RFQ Attachment 2 TC Addendum.pdf

CONTRACTOR hereby submits this Addendum as an attachment to any proposed Terms and Conditions

(“T&C”) or similar document pertaining to terms and conditions submitted by CONTRACTOR for RFQ #

CONTRACTOR agrees that in the event of any conflict or inconsistency between the terms in this

Addendum and the terms of any proposed T&C, the terms of this Addendum will supersede and be controlling. The offeror acknowledges that this Addendum will become a binding part of its contract with the Government.

The Government accepts commercial terms in a license agreement only to the extent that those terms do not conflict with Federal law and only to the extent those terms meet the Government’s needs. The following terms, when they appear in a license agreement, have been determined unacceptable to the

Government as a result of a conflict with Federal law or as a result of incompatibility with the

Government’s needs. Any such terms in CONTRACTOR’s T&C will be null and void as between the

CONTRACTOR and the Government, and those terms will have no force or effect in any resulting contract.

1. General Indemnity (by the government) The Government does not agree to indemnify any party because such agreements may violate the Anti-Deficiency Act, 31 U.S.C. § 1341(a)(1)(B). Any such clause is hereby modified as follows:

Recourse against the United States for any alleged breach of this agreement must be as a dispute under the contract disputes clause (Contract Disputes Act). While a dispute is pending, the Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Contracting Officer.

2. Patent Indemnity (by the contractor) Clauses giving the contractor control over any claims or disputes involving patent or other intellectual property infringement are not allowable, insofar as only the US Department of Justice is authorized to represent the US Government, per 28 U.S.C. § 516. Any clause giving entire control of litigation to a contractor is hereby modified as follows:

If a third party claims that products or services delivered under this contract infringe that party’s patent or copyright, the contractor will indemnify the Government against liability, at the contractor’s expense, and pay all costs, damages, and attorney’s fees that a court finally awards or that are included in a settlement approved by the contractor, provided that the Government promptly notifies the contractor of the claim and gives the contractor such opportunity as is offered by applicable laws, rules, and regulations to participate in the defense thereof. The Government shall make every effort to fully participate in the defense and/or in any settlement of such claim. However, the contractor understands that such participation will be under the control of the U.S. Department of Justice, per 28 U.S.C. § 516.

Automatic renewals (e.g., term licenses for software or software maintenance that renew automatically and renewal charges are due automatically unless the government takes action to opt out or terminate)

The Government does not agree to any automatic renewal provisions because such agreements may violate the Anti- Deficiency Act, 31 U.S.C. § 1341(a)(1)(B). Any such clause is hereby modified as follows:

If any license or service tied to periodic payment is provided under this agreement (e.g., annual software maintenance), such license or service shall not renew automatically upon expiration of its current term without prior express Government approval by a warranted contracting officer.

Audit

Any clauses that give the contractor the right to audit the government’s use of software licenses do not meet the Government’s needs as a matter of security. Any such clause is hereby modified as follows:

The contractor can request that the Government conduct a self-audit and provide the contractor with results of the audit, but the contractor will not have access to the government’s systems to conduct the audit.

Attorney fees and costs; equitable relief The Government does not agree to any clauses relating to the award of attorney’s fees and costs or equitable relief because they may violate the Anti-Deficiency Act, 31 U.S.C. § 1341(a)(1)(B). Any such clause is hereby modified as follows:

Equitable relief and the award of attorney’s fees, costs, or interest are only allowed to the extent permitted by statute (e.g., the Prompt Payment Act or Equal Access to Justice Act). Disputes will be resolved according to the disputes clause.

Taxes

The Government does not agree to any clauses purporting to make the Government responsible for all taxes. Any taxes the vendor believes to be payable by the Government must be submitted individually to the contracting officer for adjudication or included in the firm-fixed price.

Incorporating other License Terms by Reference, Including Reference to a Website

Terms provided in other documents or websites do not bind the Government unless those terms are submitted with the proposal and made an attachment to the contract. Any such clause is hereby modified as follows:

Any license agreement provisions or terms of use unilaterally revised subsequent to award that are inconsistent with any material term or provision of this contract are not enforceable against the Government.

Venue; Choice of Law The Government does not agree to any venue, jurisdiction, or choice of law clauses and does not consent to jurisdiction in any U.S. state courts. Any such clause is hereby modified as follows:

Venue and jurisdiction for any disputes are determined by the applicable federal statute (e.g., Contract Disputes Act) or by the Federal Acquisition Regulation. Any disputes arising under or related to this contract and license agreement will be governed by applicable federal statutes and regulations, not the laws of any particular U.S. state.

Arbitration

The Government does not agree to any provisions relating to mandatory arbitration.

Disputes must be resolved in accordance with applicable federal statutes (e.g., Contract Disputes Act) and regulations.

Equitable remedies, injunctions consenting to or entitling the contractor to equitable relief or injunctions. Equitable relief for copyright, trademark, or patent infringement by the Government is only available to the extent permitted by federal statutes.

Unilateral termination by contractor for breach permitting unilateral termination of the contract or license agreement by the contractor. Any such clause is hereby modified as follows:

Recourse against the United States for any alleged breach of this agreement must be made under the terms of the contract disputes clause (Contract Disputes Act). While a dispute is pending, the Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and must comply with any decision of the Contracting Officer.

Unilateral modification

The Government does not agree to any provisions giving the contractor the right to unilaterally change the license terms, with or without notice to the customer.

Assignment by licensor

The Government does not agree to any license terms providing for assignment by the licensor. Any such clause is hereby modified as follows:

Assignment of government contracts without the government’s prior approval is prohibited by statute, except for assignment of payment to a financial institution, which must comply with the Assignment of Claims Act (31 U.S.C.

§ 3727, 41 U.S.C. § 15) and Federal Acquisition Regulation Subpart 32.8.

Confidentiality asserting that unit prices or license agreement terms are confidential or proprietary information. Any such clause is hereby modified as follows:

Neither the license agreement nor the price list shall be deemed “confidential” or “proprietary” information notwithstanding any marking to that effect. The Freedom of Information Act (FOIA) governs what information must be disclosed and what information may be withheld by the Government.

The offeror agrees to all the terms of this Addendum and will abide by its provisions if awarded a contract as a result of the submission of its quotation.

Name of Authorized Representative (Typed) Title/Position

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