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Legal text for SACC item
Public Works and Government Services Canada
01 Interpretation
02 License Grant
03 Ownership
04 User License
05 Device License
06 Entity License
07 Disabling Codes
08 Licensed Software - Transfer
09 Software Documentation
10 Media
11 Term of License
12 Acceptance
13 Right to License
14 Enhancements, Improvements and Language Versions
15 Warranty
16 Source Code Escrow
17 Right to Modify
18 Risk of Loss
19 Destruction on Termination or Expiration
4003 01 (2008-05-12) Interpretation
1. In the Contract, unless the context otherwise requires,
"Client" means the department or agency for which the Work is
performed, or, in the event of a transfer under section 08 below,
the department, agency or Crown corporation to whom the Licensed
Software is transferred.
"Device" means equipment having a physical central processor unit
(CPU), mass storage and input output devices such as keyboard and
monitor and includes servers, desktops, workstations, notebooks,
laptops, personal digital assistants and mobile computing equipment.
"General Conditions" means the general conditions that form part of
the Contract;
"Licensed Programs" means all of the computer programs, in
object-code form, which must be provided by the Contractor to Canada
under the Contract, and include all patches, fixes and other code
that may be delivered to Canada under the Contract, including any
code provided as part of the warranty, maintenance, or support;
"Licensed Software" means the Licensed Programs and the Software
Documentation collectively;
"Media" means the material or medium on which the Licensed Programs
are stored for delivery to Canada, including electronic media such
as magnetic disks or electronic downloads. Media does not include
the Licensed Software stored on the Media;
"Software Documentation" means all of the manuals, handbooks, user
guides and other human-readable material to be provided by the
Contractor to Canada under the Contract for use with the Licensed
Programs, whether that material is to be provided in printed form or
on Media;
"User" means an individual authorized by the Client to use the
Licensed Software under the Contract and for the purposes of these
supplemental general conditions, includes any employee, agent or
contractor authorized to use the Licensed Software.
2. Words and expressions defined in the General Conditions and used in
these supplemental general conditions have the meanings given to
them in the General Conditions unless provided otherwise. If the
General Conditions contain sections entitled "Ownership" and "
Warranty", those sections do not apply to the Licensed Software and
the Media. Instead, the ownership and warranty provisions in these
supplemental general conditions apply to the Licensed Software and
the Media.
3. If there is any inconsistency between the General Conditions and
these supplemental general Conditions, the applicable provisions of
these supplemental general conditions will prevail.
4003 02 (2008-05-12) License Grant
1. The Contractor grants to Canada a non-exclusive license to use and
reproduce the Licensed Software in accordance with the conditions of
the Contract.
2. Subject to the transfer rights described in section 08, the Client
is the only entity authorized to use and reproduce the Licensed
Software on behalf of Canada. If the Client is reconfigured,
absorbed by another government department or agency, or is disbanded
entirely, the Contracting Authority may, by giving notice to the
Contractor, designate another department, agency or Crown
corporation as the "Client" for the purposes of the Contract.
3. Unless provided otherwise in the Contract, the license granted under
the Contract is unaffected by changes in the Client's environment,
such as changes to the operating system, types of Devices, or other
software products used by the Client from time to time in addition
to the Licensed Software.
4. Unless provided otherwise in the Contract, the license granted under
the Contract is a User License as described in section 04 below.
5. The Contractor must provide the English language version of the
Licensed Software and, if available, the French version of the
Licensed Software.
4003 03 (2008-05-12) Ownership
1. Canada acknowledges that ownership of the Licensed Software belongs
to the Contractor or its licensor and is not transferred to Canada.
As a result, any reference in the Contract to any part of Licensed
Software as a deliverable must be interpreted as a reference to the
license to use that Licensed Software, not to own the Licensed
Software.
2. Canada acknowledges that, in performing any warranty, maintenance,
support and professional services related to the Licensed Software
(if required under the Contract), the Contractor and its employees,
agents, and subcontractors may develop and share with Canada ideas,
know-how, teaching techniques and other intellectual property.
Unless otherwise provided in the Contract, ownership to that
intellectual property will remain with the Contractor. As long as
the Contractor at all times observes the confidentiality provisions
of the Contract, the Contractor will be entitled to use that
intellectual property for whatever purposes it sees fit, including
in the services it provides to its other customers, on the condition
that Canada also has the right to use that intellectual property for
its own business purposes at no additional cost. The Contractor
agrees that all data, know-how or other intellectual property
created or owned by Canada will remain the property of Canada,
regardless of whether that data is created, processed, or stored
using the Licensed Software.
4003 04 (2008-05-12) User License
Unless provided otherwise in the Contract, a "User License" entitles the
designated number of Users specified in the Contract to access, install,
copy, deploy, test and use the Licensed Software for government purposes
unrestricted by the number or type of installations, locations, servers,
processors, data, documents, transactions, platforms, devices, networks,
operating systems, application program interfaces or operating environments
that a User may be using or processing at any time including any equipment
required to allow Users to work remotely; all without requiring the
purchase of any further licenses or rights.
4003 05 (2008-05-12) Device License
Unless provided otherwise in the Contract, a "Device License" entitles
Users to access, install, copy, deploy, test and use the Licensed Software
for government purposes on the designated number of Devices specified in
the Contract without requiring Canada to purchase any additional licenses
to software or components; all without any restriction on the use of
associated peripheral equipment. The Device License allows the Client to
use the Licensed Software unrestricted by the number or type of Users, data,
documents and/or transactions a Client or a User may be using or processing
at any time, or the location of a Device.
4003 06 (2008-05-12) Entity License
Unless provided otherwise in the Contract, an "Entity License" entitles the
Client to use the Licensed Software for government purposes throughout the
entity in association with any number of Devices or by any number of Users.
The Entity License allows the Client to use the Licensed Software in whole
or in part, unrestricted by the number or type of Users, data, documents
and/or transactions a Client or a User may be using or processing at any
time, or the location of the Device.
4003 07 (2008-05-12) Disabling Codes
1. If the Licensed Software contains any features, functions or
characteristics ("Disabling Codes") that might cause the Licensed
Software to be unusable by Canada without passwords, authorization
codes or similar information, the Contractor must provide to Canada,
in advance and on an ongoing basis, provided Canada is not in
default of its obligations regarding the use of the Licensed
Software, all the information required by Canada to continue to use
the Licensed Software.
2. If the license is perpetual, the Contractor must deliver this
information regardless of whether the Contract has otherwise expired
and regardless of whether Canada is currently receiving maintenance
or support for the Licensed Software.
3. If the existence or characteristics of any Disabling Code are not
known to the Contractor, but the Contractor later becomes aware of
them, the Contractor must correct or remove the Disabling Code from
the Licensed Software or take whatever other steps are necessary to
ensure that Canada is able to continue using the Licensed Software.
4003 08 (2008-05-12) Licensed Software - Transfer
The license to use the Licensed Software under the Contract is transferable
by Canada under the same conditions of the Contract, to any Device or
Client, as applicable, or to any Canadian government department,
corporation or agency, as defined in the Financial Administration Act, R.S.C.
1985, c. F-11, as amended from time to time, or to any other party for
which the Department of Public Works and Government Services Canada has
been authorized to act under section 16 of the Department of Public Works
and Government Services Act, S.C. 1996, c. 16, as long as Canada informs
the Contractor of the transfer within thirty (30) days of the transfer
occurring. For the purposes of this section, in the circumstances where an
Entity License is transferred, such license will be capped at the number of
users in the transferring department, corporation, agency or other party
before the transfer.
4003 09 (2008-05-12) Software Documentation
1. Copyright in the Software Documentation will not be owned by or
transferred to Canada. However, Canada has the right to use the
Software Documentation and may, for its own internal purposes, copy
it for use by individuals using or supporting the Licensed Software,
as long as Canada includes any copyright and/or proprietary right
notice that was part of the original document in any copy. Unless
provided otherwise in the Contract, Canada must not otherwise
reproduce the Software Documentation without first obtaining the
written consent of the Contractor.
2. The Contractor guarantees that the Software Documentation contains
enough detail to permit a User to access, install, copy, deploy,
test and use all features of the Licensed Programs. If the source
code for the Licensed Programs must be provided to Canada under the
Contract, the Contractor guarantees that the code provided will
contain enough detail to permit a programmer, experienced in the use
of the programming language or languages in which the source code is
written, to modify the Licensed Programs.
3. If the Software Documentation is available in both of the two
official languages of Canada, the Contractor must deliver it in both
French and English. If the Software Documentation is only available
in either English or French, it may be delivered in that language;
however, Canada then has the right to translate it. Canada owns any
translation and is under no obligation to provide it to the
Contractor. Canada will include any copyright and/or proprietary
right notice that was part of the original document in any
translation. The Contractor is not responsible for technical errors
that arise as a result of any translation made by Canada.
4. Unless provided otherwise in the Contract, at no additional cost to
Canada, the Contractor must update the Software Documentation
throughout the period of the Contract to the most current release
level consistent with the Licensed Software delivered under the
Contract. The Contractor must provide these updates to Canada
within ten (10) days of the update being available. These updates
must include supporting documentation for all modifications to the
Licensed Software, including new versions and new releases that
Canada is entitled to receive under the Contract and must identify
any problems resolved, enhancements made, or features added to the
Licensed Software, together with installation instructions.
4003 10 (2008-05-12) Media
1. The Contractor must deliver the Licensed Programs to Canada on the
medium of Canada's choice from among those the Contractor makes
available to its other customers (for example, CD-ROM or Internet
download). The Contractor agrees that Canada may distribute the
Licensed Software to Users on Canada's choice of Media.
2. The Contractor guarantees that the Media will be compatible with the
computer systems, as detailed in the Contract, on which the Licensed
Programs will be installed. The Contractor also guarantees that the
Media, as supplied by the Contractor, will be free from computer
viruses.
3. Canada will own the Media once it has been delivered to and accepted
by or on behalf of Canada.
4003 11 (2008-05-12) Term of License
1. Unless provided otherwise in the Contract, Canada's license to use
the Licensed Software is perpetual, regardless of any termination of
the Contract by mutual consent, for the convenience of Canada or for
default of the Contractor, as long as Canada has paid for the
license to the Licensed Software. Any perpetual license granted
under the Contract can only be terminated by the Contractor in
accordance with subsection 2 below.
2. The Contractor may terminate Canada's license with respect to the
Licensed Software by giving the Contracting Authority written notice
to that effect if Canada is in breach of its license with respect to
the Licensed Software, or fails to pay for the license in accordance
with the Contract, and if that breach continues for a period of
thirty (30) days after the Contracting Authority receives written
notice from the Contractor giving particulars of the breach.
4003 12 (2010-01-11) Acceptance
1. Work Subject to Acceptance: All Licensed Programs delivered and all
services provided under the Contract are subject to inspection by
Canada. If any of the Licensed Programs does not meet all the
requirements of the Contract, Canada may reject it or require that
it be corrected, at the sole expense of the Contractor, before
recommending payment.
2. Effect of Acceptance: Acceptance by Canada does not relieve the
Contractor of any responsibility for defects or other failures to
meet the requirements of the Contract or the Contractor's
responsibilities with respect to warranty, maintenance or support
under the Contract.
3. Period of Acceptance: Unless provided otherwise in the Contract, the
acceptance procedures are as follows:
(a) when the Work is complete, the Contractor must notify the
Technical or Project Authority in writing, with a copy to the
Contracting Authority, by referring to this provision of the
Contract and requesting acceptance of the Work;
(b) Canada will have thirty (30) days from receipt of the notice
to perform its inspection (the "Acceptance Period").
4. If Canada provides notice of a deficiency during the Acceptance
Period, the Contractor must address the deficiency as soon as
possible and notify Canada in writing once the Work is complete, at
which time Canada will be entitled to re-inspect the Work before
acceptance and the Acceptance Period will begin again.
4003 13 (2008-05-12) Right to License
1. The Contractor guarantees that it has the right to license the
Licensed Software and full power and authority to grant to Canada
all the rights granted under the Contract. The Contractor also
guarantees that all necessary consents to that grant have been
obtained. Canada agrees that its only remedy and the Contractor's
entire obligations in relation to a breach of this guarantee are the
remedies and obligations set out in the section entitled "
Intellectual Property Infringement and Royalties" contained in the
General Conditions or in the Articles of Agreement, as the case may
be.
2. The Parties agree that only the conditions that expressly form part
of the Contract by being written out in full in the Articles of
Agreement or an annex to the Contract listed in the Priority of
Documents section in the Articles of Agreement form part of the
Contract. Any conditions accompanying or enclosed with the Licensed
Software, if any, do not form part of the Contract and, therefore,
are not part of Canada's license and do not affect the rights of the
Parties in any way. The Contractor agrees that in no event will
Canada or any Client or User be required to enter into any
additional license agreement with respect to the Licensed Software
or any portion of it. The Contractor acknowledges that any
additional license agreement relating to the Licensed Software
signed by anyone other than the Contracting Authority is void and of
no effect.
3. Canada is not bound by and does not accept any "shrink-wrap" or "
click-wrap" conditions or any other conditions, express or implied,
that are contained in or on the software packaging or conditions
that may accompany the software in any manner, regardless of any
notification to the contrary.
4003 14 (2008-05-12) Enhancements and Improvements
The Contractor agrees to provide Canada with all improvements, updates,
upgrades and enhancements to the Licensed Software for ninety (90) days
following the acceptance of the Licensed Software.
4003 15 (2008-05-12) Warranty
1. In this section, unless provided otherwise in the Contract, "
Software Warranty Period" means a period of ninety (90) days from
the date on which the Licensed Software is accepted in accordance
with the conditions of the Contract, except for warranty work and
any other work that is scheduled under the Contract to be performed
after the start of the Software Warranty Period.
2. The Contractor warrants that, during the Software Warranty Period,
the Licensed Programs will operate on the computer system or systems
on which the Licensed Programs are installed in accordance with the
Software Documentation that is associated with the Licensed Programs,
as well as the Specifications set out in the Contract, if any. If
the Licensed Programs fail to meet this warranty at any time during
the Software Warranty Period, the Contractor, if requested by Canada,
must, as soon as possible, correct, at the Contractor's expense, any
programming errors and defects and make any additions, modifications
or adjustments to the Licensed Software that are necessary to keep
the Licensed Programs in operating order, in accordance with the
Software Documentation that is associated with the Licensed Programs
and the Specifications.
3. Although the Contractor must use all reasonable efforts to provide
permanent corrections for all software errors, Canada acknowledges
that certain errors may not be permanently corrected by the
Contractor under the warranty. The Contractor must provide a
software patch or by-pass around the error in all cases where the
error will not be permanently corrected. As a minimum, any such
software patch or by-pass must cause the Licensed Programs to meet
the functional and performance criteria set out in the Software
Documentation associated with the Licensed Programs and the
Specifications.
4. The Contractor warrants that, throughout the Software Warranty
Period, the Software Documentation will be free from all defects in
materials and will conform with the requirements of the Contract.
If Canada discovers a defect or non-conformance in any part of the
Software Documentation during the Software Warranty Period, the
Contractor must, if requested by Canada, as soon as possible,
correct, at the Contractor's expense, the part of the Software
Documentation found to be defective or not in conformance with the
requirements of the Contract.
5. The Contractor warrants that, throughout the Software Warranty
Period, the Media will be free from all defects in materials or
workmanship, and will conform with the requirements of the Contract.
Canada may return non-conforming or defective Media to the
Contractor within the Software Warranty Period, with notice of the
non-conformance or the defect, and the Contractor must promptly
replace that Media with corrected Media at no additional cost to
Canada.
6. If the Contractor must perform support services with respect to the
Licensed Software during the Software Warranty Period, it is agreed
that the provisions concerning support will not be interpreted so as
to derogate from the warranty provisions set out in this section.
7. The warranties set out in this section will survive inspection and
acceptance of the Work by or on behalf of Canada, and do not
restrict any other provision of the Contract or any condition,
warranty or provision imposed by law.
4003 16 (2008-05-12) Source Code Escrow
If requested by Canada, the Contractor must put in place for Canada, at no
additional charge, whatever escrow arrangements, if any, it usually puts in
place for its customers, and must give Canada, within thirty (30) days from
the date of the Contract, a copy of the agreement with its escrow agent
which sets out the conditions under which the escrow agent is authorized to
release the source code to Canada.
4003 17 (2008-05-12) Right to Modify and no Reverse Engineer
1. If the source code for the Licensed Programs is provided to Canada
under the Contract, that code forms part of the "Licensed Software"
for the purposes of the Contract. Canada will have the right, at
Canada's discretion, to copy and modify the Licensed Software for
Canada's own purposes and use, through the services of Canada's own
employees or of independent contractors, as long as those
contractors agree not to disclose or distribute any part of the
Licensed Software to any other person or entity or otherwise violate
the proprietary rights of the owner of the Licensed Software.
2. Canada will be the owner of any modifications contemplated in this
clause, but will obtain no ownership interest in the Licensed
Software, and any portion of the Licensed Software contained in
those modifications will remain subject to the conditions of Canada'
s license. The Contractor must not incorporate any such
modifications into its software for distribution to third parties
unless Canada has granted the necessary distribution rights to the
Contractor under a written license agreement. The provisions of
this section do not prevent the Contractor or its third-party
licensors from independently developing modifications. Unless
provided otherwise in the Contract, Canada agrees not to reverse
engineer the Licensed Software.
4003 18 (2008-05-12) Risk of Loss
1. Risk of loss of or damage to the Licensed Software or the Media, or
to any part of them, will pass to Canada upon delivery of the
Licensed Software or the Media, or that part, to Canada.
2. Despite subsection 1, the Contractor will be liable for loss or
damage to the Licensed Software or Media that is caused by the
Contractor or any of its subcontractors after delivery.
4003 19 (2008-05-12) Destruction on Termination or Expiration
In the event of termination or expiration of Canada's license, Canada will,
if requested by the Contractor, either return all copies of the Licensed
Software to the Contractor or, at Canada's option, will confirm in writing
to the Contractor that all copies of the Licensed Software have been
destroyed except for one copy, which Canada may retain for archival
purposes only.