B08_SOL_Attachment_2_EULA_Addendum_2.pdf

Attachment 3

SOFTWARE LICENSE RIDER – U.S. GOVERNMENT

This Software License Rider (“Rider”) modifies the commercial computer software End User License Agreement (“EULA”) which may be included as “click-wrap” within the commercial computer software and/or included as an attachment to the Customer Agreement or any equivalent agreement in effect between the Government and Contractor. This Rider brings the EULA into compliance with FAR 12.212(a) which requires the Government to procure commercial computer software under the licenses customarily provided to the public except to the extent that those licenses are inconsistent with Federal law. The EULA is modified as follows:

1. Click-wrap. No Government nor any Government authorized end user shall be deemed to have agreed to any clause by virtue of it appearing in the EULA, rather the EULA and this Software Rider are accepted by inclusion in the Agreement by an authorized official. If the EULA or any other third-party EULA 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 Government or any Government authorized end user to such clause; such indemnity clause is deemed to be stricken from the EULA. The Government acknowledges that third party terms may apply but does not agree to be bound by them unless provided for review. Inclusion of these Third Party License Agreement(s) within release notes within the Licensed Software file is an acceptable presentation of the Third Party License Agreement(s), provided that the Third Party License Agreement(s) will not create any new monetary obligation upon the End User or diminish the End User's right to use the Licensed Software as set forth in the EULA where the End User is in compliance with the EULA. Any clause to the contrary is hereby deleted.

2. Applicability. The EULA and this Software License Rider is a part of the Agreement between CONTRACTOR and the U.S. Government for the acquisition of the supply or service that necessitates a license, except to the extent inconsistent with Federal law.

3. End user. This Software License Rider and the EULA shall bind the ordering activity as end user but shall not operate to bind a Government employee or person acting on behalf of the Government in his or her personal capacity.

4. Law and disputes. This Software License Rider and the EULA are governed by Federal law.

(a) Any language purporting to subject the U.S. Government to the laws of a U.S. state, U.S.

territory, district, or municipality, or a foreign nation, except where Federal law expressly provides for the application of such laws, is hereby deleted.

(b) Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable Federal law is hereby deleted.

(c) Any language prescribing a different time period for bringing an action than that prescribed by applicable Federal law in relation to a dispute is hereby deleted.

(d) Other disputes will be resolved through the Disputes Clause in the Agreement.

5. Continued performance. If the supplier or licensor believes the ordering activity to be in breach of the Agreement, it shall continue performance while pursuing rights under the Disputes Clause in the Agreement.

6. Arbitration; equitable or injunctive relief. In the event of a claim or dispute arising under or relating to the Agreement, (a) binding arbitration shall not be used unless specifically authorized by agency guidance, and (b) equitable or injunctive relief, including the award of attorney fees, costs or interest, may be awarded against the U.S. Government only when explicitly provided by statute (e.g., Prompt Payment Act or Equal Access to Justice Act).

7. Additional terms.

(a) This Software License Rider may unilaterally incorporate additional terms by reference. Terms may be included by reference using electronic means (e.g., via web links, click and accept, etc).

Such terms shall be enforceable only to the extent that:

(i) When included by reference using electronic means, the terms are readily available at referenced locations; and

(ii) Terms do not materially change Government obligations; and

(iii) Terms do not increase Government prices; and

(iv) Terms do not decrease overall level of service; and

(v) Terms do not limit any other Government rights addressed elsewhere in this contract.

(b) The order of precedence clause of this contract notwithstanding, any software license terms unilaterally revised subsequent to award are not enforceable against the Government.

8. No automatic renewals. If any license or service tied to periodic payment is provided under the EULA (e.g., annual software maintenance or annual lease term), such license or service shall not renew automatically upon expiration of its current term without prior express Government approval.

9. Indemnification & Liability. Any clause of the EULA requiring the commercial supplier or licensor to defend or indemnify the end user is hereby amended to provide that the U.S. Department of Justice has the sole right to represent the United States in any such action, in accordance with 28 U.S.C. § 516. The Government shall not indemnify any entity. The Government agrees to pay for any loss, liability or expense, which arises out of or relates to the Government’s acts or omissions with respect to its obligations hereunder, where a final determination of liability on the part of the Government is established by a court of law or where settlement has been agreed to by the Government agency with, where appropriate, coordination of the Department of Justice. This provision shall not be construed to limit the Government’s rights, claims or defenses which arise as a matter of law or pursuant to any other provision of the Agreement.

10. Audits. Any clause of the Agreement permitting the commercial supplier or licensor to audit the end user’s compliance with the Agreement is hereby amended as follows: (a) Discrepancies found in an audit may result in a charge by the commercial supplier or licensor to the ordering activity. Any resulting invoice must comply with the proper invoicing requirements specified in the underlying Government contract or order. (b) This charge, if disputed by the ordering activity, will be resolved through the Disputes clause at FAR 52.233-1; no payment obligation shall arise on the part of the ordering activity until the conclusion of the dispute process; (c) Any audit requested by the Contractor will be performed at the Contractor’s expense, without reimbursement by the Government and in accordance with Government security requirements.

11. Taxes or surcharges. Any taxes or surcharges which the commercial supplier or licensor seeks to pass along to the Government as end user will be governed by the terms of the underlying Government contract or order and, in any event, must be submitted to the Contracting Officer for a determination of applicability prior to invoicing unless specifically agreed to otherwise in the Government contract.

12. Non-assignment. The Agreement may not be assigned, nor may any rights or obligations thereunder be delegated, without the Government's prior approval.

13. Use of Government logos. Notwithstanding any contrary provision contained in the Agreement, the vendor shall not be permitted to use U.S. Government logos for advertising or endorsement purposes, without obtaining the separate written consent of the Government.

14. Right of entry. No provision in the Agreement shall provide any Party the right of entry to any Government facility.

15. Termination. Termination, including termination for convenience of the government, may occur in accordance with the procedures described in the Contract. Any terms of unilateral termination by CONTRACTOR are hereby deleted. Recourse against the United States for any alleged breach of this agreement must be made under the terms of the Federal Tort Claims Act or as a dispute under the contract disputes clause (Contract Disputes Act) as applicable. 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.