Applicable to U.S. Government Customers
Last Updated: January 29, 2018
This is a supplemental agreement (“Amendment”) between Cost My Formula and U.S. Government customers (the “Customer” or the “Agency”) and applies to the Agency’s use of Cost My Formula’s collaborative workplace management service (the “Service”) under Cost My Formula’s Membership and Subscription Agreement (the “Subscriber Agreement”).
The reason for this Amendment is that the Customer, a U.S. Government instrumentality, is obligated to follow federal laws, regulations, and practices, among which are those relating to ethics, advertising and endorsements, tax exemption and immunity, limitations on indemnification, fiscal law constraints, governing law and jurisdiction, dispute resolution, and assignment of contracts.
Cost My Formula and Agency (the “Parties”) agree that modifications to the Subscriber Agreement available at Membership and Subscription Agreement are appropriate to accommodate the Agency’s legal status, its public mission, and other special circumstances. Therefore, the Subscriber Agreement is modified by this Amendment as follows.
A. Government entity: As it relates to the Agency’s usage of the Service, the word “Customer” in the Subscriber Agreement shall mean the Agency itself and shall not apply to, nor bind (i) the individual(s) who utilize the Cost My Formula Service on the Agency’s behalf, or (ii) any individual users who happen to be employed by, or otherwise associated with, the Agency. Cost My Formula will look solely to the Agency to enforce any violation or breach of the Subscriber Agreement by such individuals, subject to federal law.
B. Advertisements: Cost My Formula agrees not to serve or display any third-party commercial advertisements or solicitations on any pages within the Cost My Formula site that display content uploaded by or under the control of the Agency.
C. Taxes: With reference to Section 5 of the Subscriber Agreement, the Parties understand that the Federal Acquisition Regulation (FAR) 29.302 (48 CFR, Chapter 1, Part 29, Subpart 29.302 – Application of State and local taxes to the Government) states that “Generally, purchases and leases made by the Federal Government are immune from State and local taxation.” Therefore, Cost My Formula will include no tax in Agency billings unless the tax has been determined by the Agency to be proper for payment.
D. Indemnification, Liability, Statute of Limitations: Any provisions in the Subscriber Agreement related to indemnification by the customer, damages, attorneys fees, filing deadlines, defense of lawsuits, collection expenses, and settlement are hereby waived. Liability of either party for any breach of the Subscriber Agreement as modified by this Amendment, or any claim, demand, suit or proceeding arising from the Subscriber Agreement or this Amendment, shall be determined under the Federal Tort Claims Act, Contract Disputes Act, or other governing federal authority. Federal Statute of Limitations provisions shall apply to any claim, demand, suit or proceeding arising from the Subscriber Agreement or this Amendment.
E. Governing law and Forum: The Subscriber Agreement and this Amendment shall be governed by, and interpreted and enforced in accordance with, applicable federal laws of the United States of America without reference to conflict of laws. To the extent permitted by federal law, the laws of the State of Alabama including its choice of law rules will apply in the absence of applicable federal law. Any arbitration, mediation or other dispute resolution provision in the Subscriber Agreement is hereby waived. The forum for purposes of resolving claims and disputes will be determined in accordance with federal law.
F. No automatic renewal: With respect to Section 5 of the Subscriber Agreement, Cost My Formula agrees to waive the provision allowing Cost My Formula to automatically charge the Agency upon a renewal date associated with Customer’s account. Cost My Formula agrees to remove the auto-renew default setting for any Agency whose account details page designates an email address that ends in .gov, .mil, or .fed.us. Instead, Cost My Formula will notify the Agency to allow the Agency to determine if funds are available and if the Service will be needed for a renewal period.
G. Continuity of service during dispute: With respect to Section 6 of the Subscriber Agreement, Cost My Formula agrees to waive the language that would otherwise permit Cost My Formula to terminate the Membership and Subscription contract in the event of an alleged breach of the Agreement by the Agency. Instead, recourse against the United States for any alleged breach of the Agreement must be made under the terms of the Federal Tort Claims Act or as a dispute under the Contract Disputes Act, as applicable. During the resolution of the dispute the Contractor, Cost My Formula, shall proceed diligently with performance of the contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Agency Contracting Officer.
H. Limitation of liability: The Parties agree that nothing in the limitation of liability provision in Section 9 or elsewhere in the Subscriber Agreement in any way grants Cost My Formula a waiver from, release of, or limitation of, liability pertaining to any past, current or future violation of federal law.
I. No endorsement: With reference to Section 4(d) of the Subscriber Agreement, Cost My Formula agrees that the Agency’s name, seals, logos, trademarks, service marks, trade names, and the fact that the Agency has a presence on the Cost My Formula site and uses its Services, shall not be used by Cost My Formula in such a manner as to state or imply (in the judgment of a reasonable person) that Cost My Formula’s products or services are endorsed, sponsored or recommended by the Agency or by any other element of the Federal Government, or are considered by the Agency or the Federal Government to be superior to any other products or services. Except for pages whose design and content is under the control of the Agency, Cost My Formula agrees not to display any Agency or Government names, seals, trademarks, logos, service marks, and trade names on Cost My Formula’s homepage or elsewhere on the Cost My Formula Site unless permission to do so has been granted by the Agency or by other relevant federal government authority. Cost My Formula may list the Agency’s name in a publicly available customer list on its homepage or elsewhere so long as the name is not displayed in a more prominent fashion than that of any other third-party customer.
J. Assignment: As indicated in the Subscriber Agreement, neither party may assign its obligations under the Subscriber Agreement as modified by this Amendment to any third party without prior written consent of the other. However, if Agency is using Cost My Formula’s free services only, Cost My Formula or its subsidiaries may, without the Agency’s consent, assign the Subscriber Agreement as modified by this Amendment to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger, acquisition, corporate reorganization or consolidation, or the sale of all or substantially all of its assets. Any transfer of Cost My Formula assets related to the Agency’s paid subscription contract requires review and consent by the Agency, under the procedures found in the FAR Subpart 42.13 (48 CFR Chapter 1, Part 42, Subpart 42.12 – Novation).
K. Precedence; Further Amendments: If there is any conflict between this Amendment and the Subscriber Agreement, or between this Amendment and other terms, rules or policies on the Cost My Formula site or related to its Service, this Amendment shall prevail. This Amendment constitutes a mutually agreed upon amendment to the Subscriber Agreement; language in the Subscriber Agreement indicating it alone is the entire agreement between the Parties is waived. Any further amendment must be agreed to in writing by both Parties.
L. Posting of Amendment: This Amendment shall be posted with the Cost My Formula’s online Subscriber Agreement either by incorporation of its text or via an integral link.