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United States (U.S.) Government Terms of Service

1. Applicability

  1. This Exhibit applies to all instances where the ultimate end user(s) of any Service is an agent or employee of the U.S. Government.

2. Flow Up

  1. If you are a prime contractor or subcontractor that is using the Services to provide products or services to or for the U.S. Government, you must flow this Agreement to your U.S. Government customer and all U.S. Government users, account holders, and subscribers who use or access the Services on behalf of a U.S. Government agency (“S. Government End User”). You will indemnify and hold us harmless from any and all claims, liabilities, damages, losses, or costs (including reasonable attorneys’ fees) based on or arising out of your failure to comply with this Section.

3. U.S. Government End User Rights:

  1. The Services and any derivatives thereof are “commercial items” as defined in 48 C.F.R. 2.101 (“Commercial Items”). The use, duplication, reproduction, release, modification, disclosure or transfer any Services-related software and any associated documentation and technical data by a U.S. Government End User is restricted in accordance with 48 C.F.R. §211; 48 C.F.R. §12.212, 48 C.F.R. §227.7102-2, and 48 C.F.R. §227.7202, as applicable. You may resell the Services to a U.S. Government End User, if and only if, (a) the U.S. Government End User is specified in your Order and (b) the Services are licensed to the U.S. Government End User subject to the terms of this Agreement.
  2. Consistent with 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-1 through 48 C.F.R. §227.7102-3, and 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Services are provided to U.S. Government End Users: (i) only as Commercial Items, (ii) with only those rights as are granted to all other users pursuant to our standard terms of use (except as otherwise noted herein), and (iii) the terms of this Exhibit are incorporated into any reseller, prime contractor, or subcontractor’s contract with the U.S. Government or otherwise agreed to by the U.S. Government customer in a way that legally binds the U.S. Government to these terms. This U.S. Government Rights clause is in lieu of, and supersedes, any Federal Acquisition Regulations (“FAR”), the Defense FAR Supplement (“DFARS”), or other clause or provision that addresses U.S. Government rights in computer software or technical data.‍

4. Superseding Provisions

  1. In recognition of the fact that certain provisions of the ETOS are inapplicable or unenforceable where U.S. Government End Users are involved, General Magic and you agree that modifications to the ETOS are appropriate. Provisions concerning the following subject matter that are included in the ETOS do not apply, and, where relevant, are superseded by the applicable provision of FAR 52.212-4 or other applicable law, such as the Contracts Disputes Act:
    • Changes and payment
    • Account cancellation or suspension
    • Changes to service or terms
    • Indemnification
    • Limitation of liability
    • Any provision concerning choice of law and/or venue for dispute resolution‍

5. No Endorsement

We agree that any U.S. Government seals, trademarks, logos, service marks, trade names, and the fact that you use the Services, shall not be used by us in such a manner as to state or imply that our products or services are endorsed, sponsored or recommended by any entity of the U.S. Government, or are considered by the U.S. Government as superior to any other company’s products or services. We agree not to display any U.S. Government seal or logo on our homepage or elsewhere on our website, unless permission to do has been granted by the relevant U.S. Government authority. We may list the U.S. Government customer’s name in a publicly available user list so long as the name is not displayed in a more prominent fashion than that of any other third-party name, and reference the U.S. Government customer as our user.

6. Permanent Geocodes:

  1. For the purpose of U.S. Government End Users, use, duplication, reproduction, release, modification, disclosure or transfer of Permanent Geocodes is restricted in accordance with the LIMITED or RESTRICTED rights as described in any applicable DFARS or FAR. In case of conflict between any of the FAR and/or DFARS that may apply to Permanent Geocodes, the construction that provides greater limitations on the Government’s rights shall control. For purpose of any public disclosure provision under any federal, state or local law, it is agreed that certain Permanent Geocodes is a trade secret and a proprietary commercial product and not subject to disclosure.
  2. S. Government End Users hereby agree to protect Permanent Geocodes from public disclosure and to consider the Permanent Geocodes exempt from any statute, law, regulation, or code, including any Sunshine Act, Public Records Act, Freedom of Information Act, or equivalent, which permits public access and/or reproduction or use of the Permanent Geocodes. In the event that such exemption is challenged under any such laws, this agreement shall be considered breached and any and all right to retain any copies or to use of the Permanent Geocodes shall be terminated and considered immediately null and void, and any copies of Permanent Geocodes held by a U.S. Government End User at that time shall immediately be destroyed. If any court of competent jurisdiction considers this clause void and unenforceable, in whole or in part, for any reason, this agreement shall be considered terminated and null and void, in its entirety, and any and all copies of Permanent Geocodes shall immediately be destroyed.