Instant Connect Enterprise Addendum to License Agreement.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). 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 shall 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 (whether called items, conditions, provisions, clauses, or some other name) 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

License Agreement terms described below are 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 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 (or software product) of this License Agreement that the offeror has submitted its proposal/quotation to the Government.

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

Order of Precedence (by the

Contractor)

The Government does not agree to modify the order of precedence set forth in the FAR. Any such terms are hereby stricken and deleted from the License

Agreement in its entirety.

License Agreement “Click wrap” type terms

The Government does not agree to contracts of adhesion. For example, the Government will not be bound by terms such as: “Click wrap,” “Click through”, “Use means acceptance”, “If you Do Not Accept Stop

Using” and similar licensing terms. These mechanisms/terms shall not be interpreted to bind the

Government.

License Agreement Content Only documents/references that are physically a part of the License Agreement or provided as attachments to the License Agreement at the time that the license

Agreement is signed, will be considered to define the

License Agreement i.e. documents merely incorporated by reference, including a link to a Website, in the

License Agreement will not be used to define/interpret the License Agreement.

Arbitration, Disputes, Venue, Choice of Law

The Government does not agree to any terms relating to mandatory or non-mandatory arbitration. Any such terms as to arbitration is hereby stricken and deleted in its entirety.

Recourse against the Government for any alleged breach of this License Agreement (or any other claims) shall be treated as a dispute under the Contract Disputes

Act 41 U.S.C. Chapter 71 which establishes procedures and requirements for asserting and resolving contract disputes between Contractors and the Government.

The Government does not agree to any venue, jurisdiction, or choice of law terms. 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 or foreign countries. Specifically, the

Government does not consent to jurisdiction in any nonfederal (i.e. state or foreign) courts. Any breaches of this License Agreement will be litigated in U.S.

federal court.

In case of a dispute, while a dispute is pending, both parties shall endeavor to proceed diligently with performance of the License Agreement, pending final resolution of any request for relief, claim, appeal, or action arising under this License Agreement, and comply with any decision of the Government

Contracting Officer. The Government expressly acknowledges that the Contractor has standing to bring such claim under the Contract Disputes Act.

Attorney Fees, Equitable Remedies, Injunctions etc.

The Government does not agree to any 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.

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.

Additionally, the Government does not agree to any clauses relating to the payment of audit fees or costs because they may violate the Anti-Deficiency Act, 31 U.S.C. § 1341(a)(1)(B). Any such clause requiring audit of Government’s use of software or the Government’s payment of audit fees and costs is hereby stricken and deleted from the contract in its entirety.

Unilateral Modification The Government does not agree to any terms giving the

Contractor the right to unilaterally change the terms of this License Agreement, with or without notice to the

Government. Any such term allowing unilateral modification by the Contractor is hereby stricken and deleted from the contract in its entirety.

Contractor Products/Processes

Preventing the Government from

Using Software

The Government does not agree to any terms entitling the Contractor to automatically, remotely, or by any other means activate locks or products or processes which prevent the Government from using the software to successfully complete the Government’s objectives.

Recourse against the Government for any alleged breach of this License Agreement (or any other claims) must be treated as a dispute under the Contract Disputes Act 41 U.S.C. Chapter 71.

Use of Government Names, Trademarks, Servicemarks, or any other Identifying Information

The Government does not agree to any terms that allow the Contractor to use the Government’s name, trademarks, or servicemarks, or any other identifying information relating to the Government’s use of the

Contractor’s software products.

Vague and Overbroad Restrictions on the Government’s Use of the

Software

The Government does not agree to any terms that includes overly broad usage restrictions or any restrictions which may prevent the Government from using the software to successfully complete its mission objectives.

These usage restrictions include at least:

- Use of the Contractor’s product/services in a way prohibited by law, regulation, governmental order or decree;

- Use of the Contractor’s product/services in any manner which could cause serious bodily injury to any person, or that could cause severe physical or environmental damage; and,

- Use of the Contractor’s product/services in any way that the Contractor may not deem to be prudent for any reason.

However, the Government agrees to use the software in a manner that does not violate U.S. Federal law.

License Agreement/Contractor

Services Automatic Renewals

(e.g., term licenses for software or software maintenance that renew automatically and renewal charges that are due automatically unless the Government takes action, etc.)

The Government does not agree to any automatic renewal terms and/or any associated mandatory notifications time periods and associated fees. These terms may violate the Anti-Deficiency Act, 31 U.S.C. § 1341(a)(1)(B).

Any service or license shall not renew automatically or exercise an option upon expiration of its current term or the Government’s failure to provide a notice to the Contractor without prior express written authorization of the Government Contracting Officer. Such terms in the License agreement shall be deleted in its entirety.

License Agreement/Services

Termination

The Government does not agree to any terms permitting unilateral termination of the License Agreement by the

Contractor. Any terms that call for unilateral termination by the Contractor (including remote disabling of services by Contractor) shall be deleted from the License Agreement.

The Government does not agree to any additional/conditional termination fees or payments of any kind.

Government Indemnification

Obligations

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).

Contractor Indemnification

Obligations

The Government does not agree to any License

Agreement term that gives the Contractor control over any claims brought against the Government. Only the

US Department of Justice is authorized to represent the

Government, per 28 U.S.C. § 516.

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 impact the right to settle any claim, make any admissions, or waive any defenses on the Contractor’s behalf.

Government Payment of Taxes The Government does not agree to any terms purporting to make the Government responsible for any selected taxes. Any taxes that the Contractor believes to be payable by Government shall be submitted individually to the Government’s designated Contracting Officer for adjudication or included in the firm-fixed price of the proposal/quotation.

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

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. § 6305) and Federal Acquisition Regulation Subpart 32.8.

Contractor Confidential/Proprietary

Price Terms

The Government does not agree to any clauses asserting that unit prices or License Agreement terms are confidential or proprietary information.

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.

Contractor Beta-Type Products and/or Services

The Government does not accept any Contractor products and/or services that are experimental/provisional “beta” -type products.

The Government does not agree to any terms in the License Agreement that include free trial periods that convert to pricing terms after the specified period.

General Data Protection Regulation

(GDPR)

The Government does not waive its sovereign immunity and does not consent to suit arising under

GDPR.

The Government 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.

Contractor Intellectual Property The Government respects the Contractor’s intellectual property. However, the Government only acknowledges intellectual property that comprises clearly defined subject matter that is protectable under

U.S. federal law.

The Government does not acknowledge that vague and overly broad subject matter (e.g. at least “concepts”, “ideas” etc.) comprises protectable intellectual property.

Anti-Competitive License Terms The Government does not agree to any terms that require the Government to take actions that could inhibit future competitive procurements.

Such Anti-competitive terms violate the Competition in

Contracting Act (CICA) and shall have no effect with respect to the Government.

Government Copying of the

Software product for backup or archival purposes

The Government does not agree to any prohibition on making copies of the software without providing an exception for backup or archival purposes. Any such prohibition should be deleted and replaced by the following:

“The Government is allowed to make a reasonable number of backup copies solely for backup and/or archival purposes.”

Government Furnished

Information/Data/IP

The Government does not agree to any License Agreement terms that allow the Contractor to take any type of license right or ownership to the Government furnished information/data.

The Government does not agree to any License Agreement terms that require the Government to grant the Contractor any licenses to the Government’s intellectual property.

The Contractor has read, understood, and agrees to all the terms of this Addendum, and agrees that this Addendum will become part of any resultant License Agreement/Contract, and will abide by its terms. The undersigned represents that he/she has full authority to sign this

Addendum and agree to its terms on behalf of the offeror/Contractor.

Signature of Authorized Representative Date

Name of Authorized Representative

Title/Position of Authorized Representative