Attachment A-NSWC Corona Commercial License Addendum.pdf

Modification of Commercial Licenses, Commercial Terms and Conditions to Comply with Federal Procurement Law and to Match the Scope and Duration of Licenses and Access for Maintenance and Sustainment Required under Contract/Delivery Order/Purchase Order.

This modification of commercial license terms is submitted by ____________ ("Vendor"), a company whose commercial product(s) (developed at private expense) form a component part of commercial computer software, commercial supply or service being purchased in a (Purchase Order/ Delivery Order) to the above-referenced BPA/Contract/Purchase Order (such commercial product(s) hereinafter the "Vendor Product"). The defined terms in this modification are those used in the Delivery Order/ Purchase Order, unless otherwise noted.

This modification shall function as an addendum Vendor's standard [INSERT LICENSE NAME] license or [USER LICENSE AGREEMENT] or [COMMERCIAL TERMS AND CONDITIONS AGREEMENT], which Vendor customarily uses in connection with its commercial offerings of the Vendor Product [USER LICENSE AGREEMENT] or [COMMERCIAL TERMS AND CONDITIONS AGREEMENT], (the "Vendor Commercial License").

Vendor hereby further agrees to the following additional amendments and modifications of the Vendor Commercial License or Vendor’s Commercial Terms and Conditions, to the extent such terms exist in the Vendor Commercial License or Vendor’s Commercial Terms and Conditions , to remove any inconsistencies with federal procurement law:

a.) "Click through" licensing and acceptance purporting to bind the Government as end user to terms not part of the BPA, Delivery Order, or Purchase Order as may apply are disavowed and shall be disabled or not included, or shall have no effect;

b.) The Government shall not be required to indemnify Vendor;

c.) In the event an infringement indemnity is offered by Vendor to Government as end user, any requirement of Vendor to have sole control of the litigation is amended to state that "Vendor shall provide appropriate consultation with the Department of Justice in the defense of such matters and may agree to join or intervene in proceedings at its own expense through counsel of its choice.

d.) Any price escalation, reimbursement, surcharges, liquidated damages and audit costs sought to be imposed on the Government are revoked in favor of the terms and procedures of the BPA, Delivery Order, or Purchase Order.

e.) Any provisions seeking to impose penalties on the Government for late payment are likewise revoked and shall be governed by the prime contract, the Prompt Payment Act if applicable, and the terms of any BPA, Delivery Order, or Purchase Order as may apply to Vendor.

f.) Any provisions seeking to impose attorney fees on the Government are revoked in favor of any applicable provision in the prime contract, Vendor's BPA, Delivery Order, or Purchase Order as may apply, and/or the Equal Access to Justice Act, if applicable.

g.) Any provisions that seek to assess or impose liability on the Government for taxes are revoked in favor of federal law and any applicable BPA, Delivery Order, or Purchase Order as may apply.

h.) Any provision that attempt to impose the license terms of any third party upon the Government are hereby revoked in favor of the terms of the BPA assertions procedures, any resultant BPA, Delivery Order, or Purchase Order as may apply.

i.) Dispute resolution provisions that purport to apply to the Government are revoked and shall be as prescribed in the BPA, Delivery Order, or Purchase Order as may apply.

j.) Clauses attempting to subject the Government to equitable remedies and injunctions are revoked in favor of applicable federal laws, including 28 USC §1498, and any clauses from the BPA, Delivery Order, or Purchase Order as may apply.

k.) Vendor's ability to unilaterally terminate or modify its agreements shall not apply to the Government and shall be governed instead by federal law, including any terms from the BPA, Delivery Order, or Purchase Order as may apply and any applicable federal procurement statutes or other federal laws.

1.) RESERVED [Any provisions concerning assignment that might apply to the Government are revoked in favor of any applicable federal law(s).] m.) Any provisions concerning the order of precedence of terms that purport to apply to the Government as end user, or provisions that attempt to impose state law rather than federal law on the Government, are revoked in favor of federal law and the applicable BPA, Delivery Order, or Purchase Order.

n.) The Government shall not take any licenses to Vendor trademarks or know-how, and shall not be obligated to any trademark and know-how licensing terms in the Vendor Commercial License or Vendor’s Commercial Terms and Conditions . The Government remains obligated to retain and respect Vendor trademarks, and leave such trademarks unchanged. However, the Government cannot and will not place any such trademarks or any other proprietary/data rights markings on the Vendor Products for Vendor. If recorded, the Government will treat know-how as technical data, and will follow the technical data according to the terms of the Delivery Order/Purchase Order. The Government does not agree to any intellectual property license terms that are governed by state law or the laws of another country o.) Any clauses that are otherwise contrary to or inconsistent with federal procurement law are revoked in favor of such federal law and any applicable BPA, Delivery Order, or Purchase Order as may apply.

p.) Vendor will provide delivery under the warranty terms described in its Vendor Commercial License or Vendor’s Commercial Terms and Conditions with respect to Government representations, the Government cannot agree in advance that its use of the Licensed Products or Vendor’s Commercial Terms and Conditions will not infringe or otherwise violate any third party intellectual property rights.

q.) [OPTIONAL] All Vendor Commercial Licenses or Vendor’s Commercial Terms and Conditions shall be site-agnostic and hardware agnostic. Any clauses purporting to tie a Vendor Product to a specific geographic site or to specific hardware shall have no effect.

r.) The Government is not a member of the European Union (EU), and does not agree to any General Data Protection Regulation (GDPR) terms. Any GDPR terms or language are hereby revoked and shall have no effect with respect to the Government.

s.) Vendor warrants and represents that it can deliver all Vendor Products in compliance with all applicable International Traffic in Arms (ITAR) regulations, and further that Vendor can deliver such Vendor Products, as-is, without placing ITAR restrictions on [INSERT OVERALL SYSTEM]. At this time, per the RFP neither party anticipates applicability of ITAR under this engagement [SENTENCE MAY BE OPTIONAL].

t.) The Government agrees to allow audits of Vendor Products upon negotiation of mutually agreeable and reasonable audit terms. Any audit discrepancies will be considered a dispute and resolved in accordance with the Contract Disputes Act. THE GOVERNMENT DOES NOT

AGREE TO ALLOW REMOTE MONITORING OF ITS SYSTEM CONTENT FOR ANY

REASON, including for audit purposes.

u.) Any terms that incorporate a weblink, or that refer to a website, shall have no effect unless such terms have been printed out, agreed to by the Contracting Officer, and incorporated into this addendum or Vendor’s Commercial License or Vendor’s Commercial Terms and Conditions.

Such terms from weblinks are printed and provided in full text as an attachment to this Addendum.

v.) The Government cannot endorse the Vendor nor the Licensed Products. The Government may, but is not obligated to, provide feedback on the Licensed Products, at its discretion. Further, the Government cannot agree to refrain from developing or using products that might be market competitors for the License Products. Any such language in the Vendor Commercial License or Vendor’s Commercial Terms and Conditions shall have no effect.

w.) Any terms that refer to provision of cloud services shall have no effect. If needed, the Government will procure such cloud services via a separate contract vehicle/CLIN.

These modifications shall take precedence over and hereby supersede any conflicting terms in the Vendor Commercial License or Vendor’s Commercial Terms and Conditions and shall be incorporated in substance, or as an attachment, to the Delivery Order upon award. The modifications shall further take effect at the execution of Delivery Order, or Purchase Order ___ under from Contract No. ____________, or when Government takes delivery of the software, supplies or service to Government by the license, whichever comes first.

Vendor:

Date: