Section H

CLAUSE H.1 - ADDITIONAL DEFINITIONS

(a) "Contractor" or "University" means Iowa State University of Science and Technology.

(b) "Laboratory" means the Ames Laboratory (Ames) consisting of all Government-owned property, facilities, and structures as well as Government-leased land, and such other items of property as the Parties may mutually agree, in writing, from time to time.

(c) The term "someone acting as the Laboratory Director" means the person appointed as Laboratory Director, the Deputy Director acting in the absence of the Laboratory Director, or a person specified, in writing, to have authority to act in the absence of the Laboratory Director and Deputy Director.

(d) Except as otherwise provided in this contract, the term "Contractor's managerial personnel" means the University's officers; Laboratory Director; Laboratory Deputy Director; Director, Science and Technology; Division Director Chief Operations Officer; and Laboratory personnel with chief responsibility for Laboratory environment, safety and health assurance; finance; and purchasing and property, or someone acting as the Laboratory Director or for other positions named herein.

(e) The term "DOE Directive" means DOE Orders and Notices, Modifications thereto, and other forms of directives, including for purposes of this contract those portions of DOE's Accounting and Procedures Handbook applicable to integrated Contractors, issued by DOE. The term does not include temporary written instructions by the Contracting Officer for the purpose of addressing short-term or urgent DOE concerns relating to health, safety, or the environment.

(f) The term "written instruction" means for purposes of determining allowability of costs under this contract, the terms "written instruction", "written direction", "written order", and "written guidance" and are used interchangeably.

CLAUSE H.2 - LABORATORY FACILITIES

(a) Laboratory Facilities. DOE agrees to continue to furnish and make available to the Contractor, for its possession and use in performing the work under this contract, the Laboratory facilities designated as follows:

(1) The Government-owned or leased land, buildings, utilities, equipment and other facilities situated at the Contractor's Ames, Iowa campus and its environs.

(2) Government-owned or leased facilities at such other locations as may be approved by DOE for use under this contract.

(3) The Contractor and DOE have developed mutually satisfactory agreements for the lease or the use and occupancy of real property in connection with the work under this contract. The Contractor agrees to continue to furnish and make available, in accordance with this clause and Appendix L set forth in Part III, Attachment J.12 for its use in performing the work under this contract, certain Contractor owned land, buildings, utilities, equipment, and other facilities situated at the Contractor's Ames, Iowa campus and environs. DOE reserves the right to make part of the above-mentioned land or facilities available to other Government agencies or other users on the basis that the responsibilities and undertakings of the Contractor will not be unreasonably interfered with. Before exercising its right to make any part of the land or facilities available to another agency or user, DOE will confer with the Contractor.

(b) Real property. In certain instances, structures and other improvements financed by the Government have been or will be constructed or altered. These arrangements also cover the disposition of such structures and improvements.

(1) Government Property on Leased Premises. The basic terms and conditions applicable to property of the Contractor leased to the Government are set forth in Part III, Attachment J.12, Appendix L.1. The provisions of Appendix L.1 shall apply with regard to the right of ingress and egress to and from, the maintenance and repair of, the furnishing of utilities to, Government owned building or buildings, the Government-leased property on which said buildings or buildings are located, and any other improvements which, by agreement of the Parties, shall be made subject to the provisions of Appendix L.1. Except as provided in Appendix L.1, DOE shall have no obligation to restore the premises with respect to such structures or improvements.

(2) Use and Occupancy of Space in Contractor-Owned Buildings. The Contractor shall provide from time to time such necessary space in Contractor-owned buildings, as may be agreed upon by the Parties, to be used and occupied by the Laboratory in connection with the work under this contract in accordance with the applicable provisions of Appendix L.2 set forth in Part III, Attachment J.12.

(3) Disposition of Property Altered or Constructed on Premises Not Covered by Long-Term Lease Arrangements.

(i) After the expiration or termination of this contract, or before expiration or termination if DOE so agrees, the Contractor shall elect, with respect to premises owned by the Contractor and not covered by provisions of subparagraph (b)(1) above, upon which any alteration, construction or improvement has been done hereunder (or under Contract No. OEMsr-433, Contract No. W-7405-Eng-7, or Contract No. W-7405-Eng-90, as amended or supplemented) prior to July 1, 1953, whether (1) to retain the benefit of such construction or alteration, in which case the Contractor shall return to or credit the Government with the portion of the reimbursement by the Government for its costs or expenditures thereafter determined by negotiation between the Contractor and DOE to be fair and proper, or (2) to have such premises restored to substantially the same condition as prior to such alteration or construction, in which case it shall retain all such reimbursement, and the Government shall pay the net cost of such restoration. The Contractor shall furnish all information deemed relevant by DOE.

(ii) Effective on July 1, 1953, it is understood and agreed that prior to any construction, improvement or alteration of any structure or other improvement on property of the Contractor which is not covered by a long-term lease pursuant to subparagraph (b)(1) above and which is financed in whole or in part by Government funds under this contract other than restoration work under subparagraph (b)(1) and subparagraph (b)(3)(i) above, the parties shall agree in writing as to the approximate allocation of costs as between the Government and the Contractor and the method of disposition of such construction, improvement, and alteration. The plans for any construction, improvement, or alteration under this paragraph shall be purely utilitarian and without unnecessary refinements. Except as otherwise may be provided in such agreements, it is understood and agreed that DOE shall be under no obligation to restore the premises affected by any such construction, improvement or alteration made to or upon such property of the Contractor in the course of the work under the contract. Such agreements shall be executed by representatives of the parties authorized to sign this contract, or modifications thereof, without the execution of a formal supplement to this contract. The requirements of this paragraph apply to work to be performed by the Contractor as well as that to be performed by third parties.

CLAUSE H.3 - COMMUNICATIONS AND TRUST

(a) Public Affairs and News Releases

(1) The Parties agree that each has an obligation and commitment to academic freedom and openness in public information, inquiry and involvement. The Parties also recognize the importance of coordination with each other with regard to areas covered in this Clause so as to achieve public policy objectives important to the nation. As a federal agency, DOE must assure that news releases which describe its policies and procedures as related to the operation of its national scientific laboratories do so on an accurate and timely basis. Accordingly, the Parties recognize the importance of advanced coordination of major news media activities, including news releases, major announcements and significant interactions with national news media.

(2) Consistent with these principles, the Parties will exercise diligent efforts to inform each other, in advance, of significant public affairs events or other major activities. When such advance exchange is not possible operationally, each party shall promptly furnish the released information to the other party concurrent with its release.

(3) The Contractor shall not release information attributed directly to DOE or which purports to represent established DOE policy without advance concurrence of DOE. Nothing in this Clause shall be construed so as to limit the right of the Contractor to publicize the results of its scientific research, consistent with the advance coordination principles outlined above.

(4) In all public releases of information in communication products related to the Laboratory, identification of the facility as a Department of Energy facility shall be made prominently in the communication product involved. The inclusion of such a standard statement does not replace, however, the requirement for prominent identification of the Laboratory as a DOE facility in an appropriate editorial context in the communications product.

(5) Nothing in this Clause is intended to interfere with requirements associated with information which has received national security classification.

(b) Public Involvement

(1) The Contractor agrees to establish community relations and/or public involvement programs and initiatives appropriate to the Laboratory activities involved and the stakeholder interests affected.

(2) DOE recognizes such activities as an integral component of Contractor management responsibilities in the execution of the contract. The Parties recognize their mutual responsibilities to coordinate public involvement activities and to coordinate all related external communications consistent with the principles outlined in paragraph (a), Public Affairs and News Releases, above.

(3) In carrying out Laboratory public involvement activities, the Contractor agrees that it will make no statements contrary to DOE policy or enter into any commitments with external parties regarding departmental actions without DOE concurrence.

CLAUSE H.4 - LONG-RANGE PLANNING, PROGRAM DEVELOPMENT AND BUDGETARY ADMINISTRATION

(a) Basic Considerations. Throughout the process of planning, and budget development and approval, the Parties recognize the desirability for close consultation, for advising each other of plans or developments on which subsequent action will be required, and for attempting to reach mutual understanding in advance of the time that action needs to be taken.

(b) Institutional Planning. It is the intent of the Parties to develop annually an Institutional Plan covering a five-year period. Development of the Institutional Plan is the strategic planning process by which the Parties, through mutual consultation, reach agreement on the general types and levels of activity which will be conducted at the Laboratory for the period covered by the plan. The Institutional Plan approved by DOE provides guidance to the Laboratory for long-range planning of programs, site and facility development, and for budget preparation. It also serves as a baseline for placement of work at the Laboratory.

(1) In accordance with the basic principles stated in paragraph (a) of this Clause, the Parties will utilize the procedures set forth in Part III, Attachment J.4, Appendix D, hereto attached and hereby made a part of this contract, for the development and presentation of work programs and budget estimates for the Laboratory and preliminary agreements thereon; such Appendix may be modified from time to time to the extent that the Parties so agree, in writing, without the execution of a formal supplement to this contract.

(2) DOE approval of the program proposals and budget estimates will be reflected in work authorizations and financial plans developed, issued and revised in accordance with the procedures agreed upon under subparagraph (c)(1) above.

CLAUSE H.5 - WORK FOR OTHERS FUNDING AUTHORIZATION (MONTH AND YEAR TBD)

Any uncollectible receivables resulting from the Contractor utilizing Contractor corporate funding for reimbursable work shall be the responsibility of the Contractor, and the United States Government shall have no liability to the Contractor therefor. The Contractor is permitted to provide advance payment utilizing contractor corporate funds for reimbursable work to be performed by the Contractor for a non-Federal entity in instances where advance payment from that entity is required under the Laws, Regulations, and DOE Directives clause of this contract and such advance cannot be obtained. The Contractor is also permitted to provide advance payment utilizing Contractor corporate funds to continue reimbursable work to be performed by the Contractor for a Federal entity when the term or the funds on a Federal interagency agreement required under the Laws, Regulations, and DOE Directives clause of this contract have elapsed. The Contractor’s utilization of Contractor corporate funds does not relieve the Contractor of its responsibility to comply with all requirements for Work for Others applicable to this contract.

CLAUSE H.6 - DEAR 970.70 AGREEMENTS TO PERFORM NON-DOE ACTIVITIES

(a) Subject to the prior written approval of the Contracting Officer, and in compliance with applicable requirements imposed by the Contracting Officer pursuant to clause I.110 - Laws, Regulations, and DOE Directives, the Contractor may, through the Laboratory, perform non-DOE activities which are consistent with and complementary to the DOE's mission and the Laboratory's mission under the contract, involving the use of Laboratory equipment, facilities, or personnel. Such proposed work may be for non-Federal entities or other Federal agencies. The request for such approval shall set forth, in detail, the nature of the outside work to be performed, the Laboratory equipment, facilities or personnel required, and the financial and contractual arrangements proposed to pay for the cost of such work. The Contracting Officer shall consider such a request, being guided, among other factors, by the current or future needs of DOE's programs for the equipment, facilities, or personnel to be utilized in the performance of such outside work. Primary considerations in approving such work are that the proposed work will not place the Laboratory in direct competition with domestic non-Federal entities, will not adversely impact execution of the Laboratory's assigned programs, and will not create a potentially detrimental future burden on commitment of DOE resources. If the Contracting Officer approves such a request, the Contractor and DOE shall agree upon the terms and conditions which would apply to such work. This agreement may provide for receipt by the Government of all or part of such sum as represents the payment to be received by the Contractor for such outside work; provided, however, that DOE may contribute the use of certain equipment, facilities, or personnel to the Laboratory for the performance of such outside work if it determines that it desires to foster the activity in some measure. Except as otherwise approved by DOE, all clauses of this contract shall be deemed to be applicable to the performance of such work. This Clause shall not be construed as amending or superseding the requirements of clause C.1, Statement of Work, set forth in Part I, Section C.

(b) The Contractor shall promptly advise the Contracting Officer of any advance notices of, or solicitations for, a major system acquisition requirement received from other Federal agencies pursuant to FAR 34.005 which would logically involve DOE facilities or resources operated or managed by the Contractor. The Contractor shall not respond to or otherwise propose to participate in response to the requirements of such solicitations unless the Contractor has obtained written approval of the Contracting Officer.

CLAUSE H.7 - RESERVED

CLAUSE H.8 - RESERVED

CLAUSE H.9 - RESERVED

CLAUSE H.10 - ADDITIONAL ITEMS OF ALLOWABLE AND UNALLOWABLE COSTS

ITEMS OF ALLOWABLE COSTS:

(a) Subject to the approval or ratification, in writing, of the Contracting Officer, reasonable litigation and other legal expenses (including reasonable counsel fees and the premium for bail bond) if incurred in accordance with the clause of the contract entitled "Insurance -- Litigation and Claims" and the DOE approved Contractor litigation management procedures (including cost guidelines) as such procedures may be revised from time to time and if not otherwise made unallowable in this contract necessary to defend adequately any member of the Contractor's internal guard force against whom a civil or criminal action is brought, where such action is based upon lawful act or acts of the guard undertaken by him in the general course of his duties for the purpose of accomplishing and fulfilling the official duties of his employment.

(b) Rentals and leases of land, buildings, and equipment owned by third parties, allowances in lieu of rental, charges associated therewith and costs of alteration, remodeling and restorations where such items are used in the performance of the contract, except that such rentals and leases directly chargeable to the contract shall be subject to such approval by the Contracting Officer as set forth in Part III, Attachment J.7, Appendix G.

(c) Stipends and payments made to reimburse travel or other expenses of researchers and students who are not employed under this contract but are participating in research, educational or training activities under this contract to the extent such costs are incurred in connection with fellowship, international agreements, or other research, educational or training programs approved by the Contracting Officer.

(d) Payments to educational institutions for tuition and fees for researchers and students who are not employed under this contract or institutional allowances in connection with fellowship or other research, educational or training programs.

(e) Costs incurred or expenditures made by the Contractor, as directed, approved or ratified by the Contracting Officer and not unallowable under any other provisions of this contract.

ITEMS OF UNALLOWABLE COSTS:

(a) Premium Pay for wearing radiation-measuring devices for Laboratory and all-tier cost-type subcontract employees.

CLAUSE H.11 - EFFECTIVE DATES FOR THE CLAUSE ENTITLED "COST PROHIBITIONS RELATED TO LEGAL AND OTHER PROCEEDINGS"

Notwithstanding the clause of this contract entitled "DEAR 970.5204-75 - PREEXISTING CONDITIONS", the provisions of the clause of this contract entitled, "DEAR 970.5204-61 - COST PROHIBITIONS RELATED TO LEGAL AND OTHER PROCEEDINGS" shall be effective as follows:

(1) For proceedings related to a violation of, or failure to comply with, a Federal or State statute or regulation occurring after January 1,1989;

(2) For proceedings related to a violation of, or failure to comply with a local or foreign statute or regulation occurring after October 27, 1995; and

(3) Suits brought by employees or ex-employees of the Contractor under Section 2 of the Major Fraud Act of 1988 after October 27, 1995.

CLAUSE H.12 - COSTS ASSOCIATED WITH WHISTLEBLOWER ACTIONS (MONTH AND YEAR TBD)

(a) Definitions.

(1) "Adverse determination" means

(i) A recommended decision under 29 CFR part 24 by an administrative law judge that the Contractor has violated the employee protection provisions of the statutes for which the Secretary of Labor has been assigned responsibility;

(ii) An initial agency decision under 10 CFR 708.10, that the Contractor has engaged in conduct prohibited by 10 CFR 708.5; or

(iii) A decision against the Contractor by the Secretary under 41 U.S.C. 265(c)(1)

(iv) A judgment or other determination of liability against the Contractor and in favor of the employee in an action in a judicial forum.

(2) "Costs" include any costs or expenses relating to an employee action, as defined below, including but not limited to back pay, damages or other award in the form of relief to the employee; administrative and clerical expenses; the cost of legal services, including litigation costs, whether provided by the Contractor or procured from outside sources; the costs of services of accountants, consultants or other experts retained by the Contractor; all elements of related compensation, costs and expenses of employees, officers and directors; and any similar costs incurred after the commencement of the employee action.

(3) "Employee action" means an action brought by an employee of the Contractor under 29 CFR part 24, 10 CFR part 708, or 41 U.S.C. 265, or an action filed in federal or state court for redress of discrimination or discriminatory action by a Contractor based on activities that would be actionable under 29 CFR part 24, 10 CFR part 708, or 41 U.S.C. 265.

(4) "Litigation costs" include attorney, consultant and expert witness fees associated with the defense of an employee action, but exclude the costs of implementing a settlement, judgment, or Secretarial Order.

(b) Segregation of costs. All litigation costs incurred in the investigation and defense of an employee action under this clause shall be differentiated and accounted for by the Contractor so as to be separately identifiable. If the Contracting Officer provisionally disallows such costs, then the Contractor may not use funds advanced by DOE under the contract to finance the litigation.

(1) Litigation costs, including the use of alternative dispute resolution, and settlement costs incurred in connection with an employee action under this clause are allowable if the employee action is resolved prior to an adverse determination, provided such costs are otherwise allowable under the clauses entitled "Insurance-Litigation and Claims," "Cost Prohibitions Related to Legal and Other Proceeding," and other relevant provisions of this contract.

(2) In actions in which an adverse determination is issued, litigation, settlement, and judgment costs, as well as the cost of complying with any Secretarial Order, are not allowable, unless:

(i) The Contractor prevails in a proceeding subsequent to the adverse determination at which a final decision is rendered in the action; or

(ii) The Contracting Officer has, on the basis that it is in the best interest of the Government, approved the Contractor’s request to proceed with defense of an action rather than entering into a settlement with the employee or accepting an adverse determination or other interim decision prior to a final decision.

(3) Subsequent to an adverse determination, litigation costs, as well as costs associated with any interim relief granted, may not be paid from contract funds; provided, however, that the Contracting Officer may, in appropriate circumstances, provide for conditional payment from contract funds upon provision of adequate security, or other adequate assurance, and agreements by the Contractor to repay all litigation costs, plus interest, if they are subsequently determined to be unallowable.

(4) Litigation costs incurred to defend an appeal by the employee from an interim or final decision in the Contractor’s favor are allowable provided they are otherwise allowable under the clauses entitled "Insurance Litigation and Claims" and "Cost Prohibitions Related to Legal and Other Proceedings," and other relevant provisions of the contract.

(d) The provisions of this clause shall not apply to the defense of suits by employees or ex-employees of the Contractor under section 2 of the Major Fraud Act of 1988 as amended. (See the clause entitled "Cost Prohibitions Related to Legal and Other Proceedings.")

CLAUSE H.13 - LIABILITY WITH RESPECT TO COST ACCOUNTING STANDARDS (MONTH AND YEAR TBD)

(a) The Contractor is not liable to the Government for increased costs or interest resulting from its failure to comply with the Clauses of this contract entitled, "Cost Accounting Standards", and "Administration of Cost Accounting Standards", if its failure to comply with the clauses is caused by the Contractor's compliance with published DOE financial management policies and procedures or other requirements established by the Department’s Chief Financial Officer or Procurement Executive.

(b) The Contractor is not liable to the Government for increased costs or interest resulting from its subcontractors' failure to comply with the clauses at FAR 52.230-2, "Cost Accounting Standards," and FAR 52.230-6, "Administration of Cost Accounting Standards," if the Contractor includes in each covered subcontract a clause making the subcontractor liable to the Government for increased costs or interest resulting from the subcontractor's failure to comply with the clauses; and the Contractor seeks the subcontract price adjustment and cooperates with the Government in the Government's attempts to recover from the subcontractor.

CLAUSE H.14 - PROCEDURE TO DISALLOW COSTS

(a) General. The Parties agree that this contract is a Government cost-type contract funded by a Payments Cleared Financing Arrangement. If either party believes that funds have been used to pay for costs which are unallowable under this contract, the following procedure will be invoked.

(b) The party which initially identifies a cost of questionable allowability will inform the other party of the issue. The Contractor and the Contracting Officer shall make every reasonable effort to reach a satisfactory settlement. If the Parties are unable to reach a settlement, the Contracting Officer will issue a written notice in accordance with clause I.47, Notice of Intent to Disallow Costs.

(c) If the Contracting Officer issues a written decision pursuant to clause I.47 (a)(2), this decision will be considered a final decision for the purposes of clause I.44, Disputes. Within thirty (30) days after receipt of this decision, the Contractor will make payment of the amount set forth in the decision. Payment shall be made by check or other appropriate mechanism as approved by the Contracting Officer. Payment by the Contractor shall not waive or otherwise preclude its right to appeal or file suit pursuant to the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613).

CLAUSE H.15 - FINANCIAL MANAGEMENT SYSTEM (MONTH AND YEAR TBD)

The Contractor shall maintain and administer a financial management system that includes the currently existing integrated accounting system and is suitable to provide proper accounting in accordance with DOE requirements for assets, liabilities, collections accruing to the Contractor in connection with the work under this contract, expenditures, costs, and encumbrances; permits the preparation of accounts and accurate, reliable financial and statistical reports; and assures that accountability for the assets can be maintained. The Contractor shall submit to DOE for written approval an annual plan for new financial management systems and/or subsystems and major enhancements and/or upgrades to the currently existing financial systems and/or subsystems. The Contractor shall notify DOE thirty (30) days in advance of any planned implementation of any substantial deviation from this plan and, as requested by the Contracting Officer, shall submit any such deviation to DOE for written approval before implementation.

CLAUSE H.16 - INTEGRATED ACCOUNTING (MONTH AND YEAR TBD)

Integrated accounting procedures are required for use under this contract. The Contractor's financial management system shall include an integrated accounting system that is linked to DOE's accounts through the use of reciprocal accounts and that has electronic capability to transmit monthly and year-end self-balancing trial balances to the Department's Primary Accounting System for reporting financial activity under this contract in accordance with requirements imposed by the Contracting Officer pursuant to the Laws, Regulations, and DOE Directives clause of this contract.

CLAUSE H.17 - PRIVACY ACT RECORDS

In accordance with the Privacy Act of 1974, 5 U.S.C. 552a (Public Law 93-579) and implementing DOE Regulations (10 CFR 1008 Chapter III, Part 708), the Contractor shall maintain the following "Systems of Records" on individuals in order to accomplish the United States Department of Energy functions:

(a) "Personnel Radiation Exposure Records" (DOE-35) respecting Laboratory employees, DOE employees, and visitors to the contract site.

The parenthetical Department of Energy number designations for each system of records refers to the official "System of Records" number published by the United States Department of Energy in the Federal Register pursuant to the Privacy Act.

CLAUSE H.18 - PATENT INDEMNITY SUBCONTRACTS

Except as otherwise authorized by the Contracting Officer, the Contractor shall obtain indemnification of the Government and its officers, agents, and employees against liability, including costs, for infringement of U.S. Letters Patent (except Letters Patent issued upon an application which is now or may hereafter be kept secret or otherwise withheld from issue by order of the Government) from Contractor's subcontractors for any contract work subcontracted on the terms and in accordance with the Federal Acquisition Regulations as may be supplemented by the Department of Energy Acquisition Regulations.

CLAUSE H.19 - AUTHORIZATION AND CONSENT IN COPYRIGHT

In the case of suit or potential suit in copyrighted infringement, the Contractor may request authorization and consent in copyright from DOE. Programmatic necessity shall be a major consideration in grant of authorization and consent.

CLAUSE H.20 - ROYALTY INFORMATION DURING TERM OF CONTRACT

(a) Cost of charges for royalties.

If any royalty payments are directly involved in the contract or will be charged to the Government as costs under the contract, the Contractor agrees to report to the Contracting Officer the following information relating to each separate item of royalty or license fee:

(1) Name and address of licensor.

(2) Date of license agreement.

(3) Patent numbers, patent application serial numbers, or other basis on which the royalty is payable.

(4) Brief description, including any part or model numbers of each contract item or component on which the royalty is payable.

(5) Percentage or dollar rate of royalty per unit.

(6) Unit price of contract item.

(7) Number of units.

(8) Total dollar amount of royalties.

(b) Copies of current licenses. In addition, if specifically requested by the Contracting Officer, the Contractor shall furnish a copy of the current license agreement and an identification of applicable claims of specific patents or other basis upon which the royalty is payable.

CLAUSE H.21 - PATENT RIGHTS

(a) Definitions

(1) "Invention" means any invention or discovery which is or may be patentable or otherwise protectable under Title 35 of the United States Code, or any novel variety of plant which is or may be protected under the Plant Variety Protection Act (7 U.S.C. 2321 et seq.)

(2) "Made" when used in relation to any invention means the conception or first actual reduction to practice of such invention.

(3) "Nonprofit Organization" means a university or other institution of higher education or an organization of the type described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501 (c)) and exempt from taxation under section 501 (a) of the Internal Revenue Code (26 U.S.C. 501 (a)) or any nonprofit scientific or educational organization qualified under a state nonprofit organization statute.

(4) "Practical Application" means to manufacture in the case of a composition or product, to practice in the case of a process or method, or to operate in the case of a machine or system; and, in each case, under such conditions as to establish that the invention is being utilized and that its benefits are, to the extent permitted by law or Government regulations, available to the public on reasonable terms.

(5) "Small Business Firm" means a small business concern as defined at Section 2 of Public Law 85-536 (15 USC 632) and implementing regulations of the Administrator of the Small Business Administration. For the purpose of this clause, the size standard for small business concerns involved in Government procurement and subcontracting at 13 CFR 121.3-8 and in 13 CFR 121.3-12, respectively, will be used.

(6) "Subject Invention" means any invention of the Contractor conceived or first actually reduced to practice in the performance of work under this contract, provided that in the case of a variety of plant, the date of determination (as defined in section 41 (d) of the Plant Variety Protection Act, 7 U.S.C 2401 (d)) must also occur during the period of contract performance.

(7) "Agency licensing regulations and "agency regulations concerning the licensing of Government owned inventions" means the Department of Energy patent licensing regulations at 10 CFR Part 781.

(8) "Patent Counsel" means the Department of Energy (DOE) patent counsel assisting the DOE contracting activity.

(9) "Exceptional Circumstance Subject Invention" means any subject invention in a technical field or task determined by DOE to be subject to an exceptional circumstance under Section 35 U.S.C. 202 (a) (ii).

(b) Allocation of Principal Rights

(1) The Contractor may retain the entire right, title, and interest throughout the world to each subject invention except an exceptional circumstance subject invention subject to the provisions of this clause and 35 USC 203. With respect to any subject invention in which the Contractor retains title, the Federal Government shall have a nonexclusive, nontransferable, irrevocable, paid up license to practice or have practiced for or on behalf of the United States the subject invention throughout the world. The right of the Contractor to elect title to subject inventions is subject to the invention rights disposition in the following identified treaties or international agreements:

(See Part III, Attachment J.10, Appendix J).

(2) The DOE reserves the right to unilaterally amend this contract to identify specific treaties or international agreements entered into or to be entered into by the Government after the effective date of this contract and effectuate those license or other rights which are necessary for the Government to meet its obligations to foreign governments, their nationals, and international organizations under such treaties or international agreements with respect to subject inventions made after the date of the amendment.

(3) The Contractor agrees to assign to the Government, the entire right, title and interest thereto, throughout the world in and to any Exceptional Circumstance Subject Invention except to the extent that rights are retained by the contractor through a greater rights determination. The Contractor or an employee-inventor may submit a request for greater rights at the time the invention is disclosed to DOE or within 8 months after conception or first actual reduction to practice, whichever occurs first. At this time, the technical fields determined by DOE to be exceptional circumstances are uranium enrichment technology, the storage and disposal of civilian high-level nuclear waste and spent fuel technology, and those national security technologies which are classified, or sensitive under Section 148 of the Atomic Energy Act (42 U.S.C. 2168). DOE has also made a determination of Exceptional Circumstances for DOE Funding Agreements Relating to the;

(i) U. S. Department of Energy Steel Initiative and Metals Initiative,

(ii) the Advanced Battery Consortium Program, and

(iii) any funding agreements, or subcontracts thereunder, which are funded in part by the Electric Power Research Institute (EPRI) or the Gas Research Institute (GRI). DOE reserves the right to unilaterally amend this contract to identify any new technical fields which may be determined to be exceptional circumstances pursuant to 35 U.S.C 202 (a) (ii) with respect to subject inventions made after the date of the amendment.

(1) (i) The Contractor will disclose each subject invention to the Patent Counsel within two months after the inventor discloses it in writing to Contractor personnel responsible for patent matters. The disclosure to the Patent Counsel shall be in the form of a written report and shall identify the contract under which the invention was made and the inventor(s) and all sources of funding by B&R code for the invention. It shall be sufficiently complete in technical detail to convey a clear understanding to the extent known at the time of the disclosure of the nature, purpose, operation, and the physical, chemical, biological or electrical characteristics of the invention. The disclosure shall also identify any publication, on sale or public use of the invention and whether a manuscript describing the invention has been submitted for publication and, if so whether it has been accepted for publication at the time of disclosure. In addition, after disclosure to the Patent Counsel, the Contractor will promptly notify the Patent Counsel of the acceptance of any manuscript describing the invention for publication or of any on sale or public use planned by the Contractor. The Contractor shall obtain approval from Patent Counsel prior to any release or publication of information regarding an exceptional circumstance subject invention or a subject invention related to a treaty or international agreement.

(ii) The disclosure shall include a written statement as to whether the invention falls within an exceptional circumstance field or task including national security. DOE will make a determination and advise the Contractor within 30 days of receipt of an invention disclosure as to whether the invention is an exceptional circumstance subject invention in a technology or task unrelated to national security.

(iii) For subject inventions related to national security, the Contractor may elect to retain title in such a subject invention under paragraph (b)(l) hereof if the invention is not classified by DOE or another Government Agency within six months of the date it is reported to Patent Counsel or within the same time period DOE does not, as authorized by regulation, law or Executive Order or implementing regulations thereto, prohibit unauthorized dissemination of the invention. The invention shall be considered an exceptional circumstance subject invention for either of these situations.

(2) Except as provided in paragraph (b)(3) of this clause, the Contractor will elect in writing whether or not to retain title to any such invention by notifying the Patent Counsel within two (2) years of disclosure to the Patent Counsel. However, in any case where publication, on sale or public use has initiated the one year statutory period wherein valid patent protection can still be obtained in the United States, the period for election of title may be shortened by the Patent Counsel to a date that is no more than 60 days prior to the end of the statutory period.

(3) The Contractor will file its initial patent application on a subject invention to which it elects to retain title within one year after election of title or, if earlier, prior to the end of any statutory period wherein valid patent protection can be obtained in the United States after a publication, on sale, or public use. The Contractor will file patent applications in additional countries or international patent offices within either ten months of the corresponding initial patent application or six months from the date permission is granted by the Commissioner of Patents and Trademarks to file foreign patent applications where such filing has been prohibited by a Secrecy Order.

(4) Requests for extension of the time for disclosure, election, and filing under subparagraphs (c) (1), (2), and (3) may, at the discretion of the Patent Counsel, be granted.

(d) Conditions When The Government May Obtain Title.

(1) The Contractor will convey to the DOE, upon written request, title to any subject invention:

(i) If the Contractor fails to disclose or elect title to the subject invention within the times specified in (c), above, or elects not to retain title; provided that the DOE may only request title within 60 days after learning of the failure of the Contractor to disclose or elect within the specified times.

(ii) In those countries in which the Contractor fails to file patent applications within the times specified in paragraph (c) of this clause; provided, however, that if the Contractor has filed a patent application in a country after the times specified in paragraph (c) of this clause, but prior to its receipt of the written request of the DOE, the Contractor shall continue to retain title in that country.

(iii) In any country in which the Contractor decides not to continue the prosecution of any application for, to pay the maintenance fees on, or defend in a reexamination or opposition proceeding on, a patent on a subject invention.

(e) Minimum Rights to Contractor and Protection of the Contractor Right to File

(1) The Contractor may request the right to reserve a revocable, nonexclusive, royalty-free license throughout the world in each subject invention in which the Government acquires title, except if the Contractor fails to disclose the invention within the times specified in paragraph (c) of this clause. When DOE approves such reservation, the Contractor's license will extend to its domestic subsidiaries and affiliates, if any, within the corporate structure of which the Contractor is a party and includes the right to grant sublicenses of the same scope to the extent the Contractor was legally obligated to do so at the time the contract was awarded. The license is transferable only with the approval of DOE, except when transferred to the successor of that part of the Contractor's business to which the invention pertains.

(2) The Contractor's domestic license may be revoked or modified by the DOE to the extent necessary to achieve expeditious practical application of the subject invention pursuant to an application for an exclusive license submitted in accordance with applicable provisions at 37 CFR part 404 and DOE licensing regulations. This license will not be revoked in that field of use or the geographical areas in which the Contractor has achieved practical application and continues to make the benefits of the invention reasonably accessible to the public. The license in any foreign country may be revoked or modified at the discretion of the DOE to the extent the Contractor, its licensees, or the domestic subsidiaries or affiliates have failed to achieve practical application in that foreign country.

(3) Before revocation or modification of the license, the DOE will furnish the Contractor a written notice of its intention to revoke or modify the license, and the Contractor will be allowed thirty days (or such other time as may be authorized by the DOE for good cause shown by the Contractor) after the notice to show cause why the license should not be revoked or modified. The Contractor has the right to appeal, in accordance with applicable regulations in 37 CFR part 404 and DOE regulations concerning the licensing of Government owned inventions, any decision concerning the revocation or modification of the license.

(f) Contractor Action to Protect Government's Interest.

(1) The Contractor agrees to execute or to have executed and promptly deliver to the Patent Counsel all instruments necessary to:

(i) Establish or confirm the rights the Government has throughout the world in those subject inventions to which the Contractor elects to retain title,

(ii) Convey title to the DOE when requested under paragraphs (b)(3) or (d) above and to enable the Government to obtain patent protection throughout the world in that subject invention.

(2) The Contractor agrees to require, by written agreement, its employees, other than clerical and nontechnical employees, to disclose promptly in writing to personnel identified as responsible for the administration of patent matters and in a format suggested by the Contractor each subject invention made under this contract in order that the Contractor can comply with the disclosure provisions of paragraph (c) of this clause, and to execute all papers necessary to file patent applications on subject inventions and to establish the Government's rights in the subject inventions. This disclosure format should require, as a minimum, the information requested by (c) (1) above. The Contractor shall instruct such employees through employee agreements or other suitable educational programs on the importance of reporting inventions in sufficient time to permit the filing of patent applications prior to United States or foreign statutory bars.

(3) The Contractor will notify the Patent Counsel of any decision not to continue prosecution of a patent application, pay maintenance fees, or defend in a reexamination or opposition proceeding on a patent, in any country, not less than thirty days before the expiration of the response period required by the relevant patent office.

(4) The Contractor agrees to include, within the specification of any United States patent application and any patent issuing thereon covering a subject invention, the following statement, "This invention was made with Government support under (identify the contract) awarded by the United States Department of Energy. The Government has certain rights in the invention."

(5) The Contractor shall establish and maintain active and effective procedures to ensure that subject inventions are promptly identified and timely disclosed and shall submit a description of the procedures to the Contracting Officer so that the Contracting Officer may evaluate and determine their effectiveness.

(6) The Contractor shall provide upon request, the filing date, serial number and title; a copy of the patent application; and patent number and issue date for any subject invention in any country in which the Contractor has applied for patents.

(7) The Contractor shall furnish the Patent Counsel on a DOE approved form, upon request, but not more than annually, interim reports listing subject inventions disclosed to DOE and subcontracts awarded containing a Patent clause for that period or stating that there were none.

(8) Upon request, the Contractor prior to closeout of the contract, shall provide a report to Patent Counsel listing all subject inventions or stating that there were none.

(9) Where the Contractor has elected to retain title, the contractor agrees that the Government may duplicate and disclose Subject Invention disclosures and all other reports and papers furnished or required to be furnished pursuant to this clause provided, however, that any such disclosure of a Subject Invention is subject to 35 U.S.C. 205.

(g) Subcontracts.

(1) Unless otherwise authorized or directed by the Contracting Officer, the Contractor will include the clause set forth in 48 CFR 952.227-11 suitably modified to identify the parties, in all subcontracts, regardless of tier, for experimental, developmental or research work to be performed by a small business firm or domestic nonprofit organization except subcontracts which are subject to exceptional circumstance. (Note: The DOE has declared exceptional circumstances as indicated in paragraph (b)(3) of this clause.) The subcontractor will retain all rights provided for the Contractor in said clause, and the Contractor will not, as part of the consideration for awarding any subcontract, obtain rights in the subcontractors subject inventions .

(2) The Contractor will include in all other subcontracts regardless of tier, for experimental, developmental, or research work the patent rights clause required by 48 CFR 952-227-13, suitably modified to identify the parties or such clause as modified for such subcontracts which are subject to an exceptional circumstance.

(3) In the case of subcontracts, at any tier, when the prime award with the DOE was a contract (but not a grant or cooperative agreement), the DOE, subcontractor, and the Contractor agree that the mutual obligations of the parties created by this clause constitute a contract between the subcontractor and the DOE with respect to the matters covered by the clause; provided, however, that nothing in this paragraph is intended to confer any jurisdiction under the Contract Disputes Act in connection with proceedings under paragraph (j) of this clause.

(h) Reporting on Utilization of Subject Inventions

The Contractor agrees to submit, on request, periodic reports no more frequently than annually on the utilization of a subject invention or on efforts at obtaining such utilization that are being made by the Contractor or its licensees or assignees. Such reports shall include information regarding the status of development, date of first commercial sale or use, gross royalties received by the Contractor, and such other data and information as DOE may reasonably specify. The Contractor also agrees to provide additional reports as may be requested by DOE in connection with any march-in proceeding undertaken by DOE in accordance with paragraph (j) of this clause. As required by 35 USC 202 (c) (5), the DOE agrees it will not disclose such information to persons outside the Government without permission of the Contractor.

(i) Preference for United States Industry.

Notwithstanding any other provision of this clause, the Contractor agrees that neither it nor any assignee will grant to any person the exclusive right to use or sell any subject invention in the United States unless such person agrees that any products embodying the subject invention or produced through the use of the subject invention will be manufactured substantially in the United States. However, in individual cases, the requirement for such an agreement may be waived by DOE upon a showing by the Contractor or its assignee that reasonable but unsuccessful efforts have been made to grant licenses on similar terms to potential licensees that would be likely to manufacture substantially in the United States or that under the circumstances domestic manufacture is not commercially feasible.

(j) March-in Rights

The Contractor agrees that with respect to any subject invention in which it has acquired title, DOE has the right in accordance with the procedures in 37 CFR 401.6 and any supplemental regulations of the DOE to require the Contractor, an assignee or exclusive licensee of a subject invention to grant a nonexclusive, partially exclusive, or exclusive license in any field of use to a responsible applicant or applicants, upon terms that are reasonable under the circumstances, and if the Contractor, assignee, or exclusive licensee refuses such a request, DOE has the right to grant such a license itself if DOE determines that:

(1) Such action is necessary because the Contractor or assignee has not taken, or is not expected to take within a reasonable time, effective steps to achieve practical application of the subject invention in such field of use;

(2) Such action is necessary to alleviate health or safety needs which are not reasonably satisfied by the Contractor, assignee, or their licensees;

(3) Such action is necessary to meet requirements for public use specified by federal regulations and such requirements are not reasonably satisfied by the Contractor, assignee, or licensees; or

(4) Such action is necessary because the agreement required by paragraph (i) of this clause has not been obtained or waived or because a licensee of the exclusive right to use or sell any subject invention in the United States is in breach of such agreement.

(k) Special Provisions for Contracts with Nonprofit Organizations.

If the Contractor is a non-profit organization, it agrees that:

(1) Rights to a subject invention in the United States may not be assigned without the approval of DOE, except where such assignment is made to an organization which has as one of its primary functions the management of inventions, provided that such assignee will be subject to the same provisions as the Contractor.

(2) The Contractor will share royalties collected on a subject invention, with the inventor, including Federal employee co-inventors (when the agency deems it appropriate) when the subject invention is assigned in accordance with 35 U.S.C. 202(e) and 37 CFR 401.10.

(3) After payment of patenting costs, licensing costs, payments to inventors, and other expenses incidental to the administration of subject inventions, the balance of any royalties or income earned and retained by the Contractor during any fiscal year on subject inventions under this or any successor contract containing the same requirement, up to any amount equal to five percent of the budget of the Facility for that fiscal year, shall be used by the Contractor for scientific research, development and education consistent with the research and development mission and objectives of the Facility, including activities that increase the licensing potential of other inventions of the Facility, with a percentage as determined by the clause entitled, Other Patent Related Matters, paragraph (b)(2), but not less than fifty-one percent (51%) of the balance of such royalties or income earned and retained by the Contractor being used at the Facility. If the balance exceeds five percent (5%) of the budget of the facility for that fiscal year, seventy-five percent (75%) of the excess above five percent shall be paid by the Contractor to the Treasury of the United States and the remaining 25 percent shall be used by the Contractor only for the same purposes as described above. To the extent it provides the most effective technology transfer, the licensing of subject inventions shall be administered by Contractor employees on location at the Facility.

(4) It will make efforts that are reasonable under the circumstances to attract licensees of subject inventions that are small business firms, and that it will give a preference to a small business firm when licensing a subject invention if the Contractor determines that the small business firm has a plan or proposal for marketing the invention which, if executed, is equally as likely to bring the invention to practical application as any plans or proposals from applicants that are not small business firms; provided, that the Contractor is also satisfied that the small business firm has the capability and resources to carry out its plan or proposal. The decision whether to give a preference in any specific case will be at the discretion of the Contractor. However, the Contractor agrees that the Secretary of Commerce may review the Contractor's licensing program and decisions regarding small business applicants, and the Contractor will negotiate changes to its licensing policies, procedures, or practices with the Secretary when the Secretary's review discloses that the Contractor could take reasonable steps to more effectively implement the requirements of this paragraph (4).

(l) Communications.

(1) The Contractor shall direct any notification , disclosure, or request to DOE provided for in this clause to the DOE Patent Counsel assisting the DOE contracting activity, with a copy of the communication to the Contracting Officer.

(2) Each exercise of discretion or decision provided for in this clause, except subparagraph (k)(4) is reserved for the DOE Patent Counsel and is not a claim or dispute and is not subject to the Contract Disputes Act of 1978.

(3) Upon request of the DOE Patent Counsel or the Contracting Officer, the Contractor shall provide any or all of the following:

(i) a copy of the patent application, filing date, serial number and title, patent number, and issue date for any subject invention in any country in which the Contractor has applied for a patent;

(ii) a report, not more than annually, summarizing all subject inventions which were disclosed to the DOE individually during the reporting period specified; or

(iii) a report, prior to closeout of the contract, listing all subject inventions or stating that there were none.

(m) Facilities license.

In addition to the rights of the parties with respect to inventions or discoveries conceived or first actually reduced to practice in the course of or under this contract, the contractor agrees to and does hereby grant to the Government an irrevocable, nonexclusive, paid-up license in and to any inventions or discoveries regardless of when conceived or actually reduced to practice or acquired by the contractor at any time through completion of this contract and which are incorporated or embodied in the construction of the facility or which are utilized in the operation of the facility or which cover articles, materials, or products manufactured at the facility

(1) to practice or have practiced by or for the Government at the facility, and

(2) to transfer such license with the transfer of that facility. The acceptance or exercise by the Government of these rights shall not prevent the Government at any time from contesting the enforceability, validity or scope of or title to, any rights or patents herein licensed.

(n) Atomic Energy.

(1) No claim for pecuniary award or compensation under the provisions of the Atomic Energy Act of 1954, as amended, shall be asserted by the Contractor or its employees with respect to any invention or discovery made or conceived in the course of or under this contract.

(2) Except as otherwise authorized in writing by the Contracting Officer, the Contractor will obtain patent agreements to effectuate the provisions of paragraph (m) (1) of this clause from all persons who perform any part of the work under this contract, except nontechnical personnel, such as clerical employees and manual laborers.

(o) Patent Functions

The Contractor upon written request of the Contracting Officer or Patent Counsel will use reasonable efforts to support the Patent Counsel in carrying out patent-related functions for work arising out of the contract, which functions include but are not limited to prosecution of patent applications where the Government obtains title, determination of questions of novelty, patentability, prior art searches and inventorship.

(p) Educational Awards Subject to 35 U.S.C. 212

The Contractor shall notify the Contracting Officer prior to the placement of any person subject to 35 U.S.C. 212 in an area of technology related to Exceptional Circumstance technology, or who is subject to treaties or international agreements as set forth in the Clause entitled, "Patent Rights" paragraph (b)(1)(2) and (3) of this contract or agreements other than funding agreements. The Contracting Officer shall have the right to disapprove such placement.

(q) Annual Appraisal

There shall be an annual appraisal done by Patent Counsel. The appraisal shall evaluate the contractors effectiveness in identifying and protecting intellectual property developed at the facility in accordance with DOE policy.

(r) Examination of Records

The Contracting Officer or his authorized representative, until the expiration of three years after final payment under this contract, shall have the right to examine any books (including laboratory notebooks), records, documents, and other supporting data of the Contractor which the Contracting Officer or his authorized representative reasonably deem pertinent to the discovery or identification of Exceptional Circumstance Subject Inventions or to determine compliance with the requirements of this clause.

CLAUSE H.22 - DOE PR 9-9.106 CLASSIFIED INVENTIONS (JUN 1979)

(a) The Contractor shall not file or cause to be filed on any invention or discovery conceived or first actually reduced to practice in the course of or under this contract in any country other than the United States, an application or registration for a patent without obtaining written approval of the Contracting Officer unless and until (1) the Contractor has received a written opinion from DOE that the invention is not classified for reasons of security or (ii) the Contractor has not received a written opinion regarding classification from DOE and the time period set forth in clause H.21, (c)(1)(iii) thereof, for classifying an invention for reasons of security, has expired.

(b) When filing a patent application in the United States on any invention or discovery conceived of or first actually reduced to practice in the course of or under this contract, the subject matter of which is classified for reasons of security, the Contractor shall observe all applicable security regulations covering the transmission of classified subject matter. When transmitting the patent application to the United States Patent and Trademark Office, the Contractor shall by separate letter identify by agency and number, the contract or contracts which require security classification markings to be placed on the application.

(c) The substance of this clause shall be included in subcontracts which cover or are likely to cover classified subject matter.

CLAUSE H.23 - OTHER PATENT RELATED MATTERS [THIS CLAUSE APPLIES TO PRIVATELY FUNDED TECHNOLOGY AS DEFINED IN CLAUSE I.96 - TECHNOLOGY TRANSFER MISSION (b)(9)]

(a) Transfer of Patent Rights to a Successor Contractor.

At the termination or expiration of this contract, the following terms and conditions shall apply to subject inventions which were elected and prosecuted under privately funded technology transfer, licenses and royalties generated therefrom:

(1) For any license executed prior to termination or expiration of this contract for a subject invention, the distribution of net royalties or income therefrom shall remain as prior to contract termination or expiration and shall continue for the duration of such license. The percentage of such royalties or income being used at the Facility shall go to the successor Contractor at the Facility for use at the Facility pursuant to its contract or, in the absence of a successor Contractor, to such other entity designated by the Government.

(2) For any assignment executed to a party other than an affiliate of the Contractor prior to termination or expiration of this contract for a subject invention, the distribution of net royalties or income therefrom shall remain as prior to contract termination or expiration and shall continue for the duration of such assignment. The percentage of such royalties or income being used at the Facility shall go to the successor Contractor at the Facility for use at the Facility pursuant to its contract or, in the absence of a successor Contractor, to such other entity designated by the Government.

(3) Where title to a subject invention has been retained by the Contractor or an affiliate of the Contractor, the Contractor and Government shall enter negotiations prior to such termination or expiration with respect to retention of title to the invention by the Contractor or its affiliate or transfer of such title to DOE or the successor Contractor operator of the Facility. Such negotiations shall consider the equities of the Parties with respect to each subject invention and shall take into consideration the presence of private investment, potential commercial use, assumption of patent related liabilities, effective technology transfer and the need to market the technology. Regardless of whether such negotiations are completed, the Government shall have the right to require the transfer of any such title to any subject invention to which title has been retained by the Contractor or an affiliate and the Parties shall thereafter complete negotiations regarding appropriate compensation.

(4) Where title to a subject invention is to be retained by the Contractor or its affiliate subsequent to termination or expiration of the contract, the Contractor and the Government shall enter negotiations prior to such termination or expiration with respect to net royalties or income generated from assignments or licenses of such inventions effected subsequent to termination or expiration of the contract and the distribution thereof between the Contractor and successor Contractor at the Facility for use at the Facility pursuant to its contract, or, in the absence of a successor Contractor, to such other entity designated by the Government. Such negotiations shall consider the equities of the Parties and other conditions as set forth in paragraph (3) above. However, the net royalty or income distribution to the Facility for use by a successor Contractor or other Government designated entity shall in no event be less than twenty-five percent (25%) of such net royalties or income.

(b) Costs

(1) Except as otherwise specified in Clause I.96 -Technology Transfer Mission - Alternate I, as allowable costs for conducting activities pursuant to the provisions of that Clause, no costs are allowable as direct or indirect costs for the preparation, filing or prosecution of patent applications or the payment of maintenance fees or licensing and marketing costs, including costs relating to litigation or other adverse claims, where the Contractor elects to retain title.

(2) To the extent that the Contractor utilizes private Contractor funds for invention costs set forth in the clause H.21 - Patent Rights, paragraph (k)(3), the annualized net royalties or income being returned to the Facility for use at the Facility, resulting from licensing inventions for which all invention costs were covered by private Contractor funds, shall in no event be less than fifty-one percent (51%) of the balance of royalties or income earned.

In situations involving privately funded technology transfer activities, the Contractor shall include in all license agreements and in any assignment the following clause unless otherwise approved or directed by the Contracting Officer following consultation with DOE Patent Counsel:

"This license (assignment) is entered into by the Licensor, independent from its prime contract with the Department of Energy. The Licensor is acting independently from the Government and in its own private capacity and is not acting on behalf of the U.S. Government, nor as its Contractor nor its agent. Correspondingly, it is understood and agreed that the U.S. Government is not a party to this license and in no manner whatsoever shall be liable for nor assume any responsibility or obligation for any claim, cost or damage arising out of or resulting from this license agreement, the subject matter licensed, or any action or lack thereof by the Licensor or Licensee with respect thereto."

Further, the Contractor shall not include in any license agreement or assignment any guarantee or requirement which would obligate the Government to pay any costs or create any liability on behalf of the Government.

CLAUSE H.24 - INTER-CONTRACTOR PURCHASES

Inter-Contractor purchases, as defined in AL 98-03, paragraph III, shall conform to the principles contained in paragraphs IV.A.1-3, and 5 of AL 98-03.

CLAUSE H.25 - DEAR 970.2210 SERVICE CONTRACT ACT OF 1965 (41 U.S.C. 351)

The Service Contract Act of 1965 is not applicable to this contract. However, subcontracts awarded by the Contractor are subject to the Act to the same extent and under the same conditions as contracts awarded by DOE. Accordingly, except as otherwise approved, in writing, by the Contracting Officer, the Contractor will insert the appropriate "Service Contract Act" clause and applicable wage determinations in subcontracts the principal purpose of which is to furnish services through the use of service employees. The Contractor and the Contracting Officer shall develop a procedure whereby DOE will determine if the Service Contract Act is applicable to particular subcontracts.

CLAUSE H.26 - DEAR 970.2206 WALSH-HEALY PUBLIC CONTRACTS ACT

Except as otherwise may be approved, in writing, by the Contracting Officer, the Contractor agrees to insert the following provision in Purchase Orders and subcontracts under this contract. "If this contract is for the manufacture or furnishing of materials, supplies, articles, or equipment in an amount which exceeds or may exceed $10,000.00 and is otherwise subject to the Walsh-Healy Public Contracts Act, as amended (41 U.S. Code 35-45), there are hereby incorporated by reference all representations and stipulations required by said Act and regulations issued thereunder by the Secretary of Labor, such representations and stipulations being subject to all applicable rulings and interpretations of the Secretary of Labor which are now or may hereafter be in effect.

CLAUSE H.27 - INCORPORATION OF REVISED FAR AND DEAR CLAUSES AND DEPARTMENTAL POLICIES AND PROCEDURES

The Parties acknowledge that DOE continues to review DOE policies and procedures applicable to contracts for management and operation of Government-owned facilities. This review may result in further additions, deletions or revisions to existing contract clauses, or other DOE regulations, or directives which are issued after the effective date of this Modification, and which could conflict with or supersede some aspects of this Modification. It is the intent of the Parties to modify this contract, as necessary, to incorporate these new or revised clauses, regulations, or directives.

CLAUSE H.28 - RESERVED

CLAUSE H.29 - UNIVERSITY INDIRECT EXPENSES

Notwithstanding the provisions of the Clause I.78 entitled "Allowable Cost and Performance Fee (Management and Operating Contracts)", the allowable indirect expenses incurred by Iowa State University and reimbursed under this contract shall be as follows:

1. The Parties agree that the allowable indirect expenses allocated to Ames Laboratory by ISU shall be the approved predetermined University General and Administrative (G&A) rate applied to the ISU’s modified total direct costs as agreed upon between the United States Department of Health and Human Services (HHS) and ISU. The current G&A rate of 4.0% shall continue to be utilized until such time that a revised rate and effective date is agreed upon between HHS and the University.

2. The G&A rate negotiated between HHS and ISU shall remain in effect until such time

as a new predetermined G&A rate is made effective by agreement between HHS and the Contractor. Any subsequently negotiated G&A rate shall be effective for the Laboratory’s next fiscal year.

3. The G&A rate is one of three components which comprise the Federal Overhead (OH) rate established by HHS. Currently the other two components are for Building Use Allowance and the University Library. In the event that HHS modifies the cost elements which currently comprise the G&A rate, the Parties shall review the appropriateness of any revised G&A rate as determined by HHS. Such review may result in the Parties negotiating a modified G&A rate. The negotiations may include a modification of authorization for the Contractor to use Government property for its own research purposes pursuant to Part I, Section C (a)(15).

CLAUSE H.30 - RESERVED

CLAUSE H.31 - PERFORMANCE MEASURE REVIEW

(a) In accordance with clause I-102 — TOTAL AVAILABLE FEE, BASE FEE AMOUNT AND PERFORMANCE FEE AMOUNT, the Parties agree to annually review the performance measures and self-assessment requirements contained in Part III, Attachment J.2, Appendix B and to modify them upon the agreement of the Parties; provided, however, that if the Parties cannot reach agreement on all the performance measures and self-assessment requirements for the next period, the Contracting Officer shall have the right to establish reasonable new performance measures and self-assessment requirements and/or to modify and/or delete existing performance measures and self-assessment requirements, subject to the provisions of paragraph (b) below. It is expected that the performance measures and self-assessment requirements will be modified by the Contractor and DOE as new areas of emphasis or priorities emerge which the Parties may agree warrant recognition in the performance-based management system.

(b) In the event the Contracting Officer decides to exercise the right set forth in paragraph (a) above, he/she will notify the Contractor, in writing, of the intended decision and that a revision to Part III, Attachment J.2, Appendix B containing the revised performance measures and/or assessment requirements will be issued to the Contractor within ten (10) working days.

CLAUSE H.32 - USE OF OBJECTIVE STANDARDS OF PERFORMANCE, SELF-ASSESSMENT AND PERFORMANCE EVALUATION

(a) The Parties agree that the Contractor will utilize a performance-based contract management system for Laboratory oversight. The performance-based contract management system will include the use of clear and reasonable performance measures agreed to, in advance, as standards against which the Contractor’s overall performance of scientific, technical, operational, and/or managerial obligations tied to performance fee under this contract will be evaluated.

(b) In accordance with paragraph (f) of clause I-102 - TOTAL AVAILABLE FEE, BASE FEE AMOUNT AND PERFORMANCE FEE AMOUNT and Part III, Section J.2, Appendix B, the Contractor will implement an on-going self-assessment process, including self-assessments performed at the Laboratory, as the principal means by which the Contractor will evaluate its compliance with obligations established by Law or this contract and the performance measures and assessment requirements contained in Part III, Attachment J.2, Appendix B, attached hereto and made a part hereof.

(c) Further, the Parties agree to utilize a process described in clause I-102 — TOTAL AVAILABLE FEE, BASE FEE AMOUNT AND PERFORMANCE FEE AMOUNT and Appendix B to evaluate the performance of the Laboratory. The Parties further agree that the evaluation and assessment process, described in Part III, Attachment J.2, Appendix B, will be reviewed annually and modified, if necessary, by agreement of the Parties.

(d) Annually, the Contracting Officer shall provide a written assessment of the Contractor’s performance hereunder to the Contractor which shall be based upon the terms and conditions of this Contract, including the evaluation and assessment process described in Part III, Attachment J.2, Appendix B.

(e) The Contractor agrees to comply with direction or respond with corrective action resulting from performance deficiencies identified as part of DOE’s evaluation of demonstrated performance against the performance measures and self-assessment requirements contained in Part III, Section J.2, Appendix B.

CLAUSE H.33 - CAP ON LIABILITY

(a) The Parties have agreed that the Contractor’s liability for certain obligations it has assumed under this contract shall be limited as set forth in paragraph (b) below. These limitations or caps shall only apply to the obligations the Contractor has assumed pursuant to Clause I.91 (h) with respect to failure to exercise prudent business judgment only, Clause I.91 (j)(2) with respect to unallowable punitive damages, Clause H.12 and Clause I.84 (f)(1)(i)(C), and shall apply on a cumulative per calendar year basis. In addition, the determination of which cap will apply will be based on a determination by the Contracting Officer of the year in which the Contractor’s act or failure to act was the proximate cause of the liability assumed by the Contractor pursuant to the provisions of the Clauses enumerated above. Provided, further that in the event the Contractor’s act or failure to act overlaps more than one year, then the applicable cap will be the cap for the last year in which the Contractor’s act or failure to act occurred. It is further provided that if the last act or failure to act occurs after December 31, 2004 (if this contract is further extended) then the cap for calendar year 2004 shall apply.

(b) The liability cap for each year of this contract extension will be as stated in paragraph (c) below. Except as otherwise provided in paragraph (a) above, and notwithstanding any other provision of this contract to the contrary, if the liability cap is reached for any year, as set forth in paragraph (c) below, the Contractor shall have no further responsibility for the costs of the liabilities it has assumed pursuant to Clause I.91 (h) with respect to failure to exercise prudent business judgment only, Clause I.91 (j)(2) with respect to unallowable punitive damages, Clause H.12, and Clause I.84 (f)(1)(i)(C), and all costs in excess of the cap for the applicable period for said liabilities shall be borne by the Government.

(c) For each calendar year of this contract, the Contractor will be responsible for the first $100,000. The next $300,000 will be shared by the Contractor and the Government on a fifty-fifty per dollar basis. Accordingly, the total cap shall be $400,000.

CLAUSE H.34 - EXTERNAL REGULATION

The Parties commit to full cooperation with regard to complying with any statutory mandate regarding external regulation of Laboratory facilities, whether by the Nuclear Regulatory Commission, the Occupational Safety and Health Administration, and/or State and local entities with regulatory oversight authority, and including but not limited to the conduct of pilot programs simulating external regulation, and the application for materials, facilities, or other licenses by or on behalf of the DOE.

CLAUSE H.35 - NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT AND PRODUCTS - SENSE OF CONGRESS

It is the sense of the Congress that, to the greatest extent practicable, all equipment and products purchased with funds made available under this award should be American-made.

CLAUSE H.36 - LOBBYING RESTRICTION (ENERGY & WATER DEVELOPMENT APPROPRIATIONS ACT, 2000)

The Contractor agrees that none of the funds obligated on this award shall be expended, directly or indirectly, to influence congressional action on any legislation or appropriation matters pending before Congress, other than to communicate to Members of Congress as described in 18 U.S.C. 1913. This restriction is in addition to those prescribed elsewhere in statute and regulation.

CLAUSE H.37 - LOBBYING RESTRICTION (DEPARTMENT OF INTERIOR & RELATED AGENCIES APPROPRIATIONS ACT, 2000)

The Contractor agrees that none of the funds obligated on this award shall be made available for any activity or the publication or distribution of literature that in any way tends to promote public support or opposition to any legislative proposal on which Congressional action is not complete. This restriction is in addition to those prescribed elsewhere in statute and regulation.

CLAUSE H.38 - TRAVEL RESTRICTIONS

(a) For Contractor travel expenses incurred on or after October 1, 1999 a ceiling limitation of (TBD by Contracting Officer) shall apply to all reimbursements made for Contractor travel expenses under this contract. Expended funds which exceed the established ceiling will be unallowable unless otherwise authorized by the Contracting Officer.

(b) Notwithstanding any other provisions of the contract, the Contractor further agrees that none of the funds obligated under the contract may be used to reimburse employee travel costs incurred on or after October 1, 1999 and before October 1, 2000 which exceed the rates and amounts that apply to federal employees under subchapter I of Chapter 57 of Title 5, United States Code. To the extent that this contract provides elsewhere for the reimbursement of employee travel costs which exceed the rates and amounts that apply to federal employees under subchapter I of Chapter 57 of Title 5, United States Code, the preceding limitation on reimbursement of employee travel costs applies to costs incurred on or after December 1, 1999 and before October 1, 2000. Cost which exceed these rates and amounts will be unallowable. This restriction is in addition to those prescribed elsewhere in statute or regulation.

(c) Costs incurred for lodging, meals, and incidental expenses are considered reasonable and allowable to the extent that they do not exceed the maximum per diem rates in effect at the time of travel as set forth in:

(i) Federal Travel Regulations (FTR) for travel within the 48 states;

(ii) Joint Travel Regulations (JTR) for travel in Alaska, Hawaii, the Commonwealth of Puerto Rico, and territories and possessions of the United States; or

(iii) Standardized Regulations (SR) for travel allowances in foreign areas.

(d) Subparagraph (c) does not incorporate the regulations cited above in their entirety. Only the coverages in the referenced regulations addressing the maximum per diem rates, the definition of lodging, meals, and incidental expenses, and special or unusual situations are applicable to Contractor travel.

(e) Airfare costs in excess of the lowest customary standard, coach, or equivalent airfare offered during normal business hours and are unallowable except when such accommodations require circuitous routing, require travel during unreasonable hours, excessively prolong travel, result in increased cost that would offset transportation savings, are not reasonably adequate for the physical or medical needs of the traveler, or are not reasonably available to meet mission requirements. However, in order for airfare costs in excess of the above standard airfare to be allowable, the applicable condition(s) set forth above must be documented and justified.