Attch_0024_ACWS_Software_License_Disclosure_2016_04_04.xlsx

Cover

TAB: Cover Page RFP# W52P1J-16-R-0058

ATTACHMENT 0024

&F

Instructions

Offeror Software Licensing Disclosure

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Master License Agrmnt Template ACWS Master Software License Agreement Template (Double click to open and edit)

Software License Disclosure

Offeror Software Licensing Disclosure

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Microsoft_Word_Document1.docx

ARMY CONTRACT WRITING SYSTEM

LICENSE AGREEMENT TEMPLATE

(Based on the DoD ESI Master Agreement Template)

THIS PAGE INTENTIONALLY LEFT BLANK

This Software License Agreement (the “Agreement”) is made and entered into as of ______________, 20___ (the “Effective Date”) by and among the Parties defined below.

1. PARTIES TO THIS AGREEMENT (THE “PARTIES”)

1.1 Contact and Entity Information

Publisher Entity Name (“Publisher”)

Reseller Entity Name (“Reseller”)

DoD Service/Agency Name (“Licensee”)

XYZ Publishing, Inc.

ABC Reselling, Inc.

XYZ Command or equivalent

Address

Address

Address

Street

City, State, Zip

POC

POC

POC

Name

Phone

Email

Notification Info

Notification Info

Notification Info

1.2 Licensor Defined

The Publisher and Reseller shall be jointly referred to as the “Licensor” throughout this Agreement, obligating both firms to comply with the provisions where the term “Licensor” is used.

1.3 Enterprise Treatment

The Parties agree that the Licensee is one entity within an enterprise consisting of multiple agencies, services, departments, coalition forces (where authorized), and components under the control or authority of the Department of Army, each of which is considered an “Affiliate" of the Licensee.

Glossary

The words included in the Glossary attached as Exhibit 1 shall have the meaning and application to this Agreement as defined in the Glossary.

2. REQUIREMENTS AND PRODUCT FIT

2.1. Requirements

Licensee requires software to enable Licensee to efficiently and effectively execute its missions, perform the business processes, and meet the requirements attached hereto as Exhibit 2 (the “Requirements”).

2.2. Licensor Software Product Capability Matrix

Licensor had an adequate opportunity to inspect the Requirements and completed the Offeror’s Self-Certification and Requirements Worksheet (RFP Attachment 0027) that will become Exhibit 3 where Licensor designated to identify the Requirements met by the Licensor’s software products (the “Software”) and the Requirements that may not be met by the Software. [NOTE: CONTRACTING OFFICERS SHOULD INCLUDE THE TABLE IN EXHIBIT 3 IN THE SOLICITATION WHEN DETAILED REQUIREMENTS ARE REQUIRED FOR SOFTWARE SELECTION.]

2.3. Software Capabilities Summary

Attached hereto as Exhibit 4 is a description of the Software’s capabilities and features (the “Software Capabilities Summary”), which is made a part hereof.

3. GRANT OF LICENSE

The Licensor hereby grants Licensee a license (the “License”) to use the Software under the terms and conditions specified herein.

3.1. Software Products

Licensee may use the Software products listed and described in Exhibit 3 in accordance with the terms and conditions of this Agreement.

3.2. Business Process and Software Modules

Licensor warrants that the Software products and modules listed in (RFP Attachment 0027) Exhibit 3 will meet the Requirements and execute the business processes listed in the Requirements Traceability Matrix (RFP Attachment XX) that will become Exhibit 3 to the extent and in the manner documented in this Agreement. The Licensor further warrants that no additional software from Licensor or from other Publishers is required to execute the listed business processes, unless specifically identified in RFP Attachment 0027 that will become Exhibit 3. See Section 6 of this Agreement for the details of the Product Warranty.

3.3. License Type

Licensor grants to Licensee a perpetual License to use the Software, meaning Licensee has the right to use the Software forever (a “Perpetual License”). Licensor does not transfer any right, title or interest to the Software Source Code or other intellectual property rights owned by the Publisher, other than the rights granted in this Agreement.

OR Alternative clause for a Term License:

Licensor grants to Licensee a Term License for a period of _____months, meaning the Licensee can use the software during the term of the license for the purposes specified under this Agreement. Licensor does not transfer any right, title or interest to the Software Source Code or other intellectual property rights owned by Publisher, other than the rights granted in this Agreement. Licensee agrees to pay Licensor a license fee during the term of the license under the payment terms specified in paragraph 4 below. Licensor recognizes the requirement under federal law to continue performance during a dispute, including a dispute over payment of invoices, until such dispute is resolved. See FAR 52.212-4 and FAR 52.233-1.

3.4. Authorized Quantity

This Agreement authorizes Licensee to grant access to the quantity of Software Units listed in RFP Attachment 0027 that will become Exhibit 3.

3.5. Authorized Users

Subject to the authorized quantity limitations in Exhibit 3, all persons designated as “Authorized Users” by Licensee, in its sole discretion, will be authorized users under this Agreement. Such Authorized Users might be, but are not limited to, U.S. Government civilian personnel, U.S. Government military personnel, independent contractors, coalition forces, and others as required. All such Authorized Users will be subject to and bound by the terms and conditions of this Agreement but no other agreement, including a click through license presented by the Licensor.

3.6. Transfer Rights

3.6.1. The Licensee shall have the right under the terms of this Agreement, without additional written consent of the Licensor, to transfer Software Licenses or Licensee’s rights to use the Software to an Affiliate of the Licensee (a “Transferee”).

3.6.2. Licensee agrees to notify Licensor of any transfers of licenses within 30 days of said transfer. Any such notice shall include the point of contact (POC) information for the Transferee organization(s). Such notice is provided for the convenience of Licensor; for example, to know where the software is being used and to provide software support more efficiently.

3.6.3. The Transferee shall be bound by the terms and conditions of this Agreement.

3.6.4. Licensor agrees that any product or intellectual property (IP) warranties and Maintenance and Support coverage remaining for the transferred Licenses will accompany the transferred Licenses for use by the Transferee under the same terms and conditions as specified in this Agreement.

3.7. Permitted Uses

Licensee may use the Software for any lawful purpose necessary to carry out Licensee’s mission or operational requirements. Licensee agrees it will not permit or engage in misappropriation of Licensor’s IP.

3.8. Geography

This license grant is for use of the Software anywhere in the world.

3.9. Language(s)

Licensor shall supply Licensee with the Software in the languages designated for each item listed below at no additional charge:

3.9.1. Software field names and other literals generally available or shown on an HTML page or other electronic screen presented to users. Languages required: American English

3.9.2. Software documentation. Languages required: American English.

3.9.3. Software training materials and training classes, whether delivered in Publisher classrooms, on line or at Licensee’s site. Languages required: American English

3.9.4. Software support services whether by telephone, on line, or otherwise. Languages required: American English.

3.10. Supported Platforms

Unless otherwise noted in the exceptions list below, Licensee is not restricted to any particular platform for using the Software. Platform is defined as any hardware, networking hardware and software, operating system or other hardware or software component required to operate the Software.

Exceptions: (List here) __________________________________________________________

3.11. Software Installation

Licensee is permitted to install Software at Licensee’s premises on its own equipment or at the location of any third party that is designated by the Licensee to manage or host the Software on Licensee’s behalf.

3.12. Self-Audit

Notwithstanding Licensor audit provisions or practices to the contrary, Licensee agrees it will perform an internal audit of Software quantities in use not more than once a year and will use its best efforts to keep full and accurate accounts that may be used to properly ascertain and verify numbers of licenses and authorized use. Upon Licensor’s written request, Licensee may provide audit reports to Licensor from Licensee’s internal audit records not more than once a year as the sole means of satisfying the Licensor’s requests for audit.

3.13. Temporary Use of Software During Times of Conflict

As part of Temporary Expeditionary Deployments (TEDs), during the term of this Agreement, Licensee may temporarily deploy and install or use Software on, or access from qualified desktops, laptops, mobile devices or servers, a reasonable number of Licensor’s Software products in addition to those previously licensed under this Agreement at no additional cost (“TED Licenses”). TEDs are limited to deployments away from in-garrison locations (any military post or government office where troops or civilian government personnel are at a permanent location), war games, exercises, real world contingencies, and emergency situations such as hurricanes, floods, earthquakes, insurrections, terror attacks or other similar emergencies , where temporary duty stations are needed due to the destruction of government offices or because it becomes the government’s mission to support efforts to mitigate or otherwise manage the emergency situation.

For licenses connected to a Licensee network server, on a semi-annual basis, Licensor shall provide an additional temporary license pool equal to the quantity of network versions purchased, which may be accessed during a TED event.

For computers not connected to a Licensee network server, the Licensor shall provide, on a quarterly basis, a pre-activated temporary (ninety) 90 day single seat network license which can be copied for use on any number of computers.

After a TED has ended, or within twelve (12) calendar months of the start of any TED licenses, whichever is shorter (“Temporary Use Period”), the Licensee will provide a written certification that the TED Licenses have either been removed from service, or payment has been made under this Agreement to purchase additional licenses equal to the number of TED Licenses not removed from service. Licensee agrees to use the TED Licenses in accordance with the terms contained in this Agreement.

3.14. Licenses for Software Evaluation

If Licensee wishes to evaluate any Software generally available from Licensor, Licensee may order trial Software which Licensee may use for trial non-production purposes only.

Licensee’s right to use such Software shall be at no additional charge and shall be: (i) subject to the terms of this Agreement, (ii) solely for trial, non-production purposes only, and (iii) on an “AS IS” basis, without warranties or Maintenance Services of any kind. Licensor shall specify the duration of time for the evaluation. Following the end of the evaluation period, Licensee will cease using and will delete any such trial software from its computer systems. Use of the evaluation software does not constitute an agreement to purchase any licenses of the trial software.

3.15. Permitted Software Copies

Licensor grants Licensee permission to make a reasonable number of copies of the Software and Documentation for legitimate business or mission purposes, including, but not limited to: testing, development, “golden” master discs, multiple production environments, disaster recovery, and continuity of operations purposes to. Licensee is responsible for ensuring that all copyright notices, trademarks and other restrictive legends are maintained on such copies.

3.16 Unrestricted Right to Acquire Competing Products (Re-Use Clause)

Nothing in this License Grant or elsewhere in this LICENSE AGREEMENT or in other documents concerning this license or the software licensed herein shall preclude Licensee from licensing other identical, similar or competitive software from other Publishers or Resellers at any time and for any reason whatsoever.

4. PRICING (PAYMENTS)

4.1. The Licensee shall pay to (Reseller or Publisher) the fees for the Software defined in Exhibit 3 as full consideration for all rights granted hereunder by Licensor.

4.2. Training and Implement Services are covered in the ACWS Performance Work Statement and Contract CLINs. MAINTENANCE AND SUPPORT SERVICES ARE COVERED IN EXHIBIT 6]

5. INTELLECTUAL PROPERTY OWNERSHIP AND USE RIGHTS

5.1. Publisher retains all right, title and interest in its intellectual property (“IP”) licensed to Licensee. Licensee’s rights to use the IP are defined in this Agreement. Publisher’s IP is protected by copyright and other laws of the United States.

5.2. Licensee retains all right, title and interest in Licensee’s IP.

5.3. Licensee Data belongs exclusively to Licensee, regardless of where the Data may reside at any moment in time, including but not limited to Licensor hardware, networks or other infrastructure and facilities where Data may reside, transit through or be stored from time to time. Licensor makes no claim to any right of ownership in Licensee Data. If Licensor is granted access to Licensee’s Data, Licensor agrees to keep the Licensee Data Confidential as that term is defined in the Glossary (Exhibit 1) and the relevant FAR and DFARS provisions pertaining to Confidential Information and Confidentiality. Licensor is not permitted to use Licensee’s data for any purpose that is not explicitly grated in writing by Licensee. Upon Licensee’s request, for any reason whatsoever, Licensor must promptly return all Licensee Data in Licensor’s possession in comma separated value (CSV) format or other format as may be designated at the time of the request by Licensee.

5.4. Licensee might create or hire others (including Licensor) to create modifications, customizations or other enhancements to the Software which might be classified as “Derivative Works” of the Software.

5.4.1. In recognition of Licensee’s unique requirements for confidentiality and mission integrity, whether Licensee creates Derivative Works directly, through Licensor or through other third parties, whether they are “Works for Hire” or not, whether they are based on transactional software or other types of software, Licensee shall retain all right, title and interest to such Derivative Works free of any claims by Licensor to title, restrictions on use, royalties, or other fees.

5.4.1.1. Licensor has no claim to these Derivative Works, whether by Copyright Law or otherwise, and hereby covenants to keep them confidential, to not incorporate them into Licensor’s products or to otherwise distribute them in whole or in part to any third party.

5.5. Licensee covenants that it will not distribute Licensor’s IP to anyone outside the Authorized Users or authorized transferees (Affiliates) defined in this Agreement.

5.6. [NOTE TO KO: REFER TO THE KO GUIDE FOR LANGUAGE TO USE IF YOU ARE LICENSING A SOFTWARE DEVELOPMENT KIT FOR YOUR CUSTOMER TO DEVELOP AND RETAIN OWNERSHIP RIGHTS IN THE RESULTING APPLICATION OR PRODUCT]

6. WARRANTIES

6.1 Product Warranty

6.1.1 Licensor warrants, in a form and to the extent required by FAR, for one (1) year from the date on which the Software is first used in production by Licensee or is Accepted by Licensee, whichever is later, that the Software will perform in all material respects the functions described in the Requirements, the Product Capability Matrix, and the Software Capabilities Summary described herein.

6.1.2 In the event Licensee determines that the Product is a Noncomplying Product, meaning that it fails to meet the Requirements or Business Processes during the one-year period specified above, the warranty will be considered to have been breached. Licensee will notify Licensor in writing of such breach and Licensor will have ten (10) business days thereafter to begin remedying the breach.

6.1.3 Licensor shall use commercially reasonable efforts to correct or provide a remedy for the Software error or errors that cause a breach of this warranty. The warranty period shall be suspended during the time Licensor works to correct the error or errors until such time as the Software is deemed by Licensee to conform to the Requirements, the Product Capability Matrix, and the Software Capabilities Summary.

6.1.4 If Licensor is unable to remedy such breach within a commercially reasonable time, Licensor agrees that Licensee may return the Software and Licensor shall promptly refund any moneys paid for such Noncomplying Product.

6.2 Intellectual Property Warranty

Publisher represents and warrants that, as of the Effective Date of this Agreement:

6.2.1 Publisher has full power and authority to grant Licensee the rights granted herein , including the right to use, display and distribute each Software Product to the extent set forth in this Agreement and that each Product is free of any and all restrictions, settlements, judgments or adverse claims;

6.2.2 With respect to Third Party Materials provided by Publisher with or embedded in its Software licensed to Licensee in this Agreement (including without limitation, all Open Source software), Publisher warrants to Licensee that it has disclosed in this Agreement in Exhibit 5 the product name, product description/purpose, author (Publisher), author’s address, and contact information for all such Third Party Material;

6.2.3 Publisher warrants to Licensee that it has obtained all necessary permissions and licenses to all Third Party Materials (including without limitation, all Open Source licenses) provided in or with the Software with the rights and in a form necessary for Publisher to use the Third Party Materials in the manner Publisher has used them in or with the Software;

6.2.4 Publisher complies with and shall continue to comply with all third party licenses (including, without limitation, all Open Source licenses) associated with any Third Party Materials provided with each Product;

6.2.5 To the extent any Third Party Materials are provided in the Software, Licensor warrants that Licensee’s use of such Product as provided by Licensor and in accordance with this Agreement will not be in conflict with any third party license requirements and will satisfy all conditions on use, modification or distribution of any such Third Party Materials without the need for any additional action or license fees on Licensee’s part;

6.2.6 Publisher indemnifies Licensee against claims for license fees from any third party whose materials Publisher delivers with or embeds in the Software licensed hereunder. Publisher warrants that Licensee does not and will not need to procure any rights or licenses to any patents or other third-party intellectual property rights to use the Product delivered by Publisher as intended in this Agreement;

6.2.7 Publisher warrants to Licensee that the Third Party Materials provided by Publisher with or embedded in its Software will perform as represented to Licensee;

6.2.8 The Product does not constitute and will not constitute a misuse or misappropriation of the trade secrets of any third party;

6.2.9 Any Marks on the Product or its packaging do not infringe any third party trademark rights;

6.2.10 The Product and the use thereof, does not infringe on any US patent, copyright, trade secret or other proprietary right of any third party and Publisher is not aware of any facts upon which such a claim for infringement could be based;

6.2.11 The Product will not (i) contain lock out devices or have any virus, disabling device, time bomb, Trojan horse, back door or any other harmful component, (ii) replicate, transmit or activate itself without control of a person operating the computing equipment on which it resides, (iii) alter, damage or erase any data or other computer programs without control of a person operating the computing equipment on which it resides or (iv) contain any code, key, node lock, time-out or other function whether implemented by electronic, mechanical or other means which restricts or may restrict use or access to programs or data based on residency on a specific hardware configuration, frequency or duration of use, or other limiting criteria; provided, however, that Publisher shall be entitled to include in the Products a license key that activates the Programs for use in accordance with this Agreement, which license key is not disabling code and shall not be deemed a virus or other code in violation of this sub-paragraph; and

6.2.12 If Publisher breaches this Intellectual Property Warranty, Licensee’s remedy, and Publisher’s liability, shall be the infringement indemnification provided by Publisher herein.

6.3 Intellectual Property Indemnification: Patent, Copyright, Trademark, and Trade Secret Protection

6.3.1 Publisher shall, at its expense, defend, indemnify and hold Licensee harmless from any suit or proceeding which may be brought by a third party against Licensee, its departments, officers or employees for the alleged infringement of any patents, copyrights, or trademarks, or for a misappropriation of a trade secret arising out of performance of this Agreement (the “Claim”), including all licensed products provided by the Publisher. For the purposes of this Agreement, “indemnify and hold harmless” shall mean the Publisher’s specific, exclusive, and limited obligation to (a) pay any judgments, fines, and penalties finally awarded by a court or competent jurisdiction, governmental/administrative body or any settlements reached pursuant to Claim and (b) reimburse the Licensee for its reasonable administrative costs or expenses, including without limitation reasonable attorney’s fees, it necessarily incurs in handling the Claim.

6.3.2 Licensee agrees to give Publisher prompt notice of any such claim of which it learns. Licensee has the sole authority to represent itself in actions brought against it. Licensee may, however, in its sole discretion, delegate to Publisher its right of defense of a Claim and the authority to control any potential settlements thereof. Publisher shall not without Licensee’s consent, which shall not be unreasonably withheld, conditioned, or delayed, enter into any settlement agreement which (a) states or implies that Licensee has engaged in any wrongful or improper activity other than the innocent use of the material which is the subject of the Claim, (b) requires the Licensee to perform or cease to perform any act or relinquish any right, other than to cease use of the material which is the subject of the Claim, or (c) requires the Licensee to make a payment which Publisher is not obligated by this Agreement to pay on behalf of the Licensee. If the Licensee delegates such rights to the Publisher, the Licensee will cooperate with all reasonable requests of Publisher made in the defense and or settlement of a Claim. In all such events where Licensee has delegated such rights to Publisher, the Licensee shall have the right to participate in the defense of any such suit or proceeding through counsel of its own choosing at its own expense. It is expressly agreed by the Publisher that, in the event the Licensee provides support to the Publisher in defending any such Claim, the Publisher shall reimburse the Licensee for all necessary expenses (including attorneys' fees incurred by the Licensee for such support. If Licensee does not delegate the right of defense to Publisher, upon written request from the Licensee, the Publisher will, in its sole reasonable discretion, cooperate with Licensee in its defense of the suit.

6.3.3 If the right of defense of a Claim and the authority to control any potential settlements thereof is delegated to the Publisher, the Publisher shall pay all damages and costs finally awarded therein against the Licensee or agreed to by Publisher in any settlement. If information and assistance are furnished by the Licensee at the Publisher’s written request, it shall be at the Publisher’s expense, but the responsibility for such expense shall be only that within the Publisher’s written authorization.

6.3.4 If, in the Publisher’s opinion, the licensed products furnished hereunder are likely to or do become subject to a claim of infringement of a United States patent, copyright, or trademark, or for a misappropriation of trade secret, then without diminishing the Publisher’s obligation to satisfy any final award, the Publisher may, at its option and expense, substitute functional equivalents for the alleged infringing licensed products, or, at the Publisher’s option and expense, obtain the rights for the Licensee to continue the use of such licensed products.

6.3.5 If any of the licensed products provided by the Publisher are in such suit or proceeding held to constitute infringement and the use thereof is enjoined, the Publisher shall, at its own expense and at its option, either procure the right to continue use of such infringing products, replace them with non-infringing items, or modify them so that they are no longer infringing.

6.3.6 If use of the licensed products is enjoined and the Publisher is unable to do any of the preceding set forth in sub-paragraph 6.3.4 or 6.3.5 above, the Publisher agrees to, upon return of the licensed products, refund to the Licensee the license fee paid for the infringing licensed products plus any unused prepaid maintenance fees. The obligations of the Publisher under this Section continue without time limit and survive the termination of this Agreement.

6.4 Licensee Indemnification of Licensor

Licensee is prohibited by federal Law from indemnifying any entity. See Far 52.212-4 (v) and the Anti-Deficiency Act. Licensee agrees to pay for any loss, liability or expense, which arises out of or relates to Licensee’s acts or omissions with respect to its obligations hereunder, where a final determination of liability on the part of Licensee is established by a court of law or where settlement has been agreed to by Licensee. This provision shall not be construed to limit the Licensee’s rights, claims or defenses which arise as a matter of law or pursuant to any other provision of this Agreement. This provision shall not be construed to limit the sovereign immunity of Licensee.

7. FUNCTIONALITY REPLACEMENT AND EXTENDED SUPPORT

7.1. If the form, fit, or functionality contained in any Software product acquired hereunder is substantially reduced or if a Software product is replaced, and/or Licensor provides the same or substantially similar functionality under a separate, repackaged, or renamed product, then the Licensee is entitled to use the substitute software without incurring additional license fees. Updates, upgrades and new releases shall be provided by Licensor, provided that Licensee continues to pay maintenance fees at the same rate previously established. The Licensee shall be entitled to buy additional licenses of the replacement software at pre-negotiated discounted rates, if such discounts were secured in an option.

7.2. If following the period in which Licensor is required to offer Support and Maintenance services, Licensor shall have ceased providing Support and Maintenance services to Licensee (hereafter, the “Unsupported Product “), then Licensor will deliver, at no additional cost to Licensee, a substitute Product which is generally available and is licensed by Licensor to its other licensees and which provides equivalent features and functionality as the Unsupported Program.

7.3. For a minimum period of one year from the date of productive use of the substitute product by the Licensee, Licensor shall extend support to the Licensee for the substitute product under either (a) the same terms and conditions as were originally offered or provided to the Licensee in the original license or support agreement for the unsupported product; or (b) the same terms and conditions as are offered to its other licensees for the substitute product. The choice of support terms will be at the discretion of the Licensee.

7.4. The Licensor is prohibited from repackaging, re-bundling, renaming or merging existing or new products having the same or similar function as the products listed in Exhibit 3 as a means of re-pricing or re-licensing such listed products.

7.5. If Licensor repackages, re-bundles, renames or merges existing or new products having the same or similar function as the products listed in Exhibit 3, Licensor shall provide updates, upgrades and new releases of said products under this Agreement at no additional cost.

7.6. Licensor will give Licensee one hundred eighty (180) days advance written notice before Licensor discontinues support of any Product.

8. MAINTENANCE & SUPPORT SERVICES

Maintenance and support services are covered in the agreement attached hereto as Exhibit 6.

9. GENERAL PROVISIONS

9.1. Order of Precedence

The Parties agree that the terms of this Agreement supersede and take precedence over any other written or verbal agreements, to include, but not limited to, a shrink-wrap agreement included with the Software (whether presented in writing or electronically), a click through agreement included with the Software, or any other terms purported to apply to the Software including Licensor’s commercial or Government software license agreement of any name or title.

9.2. Click-Wrap Licenses

Licensee shall not be bound by the terms of a Click-Wrap license encountered at any point during or after Software installation or use, notwithstanding Licensee or its Authorized Users clicking ‘Accept’ in order to continue installing or using the Software.

9.3. Licensee Confidentiality

The parties agree to treat each other’s confidential information with the level of care extended to their own confidential information in accordance with the requirements imposed by Federal law.

9.4. Severability

If any clause of this Agreement is found by a court to be unenforceable it shall be severed from the Agreement or rewritten to correct the unenforceable condition and the remaining clauses shall continue to have their full force and effect.

9.5. Term

The term of this Agreement shall begin on the Effective Date of this Agreement and shall terminate ________________[FOR THE KO TO INSERT]. If this Agreement is for the licensing of Software under a Perpetual License, the obligations of the Licensor regarding the License Grant, Transferability of licenses, Self-Audit, Intellectual Property Warranties and Intellectual Property Indemnifications shall survive any termination and will continue into perpetuity with the license.

9.6. Termination

Licensor may not terminate this Agreement for non-payment. Pursuant to FAR section 52.212-4 (l) and (m), the Licensee may terminate this Agreement for convenience or for cause.

9.7. Limitation of Liability

Licensee will not seek consequential damages as specified in FAR 52.212-4(p). Licensor agrees to limit any liability for a breach of this Agreement by Licensee to actual damages only. No incidental, consequential or other indirect damages will not be sought by Licensor against Licensee.

9.8. Assignment

Licensor is permitted to assign the right to receive payment from Licensee as permitted by FAR 52.212-4 (b). No other assignment by either party is permitted without the express written consent of the other party except as provided for in Paragraph 3.6 regarding assignment and transfer of licenses by Licensee.

9.9. Relationship of Parties

The parties shall have the relationship of independent contractor with respect to one another. The parties specifically agree neither is an employee or employer of the other party or its associates.

9.10. Governing Law

Federal law and regulation govern this Agreement. Federal courts have jurisdiction over the parties and the subject matter.

9.11. Dispute Resolution

All disputes concerning this Agreement will be resolved through the processes set forth in FAR 52.212-4(d) and 52.233-1. Licensor is put on notice that those FAR provisions require Licensor to continue performing under this Agreement pending the outcome of any dispute.

9.12. Integration

This Agreement and its Exhibits represent the entire agreement by and among the Parties with respect to the acquisition and licensing of the Software. No other agreements, documents, or materials outside this Agreement shall have any binding impact on the Parties.

9.13. Rights of Survivorship

This Agreement shall survive unto Licensor, its successor, rights and assigns. The Licensee’s rights to use the Software and the terms and conditions of this Agreement shall survive the acquisition or merger of Licensor by or with another entity.

9.14. FAR and DFARs Provisions

These are provided in the RFP and resulting Contract.

10. EXHIBITS

10.1. Glossary

10.2. Licensee Requirements

10.3. Licensor’s Software Product Capabilities Matrix

10.4. Software Capabilities Summary

10.5. Third Party Software List

10.6. Maintenance and Support Addendum

ARMY CONTRACT WRITING SYSTEM SOFTWARE LICENSE AGREEMENT TEMPLATE

Exhibit 1

Glossary

Exhibit 2

Licensee Detailed Requirements List and Description

Number

Title

Description

Exhibit 3

Software Licensing Disclosure (Attachment 0024) and ACWS Offeror Self-Certification (Attachment 0027) are hereby incorporated into the ACWS Master Software License Agreement as Exhibit 3.

Licensor warrants that the licensed products and modules listed and certified in RFP Attachments 0024 and 0027 will execute the Army Contracting business processes listed in the ACWS Requirements Matrix and that no additional software from Licensor or from other Publishers is required to execute the listed business processes.

ACWS User Licensing Types

Please select and complete, where applicable, the correct type, named user and modify the definition for each software proposed in accordance with Attachments 0024 and 0027. Named Users is the basis for calculating the quantity of the Software licensed and the resulting price for the Software. A named user shall be distinguished by a separate user ID assigned or intended to be assigned to an Authorized User of the Software as defined in this Agreement. Additional Named User licenses may be purchased under this Agreement at the price shown above. NOTE: Examples for Licensing Models/Types include: Named Users, Concurrent Users, Unlimited Users, Processors, Enterprise and Site.

[NOTE: If enterprise is selected, include a statement which defines the enterprise, for example, the U.S. Licensee to include active military, reserves, civilian, coalition forces (when authorized) and contractors supporting the Licensee including all civilian and military locations and personnel worldwide. If site is selected, include a statement which provides for relocations, name changes and successor organizations to continue using the license.]

Concurrent Users

This Agreement utilizes Concurrent Users as the basis for calculating the quantity of the Software licensed and the resulting price for the Software as shown in Paragraph 4. A Concurrent User shall be distinguished by a group of user IDs assigned for use by Authorized Users. The quantity of Concurrent Users under this license grant shall not exceed _______. The number of Concurrent Users is based on the expected maximum number of Authorized Users logged into the Software at any point in time. Additional Concurrent Users may be purchased under this license at the price shown in Paragraph 4.

Processor Based Licenses

This Agreement utilizes Processors (or Cores) as the basis for calculating the quantity of the Software licensed and the resulting price as shown in Paragraph 4. The total number of Processors granted under this license is _______. The Software shall be installed only on machines utilizing licensed processors or cores. Authorized Users are granted access to the Software only on or through connections to machines having licensed processors or cores installed. Virtualized machines shall be counted as follows: [NOTE: The method for counting virtualized machines can vary. The language should be reviewed carefully for accuracy, simplicity and consistency in counting virtual processors].

Site License

This Agreement utilizes a specifically defined Site as the basis for calculating the quantity of the Software licensed and the resulting price as shown in Paragraph 4. The Site for this license is defined as ____________________. Licensee is permitted to install the Software on the premises of the Site or at some other location as the Licensee determines is in the best interests of meeting its mission and business requirements. Authorized Users may remotely access the Software under this Site license; however, Licensee may grant access only to Authorized Users with a legitimate need to access the Software to meet the mission and business requirements of the Site.

Enterprise License

This Agreement utilizes a specifically defined Enterprise as the basis for calculating the quantity of the Software licensed and the resulting price shown in Paragraph 4. The Enterprise for this license is defined as ________________________________________________________. Licensee is permitted to install the Software on the premises of the Enterprise or at some other location as the Licensee determines is in the best interests of meeting its mission and business requirements. Authorized Users may remotely access the Software under this Enterprise license; however, Licensee may grant access only to Authorized Users with a legitimate need to access the Software to meet the mission and business requirements of the Enterprise.

Exhibit 4

Software Capabilities Summary

[ADD KEY SECTIONS OF THE PROPOSAL THAT EXPLAIN HOW THE SOFTWARE WILL MEET ACWS REQUIREMENTS AND PROMOTE THE KEY FEATURES AND BENEFITS OF THE SOLUTION PROPOSED AND ANY ADDITIONAL BENEFITS OR SERVICES THAT WILL BE PROVIDED TO THE GOVERNMENT AS PART OF THE PROPOSAL]

Exhibit 5

Third-Party/Plug-In Software Embedded in the Licensor’s Software

[LIST ALL THIRD-PARTY/PLUG-IN SOFTWARE HERE] – All products listed here shall also be identified in RFP Attachment 0027.

THIRD-PARTY/PLUG-IN PRODUCT NAME

PRODUCT DESCRIPTION

PUBLISHER / AUTHOR NAME

PUBLISHER / AUTHOR ADDRESS

PUBLISHER / AUTHOR CONTACT INFO

Exhibit 6

Maintenance and Support Addendum Template

Parties: Effective Date: addresses – preamble/recitals

1. PURPOSE OF THIS DOCUMENT

1.1. The purpose of this document is to describe the Support and Maintenance obligations of each party for Software provided to Licensee. Capitalized terms used but not defined in this Addendum shall have the meanings set forth in the Glossary to the Master Software License Agreement (Agreement) between Licensee and Licensor.

2. TERM

2.1. Term of Performance. The term of this Addendum shall remain in effect during the full term of the License Agreement, including any renewal terms agreed upon by the parties.

3. Price and Payment Terms

3.1. What is covered by the Price?

3.1.1. The Price for all Maintenance and Support services described in this Maintenance and Support Agreement includes all Maintenance and Support services listed in Paragraph 5 herein titled Licensee Rights to Maintenance and Support at the SLAs agreed to by the parties as specified in this Agreement.

3.2. The Total Price.

3.2.1. The total price for all Maintenance and Support services under this Agreement is____% (enter a percentage) of the Net License Price after all discounts as specified in the License Agreement (or License Agreements if this Maintenance and Support Agreement applies to multiple License agreements) for these products attached hereto and made a part hereof.

3.2.2. The Net License Price for all Products covered by this Agreement is ____________.

3.2.3. The annual Maintenance and Support price based on the Net License Price in Paragraph 3.2.2 and the percentage in Paragraph 3.2.1 is ______________________.

3.3. Invoicing and Payment.

3.3.1. The annual Maintenance and Support price specified in Paragraph 3.2.3 shall be invoiced annually on the anniversary date of this Agreement. Payment shall be due net 30 days after invoice date. The parties recognize that Federal Government funding laws restrict the Government’s ability to obligate funds. The Government agrees to pay for the first year of Maintenance and Support at the rates agreed upon. Future years will require additional funding authorizations.

3.4. Price and Price Escalation Guarantees

3.4.1. Although the Parties recognize the restrictions on the Government’s ability to agree now to pay in future years, Licensor agrees to extend the initial Maintenance and Support percentage of Net License Price and the resulting Maintenance and Support annual price for the current year plus 4 years. Licensor further agrees to limit future price increases after year 5 (the initial year plus 4 years) to 1% per annum.

4. ADDITIONAL DEFINITIONS

4.1. “Adverse Effect” means any failure of the Software to perform in all material respects in accordance with the applicable Requirements set forth in the Agreement, including all of its exhibits or in the Software Documentation.

4.2. “First Level Support Services” means using commercially reasonable efforts to respond to and solve basic user problems, such as: (i) responding to questions from its users regarding the Requirements or Documentation; (ii) responding to questions from users regarding the Software and attempting to diagnose failures; (iii) attempting to isolate the cause of the problem (for example, determining if the failure is the result of a configuration problem or user error); (iv) attempting to determine if a problem is a known problem; and (v) recommending fixes or other methods to restore operations to the user’s system.

4.3. “Second Level Support” means responding to and using commercially reasonable efforts further defined in the Service Level Agreement (SLA) included in this Agreement to solve significant end user problems that cannot be resolved under First Level Support, such as recommending fixes and methods to restore operations to the user’s system and using commercially reasonable effort to reproduce the reported problem, finding viable workarounds and providing documentation regarding reproducibility to Third Level Support (if necessary).

4.4. “Third Level Support” means problem solving at the engineering or source code level.

4.5. “Impact Priority” means the severity level of the issue.

4.5.1. “High Impact Level” means a severe issue has occurred impacting a wide community of Authorized Users and resulting in very limited or no ability to use the Software.

4.5.2. “Moderate Impact Level” means a significant issue has occurred impacting a large number of Authorized Users and resulting in degraded system performance or availability.

4.5.3. “Low Impact Level” means an issue has occurred impacting a small number of Authorized Users and creating minimal impact on system performance or availability.

4.6. “Hotfixes” are used to eliminate critical errors. Hotfixes are backward compatible with all releases up to the last prior Major Release. New functionalities are normally not provided with hotfixes.

4.7. “Patch”: A patch eliminates one or more errors that are not time-critical or that provide minimal extensions or expansions to Software functionality. Patches are backward compatible with all releases up to the last prior major release. A patch is represented by the third digit of a version number (for example 2.4.1 to 2.4.2). However, usually no changes are made to functionality of the Software.

4.8. “Minor Release”: A minor release is a planned release that represents the ongoing development of a product after a completed release cycle and can include both functional extensions as well as bug fixes. Minor releases are backward compatible with all releases up to the last prior major release. A minor release is represented by the second digit of a version number (for example 2.4.x replaced by 2.5).

4.9. “Major Release”: A major release is a planned release that provides major functional changes to or extensions of the product. Major releases are usually not backward compatible with previous releases. A major release is represented by the first digit of a version number (for example 2.x replaced by 3.x).

5. LICENSEE RIGHTS TO MAINTENANCE AND SUPPORT

5.1. Licensee is entitled to all hotfixes, patches, minor releases and major releases…