KYOCERA INTERNATIONAL, INC. U.S. GOVERNMENT FLOWDOWN TERMS AND CONDITIONS: FEDERAL ACQUISITION REGULATION ("FAR") AND AGENCY FAR SUPPLEMENT CLAUSES AND OTHER ADDITIONAL FLOWDOWN REQUIREMENTS
GOV.TC20231113
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A. INCORPORATION OF FAR AND DFARS CLAUSES
The FAR and DFARS clauses referenced below are incorporated herein by reference, with the same force and effect as if they were given in full text, and are applicable to this subcontract/purchase order, including any notes following the clause citation, to this Contract. Full clause citations of FAR items noted can be found at https://www.acquisition.gov/browse/index/far and DFARS items noted can be found at https://www.acquisition.gov/dfars. If the date or substance of any of the clauses listed below is different from the date or substance of the clause actually incorporated in the Prime Contract referenced by number herein, the date or substance of the clause incorporated by said Prime Contract shall apply instead. The Contracts Disputes Act shall have no application to this Contract, and nothing in this Contract grants SELLER a direct claim or cause of action against the U.S. Government. Any reference to a "Disputes" clause shall mean the "Disputes" clause of this Contract. It is intended that the referenced clauses shall apply to SELLER in such manner as is necessary to reflect the position of SELLER as a subcontractor to Kyocera International Inc., to ensure SELLER's obligations to Kyocera International Inc. and to the United States Government ("Government"), and to enable Kyocera International Inc. to meet its obligations under its prime contract or subcontract with a Government end customer. Those clauses which reference a time requirement will be interpreted to mean 75% of the allotted time requirement, thereby allowing Kyocera International Inc. sufficient time for any review, incorporation, and/or notification to the Government. If any of the below referenced FAR or DFARS clauses do not apply to this purchase order, such clauses are considered self-deleting. SELLER shall include in each lower-tier subcontract the appropriate flow down clauses as required by the FAR and FAR Supplement clauses included in this Contract.
B. GOVERNMENT SUBCONTRACT
(a) This Contract is entered into by the parties in support of a U.S. Government contract.
(b) As used in the FAR and DFARS clauses referenced below and otherwise in this Contract:
1. "Commercial Item" means a commercial item as defined in FAR 2.101.
2. "Commercially available off-the-shelf (COTS) item" means a COTS item as defined in FAR 2.101
3. "Contract" means this contract.
4. "Contracting Officer" shall mean the U.S. Government Contracting Officer for the government prime contract under which this Contract is entered.
5. "Contractor" and "Offeror" means the SELLER, which is the party identified on the face of the Contract with whom Kyocera Intentional Inc. is contracting, acting as the immediate subcontractor to Kyocera International Inc.
6. "Prime Contract" means the contract between Kyocera International Inc. and its higher-tier contractor who has a contract with the U.S. Government.
7. "Subcontract" means any contract placed by SELLER or lower-tier subcontractors under this Contract.
C. NOTES
(a) The following notes apply to the clauses incorporated by reference below only when specified in the parenthetical phrase following the clause title and date.
1. Substitute "Kyocera International Inc." for "Government" or "United States" throughout this clause.
2. Substitute "Kyocera International Inc. Procurement Representative" for "Contracting Officer", "Administrative Contracting Officer", and "ACO" throughout this clause.
3. Insert "and Kyocera International Inc." after "Government" throughout this clause.
4. Insert "or Kyocera International Inc." after "Government" throughout this clause.
5. Communication/notification required under this clause from/to SELLER to/from the Contracting Officer shall be through Kyocera International Inc.
6. Insert "and Kyocera International Inc." after "Contracting Officer", throughout the clause.
7. Insert "or Kyocera International Inc. procurement representative" after "Contracting Officer", throughout the clause.
8. If SELLER is an international contractor, this clause applies to this Contract only if Work under the Contract will be performed in the United States or Contractor is recruiting employees in the United States to Work on the Contract.
(b) See also the clause of this Contract entitled Communication with Kyocera International Inc. Customer with respect to communications between SELLER and the Government.
D. AMENDMENTS REQUIRED BY PRIME CONTRACT
SELLER agrees that upon the request of Kyocera International Inc. it will negotiate in good faith with Kyocera International Inc. relative to amendments to this Contract to incorporate additional provisions herein or to change provisions hereof, as Kyocera International Inc. may reasonably deem necessary in order to comply with the provisions of the applicable Prime Contract or with the provisions of amendments to such Prime Contract. If any such amendment to this Contract causes an increase or decrease in the cost of, or the time required for, performance of any part of the Work under this Contract, an equitable adjustment shall be made pursuant to the "Changes" clause of this Contract.
E. PRESERVATION OF THE GOVERNMENT'S RIGHTS
If Kyocera International Inc. furnishes designs, drawings, special tooling, equipment, engineering data, or other technical or proprietary information (Furnished Items) which the U. S. Government owns or has the right to authorize the use of, nothing herein shall be construed to mean that Kyocera International Inc., acting on its own behalf, may modify or limit any rights the Government may have to authorize SELLER's use of such Furnished Items in support of other U. S. Government prime contracts.
F. PROVISIONS OF THE FEDERAL ACQUISITION REGULATION (FAR) INCORPORATED BY REFERENCE
The following FAR clauses apply to this Contract:
FAR 52.203-6 RESTRICTIONS ON SUBCONTRACTOR SALES TO THE GOVERNMENT (JUN 2020) (Applies if this Contract exceeds the simplified acquisition threshold as defined in FAR 2.101.)
FAR 52.203-12 LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS (JUN 2020) (Applies if this Contract exceeds the threshold specified in FAR 3.808.)
FAR 52.203-13 CONTRACTOR CODE OF BUSINESS ETHICS AND CONDUCT (JUN 2021) (Applies if this Contract exceeds $6 million and the period of performance is more than 120 days. Disclosures made under this clause shall be made directly to the Government entities identified in the clause.)
FAR 52.203-14 DISPLAY OF HOTLINE POSTER(S) (JUN 2021) (Applies if this Contract exceeds $6 million.)
FAR 52.203-17 CONTRACTOR EMPLOYEE WHISTLEBLOWER RIGHTS AND REQUIREMENT TO INFORM EMPLOYEES OF WHISTLEBLOWER RIGHTS (JUN 2020) (Applies if this Contract exceeds the simplified acquisition threshold as defined in FAR 2.101.)
FAR 52.203-19 PROHIBITION ON REQUIRING CERTAIN INTERNAL CONFIDENTIALITY AGREEMENTS OR STATEMENTS (JAN 2017)
FAR 52.204-9 PERSONAL IDENTITY VERIFICATION OF CONTRACTOR PERSONNEL (JAN 2011) (Applies where SELLER will have physical access to a Federally-controlled facility or access to a Federally-controlled information system.)
FAR 52.204-10 REPORTING EXECUTIVE COMPENSATION AND FIRST-TIER SUBCONTRACT AWARDS (JUN 2020) (Subparagraph (d)(2) does not apply. If SELLER meets the thresholds specified in paragraphs (d)(3) and (g)(2) of the clause, SELLER shall report required executive compensation by posting the information to the Government's System for Award Management (SAM) database. All information posted will be available to the general public.)
FAR 52.204-21 BASIC SAFEGUARDING OF COVERED CONTRACTOR INFORMATION SYSTEMS (NOV 2021) (Applies unless SELLER is furnishing commercially available off-the-shelf items.)
FAR 52.204-23 PROHIBITION ON CONTRACTING FOR HARDWARE, SOFTWARE, AND SERVICES DEVELOPED OR PROVIDED BY KASPERSKY LAB AND OTHER COVERED ENTITIES (NOV 2021) (SELLER shall provide Kyocera International Inc. copies of any reports provided under this clause which relate to the performance of this Contract.)
FAR 52.204-25 PROHIBITION ON CONTRACTING FOR CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT (NOV 2021) (Note 4 applies in paragraph (b). Reports required by this clause will be made to Kyocera International Inc.)
FAR 52.209-6 PROTECTING THE GOVERNMENT'S INTEREST WHEN SUBCONTRACTING WITH CONTRACTORS DEBARRED, SUSPENDED, OR PROPOSED FOR DEBARMENT (NOV 2021) (Applies if this Contract exceeds the threshold specified in FAR 9.405-2(b) on the date of award of this Contract except does not apply if this Contract is for commercially available off-the- shelf (COTS) items. Copies of notices provided by SELLER to the Contracting Officer shall be provided to Kyocera International Inc.)
FAR 52.211-5 MATERIAL REQUIREMENTS (AUG 2000) (Note 2 applies.)
FAR 52.215-2 AUDIT AND RECORDS-NEGOTIATION (JUN 2020) (Applies if this Contract exceeds the simplified acquisition threshold as specified in FAR 2.101 and if: (1) SELLER is required to furnish cost or pricing data, or (2) the Contract requires SELLER to furnish cost, funding, or performance reports, or (3) this is an incentive or redeterminable type contract. Note 3 applies. Alternate II applies if SELLER is an educational or non-profit institution.)
FAR 52.215-10 PRICE REDUCTION FOR DEFECTIVE CERTIFIED COST OR PRICING DATA (AUG 2011) (Applies if submission of certified cost or pricing data is required. Notes 2 and 4 apply except the first time "Contracting Officer" appears in paragraph (c)(1). "Government" means "Kyocera International Inc." in paragraph (d)(1). Rights and obligations under this clause shall survive completion of the Work and final payment under this Contract.)
FAR 52.215-11 PRICE REDUCTION FOR DEFECTIVE CERTIFIED COST OR PRICING DATA - MODIFICATIONS (JUN 2020) (Applies if submission of certified cost or pricing data is required for modifications. Notes 2 and 4 apply except the first time "Contracting Officer" appears in paragraph (d)(1). "Government" means "Kyocera International Inc." in paragraph (e)(1). Rights and obligations under this clause shall survive completion of the Work and final payment under this Contract.)
FAR 52.215-12 SUBCONTRACTOR CERTIFIED COST OR PRICING DATA (JUN 2020) (Applies if this Contract exceeds the threshold under FAR 15.403 and is not otherwise exempt.)
FAR 52.215-13 SUBCONTRACTOR CERTIFIED COST OR PRICING DATA - MODIFICATIONS (JUN 2020) (Applies if this Contract exceeds the threshold under FAR 15.403 and is not otherwise exempt.)
FAR 52.215-14 INTEGRITY OF UNIT PRICES (NOV 2021) (Applies if this Contract exceeds the simplified acquisition threshold. Delete paragraph (b) of the clause.)
FAR 52.215-15 PENSION ADJUSTMENTS AND ASSET REVERSIONS (OCT 2010) (Applies if this Contract meets the applicability requirements of FAR 15.408(g). Note 5 applies.)
FAR 52.215-16 FACILITIES CAPITAL COST OF MONEY (JUN 2003) (Applies only if this Contract is subject to the Cost Principles at FAR Subpart 31.2 and SELLER proposed facilities capital cost of money in its offer.)
FAR 52.215-17 WAIVER OF FACILITIES CAPITAL COST OF MONEY (OCT 1997) (Applies only if this Contract is subject to the Cost Principles at FAR Subpart 31.2 and SELLER did not propose facilities capital cost of money in its offer.)
FAR 52.215-18 REVERSION OR ADJUSTMENT OF PLANS FOR POST-RETIREMENT BENEFITS (PRB) OTHER THAN PENSIONS (JUL 2005) (Applicable if this Contract meets the applicability requirements of FAR 15.408(j). Note 5 applies.)
FAR 52.215-19 NOTIFICATION OF OWNERSHIP CHANGES (OCT 1997) (Applies if this Contract meets the applicability requirements of FAR 15.408(k). Note 5 applies.)
FAR 52.215-20 REQUIREMENTS FOR CERTIFIED COST OR PRICING DATA AND DATA OTHER THAN CERTIFIED COST OR PRICING DATA (NOV 2021) (Note 2 applies in paragraph (a)(1).)
FAR 52.215-21 REQUIREMENTS FOR CERTIFIED COST OR PRICING DATA AND DATA OTHER THAN CERTIFIED COST OR PRICING DATA - MODIFICATIONS (NOV 2021) (Note 2 applies in paragraphs (a)(1) and (b).)
FAR 52.215-23 LIMITATION ON PASS-THROUGH CHARGES (JUN 2020) Applies if this is a cost-reimbursement subcontract in excess of the simplified acquisition threshold as specified in FAR 2.101, except if the prime contract to which this contract relates is with DoD, then the clause applies to both cost-reimbursement subcontracts and fixed-price subcontracts, except those identified in 15.408(n)(2)(i)(B)(2), that exceed the threshold specified in FAR 15.403-4. (Notes 4 and 6 apply.)
FAR 52.219-8 UTILIZATION OF SMALL BUSINESS CONCERNS (OCT 2022) (Note 8 applies.)
FAR 52.219-9 SMALL BUSINESS SUBCONTRACTING PLAN (OCT 2022) (Applies if this Contract exceeds the threshold specified in FAR 19.708(b) except the clause does not apply if SELLER is a small business concern. Note 2 is applicable to paragraph (c) only. SELLER's subcontracting plan is incorporated herein by reference. Note 8 applies.)
FAR 52.222-1 NOTICE TO THE GOVERNMENT OF LABOR DISPUTES (FEB 1997)
FAR 52.222-4 CONTRACT WORK HOURS AND SAFETY STANDARDS - OVERTIME COMPENSATION (MAY 2018) (Applies if the Contract may require or involve the employment of laborers and mechanics. Note 8 applies.)
FAR 52.222-19 CHILD LABOR-COOPERATION WITH AUTHORITIES AND REMEDIES (DEC 2022) (Applies if this Contract is valued at or above the micro-purchase threshold, as defined at FAR 2.101)
FAR 52.222-20 CONTRACTS FOR MATERIALS, SUPPLIES, ARTICLES, AND EQUIPMENT (JUN 2020) (Applies to orders over $15,000)
FAR 52.222-21 PROHIBITION OF SEGREGATED FACILITIES (APR 2015) (Note 8 applies.)
FAR 52.222-26 EQUAL OPPORTUNITY (SEP 2016) (Note 8 applies.)
FAR 52.222-35 EQUAL OPPORTUNITY FOR VETERANS (JUN 2020) (Applies if this Contract is valued at or above the threshold specified in FAR 22.1303(a). Note 8 applies.)
FAR 52.222-36 EQUAL OPPORTUNITY FOR WORKERS WITH DISABILITIES (JUN 2020) (Applies if this Contract exceeds the threshold specified in FAR 22.1408(a). Note 8 applies.)
FAR 52.222-37 EMPLOYMENT REPORTS ON VETERANS (JUN 2020) (Applies if this Contract is valued at or above the threshold specified in FAR 22.1303(a). Note 8 applies.)
FAR 52.222-40 NOTIFICATION OF EMPLOYEE RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT (DEC 2010) (Applies if this Contract exceeds $10,000. Note 8 applies.)
FAR 52.222-41 SERVICE CONTRACT LABOR STANDARDS (AUG 2018) (Applies if this Contract is for services subject to the Service Contract Act. The clause does not apply if this Contract has been administratively exempted by the Secretary of Labor or exempted by 41 U.S.C. 356, as interpreted in Subpart C of 29 CFR Part 4. Note 8 applies.)
FAR 52.222-50 COMBATING TRAFFICKING IN PERSONS (NOV 2021) (Note 2 applies. In paragraph (e) Note 3 applies.)
FAR 52.222-54 EMPLOYMENT ELIGIBILITY VERIFICATION (MAY 2022) (Applies if this Contract exceeds $3,500 except for commercial services that are part of the purchase of a COTS item (or an item that would be a COTS item, but for minor modifications), performed by the COTS provider, and are normally provided for that COTS item. Note 8 applies.)
FAR 52.222-55 MINIMUM WAGES FOR CONTRACTOR WORKERS UNDER EXECUTIVE ORDER 14026 (JAN 2022) (Applies if this Contract is subject to the Service Contract Labor Standards statute or the Wage Rate Requirements (Construction) statute, and is to be performed in whole or in part in the United States. "Contracting Officer" means "Kyocera International Inc.")
FAR 52.222-62 PAID SICK LEAVE UNDER EXECUTIVE ORDER 13706 (JAN 2022) (Applies if this Contract is subject to the Service Contract Labor Standards statute or the Wage Rate Requirements (Construction) statute, and are to be performed in whole or in part in the United States.)
FAR 52.223-3 HAZARDOUS MATERIAL IDENTIFICATION AND MATERIAL SAFETY DATA (FEB 2021) (Applies if this Contract involves hazardous material. Notes 2 and 3 apply, except for paragraph (f) where Note 4 applies.)
FAR 52.223-11 OZONE-DEPLETING SUBSTANCES AND HIGH GLOBAL WARMING POTENTIAL HYDROFLUOROCARBONS (JUN 2016) (Applies if the Work was manufactured with or contains ozone-depleting or high global warming potential hydrofluorocarbons.)
FAR 52.223-18 ENCOURAGING CONTRACTOR POLICIES TO BAN TEXT MESSAGING WHILE DRIVING (JUN 2020) (Applies if this Contract exceeds the mico-purchase threshold as defined in FAR 2.101. Note 8 applies.)
FAR 52.224-3 PRIVACY TRAINING (JAN 2017) (Applies if SELLER will (1) have access to a system of records; (2) create, collect, use, process, store, maintain, disseminate, disclose, dispose, or otherwise handle personally identifiable information; or (3) design, develop, maintain, or operate a system of records. In paragraph (d), Note 6 applies.)
FAR 52.225-1 BUY AMERICAN ACT -- SUPPLIES (OCT 2022) (Applies if the Work contains other than domestic components. Note 2 applies to the first time "Contracting Officer" is mentioned in paragraph (c).)
FAR 52.225-5 TRADE AGREEMENTS (DEC 2022) (Applies if the Work contains other than U.S. made or designated country end products as specified in the clause.)
FAR 52.225-8 DUTY FREE ENTRY (OCT 2010) (Applies if Work will be imported into the Customs Territory of the United States. Note 2 applies.)
FAR 52.225-13 RESTRICTIONS ON CERTAIN FOREIGN PURCHASES (FEB 2021)
FAR 52.227-1 AUTHORIZATION AND CONSENT (JUN 2020) (Applies only if the Prime Contract contains this clause.)
FAR 52.227-2 NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT (JUN 2020) (Applies if this Contract exceeds the simplified acquisition threshold as defined in FAR 2.101. Notes 2 and 4 apply.)
FAR 52.227-9 REFUND OF ROYALTIES (APR 1984) (Applies when reported royalty exceeds $250. Note 1 applies except for the first two times "Government" appears in paragraph (d). Note 2 applies.)
FAR 52.227-11 PATENT RIGHTS-OWNERSHIP BY THE CONTRACTOR (MAY 2014) (Applies if this Contract includes, at any tier, experimental, developmental, or research Work and SELLER is a small business concern or domestic nonprofit organization. Reports required by this clause shall be filed with the agency identified in this Contract. If no agency is identified, contact the Kyocera International Inc. Procurement Representative identified on the face of this Contract. FAR 52.227-13 applies in lieu of this clause if SELLER is not located in the United States or does not have a place of business located in the United States or is subject to the control of a foreign government.)
FAR 52.227-14 RIGHTS IN DATA - GENERAL (MAY 2014) (Does not apply if DFARS 252.227-7013 applies).
FAR 52.230-2 COST ACCOUNTING STANDARDS (JUN 2020) (Applies only when referenced in this Contract that full CAS coverage applies. "United States" means "United States or Kyocera International Inc." Delete paragraph (b) of the clause.)
FAR 52.230-3 DISCLOSURE AND CONSISTENCY OF COST ACCOUNTING PRACTICES (JUN 2020) (Applies only when referenced in this Contract that modified CAS coverage applies. "United States" means "United States or Kyocera International Inc." Delete paragraph (b) of the clause.)
FAR 52.230-4 DISCLOSURE AND CONSISTENCY OF COST ACCOUNTING PRACTICES--FOREIGN CONCERNS (JUN 2020) (Applies only when referenced in this Contract, modified CAS coverage applies. Note 3 applies in the second and third sentences.)
FAR 52.230-5 COST ACCOUNTING STANDARDS -- EDUCATIONAL INSTITUTIONS (JUN 2020) (Applies only when referenced in this Contract that this CAS clause applies. "United States" means "United States or Kyocera International Inc." Delete paragraph (b) of the clause.)
FAR 52.230-6 ADMINISTRATION OF COST ACCOUNTING STANDARDS (JUN 2010) (Applies if FAR 52.230-2, FAR 52.230-3, FAR 52.230-4 or FAR 52.230-5 applies.)
FAR 52.232-40 PROVIDING ACCELERATED PAYMENTS TO SMALL BUSINESS SUBCONTRACTORS (NOV 2021) (Applies if SELLER is a small business concern. Note 1 applies. This clause does not apply if Kyocera International Inc. does not receive accelerated payments under the prime contract. Not all agencies provide accelerated payments.)
FAR 52.233-3 PROTEST AFTER AWARD (AUG 1996) (In the event Kyocera International Inc's customer has directed Kyocera International Inc. to stop performance of the Work under the Prime Contract under which this Contract is issued pursuant to FAR 33.1, Kyocera International Inc. may, by written order to SELLER, direct SELLER to stop performance of the Work called for by this Contract. "30 days" means "20 days" in paragraph (b)(2). Note 1 applies except the first time "Government" appears in paragraph (f). In paragraph (f) add after "33.104(h) (1)" the following: "and recovers those costs from Kyocera International Inc.")
FAR 52.234-1 INDUSTRIAL RESOURCES DEVELOPED UNDER TITLE III, DEFENSE PRODUCTION ACT (SEP 2016) (Notes 1 and 2 apply.)
FAR 52.242-13 BANKRUPTCY (JUL 1995) (Notes 1 and 2 apply.)
FAR 52.242-15 STOP-WORK ORDER (AUG 1989) (Notes 1 and 2 apply.)
FAR 52.243-1 CHANGES - FIXED PRICE (AUG 1987) (Notes 1 and 2 apply. Alternate I applies if this Contract is for services. Alternate II applies if this contract is for supplies and services.)
FAR 52.243-6 CHANGE ORDER ACCOUNTING (APR 1984) (Applies if the Prime Contract requires Change Order Accounting. Note 2 applies.)
FAR 52.244-5 COMPETITION IN SUBCONTRACTING (DEC 1996)
FAR 52.244-6 SUBCONTRACTS FOR COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES (DEC 2022)
FAR 52.245-1 GOVERNMENT PROPERTY (SEPT 2021) ("Contracting Officer" means " Kyocera International Inc. " except in the definition of Property Administrator and in paragraphs (h)(1)(iii) where it is unchanged, and in paragraphs (c) and (h)(4) where it includes Kyocera International Inc. "Government" is unchanged in the phrases "Government property" and "Government furnished property" and where elsewhere used except in paragraph (d)(1) where it means " Kyocera International Inc. " and except in paragraphs (d)(2) and (g) where the term includes Kyocera International Inc. The following is added as paragraph (n) "SELLER shall provide to Kyocera International Inc. immediate notice if the Government or other customers (i) revokes its assumption of loss under any direct contracts with SELLER, or (ii) makes a determination that SELLER's property management practices are inadequate, and/or present an undue risk, or that SELLER has failed to take corrective action when required.")
FAR 52.246-2 INSPECTION OF SUPPLIES - FIXED PRICE (AUG 1996) (Note 2 applies. Note 3 applies, except in paragraph (b) the second time "Government" appears; (f), (h), (j), and (l) where Note 1 applies.)
FAR 52.246-4 INSPECTION OF SERVICES - FIXED PRICE (AUG 1996) (Note 3 applies, except in paragraphs (e) and (f) where Note 1 applies.)
FAR 52.246-26 REPORTING OF NONCONFORMING ITEMS (NOV 2021) Applies if this Contract is for the items listed in paragraph (g) of the clause. Copies of reports provided under this clause shall be provided to Kyocera International Inc. as well as the Contracting Officer. SELLER shall notify Kyocera International Inc. when it issues a GIDEP report pursuant to this clause.
FAR 52.247-63 PREFERENCE FOR U.S.-FLAG AIR CARRIERS (JUN 2003) (Applies if this Contract involves international air transportation.)
FAR 52.247-64 PREFERENCE FOR PRIVATELY OWNED U.S. FLAG COMMERCIAL VESSELS (NOV 2021)
FAR 52.248-1 VALUE ENGINEERING (JUN 2020) (Applies if this Contract exceeds the simplified acquisition threshold as defined in FAR 2.101. Note 1 applies, except in paragraphs (c)(5), where Note 3 applies and except in (b)(3) where Note 4 applies, and where "Government" precedes "cost" throughout. Note 2 applies. In paragraph (m) "Government is unchanged." Also, "Government" does not mean "Kyocera International Inc." in the phrase "Government costs.")
FAR 52.249-2 TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (FIXED-PRICE) (APR 2012) (Notes 1 and 2 apply. Note 4 applies to the first time "Government" appears in paragraphs (b)(4) and (b)(6), it applies to all of paragraph (b)(8) and it applies to the second time "Government" appears in paragraph (d). In paragraph (n) "Government" means " Kyocera International Inc. and the Government". In paragraph (c) "120 days" is changed to "60 days." In paragraph (d) "15 days" is changed to "30 days," and "45 days" is changed to "60 days. "In paragraph (e) "1 year" is changed to "6 months." Paragraph (j) is deleted. In paragraph (l) "90 days" is changed to "45 days." Settlements and payments under this clause may be subject to the approval of the Contracting Officer.)
FAR 52.249-8 DEFAULT (FIXED-PRICE SUPPLY AND SERVICE) (APR 1984) (Notes 1 and 2 apply, except Note 1 is not applicable to paragraph (c). Note 4 applies to the second and third time "Government" appears in paragraph (e). Timely performance is a material element of this Contract.)
G. PROVISIONS OF THE DEPARTMENT OF DEFENSE FEDERAL ACQUISITION REGULATION SUPPLEMENT (DFARS) INCORPORATED BY REFERENCE
The following DFARS clauses apply to this Contract:
DFARS 252.203-7001 PROHIBITION ON PERSONS CONVICTED OF FRAUD OR OTHER DEFENSE CONTRACT-RELATED FELONIES (DEC 2022) (Applies if this Contract exceeds the simplified acquisition threshold as defined in FAR 2.101. The terms "contract," "contractor," and "subcontract" shall not change in meaning in paragraphs (a) and (d). Delete paragraph (g). In paragraph (e), the remedies described in subparagraphs (2) and (3) are available to Kyocera International Inc. not the Government. In paragraph (f), note 5 applies.)
DFARS 252.203-7002 REQUIREMENT TO INFORM EMPLOYEES OF WHISTLEBLOWER RIGHTS (DEC 2022)
DFARS 252.203-7003 AGENCY OFFICE OF THE INSPECTOR GENERAL (AUG 2019) (Applies when FAR 52.203-13 applies to this Contract.)
DFARS 252.203-7004 DISPLAY OF HOTLINE POSTER(S) (AUG 2019) (Applies in lieu of FAR 52.203-14.)
DFARS 252.204-7009 LIMITATIONS ON THE USE AND DISCLOSURE OF THIRD-PARTY CONTRACTOR REPORTED CYBER INCIDENT INFORMATION (OCT 2016) (Applies if this Contract involves services that include support for the Government's activities related to safeguarding covered defense information and cyber incident reporting.)
DFARS 252.204-7012 SAFEGUARDING COVERED DEFENSE INFORMATION AND CYBER INCIDENT REPORTING (DEC 2019) (Applies if this Contract is for operationally critical support or for which performance will involve covered defense information. SELLER shall furnish Kyocera International Inc. copies of notices provided to the Contracting Officer at the time such notices are sent. SELLER shall also furnish Kyocera International Inc. copies of any reports SELLER receives from its lower tier subcontractors.)
DFARS 252.204-7015 NOTICE OF AUTHORIZED DISCLOSURE OF INFORMATION FOR LITIGATION SUPPORT (MAY 2016)
DFARS 252.204-7018 PROHIBITION ON THE ACQUISITION OF COVERED DEFENSE TELECOMMUNICATIONS EQUIPMENT OR SERVICES (JAN 2021) (Copies of reports provided by SELLER under this clause will be provided to Kyocera International Inc.)
DFARS 252.204-7019 NOTICE OF NIST SP 800-171 DOD ASSESSMENT REQUIREMENTS (MAR 2022)
DFARS 252.204-7020 NIST SP 800-171 DOD ASSESSMENT REQUIREMENTS (JAN 2023)
DFARS 252.209-7004 SUBCONTRACTING WITH FIRMS THAT ARE OWNED OR CONTROLLED BY THE GOVERNMENT OF A COUNTRY THAT IS A STATE SPONSOR OF TERRORISM (MAY 2019) (Applies to orders of $150,000 or more) (Note 2 applies)
DFARS 252.211-7003 ITEM UNIQUE IDENTIFICATION AND VALUATION (MAR 2022) (Applies if this Contract requires the Work to contain "unique item identification." Items subject to unique item identification are identified elsewhere in this Contract. All reports required to be submitted under this clause shall be submitted to Kyocera International Inc. "Government" means "Kyocera International Inc." except in the definition of "issuing agency" in paragraph (a).)
DFARS 252.215-7008 ONLY ONE OFFER (DEC 2022) (Applies if this subcontract exceeds the simplified acquisition threshold.)
DFARS 252.215-7010 REQUIREMENTS FOR CERTIFIED COST OR PRICING DATA AND OTHER DATA THAN CERTIFIED COST OR PRICING DATA (JUL 2019) This clause applies in lieu of FAR 52.215-20. Contracting Officer means " Kyocera International Inc. " Paragraph (b)(ii)(E) is deleted.
DFARS 252.219-7003 SMALL BUSINESS SUBCONTRACTING PLAN (DoD CONTRACTS) - BASIC (DEC 2019) (Applies if FAR 52.219-9 applies to this Contract.)
DFARS 252.222-7006 RESTRICTION ON THE USE OF MANDATORY ARBITRATION AGREEMENTS (DEC 2010) (The certification in paragraph (b)(2) applies to both SELLER in its own capacity and to SELLER's covered subcontractors.)
DFARS 252.223-7001 HAZARD WARNING LABELS (DEC 1991) (Applies if this Contract requires the delivery of hazardous materials.)
DFARS 252.223-7008 PROHIBITION OF HEXAVALENT CHROMIUM (JUN 2013) (Note 2 applies.)
DFARS 252.225-7001 BUY AMERICAN AND BALANCE OF PAYMENTS PROGRAM (JUN 2022) (Applies if the Work contains other than domestic components. Applies in lieu of FAR 52.225-1.)
DFARS 252.225-7007 PROHIBITION ON ACQUISITION OF CERTAIN ITEMS FROM COMMUNIST CHINESE MILITARY COMPANIES (DEC 2018) Applies if this contract is for an item on the United States Munitions List or the 600 series of the Commerce Control List.)
DFARS 252.225-7009 RESTRICTION ON ACQUISITION OF CERTAIN ARTICLES CONTAINING SPECIALTY METALS (DEC 2022) (Applies if the Work to be furnished contains specialty metals. Paragraph (d) is deleted.)
DFARS 252.225-7012 PREFERENCE FOR CERTAIN DOMESTIC COMMODITIES (APR 2022)
DFARS 252.225-7013 DUTY-FREE ENTRY (DEC 2022) (Notes 1 and 2 apply in subparagraph (c). Applies in lieu of FAR 52-225-8. The prime contract number and identity of the Contracting Officer are contained elsewhere in this contract. If this information is not available, contact Kyocera International Inc. Procurement Representative.)
DFARS 252.225-7021 TRADE AGREEMENTS (DEC 2022) (Applies if the Work contains other than U.S.-made, qualifying country, or designated country end products. Applies in lieu of FAR 52.225-5.)
DFARS 252.225-7033 WAIVER OF UNITED KINGDOM LEVIES (APR 2003) (Applies if this Contract is with a United Kingdom firm. Note 2 applies. Note 1 applies to the second sentence of paragraph (a).)
DFARS 252.225-7036 BUY AMERICAN - FREE TRADE AGREEMENTS - BALANCE PAYMENTS PROGRAM (JAN 2023)
DFARS 252.225-7043 ANTI-TERRORISM/FORCE PROTECTION POLICY FOR DEFENSE CONTRACTORS OUTSIDE THE UNITED STATES (JUN 2015) (Applies where SELLER will be performing or traveling outside the U.S. under this Contract. For paragraph (c), see applicable information cited in DFARS 225.7401.)
DFARS 252.225-7048 EXPORT-CONTROLLED ITEMS (JUN 2013)
DFARS 252.225-7052 RESTRICTION ON THE ACQUISITION OF CERTAIN MAGNETS, TANTALUM, AND TUNGSTEN (JAN 2023) (Applies except where an exception in paragraph (c) applies.)
DFARS 252.225-7056 PROHIBITION REGARDING BUSINESS OPERATIONS WITH THE MADURO REGIME (JAN 2023)
DFARS 252.225-7058 POST-AWARD DISCLOSURE OF EMPLOYMENT OF INDIVIDUALS WHO WORK IN THE PEOPLE'S REPUBLIC OF CHINA (JAN 2023) (Applicable if this contract exceeds $5 million. Disclosures required by this clause will be made to Kyocera International Inc.)
DFARS 252.225-7060 PROHIBITION ON CERTAIN PROCUREMENTS FROM THE XINGIANG UYGHUR AUTONOMOUS REGION (JUN 2023)
DFARS 252.226-7001 UTILIZATION OF INDIAN ORGANIZATIONS, INDIAN-OWNED ECONOMIC ENTERPRISES AND NATIVE HAWAIIAN SMALL BUSINESS CONCERNS (APR 2019) (Applies if this Contract exceeds $500,000. Note 2 applies to paragraph (c) the first time "Contracting Officer" appears.) In subparagraph (f)(1) "Contractor" shall mean " Kyocera International Inc." Kyocera International Inc. shall have no liability to SELLER for any incentive payment under this clause unless and until the Government provides said incentive payment to Kyocera International Inc.)
DFARS 252.227-7013 RIGHTS IN TECHNICAL DATA -- NONCOMMERCIAL ITEMS (DEC 2022) (Applies in lieu of FAR 52.227-14.)
DFARS 252.227-7014 RIGHTS IN NONCOMMERCIAL COMPUTER SOFTWARE AND NONCOMMERCIAL COMPUTER SOFTWARE DOCUMENTATION (FEB 2014) (Applies in lieu of FAR 52.227-14.)
DFARS 252.227-7015 TECHNICAL DATA -- COMMERCIAL ITEMS (DEC 2022) (Applies to commercial items delivered under this Contract)
DFARS 252.227-7016 RIGHTS IN BID OR PROPOSAL INFORMATION (JAN 2011)
DFARS 252.227-7019 VALIDATION OF ASSERTED RESTRICTIONS - COMPUTER SOFTWARE (SEP 2016)
DFARS 252.227-7025 LIMITATIONS ON THE USE OR DISCLOSURE OF GOVERNMENT-FURNISHED INFORMATION MARKED WITH RESTRICTIVE LEGENDS (MAY 2013) (For paragraph (c)(1), note 3 applies.)
DFARS 252.227-7026 DEFERRED DELIVERY OF TECHNICAL DATA OR COMPUTER SOFTWARE (APR 1988) (Note 1 applies.)
DFARS 252.227-7027 DEFERRED ORDERING OF TECHNICAL DATA OR COMPUTER SOFTWARE (APR 1988) (Note 1 applies to the first sentence.)
DFARS 252.227-7028 TECHNICAL DATA OR COMPUTER SOFTWARE PREVIOUSLY DELIVERED TO THE GOVERNMENT (JUN 1995) (The definitions for "contract" and "subcontract" shall not apply herein, except for the first reference to contract. Note 4 applies.)
DFARS 252.227-7030 TECHNICAL DATA - WITHHOLDING OF PAYMENT (MAR 2000) (Notes 1 and 2 apply to (a); Note 4 applies to (b).)
DFARS 252.227-7037 VALIDATION OF RESTRICTIVE MARKINGS ON TECHNICAL DATA (DEC 2022)
DFARS 252.227-7038 PATENT RIGHTS - OWNERSHIP BY THE CONTRACTOR (LARGE BUSINESS) (JUN 2012) (Applies if (1) SELLER is not small business or nonprofit organization subject to FAR 52.227-11, and (2) the Contract is for experimental, developmental, or research
work.)
DFARS 252.231-7000 SUPPLEMENTAL COST PRINCIPLES (DEC 1991)DFARS 252.243-7001 PRICING OF CONTRACT MODIFICATIONS (DEC 1991) (Applies if this is a fixed price contract).
DFARS 252.244-7000 SUBCONTRACTS FOR COMMERCIAL ITEMS (DEC 2022)
DFARS 252.246-7003 NOTIFICATION OF POTENTIAL SAFETY ISSUES (JUN 2013) (Applies if this Contract is for (i) parts identified as critical safety items; (ii) systems and subsystems, assemblies, and subassemblies integral to a system; or (iii) repair, maintenance, logistics support, or overhaul services for systems and subsystems, assemblies, subassemblies, and parts integral to a system. SELLER shall provide notifications to Kyocera International Inc. and the contracting officer identified to SELLER.)
DFARS 252.246-7007 CONTRACTOR COUNTERFEIT ELECTRONIC PART DETECTION AND AVOIDANCE SYSTEM (AUG 2016) (Paragraphs (a) through (e) apply. In paragraph (c)(2) Note 3 applies. In paragraph (c)(6) Note 6 applies.)
DFARS 252.246-7008 SOURCES OF ELECTRONIC PARTS (MAY 2018) (Applies if this contract is for electronic parts or assemblies containing electronic parts, unless SELLER is the original manufacturer. Note 1 applies except in paragraph (d). Note 2 applies.
DFARS 252.247-7023 TRANSPORTATION OF SUPPLIES BY SEA - BASIC (FEB 2019) (Applies in lieu of FAR 52.247-64 in all Contracts for ocean transportation of supplies. In the first sentence of paragraph (g), insert a period after "Contractor" and delete the balance of the sentence. Paragraph (f) and (g) shall not apply if this Contract is at or below the simplified acquisition threshold as specified in FAR 2.101. Notes 1 and 2 apply to paragraph (g).)
DFARS 252.249-7002 NOTIFICATION OF ANTICIPATED CONTRACT TERMINATION OR REDUCTION (DEC 2022) (Applies if this Contract is equal or exceeds the threshold specified in DFARS 249.7003(c)(2). Note 2 applies. Delete paragraph (d) (1) and the first five words of paragraph (d) (2).)
H. CERTIFICATIONS AND REPRESENTATIONS
SELLER acknowledges that Kyocera International Inc. will rely upon SELLER certifications and representations, including representations as to business size and socio-economic status as applicable, contained in this clause and in any written offer, proposal or quote, or company profile submission, which results in award of a contract to SELLER. By entering into such contract, SELLER republishes the certifications and representations submitted with its written offer, including company profile information, and oral offers/quotations made at the request of Kyocera International Inc., and SELLER makes those certifications and representations set forth below. SELLER shall immediately notify Kyocera International Inc. of any change of status regarding any certification or representation.
The following additional clauses apply to this Contract as defined by the respective FAR clause:
FAR 52.203-2 CERTIFICATE OF INDEPENDENT PRICE DETERMINATION (APR 1985)
FAR 52.203-7 ANTI-KICKBACK PROCEDURES (JUN 2020)
FAR 52.209-2 PROHIBITION ON CONTRACTING WITH INVERTED DOMESTIC CORPORATIONS - REPRESENTATIONS (NOV 2015)
FAR 52.225-20 PROHIBITION ON CONDUCTING RESTRICTED BUSINESS OPERATION IN SUDAN - CERTIFICATION (AUG 2009)
FAR 52.225-25 PROHIBITION ON CONTRACTING WITH ENTITIES ENGAGING IN CERTAIN ACTIVITIES OR TRANSACTIONS RELATING TO IRAN - REPRESENTATION AND CERTIFICATION (JUN 2020)
The following additional referenced clauses apply to this contract as written:
1. FAR 52.203-11 Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions (Applicable to solicitations and contracts exceeding $150,000)
(a) Definitions. As used in this provision--
"Lobbying contact" has the meaning provided at 2 U.S.C. 1602(8).
The terms "agency," "influencing or attempting to influence," "officer or employee of an agency," "person," "reasonable compensation," and "regularly employed" are defined in the FAR clause of this solicitation entitled "Limitation on Payments to Influence Certain Federal Transactions" (52.203-12).
(b) Prohibition. The prohibition and exceptions contained in the FAR clause of this solicitation entitled "Limitation on Payments to Influence Certain Federal Transactions" (52.203-12) are hereby incorporated by reference in this provision.
(c) Certification. SELLER hereby certifies to the best of its knowledge and belief that no Federal appropriated funds 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 its behalf in connection with the awarding of this contract.
(d) Disclosure. If any registrants under the Lobbying Disclosure Act of 1995 have made a lobbying contact on behalf of the offeror with respect to this contract, SELLER shall complete and submit, with its offer, to Kyocera International Inc. Standard Form LLL, Disclosure of Lobbying Activities, to provide the name of the registrants. SELLER need not report regularly employed officers or employees of the offeror to whom payments of reasonable compensation were made.
(e) Penalty. Submission of this certification and disclosure is a prerequisite for making or entering into this contract imposed by 31 U.S.C. 1352. Any person who makes an expenditure prohibited under this provision or who fails to file or amend the disclosure required 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.
2. FAR 52.209-5 Certification Regarding Responsibility Matters
(a)(1) SELLER certifies, to the best of its knowledge and belief, that--
(i) SELLER 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, tax evasion, violating Federal criminal tax laws, or receiving stolen property;
(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)(1)(i)(B) of this provision; and
(ii) SELLER has not, within a three-year period preceding this offer, had one or more contracts terminated for default by any Federal agency.
(D) Have not, within a three-year period preceding this offer, been notified of any delinquent Federal taxes in an amount that exceeds the threshold at 9.104-5(a)(2) for which the liability remains unsatisfied.
(1) Federal taxes are considered delinquent if both of the following criteria apply:
(i) The tax liability is finally determined. The liability is finally determined if it has been assessed. A liability is not finally determined if there is a pending administrative or judicial challenge. In the case of a judicial challenge to the liability, the liability is not finally determined until all judicial appeal rights have been exhausted.
(ii) The taxpayer is delinquent in making payment. A taxpayer is delinquent if the taxpayer has failed to pay the tax liability when full payment was due and required. A taxpayer is not delinquent in cases where enforced collection action is precluded.
(2) Examples. (i) The taxpayer has received a statutory notice of deficiency, under I.R.C. Sec. 6212, which entitles the taxpayer to seek Tax Court review of a proposed tax deficiency. This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek Tax Court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights.
(ii) The IRS has filed a notice of Federal tax lien with respect to an assessed tax liability, and the taxpayer has been issued a notice under I.R.C. Sec. 6320 entitling the taxpayer to request a hearing with the IRS Office of Appeals contesting the lien filing, and to further appeal to the Tax Court if the IRS determines to sustain the lien filing. In the course of the hearing, the taxpayer is entitled to contest the underlying tax liability because the taxpayer has had no prior opportunity to contest the liability. This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek tax court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights.
(iii) The taxpayer has entered into an installment agreement pursuant to I.R.C. Sec. 6159. The taxpayer is making timely payments and is in full compliance with the agreement terms. The taxpayer is not delinquent because the taxpayer is not currently required to make full payment.
(iv) The taxpayer has filed for bankruptcy protection. The taxpayer is not delinquent because enforced collection action is stayed under 11 U.S.C. 362 (the Bankruptcy Code).
(2) Principal, for the purposes of this certification, means an officer, director, owner, partner, or a person having primary management or supervisory responsibilities within a business entity (e.g., general manager; plant manager; head of a division, or business segment; and similar positions).
(b) SELLER shall provide immediate written notice to Kyocera International Inc. if, at any time prior to contract award, SELLER learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.
(c) The certification in paragraph (a) of this provision is a material representation of fact upon which reliance was placed when making award. If it is later determined that SELLER knowingly rendered an erroneous certification, in addition to other remedies available, Kyocera International Inc. may terminate this contract for default.
3. FAR 52.222-22 Previous Contracts and Compliance Reports
(a) SELLER represents that if SELLER has participated in a previous contract or subcontract subject to the Equal Opportunity clause (FAR 52.222-26): (1) SELLER has filed all required compliance reports and (2) that representations indicating submission of required compliance reports, signed by proposed subcontractors, will be obtained before subcontract awards.
(b) Paragraph (a) applies only to the extent (1) SELLER performs work in the United States, or (2) recruits' employees in the United States to Work on this Contract.
4. FAR 52.222-25 Affirmative Action Compliance
(a) SELLER represents: (1) that SELLER 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), or (2) that in the event such a program does not presently exist, SELLER will develop and place in operation such a written Affirmative Action Compliance Program within one-hundred twenty (120) days from the award of this Contract.
(b) Paragraph (a) applies only to the extent (1) SELLER performs work in the United States, or (2) recruits' employees in the United States to Work on this Contract.
5. FAR 52.222-56 Certification Regarding Trafficking in Persons Compliance Plan (OCT 2020)
(Applicability: (1) Applicable for supplies, other than commercially available off-the-shelf items, to be acquired outside the United States, or services to be performed outside the United States; and (2) Has an estimated value that exceeds $550,000.)
SELLER certifies that it has implemented a compliance plan to prevent any prohibited activities identified in paragraph (b) of the clause at FARS 52.222-50, Combating Trafficking in Persons, and to monitor, detect, and terminate the contract with a subcontractor engaging in prohibited activities identified at paragraph (b) of the clause at FARS 52.222-50, Combating Trafficking in Persons; and After having conducted due diligence, either -- (I) To the best of the SELLER's knowledge and belief, neither it nor any of its proposed agents, subcontractors, or their agents is engaged in any such activities; or (ii) If abuses relating to any of the prohibited activities identified in FARS 52.222-50(b) have been found, the SELLER or proposed subcontractor has taken the appropriate remedial and referral actions.
I. THE FOLLOWING ADDITIONAL PROVISIONS AND COMPLIANCE OBLIGATIONS APPLY TO THIS CONTRACT
Termination for Convenience: At any time, Kyocera International Inc. may, in its sole discretion and by written notice, direct SELLER to terminate work under the Order, in whole or in part. In such event, Kyocera International Inc. shall have all rights and obligations accruing to it either at law or in equity, including Kyocera International Inc's right to title and possession of any of the Items and Services paid for by Kyocera International Inc. Upon notice of termination, Kyocera International Inc. may take immediate possession of all work so performed. Upon notice of termination, SELLER shall immediately stop work and limit costs incurred on the terminated work. In the event Kyocera International Inc. partially terminates the Order, SELLER shall continue the performance of the Order to the extent not canceled. Upon notice of termination for convenience, SELLER shall submit a settlement proposal to Kyocera International Inc. within thirty (30) calendar days (unless otherwise extended in writing) with full supporting documentation for all costs claimed. Kyocera International Inc., after deducting any amounts previously paid, shall reimburse SELLER for the actual, reasonable, substantiated, and allowable costs of the work. The total amount to be paid by Kyocera International Inc. for the work shall be determined by Kyocera International Inc. and shall not exceed the value of the Order. Payment for completed Items delivered and accepted by Kyocera International Inc. shall be at the price set forth in the Order.
Priority Rating: If this Contract contains a DPAS rating, this Contract is a "rated order" certified for national defense, emergency preparedness, and energy program use, and SELLER shall follow all the requirements of the Defense Priorities and Allocation System (DPAS) Regulation (15 C.F.R. Part 700).
Counterfeit Part Detection and Avoidance System: SELLER shall only deliver goods to Kyocera International Inc. that (I) are and only contain materials obtained directly from the Original Manufacturer (OM), an authorized distributor, or an authorized aftermarket manufacturer, and (ii) are not and do not contain Counterfeit Items or Suspect Counterfeit Items, as defined below; and (iii) contain only authentic, unaltered OM labels and other markings. SELLER shall obtain and retain all documentation required to fully trace the distribution and sale of the goods delivered hereunder back to the relevant OM, and, on request of Kyocera International Inc., shall provide such authenticating documentation. Upon Kyocera International Inc's request, SELLER shall provide Kyocera International Inc. certificates of conformance with respect to the goods delivered. Counterfeit Item means an unlawful or unauthorized reproduction, substitution, alteration, or the false identification of grade, serial number, lot number, date code, or performance characteristic, that has been knowingly mismarked, misidentified, or otherwise misrepresented to be a new, authentic, unmodified item from the OM, an authorized distributor, or an authorized aftermarket manufacturer. SELLER shall notify Kyocera International Inc. in writing immediately in the event that any material to be delivered cannot be procured in accordance with this requirement and SELLER must obtain Kyocera International Inc's prior written authorization if an alternate source is required and for any deviation from the counterfeit risk mitigation requirements.
U.S. Foreign Corrupt Practices Act: SELLER represents and warrants it shall: (i) comply with the requirements of the U.S. Foreign Corrupt Practices Act ("FCPA") (15 U.S.C. §§ 78dd-1, et. seq., as amended), regardless of whether SELLER is within the jurisdiction of the United States; (ii) neither directly nor indirectly, pay, offer, give, or promise to pay or give, any portion of monies or anything of value to a non-U.S. public official or any person in violation of the FCPA and/or in violation of any applicable country laws relating to anti-corruption or anti-bribery; and (iii) not interact with any government official, political party, or public international organization on behalf of Kyocera International Inc. without the prior written permission of the Kyocera International Inc's Procurement Representative. Breach of this provision (f) by SELLER shall be considered an irreparable material breach of the Order and shall entitle Kyocera International Inc. to terminate the Order immediately without compensation to SELLER.
No Gratuities: No gratuities (in the form of entertainment, gifts, travel, or anything of value) or kickbacks shall be offered or given by SELLER or by any agent, representative, affiliate, subsidiary, or subcontractor of SELLER to any officer or employee of Kyocera International Inc's customer or Kyocera International Inc. This restriction specifically prohibits the direct or indirect inclusion of any kickback amounts in any invoices or billings submitted under the Order or any other agreement with Kyocera International Inc.
No Child or Forced Labor: SELLER shall comply with all local, state, and national laws relating to the prohibition on child labor and indentured, prison, or compulsory labor. SELLER shall comply with all applicable laws and industry standard relating to working hours, working conditions, and any collective bargaining agreements. SELLER further agrees that, if requested by Kyocera International Inc., it shall demonstrate, to the satisfaction of Kyocera International Inc., compliance with all requirements in this paragraph. Kyocera International Inc. shall have the right to inspect any site of SELLER for compliance with this paragraph. SELLER shall include this provision in all of its lower tier subcontracts.
No Human Trafficking: SELLER shall comply with all applicable local, state, and national laws in the countries where SELLER does business relating to the prohibition of slavery and human trafficking. Upon Kyocera International Inc's request, SELLER shall provide to Kyocera International Inc. a copy of its human trafficking compliance plan and/or other evidence of SELLER'S compliance with this provision. SELLER shall include this provision in all of its lower tier subcontracts.
National Defense Authorization Act for Fiscal Year 2019 Section 889: Kyocera International Inc., as a Government contractor, is prohibited from using: (i) telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities); (ii) video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities); (iii) telecommunications or video surveillance services provided by such entities or using such equipment; or (iv) telecommunications or video surveillance equipment or services produced or provided by an entity that is owned or controlled by, or otherwise connected to, the government of the People's Republic of China (collectively, "covered telecommunications equipment or services") as a substantial or essential component of any system or as critical technology as part of any system, regardless of whether the use is in performance of work under a federal contract. By acceptance of the Order, SELLER represents and warrants that it: (1) does not use covered telecommunications equipment or services, or use any equipment, system, or service that uses covered telecommunications equipment or services, as a substantial or essential component of any system or as critical technology as part of any system; and (2) will not provide covered telecommunications equipment or services to Kyocera International Inc. in the performance of the Order. In the event SELLER identifies covered telecommunications equipment or services used as a substantial or essential component of any system or as critical technology as part of any system at any time during the proposal process or contract performance, or SELLER is notified of such by a subcontractor at any tier or by any other source, SELLER shall immediately notify Kyocera International Inc. and reasonably cooperate with Kyocera International Inc's requests for supporting documentation and any resolution required by Kyocera International Inc's customer. SELLER shall include this provision in all lower tier contracts.
National Defense Authorization Act for Fiscal Year 2023 Section 5949: SELLER certifies that, in the performance of any contract, subcontract, or other contractual instrument with Kyocera International Inc., SELLER does not and will not (i) provide to Kyocera International Inc. any semiconductor products or services, or any electronic parts, products, or services that include semiconductor products or services, designed, produced, or provided by the following entities (or their affiliates, subsidiaries, or successors) (collectively, "Covered Semiconductors"), or (ii) provide to Kyocera International Inc. any electronic parts or products that use any Covered Semiconductors.
- Semiconductor Manufacturing International Corporation (SMIC)
- ChangXin Memory Technologies (CXMT)
- Yangtze Memory Technologies Corp (YMTC)
Prohibited Contracting: For purposes of this Article, "Covered Entity" means Kaspersky Lab, any successor entity to Kaspersky Lab, any entity that controls, is controlled by, or is under common control with Kaspersky Lab, or any entity of which Kaspersky Lab has a majority ownership. For purposes of this Article, "Covered Article" means any hardware, software, or service that is developed or provided by the Covered Entity, including any hardware, software, or service developed or provided in whole or in part by the Covered Entity, or contains components using any hardware or software developed, in whole or in part, by the Covered Entity. SELLER is prohibited from providing any Covered Article in the performance of the Order. In the event SELLER identifies that a Covered Article has been provided to Kyocera International Inc. under the Order, SELLER shall immediately notify Kyocera International Inc. in writing of such event and discontinue its use under the Order. SELLER will, at SELLER's cost, cooperate with Kyocera International Inc. to provide any requested information regarding the Covered Article and any mitigation efforts taken by SELLER. SELLER shall include this provision in all of its lower-tier subcontracts.
Equal Opportunity: Kyocera International Inc. and SELLER shall abide by the equal opportunity federal and state laws that prohibit discrimination on the bases of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or veteran status and require affirmative measures to prevent discrimination on those bases from occurring, including employment and advance in employment requirements.
Conflict Minerals: By accepting these terms and conditions, SELLER agrees to timely (no later than thirty (30) calendar days subsequent to the request) respond, to the best of its knowledge and belief following a reasonable country of origin due diligence inquiry in accordance with the framework in the Organization for Economic Cooperation and Development Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas or other prevailing industry standard, to any request by, or on behalf of, Kyocera International Inc. for information on the origin, source, and chain of custody information of tin, tantalum, tungsten, and gold ("3TG") minerals necessary to the functionality or production of a product manufactured by SELLER. SELLER agrees to provide Kyocera International Inc. timely notice when SELLER becomes aware that any 3TG minerals in an Item it supplies to Kyocera International Inc. finances or benefits armed groups in the Democratic Republic of Congo or an adjoining country. SELLER understands and acknowledges that any information SELLER provides may be used by Kyocera International Inc. to comply with its reporting obligations under the Rule 13p-1 of the Securities and Exchange Act of 1934, as amended and the Dodd-Frank Wall Street Reform and Consumer Protection Act, including filing a Form SD and Conflict Minerals Report with the U.S. Securities and Exchange Commission.
Ethical Standards of Conduct:
(a) Kyocera International Inc. is committed to conducting its business fairly, impartially, and in an ethical and proper manner. Kyocera International Inc's expectation is that SELLER also will conduct its business fairly, impartially, and in an ethical and proper manner. Kyocera International Inc's further expectation is that SELLER will have (or will develop) and adhere to a code of ethical standards similar to Kyocera International Inc's Supplier Standards of Business Conduct (available at https://americas.kyocera.com/other/supplier-information/supplier-standards-of-business-conduct.html) or comply with Kyocera International Inc's Supplier Standards of Business Conduct. If SELLER has cause to believe that Kyocera International Inc. or any employee or agent of Kyocera International Inc. has behaved improperly or unethically under the Order, SELLER shall report such behavior to the Kyocera International Inc's Procurement Representative or the appropriate Kyocera International Inc. points of contact set forth in Kyocera International Inc's Supplier Standards of Business Conduct. SELLER'S employees are required to conduct company business with integrity and maintain a high standard of conduct in all business-related activities. SELLER shall include this Ethical Standards of Conduct Article in all of its lower tier subcontracts.
(b) SELLER acknowledges and agrees it is neither obligated nor expected to deliver or provide Items or perform work that will place SELLER in an Organizational Conflict of Interest ("OCI") per FAR 9.5, which could serve as a basis for excluding SELLER from supplying products or services to the Government. SELLER shall identify to Kyocera International Inc. any situation in which an actual OCI or potential for an OCI exists, including without limitation a relationship of any nature which may affect or which may reasonably appear to affect SELLER'S objectivity or ability to perform the work. Failure to provide notice to Kyocera International Inc. is a material breach of the Order.
(c) As required by FAR 3.104, SELLER certifies no person it uses to perform any Service herein has any legal restrictions as a result of Government service (e.g., post-employment restrictions related to representing a company to the Government) that would prevent such person from reasonably performing the work contemplated in the Order.
Export Control Compliance:
SELLER agrees to comply with all applicable import, export, and economic sanctions laws and regulations, including those of the United States and other applicable foreign jurisdictions. SELLER is hereby notified some technology, technical data, or hardware which your organization may have access (or that your organization will supply) while working with Kyocera International Inc. may be controlled under the International traffic in Arms Regulations, 22 C.F.R. parts 120-130 ("the ITAR") or the Export Administration Regulations, 15 C.F.R. parts 730-774 ("the EAR").
In accordance with the ITAR, any person engaged in the business of either exporting or manufacturing (whether exporting or not) defense articles or furnishing defense services is required to register with the United States Office of the Directorate of Defense Trade Controls (DDTC). Accordingly, Kyocera International Inc. will only share such controlled technology, technical data, or hardware with SELLER's organization if it can certify that it is registered or will register with the Office of the Directorate of Defense Trade Controls (unless covered by one of the exemptions set forth in 22 C.F.R. 122.1) as required by the ITAR. Kyocera International Inc. requires its suppliers to comply with all export control laws and regulations (including, but not limited to, the U.S. Export Administration Regulations (EAR) and the U.S. International Traffic in Arms Regulations (ITAR) to the extent applicable to their activities. The SELLER shall control access to any Kyocera International Inc's technical data in accordance with all U.S. export laws and regulations including, without limitation, confining the disclosure of any ITAR controlled technical data to U.S. persons unless disclosure to foreign persons is specifically authorized and appropriately licensed by the proper U.S. government agency.
11/22/23