Sample - WIL Privacy Pods Booths Bailment Agreement.pdf

Sa mp le

*Please note this Sample Bailment Agreement is being provided for informational purposes only. Vendors selected to participate in the Workplace Innovation Lab will receive a final and complete Agreement for signature*

BAILMENT AGREEMENT

This Bailment Agreement (“Bailment Agreement” or “Agreement”) is entered into as of the last date of execution, below by and between:

The U.S. General Services Administration (“GSA”) (“Bailee”)

BAILEE REPRESENTATIVE: [Insert Name of Authorized Representative] TITLE: [Insert Title of Authorized Representative] TELEPHONE NUMBER: [Insert number as (XXX) XXX-XXXX] BAILEE PROJECT OFFICER (NAME): [Insert Name] TITLE: [Insert Title of Project Officer] EMAIL ADDRESS: [Insert Project Officer Email] TELEPHONE NUMBER: [Insert Number as (XXX) XXX-XXXX]

[Full Company Name Providing Product] (“Bailor”)

BAILOR REPRESENTATIVE: [Insert Name of Authorized Representative] STREET ADDRESS: [Insert Bailor Full Street Address] EMAIL ADDRESS: [Insert Bailor Company Email] TELEPHONE NUMBER: [Insert Number as (XXX) XXX-XXXX] FAX NUMBER: [Insert Number as (XXX) XXX-XXXX, or N/A]

1. PURPOSE

The purpose of this Bailment Agreement is for the Bailor to provide [Short Product Description] so that the Bailee may have tests conducted on the bailed [Insert Type of Property (e.g., furniture, software)] (the “Bailed Property”) to aid in the development of specifications and standards for [Insert Either "alternative" or “improved" Followed By Short Product Description].

The Bailor authorizes the Bailee’s use of the Bailed Property consistent with the purpose of this Bailment Agreement. The Bailee shall hold the Bailed Property in trust for this purpose and thereafter return the Bailed Property under the terms of this Bailment.

2. DESCRIPTION OF BAILED PROPERTY

[Name of Bailed Property]

ESTIMATED VALUE OF BAILED PROPERTY: $[Insert Monetary Amount]

[Insert Product Details: Description, Coverage, Size, and Quantity]

3. DELIVERY LOCATION (if physical property is included) AND SCHEDULE

[Insert Name of Location/Office] le

[Insert Street Address] [Insert City, State, Zip Code] Attn: [Insert Name of Individual/s That Will Receive Product] Delivery Date: No later than [Insert Date]

4. BAILMENT TERM

This Agreement shall be effective upon the latter of both the authorized representatives of the Bailor and the Bailee signing it and upon receipt of the Bailed Property by the Bailee. This Agreement shall remain in effect until (1) termination by either party in accordance with section 20; or (2) the expiration date of this Bailment Agreement, whichever occurs first. This Bailment Agreement can be extended by mutual Agreement as provided herein.

GSA will possess and use the Bailed Property to conduct testing for a period up to and not exceeding [Insert Length of Time for Bailment].

5. EXTENSION OF THE BAILMENT TERM

This Bailment Agreement may be extended upon advance mutual agreement of the parties. All terms and conditions of this Agreement shall remain in effect during the extension period. The extension agreement shall be in writing and signed by authorized representatives of the parties.

Any extension shall establish a new expiration date.

6. TITLE

The Bailor has title to, and ownership in, all Bailed Property furnished by the Bailor to the Bailee under this Agreement. Bailor additionally has all rights, permissions and licenses required to furnish Bailed Property, including intellectual property, to Bailee. At no point during this Bailment Agreement will the title of the Bailed Property transfer to Bailee.

7. BAILOR’S DOCUMENTATION

GSA will provide the Bailor [Insert documentation to be provided to the Bailor.].

At GSA’s discretion, the Bailor may [Insert description of Bailor's authorization for items like publishing, posting, or conducting tours.] within the [Insert Location].

8. SHIPPING, DELIVERY AND INSTALLATION

Shipping

Shipment of the Bailed Property to the Bailee, and all costs associated therewith, shall be at the Bailor's expense. The Bailor shall deliver any physical Bailed Property to the Bailee at the following address/location:

[Insert Name of Location/Office] [Insert Street Address] [Insert City, State, Zip Code] Attn: [Insert Name of Individual/s That Will Receive Product]

Delivery Information (If applicable)

The following information and instructions are for deliveries made to [Insert Location]:

le

[Insert, in paragraph format, detailed instruction needed for access to delivery site.]

Installation

The Bailor shall install the Bailed Property (if physical property is provided) once it is delivered to the Bailee and remove it at the expiration of the Bailment Agreement term. The Bailor shall ensure new building related items are reversible and shall return the [Insert Location of Testing] space to its original state, damage free. The Bailor shall provide the Bailee with a complete written inventory of all Bailed Property provided to the Bailee for the purposes of this Bailment Agreement.

9. TESTING, REPORTS AND CONSIDERATION

This Bailment Agreement is entered under the authority of 40 U.S.C. § 313. The Bailor consents to the Bailee's conducting of tests on the Bailed Property, in a manner that the Bailee specifies, to aid in the development of specifications and standards. The Bailee shall test the Bailed Property by asking Federal government personnel who use the Bailed Property to complete surveys on their experiences and provide a summary of the results to the Bailor. The Bailor shall pay to the Bailee a one-time $[XXXX] fee for such tests; a maximum of $XXXXX] fee for the duration of this Agreement. The fee shall be paid by check made out to the U.S. General Services Administration and is due prior to delivery of the Bailed Property. The check shall be sent to the following address and shall indicate “Bailment Payment”:

General Services Administration P.O. Box 6200-28, Portland, OR 97228-6200

In return, Bailee will provide Bailor the findings resulting from tests of the Bailed Property via a written report. The Bailment provided under the terms of this Agreement shall be at no cost to the Bailee and shall not be used as a basis for any claim against the Bailee.

10. DISCLAIMER

The Bailee’s use of the Bailed Property does not constitute and shall not be construed by the Bailor to be an endorsement, sponsorship, approval or promotion of Bailor or the Bailed Property. The Bailor shall not take any actions, which represent or give the appearance of an endorsement, sponsorship, approval or promotion of Bailor or the Bailed Property by GSA or any other Federal Government entity.

11. STANDARDS OF CARE

The Bailee shall operate, store and protect the Bailed Property in accordance with sound and reasonable industrial practices, and in accordance with Bailor’s published care and use instructions. The Bailee shall be responsible for all periodic maintenance in accordance with Bailor’s published instructions.

12. SERVICES

The Bailor shall perform or provide all necessary support and repairs to the Bailed Property during the Bailment Agreement, as requested by Bailee. Bailor hereby represents and le agrees that any and all services provided to Bailee under this Bailment Agreement are provided without charge on a gratuitous basis. Such services may be discontinued at any time by written notice to GSA and shall not be provided beyond the end of the Bailment Agreement. Bailor agrees that all services provided hereunder are covered by this waiver and, absent further agreement, no services furnished to GSA in connection with this Bailment Agreement shall be deemed to fall outside the terms of this waiver. Bailor understands and acknowledges that it will not be paid or otherwise compensated for any duties performed or services provided pursuant to this Bailment Agreement. Further, Bailor has no expectation of payment or any other form of compensation from the United States Government. Bailor freely and voluntarily waives any right, claim or other recourse, present or future, known or unknown, against the United States Government relating to services rendered.

13. SUBSEQUENT PROCUREMENT

This Bailment Agreement in no manner obligates the Bailee in favor of the Bailor to take any future procurement actions that potentially could affect the interests of the Bailor.

14. SAFETY DISCLOSURES

The Bailor shall provide the Bailee with reasonable and customary safety information about dangerous safety hazards arising from the use of the Bailed Property, if necessary.

15. DISCLAIMER OF WARRANTY

The Bailor shall loan the Bailed Property on an “as is” basis. The Bailor makes no warranty, express or implied, with respect to such items, including the implied warranties of merchantability and fitness for a particular purpose.

16. GOVERNMENT CERTIFICATIONS

Prior to delivery of the Bailed Property, the Bailor and Bailee shall identify any required Government certifications, permits, licenses or other such type documentation needed to accomplish the purpose of this Bailment Agreement. The Bailor and Bailee each shall provide the other with any information needed to complete such documentation in a timely manner.

17. SPECIFIC LIMITATIONS ON THE USE OF THE BAILED PROPERTY

The Bailee shall not use or operate the Bailed Property in a manner inconsistent with the parameters identified by the Bailor, which will accompany the Bailed Property.

18. TRAINING

The Bailor shall provide, at no expense to the Bailee, any necessary training of Government personnel required to operate the Bailed Property consistent with the purpose of this Bailment Agreement.

19. LIABILITY

(a) General. The Bailee shall not be liable to the Bailor for any damage to, loss of or destruction to the Bailed Property resulting from the use of the Bailed Property, which occurs from the time of delivery of the Bailed Property to the Bailee until the time when the Bailed Property is returned to the Bailor's custody. Bailor retains the risk of loss of or damage to the Bailed Property during shipping to and from Bailee. The Government does not assume any risk or liability to third persons, nor will the Government reimburse or indemnify the Bailor for any liability to third le persons, with respect to loss due to death, bodily injury, or damage to property resulting in any way from the performance of activities pursuant to this Bailment Agreement. Bailor agrees to indemnify the Government and its officers, agents, and employees against liability, including costs, for any claim for such death, injuries or damage. 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.

(b) Intellectual Property. Infringement of patents or other intellectual property is specifically prohibited under this Bailment Agreement and Bailee does not authorize or consent to infringement of any patent or other intellectual property. The Government also does not assume any risk or liability to third parties for claims arising from any intellectual property provided by Bailor. Bailor agrees to indemnify the Government and its officers, agents, and employees against liability, including costs, for infringement of any United States patent, or other intellectual property, arising out of the manufacture, provision or delivery of supplies, the performance of services, or the construction, alteration, modification, or repair of real property under this Bailment Agreement. 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. Bailor may maintain any public liability insurance coverage, which it deems necessary, at no cost to the Government.

20. TERMINATION OF THE BAILMENT AGREEMENT

Either party may terminate this Agreement at any time by giving 45 days’ advance written notice to the other party’s authorized representative(s). Notice shall be given via email with return receipt requested, and notice shall be effective upon receipt of the email notice. The Bailor shall have a reasonable amount of time to remove the Bailed Property, not to exceed 15 days from the receipt of a termination notice.

21. REMOVAL OF PROPERTY

Upon the expiration or termination of this Agreement by either the Bailee or the Bailor, the Bailor shall uninstall the Bailed Property (if property is installed) and the Bailee shall make the Bailed Property available for pick up at the Bailee’s delivery location.

22. ENTIRE AGREEMENT

The Bailor and the Bailee agree that this written Bailment Agreement contains all the terms and conditions of the bailment, and that there are no oral, written or other agreements, terms or conditions governing this Bailment Agreement.

23. MODIFICATION OF AGREEMENT

No modifications to the terms of this Agreement shall be valid and binding, unless reduced to writing and executed by authorized representatives of both parties.

24. SECTION 889 PROHIBITION

Section 889(a)(1)(B) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115-232) prohibits executive agencies from:

(1) procuring or obtaining any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system; and

(2) entering into a contract, or extending or renewing a contract, with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any le system.

Covered telecommunications equipment or services means–

(1) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities);

(2) For the purpose of public safety, security of Government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities);

(3) Telecommunications or video surveillance services provided by such entities or using such equipment; or

(4) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of the People’s Republic of China.

This prohibition applies to the use of covered telecommunications equipment or services, regardless of whether that use is in performance of work under a Federal contract. The prohibition does not cover telecommunications equipment that cannot route or redirect user data traffic or cannot permit visibility into any user data or packets that such equipment transmits or otherwise handles.

By signing this Bailment Agreement, Bailor represents that:

(1) It will not provide covered telecommunications equipment or services to the Government in the performance of this Bailment Agreement; and

(2) After conducting a reasonable inquiry, it does not use covered telecommunications equipment or services, or use any equipment, system, or service that uses covered telecommunications equipment or services.

Additional information on this prohibition and definitions of terms set forth herein may be found at FAR subpart 4.21.

25. TIKTOK PROHIBITION

Section 102 of Division R of the Consolidated Appropriations Act, 2023 (Pub. L. 117-328), the No TikTok on Government Devices Act, and its implementing guidance under Office of Management and Budget (OMB) Memorandum M-23-13, dated February 27, 2023, “No TikTok on Government Devices” Implementation Guidance, collectively prohibit the presence or use of the social networking service TikTok or any successor application or service developed or provided by ByteDance Limited or an entity owned by ByteDance Limited on executive agency information technology, including certain equipment used by Federal contractors. The Bailor is prohibited from having or using a covered application on any information technology owned or managed by the Government, or on any information technology used or provided by Bailor under this Bailment Agreement, including equipment provided by the Bailor’s employees.

By signing this Bailment Agreement, Bailor represents that it is fully in compliance with this clause.

Additional information on this prohibition and definitions of terms set forth herein may be found at FAR subpart 4.22.

https://www.acquisition.gov/far/subpart-4.21 https://www.acquisition.gov/far/subpart-4.22 le

26. KASPERSKY LAB PROHIBITION

Section 1634 of Division A of the National Defense Authorization Act for Fiscal Year 2018 (Pub.

L. 115-91) prohibits Government use of any hardware, software, or services developed or provided, in whole or in part, by a covered entity. Bailor is prohibited from—

(1) Providing for Government use any hardware, software or service that is developed or provided, in whole or in part, by a covered entity or contains components using any hardware or software developed in whole or in part by a covered entity; and

(2) Using any such hardware, software or service in the development of data or deliverables first produced in the performance of the Bailment Agreement.

Covered entity means Kaspersky Lab, any successor entity to Kaspersky Lab, any entity that controls, is controlled by, or is under common control with Kaspersky Lab, or any entity of which Kaspersky Lab has a majority ownership.

By signing this Bailment Agreement, Bailor represents that it is fully in compliance with this clause.

Additional information on this prohibition and definitions of terms set forth herein may be found at FAR subpart 4.20.

27. COMMERCIAL SUPPLIER AGREEMENTS

(a) Unauthorized Obligations. When any supply or service acquired under this contract is subject to any commercial supplier agreement (as defined in 48 CFR § 502.101) that includes any language, provision, or clause requiring the Government to pay any future fees, penalties, interest, legal costs or to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. § 1341), the following shall govern:

(1) Any such language, provision, or clause is unenforceable against the Government.

(2) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the commercial supplier agreement. If the commercial supplier agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.

(3) Any such language, provision, or clause is deemed to be stricken from the commercial supplier agreement.

(b) Commercial supplier agreements unenforceable clauses. When any supply or service acquired under this contract is subject to a commercial supplier agreement, the following language shall be deemed incorporated into the commercial supplier agreement. As used herein, “this agreement” means the commercial supplier agreement:

(1) Notwithstanding any other provision of this agreement, when the end user is an agency or instrumentality of the U.S. Government, the following shall apply:

(A) Applicability. This agreement is a part of a contract between the commercial supplier and the U.S. Government for the acquisition of the supply or service that necessitates a license or other similar legal instrument.

(B) End user. This agreement shall bind the ordering activity as end user but shall not operate to bind a Government employee or person acting on behalf of the Government in his or her personal capacity.

(2) Law and disputes. This agreement is governed by Federal law.

https://www.acquisition.gov/far/subpart-4.20 le

(A) 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.

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

(C) 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.

(3) Continued performance. The supplier or licensor shall not unilaterally revoke, terminate or suspend any rights granted to the Government except as allowed by this contract. If the supplier or licensor believes the ordering activity to be in breach of the agreement, it shall pursue its rights under the Contract Disputes Act or other applicable Federal statute while continuing performance.

(4) Arbitration; equitable or injunctive relief. In the event of a claim or dispute arising under or relating to this agreement, a binding arbitration shall not be used unless specifically authorized by agency guidance, and equitable or injunctive relief, including the award of attorney fees, costs or interest, may be awarded against the U.S. Government only when explicitly provided by statute (e.g., Prompt Payment Act or Equal Access to Justice Act).

(5) Updating terms. (A) After award, the contractor may unilaterally revise commercial supplier agreement terms: if they are not material. A material change is defined as:

(i) Terms that change Government rights or obligations;

(ii) Terms that increase Government prices;

(iii) Terms that decrease overall level of service; or

(iv) Terms that limit any other Government right addressed elsewhere in this contract.

(B) 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.

(C) Any agreement license 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.

(6) No automatic renewals. If any license or service tied to periodic payment is provided under this agreement (e.g., annual software maintenance or annual lease term), such license or service shall not renew automatically upon expiration of its current term without prior express consent by an authorized Government representative.

(7) Indemnification. Any clause of this agreement 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.

(8) Audits. Any clause of this agreement permitting the commercial supplier or licensor to audit the end user's compliance with this agreement is hereby amended as follows:

(A) Discrepancies found in an audit may result in a charge by the commercial supplier or licensor to the ordering activity. Any resulting invoice must comply with the le proper invoicing requirements specified in the underlying Government contract or order, or established by bilateral modification.

(B) This charge, if disputed by the ordering activity, will be resolved in accordance with applicable Federal law; no payment obligation shall arise on the part of the ordering activity until the conclusion of the dispute process.

(C) Any audit requested by the contractor will be performed at the contractor's expense, without reimbursement by the Government.

(9) Taxes or surcharges. Any taxes or surcharges which the commercial supplier or licensor seeks to pass along to the Government as end user will be governed by the terms of the underlying Government contract or order and, in any event, must be submitted to the Contracting Officer for a determination of applicability prior to invoicing unless specifically agreed to otherwise in the Government contract.

(10) Non-assignment. This agreement may not be assigned, nor may any rights or obligations thereunder be delegated, without the Government's prior approval, except that the commercial supplier or licensor or its assignee may assign its rights to receive payment, if any, due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. § 3727). However, when a third party makes payment (e.g., use of the Governmentwide commercial purchase card), the Contractor may not assign its rights to receive payment under this contract.

(11) Confidential information. If this agreement includes a confidentiality clause, such clause is hereby amended to state that neither the agreement nor the contract price list, as applicable, shall be deemed “confidential information.” Issues regarding release of “unit pricing” will be resolved consistent with the Freedom of Information Act. Notwithstanding anything in this agreement to the contrary, the Government may retain any confidential information as required by law, regulation or its internal document retention procedures for legal, regulatory or compliance purposes; provided, however, that all such retained confidential information will continue to be subject to the confidentiality obligations of this agreement.

(12) If any language, provision, or clause of this agreement conflicts or is inconsistent with the language under the foregoing sections (1) through (11), those sections shall prevail to the extent of such inconsistency.

28. SECURE SOFTWARE DEVELOPMENT ATTESTATION

If Bailor is furnishing software, or products or services containing software, that will be used in a Federal information system, Bailor must furnish the Bailee Project Officer an executed GSA Secure Software Development Attestation within five business days of execution of this Bailment Agreement.

29. SIGNATURES

The Authorized Representatives of both parties must sign this Bailment Agreement below for it to become enforceable.

Authorized Representative Bailor Date

Authorized Representative Bailee (GSA) Date https://www.gsa.gov/system/files/2024-05/GSA7700-24.pdf?_gl=1*2hpv7f*_ga*MTQ4OTM4MjU5Ny4xNjk2MDEwODEz*_ga_HBYXWFP794*MTcxODg5MDMwNy4yODYuMS4xNzE4ODkwMzkwLjAuMC4w https://www.gsa.gov/system/files/2024-05/GSA7700-24.pdf?_gl=1*2hpv7f*_ga*MTQ4OTM4MjU5Ny4xNjk2MDEwODEz*_ga_HBYXWFP794*MTcxODg5MDMwNy4yODYuMS4xNzE4ODkwMzkwLjAuMC4w