TERMS AND CONDITIONS
PRODUCT AND SOFTWARE LICENSE FOR M-DRIVE®
These Terms and Conditions for the Product and Software License for the M-DRIVE® (this “Agreement”) set forth the terms applicable to your use of the M-DRIVE® and accompanying and embedded commercial computer software (the “Software”) and the commercial computer software documentation for the M-DRIVE® (the “Product”). For the purposes of this Agreement, “you” means [customer] (also “[customer]”, “Ordering Activity,” or “Licensee”), and “Licensor” means Trace Systems, Inc.
THIS AGREEMENT IS INCORPORATED INTO, AND MADE A MATERIAL PART OF, ANY CONTRACT OROTHER SIMILAR LEGAL INSTRUMENT (INCLUDING ALL CONTRACTS, TASK ORDERS, PURCHASE ORDERS, CALLS, AND DELIVERY ORDERS) UNDER WHICH THE M-DRIVE® IS ACQUIRED. BY USING THE M-DRIVE® AND/OR SOFTWARE YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
- LICENSE GRANT
- The Product is a Commercial Item as that term is defined in the Federal Acquisition Regulation (“FAR”) at 48 C.F.R. 2.101, and as the term is used in the Defense Federal Acquisition Regulation Supplement (“DFARS”). Licensor hereby grants to you, and you accept, a non-exclusive and non-transferable license (except for the transfer to a U.S. Federal Government entity as set forth in Section 7 below) to use (i) the Product, (ii) the Software in machine-readable, object code form only, (iii) related product documentation or user guides (the “Documentation”), and (iv) related know-how, confidential information, and trade secrets of Licensor solely for the intended purposes of the Product as set forth in the Documentation and in accordance with the provisions contained herein, subject to payment of any applicable license or support fees. You are not permitted, and shall not yourself, or through any parent, subsidiary, affiliate, agent, or other third party, lease, rent, distribute, transfer, or sublicense the Product, including the Software, or any rights therein. The Software may be used only in conjunction with the Product in which it was initially installed. You may not install the Software in any other hardware or a network server, use the Software in a time-sharing arrangement, or use the Software in an unauthorized manner, i.e., in any other manner not expressly authorized in advance and in writing by the Licensor. Further, no license is granted to you in the human readable code of the Software (source code), or in the configuration(s) of the Software, and you agree that you shall not access source code or have any rights therein and that you shall limit access to the configurations as may be necessarily required. Except as provided below, this Agreement does not grant you any rights to patents, copyrights, know-how, trade secrets, trademarks, or any other rights in the Product, including the Software and Documentation. You agree that you have no right, power, or authority to make any modifications to or unauthorized copies of the Software or any of its configurations. Nothing contained in this Agreement shall be construed as conferring by implication, acquiescence, or estoppel any license or other right upon Licensee.
The license granted in this Agreement does not include, and Licensor does not grant to you: (i) the right to grant sublicenses to third parties, (ii) the right to reproduce (duplicate) the Product (including Software) and any portions thereof in copies or records, or, (iii) the right to distribute the Software, any configuration(s) thereof, or any portions thereof, by sale or other transfer of ownership, or by license, lease, rental, or lending (collectively, “Restrictions”). You shall not alter, modify, translate, reverse engineer, decompile, disassemble, decrypt, electronically scan, peel components, copy, or create derivative works of the Product, or of the Software, or assist someone in performing such prohibited acts nor shall you provide access to or permit any parent, subsidiary, affiliate, agent, or other third party to do so. You may not remove, alter, or obscure any product identification, copyright notices, trademarks, or other proprietary rights notices on the Product or embedded within or on the Software.
You have no right or authority, express or implied, directly or indirectly, to offer, or accept, the Products, including the Software, as other than Commercial Items, or to alter, enlarge or limit the terms and conditions or representations expressly contained in this Agreement.
This Agreement does not convey to you any title or interest in the Software, but only a terminable limited right of use, except that, solely in the case of U.S. Federal Government Licensees, Licensor’s right to terminate this Agreement shall only be to the extent, if any, permitted by the contract under which the Product (including the Software) is acquired and federal law. You agree that Licensor owns and holds title to the Software, all configuration(s) thereof, and any Documentation and all subsequent copies thereof regardless of the form or media. Furthermore, title, ownership rights, and intellectual property rights in the Software and any Documentation shall remain with Licensor. The Software and any Documentation are protected by trade secret, copyright and other intellectual property laws and by international treaties. Without limiting the foregoing, the Parties acknowledge and agree that this Agreement grants Licensee a license of the Software, and shall not in any manner be construed as a sale of the Software or any rights in the Software. All rights not expressly granted in the Software under this Agreement are reserved to the Licensor.
3. IMPORT/EXPORT RESTRICTIONS
You agree not to import or export the Software or any Documentation (or any copies thereof) or any products utilizing the Software or any Documentation in violation of any applicable laws or regulations of the United States or the country to which you have imported or exported. You agree to indemnify Licensor from liability if you violate any such laws or regulations.
U.S. Federal Government Licensees: Licensor may only terminate this Agreement, if at all, in accordance with federal law. U.S. Federal Government Licensees may terminate this Agreement in accordance with FAR 52.212-4(l) or 52.212-4(m) and, as relevant and applicable, the Contract Disputes Act, 41 U.S.C. §§ 601-613. Licensor shall not unilaterally revoke, terminate or suspend any rights granted to the U.S. Federal Government Licensee except as allowed by the contract under which the Product, Software and Documentation is acquired or as provided by Federal law. Equitable or injunctive relief, including the award of attorney fees, costs or interest, may be awarded against the U.S. Government only when expressly provided by statute.
5. LIMITED WARRANTY
Licensor may release, deploy or install (either locally or via remote connection) software updates, patches or corrections/fixes to the Software as required unless prohibited or directed not to do so in writing by the Government or Licensee. This warranty shall not apply to any product defect caused solely by your failure to accept and use the currently updated version of the Software as provided and released by Licensor.
EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE PRODUCT, INCLUDING THE SOFTWARE AND DOCUMENTATION ARE LICENSED “AS IS.” THIS IS A LIMITED WARRANTY, AND THE WARRANTY SET FORTH IN THIS AGREEMENT IS THE ONLY WARRANTY MADE BY LICENSOR. LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS. TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE ABOVE LIMITED WARRANTY PERIOD. MOREOVER, IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. NO DEALER, AGENT, OR EMPLOYEE OF LICENSOR IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS LIMITED WARRANTY.
6. U.S. FEDERAL GOVERNMENT RIGHTS
The Products and Software are Commercial Items as the term is defined in 48 C.F.R. 2.101, and as used in 48 C.F.R. Part 12, and is comprised of certain commercial item hardware, “commercial computer software” and “commercial computer software documentation”. The Software, if acquired by or on behalf of a civilian agency of the U.S. Government, is acquired as commercial computer software and/or commercial computer software documentation subject to the terms of this Product and Software License for M-DRIVE®, as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Product and Software License for M-DRIVE® as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4, (and any technical data pertaining to the M-DRIVE® is licensed in accordance with 48. C.F.R. 252.227-7015) of the DOD FAR Supplement (“DFARS”) and its successors, and consistent with 48 C.F.R. 227.7202. This U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in the Software and computer software documentation or technical data related to the Product subject to this Agreement or in any Subcontract or contract under which the Product, including Software and commercial computer software documentation is acquired or licensed.
Updating terms: (i) After award, the Licensee may unilaterally revise terms if they are not material. A material change is defined as: (A) Terms that significantly change U.S. Government rights or obligations; and (B) Terms that increase U.S. Government prices; (C) Terms that decrease overall level of service; or (D) Terms that limit any other U.S. Government right addressed elsewhere in the contract or this Agreement. (ii) For revisions that will materially change the terms of the contract, the revised TERMS AND CONDITIONS, PRODUCT AND SOFTWARE LICENSE FOR M-DRIVE®, must be incorporated into the contract using a bilateral modification. (iii) Any Agreement terms or conditions unilaterally revised subsequent to award that are inconsistent with any material term or provision of this Agreement shall not be enforceable, and neither Party shall be deemed to have consented to them.
7. LIMITATION OF LIABILITIES
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL LICENSOR, OR ITS SUPPLIERS OR RESELLERS, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTIONS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER PERSONAL OR COMMERCIAL DAMAGES OR LOSSES ARISING FROM THE USE OR INABILITY TO USE THE SOFTWARE (WHETHER OR NOT DUE TO ANY DEFECTS THEREIN). IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY DAMAGES EVEN IF LICENSOR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE, OR FOR ANY CLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. IN NO EVENT SHALL LICENSOR’S LIABILITY EXCEED THE PURCHASE PRICE PAID BY YOU FOR THE SOFTWARE.
You agree to defend, indemnify, and hold harmless Licensor, its suppliers, and its resellers from and against liabilities, costs, damages, and expenses (including settlement costs and reasonable attorneys’ fees) arising from any claims from any third party that result from or relate to your use, reproduction, or distribution of the Software, or your breach of any representation, warranty or obligation under this Agreement; provided that, solely with respect to any U.S. Federal Government Licensee, the foregoing indemnification and hold harmless provision shall apply, if at all, only consistent with FAR 52.212-4(u), Unauthorized Obligations, to the extent expressly authorized by statute and specifically authorized under applicable agency regulations; The U.S. Department of Justice has the sole right to represent the United States in any action seeking indemnification in accordance with 28 U.S.C. 516.
9. THIRD PARTY HARDWARE AND SOFTWARE
The Product contains third party hardware and software. Third party hardware is subject to the standard commercial license(s) asserted by the third-party hardware provider. Third party software may contain software known as “free” or “open source” software (“FOSS”). Notwithstanding anything to the contrary, Licensor’s disclaimer of warranty and limitation of liabilities as set forth herein shall apply to FOSS.
10. PRODUCT DATA; CONFIDENTIALITY
You acknowledge and agree that the Software, Product and Documentation including any associated computing architecture and related implementation configurations (both software and hardware related) comprise proprietary information of Licensor and that Licensor maintains such information as know-how and as trade secrets. You agree to take any and all reasonable precautions to maintain the secrecy of such know-how and trade secrets as required by Federal law, including but not limited to 18 U.S.C. 1905 and the Defend Trade Secrets Act, for the benefit of the Licensor. Neither this Agreement nor the contract line item price list, as applicable, shall be deemed “proprietary information” of the Licensor. 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 Licensee may retain any confidential or proprietary information as required by law, regulation or its internal document retention procedures for legal, regulatory or compliance purposes; provided, that all such retained confidential information will continue to be subject to the confidentiality obligations of this Agreement and the contract.
11. GOVERNING LAW
Any matters arising under or relating to this Agreement are governed and construed in accordance with the laws of the Commonwealth of Virginia, without regard to any applicable conflicts of law that would require application of any other law, except that, solely with respect to U.S. Federal Government Licensees, any matters arising under or relating to this Agreement are governed and construed in accordance the federal law of contracts and 18 U.S.C. § 1905, and to the extent the federal law of contracts is silent, the laws of the Commonwealth of Virginia.
In the event any provision of this Agreement is found to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of any of the remaining provisions shall not in any way be affected or impaired.
13. FORCE MAJEURE
Licensor shall not be liable hereunder for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is on account of causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, in which event Licensor shall be excused from its obligations for the period of the delay and for a reasonable time thereafter. Notwithstanding the foregoing, solely with respect to U.S. Federal Government Licensees, this provision is subject to FAR 52.212 -4 (f), Excusable delays.
14. ENTIRE AGREEMENT
You acknowledge that this Agreement is the License customarily provided to the public (made consistent with Federal law and to satisfy the Government’s needs), and you agree as such it is the complete and exclusive statement of the agreement between you and Licensor relating to the Licensee’s rights to use, modify, reproduce, release, perform, display or disclose the Software and Documentation which supersedes all proposals or prior agreements, oral or written, and all other communications between you and Licensor. This Agreement may only be modified by a written agreement signed by both you and an authorized representative of Licensor.