N00173-24-R-NJ17_Attachment3.pdf

N00173-24-R-NJ17

Attachment 3

SOFTWARE LICENSE RIDER – U.S. GOVERNMENT

This Software License Rider (“Rider”) modifies the commercial computer software End User License Agreement (“EULA”) which is included as “click-wrap” within the commercial computer software and/or included as an attachment to _______________ (“Agreement”). FAR 12.212(a) and DFARS 227.7202-3 require the Government procure commercial computer software under the licenses customarily provided to the public except to the extent that those licenses are inconsistent with Federal law. This Rider brings the EULA into compliance with federal law based on terms identified by the General Services Administration (GSA) in the “Notice of Class Deviation to Commercial Supplier Agreement Terms Inconsistent with Federal Law,” 80 Fed. Reg. 15011 (March 20, 2015), and "General Services Administration Acquisition Regulation; Unenforceable Commercial Supplier Agreement Terms," 83 Fed. Reg. 7631 (February 22, 2018).

Notwithstanding any other provision of this Agreement, when the end user is an agency or instrumentality of the U.S. Government, the following shall apply:

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. 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 the commercial supplier and the U.S. Government for the acquisition of the supply or service that necessitates a license or other similar legal instrument (including all contracts, task orders, and delivery orders under FAR Parts 13, 14 or 15).

3. End user. This Agreement 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 Agreement is 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.

Ver: 12/23/2022

(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.

5. Continued performance. The supplier or licensor shall not unilaterally revoke, terminate or suspend any rights granted to the Government except as allowed by this contract. If the supplier or licensor believes the ordering activity to be in breach of the agreement, it shall pursue its rights under the Contract Disputes Act or other applicable Federal statute while continuing performance as set forth in FAR 52.233-1, Disputes.

6. Arbitration; equitable or injunctive relief. In the event of a claim or dispute arising under or relating to this agreement, a binding arbitration shall not be used unless specifically authorized by agency guidance, and 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. Updating terms.

(a) After award, the contractor may unilaterally revise commercial supplier agreement terms provided only if they are not material. A material change is defined as:

(1)Terms that significantly change Government obligations;

(2)Terms that increase Government prices;

(3)Terms that decrease overall level of service; or

(4)Terms that limit any other Government right addressed elsewhere in this Agreement.

(b) For revisions that will materially change the terms of the contract, the revised commercial supplier agreement must be incorporated into the contract using a bilateral modification.

(c) Any license agreement terms or conditions unilaterally revised subsequent to award that are inconsistent with any material term or provision of this contract shall not be enforceable against the Government, and the Government shall not be deemed to have consented to them.

8. No automatic renewals. If any license or service tied to periodic payment is provided under this agreement (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 consent by an authorized Government representative.

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.

10. Audits. Any clause of this agreement permitting the commercial supplier or licensor to audit the end user's compliance with this 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.

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, except as expressly permitted under the clause at FAR 52.232-23, Assignment of Claims.

13. Confidential information. If this agreement includes a confidentiality clause, such clause is hereby amended to state that neither the agreement nor the contract price list, as applicable, shall be deemed “confidential information.” Issues regarding release of “unit pricing” will be resolved consistent with the Freedom of Information Act. Notwithstanding anything in this agreement to the contrary, the Government may retain any confidential information as required by law, regulation or its internal document retention procedures for legal, regulatory or compliance purposes; provided, however, that all such retained confidential information will continue to be subject to the confidentiality obligations of this agreement.

14. Inconsistency. If any language, provision or clause of this Agreement conflicts or is inconsistent with the preceding paragraphs 1-13, the language, provisions, or clause of paragraphs 1-13 shall prevail to the extent of such inconsistency.