials and workmanship, under normal use and service, for a
period of one
(1) year from the date of receipt by the Purchaser.
If the Purchaser discovers a defect within the warranty period,
TELSYS will, at
its discretion, repair the product with either new or refurbished
replacement
parts at no charge. If TELSYS is unable to restore the product to
good working
order, TELSYS will, at its option, replace or refund the purchase
price of the
product. All products that are replaced will become the property
of TELSYS.
Any replaced or repaired product is warranted for the remainder of
the initial
warranty period or ninety days, whichever is longer. TELSYS shall
not be
responsible for any software, firmware, information or memory data
of the
Purchaser contained in, stored on, or integrated with any products
for system
components returned to TELSYS pursuant to any warranty.
2. RETURN PROCEDURES. To obtain service under this warranty
within the
established period, the Purchaser must:
Call TELSYS Technical Service Support Operations at 1-888-849-CARE
(2273)
between 8 a.m. and 5 p.m. EST, Monday through Friday, excluding
holidays.
To insure that your product qualifies for return to factory
warranty service,
you will be asked to provide the model and serial number of your
product, the
date of original purchase, and the Purchaser's name, address, and
phone number.
Products returned to TELSYS' Technical Service Support Operations
must be pre-
authorized by TELSYS with a Return Material Authorization (RMA)
number marked
on the outside of the package, and sent prepaid, insured, and
packaged
appropriately for safe shipment. The repaired or replaced item
will be shipped
to the Purchaser at TELSYS' expense, not later than (90) ninety
days after
receipt by TELSYS.
3. APPLICABILITY.
This warranty applies only to hardware products (including
internal components)
supplied by TELSYS that can be identified by the "TELSYS"
trademark, trade
name, or logo affixed to them. Any warranty on external third-
party hardware
(i.e., Sun Workstation) installed by TELSYS with this product is
provided by
the hardware vendor, not TELSYS. This warranty does not apply to
damage caused
by accident, abuse, misuse, improper installation or testing,
misapplication,
or service (including upgrades and expansions) performed by anyone
who is not a
TELSYS Authorized Service Provider or any other cause beyond the
range of the
intended use, or by fire, lightning, or other hazard; if the
product has been
modified without the written permission of TELSYS; if any TELSYS
serial number
has been removed or defaced; or if you cannot provide proof of
original
purchase as described above.
4. LIMITATIONS OF REMEDIES AND DAMAGES.
IN NO EVENT WILL TELSYS, ITS PARENT OR SUBSIDIARIES OR ANY OF THE
LICENSORS,
DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES OF ANY OF THE
FOREGOING BE LIABLE
TO THE PURCHASER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR
SPECIAL DAMAGES
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
BUSINESS
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND
THE LIKE,)
WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THE USE OF OR
INABILITY TO
USE THE SOFTWARE OR ACCOMPANYING WRITTEN MATERIAL, REGARDLESS OF
THE BASIS OF
THE CLAIM AND EVEN IF TELSYS OR A TELSYS REPRESENTATIVE HAS BEEN
ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE. TELSYS'S LIABILITY TO THE PURCHASER
FOR DIRECT
DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF
THE ACTION,
WILL BE LIMITED TO THE ACTUAL PURCHASE PAID FOR THE PRODUCT.
Some states do not allow the exclusion or limitation of incidental
or
consequential damages or exclusion of implied warranties, so the
above
limitations or exclusions may not apply to the Purchaser. This
warranty gives
the Purchaser specific legal rights, and the Purchaser may also
have other
rights that vary from state to state.
THE WARRANTY AND REMEDIES SET FORTH ABOVE ARE EXCLUSIVE AND IN
LIEU OF ALL
OTHERS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED. TELSYS
SPECIFICALLY
DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT
LIMITATION,
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. UNLESS
MODIFIED IN WRITING AND SIGNED BY THE AUTHORIZED REPRESENTATIVES
OF BOTH
PARTIES, THIS WARRANTY IS UNDERSTOOD TO BE THE COMPLETE AND
EXCLUSIVE WARRANTY
BETWEEN THE PARTIES. NO TELSYS SALES REPRESENTATIVE, DEALER,
RESELLER, AGENT
OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATION, EXTENSION, OR
ADDITION TO
THIS WARRANTY UNLESS OTHERWISE ALLOWED BY THIS AGREEMENT.
E-
3
TSI TelSys Inc.'s Software License
V6 5/2/97
The enclosed computer program(s)("Software") is licensed, not
sold, to you
by TSI TelSys, Inc. ("TELSYS") for use only under the terms
of this
License, and TELSYS reserves any rights not expressly granted
to the
Licensee. The Licensee owns the disk(s) on which the Software is
recorded
or fixed, but TELSYS retains ownership of the Software itself.
1. LICENSE. This License allows the Licensee to:
(a) Use one copy of the Software on a single computer at a time.
To "use"
the Software means that the Software is either loaded in the
temporary
memory (i.e. RAM) of a computer or installed on the permanent
memory of a
computer (i.e. hard disk, CD ROM, etc.) The Licensee may
install the
Software on a common storage device which is accessible by
multiple
computers, provided that if more computers have access to
the common
storage device than the number of licensed copies of the Software,
you must
have some Software mechanism which locks-out any concurrent users
in excess
of the number of licensed copies of the Software (an additional
license is
not needed for the one copy of Software installed on the
common storage
device accessed by multiple computers provided the number of
licensed
copies is not exceeded by the number of concurrent users.).
(b) Make one copy of the Software in machine readable form
solely for
backup purposes.
2. PROPRIETARY MATERIAL AND RESTRICTIONS. "Proprietary
Material" shall
mean the Programs(s) in any form and the algorithms, technology
and know-
how embodied therein and all documentation, manuals and other
material
related thereto. Customer expressly acknowledges that the
Proprietary
Material is confidential and proprietary property of TELSYS
and hereby
agrees to receive and maintain it as it would its own
confidential and
proprietary material. Licensee shall not cause or permit
disclosure of any
Proprietary Material to any person other than the Licensee's
employees and
consultants whose responsibilities require access to such
material without
the prior written consent of TELSYS.
The Software contains trade secrets in its human perceivable
form and, to
protect them, the Licensee may not REVERSE ENGINEER, DECOMPILE,
DISASSEMBLE
OR OTHERWISE REDUCE THE SOFTWARE TO ANY HUMAN PERCEIVABLE FORM.
LICENSEE
MAY NOT MODIFY, ADAPT, TRANSLATE, RENT, LEASE, LOAN OR CREATE
DERIVATIVE
WORKS BASED UPON THE SOFTWARE OR ANY PART THEREOF.
3. TERMINATION. This License is effective until terminated.
This License
will terminate immediately without notice from TELSYS or
judicial
resolution if Licensee fails to comply with any provision of this
License.
Upon such termination you must destroy the Software, all
accompanying
written materials and all copies thereof, and Sections 2, 5, 6,
and 7 will
survive any termination.
4. EXPORT LAW ASSURANCES. You agree that neither the
Software nor any
direct product thereof is being or will be shipped,
transferred or
reexported, directly or indirectly, into any country prohibited
by the
United States Export Administration Act and the regulations
thereunder or
will be used for any purpose prohibited by the Act.
5. LIMITED WARRANTY. TELSYS warrants that the Software
programs (which
include embedded third party software) licensed from it will
perform in
substantial conformance to the program specifications
therefore for a
period of one year from the date of receipt from TELSYS. TELSYS
warrants
the storage media containing Software against failure during the
warranty
period. No updates are provided. TELSYS' obligation hereunder
shall be to
replace any defective media with Software which substantially
conforms to
TELSYS' applicable published specifications or in the
event that
replacement is not possible, to refund the purchase price paid
by the
Licensee for any defective Software products. TELSYS makes no
warranty
that its Software products will work in combination with any
hardware or
applications Software products independently purchased by the
Customer from
third party vendors.
THIS LIMITED WARRANTY IS THE ONLY WARRANTY PROVIDED BY TELSYS
AND TELSYS
EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESSED OR
IMPLIED,
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE
SOFTWARE AND
ACCOMPANYING WRITTEN MATERIALS. Because some jurisdictions do
not allow
the exclusion or limitation of implied warranties, the above
limitation may
not apply to you.
6. LIMITATION OF REMEDIES AND DAMAGES. IN NO EVENT WILL
TELSYS, ITS
PARENT OR SUBSIDIARIES OR ANY OF THE LICENSORS, DIRECTORS,
OFFICERS,
EMPLOYEES OR AFFILIATES OF ANY OF THE FOREGOING BE LIABLE TO THE
LICENSEE
FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL
DAMAGES
WHATSOEVER(INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
BUSINESS
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND
THE LIKE)
WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THE
USE OF OR
INABILITY TO USE THE SOFTWARE OR ACCOMPANYING WRITTEN MATERIAL,
REGARDLESS
OF THE BASIS OF THE CLAIM AND EVEN IF TELSYS OR A TELSYS
REPRESENTATIVE HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. TELSYS'S
LIABILITY TO THE
LICENSEE FOR DIRECT DAMAGES FOR ANY CAUSE WHATSOEVER, AND
REGARDLESS OF THE
FORM OF THE ACTION, WILL BE LIMITED TO THE ACTUAL PRICE
PAID FOR THE
LICENSE TO USE THE SOFTWARE.
7. U.S. GOVERNMENT RESTRICTED RIGHTS. This License will be
construed
under the laws of the State of Maryland, except for that
body of law
dealing with conflicts of law. If any provision of this License
shall be
held by a court of competent jurisdiction to be contrary to
law, that
provision will be enforced to the maximum extent permissible,
and the
remaining provision of this License will remain in full force
and effect.
If the Licensee is a U.S. Government user then the Software is
provided
with "RESTRICTED RIGHTS" as set forth in subparagraphs (c)(1)
and (2) of
the Commercial Computer Software-Restricted Rights clause at FAR
52.227-19
or subparagraph (c)(1)(ii) of the Rights in Technical Data and
Computer
Software clause at DFARS 252.227-7013, as applicable.
F-
1
SCHEDULE F: EXTENDED WARRANTY/MAINTENANCE AND REPAIR
(1) EXTENDED WARRANTY/MAINTENANCE
(a) Option and Orders
At any time during the Product Warranty period,
Unisys may require
Subcontractor to furnish extended warranty/maintenance
services, for
some or all of the Products purchased by Unisys
pursuant to this
Subcontract. This option to purchase these
services shall be
exercised from time to time by Unisys delivering to
Subcontractor
one or more written Purchase Orders. Each Purchase
Order shall
specify the following information: (1) the
Products to be
maintained; (2) the term of the Purchase Order (which
may be for a
single maintenance call or as long as the remaining
term of this
subcontract); (3) the prices for the maintenance
services specified
in the Purchase Order; and (4) such other information
as Unisys and
Subcontractor shall reasonably agree is necessary or
desirable to
further define the rights, liabilities, obligations
and duties of
the parties under each Purchase Order. Unisys may
order maintenance
Services provided a written Purchase Order is issued by
Unisys.
(b) Subcontractor shall provide an Extended Hardware
Warranty that will
consist of the following:
(1) The Extended Hardware Warranty, shall provide
coverage after
the commercial warranty concludes.
(2) If Extended Hardware Warranty is purchased for
equipment for
which the basic hardware warranty has previously
expired, the
Subcontractor is entitled to perform, at the
then current
hourly rates (provided in Attachment 1 to this
Schedule F),
within 15 days from the receipt of an order
requesting Extended
hardware Warranty, a pre-maintenance inspection
in order to
certify that, at the time that the
Subcontractor commences
Extended Hardware Coverage, the equipment
meets current
equipment specifications. If any equipment is not
up to current
Subcontractor revision levels by
Subcontractor standards,
Subcontractor shall submit an estimate, within
the 15 day
period, which shall detail the price of
labor and parts
required to bring that equipment up to
the required
Subcontractor's maintenance level. Unisys may
choose to accept
the Subcontractor's estimate and have the
Subcontractor the
upgrade. If Unisys chooses not to have the piece
of equipment
brought up to Subcontractor maintenance
level, then
Subcontractor is not obligated to maintain
that piece of
equipment.
(2) EXTENDED WARRANTY/MAINTENANCE PRICING DISCOUNTS
The pricing discounts for the maintenance services ordered by
Unisys shall
be specified in each Purchase Order based upon the level
and type of
maintenance services required and the applicable prices
therefore as set
forth in Schedule A.
(3) EXTENDED WARRANTY/MAINTENANCE SERVICES OPTIONS
Extended warranty/maintenance services for the Equipment
shall be provided
to keep such Equipment in, or restore such Equipment to,
good working
order and capable of performing in accordance with
the Applicable
specifications. Such support and maintenance shall be
provided by
subcontractor in accordance with the subcontractor's
maintenance plans, as
listed in Attachment 1 to this Schedule F.
(4) RETURN OF DEFECTIVE EQUIPMENT
All defective Product shall be returned by Unisys to the
vendor FOB
Destination. Subcontractor shall return repaired/replaced
product to
the designated site FOB Destination, inside delivery.
(5) SOFTWARE MAINTENANCE AND SUPPORT
Software support service shall be available for all
software/firmware
purchased under this contract. Software support shall be
provided directly
to the end-user. Subcontractor shall support all software,
including
modifications or revisions, for the full term of the
contract, in
accordance with the Subcontractor's standard commercial
practices.
Software support shall consist of correction revisions
through software
patches, updates, upgrades, and modifications, and technical
support for
problem resolution. Unisys shall receive the initial customer
call and
provide initial technical analysis and problem resolution. If
Unisys
cannot resolve the situation, then Subcontractor support
shall be
contacted.
(a) Extended Software/Firmware Warranty
Subcontractor shall make available an Extended
Software/Firmware
Warranty. The purchase of Extended Software/Firmware
Warranty
provides, for a period from the date of purchase, at no
additional
charge, the end-user with all new releases, updates,
upgrades,
modifications and patches to the associated hardware.
Subcontractor
shall deliver all new releases, updates, upgrades,
modifications and
patches covered by the Extended Software Warranty
directly to the
end-users entitled to receive them. Other
software/firmware warranty
functions which are in accordance with the
Subcontractor's standard
commercial warranty/maintenance practices shall be
included as part
of the Extended Software/Firmware Warranty. All
Software/Firmware
Extended Warranty pricing shall be firm for the full
term of the
SEWP II contract. All Software/Firmware Extended
Warranty pricing
are contained herein as part of Schedule A.
(b) Out-of Warranty Software/Firmware Upgrades
Subcontractor shall make available Software/Firmware
Upgrade pricing
for end-users who elect not to have Software/Firmware
covered by an
extended warranty plan. Said upgrades shall
comply with
Subcontractor's standard commercial upgrade terms, as
available to
the general public. All currently available out-
of warranty
Software/Firmware Upgrade pricing are contained herein
as part of
Schedule A.
(6) OUTSIDE OF WARRANTY REPAIRS
Subcontractor shall accept and fulfill Repair Orders
from Unisys on
Products and Parts outside their warranty periods,
according to the
Subcontractor's then current price list for repair parts,
labor and travel
(if necessary). Subcontractor warrants the Product/Part
repaired hereunder
against defective material, workmanship and construction
for a period of
ninety (90) days from the date of shipment to
Unisys/Customer. In the
event that any repaired Product/Part fails within thirty
(30) days after
shipment, Sucontractor agrees to consider this repair
"Defective Upon
Arrival", and shall repair or replace the malfunctioning
unit/part, at no
charge, as soon as practical. Should the Subcontractor
be unable to
repair or replace the unit/part, it shall provide a full
refund to Unisys,
upon request.
(7) CONTINUITY OF SERVICES
Subcontractor agrees that all the Extended
Warranty/Maintenance Services
defined in this Schedule F shall remain available to
Unisys' throughout
the term of this Subcontract and any renewals thereof."
(8) WARRANTY AND EXTENDED WARRANTY/MAINTENANCE POINT OF CONTACT
All contact concerning Warranty and Extended
Warranty/Maintenance issues
and questions shall be made between the following
individuals, or their
designees, during the term of this Agreement. Formal
notifications should
be sent in writing to the other party by certified mail,
return receipt
requested, or by wire communications (E.G., telex, telefax,
twx, etc.) to
the following addresses, or to such other address as the
party may, by
written notice, designate to the other from time to time.
UNISYS: COPY TO:
Unisys Corporation Unisys Corporation
7455-J New Ridge Road 8008 Westpark Drive
Hanover, Maryland 21076 McLean, Virginia 22102
Telephone: 410-684-2010 Telephone: 703-790-7733
Telefax: 410-684-2681 Telefax: 703-790-7825
Attn.: Dexter Berry Attn.: Gerald Cimarelli
Customer Service Manager Major Accounts Manager
SUBCONTRACTOR: COPY TO:
TSI TelSys Incorporated TSI TelSys Incorporated
7100 Columbia Gateway Drive 7100 Columbia Gateway Drive
Columbia, Maryland 21046 Columbia, Maryland 21046
Telephone: 410-872-3900 Telephone: 410-872-3900
Telefax: 410-872-3902 Telefax: 410-872-3902
Attn.: William Rohrs Attn.: Ed O'Malley
VP, Manufacturing Director, Contracts
F-
2
SCHEDULE F
ATTACHMENT 1
EXTENDED WARRANTY/MAINTENANCE PRICING AND PLANS
TSI TELSYS, INC. ("TSI TELSYS")
EQUIPMENT MAINTENANCE, SOFTWARE MAINTENANCE, AND INSTALLATION
PROGRAM
TERMS AND CONDITIONS
1. SCOPE
a. TSI TELSYS SHALL BE OBLIGATED TO PROVIDE INSTALLATION AND/OR
MAINTENANCE
FOR ALL EQUIPMENT AS MAY BE REQUESTED BY THE CUSTOMER DURING
THE CONTRACT
TERM OF THIS AGREEMENT. SERVICES WILL BE PROVIDED IN
ACCORDANCE WITH THE
TERMS OF THIS AGREEMENT.
b. THE SYSTEM INSTALLATION, SILVER MAINTENANCE, GOLD
MAINTENANCE, AND
PLATINUM MAINTENANCE OPTIONS DESCRIBED HEREIN ARE FOR
SERVICES RENDERED
WITHIN THE CONTINENTAL UNITED STATES (CONUS). ADDITIONAL
CHARGES FOR
OUTSIDE THE CONTINENTAL UNITED STATES (OCONUS) ARE STATED IN
PARAGRAPH 7.
c. THE SCOPE OF THIS AGREEMENT APPLIES TO INSTALLATION AND
MAINTENANCE
SERVICES ONLY. FOR PRODUCT REPAIR SERVICE PROGRAMS AND NON-
CONTRACT
MAINTENANCE SERVICES, CONTACT TSI TELSYS DIRECTLY.
2. TERM
The initial term of this Agreement shall be a period of one
(1) year from
the effective date of maintenance service (not applicable to
installation
service). This Agreement will automatically renew for an
additional one-
year term unless the Customer provides written notice of
cancellation
thirty (30) days prior to the expiration of this Agreement.
TSI may
increase the maintenance charges hereunder at the renewal of
a term,
however the revised charges shall not exceed the then-current
published
TSI TelSys rates for the same level and type of support.
3. OBLIGATIONS OF TSI TELSYS
a. TSI TELSYS WILL COMPLY WITH ALL REGULATIONS AND PROCEDURES
IN EFFECT AT
THE CUSTOMER SITE WHEN PROVIDING SERVICES UNDER THIS
AGREEMENT.
b. TSI TELSYS MAY USE NEW OR REFURBISHED REPLACEMENT PARTS
WHICH OPERATE
LIKE NEW PARTS IN EFFECTING REPAIRS. ALL PARTS WHICH HAVE
BEEN
REPLACED SHALL BECOME THE PROPERTY OF TSI TELSYS.
c. TSI TELSYS WILL PROVIDE THE CUSTOMER WITH A SITE
PREPARATION GUIDE AND
CHECKLIST, AND WILL SCHEDULE INSTALLATION WITH THE
CUSTOMER.
4. OBLIGATIONS OF CUSTOMER
a. CUSTOMER PERSONNEL SHALL NOT PERFORM MAINTENANCE OR
ATTEMPT REPAIRS TO
EQUIPMENT WHILE SUCH EQUIPMENT IS UNDER MAINTENANCE WITH
TSI TELSYS
UNLESS PRIOR WRITTEN APPROVAL IS PROVIDED BY TSI TELSYS.
b. THE CUSTOMER SHALL PERMIT ACCESS TO TSI TELSYS PERSONNEL
TO THE
EQUIPMENT WHICH REQUIRES MAINTENANCE OR INSTALLATION,
SUBJECT TO
REASONABLE SECURITY MEASURES. THE CUSTOMER SHALL SHIP THE
EQUIPMENT
BACK TO TELSYS AS NECESSARY AND IN ACCORDANCE WITH THIS
AGREEMENT.
c. IF SYSTEMS INSTALLATION SERVICE IS PURCHASED, THE CUSTOMER
SHALL
PREPARE THE SITE IN ACCORDANCE WITH THE SITE PREPARATION
GUIDE PROVIDED
BY TSI TELSYS AND FAX A COMPLETED SITE PREPARATION
CHECKLIST TO THE TSI
TELSYS SERVICE OPERATIONS CENTER PRIOR TO THE SCHEDULED
INSTALLATION
DATE, AND PROVIDE A SITE CONTACT FOR THE TSI TELSYS FIELD
ENGINEER.
d. THE CUSTOMER SHALL: (I) INSURE THAT THE EQUIPMENT IS
INSTALLED IN A
LOCATION WHICH MEETS THE ENVIRONMENTAL CONDITIONS CALLED
FOR BY TSI
TELSYS' PRODUCT SPECIFICATIONS; (II) MAINTAIN CURRENT
BACKUPS OF TSI
TELSYS SOFTWARE; (III) INSTALL ALL TSI TELSYS' SOFTWARE
UPDATES WITHIN
SIX MONTHS OF RECEIPT; AND (IV) LIMIT ACCESS TO ANY TSI
TELSYS
TECHNICAL INFORMATION TO CUSTOMER EMPLOYEES AND AGENTS
WITH A SPECIFIC
NEED RELATED TO USE OF THE SOFTWARE AND OTHER RELATED
DOCUMENTATION
PROVIDED BY TSI TELSYS.
5. AVAILABLE INSTALLATION AND REMEDIAL MAINTENANCE
A. STANDARD SYSTEM INSTALLATION (SSI) SERVICE - PROVIDES FOR CONUS
ON-SITE
INSTALLATION OF A TSI TELSYS PRODUCT, MONDAY THROUGH FRIDAY,
FROM 8 A.M. TO
5 P.M. EASTERN STANDARD TIME (EST).
FEATURES OF SSI SERVICE ARE:
(1) HARDWARE-UNPACK AND SET-UP IN RACK, SHELF, OR
TABLE;
(2) SOFTWARE-UNPACK MEDIA AND DOCUMENTATION, LOAD
SOFTWARE, AND
CONFIGURE AND INITIALIZE SOFTWARE TO COMPLY
WITH PUBLISHED
OPERATING STANDARDS AND MANUALS.
THE CUSTOMER MUST ORDER THE STANDARD SYSTEM INSTALLATION
SERVICE WHEN
PURCHASING TSI TELSYS EQUIPMENT UNLESS A WRITTEN WAIVER IS
REQUESTED BY
THE CUSTOMER AND APPROVED BY TSI TELSYS.
6. MAINTENANCE
a. Silver Maintenance (SM) Service - Provides for remedial
maintenance
and enhanced technical support for TSI TelSys products, Monday
through Friday,
from 8 a.m. to 5 p.m. (EST).
Features of Silver Maintenance service are:
(1) RETURN TO FACTORY REPAIR OF NON-FUNCTIONING
EQUIPMENT - TSI
TELSYS WILL SHIP THE REPAIRED EQUIPMENT BACK TO THE
CUSTOMER
WITHIN TEN (10) BUSINESS DAYS OF RECEIPT AT THE
TSOC;
(2) LABOR AND MATERIALS FOR THE REPAIR OF THE TELSYS
PRODUCT AT THE
TSOC;
(3) TOLL-FREE NUMBER ACCESS NUMBER TO THE TSOC;
(4) SYSTEM SOFTWARE BUG FIXES (PATCHES);
(5) MODULE EXCHANGE (SUBJECT TO AVAILABILITY);
(6) NOTIFICATION OF RELEASED ENGINEERING CHANGES.
B. GOLD MAINTENANCE (GM) SERVICE - COMPRISES SILVER
MAINTENANCE SERVICE
PLUS THESE ADDITIONAL FEATURES
FEATURES OF GOLD MAINTENANCE SERVICE ARE:
(1) THE FEATURES OF SILVER MAINTENANCE PLUS;
(2) REMOTE DIAGNOSTICS PERFORMED BY THE TSOC
(SCHEDULED);
(3) SYSTEM SOFTWARE UPDATES (E.G., A MINOR REVISION
FROM VERSION
3.0 TO 3.1);
(4) 24 HOUR MODULE EXCHANGE (SUBJECT TO AVAILABILITY);
(5) HARDWARE UPDATES
(6) PREPAID SHIPPING (CARRIER) CHARGES WITH A VALID
RMA NUMBER FROM
THE TSOC .
C. FEATURES OF PLATINUM SERVICE ARE:
(1) GOLD MAINTENANCE SERVICE PLUS THESE ADDITIONAL
FEATURES;
(2) TELSYS WILL SHIP THE REPAIRED OR A REPLACEMENT PART
BACK THE
NEXT BUSINESS DAY AFTER RECEIPT AT THE TSOC;
(3) SYSTEM SOFTWARE UPGRADES (E.G., A MAJOR REVISION
FROM VERSION
3.1 TO 4.0) WHICH INCLUDE NEW FEATURES AND OPTIONS
IN ADDITION TO
SYSTEM OPERATIONAL ENHANCEMENTS AND BUG FIXES;
(4) ON-SITE MAINTENANCE SERVICE AT A CUSTOMER CONUS
SITE. A
QUALIFIED SERVICE TECHNICIAN WILL BE DISPATCHED TO
THE CUSTOMER
LOCATION WITHIN THE NEXT BUSINESS DAY PLUS
REASONABLE PREPARATION
AND TRAVEL TIME;
(5) ALL TRAVEL CHARGES ASSOCIATED WITH ON-SITE CONUS
SUPPORT
(6) HARDWARE UPDATES PROVIDED AT REGULAR INTERVALS;
(7) INSTALLATION OF PURCHASED TSI OPTIONS.
NOTE: TSI TELSYS WILL, AT ITS SOLE DISCRETION,
DETERMINE THE
NECESSITY AND APPROPRIATENESS OF AN ON-SITE CALL VERSUS
AN OFF-SITE
REPAIR OF THE EQUIPMENT AT THE TSOC. SHOULD TSI TELSYS
DETERMINE
THAT AN ON-SITE CALL IS REQUIRED, IT ALONE WILL DECIDE
ON THE
DURATION AND QUANTITY OF ON-SITE MAINTENANCE CALLS
NECESSARY TO
REPAIR THE EQUIPMENT
A. SOFTWARE SERVICE (SS) PROVIDES FOR REMEDIAL MAINTENANCE SUPPORT
AND UPGRADES
FOR TSI TELSYS' SOFTWARE PRODUCTS, MONDAY THROUGH FRIDAY, FROM
8 A.M. TO 5
P.M. (EST).
FEATURES OF THE SOFTWARE SERVICE ARE:
(1) SEMI-ANNUAL SYSTEM SOFTWARE UPGRADES;
(2) SYSTEM SOFTWARE ENHANCEMENTS;
(3) SYSTEM SOFTWARE BUG FIXES (PATCHES);
(4) REMOTE DIAGNOSTICS VIA THE TSOC;
(5) TOLL-FREE ACCESS TO THE TSOC.
7. COVERAGE AND ELIGIBILITY- EQUIPMENT MAINTENANCE
a. TO BE ELIGIBLE FOR MAINTENANCE COVERAGE UNDER THIS
AGREEMENT, THE
EQUIPMENT MUST BE DETERMINED BY TSI TELSYS TO BE IN GOOD
OPERATING
CONDITION. IN ORDER TO DETERMINE THAT THE EQUIPMENT IS IN
GOOD
OPERATING CONDITION:
(1) THE EQUIPMENT MUST PRESENTLY BE UNDER A TSI TELSYS
WARRANTY OR
MAINTENANCE AGREEMENT;
(2) EQUIPMENT OUTSIDE OF A TSI TELSYS WARRANTY OR
MAINTENANCE
AGREEMENT MUST HAVE BEEN REPAIRED BY TSI TELSYS
WITHIN NINETY
(90) DAYS OF THE REQUEST FOR A TSI TELSYS
DETERMINATION OF
CONDITION;
(3) IF THE EQUIPMENT IS OUTSIDE A TSI TELSYS WARRANTY OR
MAINTENANCE
AGREEMENT, IT MUST BE EXAMINED BY TSI TELSYS AND
REPAIRED, IF
NECESSARY, AT THE CUSTOMER'S EXPENSE PRIOR TO
ISSUANCE OF A
MAINTENANCE AGREEMENT.
a. A WRITTEN MAINTENANCE ORDER SHALL BE THE ONLY BASIS FOR
MAINTENANCE IN
ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS
MAINTENANCE AGREEMENT.
TSI TELSYS WILL CONFIRM A MAINTENANCE ORDER BY PROVIDING
THE CUSTOMER
WITH A RETURN MATERIAL AUTHORIZATION (RMA) WITHIN TWENTY-
FOUR (24)
HOURS OF THE CUSTOMER'S REQUEST. ORDER RENEWALS WILL BE
AUTOMATICALLY
ACCEPTED FOR EQUIPMENT WHICH MAY HAVE BEEN DISCONTINUED
FROM USE FOR
TEMPORARY PERIODS OF TIME NOT LONGER THAN 120 CALENDAR
DAYS.
b. ALL WRITTEN CORRESPONDENCE FROM THE CUSTOMER SHALL BE
DIRECTED TO THE
TSOC.
c. MAINTENANCE SERVICE SHALL COMMENCE ON A MUTUALLY AGREED
DATE BETWEEN
THE CUSTOMER AND THE TSOC, WHICH WILL BE SPECIFIED IN THE
MAINTENANCE
ORDER. MAINTENANCE ORDERS SHALL NOT BE MADE EFFECTIVE
BEFORE THE
EXPIRATION OF ANY APPLICABLE MAINTENANCE OR WARRANTY
PERIODS.
8. TIME AND MATERIAL RATES FOR ON-SITE SERVICE (EQUIPMENT
MAINTENANCE)
Should the Customer request On-Site maintenance during the periods
below, the
following rates and conditions shall apply.
a. CONUS Support
TIME PERIOD RATE
(1) REGULAR HOURS (8 A.M. TO 5 P.M. LOCAL*
(2) AFTER HOURS (MONDAY THROUGH FRIDAY*
(3) AFTER HOURS (SATURDAY, SUNDAY, HOLIDAYS*
[*Confidential portions omitted and filed separately with the
Commission]
*ONLY APPLICABLE TO CUSTOMER REQUESTS UNDER THE SILVER AND GOLD
SERVICE
OPTIONS. THERE IS NO ADDITIONAL CHARGE FOR MAINTENANCE SERVICE
DURING
REGULAR HOURS FOR THE PLATINUM SERVICE OPTION.
THERE SHALL BE A FOUR (4) HOUR MINIMUM CHARGE FOR ON-SITE SERVICE.
A FULL HOUR
SHALL BE CHARGED FOR ANY SIXTY (60) MINUTE PERIOD OR ANY FRACTION
THEREOF. THE
REGULAR AND AFTER HOUR RATES DO NOT INCLUDE REASONABLE AND ACTUAL
TRAVEL
EXPENSES WHICH SHALL BE CHARGED TO THE CUSTOMER FOR EACH ON-SITE
SERVICE CALL.
B. OCONUS SUPPORT
SHOULD THE CUSTOMER REQUIRE THAT ON-SITE INSTALLATION AND/OR
MAINTENANCE BE
PERFORMED OCONUS, ADDITIONAL COSTS SHALL BE CHARGED TO THE
CUSTOMER. SUCH
CHARGES WILL BE LIMITED TO REASONABLE AND ACTUAL TRAVEL EXPENSES,
INCLUDING
TRAVEL COSTS, PER DIEM AND LODGING IF OVERNIGHT STAY IS NECESSARY.
THESE
EXPENSES WILL BE IN ADDITION TO THE HOURLY CHARGES DESCRIBED ABOVE
FOR CONUS
REGULAR AND AFTER HOURS SUPPORT. SUCH ADDITIONAL CHARGES WILL
APPLY TO EACH
ON-SITE MAINTENANCE REQUEST, AND IT WILL BE LIMITED TO ONE ROUND
TRIP PER
SERVICE CALL.
9. EQUIPMENT RETURN
a. PRODUCTS RETURNED TO TSI TELSYS FOR MAINTENANCE MUST BE PRE-
AUTHORIZED BY
TSI TELSYS WITH AN RMA NUMBER MARKED ON THE OUTSIDE OF THE
PACKAGE, AND SENT
PRE-PAID, INSURED, AND PACKAGED APPROPRIATELY FOR SAFE
SHIPMENT. THE
CUSTOMER SHALL BE RESPONSIBLE FOR RISK OF LOSS OR DAMAGE TO THE
EQUIPMENT
UNTIL RECEIVED AND ACCEPTED AT THE TSOC. TSI TELSYS SHALL BE
RESPONSIBLE
FOR RISK OF LOSS OR DAMAGE UNTIL THE EQUIPMENT HAS BEEN
RETURNED TO THE
CUSTOMER.
b. WHEN TSI TELSYS REMOVES EQUIPMENT FOR OFF-SITE REPAIR, IT SHALL
BE
RESPONSIBLE FOR ANY LOSS OR DAMAGE TO THE PRODUCT FROM THE TIME
OF REMOVAL
UNTIL THE TIME OF RETURN OF THE EQUIPMENT TO THE CUSTOMER.
10. EQUIPMENT MOVEMENT
Relocation of products to a site other than the site specified
initially by
Customer may affect the availability of service and will relieve
TSI TelSys'
obligation to provide On-Site service unless:
a) Customer notifies TSI TelSys thirty (30) days prior to such
relocation; b)
TSI TelSys confirms that the relocation does not affect the
availability of
service; and c) Customer agrees to pay any adjustment of charges
which may
result from the relocation.
Upon request of the Customer, TSI TelSys will supervise product
relocation,
including de-installation, crating, uncrating and reinstallation,
or perform
other associated services at the hourly rates denoted in Paragraph
7 of this
Agreement.
11. LIMITATIONS
TSI TelSys shall not be obligated under this Agreement to:
a. SERVICE ANY PRODUCT THAT HAS BEEN DAMAGED, ABUSED, OVERUSED
OR MISUSED AS
DEFINED BY TSI TELSYS AND THROUGH NO FAULT OF TSI TELSYS;
b. SERVICE ANY PRODUCT THAT HAS RECEIVED UNAUTHORIZED
MODIFICATION, REPAIR
OR SERVICE THAT IMPAIRS PERFORMANCE OR IMPEDES NORMAL
SERVICE;
c. PAINT OR REFINISH ANY PRODUCT FOR COSMETIC PURPOSES ONLY;
d. REPAIR ANY DAMAGE OR MALFUNCTION CAUSED BY THE USE OF NON-
TSI TELSYS
EQUIPMENT;
e. SERVICE ANY PRODUCT THAT HAS NOT RECEIVED THE REQUIRED USER
MAINTENANCE
AND CLEANING AT THE FREQUENCY AND AS PRESCRIBED IN THE USER
MANUAL.
f. PROVIDE OR REPLACE CONSUMABLE ITEMS USED WITH TSI EQUIPMENT
(I.E.
MAGNETIC MEDIA, LAMPS, ETC.)
ANY SERVICE IDENTIFIED IN 10.A-E ABOVE AND PROVIDED BY TSI
TELSYS AT THE
CUSTOMER'S REQUEST SHALL BE CHARGED TO CUSTOMER AT TSI
TELSYS' THEN
CURRENT RATES FOR PARTS AND AT THE HOURLY RATES IN PARAGRAPH
7 FOR
SERVICE.
12. WARRANTIES
a. TSI TelSys warrants new and refurbished "as new" parts for the
duration of
this maintenance Agreement or ninety (90) days after installation,
whichever is
later.
b. IN CONNECTION WITH THIS AGREEMENT, SERVICES RENDERED HEREUNDER
AND PARTS
SUPPLIED PURSUANT HERETO, TSI TELSYS MAKES NO WARRANTY, EITHER
EXPRESSED OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF FITNESS
FOR PARTICULAR
PURPOSE OR OF MERCHANTABILITY. TSI TELSYS' SOLE OBLIGATION SHALL
BE LIMITED TO
TSI TELSYS' REASONABLE EFFORTS AT THE MAINTENANCE, REPAIR, OR
REPLACEMENT OF
ANY DEFECTIVE PRODUCT. Some states do not allow the exclusion of
implied
warranties, so the exclusion above may not apply to the Customer.
13. LIMITATION OF LIABILITIES
TSI TELSYS AND/OR ITS REPRESENTATIVE'S LIABILITY UNDER OR ARISING
OUT OF THIS
AGREEMENT, WHETHER FOR BREACH OF CONTRACT, TORT, OR OTHERWISE
SHALL BE LIMITED
TO A REFUND OF THE PRO RATA ANNUAL MAINTENANCE CHARGES PAID, IF
ANY, FOR THE
ITEM OF PRODUCT INVOLVED IN THE CLAIM. IN NO EVENT WILL TSI
TELSYS OR ITS
REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, SPECIAL
ORCONSEQUENTIAL DAMAGES,
INCLUDING, BUT NOT LIMITED TO, LOSSESOF BUSINESSAND/OR PROFITS,
WHETHER
FORESEEABLE OR NOT, CAUSED BY ITS PRODUCT OR SERVICES RELATED
THERETO. Some
states do not allow the limitation or exclusion of liability
forincidental or
consequential damages, so the limitation above may not apply to
the Customer.
14. BREACH OF CONTRACT AND REMEDIES
Should Customer: (i) default in the payment of any sum of money
due beyond the
thirtieth (30th) day after the same is due; or (ii) default in the
performance
of any other of its obligations under this Agreement, which
default continues
for thirty (30) days after receipt by Customer of notice thereof
from TSI
TelSys; or (iii) permit any person other than a TSI TelSys
authorized service
technician to alter or change any TSI TelSys product without TSI
TelSys' prior
written consent, then in any such event TSI TelSys may at its
option proceed
with the following: (a) terminate this Agreement; and (b) convert
any unpaid
and/or future charges for any and all services rendered to
Customer under this
Agreement to TSI TelSys' then-current rates. The rights afforded
TSI TelSys
under this Paragraph 13 will not be deemed to be exclusive, but
shall be in
addition to any rights or remedies provided by law.
15. MISCELLANEOUS
a. THIS AGREEMENT CONSTITUTES HE ENTIRE UNDERSTANDING BETWEEN THE
CUSTOMER AND
TSI TELSYS WITH RESPECT TO THE SUBJECT MATTER OF THE AGREEMENT
AND MAY BE
AMENDED OR MODIFIED ONLY BY WRITTEN AGREEMENT BETWEEN THE
PARTIES. IN THE
EVENT THAT THERE IS ANY VARIANCE BETWEEN THE TERMS OF THIS
AGREEMENT AND THE
CUSTOMER'S PURCHASE ORDER TERMS, THE TERMS AND CONDITIONS OF
THIS AGREEMENT
SHALL PREVAIL.
b. IF ANY TERM OR PROVISION OF THIS AGREEMENT SHALL BE FOUND TO BE
ILLEGAL OR
UNENFORCEABLE, THEN, NOTWITHSTANDING, THIS AGREEMENT SHALL
REMAIN IN FULL
FORCE AND EFFECT, AND SUCH TERM OR PROVISION WILL BE STRICKEN,
PROVIDED THAT
IN SUCH EVENT THE PARTIES AGREE TO NEGOTIATE IN GOOD FAITH
SUBSTITUTE
ENFORCEABLE PROVISIONS MOST NEARLY REFLECT THE PARTIES ORIGINAL
INTENT IN
ENTERING INTO THIS AGREEMENT.
c. THIS AGREEMENT SHALL BE BINDING ON THE PARTIES HERETO AND THEIR
SUCCESSORS
AND ASSIGNS, BUT IS NOT ASSIGNABLE BY CUSTOMER IN ANY PART
WITHOUT THE PRIOR
WRITTEN CONSENT OF TSI TELSYS, AND ANY ATTEMPTED ASSIGNMENT
WITHOUT SUCH
CONSENT SHALL BE NULL AND VOID. TSI TELSYS RESERVES THE RIGHT
TO ASSIGN THE
PERFORMANCE OF THIS AGREEMENT TO A QUALIFIED THIRD PARTY.
d. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
MARYLAND.
e. NEITHER PARTY SHALL BE RESPONSIBLE TO THE OTHER FOR A DEFAULT,
DELAY OR
FAILURE TO PERFORM HEREUNDER IF SUCH DEFAULT, DELAY OR FAILURE
TO PERFORM
(INCLUDING, BUT NOT LIMITED TO, MEETING THE RESPONSE TIME
REQUIREMENT OF
THIS AGREEMENT) IS DUE TO ONE OR MORE CAUSES BEYOND ITS
REASONABLE CONTROL
INCLUDING, BUT NOT LIMITED TO, LABOR DISPUTES, CIVIL
DISTURBANCES,
EPIDEMICS, WAR, EMBARGOES, FIRE, ACTS OF GOD OR DEFAULT OF A
COMMON CARRIER
OR SUPPLIER. THIS SECTION SHALL NOT APPLY TO THE CUSTOMER'S
OBLIGATION TO
PAY THE FEE(S) SET FORTH IN THIS AGREEMENT.
G-
1
SCHEDULE G: OTHER SUBCONTRACTOR SERVICES
1) TRAINING
(a) Upon Unisys request, Subcontractor shall provide
training,at the rates
listed in Schedule A, to Unisys designated personnel
in the theory,
operations, installation and maintenance of the
Products, including
appropriate training manuals having logic diagrams and
explaining the
theory of operations. Such training shall be of 5 days
duration at Unisys
selected site for a maximum of 3 personnel, and shall be
sufficient to
enable those personnel to train other personnel of Unisys or
its designee.
(b) Upon Unisys request, Subcontractor shall provide training as
recited in
the preceding paragraph which is reasonably required by
Unisys relating to
changes in the Products and improvements thereof.
H-
1
SCHEDULE H: INSURANCE
RESERVED
I-
1
SCHEDULE I: FEDERAL ACQUISITION REGULATION
This Subcontract incorporates the following Federal
Acquisition Regulation
clauses and Government supplements thereto by reference, with the
same force
and effect as if they were given in full text. The
obligations of the
Contractor to the Government as provided in said clauses shall be
deemed to be
the obligations of Subcontractor to Unisys. Wherever appropriate
to make the
incorporated clauses applicable to this Subcontract,
references in the
incorporated clauses to the "Government" or the "Contracting
Officer" shall be
deemed to refer to or (where appropriate) to include Unisys,
references to
"Contractor" shall be deemed to refer to Subcontractor, and
references to the
"Contract" shall be deemed to refer to this Subcontract. With
respect to any
clause granting rights of any kind or nature in patents,
licenses, copyrights
or other proprietary data, Government property, audit rights, or
where a right,
act or obligation can only be performed by the Government (see
Note 1 clauses),
or where otherwise specified below, references to the Government
shall not be
deemed to grant any rights to Unisys other than as may be
required to perfect
the Government's rights as granted in such clause.
NOTE 1: Designates clauses where rights and obligations flow
directly to and
from the Government.
NOTE 2: Designates clauses applicable to subcontracts over
$2,500.
NOTE 3: Designates clauses applicable to subcontracts over
$10,000.
NOTE 4: Designates clauses applicable to subcontracts over
$25,000.
NOTE 5: Designates clauses applicable to subcontracts over
$50,000.
NOTE 6: Designates clauses applicable to subcontracts over
$100,000.
NOTE 7: Designates clauses applicable to subcontracts over
$500,000.
NOTE 8: Designates clauses applicable to subcontracts over
$1,000,000.
NOTE 9: Designates clauses applicable to subcontracts over
$10,000,000.
I-
1
CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUES OR
EXECUTIVE ORDERS
- - COMMERCIAL ITEMS 52.212-5 (JAN 1996) MODIFIED
(a) The Contractor agrees to comply with the following FAR
clauses, which are
incorporated in this
contract by reference to implement provisions of law or executive
order
applicable to acquisitions of commercial items;
(1) 52.222-3, Convict Labor (E.O. 11755); and
(2) 52.233-3, Protest After Award (31 U.S.C 3553 and 40 U.S.C
759).
(b) The Contractor agrees to comply with the FAR / FIRMR clauses
in this
paragraph (b) which the
contracting officer has indicated as being incorporated in this
contract by
reference to implement provisions of law or executive orders
applicable to
acquisitions of commercial items or components.
CLAUSES INCORPORATED BY REFERENCE
FAR CLAUSES:
CLAUSE NO. TITLE DATE
52.203-06 Restrictions on Subcontractor Sales to the JUL
1985
Government (Note 1)
52.203-10 Price or Fee Adjustment for Illegal or Improper SEP
1990
Activity
52.219-08 Utilization of Small Business Concerns and FEB
1990
Small Disadvantaged Business Concerns
(Note 3: first tier only)
52.219-09 Small Business and Small Disadvantaged JAN
1991
Business Subcontracting Plan (Note 7:
not applicable to small business.)
52.222-26 Equal Opportunity (Note 3; exclude par. (a)) APR
1984
52.222-35 Affirmative Action for Special Disabled and APR
1984
Vietnam Era Veterans (Note 3)
52.222-36 Affirmative Action for Handicapped Workers APR
1984
(Note 2)
52.222-37 Employment Reports on Special Disabled Veterans JAN
1988
and Veterans of the Vietnam Era (Note 3)
52.225-03 Buy American Act - Supplies JAN
1989
CLAUSE NO. TITLE DATE
52.225-09 Buy American Act - Trade Agreements Act - APR
1991
Balance of Payments Program
52.225-21 Buy American Act - North American Free Trade
Agreement APR 1994
Implementation Act - Balance of Payments Program
52.247-64 Preference for Privately Owned U. S. - Flag
Commercial APR 1984
Vessels
FIRMR CLAUSES:
CLAUSE NO. TITLE DATE
201-39.5202-3 Procurement Authority SEP
1991
(C) Comptroller General Examination of Record. The Contractor
agrees to comply
with the provisions of this paragraph (c) if this contract was
awarded using
other than sealed bid, is in excess of the simplified
acquisition threshold,
and does not contain the clause at 52.215-2, Audit and Records-
Negotiation.
(1) The Comptroller General of the United States, or
an authorized
representative of the comptroller General, shall have access
to and right
to examine any of the Contractor's directly pertinent
records involving
transactions related to this contract.
(2) The Contractor shall make available at its offices at
all reasonable
times the records, materials, and other evidence for
examination, audit,
or reproduction, until 3 years after final payment under
this contract or
for any shorter period specified in FAR Subpart 4.7,
Contractor Records
Retention, of the other clauses of this contract. If
this contract is
completely or partially terminated, the records relating
to the work
terminated shall be made available for 3 years after any
resulting final
termination settlement. Records relating to appeals under
the disputes
clause or to litigation or the settlement of claims
arising under or
relating to this contract shall be made available until
such appeals,
litigation, or claims are finally resolved.
(3) As used in this clause, records include books,
documents, accounting
procedures and practices, and other data, regardless
of type and
regardless of form. This does not require the Contractor
to create or
maintain any record that the Contractor does not maintain in
the ordinary
course of business or pursuant to a provision of law.
(End of Provision)
(D) CONTRACT TERMS AND CONDITIONS--COMMERCIAL ITEMS 52.212-4
(OCT 1995)
A. Inspection/Acceptance. The Contractor shall only tender
for acceptance
those item that conform to the requirement 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. 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 th eitem.
B. Assignment. The Contractor or its assignee's right to be paid
amounts due
as a result of performance of this contract, may be assigned 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).
C. Changes. Changes in the terms and conditions of this
contract may be made
only by written agreement of the parties.
D. Disputes. The Prime Contractor's contract is subject to the
Contract
Disputes Acts of 1978, as amended (41 U.S.C. 601-613). Failure
of the
parties to this contract to reach agreement on any request for
equitable
adjustment, claim, appeal or action arising under or relating
to this
contract shall be considered a dispute. The Subcontractor shall
proceed
diligently with performance of this contract, pending final
resolution of
any dispute arising under the contract.
E. Definitions. The clause at FAR 52.202-1, Definitions, is
incorporated
herein by reference.
F. Excusable Delays. The Contractor shall be liable for default
unless
nonperformance is caused by an occurrence beyond the reasonable
control of
the Contractor and without its fault or negligence such as,
acts of God or
the public enemy, 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
Contractor shall notify the Contracting Officer 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 Contracting Officer of the cessation of such
occurrence.
G. 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.
H. Risk of loss. Unless the contract specifically provides
otherwise, risk of
loss or damage to the supplies provided under this contract
shall remain
with the Contractor until, and shall pass to the Government
upon:
(1) Delivery of the supplies to a carrier, if transportation is
f.o.b.
origin; or
(2) Delivery of the supplies to the Government at the
destination specified
in the contract, if transportation is f.o.b. destination.
a. Taxes. The contract price includes all applicable Federal,
State, and local
taxes and duties.
b. Termination for the Government's 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 charge the contractor can
demonstrate to the
satisfaction of the Government using its standard record
keeping system,
have resulting 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 contractor's records. The Contractor shall not be
paid for any
work performed or costs incurred which reasonably could have
been avoided.
c. 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
assurance 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 right and remedies provided by law. If it is
determined
that the Governmentimproperly terminated this contract for
default, such
termination shall be deemed a termination for convenience.
d. Title. Unless specified elsewhere in this contract, title to
items
furnished under this contract shall pass to the Government upon
acceptance,
regardless of when or where the Government takes physical
possession.
e. 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.
f. Limitation of liability. Except as otherwise provided by an
express or
implied warranty, the Contractor will not be liable to the
Government for
consequential damages resulting from any defect or deficiencies
in accepted
items.
g. Compliance. The Contractor shall comply with all applicable
Federal, State
and local laws, executive order, rules and regulations
applicable to its
performance under this contract.
h. Compliance with laws unique to Government contracts. The
Contractor agrees
to comply with 31 U.S.C. 1352 relating to limitations on the
use of
appropriated funds to influence certain Federal contracts; 18
U.S.C 431
relating to officials not to benefit; 40 U.S.C 327, et seq.,
Contract Work
Hours and Safety Standards act; 41 U.S.C. 51-58, Anti-Kickback
Act of 1986;
41 U.S.C. 251 related to whistle blower protections; and 49
U.S.C. 40118,
Fly American.
(End of Provision)
SCHEDULE J: TECHNICAL SPECIFICATIONS
RESERVED
SCHEDULE K: SUBCONTRACTOR REPRESENTATIONS AND
CERTIFICATIONS
SCHEDULE L: SPECIAL REQUIREMENTS
(1) PRIORITY RATING
The Prime Contract has been given a priority rating of DOA7.
Subcontractor
agrees to follow the provisions of applicable Government
regulations and orders
in obtaining and providing Products and Services needed to
fulfill this
Subcontract.
(2) SEWP BOWL HARDWARE SUPPORT
At Prime contract award, upon request of the Government,
Subcontractor shall
supply to Unisys, at no cost, one set (hardware, software,
firmware and
cables) of the equipment offered by Subcontractor in response to
the
specifications of the base networking products. Said equipment
shall remain at
the SEWP BOWL for the duration of the contract, or until replaced
by a
Technology Refreshment upgrade. If Subcontractor submits to Unisys
a Technology
Refreshment proposal for a base networking product, Subcontractor
will provide
said replacement product to Unisys, at no cost, for the SEWP BOWL.
Title for
all product at the SEWP BOWL will remain with Subcontractor.
(3) SEWP BOWL TECHNICAL SUPPORT
Subcontractor shall provide to Unisys, in support of the SEWP
BOWL, and at no
expense, full technical support services including:
(a) Hot-line support for all products available for purchase
through the SEWP
Ordering Guide. Hot-line support authorizations for the SEWP BOWL
shall be
available prior to contract award.
(b) On-line access to bug and security patches. Access via the
World Wide Web
(WWW) is preferable.
(c) Non-disclosure briefings on emerging technologies relevant to
SEWP.
(d) Hard copy of commercially available technical specifications
for all base
networking components, with documents for all products available
on the SEWP
Ordering Guide by request.
(4) CUSTOMER SUPPORT SERVICES
Subcontractor shall provide to Unisys, at no expense, the
following customer
support services:
1. Timely dispatch of up-to-date hard and soft copy price lists
(both
commercial and GSA)
2. Timely hard copy, at no charge, of all available technical
specifications
for any products available through the SEWP Ordering Guide (per
customer's
request)
3. Configuration analysis to determine the suitability,
correctness and
availability of Subcontractor's offerings to potential customer
requirements.
(5) PROMOTING THE CONTRACT
Subcontractor shall assist the Unisys in promoting the SEWP
II contract to
all Federal Agencies during the life of the contract.
Subcontractor agrees
that the SEWP II contract shall be the Subcontractor's
preferred vehicle
for sales to the US Government. The Subcontractor's goals
shall be to:
(a) Make customers aware of the SEWP procurement vehicle.
(b) Make customers aware of the products and services available on
SEWP.
(c) Assist customers in creating timely and accurate purchase
orders.
(6) NETWORKING UPGRADE STRATEGY
Subcontractor shall, throughout the life of the Prime
Contract, provide a
viable upgrade approach, particularly when the upgrade
requires the
exchange of hardware or media. The approach should lend
itself well to a
migration strategy, as well as a cutover approach.
(7) SEWP II EXCLUSIVITY
Subcontractor agrees that Unisys will be the exclusive
provider for
Subcontractor's Products for the SEWP II program. This
exclusivity will
be inclusive of the twelve SEWP II prime contracts only.
(8) YEAR 2000 COMPATIBILITY
The products and services acquired under this Subcontract are
required to
include accurate processing of the date and date-related data
(including
but not limited to calculating, comparing and sequencing) by
all hardware
and software products delivered under this contract,
individually and in
combination, upon installation. This also includes the
manipulation of
data with dates prior to, through, and beyond January 1,
2000, and shall
be transparent to the user.
Hardware and software products provided under this contract
shall,
individually , and in combination, successfully transition
into the Year
2000 with the correct system date, without human
intervention, including
leap year calculations. Such products shall also provide
correct results
when moving forward or backward in time across the Year 2000
or
subsequent years.
ATTACHMENT E
BIDDER<O~>S REPRESENTATIONS AND CERTIFICATIONS
(OVER $100,000)
BIDDER CERTIFIES THAT HE WILL SUBMIT A SUPERSEDING BIDDER<O~>S
REPRESENTATIONS AND CERTIFICATIONS WHENEVER THERE IS ANY CHANGE IN
THE
MATTERS COVERED BY THE REPRESENTATIONS AND CERTIFICATIONS.
I. INFLUENCE CERTAIN FEDERAL TRANSACTIONS
(52.203-11)
(a) The definition and prohibitions contained in the clause, at
FAR 52.203-
12, Limitation on Payments to Influence Certain Federal
Transactions,
included in this solicitation, are hereby incorporated by
reference in
paragraph (b) of this certification.
(b) The offeror, by signing its offer, hereby certifies to the
best of his
or her knowledge and belief that on or after December 23, 1989,-
(1) No Federal appropriated funds have been paid to any person for
influencing or attempting to influence an officer or employee of
any
agency, a Member of Congress, and officer or employee of Congress,
or an
employee of a Member of Congress on his or her behalf in
connection with
the awarding of any Federal contract, the making of any Federal
grant, the
making of any Federal loan, the entering into of any cooperative
agreement,
and the extension, continuation, renewal, amendment or
modification of any
Federal contract, grant, loan, or cooperative agreement;
(2) If any funds other than Federal appropriated funds (including
profit or
fee received under a covered Federal transaction) have been paid,
or will
be paid, to any person for influencing or attempting to influence
an
officer or employee of any agency, a Member of Congress, an
officer or
employee of Congress, or an employee of a Member of Congress on
his or her
behalf in connection with this solicitation, the offeror shall
complete and
submit, with its offer, OMB standard form LLL, Disclosure of
Lobbying
Activities, to the Contracting Officer; and
(3) He or she will include the language of this certification in
all
subcontract awards at any tier and require that all recipients of
subcontract awards in excess of $100,000 shall certify and
disclose
accordingly.
(c) Submission of this certification and disclosure is a
prerequisite for
making or entering into this contract imposed by section 1352,
title 31,
United States Code. Any person who makes an expenditure
prohibited under
this provision, or who fails to file or amend the disclosure form
to be
filed or amended by this provision, shall be subject to a civil
penalty of
not less than $10,000, and not more than $100,000, for each such
failure.
II. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, PROPOSED
DEBARMENT, AND
OTHER RESPONSIBILITY MATTERS (52.209-5)
(a)(1) The Offeror certifies, to the best of its knowledge and
belief,
that-
(i) The Offeror and/or any of its Principals-
(A) Are NOT presently debarred, suspended, proposed for debarment,
or
declared ineligible for the award of contracts by any Federal
Agency;
(B) Have NOT, (within a three-year period preceding this offer,
been
convicted of or had a civil judgment rendered against them for:
commission
of fraud or a criminal offense in connection with obtaining,
attempting to
obtain, or performing a public (Federal, state or local) contract
or
subcontract; violation of Federal or state antitrust statutes
relating to
the submission of offers; or commission of embezzlement, theft,
forgery,
bribery, falsification or destruction of records, making false
statements,
or receiving stolen property; and
(C) Are NOT, (presently indicted for, or otherwise criminally or
civilly
charged by a governmental entity with, commission of any of the
offenses
enumerated in subdivision (a) (l) (1) (B) of this provision.
(ii) The Offeror has (has not, (within a three-year period
preceding this
offer, had one or more contracts terminated for default by any
Federal
agency.
(2) <O`>Principals,<O'> for the purposes of this certification,
means
officers; directors; changes; partners; and, persons having
primary
management or supervisory responsibilities within a business
entity (e.g.,
general manager; plant manager; head of a subsidiary, division, or
business
segment, and similar positions).
This certification concerns a matter within the jurisdiction of an
agency
of the United States and the making of a false, fictitious, or
fraudulent
certification may render the maker subject to prosecution under
section
1001, title 18, United States Code.
(b) The Offeror shall provide immediate written notice if, at any
time
prior to contract award, the Offeror learns that its certification
was
erroneous when submitted or has become erroneous by reason of
changed
circumstances.
III. SMALL BUSINESS CONCERN REPRESENTATION (52.219-1)
(a) Representation. Representation. The offeror represents and
certifies
as part of its offer that it is not a small business concern.
(b) Definition.
Small business concern, as used in this provision, means a
concern,
including its affiliates, that is independently owned and
operated, not
dominant in the field of operation in which it is bidding on
Government
contracts, and qualified as a small business under the criteria
and size
standards in this solicitation.
IV. SMALL DISADVANTAGED BUSINESS CONCERN REPRESENTATION (52.219-2)
(a) Representation. The offeror represents that it is not a small
disadvantaged business concern.
(b) Definitions.
Asian Pacific Americans, as used in this provision, means United
States
citizens whose origins are in Japan, China, the Philippines,
Vietnam,
Korea, Samoa, Guam, the U.S. Trust Territory of the Pacific
Islands
(Republic of Palau), the Northern Mariana Islands, Laos, Kampuchea
(Cambodia), Taiwan, Burma, Thailand, Malaysia, Indonesia,
Singapore,
Brunei, Republic of the Marshall Islands, or the Federated States
of
Micronesia.
Indian tribe, as used in this provision, means any Indian tribe,
band,
nation, or other organized group or community of Indians,
including any
Alaska Native Corporation as defined in 13 CFR 124.100 which is
recognized
as eligible for the special programs and services provided by the
U.S. to
Indians because of their status as Indians, or which is recognized
as such
by the State in which such tribe, band, nation, group, or
community
resides.
Native Americans, as used in this provision, means American
Indians,
Eskimos, Aleuts, and Native Hawaiians.
Native Hawaiian Organization, as used in this provision, means any
community service organization serving Native Hawaiians in, and
chartered
as a not-for-profit organization by, the State of Hawaii, which is
controlled by Native Hawaiians, and whose business activities will
principally benefit such Native Hawaiians.
Small business concern, as used in this provision, means a
concern,
including its affiliates, that is independently owned and
operated, not
dominant in the field of operation in which it is bidding on
Government
contracts, and qualified as a small business under the criteria
and size
standards in 13 CFR 121.
Small disadvantaged business concern, as used in this provision,
means a
small business concern that (a) is at least 51 percent
unconditionally
owned by one or more individuals who are both socially and
economically
disadvantaged, or a publicly owned business having at least 51
percent of
its stock unconditionally owned by one or more socially and
economically
disadvantaged individuals and (b) has its management and daily
business
controlled by one or more such individuals. This term also means
a small
business concern that is at least 51 percent unconditionally owned
by an
economically disadvantaged Indian tribe or Native Hawaiian
Organization, or
a publicly owned business having at least 51 percent of its stock
unconditionally owned by one of these entities which has its
management and
daily business controlled by members of an economically
disadvantaged
Indian tribe or Native Hawaiian Organization, and which meets the
requirements of 13 CFR part 124.
Subcontinental Asian Americans, as used in this provision means
United
states citizens whose origins are in India, Pakistan, Bangladesh,
Sri
Lanka, Bhutan, or Nepal.
(c) Qualified groups. The offeror shall presume that socially and
economically disadvantaged individuals include Black American,
Hispanic
Americans, Native American, Asian-Pacific Americans, Subcontinent
Asian
Americans, and other individuals found to be qualified by SBA
under 13 CFR
124. The offeror shall presume that socially and economically
disadvantaged entities also include Indian tribes and Native
Hawaiian
Organizations.
V. WOMEN-OWNED SMALL BUSINESS REPRESENTATIONS (52.219-3)
(a) Representation. The offeror represents that it is not a women-
owned
small business concern.
(b) Definitions.
<O`>Small business concern,<O'> as used in this provision, means
a
concern, including its affiliates, that is independently owned and
operated, not dominant in the field of operation in which it is
bidding on
Government contracts, and qualified as a small business under the
criteria
and size standards in 13 CFR 121.
<O`>Women-owned,<O'> as used in this provision, means a small
business
that is at least 51 percent owned by a woman or women who are U.S.
citizens
and who also control and operate the business.
VI. CERTIFICATION OF NONSEGREGATED FACILITIES (52.222-21)
(a) <O`>Segregated facilities<O'>, as used in the provision, means
any
waiting rooms, work areas, rest rooms and wash rooms, restaurants
and other
eating areas, time clocks, locker rooms and other storage or
dressing
areas, parking lots, drinking fountains, recreation or
entertainment areas,
transportation, and housing facilities provided for employees,
that are
segregated on the basis or race, color, religion, or national
origin
because of habit, local custom, or otherwise.
(b) By the submission of this offer, the offeror certifies that it
does not
and will not maintain or provide for its employees any segregated
facilities at any of its establishments, and that it does not and
will not
permit its employees to perform their services at any location
under its
control where segregated facilities are maintained. The offeror
agrees
that a breach of this certification is a violation of the Equal
Opportunity
clause in the contract.
(c) The offeror further agrees that (except where it has obtained
identical
certifications from proposed subcontractors for specific time
periods) it
will-
(1) Obtain identical certifications from proposed subcontractors
before the
award of subcontracts under which the subcontractor will be
subject to the
Equal Opportunity clause:
(2) Retain the certifications in the files: and
(3) Forward the following notice to the proposed subcontractors
except if
the proposed subcontractors have submitted identical
certifications for
specific time periods):
NOTICE TO PROSPECTIVE SUBCONTRACTORS OR REQUIREMENT FOR
CERTIFICATIONS OF
NONSEGREGATED FACILITIES
A Certification of Nonsegregated Facilities must be submitted
before the
award of a subcontract under which the subcontractor will be
subject to the
Equal Opportunity clause. The certification may be submitted
either for
each subcontract or for all subcontracts during a period (i.e.,
quarterly,
semiannually, or annually).
VII. PREVIOUS CONTRACTS AND COMPLIANCE REPORTS
(52.222-22)
The offeror represents that-
(a) It has participated in a previous contract or subcontract
subject
either to the Equal Opportunity clause of this solicitation, the
clause
originally contained in Section 310 of Executive Order No. 10925,
or the
clause contained in Section 201 Executive Order No. 11114;
(b) It has filed all required compliance reports; and
(c) Representations indicating submission of required compliance
reports,
signed by proposed subcontractors, will be obtained before
subcontract
awards.
VIII. AFFIRMATIVE ACTION COMPLIANCE (52.222-25)
The offeror represents that (1) it has developed and has on file
at each
establishment, affirmative action programs required by the rules
and
regulations of the Secretary of Labor (41 CFR 60-1 and 60-2),
(2) It has not previously had contracts subject to the written
affirmative
action programs requirement of the rules and regulations of the
Secretary
of Labor.
IX. CLEAN AIR AND WATER CERTIFICATION (52.223-1)
The offeror certifies that-
(a) Any facility to be used in the performance of this proposed
contract is
not listed on the Environmental Protection Agency (EPA) List of
Violating
Facilities;
(b) The offeror will immediately notify the Contracting Officer,
before
award, of the receipt of any communication from the Administrator,
or a
designee, of the EPA, indicating that any facility that the
Offeror
proposes to use for the performance of the contract is under
consideration
to be listed on the EPA list of Violating Facilities; and
(c) The offeror will include a certification substantially the
same as this
certification, including this paragraph (c), in every nonexempt
subcontract.
X. REPRESENTATION OF LIMITED RIGHTS DATA AND RESTRICTED COMPUTER
SOFTWARE
(52.227-15)
REPRESENTATION CONCERNING DATA RIGHTS
Offeror has reviewed the requirements for the delivery of data or
software
and states (offeror check appropriate block)-
Data proposed for fulfilling such requirements qualify as limited
rights
data or restricted computer software and are identified as
follows:
All Software on Schedule A <O`>Product Pricing Sheet<O'>
XI. COST ACCOUNTING STANDARDS NOTICES AND CERTIFIACTION (52.230-1)
Note: This notice does not apply to small business or foreign
governments.
This notice is in three parts, identified by Roman numerals 1
through III.
XII. REPRESENTATION OF EXTENT OF TRANSPORTATION OF SUPPLIES BY SEA
(252.247-7022)
The clause at 252.247-7022, Transportation of Supplies by Sea,
will be
included in any contract resulting from this solicitation. The
Offeror is
required to indicate whether transportation by sea is anticipated
under the
resultant contract by checking the appropriate blank as follows:
The Offeror represents that it does not anticipate that supplies,
as
defined in the clause at 252.247-7023, Transportation of Supplies
by Sea,
will be transported by sea in the performance of any contract or
subcontract resulting from this solicitation.
XIII. DISCLOSURE OF OWNERSHIP OR CONTROL GOVERNMENT OF A TERRORIST
COUNTRY
(252.209-7001)
(a) Definitions.
As used in this provision-
(1) <O`>Government of a terrorist country<O'> includes the state
and the
government of a terrorist country, as well as any political
subdivision
agency, or instrumentally thereof.
(2) <O`>Terrorist country<O'> means a country determined by the
Secretary
of State, under section 6(j) (1) (A) of the Export Administration
Act of
1979 (50 U.S.C. App. 2405 (j)(I)(A), to be a country the
government of
which has repeatedly provided support for acts of international
terrorism.
As of the date of this provision, terrorist countries include:
Cuba, Iran,
Iraq, Libua, North Korea, Sudan, and Syria.
(3) <O`>Significant interest<O'> means-
(i) Ownership of or beneficial interest in 5 percent or more of
the
form<O~>s or subsidiary<O~>s securities. Beneficial interest
included
holding 5 percent or more of any class of the firm<O~>s securities
in
<O`>nominee share, <O`> <O`>street names,<O'> or some other method
of
holding securities that does not disclose the beneficial owner,
(ii) Holding a management position in the firm, such as a director
or
officer.
(iii) Ability to control or influence the election, appointment,
or tenure
of directors or officer in the firm;
(iv) Ownership of 10 percent or more of the assets of a firm such
as
equipment, buildings, real estate, or other tangible assets of the
firm; or
(v) Holding 50 percent or more of the indebtedness of a firm.
(b) Prohibition on award.
In accordance with 10 U.S.C. 2327, no contract may be awarded to a
firm or
a subsidiary of a firm if the government of a terrorist country
has a
significant interest in the form or subsidiary, unless a waiver is
granted
by the Secretary of Defense.
(c) Disclosure.
If the government of a terrorist country has a significant
interest in the
Offeror or subsidiary of the Offeror, the Offeror shall disclose
such
interest in an attachment to its offer. If the offeror is a
subsidiary, it
shall also disclose any significant interest the government of a
terrorist
country has in any firm that owns or controls the subsidiary. The
disclosure shall include-
(1) Identification of each government holding a significant
interest; and
(2) A description of the significant interest hold by each
government.
XIV. ETHICS AND INTEGRITY CERTIFICATION
Offeror certifies that, to his knowledge, no employee on Unisys
related
work has:
1) Offered or accepted any kickbacks as that term is defined in
the Anti-
kickback Enforcement Act of 1986;
2) Offered any Unisys employee anything of value including any
gift or
promotional item;
3) Entered into any collusive bidding arrangement for any
requirement
Unisys is attempting to buy;
4) Made any <O`>product substitution<O'> or failed to deliver
products
which meet or exceed the requirements of the Unisys contract;
5) Attempted to cause a Unisys employee to act in such a manner
that would
cause that employee to violate the Unisys Code of Ethical Conduct.
BIDDER<O~>S SIGNATURE
TSI TELSYS INC.
Edward J. O<O~>Malley, Jr
6/20/97
PART III: GENERAL PROVISIONS
DEFINITIONS
As used in this Subcontract, the following terms shall have
the following
meanings:
A. ACCEPTANCE DATE.
"Acceptance Date" means the date on which the Government
notifies Unisys
that the Products or Services have been accepted by the
Government.
B. APPLICABLE SPECIFICATIONS.
"Applicable Specifications" means the functional,
performance and
operational characteristics and other requirements of the
Products as such
are described in: (1) the Prime Contract, including the
applicable Federal
Information Processing Standards; (2) the descriptions
and technical
specifications contained in all documents comprising or
referenced in this
Subcontract, including Schedule J, STATEMENT OF WORK;
and (3) the
published technical specifications for the Products.
C. DAY.
"Day" means calendar day unless otherwise specified.
D. EQUIPMENT.
"Equipment" means the hardware and equipment products
and features
(including firmware, microcode, and parts) listed on
Schedule A,
EQUIPMENT.
E. PRODUCTS.
"Products" shall collectively refer to the
Equipment, Software,
documentation and technical data listed on Schedules A, B and
C.
F. SERVICES.
"Services" means all services to be rendered by
Subcontractor hereunder
and as specified in Schedules F and G.
G. SOFTWARE.
"Software" means the licensed systems and programs
including all related
documentation and material pertaining to said systems
or programs
(including firmware and microcode), listed on Schedule
B, SOFTWARE,
including all corrections, improvements, enhancements,
upgrades and
updates thereto, and any supporting programs necessary for
the proper
functioning thereof.
H. SYSTEM.
"System" means a combination of Equipment and Software in
a particular
configuration and in strict accordance with the Applicable
Specifications.
2. TERM OF PRIME CONTRACT
Notwithstanding anything herein provided, this Subcontract
(including any
issued but unfilled Purchase Orders) may be terminated by Unisys
in whole or in
part in the event of termination, expiration or nonrenewal
of the Prime
Contract for any reason, including, but not limited to, a
termination for
convenience, default or termination pursuant to any provision
of the Prime
Contract or direction by the Government to terminate this
Subcontract. Unisys
shall give written notice to Subcontractor as promptly as
practicable after
receipt by Unisys of any notice, written or otherwise, of
termination,
expiration of or intent not to renew the Prime Contract. If
this Subcontract
is so terminated, Unisys shall not be liable for any Services
performed by
Subcontractor or Products tendered pursuant to this Subcontract
after the date
of Unisys first giving of any notice (oral or written) of
termination of the
Prime Contract and this Subcontract.
3. PURCHASE ORDERS
A. PURCHASE ORDER COMPLETION.
Except as specifically directed by Unisys, any Purchase Order
issued during the
Term of this Subcontract and not completed within that
period shall be
completed by Subcontractor within the time specified in the
Purchase Order, and
shall continue to be subject to the terms of this Subcontract.
4. PRICE AND PAYMENT
A. ALL INCLUSIVE PRICE.
The purchase price/license fee specified in the Schedules is an
all-inclusive
price for the Products and Services and includes all taxes
(federal, state and
local). There shall be no additional charges for Products or
Services provided
by Subcontractor, or for fulfillment of Subcontractor's
obligations herein,
unless expressly set forth in this Subcontract.
5. TITLE AND RISK OF LOSS
A. TITLE.
Title to Products purchased hereunder shall pass directly from
Subcontractor to
the Government on the date(s) of formal acceptance by the
Government,
regardless of when or where the Government takes physical
possession, unless
the Prime Contract or this Subcontract specifically provides
for earlier
passage of title.
B. RISK OF LOSS.
Subcontractor shall be responsible for all risk of loss or
damage to the
Products ordered hereunder until the Acceptance Date, unless
such loss is
caused by the fault or negligence of Unisys or the Government,
and without
contribution thereto by Subcontractor.
6. CONFIDENTIAL INFORMATION AND DISCLOSURE
A. Any information which either party may disclose to the
other party shall
not be deemed to be confidential and shall be acquired
free from any
restriction, unless the information is proprietary to the
disclosing party and,
if it is disclosed in tangible form, the disclosing party
marks such
information as being confidential to it by marking such
information as
"Proprietary," "Restricted," or "Confidential." Any
confidential information
disclosed verbally will be identified as confidential at the time
of disclosure
and thereafter reduced to tangible form with a copy,
prominently marked as
aforesaid, delivered to the receiving party within ten (10) days
of the verbal
disclosure. When a writing contains both confidential and
nonconfidential
information, the disclosing party shall specifically note the
information which
is confidential.
B. Each party shall exercise the same degree of care to avoid
the publication
or dissemination of the confidential information of the other
party as it
affords to its own confidential information of a similar
nature which it
desires not to be published or disseminated. Confidential
information
disclosed under this Subcontract shall only be used by the
receiving party in
the furtherance of this Subcontract or the performance of
its obligations
hereunder.
C. The obligation of the parties not to disclose confidential
information
shall survive the termination or cancellation of this
Subcontract. However,
neither party shall be obligated to protect confidential
information of the
other party which: (1) is rightfully received by the
receiving party from
another party without restriction; (2) is known to or
developed by the
receiving party independently without use of the confidential
information; (3)
is or becomes generally known to the public by other than a
breach of duty
hereunder by the receiving party; (4) has been or is hereafter
furnished to
others without restriction on disclosure; or (5) is known or
available to the
receiving party by inspection or analysis of products available in
the market.
D. The obligation not to use or disclose said confidential
information shall
end five (5) years after the date of receipt of said confidential
information,
except with respect to any Software, for which the obligation
shall continue
until the occurrence of any of the events listed in
Subparagraph C, above.
Nothing contained herein shall be construed as preventing
Unisys from
sublicensing or marketing Software or documentation to the
Government. Unisys
shall be permitted to disclose confidential information to
its affiliated
entities, third parties and subcontractors for their use in the
furtherance of
the Program; provided, however, that such affiliated entities,
third parties
and subcontractors agree to protect such information to the
extent provided
herein.
E. Unisys is authorized to incorporate Subcontractor-
provided Proprietary
Information in submissions to the Government provided such
Proprietary
Information bears an appropriate restrictive legend.
7. INDEPENDENT CONTRACTORS
It is agreed that the relationship between the parties is that
of independent
contractors, and nothing contained in this Subcontract shall be
construed or
implied to create the relationship of partners, joint
ventures, agent and
principal, employer and employee, or any relationship other
than that of
independent contractors. At no time shall either party make any
commitments or
incur any charges or expenses for or in the name of the other
party.
8. INFRINGEMENT INDEMNIFICATION
A. Subcontractor agrees to indemnify and hold harmless
Unisys and the
Government from any claim, liability, damage or expense
including but not
limited to legal expenses of whatever kind for, or on account
of, patent
infringement, copyright infringement, misappropriation of trade
secrets or
violation of other proprietary rights in connection with or
relating to the
use, copying, reproduction, distribution, licensing or other
disposition of any
portion of the Products. Subcontractor agrees to defend or
settle, at
Subcontractor's expense, all suits or proceedings arising out
of any of the
foregoing; provided, however, that Unisys shall give
Subcontractor prompt
written notice of all suits or threats of suit and other such
claims concerning
patent or copyright infringement or misappropriation of trade
secrets and other
intellectual property against Unisys or the Government.
Unisys, at its own
expense, shall have the right to participate in Subcontractor's
defense of any
such action through Unisys own counsel. In the event that
Subcontractor fails
after notice, to adequately defend or settle under this Section,
Unisys shall
have the right of prosecuting and defending such action or
actions and to
collect such costs and expenses (including attorneys' fees) from
Subcontractor
and shall further have the right to charge Subcontractor with
any and all
awards, damages and court costs in such action or actions and to
collect such
awards, damages and court costs from Subcontractor.
B. If the Products are held to be an infringement or
misappropriation for
which Unisys is indemnified by Subcontractor, and its use
is enjoined,
Subcontractor shall, at Subcontractor's option and expense,
either: (1)
procure for Unisys the right to continue using or
reselling/sublicensing the
Products, and for the Government the right to continue using the
Products; or
(2) replace or modify the Products in such a way that they shall
not constitute
an infringement or misappropriation, provided all Prime
Contract and
Subcontract specifications of performance are met. In the event
Subcontractor
is unable to secure such right of use for Unisys and the
Government or to
secure a suitable replacement product, Subcontractor shall
indemnify Unisys and
the Government for losses or damages sustained. Subcontractor
shall not be
liable under this Section if the Products have been modified by
any of the
indemnified parties and such modification is solely the
cause of any such
infringement or misappropriation unless such modifications
were made in
accordance with Subcontractor's instructions.
9. INDEMNIFICATIONS
A. Each party (the "Indemnifying Party") shall hold harmless
the other party
from any claims of personal injury or property damage arising
from any act or
omission of the Indemnifying Party.
B. In the event any price included in the Prime Contract
is reduced or
liquidated or other damages or credits are assessed against Unisys
because of:
(1) any violation by Subcontractor of any law, regulation or
order required to
be complied with hereunder;
(2) any undisclosed failure on the part of Subcontractor to
timely furnish any
Product or Service required by the terms of this Subcontract
or any other
breach of this Subcontract by Subcontractor;
(3) any failure on the part of Subcontractor to provide any
certification,
report or supporting information required hereunder;
(4) any adverse finding against Subcontractor by the DCAA or
other cognizant
audit agency;
(5) any false claim submitted by Subcontractor, or
misrepresentation of fact
or fraud by Subcontractor;
then, and in that event, Subcontractor shall indemnify
Unisys to the full
extent of any damages, costs, credits or charges assessed by
the Government
against Unisys, which are due to the fault or failure to
perform of
Subcontractor, and not due to the fault or failure to perform of
the Government
or Unisys.
10. RELEASE OF INFORMATION
Any Subcontractor news release, public announcement, advertisement
or publicity
concerning this Subcontract or the Prime Contract will be
subject to prior
written approval of Unisys. Subcontractor shall not disclose
any information
relating to this Subcontract to any person not authorized by
Unisys or the
Government to receive it.
11. SUBCONTRACTOR PERSONNEL
Subcontractor shall be responsible for selecting and supervising
personnel who
are well qualified to perform the required services and for
ensuring that such
personnel comply with Unisys and Government security and
Prime Contract
requirements. Unisys may direct Subcontractor to remove any
employee from an
assignment to perform Services under this Subcontract for
reasons of security
or misconduct, or failure to perform in a manner reasonably
acceptable to
Unisys or the Government.
12. CONFLICT OF INTEREST
Subcontractor agrees that it will not engage directly or
indirectly either for
itself, or with or for any other person or entity in any work
or undertaking
which shall conflict with or create any legal
impediment against
Subcontractor's performance of its obligations under this
Subcontract and the
rights and licenses granted to Unisys hereunder. Subcontractor
represents that
there is no such present conflict of interest nor any such legal
impediment.
13. NOTICE OF DELAY.
A. Time is of the essence in this Subcontract.
B. Whenever any occurrence is delaying or threatens to delay
Subcontractor's
timely performance under this Subcontract, Subcontractor shall
promptly give
notice thereof, including all relevant information with respect
thereto, to
Unisys.
14. DISCLAIMER
EXCEPT AS EXPRESSLY STATED HEREIN, NEITHER PARTY HAS MADE ANY
WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED BY OPERATION OF LAW OR
OTHERWISE,
CONCERNING THE PRODUCTS TO BE PROVIDED HEREUNDER, THE SCOPE OR
DURATION OF ANY
MARKETING EFFORT WHICH UNISYS MAY UNDERTAKE, OR THE
SUCCESS OF ANY SUCH
MARKETING EFFORT. NEITHER PARTY HAS RELIED ON ANY EXPRESS
OR IMPLIED
REPRESENTATION OF THE OTHER PARTY, WRITTEN OR ORAL, AS AN
INDUCEMENT TO
ENTERING INTO THIS AGREEMENT.
15. LIMITATION OF LIABILITY
EXCEPT AS PROVIDED IN THE INDEMNIFICATION PROVISIONS OF THIS
SUBCONTRACT, IN NO
EVENT SHALL EITHER PARTY BE RESPONSIBLE OR LIABLE TO THE OTHER
OR ANY THIRD
PARTY FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OR
LOST PROFITS OR REVENUES OF THE OTHER OR ANY THIRD PARTY, EVEN
IF THE OTHER
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
16. STATUTE OF LIMITATIONS
No party may commence an action under this Subcontract more than
two (2) years
after the occurrence of the event upon which such action is
based, or, if the
event upon which such action is based is not discoverable by the
injured party
when it has occurred, more than two (2) years after such default
could, in the
exercise of due diligence, have been discovered by such
party; provided,
however, if the Government commences any action under the
Prime Contract
against Unisys, which action directly or indirectly concerns this
Subcontract,
then this limitation does not apply.
17. ASSIGNMENT
Subcontractor shall not assign or transfer its rights, interests
or obligations
under this Subcontract without the prior written consent of
Unisys. Any
unauthorized assignment or transfer shall be null and void, and
Subcontractor
shall remain liable to Unisys for full performance of its
obligations
hereunder.
18. CAPTION/HEADINGS
The captions and headings of the articles, sections and
paragraphs contained
herein have been inserted for the convenience of the parties and
shall not be
construed as a part of or modifying any provisions of this
Subcontract.
19. WAIVER
The failure of either party to insist, in any one or more
instances, upon the
performance of any of the terms, covenants or conditions of this
Subcontract or
to exercise any right hereunder, shall not be construed as a
waiver of the
future performance of any such term, covenant or condition or
the future
exercise of such right.
20. GOVERNING LAW
This Subcontract shall be construed, governed and interpreted
in accordance
with the laws, but not the rules relating to the choice of
law, of the
Commonwealth of Virginia, provided, however, that to the extent
Federal common
law of government contracts (I.E., decisions of federal courts
or boards of
contract appeals) exists on substantive matters requiring
construction under
this Subcontract, such Federal common law shall apply in lieu of
state law.
21. SEVERABILITY
If any provision of this Subcontract is held or determined to
be invalid or
unenforceable, the remaining provisions shall continue in full
force and effect
as if this Subcontract had been executed with the invalid
provision eliminated.
22. SURVIVAL OF PROVISIONS
In addition to the rights and obligations which survive as
expressly provided
for elsewhere in this Subcontract, the articles and provisions
which by their
nature should survive shall survive and continue after any
termination or
cancellation of this Subcontract.
23. ENTIRE AGREEMENT
This Subcontract, together with the Schedules annexed hereto and
the documents
incorporated herein by reference, constitute the entire agreement
between the
parties with respect to the subject matter hereof and supersedes
all previous
proposals, negotiations, representations, commitments, writings,
agreements and
other communications, both oral and written, between the
parties. This
Subcontract may not be released, discharged, changed or modified
except by an
instrument in writing signed by a duly authorized representative
of each of the
parties.