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lotter on DSK11XQN23PROD with RULES1

Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractors records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.
m Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.
n Title. Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to the Government upon acceptance, regardless of when or where the Government takes physical possession.
o Warranty. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.
p Limitation of liability. Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items.
q Other compliances. The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract.
r Compliance with laws unique to Government contracts. The Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18
U.S.C. 431 relating to officials not to benefit;
40 U.S.C. chapter 37, Contract Work Hours and Safety Standards; 41 U.S.C. chapter 87, Kickbacks; 41 U.S.C. 4712 and 10 U.S.C.
2409 relating to whistleblower protections;
49 U.S.C. 40118, Fly American; and 41 U.S.C.
chapter 21 relating to procurement integrity.
s Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:
1 The schedule of supplies/services.
2 The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government Contracts, Unauthorized Obligations, and Commercial Supplier Agreements-Unenforceable Clauses paragraphs of this clause.
3 The clause at 52.2125.
4 Addenda to this solicitation or contract, including any commercial supplier agreements as amended by the Commercial
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Supplier AgreementsUnenforceable Clauses provision.
5 Solicitation provisions if this is a solicitation.
6 Other paragraphs of this clause.
7 The Standard Form 1449.
8 Other documents, exhibits, and attachments.
9 The specification.
t Reserved u Unauthorized Obligations. 1 Except as stated in paragraph u2 of this clause, when any supply or service acquired under this contract is subject to any commercial supplier agreement as defined in 1502.100
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 AntiDeficiency Act violation 31 U.S.C. 1341, the following shall govern:
i Any such language, provision, or clause is unenforceable against the Government.
ii 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 browsewrap agreements, execution does not bind the Government or any Government authorized end user to such clause.
iii Any such language, provision, or clause is deemed to be stricken from the commercial supplier agreement.
2 Paragraph u1 of this clause does not apply to indemnification or any other payment by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.
v Incorporation by reference. The Contractors representations and certifications, including those completed electronically via the System for Award Management SAM, are incorporated by reference into the contract.
w Commercial Supplier Agreements unenforceable clauses. When any supply or service acquired under this contract is subject to a Commercial Supplier Agreement as defined in 48 CFR 1502.100, 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:
i 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 including all contracts, task orders, and delivery orders under FAR Part 12.
ii 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.

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iii Law and disputes. This agreement is governed by Federal law.
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.
iv 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 as set forth in paragraph d of this clause.
v 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.
vi Updating terms. A After award, the contractor may unilaterally revise terms if they are not material. A material change is defined as:
1 Terms that change Government rights or obligations;
2 Terms that increase Government prices;
3 Terms that decrease overall level of service; or 4 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 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.
vii 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.
viii 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.
ix Audits. Any clause of this agreement permitting the commercial supplier or
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