Government End-User Restrictions

Government End-User Restrictions

An owner of computer software who directly or indirectly licenses the federal government to use such software may restrict the rights granted to the government by application of the Federal Acquisition Regulations and prevent waiver of any rights that should be retained by the owner in its work product. For downstream distributions partners, these mandated restrictions are carried down contractually to the government via end-user license agreements (EULAs).

A downstream distributor who incorporates third-party software in the products it sells and/or licenses to the government can find such restrictions to be legally and administratively burdensome, and perhaps even commercially detrimental to its relationship with its government customer. In the following exemplar, the software owner and its distributor partner agree that such restrictions are not applicable to the government end-user in the case where no other third-party restrictions are applicable:

Exemplar C35-1

Customer acknowledges that all Materials were developed entirely at private expense and that no part of the Materials was first produced in the performance of a government contract. Customer may distribute the Materials to the U.S. Government or to End Users under U. S. Government contracts if and only if the Materials are identified as “commercial software” and licensed subject to a EULA that contains the following notice: “Any use, duplication, or disclosure of the Software by the U.S government is subject to restrictions as set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.” Notwithstanding the foregoing, the requirements of this Section will not apply to any product using the Materials for which the U.S. Government or End User is not required to agree to any other end user license agreement as a condition of using the product or any software application included with the product.