B02-Addendum to License Agreement - 23MAY24.pdf

Addendum to License Agreement

The offeror , hereby submits this Addendum as an attachment to the License Agreement (whether called an End User License Agreement, Terms of Use, Software

License Agreement, Licensed Software Agreement, or some other name) submitted with its proposal/quotation in response to W58P0524R0003 (“Solicitation”). If the Government enters into a binding contract with the offeror as a result of its proposal/quotation, 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 agrees that this Addendum will become a binding part of the contract with the

Government in the event its proposal/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 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. The “Contractor” in the following terms of the table below means the licensor, the offeror, and/or manufacturer of the software product of this License Agreement that the offeror has submitted its proposal/quotation for the Government.

If the Government accepts and selects the proposal/quotation for award, then the Contractor agrees as follows:

Indemnity (by the Government)

The Government does not agree to indemnify any party because such agreements may violate the Anti-Deficiency Act, 31 U.S.C. §

1341(a)(1)(B). Any such clause requiring indemnification is hereby stricken and deleted from the contract in its entirety, replaced by:

Recourse against the United States for any alleged breach of this License 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. The Government expressly acknowledge that the Contractor shall have standing to bring such claim under the Contract Disputes Act 41 U.S.C.

§ § 601-613.

Patent Indemnity (by the Contractor)

Clauses giving the Contractor control over any claims or disputes involving patent or other intellectual property infringement are not allowable, insofar as only the US

Department of Justice is authorized to represent the US Government, per 28 U.S.C.

§ 516. Any such clause requiring patent indemnity is hereby stricken and deleted from the contract in its entirety, replaced by:

The Contractor cannot assume responsibility for or control of the litigation or any settlement negotiations, provided however, the Government (i) agrees that any litigation or settlement negotiation shall not bind the Contractor, in any way, to the final outcome of any such litigation or settlement; (ii) shall not impair the

Contractor's own rights, defenses, or claims against the claimant, and (iii) shall not have the right to settle any claim, make any admissions, or waive any defenses on behalf of the Contractor.

Automatic renewals (e.g., term licenses for software or software maintenance that renew automatically and renewal charges are due automatically unless the government takes action to opt out or terminate)

The Government does not agree to any automatic renewal provisions because such agreements may violate the Anti-Deficiency

Act, 31 U.S.C. § 1341(a)(1)(B). Any such clause requiring automatic renewal is hereby stricken and deleted from the contract in its entirety, replaced by:

If any license or service tied to periodic payment is provided under this License

Agreement (e.g., annual software maintenance), such license or service shall not renew automatically upon expiration of its current term without prior express written Government approval by a warranted contracting officer.

Taxes clauses purporting to make the Government responsible for all taxes. Any taxes the vendor believes to be payable by the

Government must be submitted individually to the contracting officer for adjudication or included in the firm-fixed price. Any such clause requiring Government payment of taxes are hereby stricken and deleted from the contract in their entirety.

Audit

Any clauses that give the Contractor the right to audit the Government’s use of software licenses do not meet the Government’s needs as a matter of security. Any such clause requiring audit of Government’s use of software is hereby stricken and deleted from the contract in its entirety.

Attorney fees and costs; equitable relief clauses relating to the award of attorney’s fees and costs or equitable relief because they may violate the Anti-Deficiency Act, 31 U.S.C. §

1341(a)(1)(B). Any such clause requiring

Government payment of attorney’s fees is hereby stricken and deleted from the contract in its entirety.

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.

Incorporating other License Terms by

Reference, Including Reference to a Website

Terms provided in other documents or websites do not bind the Government unless those terms are submitted with the proposal and made an attachment to the contract. Any such clause linking to a website is hereby stricken and deleted from the contract in its entirety.

Equitable remedies, injunctions The Government does not agree to any clauses consenting to or entitling the

Contractor to equitable relief or injunctions.

Equitable relief for copyright, trademark, or patent infringement by the Government is only available to the extent permitted by federal statutes. Any such clause are hereby stricken and deleted from the contract in their entirety.

Venue; Choice of Law

The Government does not agree to any venue, jurisdiction, or choice of law clauses and does not consent to jurisdiction in any U.S. state courts. Any such clause as to venue or jurisdiction is stricken and deleted from the contract in its entirety, and replaced as follows:

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.

Arbitration The Government does not agree to any provisions relating to mandatory or non-mandatory arbitration. Any such clause as to arbitration is hereby stricken and deleted from the contract in its entirety. Disputes must be resolved in accordance with applicable federal statutes (e.g., Contract Disputes Act) and regulations.

Unilateral termination by Contractor for breach clauses permitting unilateral termination of the contract or License Agreement by the

Contractor. Any terms in License Agreement that call for termination by the Contractor

(including remote disabling of services by

Contractor) are hereby deleted in their entirety.

Recourse against the United States for any alleged breach of this License 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.

Unilateral modification provisions giving the Contractor the right to unilaterally change the terms of this License

Agreement, with or without notice to the customer. Any such clause allowing unilateral modification by the Contractor is hereby stricken and deleted from the contract in its entirety.

Assignment by licensor

The Government does not agree to any terms providing for assignment by the Contractor.

Any such clause as to assignment is hereby stricken and deleted from the contract in its entirety, and replaced as follows:

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.

Confidentiality clauses asserting that unit prices or License

Agreement terms are confidential or proprietary information. Any such clause as to confidentiality is hereby stricken and deleted from the contract in its entirety, and is replaced as follows:

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.

Licensor Beta Products and/or Services

The Government does not accept any

Contractor products and/or services with terms that include free trial periods that converts to pricing terms after the specified period. Any such trial periods and pricing is hereby stricken and deleted from the contract in its entirety.

“Click wrap” terms

End user “Click wrap,” “Click through”, “Use means acceptance”, “If you Do Not Accept

Stop Using” and similar licensing terms that purports to bind the Government due to access/use by an end user are disallowed.

Such terms shall have no effect.

General Data Protection Regulation (GDPR) The Government does not waive its sovereign immunity and does not consent to suit arising under GDPR. The Government represents that it is not subject to the terms of GDPR. To the extent the Government is exempt from complying with the GDPR, any terms in the

License Agreement, which purports to impose upon the Government any obligations under

GDPR, do not apply.

Vague and Overbroad Usage Restrictions The Government does not agree to use the

Contractor’s software product and services in a way prohibited by law, regulation, governmental order or decree. Similarly, the

Government does not agree to “not to use the

Contractor’s services in any manner which could cause serious bodily injury to any person, or that could cause severe physical or environmental damage”. Such license terms are vague and overbroad. However, the

Government agrees to use the Contractor’s software product and services in a manner that does not violate U.S. Federal law.

Anti-Competitive License Terms

The Government does not agree to license terms that require the Government to take actions that could inhibit future competitive procurements. Such terms violate the

Competition in Contracting Act (CICA) and shall have no effect with respect to the

Government.

Remote Disabling Contractor may not disable Government the software product or services based on a perceived contract or license breach. All perceived contract/license breaches that cannot be amicably resolved by the Parties must be resolved in accordance with the

Contract Disputes Act.

Forms of Intellectual Property The Government can only take a license to forms of intellectual property that are described in United States federal law or procurement regulations. The Government cannot take license to any moral rights, or any know-how or trade secrets (unless recorded and delivered with corresponding data rights).

Further, the Government does not agree to license terms regarding forward looking/inchoate intellectual property that does not exist at the time of the License

Agreement/Purchase Order. The Government is not agreeing to license trademarks, service marks or trade names; however, the

Government agrees to respect, retain and leave undisturbed all trademarks, service marks and trade names that are placed on the licensed materials by Licensor or its resellers as applicable.

The offeror has read, understood, and agrees to all the terms of this Addendum, and agrees that this Addendum will become part of any resultant contract, and will abide by its provisions. The undersigned represents that he/she has full authority to sign this document and agree to its terms on behalf of the Contractor.

Signature of Authorized Representative Date

Name of Authorized Representative

Title/Position of Authorized Representative