RUS Form 390 (01-03) 

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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 

 

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