Attachment 2 - EULA Addendum.docx

Addendum (Note to offeror: Once company name is entered in the first paragraph and in the signature block, remove this red italic text from the Addendum and convert to PDF to complete the electronic signature.)

Insert Company Name (hereafter referred to as “Offeror”) hereby submits this Addendum as an attachment to any proposed End User License Agreement or similar document pertaining to terms and conditions (“EULA”) submitted with Offeror’s quotation in response to Request for Quotation # 832571538 (“Solicitation”).

Offeror agrees that in the event of any conflict or inconsistency between the terms in this Addendum and the terms of any proposed EULA, 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 in the event its quotation is accepted and selected for award.

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 the Offeror’s EULA will be null and void as between the Offeror and the Government, and those terms will have no force or effect in any resulting contract.

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.

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.

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.

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.

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.

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 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.

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.

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.

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.

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