Attachment 3 - Special Provisions-Software Rev. 1, 2020-12-09.pdf

Hanford Mission Integration Solutions Provisions

Special Provisions – Software Page 1 of 5 Rev. 1, (12/9/ 2020)

SPECIAL PROVISIONS – SOFTWARE

Rev. 1, December 9, 2020

TABLE OF CONTENTS

1.0 GENERAL

2.0 DEFINITIONS

3.0 COVENANT AGAINST CONTINGENT FEES

4.0 RESTRICTIONS ON SUBCONTRACTOR SALES

5.0 NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT

6.0 PATENT AND COPYRIGHT INDEMNITY

7.0 UNAUTHORIZED OBLIGATIONS

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1.0 GENERAL

These Special Provisions are applicable in their entirety unless specifically deleted or amended in the Subcontract and are in addition to the General Provisions and other Special Provisions that apply to this Subcontract. In the event of a conflict between these Special Provisions and the General Provisions, these Special Provisions shall take precedence

2.0 DEFINITIONS

A. Whenever used in this document, the following definitions shall be applicable unless the content indicates otherwise.

1. “Buyer” shall mean Hanford Mission Integration Solutions, LLC (“HMIS”) and all of its authorized representatives (i.e. “Contract Specialists”) acting in their professional capacities (under DOE Prime Contract No.

89303320DEM000031) entering into this Subcontract with the Subcontractor.

2. “Subcontract” means the Subcontract which is placed by the Buyer for the licensing of certain specified software and which contains or includes these Clauses.

3. “Contractor” which may also be referred to herein as Subcontractor and/or Licensor, means the individual or organization entering into this Subcontract with the Buyer.

4. “Contracting Officer” means the Government official, or any duly appointed successor or representative, who executed the Prime Contract between DOE and the Buyer.

5. “DOE” means the United States Department of Energy.

6. “Government” means the United States of America.

7. “Software” means the specified software licensed by Licensor to Licensee under the Subcontract.

3.0 COVENANT AGAINST CONTINGENT FEES

A. The Licensor warrants that no person or agency has been employed or retained to solicit or obtain this Contract upon an agreement or understanding for a contingent fee, except a bona fide employee or agency. For breach or violation of this warranty, the Buyer shall have the right to annul this Contract without liability or, in its discretion, to deduct from the Contract price or consideration, or otherwise recover, the full amount of the contingent fee.

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B. “Bona fide agency,” as used in this Clause, means an established commercial or selling agency, maintained by a Licensor for the purpose of securing business, that neither exerts nor proposes to exert improper influence to solicit or obtain Buyer contracts nor holds itself out as being able to obtain any Buyer contract or contracts through improper influence.

C. “Bona fide employee,” as used in this Clause, means a person, employed by a Licensor and subject to the Licensor’s supervision and control as to time, place, and manner of performance, who neither exerts nor proposes to exert improper influence to solicit or obtain Buyer contracts nor holds out as being able to obtain any Buyer contract or contracts through improper influence.

D. “Contingent fee,” as used in this Clause, means any commission, percentage, brokerage, or other fee that is contingent upon the success that a person or concern has in securing a Buyer contract.

E. “Improper influence,” as used in this Clause, means any influence that induces or tends to induce a Buyer employee or officer to give consideration or to act regarding a Buyer’s contract on any basis other than the merits of the matter.

4.0 RESTRICTIONS ON SUBCONTRACTOR SALES

A. Except as provided in paragraph B below, the Licensor shall not enter into any agreement with an actual or prospective subcontractor, nor otherwise act in any manner, which has or may have the effect of restricting sales by such subcontractors directly to the Government or the Buyer of any item or process (including computer software) made or furnished by the subcontractor under this Contract or under any follow-on production contract.

B. The prohibition in paragraph A. of this Clause does not preclude the Licensor from asserting rights that are otherwise authorized by law or regulation. For acquisitions of commercial items, the prohibition in paragraph A. applies only to the extent that any agreement restricting sales by subcontractor’s results in the Buyer being treated differently from any other prospective purchaser for the sale of the commercial item(s).

C. The Contractor agrees to incorporate the substance of this Clause, including this paragraph C, in all subcontracts under this Contract which exceed $150,000.00.

5.0 NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT

A. Licensor shall report to the Buyer, promptly and in reasonable written detail, each notice or claim or patent or copyright infringement, related to performance of this Contract, of which Licensor has knowledge.

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B. In the event of any claim or suit against the Government or the Buyer on account of any alleged patent or copyright infringement arising out of the performance of this Contract, Licensor shall furnish to the Buyer, when requested, all evidence and information in possession of Licensor pertaining to such suit or claim. Such evidence and information shall be furnished at the expense of the Buyer except where Licensor has agreed to indemnify the Buyer and the Government.

C. Licensor agrees to incorporate this Clause, including this paragraph C, in all subcontracts under this Contract, which are expected to exceed $150,000.00.

6.0 PATENT AND COPYRIGHT INDEMNITY

The following provisions shall apply if the amount of this Subcontract exceeds $10,000.00.

A. Licensor shall indemnify the Buyer and the Government and their officers, agents, and employees against liability, including costs, for infringement of any United States patent (except a patent issued upon an application which is now or may hereafter be withheld from issue pursuant to a Secrecy Order under 35 U.S.C. 181) or copyright arising out of the manufacture or delivery of supplies (including Software), the performance of services or the construction, alteration, modification, or repair of real property (hereinafter referred to as "construction work" under this Contract, or out of the use or disposal by or for the account of the Government of such supplies or construction work.

B. This indemnity shall not apply unless Licensor shall have been informed as soon as practicable by the Buyer or the Government of the suit or action alleging such infringement, and shall have been given such opportunity as is afforded by applicable laws, rules or regulations to participate in its defense. Further, this indemnity shall not apply to:

1. An infringement resulting from compliance with specific written instructions of the Buyer directing a change in the supplies to be delivered or in the materials or equipment to be used, or directing a manner of performance of the Contract not normally used by Licensor;

2. An infringement resulting from addition to or change in supplies or components furnished or construction work performed that was made subsequent to delivery or performance; or

3. A claimed infringement that is unreasonably settled without the consent of Licensor unless required by final decree of a court of competent jurisdiction.

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7.0 UNAUTHORIZED OBLIGATIONS

A. When any supply or service acquired under this Subcontract is subject to any End User License Agreement (EULA), Terms of Service (TOS), or similar legal instrument or agreement, that includes any clause requiring the Buyer or the Government to indemnify the Subcontractor or any person or entity for damages, costs, fees, or any other loss or liability.

1. Any such clause is unenforceable against the Buyer or the Government.

2. Neither the Buyer or the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the EULA, TOS, or similar legal instrument or agreement. If the EULA, TOS, or similar legal instrument or 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 Buyer or the Government or any Government authorized end user to such clause.

3. Any such clause is deemed to be stricken from the EULA, TOS, or similar legal instrument or agreement “Contract” shall mean this Subcontract.