END USER SOFTWARE LICENSE AGREEMENT
GSA SCHEDULE 70 COMPLIANT FORM
(Authorized for US Government and State Customers)
CONFORMITY & APLLICABILITY
The Company represents and warrants that the substantive provisions of Sections 1 through 12 of this EULA conform in all material respects with the terms and conditions of the EULA under the Company's General Services Administration (GSA) IT Schedule 70 contract (No. GS-35F-0006W). Section 13 is furnished for licensees under a state agency Master Contract, if applicable.
This EULA is only valid if you are US government entity or state government entity or political subdivision thereof authorized to purchase under the referenced Master Contract.
MASTER CONTRACT REFERENCE: [Insert State/Federal Agency, Contract Title and Contract No.]
THIS END USER LICENSE AGREEMENT ("EULA") is a legal agreement between you, the licensee ("you") and Mutualink, Inc. ("Company"), the licensor, in connection with your applicable Purchase Order or Statement of Work ("Order") for Mutualink related hardware, software and services issued under the terms of your Master Contract referenced above (the "Master Contract").
For purposes of this EULA:
"Authorized Hardware" means End-user Devices which are designed and intended to host and operate instances of Mutualink Software on a dedicated basis, and in the case of other computing devices, it means End-user general computing devices that meet Mutualink specified operating requirements upon which Edge Client Software or other Software is licensed to operate by an authorized End-user.
"Claims and Damages" means any and claims, demands, causes of action, suits, reckonings, damages, awards, or penalties of every kind or nature , whether grounded in common law, statute or otherwise which may brought against, made to suffer to exist, or sought to be enforced, including but not limited to those arising from breach of contract or express or implied duty, detrimental reliance, tort, or any other theory.
"End-user" means any individual whose is an employee or agent of yours that you authorize to use the Software for government purposes and in compliance with this EULA.
"End-user Devices" means any physical computing, processing, machine interface or communication interface hardware manufactured and sold by Mutualink for End-user use including, but not limited to, media gateway or network interface devices, dedicated Interoperable Workstations appliances (IWS), and/or other edge devices.
"Edge Client Software" means licensed instances of Software intended to be installed on an End-user's client computer and to operate with remotely delivered Software application services in conjunction therewith or services delivered by a licensed server operating licensed Software intended to serve Edge Client Software instances.
"Interoperability Network" means a network of authorized End-users users that may communicate with one another through Software and related Mutualink hardware, including the communications connectivity, routing and switching and/or monitoring services and functions that enable the sharing, transmission or receipt of information or data by and among any two or more authorized user endpoints or other service points in the network.
"Peer Network Access Services" means those services relating to an End-user's licensed access and use of the Interoperability Network, including user authentication and security validation services, network directory administration services, routing services, endpoint network quality health and monitoring services, dynamic software update services.
"Software" shall mean licensed instances of Mutualink manufactured software and/or firmware together with associated software-as-a-service application functions, if any, that may be accessed by, or delivered to, an End-user in connection with such instance of such Software including, but not limited to, Peer Network Services, and gateway, transformation, information delivery, data delivery, alerting, and notification services and functions, provided, however, with respect to third party information content which may be accessed and viewed by the Software, the scope thereof is limited to the viewing and use of such content for End-user use without any right of republication, retransmission, or dissemination except to other authorized Interoperability Network endpoints via the Interoperability Network for government use using the functions of the Software.
- GRANT OF LICENSE. Company grants to you, and you accept, a limited, non-exclusive, non-transferable license (the "License"), to operate the compiled executable version of the Software on the Authorized Hardware for which it is designated and authorized solely for use by a Government agency or instrumentality, for a period commensurate with the Peer Network Access Service or license subscription period specified in the Order. When the end user is an instrumentality of the U.S., recourse against the United States for any alleged breach of this Agreement must be made as a dispute under the contract under the disputes clause (Contract Disputes Act). Mutualink shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Contracting Officer.
- OWNERSHIP. The Software is protected by copyright and other intellectual property laws and You acknowledge that Company or its suppliers own all (a) patents, copyrights, trade secrets, trademarks, trade names and other intellectual property and proprietary rights relating to or residing in the Software, and (b) software and programming code that supports the operation of this Software. The Software is licensed, not sold, even if it is pre-loaded or installed, or embedded in Authorized Hardware.
- LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not modify, alter, reverse engineer, decompile, or disassemble the Software or otherwise attempt to derive the source code of the
- NO RENTAL/COMMERCIAL HOSTING. You may not rent, lease, lend, sell, resell, partition, sublicense, transfer (including indirect transfers), assign or otherwise transfer for value the Software or provide commercial hosting services with the
- CONSENT TO USE OF DATA. You agree that Company and its affiliates may collect and use information gathered as part of the product support services provided to you, if any, related to the Company may use this information solely to improve its products or to provide customized services or technologies, and to monitor the quality and any disruptions in the Interoperable Network as long as it does so in an anonymous format.
- ADDITIONAL SOFTWARE/SERVICES. This EULA applies to updates, supplements, add-on components, or modifications of the Software that Company may provide or make available to you after the date you obtain your initial
- EXPORT CONTROL. You agree that you shall comply with all applicable export control, anti-corruption, anti-terrorism, anti-money laundering laws, rules, regulations and orders of the United States, including but not limited to, all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), Department of State, or other United States agencies or authorities, and not to export, or allow the export or reexport of the Software in violation of any such restrictions, laws or regulations (including, without limitation, export or re-export to countries prohibited in the then current Supplement 1 to Part 770, or to embargoed persons such as Specially Designated Terrorists (SDT), Foreign Terrorist Organizations (FTO), Specially Designated Global Terrorists (SDGT), and Specially Designated Narcotics Traffickers (SDNT), as provided in Part 744 of, the U.S. Export Administration Regulations (or any successor supplement or regulations)("EAR"), or prohibited or unauthorized persons under the OFAC regulations (31 C.F.R. §500 et. seq.), or barred entities or persons under International Traffic in Arms Regulations (ITAR) (22 C.F.R. §127.7). The SOFTWARE CONTAINS ENCRYPTION SOFTWARE AND THE EXPORT OF ANY SUCH ENCRYPTION SOFTWARE TO ANY DESTINATION OUTSIDE OF THE UNITED STATES IS PROHIBITED ABSENT A LICENSE OR OTHER APPLICABLE EXEMPTION UNDER PART 740 OF THE EXPORT ADMINISTRATION REGULATIONS.
- GOVERNMENTAL RIGHTS AND USERS. United States Government users of the Software and any contractor thereof are licensed only under the terms of this License, which is our standard licensing agreement for commercial end use. The Government is afforded only those license rights as stated in this Agreement pursuant to FAR 52.227-14 "Rights in Data" (Dec. 2007); DFARS 227.7015 "Technical Data-Commercial Items" (Feb. 2014) and other applicable DFARS provisions.
- LIMITED SOFTWARE WARRANTY. EXCEPT AS EXPRESSLY PROVIDED BELOW, COMPANY MAKES NO, AND DISCLAIMS ALL, WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE (EVEN IF COMPANY HAD BEEN INFORMED OF SUCH PURPOSE), NON-INFRINGEMENT, AND ITS ERROR-FREE Company warrants to You that the Software will perform its intended programmed function materially free from error when operated on properly functioning and routinely updated and maintained Authorized Hardware that meets the minimum performance and operating requirements establish by the Company. The foregoing warranty is limited for a period of one (1) year from the date of acceptance in accordance with the FAR and the underlying GSA Schedule Contract. In the case of any defect which is subject to warranty coverage ("Warrantable Defect"), Mutualink will make commercially reasonable efforts to repair the Warrantable Defect in a reasonable period of time at no cost to You (a "Repair"). In the event that Mutualink determines that it is unable to make a Repair, as determined by Mutualink in its sole discretion, Mutualink may elect to make refund to you in the amount of your Authorized Hardware purchased (a "Refund"). You agree that Repair or a Refund are your sole and exclusive only remedies, and that you are not entitled to, and waive, any other rights to damages.
- LIMITATION OF LIABILITY. IN NO CASE SHALL MUTUALINK BE LIABLE TO YOU, FOR ANY "CLAIMS AND DAMAGES", EXCEPT FOR THOSE OBLIGATIONS AND REMEDIES THAT ARE AVAILABLE UNDER APPLICABLE WARRANTIES FROM MUTUALINK, IF ANY, OR IN THE CASE OF WILLFUL AND INTENTIONAL MISCONDUCT BY MUTUALINK, OR ITS DIRECT EMPLOYEES ACTING WITHIN THE SCOPE OF EMPLOYMENT AT THE DIRECTION OF NOTWITHSTANDING ANYTHING TO THE CONTRARY AND WITHOUT LIMITING THE EFFECT OF ANY OTHER PROVISION LIMITING LIABILITY OR DAMAGES, THE MAXIMUM LIABILITY THAT MUTUALINK, INC. SHALL HAVE WITH RESPECT TO YOU FOR ANY "CLAIMS AND DAMAGES" ARISING OUT ANY CLAIM OR CAUSE OF ACTION RELATING TO THE PURCHASE, USE OR OPERATION OF MUTUALINK PRODUCTS AND/OR SERVICES SHALL BE LIMITED TO THE LESSER OF $1,000 IN THE AGGREGATE OR THE PURCHASE PRICE PAID AND RECEIVED BY MUTUALINK IN RESPECT OF THE ACTUAL PRODUCTS AND/OR SERVICES SOLD OR USED THAT RELATE TO THE CONTROVERSY WITHIN THE PRECEDING 12 MONTHS.YOU ACKNOWLEDGE THAT THE FOREGOING LIMITATION OF LIABILITY IS COMPLETE AND EXCLUSIVE AND REFLECTS AN ALLOCATION OF RISK BETWEEN YOU AND US IN VIEW OF THE FEES THAT WE CHARGE TO YOU. THE FOREGOING EXCLUSION/LIMITATION OF LIABILITY SHALL NOT APPLY (1) TO PERSONAL INJURY OR DEATH CAUSED BY MUTUALINK'S NEGLIGENCE; (2) FOR FRAUD; (3) FOR EXPRESS REMEDIES UNDER LAW OR THE SCHEDULE CONTRACT; OR (4) FOR ANY OTHER MATTER FOR WHICH LIABILITY CANNOT BE EXCLUDED BY LAW.
- NOTICES. All notices required to be given herein shall, unless otherwise stated, be made in writing and sent to the other party by S. Mail, postage pre-paid, return receipt requested (or by certified mail) or by a national overnight parcel carrier to the parties' respective address below, or such other address as may be specified in writing in compliance with this provision, and any such notice shall be deemed received by the addressee three(3) days after such notice was deposited with the U.S. Postal Service, or the date actually delivered by the overnight carrier. Notices to the parties shall be sent as follows:If to the Company:Mutualink, Inc.1269 South Broad Street
Wallingford, Connecticut 06103
Attention: Licensing Department
If to You: At the address specified in an applicable Order.
- GOVERNING LAW. United States Federal law shall govern the validity, construction, interpretation, and performance of this Venue, jurisdiction, and the statute of limitations are mandated by applicable Federal law.
- HARMONIZATION PROVISION FOR STATE CONTRACTS. To the extent the referenced Master Contract is a contract with any state government entity, the foregoing provisions are modified as follows:
- Section 9 hereof with respect to the date of acceptance shall be governed by the Master Contract, and if silent as to such matters, the date of acceptances shall be the date of first use of the Software by an authorized End-user of the Software.
- Service Level Agreement. Notwithstanding the limitations of Section 9, the Company warrants the service levels set forth in the Service Level Agreement and you shall have the remedies provided thereunder.
- Choice of Law. Section 12 hereof shall be governed by the choice of law provisions of the Master Contract.
- Contract Officer. References to the term "Contracting Officer" shall mean the procurement officer or other person designated as the state entity's administrative or contracting authority under the Master Contract.
- Reservation of Intellectual Property Rights. In no case shall any greater rights in or privileges to use the Software, or any intellectual property embodied therein or represented thereby (the "Underlying IP"), be granted to you notwithstanding any provision which purports to grant or reserve any greater rights in or to the Software or any Underlying IP therein or represented thereby under the Master Contract, and no prime contracting party has been given the right or authority, on behalf o the Company to do the same. The foregoing reservation may not be waived except in a writing executed and delivered by the Company to you and the extent expressly stated therein, nor shall the Company's failure to promptly enforce any violation of this EULA be interpreted or construed to operate as any implied grant or conveyance, by means of estoppel, laches or otherwise, of any right or license to use any of the Software or the Underlying IP even if the Company becomes aware of or is notified of such offending use.
- State Defenses. To the extent the prime contracting party has waived, has not been afforded, or is prohibited from enjoying any right to indemnification against third party claims arising out of your use or operation of the Software for governmental purposes, the Company is entitled, to the extent recognized by applicable law, to assert government contractor immunity or similar defenses against any such third party claimant.