80NSSC20Q0378 Attachment 2 Terms and Conditions.docx

TERMS AND CONDITIONS & APPLICABLE PROVISIONS, CLAUSES, REPRESENTATIONS AND CERTIFICATIONS All FAR and NFS FAR provisions and clauses for commercial service items apply to this contract. It is the responsibility of the contractor to be familiar with the applicable clauses and provisions. The clauses may be accessed in full text at these addresses: http://farsite.hill.af.mil/ and http://farsite.hill.af.mil/vmnasaa.HTM .

TERMS AND CONDITIONS

(1) PERFORMANCE PERIOD: This resultant contract will cover a Base Period of one (1) year, commencing on 1 May 2020.

(2) DELIVERY AND PERFORMANCE LOCATION: The following NASA Centers and Associated Facilities are hereby authorized to place orders under this Agreement:

Armstrong Flight Research Center (AFRC) Dryden Aircraft Operation Facility (DAOF) Ames Research Center (ARC) Glenn Research Center Main Campus (GRC) GRC – Plumbrook Facility Goddard Space Flight Center Main Campus (GSFC) GSFC – Wallops Flight Facility (WFF) GSFC – White Sands Complex (WSC) GSFC – Independent Verification and Validation Facility (IV&V) GSFC – Goddard Institute for Space Studies (GISS) Headquarters Main Campus (HQ) Jet Propulsion Laboratory (JPL) Johnson Space Center Main Campus (JSC) JSC – White Sands Test Facility (WSTF) JSC – El Paso Forward Operating Location JSC – White Sands Space Harbor Kennedy Space Center Main Campus (KSC) KSC – Vandenberg Air Force Base (VAFB) KSC – Transoceanic Abort Landing (TAL) Sites Langley Research Center (LaRC) Marshall Space Flight Center Main Campus (MSFC) MSFC – Michoud Assembly Facility (MAF) MSFC – National Space Science & Technology Center (NSSTC) NASA Shared Services Center (NSSC) Stennis Space Center (SSC)

(3) PAYMENT: All payments are due in accordance with the terms and conditions of this contract, which shall be stated on each invoice. Any discounts for prompt payment must be clearly stated on the face of the invoice. Contractors will be paid only for products/services delivered and NASA has determined all requirements have been met as ordered by a CO.

(4) NSSC TECHNICAL MONITORS: NF-1634 will be issued to specifically identify the NSSC Contracting Officers Representative (COR) and Alternate COR along with their authority as a COR.

(5) MODIFICATIONS: All requests for modification to this contract shall be provided to the NSSC Contracting Officer.

(6) APPLICABILITY TO THIS CONTRACT: To the extent that any of the various End User License Agreements (EULAs) conflict with this contract, such conflicts will be resolved in the following order of precedence: 1) Federal law, 2) the FAR, 3) this contract, 4) the NASA Enterprise License Management Team (ELMT) Rider to Manufacturer EULA, and 6) the Cullimore and Ring Technologies, Inc (C&R) and SpaceClaim EULA’s. This agreement may only be modified upon written consent of both parties.

(7) NASA DEFINITION OF ENTERPRISE: For the purposes of this contract, the Enterprise is defined as NASA, its employees, and authorized contractors and subcontractors that support NASA Centers and Associated Facilities in Section 1. Except as specifically agreed to in writing by the parties of this contract, other agencies and/or employees of the U.S. Government are specifically excluded from utilizing the C&R products and services under this agreement.

(8) TRANSFERABILITY: NASA retains the right to transfer licenses (and their associated support for any services purchased through this agreement) to any NASA Center or Associated Facility for the base year and subsequent option years that are exercised during the life of this contract provided proper notification is first received from the NASA Contracting Officer (CO). In the event of such transfers, the contractor shall include any transition or transfer costs to transfer the license/maintenance services support.

The contractor will ensure that all licenses issued under this agreement will be issued to NASA as the licensee. Additionally, existing NASA Site IDs will remain intact unless the license and/or support are transferred to another NASA Center or Associated Facility. For all new purchases, the contractor will create a new NASA Site ID with the details of the new NASA Site ID reported to the NSSC for tracking purposes

(9) CONTRACT MANAGEMENT: The contractor shall coordinate any assertion or allegation of contract misuse or violations involving NASA end users (Civil Servant, Contractor, or International Partners) no less than 90 days prior to seeking termination of the capability with the CO/Contracting Officer Representative (COR) for any product or services purchased through this contract. The contractor shall ensure all communication (written or otherwise) concerning new terms, ordering, and license compliance issues solely through the contractor to the NSSC CO and/or COR. Any notifications (written or otherwise) concerning software compliance or violations that are provided directly to any other NASA Center or Associated Facility will not be valid.

(10) INTERNET PROTOCOL VERSION SIX (IPv6) (not applicable): In accordance with FAR 11.002(g) and joint NASA Chief Information Officer (CIO) / NASA Associate Administrator for Procurement “Policies to Ensure IPv6 Compliance for Information Technology (IT) Purchases”, this acquisition requires all functionality, capabilities and features to be supported and operational in both a dual-stack IPv4/IPv6 environment and an IPv6 only environment. Furthermore, all management, user interfaces, configuration options, reports and other administrative capabilities that support IPv4 functionality will support comparable IPv6 functionality. Respondents are required to include in their response, either a letter declaring that no product in this acquisition is dependent on either IPv4 or IPv6 to function and does not apply, or include a letter of self-certification that their product has been tested in both a dual-stack IPv4/IPv6 and IPv6 only environment and meets this requirement. Agency reserves the right to require the respondent’s products to be tested within an agency or 3rd party test facility to show compliance with this requirement.

In addition, all interested parties responding to this acquisition are required to provide a Self Declaration of Conformance (SDOC) based on the USGv6 Profile and Testing Program in accordance with NIST SP 500-267, NIST SP-273, and NIST SP 500-281. Instructions for completing the SDOC can be found at the referenced IPv6 website: http://www-x.antd.nist.gov/usgv6/sdoc.html

(11) 508 COMPLIANCE (if applicable): The contractor must demonstrate that the products offered under this contract align to the Electronic and Information Technology Accessibility Standards (Section 508) in FAR 39.201 (a). Additional information is available at: http://www.section508.gov.

Typically, this is accomplished by PUBLISHER/Reseller providing Voluntary Product Accessibility Templates (VPATs) for the associated products. In the event that VPATs are not provided, the government must obtain a waiver following established NASA processes.

PUBLISHER/Reseller is required to assist NASA with providing the documentation supporting any such waiver request.

(12) ADDITIONAL LICENSE TERMS AND CONDITIONS: The contractor will be responsible for incorporating the appropriate licensing terms and conditions into this contract and will notify NASA in the event any of these terms are updated or revised by the contractor. However, before any such terms can be incorporated, these terms must first be specifically approved by the NASA Contracting Officer.

(13) DELIVERY SCHEDULE: The contractor is required to provide licenses and license support on the effective date of this Order, May 1, 2019.

(14) CONTRACTOR COMMUNICATIONS/OUTREACH: The Contractor shall coordinate with the NSSC to ensure the contract products and support are ordered, approved, and communicated to customers in a consistent manner. The Contractor shall coordinate all major Center and/or Agency outreach and contract management communications through the NSSC.

(15) LICENSE AND GRANTS: At the time NASA places an order for C&R products, the contractor shall execute an order for a C&R EULA specifying the license grant details, including the license type, unit of measure, delivery location as requested by NASA, and the units ordered. The contractor acknowledges that NASA and its users shall not be bound by the terms of “Click Wrap” licenses or other related end user terms in the C&R EULA to the extent such “Click Wrap” licenses or end user terms conflict with the terms of this contract.

(16) COST AVOIDANCE: The Contractor shall provide the Contracting Officer, or designated delegate, a fiscal year quarterly report, delivered in a commonly recognized and accepted electronic spreadsheet, such as .xlsx and .cvs formats, that provides an itemization of purchase orders, calls, and purchase card transactions that have occurred during that month’s timeframe. This report shall be delivered within 10 business days upon the end of each fiscal quarter. This report shall include the transaction/order date, part/mfg. number, product description, NASA Center/Mission, license start and end dates, quantity, commercial unit price, government unit price, NASA discounted price, and the extended price for each. A cost difference shall be calculated per line between commercial extended and NASA extended, as well as a cost difference between government extended and NASA extended price per line. A total summation of the difference for each will provide NASA a cost avoidance value for the quarter. For orders, calls or other transactions that have co-termed licenses to other than twelve (12) months, the unit pricing shall reflect the adjusted pro-rated co-termed values for unit prices. Other cost avoidance benefits directly tied to the software purchase, such as added services or software at no additional charge, shall also be included in this reporting.

(17) LIMITATION OF FUNDS: It is the Agency’s policy to fully fund all firm fixed price orders unless an incremental funding waiver is processed and approved prior to awarding the contract. However, at times, in the event of a continuing resolution and funds are not available to fully fund the contract, NFS

1852.232-77, Limitations of Funds—Fixed Price Contracts, would apply and would be incorporated into the contract by modification.

(18) COST AND FEES: Pursuant to the Anti-Deficiency Act, 31 U.S.C. 1341§ (a)(1)(B), the U.S. Government does not agree to pay any future costs or fees under the license agreement or this Contract. Any provision of the Licensing Terms obligating the U.S. Government to pay costs, fees, or damages, or to otherwise expend appropriations, are hereby inoperative and invalid unless imposed after following the Dispute Resolution Procedures identified hereunder. Any provisions of the Licensing Terms providing for automatic renewal absent some action by the U.S. Government is likewise inoperative and invalid.

(19) LIMITATIONS OF LIABILITY: Any limitations of liability in the license agreement is hereby inoperative and invalid and the following provision shall replace it and apply: Neither the Contractor nor an NASA ordering activity shall be liable for any indirect, incidental, special, or consequential damages, or any loss of profits, revenue, data, or data use. Further, neither the Contractor nor an NASA ordering activity shall be liable for punitive damages except to the extent this limitation is prohibited by applicable law. This clause shall not impair the U.S. Government’s right to recover for fraud or crimes arising out of or related to this Contract under any federal fraud statute, including the False Claims Act, 31 U.S.C. §§ 37299-3733.

(20) POINTS OF CONTACT: The following individuals have been designated as point of contact for administration of this contract:

Bruce Mcdonald Contracting Officer 228-813-6310 Bruce.T.Mcdonald@nasa.gov

Caitlin Poulton Procurement Specialist 228-813-6211 Caitlin.M.Poulton@nasa.gov

APPLICABLE CLAUSES

52.252-2 CLAUSES INCORPORATED BY REFERENCE (FEB 1998)

This agreement incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at this/these addresses:

FAR http://farsite.hill.af.mil/ NFS http://farsite.hill.af.mil/vmnasaa.HTM

The following shall apply to this contract in addition to those terms and conditions in FAR 52.212-4.

The specific paragraph of FAR 52.212-4 is tailored as below:

Paragraph (c) Changes: Changes in the terms and conditions of this contract may be made only by written agreement of the parties with the exceptions of administrative changes such as changes in paying office, appropriation date, typographical errors, etc. which may be changed unilaterally by the Government.

CLAUSES IN FULL TEXT:

1852.215-84 Ombudsman (NOV 2011)

(a) An ombudsman has been appointed to hear and facilitate the resolution of concerns from offerors, potential offerors, and contractors during the preaward and postaward phases of this acquisition. When requested, the ombudsman will maintain strict confidentiality as to the source of the concern. The existence of the ombudsman is not to diminish the authority of the contracting officer, the Source Evaluation Board, or the selection official. Further, the ombudsman does not participate in the evaluation of proposals, the source selection process, or the adjudication of formal contract disputes. Therefore, before consulting with an ombudsman, interested parties must first address their concerns, issues, disagreements, and/or recommendations to the contracting officer for resolution.

(b) If resolution cannot be made by the contracting officer, interested parties may contact the installation ombudsman, Mrs. Anita Harrell at 228-813-6809 or Mike Sweigert. Concerns, issues, disagreements, and recommendations which cannot be resolved at the installation may be referred to the Agency ombudsman identified at the above URL. Please do not contact the ombudsman to request copies of the solicitation, verify offer due date, or clarify technical requirements. Such inquiries shall be directed to the Contracting Officer or as specified elsewhere in this document.

(End of Clause)

1852.216-78 Firm Fixed Price (DEC 1988)

The total estimated value of this firm fixed price contract is $TBD.

(End of clause)

1852.223-72 Safety and Health (Short Form) (JUL 2015)

(a) Safety is the freedom from those conditions that can cause death, injury, occupational illness; damage to or loss of equipment or property, or damage to the environment. NASA is committed to protecting the safety and health of the public, our team members, and those assets that the Nation entrusts to the Agency.

(b) The Contractor shall have a documented, comprehensive and effective health and safety program with a proactive process to identify, assess, and control hazards and take all reasonable safety and occupational health measures consistent with standard industry practice in performing this contract.

(c) The Contractor shall insert the substance of this clause, including this paragraph (c) in subcontracts that exceed the simplified acquisition threshold where work will be conducted completely or partly on Federally-controlled facilities.

(End of Clause)

1852.232-80 Submission of Vouchers for Payment (APR 2018)

(a) The designated payment office is the NASA Shared Services Center (NSSC) located at FMD Accounts Payable, Bldg. 1111, Jerry Hlass Road, Stennis Space Center, MS 39529.

(b) Except for classified vouchers, the Contractor shall submit all vouchers and invoices using the steps described at NSSC’s Vendor Payment information web site at:

https://www.nssc.nasa.gov/vendorpayment

Please contact the NSSC Customer Contact Center at 1-877-NSSC123 (1-877-677-2123) with any additional questions or comments.

(c) Payment requests.

(1) The payment periods are stipulated in the payment clause(s) contained in this contract.

(2) Vouchers submitted under cost-type contracts and invoices submitted under fixed-price contracts shall include the items delineated in FAR 32.905(b) supported by relevant back-up documentation. Back-up documentation shall include at a minimum, the following information:

(i) Vouchers.

(A) Breakdown of billed labor costs and associated contractor generated supporting documentation for billed direct labor costs to include rates used and number of hours incurred.

(B) Breakdown of billed other direct costs (ODCs) and associated contractor generated supporting documentation for billed ODCs.

(C) Indirect rate(s) used to calculate the amount of billed indirect expenses.

(D) Progress reports, as required.

(ii) Invoices.

(A) Description of goods and services delivered as part of the contract’s terms and conditions, including the dates of delivery/performance.

(B) Progress reports, as required.

(C) Date goods and services were performed.

(iii) Fee vouchers.

(A) Listing of all provisionally-billed fee by period or date earned since contract award.

(B) A reconciliation of all billed and earned fee.

(C) A clear explanation of the fee calculations.]

(d) Non-electronic payment requests. The Contractor may submit a non-electronic voucher/ invoice using the steps for non-electronic payment requests described at https://www.nssc.nasa.gov/vendorpayment, when any of the following conditions are met:

(1) The Contracting Officer administering the contract for payment has determined, in writing, that electronic submission would be unduly burdensome to the Contractor.

(2) The contract includes provisions allowing the contractor to submit vouchers or invoices using the steps for non-electronic payment requests. In such instances the Contractor agrees to submit non-electronic payment requests using the method or methods specified in Section G of the contract.

(e) Improper vouchers/invoices. The NSSC Payment Office will notify the contractor of any apparent error, defect, or impropriety in a voucher/invoices within seven calendar days of receipt by the NSSC Payment Office. Inquiries regarding requests for payment should be directed to the NSSC as specified in paragraph (b) of this section.

(f) Other payment clauses. In addition to the requirements of this clause, the Contractor shall meet the requirements of the appropriate payment clauses in this contract when submitting payment requests.

(g) In the event that amounts are withheld from payment in accordance with provisions of this contract, a separate payment request for the amount withheld will be required before payment for that amount may be made.

(End of clause) 1852.237-73 Release of Sensitive Information (JUN 2005)

(a) As used in this clause, “sensitive information” refers to information, not currently in the public domain, that the Contractor has developed at private expense, that may embody trade secrets or commercial or financial information, and that may be sensitive or privileged.

(b) In accomplishing management activities and administrative functions, NASA relies heavily on the support of various service providers. To support NASA activities and functions, these service providers, as well as their subcontractors and their individual employees, may need access to sensitive information submitted by the Contractor under this contract. By submitting this proposal or performing this contract, the Contractor agrees that NASA may release to its service providers, their subcontractors, and their individual employees, sensitive information submitted during the course of this procurement, subject to the enumerated protections mandated by the clause at 1852.237-72, Access to Sensitive Information.

(c)(1) The Contractor shall identify any sensitive information submitted in support of this proposal or in performing this contract. For purposes of identifying sensitive information, the Contractor may, in addition to any other notice or legend otherwise required, use a notice similar to the following:

Mark the title page with the following legend:

This proposal or document includes sensitive information that NASA shall not disclose outside the Agency and its service providers that support management activities and administrative functions. To gain access to this sensitive information, a service provider’s contract must contain the clause at NFS 1852.237-72, Access to Sensitive Information. Consistent with this clause, the service provider shall not duplicate, use, or disclose the information in whole or in part for any purpose other than to perform the services specified in its contract. This restriction does not limit the Government's right to use this information if it is obtained from another source without restriction.

Mark each page of sensitive information the Contractor wishes to restrict with the following legend:

Use or disclosure of sensitive information contained on this page is subject to the restriction on the title page of this proposal or document.

(2) The Contracting Officer shall evaluate the facts supporting any claim that particular information is “sensitive.” This evaluation shall consider the time and resources necessary to protect the information in accordance with the detailed safeguards mandated by the clause at 1852.237-72, Access to Sensitive Information. However, unless the Contracting Officer decides, with the advice of Center counsel, that reasonable grounds exist to challenge the Contractor’s claim that particular information is sensitive, NASA and its service providers and their employees shall comply with all of the safeguards contained in paragraph (d) of this clause.

(d) To receive access to sensitive information needed to assist NASA in accomplishing management activities and administrative functions, the service provider must be operating under a contract that contains the clause at 1852.237-72, Access to Sensitive Information. This clause obligates the service provider to do the following:

(1) Comply with all specified procedures and obligations, including the Organizational Conflicts of Interest Avoidance Plan, which the contract has incorporated as a compliance document.

(2) Utilize any sensitive information coming into its possession only for the purpose of performing the services specified in its contract.

(3) Safeguard sensitive information coming into its possession from unauthorized use and disclosure.

(4) Allow access to sensitive information only to those employees that need it to perform services under its contract.

(5) Preclude access and disclosure of sensitive information to persons and entities outside of the service provider’s organization.

(6) Train employees who may require access to sensitive information about their obligations to utilize it only to perform the services specified in its contract and to safeguard it from unauthorized use and disclosure.

(7) Obtain a written affirmation from each employee that he/she has received and will comply with training on the authorized uses and mandatory protections of sensitive information needed in performing this contract.

(8) Administer a monitoring process to ensure that employees comply with all reasonable security procedures, report any breaches to the Contracting Officer, and implement any necessary corrective actions.

(e) When the service provider will have primary responsibility for operating an information technology system for NASA that contains sensitive information, the service provider’s contract shall include the clause at 1852.204-76, Security Requirements for Unclassified Information Technology Resources. The Security Requirements clause requires the service provider to implement an Information Technology Security Plan to protect information processed, stored, or transmitted from unauthorized access, alteration, disclosure, or use. Service provider personnel requiring privileged access or limited privileged access to these information technology systems are subject to screening using the standard National Agency Check (NAC) forms appropriate to the level of risk for adverse impact to NASA missions. The Contracting Officer may allow the service provider to conduct its own screening, provided the service provider employs substantially equivalent screening procedures.

(f) This clause does not affect NASA's responsibilities under the Freedom of Information Act.

(g) The Contractor shall insert this clause, including this paragraph (g), suitably modified to reflect the relationship of the parties, in all subcontracts that may require the furnishing of sensitive information.

52.212-5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders - Commercial Items (JAN 2018)

(a) The Contractor shall comply with the following Federal Acquisition Regulation (FAR) clauses, which are incorporated in this contract by reference, to implement provisions of law or Executive orders applicable to acquisitions of commercial items:

(1) 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (JAN 2017) (section 743 of Division E, Title VII, of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions)).

(2) 52.209-10, Prohibition on Contracting with Inverted Domestic Corporations (Nov 2015).

(3) 52.233-3, Protest After Award (AUG 1996) (31 U.S.C. 3553).

(4) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 2004) (Public Laws 108-77 and 108-78 (19 U.S.C. 3805 note)).

(b) The Contractor shall comply with the FAR clauses in this paragraph (b) that the Contracting Officer has indicated as being incorporated in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial items:

X (1) 52.203-6, Restrictions on Subcontractor Sales to the Government (Sept 2006), with Alternate I (Oct 1995) (41 U.S.C. 4704 and 10 U.S.C. 2402).

___ (2) 52.203-13, Contractor Code of Business Ethics and Conduct (Oct 2015) (41 U.S.C. 3509))

___ (3) 52.203-15, Whistleblower Protections under the American Recovery and Reinvestment Act of 2009 (June 2010) (Section 1553 of Pub. L. 111-5). (Applies to contracts funded by the American Recovery and Reinvestment Act of 2009.)

X (4) 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards (Oct 2016) (Pub. L. 109-282) (31 U.S.C. 6101 note).

___ (5) [Reserved]

X (6) 52.204-14, Service Contract Reporting Requirements (Oct 2016) (Pub. L. 111-117, section 743 of Div. C).

X (7) 52.204-15, Service Contract Reporting Requirements for Indefinite-Delivery Contracts (Oct 2016) (Pub. L. 111-117, section 743 of Div. C).

X (8) 52.209-6, Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment. (Oct 2015) (31 U.S.C. 6101 note).

X (9) 52.209-9, Updates of Publicly Available Information Regarding Responsibility Matters (Jul 2013) (41 U.S.C. 2313).

___ (10) [Reserved].

___ (11) 52.219-3, Notice of HUBZone Set-Aside or Sole-Source Award (Nov 2011) (15 U.S.C. 657a).

___ (ii) Alternate I (Nov 2011) of 52.219-3.

X (12) (i) 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns (OCT 2014) (if the offeror elects to waive the preference, it shall so indicate in its offer) (15 U.S.C. 657a).

___ (ii) Alternate I (JAN 2011) of 52.219-4.

___ (13) [Reserved]

___ (14) (i) 52.219-6, Notice of Total Small Business Aside (Nov 2011) (15 U.S.C. 644).

___ (ii) Alternate I (Nov 2011).

___ (iii) Alternate II (Nov 2011).

___ (15) (i) 52.219-7, Notice of Partial Small Business Set-Aside (June 2003) (15 U.S.C. 644).

___ (ii) Alternate I (Oct 1995) of 52.219-7.

___ (iii) Alternate II (Mar 2004) of 52.219-7.

X (16) 52.219-8, Utilization of Small Business Concerns (Nov 2016) (15 U.S.C. 637(d)(2)and (3)).

___ (17) (i) 52.219-9, Small Business Subcontracting Plan (Jan 2017) (15 U.S.C. 637(d)(4)).

___ (ii) Alternate I (Nov 2016) of 52.219-9.

___ (iii) Alternate II (Nov 2016) of 52.219-9.

___ (iv) Alternate III (Nov 2016) of 52.219-9.

___ (v) Alternate IV (Nov 2016) of 52.219-9.

___ (18) 52.219-13, Notice of Set-Aside of Orders (Nov 2011) (15 U.S.C. 644(r)).

X (19) 52.219-14, Limitations on Subcontracting (Jan 2017) (15 U.S.C. 637(a)(14)).

___ (20) 52.219-16, Liquidated Damages—Subcontracting Plan (Jan 1999) (15 U.S.C. 637(d)(4)(F)(i)).

___ (21) 52.219-27, Notice of Service-Disabled Veteran-Owned Small Business Set-Aside (Nov 2011) (15 U.S.C. 657 f).

X (22) 52.219-28, Post Award Small Business Program Rerepresentation (Jul 2013) (15 U.S.C. 632(a)(2)).

____ (ii) Alternate I (MAR 2020) of 52.219-28

___ (23) 52.219-29, Notice of Set-Aside for, or Sole Source Award to, Economically Disadvantaged Women-Owned Small Business Concerns (Dec 2015) (15 U.S.C. 637(m)).

___ (24) 52.219-30, Notice of Set-Aside for, or Sole Source Award to, Women-Owned Small Business Concerns Eligible Under the Women-Owned Small Business Program (Dec 2015) (15 U.S.C. 637(m)).

X (25) 52.222-3, Convict Labor (June 2003) (E.O. 11755).

X (26) 52.222-19, Child Labor. Cooperation with Authorities and Remedies (Oct 2016) (E.O. 13126).

X (27) 52.222-21, Prohibition of Segregated Facilities (Apr 2015).

X (28) 52.222-26, Equal Opportunity (Sept 2016) (E.O. 11246).

____ (ii) Alternate I (Feb 1999) of 52.222-26.

X (29) 52.222-35, Equal Opportunity for Veterans (Oct 2015) (38 U.S.C. 4212).

____ (ii) Alternate I (July 2014) of 52.222-35.

X (30) 52.222-36, Equal Opportunity for Workers with Disabilities (Jul 2014) (29 U.S.C. 793).

____ (ii) Alternate I (July 2014) of 52.222-36.

X (31) 52.222-37, Employment Reports on Veterans (FEB 2016) (38 U.S.C. 4212).

X (32) 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (Dec 2010) (E.O. 13496).

X (33) (i) 52.222-50, Combating Trafficking in Persons (Mar 2015) (22 U.S.C. chapter 78 and E.O. 13627).

____ (ii) Alternate I (Mar 2015) of 52.222-50 (22 U.S.C. chapter 78 and E.O. 13627).

X (34) 52.222-54, Employment Eligibility Verification (OCT 2015). (Executive Order 12989). (Not applicable to the acquisition of commercially available off-the-shelf items or certain other types of commercial items as prescribed in 22.1803.)

X (35) (i) 52.223-9, Estimate of Percentage of Recovered Material Content for EPA–Designated Items (May 2008) (42 U.S.C. 6962(c)(3)(A)(ii)). (Not applicable to the acquisition of commercially available off-the-shelf items.)

____ (ii) Alternate I (May 2008) of 52.223-9 (42 U.S.C. 6962(i)(2)(C)). (Not applicable to the acquisition of commercially available off-the-shelf items.)

____ (36) 52.223-11, Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons (JUN 2016) (E.O. 13693).

____ (37) 52.223-12, Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners (JUN 2016) (E.O. 13693).

____ (ii) Alternate I (May 2008) of 52.223-9 (42 U.S.C. 6962(i)(2)(C)). (Not applicable to the acquisition of commercially available off-the-shelf items.)

____ (38) (i) 52.223-13, Acquisition of EPEAT®-Registered Imaging Equipment (JUN 2014) (E.O.s 13423 and 13514).

___ (ii) Alternate I (Oct 2015) of 52.223-13.

____ (39) (i) 52.223-14, Acquisition of EPEAT®-Registered Televisions (JUN 2014) (E.O.s 13423 and 13514).

____ (ii) Alternate I (Jun 2014) of 52.223-14.

____ (40) 52.223-15, Energy Efficiency in Energy-Consuming Products (DEC 2007) (42 U.S.C. 8259b).

____ (41) (i) 52.223-16, Acquisition of EPEAT®-Registered Personal Computer Products (OCT 2015) (E.O.s 13423 and 13514).

___ (ii) Alternate I (Jun 2014) of 52.223-16.

X (42) 52.223-18, Encouraging Contractor Policies to Ban Text Messaging While Driving (AUG 2011) (E.O. 13513).

____ (43) 52.223-20, Aerosols (JUN 2016) (E.O. 13693).

____ (44) 52.223-21, Foams (JUN 2016) (E.O. 13693).

____ (45) (i) 52.224-3, Privacy Training (JAN 2017) (5 U.S.C. 552a).

____ (ii) Alternate I (JAN 2017) of 52.224-3.

____ (46) 52.225-1, Buy American. Supplies (May 2014) (41 U.S.C. chapter 83).

____ (47) (i) 52.225-3, Buy American. Free Trade Agreements. Israeli Trade Act (May 2014) (41 U.S.C. chapter 83, 19 U.S.C. 3301 note, 19 U.S.C. 2112 note, 19 U.S.C. 3805 note, 19 U.S.C. 4001note, Pub. L. 103-182, 108-77, 108-78, 108-286, 108-302, 109-53, 109-169, 109-283, 110-138, 112-41, 112-42, and 112-43.

___ (ii) Alternate I (May 2014) of 52.225-3.

___ (iii) Alternate II (May 2014) of 52.225-3.

___ (iv) Alternate III (May 2014) of 52.225-3.

____ (48) 52.225-5, Trade Agreements (OCT 2016) (19 U.S.C. 2501, et seq., 19 U.S.C. 3301note).

X (49) 52.225-13, Restrictions on Certain Foreign Purchases (June 2008) (E.O.’s, proclamations, and statutes administered by the Office of Foreign Assets Control of the Department of the Treasury).

____ (50) 52.225-26, Contractors Performing Private Security Functions Outside the United States (Oct 2016) (Section 862, as amended, of the National Defense Authorization Act for Fiscal Year 2008; 10 U.S.C. 2302 Note).

____ (51) 52.226-4, Notice of Disaster or Emergency Area Set-Aside (Nov 2007) (42 U.S.C. 5150).

____ (52) 52.226-5, Restrictions on Subcontracting Outside Disaster or Emergency Area (Nov 2007) (42 U.S.C. 5150).

____ (53) 52.232-29, Terms for Financing of Purchases of Commercial Items (Feb 2002) (41 U.S.C. 4505, 10 U.S.C. 2307(f)).

____ (54) 52.232-30, Installment Payments for Commercial Items (Jan 2017) (41 U.S.C. 4505, 10 U.S.C. 2307(f)).

X (55) 52.232-33, Payment by Electronic Funds Transfer. System for Award Management (Jul 2013) (31 U.S.C. 3332).

X (56) 52.232-34, Payment by Electronic Funds Transfer. Other than System for Award Management (Jul 2013) (31 U.S.C. 3332).

____ (57) 52.232-36, Payment by Third Party (May 2014) (31 U.S.C. 3332).

____ (58) 52.239-1, Privacy or Security Safeguards (Aug 1996) (5 U.S.C. 552a).

____ (59) 52.242-5, Payments to Small Business Subcontractors (JAN 2017) (15 U.S.C. 637(d)(12)).

____ (60)(i) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (Feb 2006) (46 U.S.C. Appx. 1241(b) and 10 U.S.C. 2631).

____ (ii) Alternate I (Apr 2003) of 52.247-64.

(c) The Contractor shall comply with the FAR clauses in this paragraph (c), applicable to commercial services, that the Contracting Officer has indicated as being incorporated in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial items:

(1) 52.222-17, Nondisplacement of Qualified Workers (May 2014)(E.O. 13495).

(2) 52.222-41, Service Contract Labor Standards (May 2014) (41 U.S.C. chapter 67).

(3) 52.222-42, Statement of Equivalent Rates for Federal Hires (May 2014) (29 U.S.C. 206 and 41 U.S.C. chapter 67).

(4) 52.222-43, Fair Labor Standards Act and Service Contract Labor Standards-Price Adjustment (Multiple Year and Option Contracts) (May 2014) (29 U.S.C. 206 and 41 U.S.C. chapter 67).

(5) 52.222-44, Fair Labor Standards Act and Service Contract Labor Standards. Price Adjustment (May 2014) (29 U.S.C. 206 and 41 U.S.C. chapter 67).

(6) 52.222-51, Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment. Requirements (May 2014) (41 U.S.C. chapter 67).

(7) 52.222-53, Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services. Requirements (May 2014) (41 U.S.C. chapter 67).

(8) 52.222-55, Minimum Wages Under Executive Order 13658 (Dec 2015).

____ (9) 52.222-62, Paid Sick Leave Under Executive Order 13706 (JAN 2017) (E.O. 13706).

____ (10) 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations (May 2014) (42 U.S.C. 1792).

____ (11) 52.237-11, Accepting and Dispensing of $1 Coin (Sept 2008) (31 U.S.C. 5112(p)(1)).

(d) Comptroller General Examination of Record The Contractor shall comply with the provisions of this paragraph (d) if this contract was awarded using other than sealed bid, is in excess of the simplified acquisition threshold, and does not contain the clause at 52.215-2, Audit and Records -- Negotiation.

(1) The Comptroller General of the United States, or an authorized representative of the Comptroller General, shall have access to and right to examine any of the Contractor’s directly pertinent records involving transactions related to this contract.

(2) The Contractor shall make available at its offices at all reasonable times the records, materials, and other evidence for examination, audit, or reproduction, until 3 years after final payment under this contract or for any shorter period specified in FAR Subpart 4.7, Contractor Records Retention, of the other clauses of this contract. If this contract is completely or partially terminated, the records relating to the work terminated shall be made available for 3 years after any resulting final termination settlement. Records relating to appeals under the disputes clause or to litigation or the settlement of claims arising under or relating to this contract shall be made available until such appeals, litigation, or claims are finally resolved.

(3) As used in this clause, records include books, documents, accounting procedures and practices, and other data, regardless of type and regardless of form. This does not require the Contractor to create or maintain any record that the Contractor does not maintain in the ordinary course of business or pursuant to a provision of law.

(e)

(1) Notwithstanding the requirements of the clauses in paragraphs (a), (b), (c) and (d) of this clause, the Contractor is not required to flow down any FAR clause, other than those in this paragraph (e)(1) in a subcontract for commercial items. Unless otherwise indicated below, the extent of the flow down shall be as required by the clause—

(i) 52.203-13, Contractor Code of Business Ethics and Conduct (Oct 2015) (41 U.S.C. 3509).

(ii) 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (Jan 2017) (section 743 of Division E, Title VII, of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions)).

(iii) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and Other Covered Entities (Jul 2018) (Section 1634 of Pub. L. 115-91).

(iv) 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (AUG 2019) (Section 889(a)(1)(A) of Pub. L. 115-232).

(v) 52.219-8, Utilization of Small Business Concerns (Oct 2018) (15 U.S.C. 637(d)(2) and (3)), in all subcontracts that offer further subcontracting opportunities. If the subcontract (except subcontracts to small business concerns) exceeds $700,000 ($1.5 million for construction of any public facility), the subcontractor must include 52.219-8 in lower tier subcontracts that offer subcontracting opportunities.

(vi) 52.222-17, Nondisplacement of Qualified Workers (May 2014) (E.O. 13495). Flow down required in accordance with paragraph (1) of FAR clause 52.222-17.

(vii) 52.222-21, Prohibition of Segregated Facilities (Apr 2015).

(viii) 52.222-26, Equal Opportunity (Sep 2015) (E.O. 11246).

(ix) 52.222-35, Equal Opportunity for Veterans (Oct 2015) (38 U.S.C. 4212).

(x) 52.222-36, Equal Opportunity for Workers with Disabilities (Jul 2014) (29 U.S.C. 793).

(xi) 52.222-37, Employment Reports on Veterans (Feb 2016) (38 U.S.C. 4212).

(xii) 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (Dec 2010) (E.O. 13496). Flow down required in accordance with paragraph (f) of FAR clause 52.222-40.

(xiii) 52.222-41, Service Contract Labor Standards (Aug 2018), (41 U.S.C. chapter 67).

(xiv) (A) 52.222-50, Combating Trafficking in Persons (Jan 2019) (22 U.S.C. chapter 78 and E.O. 13627).

(B) Alternate I (Mar 2015) of 52.222-50 (22 U.S.C. chapter 78 E.O. 13627).

(xv) 52.222-51, Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment--Requirements (May 2014) (41 U.S.C. chapter 67.)

(xvi) 52.222-53, Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services--Requirements (May 2014) (41 U.S.C. chapter 67)

(xvii) 52.222-54, Employment Eligibility Verification (Oct 2015) (E. O. 12989).

(xviii) 52.222-55, Minimum Wages Under Executive Order 13658 (Dec 2015).

(xix) 52.222-62, Paid sick Leave Under Executive Order 13706 (JAN 2017) (E.O. 13706).

(xx) (A) 52.224-3, Privacy Training (Jan 2017) (5 U.S.C. 552a).

(B) Alternate I (Jan 2017) of 52.224-3.

(xxi) 52.225-26, Contractors Performing Private Security Functions Outside the United States (Oct 2016) (Section 862, as amended, of the National Defense Authorization Act for Fiscal Year 2008; 10 U.S.C. 2302 Note).

(xxii) 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations. (May 2014) (42 U.S.C. 1792). Flow down required in accordance with paragraph (e) of FAR clause 52.226-6.

(xxiii) 52.247-64, Preference for Privately-Owned U.S. Flag Commercial Vessels (Feb 2006) (46 U.S.C. Appx 1241(b) and 10 U.S.C. 2631). Flow down required in accordance with paragraph (d) of FAR clause 52.247-64.

(2) While not required, the Contractor may include in its subcontracts for commercial items a minimal number of additional clauses necessary to satisfy its contractual obligations.

52.217-8 Option to Extend Services (NOV 1999)

The Government may require continued performance of any services within the limits and at the rates specified in the contract. These rates may be adjusted only as a result of revisions to prevailing labor rates provided by the Secretary of Labor. The option provision may be exercised more than once, but the total extension of performance hereunder shall not exceed 6 months. The Contracting Officer may exercise the option by written notice to the Contractor within 60 days.

52.232-40 Providing Accelerated Payment to Small Business Subcontractors (DEC 2013)

(a) Upon receipt of accelerated payments from the Government, the Contractor shall make accelerated payments to its small business subcontractors under this contract, to the maximum extent practicable and prior to when such payment is otherwise required under the applicable contract or subcontract, after receipt of a proper invoice and all other required documentation from the small business subcontractor.

(b) The acceleration of payments under this clause does not provide any new rights under the Prompt Payment Act.

(c) Include the substance of this clause, including this paragraph (c), in all subcontracts with small business concerns, including subcontracts with small business concerns for the acquisition of commercial items.

RIDER TO MANUFACTURER END USER LICENSE AGREEMENTS (FOR NASA END USERS-CIVIL SERVANTS AND CONTRACTORS)

(a) Scope. This NASA Rider establishes the terms and conditions enabling NASA and the associated Centers/Facilities (the "Client" or “Licensee”) to receive Software and Services.

(b) Contract Formation. Subject to FAR Sections 1.601(a) and 43.102, all Government Orders must be signed by a duly warranted contracting officer. The same requirement applies to modifications affecting the rights of the parties. All terms and conditions intended to obligate the Government must be included within the order signed by the Government.

(c) Consent to Government Law / Consent to Jurisdiction. Subject to the Contracts Disputes Act of 1978 (41.U.S.C §§ 7101-7109) and the Federal Tort Claims Act (28 U.S.C. §1346(b)). The validity, interpretation and enforcement of this Rider will be governed by and construed in accordance with the laws of the United States. In the event the Uniform Computer Information Transactions Act (UCITA) or any related Federal law or regulation is enacted, to the extent allowed by law, it will not apply to this Agreement, and the governing law will remain unchanged. All clauses in the Licensor EULA referencing equitable remedies are deemed not applicable to the Government order and will be deleted.

(d) Force Majeure. Subject to FAR 52.212 -4 (f) Excusable delays. Unilateral Termination by the Contractor does not apply to a Government order and all clauses in the Licensor EULA referencing unilateral termination rights of the Manufacturer are hereby deleted. This clause violates the contract formation rules of FAR 1.601(a) and

43.102. This allows the vendor to introduce unacceptable terms in the future and removes the Government's ability to control what terms it is bound by.

(e) Assignment. All clauses regarding Assignment are subject to FAR Clause 52.212- 4(b), and FAR 42.12 Novation and Change-of-Name Agreements, and all clauses governing Assignment in the Licensor EULA are hereby deleted.

(f) Waiver of Jury Trial. All clauses referencing waiver of Jury Trial are subject to FAR Clause 52.212-4(d), and all clauses governing waiver of jury trial in the Licensor’s EULA are hereby deleted.

(g) Customer Indemnities. All Licensor EULA clauses referencing Customer Indemnities are hereby deleted. The government cannot commit to indemnify the vendor for various things. This is an obligation in advance of an appropriation that violates anti-deficiency laws (31 USC 1341 and 41 USC 6301), because it commits the Government to pay an unknown amount at an unknown future time. The violation occurs when the commitment is made, i.e., when the agreement featuring

80NSSC20Q0378

this clause is incorporated into a Government contract, and not when the clause is triggered.

(h) Contractor Indemnities. All Licensor EULA clauses that (1) violate DOJ’s right under 28 U.S.C. 516 to represent the Government in any case and/or (2) require that the Government give sole control over the litigation and/or settlement, are hereby deleted.

(i) Renewals. All Licensor EULA clauses that violate the Anti-Deficiency Act’s (31 U.S.C. 1341, 41 U.S.C.11) ban on automatic renewal are hereby deleted.

(j) Future Fees or Penalties. All Licensor clauses that violate the Anti-Deficiency Act (31 U.S.C.1341, 41 U.S.C. 11), that prohibits the Government from paying any fees or penalties beyond the Contract amount, unless specifically authorized by existing statutes, such as the Prompt Payment Act, or Equal Access To Justice Act 31 U.S.C. 3901, 5 U.S.C. 504 are hereby deleted. The Government should pay only the awarded contract price; any change to the contract price requires the contracting officer's approval and, specifically in Schedule contracts, is further limited as to frequency and amount. Applicable federal travel regulations govern travel costs. Late payment interest is governed by the Prompt Payment Act (31 USC 3901 et seq) and Treasury regulations at 5 CFR 1315. Attorney fees are available only under limited circumstances to certain small business claimants as set forth in the Equal Access to Justice Act (5 USC 504).

(k) Taxes. Taxes are subject to FAR 52.212-4(k), which provides that the contract price includes all Federal, state, local taxes and duties.

(l) Dispute Resolution and Venue. Any disputes relating to the Licensor EULA and to this Rider shall be resolved in accordance with the FAR, and Contract Disputes Act, 41 U.S.C. §§ 7101-7109. NASA acknowledges that the Licensor, shall have standing to bring such claim under the Contract Disputes Act.

(m) Limitation of Liability: 52.212-4(p) is hereby replaced with the following The Licensor and NASA shall not be liable for any indirect, incidental, special, or consequential damages, or any loss of profits, revenue, data, or data use. Further, the Licensor and NASA shall not be liable for punitive damages except to the extent this limitation is prohibited by applicable Federal law. This clause shall not impair the U.S. Government’s right to recover for fraud or crimes arising out of or related to this Government Contract under any Federal fraud statute, including the False Claims Act, 31 U.S.C. §§ 3729- 3733.

(n) Advertisements and Endorsements. Unless specifically authorized by NASA in writing, use of the name or logo of any U.S. Government entity is prohibited.

(o) Public Access to Information. The Licensor agrees that the EULA and this Rider contain no confidential or proprietary information and acknowledges the EULA and this Rider will be available to the public.

(p) Confidentiality. Any provisions that require the Licensee to keep certain information confidential are subject to the Freedom of Information Act, 5 U.S.C. §552, and any order by a United States Federal Court.

Any Software License Agreement (SLA), End Use License…