This End User License Agreement (“EULA”) is between Xfinion Inc. (“Xfinion”) and the Government Ordering Activity (“Licensee”) and is effective on the last signature date (“Effective Date”).
Xfinion and Licensee agree as follows:
1.0 Definitions
“Affiliate” means any entity controlled by, controlling, or under common control with a party to this EULA, including an entity of the procuring federal agency.
“Claim” means any claim, suit, action, or proceeding brought against Licensee in a court of competent jurisdiction in a Covered Country alleging infringement of a patent, copyright, or trade secret of which Xfinion is aware.
“Covered Countries” means Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Italy, New Zealand, Norway, Spain, Sweden, Switzerland, the Netherlands, the United Kingdom, and the United States.
“Documentation” means user guides, operating manuals, and release notes made generally available by Xfinion.
“Internal Use” means use of the Software by the Licensee, including:
- use by employees of the Government Ordering Activity;
- use by Government support contractors and agents performing work on behalf of the Government Ordering Activity, subject to applicable contract restrictions;
- use across the Government Ordering Activity’s enterprise, networks, and systems; and
- use necessary to support the Government Ordering Activity’s internal operations, mission needs, and program requirements.
Internal Use expressly excludes resale, redistribution, or provision of the Software to third parties except as permitted by federal law or this EULA.
“Federal Precedence” means that in the event of any conflict between this EULA and (a) federal law, (b) the Federal Acquisition Regulation (FAR), (c) the General Services Administration Acquisition Regulation (GSAR), or (d) the terms of the underlying GSA Schedule contract or any applicable task or delivery order, the federal law and the terms of the Schedule contract or order shall govern and take precedence.
“Licensee” means a U.S. Government Ordering Activity or End User purchasing Xfinion software under a task order, delivery order, or contract.
“Government Ordering Activity” means any executive agency or independent establishment in the legislative or judicial branch, except those excluded by statute.
“License Documents” means this EULA, any addenda, License Model Schedule, Transaction Documents, Documentation, and any other Xfinion-provided documents governing permitted use.
“License Fees” means all nonrefundable fees payable to Xfinion for Software licenses.
“License Model” means the conditions, limitations, and restrictions governing use of the Software.
“License Model Schedule” means the schedule attached as Exhibit A describing the applicable License Model.
“Physical Media” means any physical media containing Software.
“Software” means Xfinion-manufactured software products, Documentation, and Support Software licensed under this EULA.
“Software License” means the license granted to Licensee under this EULA.
“Support Software” means updates, upgrades, patches, fixes, modifications, and new versions provided under a Xfinion support program.
“Taxes” means applicable taxes except those imposed on Xfinion’s income.
“Third Party Software” means software owned by third parties and licensed directly to the end user.
“Transaction Document” means a government order, Xfinion quotation, invoice, or other document referencing this EULA.
2.0 Ownership of the Software
All Software is licensed, not sold. Xfinion retains all ownership and intellectual property rights. Source code is a trade secret of Xfinion and its licensors.
3.0 License Grant
3.1 Grant of License. Subject to payment of License Fees and the License Documents, Xfinion grants Licensee a worldwide, nonexclusive, non-transferable, non-sublicensable, internal use license to download, install, access, and execute the Software identified in the applicable Transaction Document for an annual license term of twelve months, unless a different term is stated in the applicable Transaction Document. The license shall expire at the end of the applicable annual term unless renewed in accordance with the applicable Transaction Document.
3.2 Applicable License Models. The License Model will be stated in the Transaction Document.
3.3 Allocation of Licenses. Licensee may allocate Software Licenses to entities within the procuring federal agency, provided Licensee remains responsible for compliance.
4.0 Authorized Reproductions
Licensee may:
- use or copy Software for use with the computer(s) for which it was acquired;
- use or copy Software with a backup or replacement computer;
- reproduce Software for safekeeping or archival purposes;
- disclose Software to support contractors consistent with contract restrictions.
Documentation may only be used to support Licensee’s use of the Software and may not be redistributed or used for fee-based training.
5.0 Restrictions
Licensee may not:
- transfer, sell, sublicense, or distribute the Software except as permitted;
- use the Software for service bureau or timesharing purposes;
- use the Software to create a competitive offering;
- charge third parties for access to the Software;
- use the Software inconsistently with the License Documents.
Licensee may not reverse engineer, decompile, disassemble, decrypt, or attempt to derive source code except as expressly permitted by law.
Licensee may not create derivative works except where Xfinion provides modifiable source code, in which case Licensee owns only the modifications, not the underlying Software.
6.0 Ordering Software Licenses
6.1 Direct Orders. Government orders will be placed via task or delivery order directly with Xfinion.
6.2 Orders Through Resellers. Licenses purchased through authorized resellers remain governed by this EULA.
6.3 Risk of Loss. Software is deemed delivered when made available for download or when Physical Media is shipped.
6.4 Invoicing and Payment. License Fees are payable in accordance with the underlying GSA Schedule contract.
6.5 Over-Usage. Xfinion may invoice Licensee for usage exceeding licensed quantities.
7.0 Xfinion Support and Maintenance
Support Software is governed by this EULA. Support services are provided under Xfinion’s then-current support program documentation.
8.0 Audits and Noncompliance
Xfinion may request self-audit questionnaires and may conduct annual audits subject to government security requirements and advance notice. Any disputes will be resolved under FAR 52.212-4(d). Any audit shall not require access to Government-sensitive systems, networks, or data, nor require installation of audit software, nor override Government security controls.
9.0 Limited Warranties
Xfinion warrants that Software:
- is free of known viruses at first delivery;
- will perform substantially in accordance with Documentation for 60 days.
Remedies include replacement, correction, or refund of the unamortized License Fees.
Warranty exclusions apply for unauthorized modifications, unsuitable environments, unapproved platforms, telecommunications failures, or failure to follow Documentation.
Nothing in this EULA shall be construed to waive any rights or remedies provided to the Government by federal law.
10.0 Infringement Indemnity
Consistent with 28 U.S.C. § 516, the U.S. Department of Justice retains the exclusive right to represent the Government.
Xfinion will indemnify Licensee for infringement claims arising from performance of this EULA, subject to required notifications and cooperation.
If Software becomes the subject of a Claim, Xfinion may obtain a license, modify the Software, or terminate the affected license and refund the unamortized License Fees.
11.0 Limitation of Liability
XFINION IS NOT LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES. AGGREGATE LIABILITY IS LIMITED TO LICENSE FEES PAID UNDER THE RELEVANT TRANSACTION DOCUMENT, EXCEPT WHERE FEDERAL LAW PROHIBITS SUCH LIMITATIONS. THIS LIMITATION SHALL NOT APPLY TO THE EXTENT PROHIBITED BY FEDERAL LAW, INCLUDING BUT NOT LIMITED TO FAR 12.212 AND FAR 52.212-4.
12.0 Termination
Termination for default will be handled in accordance with FAR Subpart 12.302, FAR 12.4, and FAR Part 49. Xfinion acknowledges that the Government’s rights to use the Software shall not automatically terminate upon contractor-asserted breach. Any termination of rights must be determined in accordance with the Contract Disputes Act and applicable FAR clauses.
This EULA may be terminated by either party in accordance with FAR 52.249 or FAR 52.233-1.
13.0 Miscellaneous
- Confidentiality obligations apply except where disclosure is required under FOIA. When the end user is the Federal Government, neither this Agreement nor the pricing terms are confidential information notwithstanding any such markings.
- Automated verification mechanisms may be included in the Software.
- Independent contractors.
- Assignment requires Contracting Officer approval except for assignment of payment rights under the Assignment of Claims Act.
- Governing law is U.S. federal law.
- Force majeure applies. Excusable delays shall be governed by FAR 52.212-4(f).
- Severability applies.
- Export laws apply.
- Attribution notices must remain intact.
- Third Party Software is governed by its own license.
- Entire Agreement consists of this EULA, the GSA Schedule contract, the Schedule Pricelist, and applicable orders.