Western Carolina University Research Administration
SUBCONTRACT AGREEMENT
(Externally Supported Research)
THIS SUBCONTRACT AGREEMENT (the "Agreement") is executed by and between
Western Carolina University, a constituent institution of the University of North Carolina (the
"University"), and ______________________________, with its principal place of business
located at _____________________ (the "Subcontractor").
WHEREAS, the University has received a grant/contract entitled "_____________",
under grant/contract number _________________________ from __________________ (the
"Funding Agency");
WHEREAS, pursuant to the grant, the University is conducting a research project (the
"Project") under the direction of ____________________ (the "Principal Investigator"); and
WHEREAS, University wishes to engage the services and collaborative efforts of the
Subcontractor in connection with the grant.
NOW THEREFORE, in consideration of the mutual agreements and promises contained
herein, the University and the Subcontractor agree as follows:
ARTICLE 1: SCOPE OF WORK
1.1 Subcontractor shall supply all of the necessary personnel, equipment, and
materials, except as otherwise may be provided herein, to perform the services set forth on
Appendix "A", which is attached hereto and incorporated herein by reference (hereinafter
referred to as the "Scope of Work"). The Scope of Work shall set forth all services and research
tasks that are the subject of this Agreement, including all deliverables, deliverables timelines,
budgets, and any progress payments. The parties agree that the schedule of deliverables,
deliverables timelines, budget and progress payments, as well as any procedures for directing
and monitoring the research effort shall be considered integral parts of the Scope of Work.
ARTICLE 2: SUPERVISION
2.1 The Principal Investigator shall retain the responsibility for supervision of the
Project. Any change to the Scope of Work must be approved, in writing, by the Principal
Investigator and the University.
ARTICLE 3: KEY PERSONNEL
3.1 The person(s) cited below are considered to be essential to the work performed
hereunder. In the event any key person(s) terminates employment with the Subcontractor or is
reassigned to another program, the Subcontractor shall notify the University in writing. Any
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individual appointed to replace any key person(s) must have the prior written approval of the
University.
_______________________________ _______________________________
ARTICLE 4: COMPENSATION
4.1 As consideration for the Subcontractor's performance hereunder, the University
will pay the Subcontractor the amounts and in the manner specified in the Scope of Work.
Requests for payment/progress payments shall be submitted in duplicate to the Principal
Investigator and the Office of Research Administration. Requests for payment/progress
payments shall reference the grant/contract number and Principal Investigator, and shall reflect
summary detail, by budget category, of the costs incurred.
4.2 The total cost, including both direct and indirect costs, of performing the Scope of
Work shall not exceed _____________________. The University shall not, in the absence of
an agreed upon written modification hereto, be obligated to reimburse the Subcontractor for
costs incurred by Subcontractor which are in excess of the total cost specified in this Article 4.
The Subcontractor may not deviate significantly from the major line items of the budget
described in the Scope of Work unless specifically approved in writing in advance by the
University.
4.3 Requests for payment received from the Subcontractor shall be reviewed by the
Principal Investigator and the Director of Contracts and Grants prior to payment and, further,
any payment thereon shall at all times thereafter be subject to audit by the University as to
correctness thereof and appropriate adjustments thereto. All costs incurred and payments
made under this Agreement shall be subject to audit by the cognizant Federal Audit Agency, the
Funding Agency, and/or the University, and Subcontractor agrees to permit the Funding Agency
and/or University or government auditors' access to its records, including copies thereof.
Subcontractor shall compensate the University for any refunds to the Funding Agency and/or
government which may be required of University as a result of any disallowance of costs of
Subcontractor.
ARTICLE 5: TERM AND TERMINATION
5.1 The term of and performance under this Agreement shall commence on
_______________ and end on ______________. Performance under this Agreement shall not
extend beyond the termination date unless the period is extended through mutual agreement in
writing and signed by both parties.
5.2 This Agreement may be terminated without cause by the University upon thirty
(30) days prior written notice.
5.3 In the event that either party shall be in breach of its material obligations under
this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice
thereof, this Agreement may be terminated upon written notice at the option of the non-
breaching party upon the expiration of the thirty (30) day period.
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5.4 Termination of this Agreement shall not affect the rights and obligations of the
parties that accrued prior to the termination. Upon termination, the University shall pay the
Subcontractor for all reasonable expenses incurred or committed to be expended as of the
effective termination date.
ARTICLE 6: INDEPENDENT CONTRACTORS
6.1 The relationship between the University and the Subcontractor is that of
independent contractors. The parties are not joint venturers, partners, principal and agent,
master and servant, employer or employee, and have no other relationship other than
independent contracting parties. The parties shall have no power to bind or obligate the other
party in any manner, except as expressly provided in this Agreement or authorized in writing.
ARTICLE 7: REPORTS AND ACCESS TO RECORDS
7.1 The Subcontractor is responsible to the University for making the following
reports: (a) progress reports as required under terms of the award and as requested by the
Principal Investigator; (b) other reports required by the University [list reports]; and (c) all other
reports required by the Funding Agency and government regulation.
7.2 If requested by University, Subcontractor shall provide a copy of its most recent
audited financial statement/audit report.
7.3 The North Carolina State Auditor shall have access to Subcontractor's records
and reports in accordance with state law. The Subcontractor shall retain all records and reports
prepared or received in connection with this Agreement for a period of three (3) years following
completion of this Agreement.
ARTICLE 8: INSURANCE AND INDEMNIFICATION
8.1 Unless Subcontractor is an agency of the federal or any state government, during
the term of this Agreement, the Subcontractor shall, at its sole expense, obtain and maintain the
following commercial insurances: (a) workers' compensation insurance as required by the laws
of North Carolina, as well as employer's liability coverage with policy limits of $1,000,000; (b)
commercial general liability insurance with policy limits of $1,000,000; and, if applicable, (c)
automobile liability insurance for owned, hired, and non-owned commercial vehicles used in
connection with this Agreement with policy limits of $150,000 bodily injury and property damage
and $150,000 uninsured/under insured motorist.
8.2 Unless Subcontractor is an agency of the federal or any state government, the
Subcontractor shall indemnify, protect, defend, and hold harmless the University and its
trustees, officers, agents, employees, representatives, and assigns, and the University System
of North Carolina and its governors, officers, agents, employees, representatives, and assigns
from and against any and all claims, demands, suits, and causes of action and any and all
liabilities, costs, damages, expenses, and judgments incurred in connection therewith (including
but not limited to reasonable attorney's fees and court costs), whether arising in equity, at
common law or by statute, or under the law of contracts, torts or property, relating to or arising
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out of the acts or omissions of the Subcontractor or in connection with Subcontractor's
performance under this Agreement.
8.3 As an agency of the state of North Carolina, the University will be responsible for
the negligent conduct of its officers and employees arising out of the performance of this
Agreement to the extent permitted by the laws of North Carolina, including the North Carolina
Tort Claims Act, the Defense of State Employees Act, and the Excess Liability Policy
administered through the North Carolina Department of Insurance, subject to the availability of
appropriations and in proportion to and to the extent that such liability for damages is caused by
or results from the acts of the University, its officers or employees.
8.4 In the event Subcontractor is an agency of the federal or any state government,
nothing herein shall constitute a waiver of sovereign immunity or limits of governmental liability
that are set forth in applicable federal or state law. Subcontractor will be responsible for the
negligent conduct of its officers and employees arising out of the performance of this Agreement
to the extent permitted by applicable federal or state law.
ARTICLE 9: INCORPORATION OF PROVISIONS OF PRIME CONTRACT
9.1 All applicable provisions of the __________________ grant proposal between
the University and ___________________ (the "Prime Contract"), which is attached hereto and
incorporated herein by reference as Appendix "B", shall be binding upon the Subcontractor.
Further, Subcontractor agrees to comply with the requirements and standards of all OMB
Circulars applicable to this Agreement. With respect to applying terms and conditions found in
the Prime Contract to this Agreement, unless the context clearly indicates otherwise, the word
"recipient" shall refer to the University and the word "subcontractor" shall refer to Subcontractor.
It is the intent of the parties that this Agreement shall not contain anything inconsistent or to the
contrary with the Prime Contract.
ARTICLE 10: INTELLECTUAL PROPERTY
10.1 Copyrights. Unless otherwise agreed to, pursuant to 45 CFR Part 74, the author
of copyrightable materials may copyright any work that is subject to copyright and is developed
from work under this Agreement. Any such copyright works shall be subject to a royalty-free,
non-exclusive, and irrevocable license to the Funding Agency, federal government, and/or to the
University to reproduce, publish, or otherwise use for agency, government or University
purposes and to authorize others to do so. Any restrictive provisions of the Prime Contract are
applicable to the Subcontractor. All subcontracts or other arrangements entered into by
Subcontractor for the purpose of developing or procuring such works shall specifically reference
and reserve the rights of the Funding Agency, federal government, and/or the University with
respect to the copyright works. Subcontractor shall provide three (3) copies of all copyrightable
material upon the request of the Funding Agency, federal government, and/or the University.
10.2 Patents and Inventions. Each party shall retain title to each invention conceived
or reduced to practice as a result of the performance by each party of its respective work under
this Agreement and the Prime Contract, and in accordance with the subcontracting provisions of
35 USC 202-204, 37 CFR Part 401, and 45 CFR Parts 6 and 8. Subcontractor shall submit the
requisite invention reports to the University. Subcontractor shall ensure that this policy applies
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to all persons who perform any part of the work under this Agreement who may reasonably be
expected to make inventions hereunder.
ARTICLE 11: A-133 AUDITS
11.1 If the Subcontractor is subject to the audit requirements contained in OMB
Circular A-133, a copy of the reporting package as described in Section .320(c) and (e) must be
forwarded upon request to:
Michelle Hargis
Associate Dean, Graduate School and Research
Western Carolina University
109 Cordelia Camp Building
Cullowhee, NC 28723
Additionally, the Subcontractor shall provide the University with the above-requested information
throughout the performance of this Agreement. If the Subcontractor is not subject to A-133
audit requirements, the University may require submission of an independent accountant's
certification on the Subcontractor's financial status/internal control structure and/or the
completion of an internal control questionnaire/confirmation.
Upon review of the audit reports by the University, should the audit report of the
Subcontractor disclose instances of noncompliance, the Subcontractor shall have six (6) months
from the date or receipt of the audit to take appropriate corrective action and notify the
University of the action taken. Should this corrective action not be taken, the University will
undertake such action as deemed necessary and reasonable to bring about compliance. The
Subcontractor shall reimburse all costs incurred by the University to assure compliance.
ARTICLE 12: MISCELLANEOUS
12.1 Governing Law. This Agreement and the rights and obligations of the parties
hereunder shall in all respects be governed by the substantive law of the State of North
Carolina, including all matters of construction, validity and performance.
12.2 Assignment. Neither party may assign any of its rights or delegate any of its
obligations hereunder without first obtaining the prior written consent of the other party hereto.
This Agreement inures to the benefit of, and is binding upon, the successors and permitted
assigns of the parties hereto.
12.3 Confidential Information. The parties may disclose confidential information to
each other in connection with work contemplated by this Agreement. Each party will use
reasonable efforts to prevent the disclosure of the other party's confidential information to third
parties for a period of two (2) years following the termination of this Agreement, except that this
obligation shall not apply to information that: (a) is not disclosed in writing; (b) is already in the
recipient's possession at the time of disclosure; (c) is or later becomes part of the public domain
through no fault of the recipient party; (d) is received from a third party who has no obligation of
confidentiality; (e) is independently developed by the recipient party; or (f) is required to be
disclosed by law or regulation or upon the order of a court of competent jurisdiction.
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12.4 Compliance with Laws. The Subcontractor shall comply with all local, state, and
federal laws and regulations applicable to the conduct of its business and its performance under
this Agreement, including the laws and regulations listed on Appendix C, which is attached
hereto and incorporated herein by reference. Subcontractor agrees to execute and deliver any
and all required certificates evidencing compliance with applicable laws and regulations.
12.5 Publicity. Subcontractor agrees not to use the existence of this Agreement, the
name of the University or Principal Investigator, or the name of the State of North Carolina as
part of any commercial advertising.
12.6 Entire Agreement/Amendments. This Agreement contains the entire
understanding between the parties hereto and supersedes any and all prior agreements,
understandings, and arrangements between the parties relating to the subject matter hereof.
No amendment, change, modification or alteration of the terms and conditions hereof shall be
binding unless evidenced by a writing signed by the parties hereto.
12.7 Notices. All notices hereunder shall be in writing, personally delivered or sent by
certified mail, return receipt requested, addressed to the other party as follows, and shall be
effective as of the date of personal delivery or mailing:
If to the Subcontractor:
_________________________
_________________________
_________________________
If to the University:
Western Carolina University
Office of Research Administration
109 Cordelia Camp Building
Cullowhee, N.C. 28723
Attn: Wanda G. Ashe
12.8 Export Controls. The Subcontractor acknowledges that the University must
ensure that fundamental research is conducted in compliance with federal export control laws
and regulations. Toward this end, the University shall confirm that no embargos or other
restrictions apply with respect to the Subcontractor prior to Subcontractor’s performance under
this Agreement. This Agreement shall automatically terminate upon the confirmation by
University, at any time, of any embargo or other restriction applicable to Subcontractor.
[Signatures appear on the next page]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duty authorized representatives.
________________________________
SUBCONTRACTOR
By: ____________________________
Title: ___________________________
WESTERN CAROLINA UNIVERSITY
By: ____________________________
Title: Dean, Graduate School and Research
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Appendix A
SCOPE OF WORK
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Appendix B
PRIME CONTRACT
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Appendix C
COMPLIANCE WITH LAW AND REGULATIONS
This agreement shall be subject to all applicable Federal and State laws and regulations,
Funding Agency regulations and policies, any applicable orders of any government agency or
official, and the policies of the University. Subcontractor certifies and/or assures compliance
with all applicable laws and regulations, including but not limited to the following:
Patent Rights: Whenever any invention which is or may be patentable is conceived or first
actually reduced to practice in the course of this Agreement, the Subcontractor shall promptly
furnish University with complete information thereon, in order that University may carry out the
conditions of the prime grant/contract with the Funding Agency with regard to the filing of patent
applications and disposition of patent rights. This grant/contract is subject to the Funding
Agency's policies on patents and inventions, P. L. 96-517 (35 USC 203), and University Policy
#84.
Publication: Any publication by the Subcontractor resulting from work under this Agreement will
carry a footnote acknowledging assistance from the Funding Agency grant/contract held by
University and indicating that findings and conclusions do not necessarily represent views of the
Funding Agency or University. It is understood that decisions about authorship on all
publications resulting from research under this Agreement shall be made by mutual written
agreement between the Principal Investigator and key personnel of the Subcontractor prior to
such publication.
Review of Human Subjects in Research Projects: The Subcontractor assures that adequate
safeguards shall be taken whenever using human subjects in research and an institutional
review board composed of sufficient members with varying backgrounds to assure complete
and adequate review of projects involving the use of human subjects has reviewed and
approved the projects in advance and at least annually as required. Informed consent, where
appropriate, shall be obtained by methods consistent with Title 45 Code of Federal Regulations,
Part 46, Subpart A, "Protection of Human Subjects," and Section 46.107, "Special Assurances."
Care and Treatment of Laboratory Animals: The Subcontractor assures that whenever animals
are used in research, the Subcontractor shall comply with the applicable portions of the Animal
Welfare Act (P. L. 89-544 as amended) and shall follow the guidelines prescribed in National
Research Council Publication "Guide for the Care and Use of Laboratory Animals," National
Academy Press, 1996, as well as requirements governing laboratory animals of the U.S.
Department of Agriculture.
Nondiscrimination, Civil Rights, and Equal Employment Opportunity/Affirmative Action:
Subcontractor will comply with Title VI of the Civil Rights Act of 1964 and Executive Order
11246 and Title IX of the Education Amendments of 1972 (P. L. 92-318, 20 USC 1681-1686),
and all other federal nondiscrimination regulations. Subcontractor assures University that it has
a valid Assurance of Compliance on file with the DHHS, and if a contract is entered into, the
contract will include, by reference, paragraphs (1) through (7), Part 11, Subpart B, Section 202,
Executive Order 11246, and has filed all required nondiscrimination reports.
Grant-Related Income: The Subcontractor shall immediately report to University any income
received or anticipated which is generated by activities performed under this Agreement.
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University may then authorize the disposition of such income in accordance with options
designated by the Funding Agency.
Debt, Debarment, and Suspension: By execution of this Agreement, Subcontractor stipulates
that it is not delinquent on the repayment of any Federal debt; that it is in compliance with the
government-wide debarment, suspension, ineligibility, and voluntary exclusion regulations as
promulgated in the Federal Register dated May 26, 1988.
Misconduct in Science: The Subcontractor assures that it maintains an administrative review
process for dealing with and reporting possible misconduct in science and that it has an
assurance on file with the Office of Scientific Integrity, National Institutes of Health, DHHS, or, if
not, it agrees to be subject to the policies of University for dealing with and reporting possible
misconduct in science with respect to research supported through this Agreement.
Conflict of Interest: The Subcontractor assures that it maintains an administrative review
process for reporting and correcting possible conflicts of interest of all Subcontractor personnel.
Lobbying Restrictions: The Subcontractor assures that it is in compliance with the Government-
wide Guidance for New Restrictions on Lobbying as promulgated in the Federal Register dated
December 20, 1989. If this Subcontract exceeds $100,000 a certification, and a disclosure form
if required, shall be filed with University in accordance with Federal regulations.
Salary Limitation: None of the funds in this Agreement shall be used to pay the salary of an
individual through a grant or other extramural mechanism at a rate in excess of $125,000 per
year.
Equipment Accountability: Title to equipment purchased under this Agreement by the
Subcontractor shall be in the name of and vest with the Subcontractor, unless Funding Agency
regulations dictate otherwise, who shall assume responsibility for care and insurance of
equipment while in its possession. Purchase, inventory, accountability, and disposition of
equipment shall be in accordance with Funding Agency policy.
Drug Free Workplace: The University maintains a drug-free workplace. Individuals who
suspect they may have a drug or alcohol problem are encouraged to seek help through the
Employee Assistance Program before the problem affects their work performance or conduct.
Anyone reporting to work under the influence of alcohol or illegal drugs or using alcohol or illegal
drugs on the job may be dismissed without warning. In addition to disciplinary action by the
University, violation f the University’s drug-free policy may be cause for criminal prosecution by
government or law enforcement agencies.
Equal Employment Opportunity/Affirmative Action: Western Carolina University does not
practice or permit discrimination in employment on the basis of race, color, sex, sexual
orientation, national origin, religion, creed, age, veteran status or disability. The University has
adopted affirmative action plans that are a reaffirmation of its commitment to equality of
opportunity, for both moral and educational reasons.
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