Software

1.

Inspection/Acceptance

The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The ordering activity reserves the right to inspect or test any software that has been tendered for acceptance. The ordering activity may require repair or replacement of nonconforming software at no increase in contract price. The ordering activity must exercise its postacceptance rights (1) within a reasonable time after the defect was discovered or should have been discovered; and (2) before any substantial change occurs in the condition of the software, unless the change is due to the defect in the software.

2.

Guarantee/Warranty

(a)

(b)

(c)

3.

Technical Services

In accordance with the supplier's standard commercial terms.

4.

Software Maintenance

(a)

Software maintenance service shall be in accordance with the supplier's commercial items.

(b)

Invoices for maintenance service shall be submitted by the contractor on a quarterly or monthly basis, after the completion of such period. Maintenance charges must be paid in arrears (31 U.S.C. 3324). PROMPT PAYMENT DISCOUNTS, IF APPLICABLE, SHALL BE SHOWN ON THE INVOICE.

(c)

GeoRover offers prorated maintenance (see GeoRover software)

5.

Periods of term license (132-32) and of Maintenance (132-34)

(a)

The contractor shall honor orders for periods on one year or less.

(b)

Term licenses and/or maintenance may be discontinued by the ordering activity on thirty (30) calendar days written notice to the contractor.

(c)

When annually appropriated funds are cited on an order for term licenses and/or maintenance, the period of the term licenses and/or maintenance shall automatically expire on September 30 of the contract period or at the end of contract period, whichever occurs first. Renewal of the term licenses and/or maintenance orders citing the new appropriation shall be required, if the terms licenses and/or maintenance is to be continued during any remainder of the contract period.

(d)

Cross-year Funding Within Contract Period
Where an ordering activity's specific appropriation authority provides for funds in excess of a 12 month, (fiscal year) period, the ordering activity may place an order under this schedule contract for a period up to the expiration of the contract period, notwithstanding the intervening fiscal years.

(e)

Ordering activities should notify the Contractor in writing thirty (30) calendar days prior to the expiration of an order, if the term licenses and/or maintenance is to be terminated at that time. Orders for continuation of term licenses and/or maintenance will be required if maintenance is to be continued during the subsequent period.

6.

Conversion From Term to Perpetual License.

(a)

The ordering activity may convert licenses from term to perpetual for any or all software at any time following acceptance of software. At the request of the ordering activity the contractor shall furnish within ten (10) calendar days, for each software product that is contemplated for conversion, the total amount of conversion credits which have accrued while the software was on term license and the date of the last update or enhancement.

(b)

Conversion credits which are provided shall, within the limits specified, continue to accrue from one contract period to the next, provided the software remains on term license within the ordering activity .

(c)

The term license for each software product shall be discontinued on the day immediately preceding the effective date of conversion from a term license to a perpetual license.

(d)

The price the ordering activity shall pay will be the perpetual license price that prevailed at the time such software was initially ordered under a term license, or the perpetual license price prevailing at the time of conversion from a term license to a perpetual license, whichever is the less, minus an amount equal to __________% of all term license payments during the period that the software was under a term license within the ordering activity.

Exclusive to BigFix Inc.

The price the ordering activity shall pay will be the perpetual license price that prevailed at the time such software was initially ordered under a term license, or the perpetual license price prevailing at the time of conversion from a term license to a perpetual license, whichever is the less, minus an amount equal to 60% of all term license payments during the period that the software was under a term license within the ordering activity. Licensee's rights to the upgrades (i.e., major releases whereby the version numbers to the left of the decimal point increase), updates (i.e., minor releases whereby the version numbers to the right of the decimal point increase) and access to new fixlet messages regarding the Supplier's products shall only be provided on a perpetual basis in the event support and maintenance fees are paid at a price mutually agreed upon by the parties at the time of conversion.

7.

Term License Cessation

(a)

After a software product has been on a continuous term license for a period of ___________ * months, a fully paid up, non exclusive, perpetual license for the software product shall automatically accrue to the ordering activity. The period of continuous term license for automatic accrual of a fully paid up perpetual license does not have to be achieved during a particular fiscal year; it is a written Contractor commitment which continues to be available for software that is initially ordered under this contract, until a fully paid up perpetual license accrues to the ordering activity. However, should the term license of the software be discontinued before the specified period of the continuous term license has been satisfied, the perpetual license accrual shall be forfeited.

Exclusive to BigFix Inc.

After a software product has been on a continuous term license for a period of 60* months, a fully paid up, non exclusive, perpetual license for the software product shall automatically accrue to the ordering activity. The period of continuous term license for automatic accrual of a fully paid up perpetual license does not have to be achieved during a particular fiscal year; it is a written Contractor commitment which continues to be available for software that is initially ordered under this contract, until a fully paid up perpetual license accrues to the ordering activity. However, should the term license of the software be discontinued before the specified period of the continuous term license has been satisfied, the perpetual license accrual shall be forfeited. Licensee's rights to the upgrades (i.e., major releases whereby the version numbers to the left of the decimal point increase), updates (i.e., minor releases whereby the version numbers to the right of the decimal point increase) and access to new fixlet messages regarding the Supplier's products shall only be provided on a perpetual basis in the event support and maintenance fees are paid at a price mutually agreed upon by the parties at the time of accrual.

(b)

The contractor agrees to provide updates and maintenance service for the software after a perpetual license has accrued, at the prices and terms of Special Item Number 132?32, if the licensee elects to order such services. Title to the software remains with the contractor.

8.

Utilization Limitations - (132-32, 132-33 and 132-34)

(a)

Software acquisition is limited to commercial computer software defined in FAR Part 2.101

(b)

When acquired by the ordering activity, commercial computer software and related documentation so legend shall be subject to the following:

(1)

Title to and ownership of the software and documentation shall remain with the contractor, unless otherwise specified.

(2)

Software licenses are by site and by ordering activity. An ordering activity is defined as a cabinet level or independent ordering activity. The software may be used by any subdivision of the ordering activity (service, bureau, division, command, etc.) that has access to the site the software is placed at, even if the subdivision did not participate in the acquisition of the software. Further, the software may be used on a sharing basis where multiple ordering activities have joint projects that can be satisfied by the use of the software placed at one ordering activity's site. This would allow other ordering activities access to one agency's database. For ordering activity public domain databases, User ordering activities and third parties may use the computer program to enter, retrieve, analyze and present data. The User ordering activity will take appropriate action by instruction, agreement, or otherwise, to protect the contractor's proprietary property with any third parties that are permitted access to the computer programs and documentation in connection with the User ordering activity's permitted use of the computer programs and documentation. For purposes of this section, all such permitted third parties shall be deemed agents of the User ordering activity.

(3)

Except as is provided in paragraph 8.b above, the ordering activity shall not provide or otherwise make available the software or documentation, or any portion thereof, in any form, to any third party without the prior written approval of the Contractor. Third parties do not include prime contractors, subcontractors and agents of the ordering activity who have the ordering activity's permission to use the licensed software and documentation at the facility, and who have agreed to use the licensed software and documentation only in accordance with these restrictions. This provision does not limit the right of the ordering activity to use software, documentation, or information therein, which the ordering activity may already have or obtains without restrictions.

(4)

The ordering activity shall have the right to use the computer software and documentation with the computer for which it is acquired at any other facility to which that computer may be transferred, or in cases of disaster recovery, the ordering activity has the right to transfer the software to another site if the ordering activity site for which it is acquired is deemed to be unsafe for ordering activity personnel; to use the computer software and documentation with a backup computer when the primary computer is inoperative; to copy computer programs for safekeeping (archives) or backup purposes; to transfer a copy of the software to another site for purposes of benchmarking new hardware and/or software; and to modify the software and documentation or combine it with other software, provided that the unmodified portions shall remain subject to these restrictions.

(5)

"Commercial Computer Software" may be marked with the contractor's standard commercial restricted rights legend but the schedule contract and schedule pricelist including this clause, "Utilization Limitations" are the only governing terms and conditions, and shall take precedence and supersede any different or additional terms and conditions included in the standard commercial legend.

9.

Software Conversions - (132-32 and 132-33)

Full monetary credit will be allowed to the ordering activity when conversion from one version of the software to another is made as the result of a change in operating system, or from one computer system to another. Under Perpetual license (132-33), the purchase price of the new software shall be reduced by the amount that was paid to purchase the earlier version. Under term license (132-32), conversion credits which accrued while the earlier version was under term license shall carry forward and remain available as conversion credits which may be applied towards the perpetual license price of the new version.

10.

Description and Equipment Compatibility

A complete description defining software applications and a list of equipment on which the software can be used can be found in the supplier's standard commercial terms document. Also included shall be a brief introductory explanation of the modules and documentation which are offered.)

11.

Right-to-Copy Pricing

NOTE: Offerors are encouraged to identify within their software items any component interfaces that support open standard interoperability. An item’s interfaces may be identified as interoperable on the basis of participation in a Government agency-sponsored program or in an independent organization program. Interfaces may be identified by reference to an interface registered in the component registry located at http://www.core.gov.

Refer to the terms and conditions specific to each supplier's product/service offering.