Attachment B - ITPO Rider.pdf

NASA Information Technology Procurement Office (ITPO) Rider to Manufacturer End User License Agreements (for NASA End Users-Civil Servants and Contractors)

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

2. Applicability. The terms and conditions in the attached Value Added Reseller (VAR) or Manufacturer End User License Agreement (EULA) are hereby incorporated by reference into this agreement to the extent that they are consistent with Federal Law (e.g., the Anti- Deficiency Act (31 U.S.C. § 1341(a)(1)(B)), the Contracts Disputes Act of 1978 (41.

U.S.C. § 7101-7109), the Prompt Payment Act, the Anti-Assignment statutes (31 U.S.C. § 3727 and 41 § U.S.C. 15), 28 U.S.C. § 516 (Conduct of Litigation Reserved to Department of Justice (DOJ), and 28 U.S.C. § 1498 (Patent and copyright cases)). To the extent the terms and conditions in the VAR or the Manufacturer's EULA are inconsistent with the Federal Law (See FAR 12.212(a) for Software), they shall be unenforceable. The Government cannot accept the terms or conditions for Software, Hardware, or Services that are inconsistent with the Government’s statutory rights per Federal Laws and Regulations.

(a) Contracting Parties. NASA (licensee) is the government customer. The Licensee will not be an individual acting in a “personal” vice “official” capacity. Either the Value Added Reseller “VAR” or the Manufacturer can be the Licensor. Conversely, the contracted Licensor will be a single entity. In cases where the government has secured an agreement for a particular manufactured product through a "VAR," the VAR will act on behalf of the manufacturer in that the manufacturer will not have Privity of contract with the government; however, in cases where the government has secured an agreement directly with the manufacturer (thus establishing privity), reference in this rider to VARs will not be applicable.

(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) Audit. Neither the Contractor nor the Publisher will consider any historical records of registration or activity prior to the start date of this agreement defined in Section 2 of this Exhibit eligible for use in an audit. During the term of this Agreement, if notice of audit is communicated under direction in Section 12 of this Exhibit: (a) If NASA's security requirements are met, the Licensor or its designated agent may audit NASA's Centers and associated facilities and records to verify NASA's compliance with this Agreement. Any such audit will take place only during the Ordering Activity's normal business hours contingent upon prior written notice that is specified in the resultant NASA solicitation (adherent to any security measures that NASA deems appropriate, including any requirements for personnel to be cleared

ATTACHMENT B

prior to accessing sensitive facilities). The Licensor will give NASA, through the Contractor, written notice of any non-compliance, including the number of underreported Units of Hardware, Software or Services ("Notice"); or (b) If NASA’s security requirements are not met and upon Licensor's request through the Contractor, NASA may provide supporting documentation in lieu of the Contractor conducting an audit on behalf of the Licensor to demonstrate compliance with this Agreement.

(d) Termination. Clauses in the Licensor EULA referencing termination or cancellation of the contract the Licensor’s EULA are hereby deleted. References to such clauses are inconsistent with FAR 52.233-1, which requires the contractor to submit a claim to the contracting officer if it believes the Government to be in breach, and to continue performance during the pendency of the claim. In commercial item contracts, the FAR also specifies the procedures for Government termination for breach or convenience. Under FAR 12.302(b), the FAR provisions dealing with dispute and continued performance cannot be changed by the contracting officer. Termination shall be governed by FAR 52.212-4 and the Contract Disputes Act, 41 U.S.C. §§ 7101-7109, subject to the following exceptions:

The Licensor (if applicable) may request cancellation or termination of the License Agreement on behalf of the Manufacturer if such remedy is granted after conclusion of the Contracts Disputes Act process referenced in Section (p) below or if such remedy is otherwise ordered by a United States Federal Court.

(e) 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.

(f) 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.

(g) 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.

(h) 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.

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

(j) 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.

(k) 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.

(l) 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).

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

(n) Installation and Use of the Hardware of Software. Installation and use of the hardware or software shall be in accordance with this Rider and Licensor EULA.

(o) 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.

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

(q) 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.

(r) 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 Agreement (EULA), Terms of Service (TOS), Hardware Agreements or similar legal instrument or agreement which contains any of the below provisions are deemed to be stricken from the EULA, TOS, or similar legal instrument or agreement, under the terms and conditions of any orders for ITPO unique Contract Line Item Numbers (CLINs).

a. Any provision that violates the Government’s sovereign immunity.

b. Any provision essentially stating that the license agreement constitutes the entire agreement between the licensee and licensor, that the license agreement is a final expression of the agreement between the parties, or that the license agreement supersedes all prior agreements between the parties (including all oral and written proposals). The terms and conditions and FAR clauses of this contract govern and shall not be superseded by any licensing agreement.

c. Any provision that permits the licensor the right to seek injunctive relief against the Government’s breach of an agreement which is in violation of the Disputes provision under FAR Clause 52.212-4(d).

d. Any provision that limit certain rights already granted to a licensee under U.S. Copyright law, and/or includes a claim to copyright information that cannot be copyrighted under the law.

e. Any provision restricting the release of information held in the Government’s possession without an exemption for disclosures “required by law or regulation”.

52.212-4(s)(4) is deleted in its entirety and hereby replaced with the following:

(4) Addenda to this solicitation or contract, including any license agreements for computer software. The Additional Terms & Conditions and RIDER shall supersede any license or hardware agreements.