390 Software License Agreement

Expires: XX/XX/20XX
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U.S. Department of Agriculture
Rural Utilities Service
Software License Agreement
Addendum to RUS Form 397, Special Equipment Contract (including installation),
RUS Form 398, Special Equipment Contract (not including installation), and RUS Form 773,
Miscellaneous Construction Work and Maintenance Services Contract
(Use only when the Contractor requires a software license agreement.)
(1) Definitions. For the purpose of this Software License Agreement -Contract means the RUS Form 397, Special Equipment Contract (including installation),
RUS Form 398, Special Equipment Contract (not including installation), or RUS Form 773,
Miscellaneous Construction Work and Maintenance Services Contract
dated
, between
(the Licensee) and
(the Licensor).
Days mean calendar days.
Licensed Software means the computer programs, furnished for the operation of the
System(s) provided under the Contract, whether contained on a tape, disc, semiconductor device,
or other memory device or system memory consisting of logic instructions and instruction
sequences in machine-readable object code, which manipulate data in the central processor,
control and perform input/output operations, perform error diagnostic and recovery routines,
control call processing, and perform peripheral control, administrative and maintenance
functions; as well as Licensor's standard customer documentation, excluding source code, used
to describe, maintain and use the programs provided under the Contract.
Licensee and Licensor, respectively, mean the parties signing the software license
agreement as the licensee and licensor.
Right-to-Use Fee is defined in Section (2).
Specifications means the respective RUS specification such as the RUS Form 397b,
Trunk Carrier System Specifications; RUS Form 397c, Subscriber Carrier Specifications; RUS
Form 397d, Design Specifications for Point-to-Point Microwave Radio Systems; RUS Form
397g, Performance Specifications for Line Concentrators; and RUS Form 397h, Design
Specifications for Digital Lightwave Transmission Systems; or when an RUS does not have an
specification covering the product, the consulting engineer’s prepared specification; which is part
of the Contract.
System means the stored program controlled central office and associated remote
switching terminal or terminals which use the Licensed Software covered by this License.

RUS Form 390 (01-03)

(2) Software License Provisions. The Licensor may charge a fee, herein referred to as a
Right-to-Use Fee, for use of the Licensed Software. The Right-to-Use Fee shall be included in
the Total Base Bid as defined in the Contract. In consideration of the Right-to-Use Fee, the
Licensor hereby grants the Licensee the right to use all Licensed Software, solely in connection
with the System provided under this Contract, so that the System performs in accordance with
the Contract and the Specifications.
(i) The Licensee's right to use the Licensed Software is non-exclusive and limited to use
or operation in the United States of America, including its Territories, the Federated States of
Micronesia, the Marshall Islands, Palau and the Commonwealth of Puerto Rico, with the System
for which the Licensed Software is provided by the Licensor. The Licensee may reuse the
equipment and its accompanying Licensed Software at another location within the Licensee's
System without obtaining additional approvals from Licensor, provided, however, that the
Licensee notify the Licensor, within ten (10) days, of the change in location of the equipment
and Licensed Software.
(ii) The Licensee and any successor to the Licensee's title in the System may, without
further consent of the Licensor, transfer the Licensed Software and all of the Licensee's rights
and interests under this Software License to any transferee who acquires legal title to the System,
provided that such transferee first agrees in writing to the Licensor to abide by all of the terms
and conditions of this License including, without limitation, the territorial limitation stated in
Section (2)(i) and the restrictions on decompiling or reverse assembly stated in Section (2)(iii).
Licensee shall give Licensor written notice thirty (30) days prior to any transfer. The Licensor
shall not place any additional conditions on the transferee's use of the System or the Licensed
Software. If the provisions of this Section (2) (ii) are satisfied, thereafter the Licensee shall bear
no responsibility for transferee's failure to abide by the terms and conditions of this License.
(iii) The Licensee shall take reasonable steps to protect the confidentiality of the
Licensed Software and shall not decompile or reverse assemble of all or any part of the Licensed
Software to generate source code. The Licensee shall not make the Licensed Software available
to any person except on a need to know basis. The obligations of the Licensee hereunder shall
not extend to any information or data relating to the Licensed Software which is now available to
the general public or becomes available by reason of the acts of the Licensor or third parties.
(iv) The Licensee may reproduce or copy the Licensed Software and related materials
solely for the purpose of archival backup, in-house training and operating, maintaining, and
administering the System provided under this Contract. In such reproduction, the Licensee shall
include, upon all such copies of the Licensed Software, all proprietary notices, including the
copyright notice within the Licensed Software program and related documentation in the form in
which it is received from the Licensor.
(v) The Licensee acknowledges that the Licensed Software program is the property of
the Licensor, and shall not do, or cause to be done, anything to activate any of the subsisting
nonactivated computer instruction steps therein unless authorized in writing by the Licensor.
The Licensor shall have the exclusive right to activate, or authorize the activation of, the
subsisting nonactivated program instruction steps in the Licensed Software. In this event
Licensee shall pay any additional Right-To-Use Fee(s) agreed to by Licensee and Licensor.
(vi) In the event the Licensor develops significant improvements to the Licensed
Software, the Licensor may market the improvements as a separate offering requiring payment of
an additional Right-to-Use Fee.
(vii) The Licensee shall not modify or otherwise change the Licensed Software other
than at the direction of the Licensor. This provision shall not apply to:

RUS Form 390 (01-03)

(A) Changes to the Licensed Software which are necessary to preserve or restore service.
Licensee shall use all reasonable efforts to contact Licensor before making any such changes. If
the Licensor is unable to make the necessary changes promptly to the Licensed Software to
preserve or restore service, then the Licensee may make only such changes to the Licensed
Software as are necessary to preserve or restore service. In such event, Licensee shall promptly
notify Licensor of the changes made by Licensee.
(B) Changes made by the Licensee to its own database; and
(C) Changes made by the Licensee in connection with the exercise of its rights under
Section (2) (xi).
(viii) Within thirty (30) days after written notice that a program or a release thereof has
been discontinued and is no longer required for the operation of the System and the Licensor has
furnished the Licensee with a new program that is fully satisfactory to the Licensee, the Licensee
agrees to return the original and all copies of the discontinued program and specified related
documents. If such return is impossible or impractical, the Licensee shall destroy said program
and documents and provide the Licensor with a written notice of such destruction.
(ix) The Licensor warrants to the Licensee that any Software licensed under this
Software License shall function for a period of five (5) years from the warranty start date defined
in the Contract in accordance with the Specifications and any written or printed technical
material provided by the Licensor to explain the operation of the Licensed Software and aid in its
use. The Licensor shall correct all deficiencies within thirty (30) days from the date of receipt by
the Licensor of written notice of such deficiencies from the Licensee. An extension of this thirty
(30) day period may be allowed only if agreed upon by the Licensee and RUS. It shall be the
Licensor's obligation to insert and thoroughly test, at no charge to the Licensee, any software
amendment or alteration provided to satisfy the obligations of this Section (2)(ix). If a
deficiency is detected or a correction made within the final ninety (90) days of the warranty, the
warranty shall be extended to a date ninety (90) days after the deficiency has been corrected.
(x) The Licensor shall hold harmless and indemnify the Licensee from any and all
claims, suits, and proceedings for the infringement of any patent, copyright, trademark, or
violation of trade secrets covering any Licensed Software used with the System, except for items
of the Licensee's design or selection. If the Licensee's use of the Licensed Software is enjoined,
the Licensor shall promptly, at its own expense, place the Licensee in a position where it is able
to use the System in accordance with the Specifications, whether by: (A) modifying the Licensed
Software or portion thereof so that it no longer infringes but remains functionally equivalent,
(B) replacing the Licensed Software with noninfringing equivalent software, (C) obtaining for
the Licensee a license or other right to use, or (D) such other actions as may be required. This
shall be in addition to any other rights or claims which the Licensee may have. The Licensor
shall, at its own expense, (and the Licensee agrees to permit the Licensor to do so) defend any
suits which may be instituted by any party against the Licensee for alleged infringement of
patents, copyright, trademark, or violation of trade secrets relative to the Licensor's performance
hereunder. Either party shall notify the other promptly of any such claims, and the Licensee
shall give to the Licensor full authority and opportunity to settle such claims, and shall
reasonably cooperate with the Licensor in obtaining information relative to such claims.
(xi) In the event the Licensor becomes unwilling or unable to furnish support required by
the Contract for the Licensed Software, the Licensor shall, upon written request of the Licensee,
provide with the greatest possible dispatch all Licensed Software back-up documentation
including proprietary information other than agreed excluded documentation. In this event,

RUS Form 390 (01-03)

(1) the Licensee shall be permitted full use of all Licensed Software and documentation as long
as the System is operational and (2) the Licensee may modify, or have modified, the Licensed
Software for feature enhancement or proper equipment operation and becomes the owner of such
modifications for all purposes, including patenting, copywriting, sale, or license thereof. Agreed
excluded documentation is Licensed Software back-up documentation described in the first
sentence of this Section (2) (xi) which (A) is proprietary information of a third party, (B) was
specifically described at the pre-bid technical session and individually identified in an attachment
to the Bid, and (C) RUS and the Licensee agree, before bids are opened, may be excluded from
the requirements of this Section (2) (xi). In the event the Licensor furnishes agreed excluded
documentation and the Licensee exercises its rights under this Section (2)(xi), the Licensor shall
use its best efforts to provide such agreed excluded information to the Licensee, or obtain
continuing support agreements from the parties retaining legal rights to the excluded
documentation. Licensor agrees that certain Licensed Software cannot be excluded from the
requirements of this Section (2)(xi) including, but not limited to, software, the absence or
improper operation of which would significantly impair the operation of the System, would
significantly impair the ability of the Licensee to generate revenue, or would pose a risk to RUS
loan security.
(xii) A breach of this License by the Licensor is a breach of the Contract. Therefore, the
remedies specified in the Contract shall apply.
(xiii) The Licensee shall have thirty (30) days after receipt of written notice from the
Licensor to correct any breach of this License. Damages payable by the Licensee for its breach
of this License shall not exceed the total Contract price. The Licensor shall not terminate this
License unless:
(A) The Licensor has given RUS sixty (60) days notice before termination; and
(B) RUS agrees with the Licensor that termination is the only method available to
prevent significant harm to the Licensor from additional Licensee defaults.
(xiv) The obligations of Licensee and Licensor and any successors in title under this
Agreement shall survive the termination of this Agreement and continue after any termination of
rights granted hereunder.
(xv) Licensee and Licensor agree that it will not, without the prior written permission of
the other party, use in advertising, publicity, packaging, labeling, or otherwise, any trade name,
trademark, trade device, service mark, symbol, or any other identification or any abbreviation,
contraction, or simulation thereof owned by the other party or any of its affiliates or used by the
other party or any of its affiliates to identify any of their products or services, unless otherwise
agreed by the parties.
(xvi) This Software License Agreement shall prevail notwithstanding any conflicting
terms or legends which may appear on or in the Licensed Software.

RUS Form 390 (01-03)

(xvii) If any Section or part thereof, in this Agreement shall be held to be invalid or
unenforceable in any jurisdiction in which this Agreement is being performed, then the meaning
of such Section or part shall be construed so as to render it enforceable, to the extent feasible;
and if no feasible interpretation would save such Section or part, it shall be severed from this
Agreement and the remainder shall remain in full force and effect. However, in the event such
Section or part is considered an essential element of this Agreement, the parties shall promptly
negotiate a replacement therefore.
(xviii) This Software License and any amendments thereto, or revisions thereof, are
subject to RUS approval.
LICENSOR

LICENSEE

Company Name
By

Company Name
By

Title

Title

Date

Date

RUS Form 390 (01-03)