Att (3) License Addendum.docx

ATTACHMENT 3: ADDENDUM TO COMMERCIAL LICENSE AND/OR DATASET LICENCE

ADDENDUM TO END USER LICENSE AGREEMENT FOR

_____________________________ [SOFTWARE OR DATASET]

This Addendum to the End User License Agreement (hereinafter Addendum) is made by and between ___[insert subcontractor] ___ (hereinafter Licensor) and ____[insert contractor] ____ (hereinafter Licensee), and is made for the purpose of supplementing the End User License Agreement (hereinafter the Agreement) for ___________ [software]. The Licensor and Licensee agree that this Addendum will be attached to the Agreement and made a part thereof prior to transfer of the licensed software to the United States Government (hereinafter the Government) as the end product user. This Addendum shall supersede and supplement the Agreement with regard to the license rights transferred to the Government and shall not apply to the licensee.

RECITALS:

WHEREAS the Licensor is the owner of all intellectual property rights in the licensed software;

WHEREAS the Licensee will deliver an end product to the Government under contract _____________ that integrates and contains the licensed software;

WHEREAS during the course of performance of contract number ______________ and delivery of the end product, the Licensee will transfer its non-exclusive, royalty free, restricted rights in the licensed software as granted in the Agreement to the Government;

WHEREAS the Agreement contains provisions that are customarily found in agreements with the public but do not apply to the Government and/or are inconsistent with Federal procurement law;

NOW, THEREFORE, the Parties (the Licensor and Licensee) agree to review and negotiate the provisions of the Agreement in good faith to ensure compliance with Federal procurement law and, in accordance with this Addendum, to the extent provisions are inconsistent with Federal procurement law, those provisions shall be stricken from the Agreement or terminate upon transfer to the Government. Such provisions shall include but are not limited to the following list of common material terms and conditions of commercial computer software license agreements:

1. The license(s)/agreement(s) shall not subject the Government to the laws of a particular jurisdiction, venue, or choice of law, nor affect the Government’s plenary authority over, and control of, the defense of any litigation in which the Government is a party.

2. The license(s)/agreement(s) shall not require confession of judgment, arbitration, or indemnification. Indemnification terms in license agreement are deemed stricken and are unenforceable unless there is specific authority to the contrary.

3. The license(s)/agreement(s) shall not include a statement of entitlement to attorney fees.

4. The license(s)/agreement(s) shall not attempt to have an individual other than a warranted Contracting Officer bind the Government to certain terms and conditions.

5. The license(s)/agreement(s) shall not be inconsistent with the Prompt Payment Act.

6. The license(s)/agreement(s) shall not attempt to impose a vendor lock-out provision. A vendor lock-out provision is a mechanical or electronic method imbedded in the system that prevents unauthorized use or distribution of the program. This method can result in an impermissible unilateral change to the purchase order initiated by the vendor and involves a vendor having free access to a computer system that must be secure.

7. The license(s)/agreement(s) shall not state that it sets forth the entire agreement between the vendor and the Government; the other terms of the contract are also part of the agreement and applicable Federal laws and regulations always govern Federal contracts.

8. The license(s)/agreement(s) shall not impose an automatic renewal provision on the Government or the possibility of unilateral price increases.

9. The license(s)/agreement(s) shall not permit the vendor to unilaterally terminate the contract or license. The Contract Disputes Act authorizes the Government to require a contractor to continue performance pending resolution of any dispute.

10. The license(s)/agreement(s) shall not require the Government to pay any taxes or duties.

11. The license(s)/agreement(s) shall not limit the Government’s remedies to a refund of money. The Contracts Disputes Act authorizes the Government to require a contractor to continue performance pending resolution of any dispute.

12. The license(s)/agreement(s) shall not be inconsistent with FAR 52.233-1, Disputes.

13. The license(s)/agreement(s) shall not create a contingent liability for the Government.

14. The license(s)/agreement(s) shall not disclaim the warranty of merchantability and fitness for a particular purpose.

15. The license(s)/agreement(s) shall not restrict the Government from using the product at various sites nor from use of the product by various Government agencies or third parties performing work on behalf of the Government. Government personnel, as well as Government contractors, will use the product. Additionally, the product will be used at Government sites and Government contractor sites and the sites will change over time. The license shall be flexible to accommodate this situation.

16. The license(s)/agreement(s) shall not include non-substitution terms that would preclude or limit the Government from switching to another vendor/reseller and/or another product to fulfill _________________ program requirements.

17. The license(s)/agreement(s) shall not permit unauthorized entry onto a Government facility or installation.

IN WITNESS WHEREOF, the parties have caused this Addendum to be executed by their duly authorized representatives.