Attachment 4 Terms of Service Addendum.docx

Addendum to License Agreement or Terms of Use

The offeror, ___________________________________________, hereby submits this Addendum as an attachment to the License Agreement submitted with its proposal in response to ___________________________________ (“Solicitation”), whether called an End User License Agreement, Terms of Use, or some other name (“License Agreement”). If and when the Government enters into a binding contract with the offeror as a result of its proposal, the offeror agrees that, in the event of any conflict or inconsistency between the terms in this Addendum and the terms of the License Agreement, 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 proposal 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 or the language appearing in the solicitation and resulting contract, 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 License Agreement 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.

Instead, 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 (conducted at the Government’s discretion), 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. Binding arbitration will not be used.

Any license agreement provisions or terms of use unilaterally revised subsequent to award that are inconsistent with any 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.

Any reference to “You,” “the User,” or any similar term in the License Agreement shall mean the Government itself and shall not apply to, nor bind (i) the individual(s) who utilize the service on the Government’s behalf, or (ii) any individual users who happen to be employed by, or otherwise associated with, the Government. The contractor will look solely to the Government to enforce any violation or breach of the License Agreement by such individuals, subject to federal law.

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 proposal.

Name of Authorized Representative

Name of Offeror