J-1 FDIC Rider March 2025.pdf

FDIC RIDER

This Rider (“Amendment”) to the Commercial Supplier Agreement (“CSA”), dated, shall be appended to and incorporated into the purchase agreement or order associated with Contract between the Federal Deposit Insurance Corporation (“FDIC”) and , for (the “Contract”).

A. Definition:

Commercial supplier agreement/s” means terms and conditions customarily offered to the public by vendors of supplies or services and intended to create a binding legal obligation on the end user, such as, but not exclusively, those used in information technology acquisitions, including acquisitions of commercial computer software and commercial technical data.

Such agreements may be referred to as Terms of Service (TOS), End User License Agreement (EULA) or another similar legal instrument or agreement and may be presented as a part of a proposal or quotation responding to a solicitation for contract or order. The term applies, regardless of the format or style of the document, whether in paper or electronic form.

B. WHEREAS, the parties desire to amend the CSA to revise certain provisions to comply with Federal law and FDIC requirements; the Parties agree that the CSA is amended, and the affected provisions thereof superseded by this FDIC Rider, as follows:

1) Contract Formation. All terms intended to bind the FDIC must be included in static text form within the contract signed by the FDIC. Neither the FDIC nor any authorized end user shall be deemed to have agreed to any terms in the commercial supplier agreement or any terms of any associated third-party agreement by a click box or other comparable mechanism (e.g., “click-wrap” or "browse-wrap" agreements) and such purported execution does not bind the FDIC or an authorized end user and is null and void.

2) Authorization. By executing the Contract, Contractor represents that it is duly authorized to enter into the Contract, including any amendments to the commercial supplier agreement as incorporated into the contract.

3) Venue. Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable Federal law is hereby deleted.

4) Limitations on Actions. Any language prescribing a different time period for bringing an action than that prescribed by applicable Federal law in relation to a dispute is hereby deleted.

5) Arbitration; equitable or injunctive relief. In the event of a claim or dispute arising under or relating to this agreement, binding arbitration shall not be used unless specifically authorized by a FDIC guidance, and equitable or injunctive relief, including award of attorney fees, costs or interest, may be awarded against FDIC only when explicitly provided by statute

(e.g. Prompt Payment Act). Any terms in the commercial supplier agreement requiring that disputes be submitted to arbitration or that claims the supplier has the right to injunctive relief, attorney fees, costs or interest is null and void and shall not be enforceable against the Government.

6) Updating Terms. After award the contractor may unilaterally revise terms if they are not material. A material change is defined as: (A) Terms that significantly change Government’s rights or obligations; and (B) Terms that increase Government prices; (C) Terms that decrease overall level of service; or (D) Terms that limit any other Government right addressed elsewhere in this contract. For revisions that will materially change the terms of the contract, the revised commercial supplier agreement must be incorporated into the contract using a bilateral modification. Any terms or conditions unilaterally revised subsequent to award that are inconsistent with any material term or provision of this contract shall not be enforceable against the Government, and the Government shall not be deemed to have consented to them.

7) Representation. Any language requiring the commercial supplier or licensor to defend or indemnify the end user is hereby amended to provide that the U.S. Department of Justice has the sole right to represent the United States in any such action, in accordance with 28 U.S.C. § 516 or FDIC under 12 U.S.C. § 1819, unless otherwise provided by Federal law.

8) Warranties and Disclaimers. FDIC will accept the contractor’s commercial warranty, but does not accept a disclaimer of the implied warranty that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.

Additionally, FDIC does not accept a disclaimer of any warranties expressly provided for in the Contract.

9) Limitation of Liability. All limitations of liability accepted by FDIC shall only apply to claims based on contract and any limitations related to tort or other causes of action shall not apply and shall be null and void and unenforceable against the government.

Notwithstanding anything to the contrary in the commercial supplier agreement, nothing in the contract or the commercial supplier agreement shall 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 but not necessarily limited to the False Claims Act, 31 U.S.C. §§ 3729-3733.

10) Audit. Any audit requested by the contractor will be at the contractor’s or Licensor’s expense without reimbursement by the FDIC. Further, such audit may only be conducted if the auditor satisfies the FDIC’s security requirements for access to its facilities, systems and information.

11) Term and Termination. Neither the Contractor nor Licensor can unilaterally revoke, terminate or suspend an Agreement or any associated rights granted to the FDIC. In the event of a dispute, the requirements specified in the Disputes clause of the contract (Clause 7.5.14-01 Disputes (2012)) would apply and performance under the Contract shall continue pending resolution of the dispute.

12) Continued Performance. The supplier or licensor shall not unilaterally revoke, terminate or suspend any rights granted to the Government except as allowed by the Contract. If the supplier or licensor believes the FDIC to be in breach of the agreement, it shall pursue its rights under the Disputes Clause of the Contract (Clause 7.5.14-01 Disputes (2012)) or other applicable Federal statute while continuing performance.

13) Confidentiality. If the agreement includes a confidentiality clause, it shall be amended to state that the Government and Government employee’s obligations with regard to confidentiality are governed by statute, such as, but not exclusively, the Trade Secrets Act, 18 U.S.C. § 1905 and the Freedom of Information Act, 5 U.S.C. § 552. To the extent that the confidentiality language conflicts or in any way purports to alter the Government or Government employee’s obligation with regard to confidentiality, such language shall be null and void and will not be enforceable against the Government.

14) Indemnification. Any language requiring the FDIC to indemnify a contractor or related third-party licensor is null and void and is unenforceable against the Government.

15) Automatic Renewal. Except as otherwise expressly agreed to by the FDIC, any provision of an Agreement requiring automatic renewal of the Agreement is unenforceable against the

FDIC.

16) Integration. Any integration clause shall be amended to recognize the Contract as part of the “entire agreement” and all order of precedence language, provisions, or clauses shall give primacy to the Contract clauses and this Amendment.

17) Disputes. If the supplier or licensor believes FDIC is in breach of the Agreements, it shall pursue its rights under the Disputes clause of the Contract (Clause 7.5.14-01 Disputes (2012)) and Federal laws and performance under the Contract shall continue pending resolution of the dispute.

18) Governing Law. This agreement shall be governed by Federal law. Any language purporting to subject the U.S. Government to the laws of a U.S. state, U.S. territory, district, or municipality, or a foreign nation, except where Federal law expressly provides for the application of such laws, is hereby deleted.

19) Assignment. Neither the Contract nor these Agreements, as amended, shall be assigned, nor may any rights or obligations be delegated, without FDIC’s prior approval, except as permitted pursuant to Clause 7.6.5-05, Assignment of Claims.

20) Payment. The FDIC Contract governs the purchase and payment of fees. Payment for awards made by the FDIC in its corporate capacity are subject to the Prompt Payment Act. 31 U.S.C.

§§ 3901-05.

21) Taxes. The FDIC is exempt from paying any City, County, State, and Federal taxes as provided by Tax Exempt Certificate No. 53-0185558. Any provision of the CSA, purchase agreement, or ordering document providing that FDIC will pay taxes, regardless of the form, whether sales, use of value added, is hereby deleted.

22) Force Majeure. Failure to perform FDIC Contract number according to its terms is excusable and not an event of default if the failure to perform is caused by events beyond the control of Contractor, and through no fault or negligence of Contractor.

23) Litigation. Any provision of the CSA providing that the Licensor or Reseller have sole control over the defense and/or sole control of the defense or settlement of any claim or suit is hereby deleted and are unenforceable against FDIC. To the extent permitted by law (including 28 U.S.C. 516), regulation, and published FDIC policies, Licensor or Reseller may be given control of the defense and settlement negotiations. The U.S. Department of Justice has the sole right to represent the Government in any such action.

24) Advertising or Publicity Materials. Any provision of the CSA or purchase agreement or ordering document providing that the Licensor or Reseller may publish FDIC’s name or logo, or state or imply that the FDIC endorses, recommends or prefers the Supplier’s goods or services is hereby deleted.

25) Nothing in this Amendment or the CSA should be understood as prohibiting the FDIC from complying with otherwise applicable statutes, regulations or agency policies specifically mandated by such statutes or regulations, as well as such agency policies as might be determined to be otherwise binding by courts of competent jurisdiction.

26) The Effective Date of the Agreement is the same as the Effective Date in the Contract.

27) This Amendment to the CSA, shall amend, modify and supersede, to the extent of any inconsistency, the provisions of the CSA. All provisions of the CSA not modified shall remain in full force and effect.

In Witness Whereof the parties hereto, having read this Amendment in its entirety, including all attachments hereto, do agree in each and every particular and certify as to having authorization to contract on behalf of the party represented.

[Licensor’s Name] (Licensor)

[Reseller’s Name] (Reseller)

FDIC (Customer)

Attachment:

1. Commercial Supplier Agreement, dated