Amendment
to Subscriber Agreement
Applicable to Government Customers
EFFECTTIVE: NOVEMBER 1, 2020
As referenced In Section 11.10 of the Subscriber Agreement, this is a supplemental agreement (“Amendment”) between Future Present Perfect Systems and Government customers in the United States (the “Customer” or the “Agency”) and applies to an Agency’s use of Future Present Perfect Systems’ Milk briefing platform service (the “Service”) in its official capacity under Future Present Perfect Systems’ Subscriber Agreement (the “Subscriber Agreement”). The reason for this Amendment is that the Customer, a Government instrumentality, must follow state and/or 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. Future Present Perfect Systems and Agency (the “Parties”) agree that modifications to the Subscriber Agreement available at https://milkOS.io/subscriber-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 for purposes of official Agency use of the Service shall mean the Agency itself and shall not apply to, nor bind (i) the individual(s) who utilize the Future Present Perfect Systems Service on the Agency’s behalf, or (ii) any individual users who are employed by, or otherwise associated with, the Agency. Future Present Perfect Systems 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: Future Present Perfect Systems agrees not to serve or display any third-party commercial advertisements or solicitations on any pages within the Future Present Perfect Systems site that display content uploaded by or under the control of the Agency.
C. Taxes: With reference to Section 3.4 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, Future Present Perfect Systems will include no tax in Agency billings for Federal Government Agency accounts 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. For Federal Agencies, 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. For State and Local entities, 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 applicable state tort claims act, or other governing state authority.
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 law, the laws of the State of California including its choice of law rules will apply in the absence of applicable federal law. The arbitration, mediation or other dispute resolution provisions in Section 11.2 of the Subscriber Agreement is hereby waived. For Federal Agencies, the forum to resolve claims and disputes will be determined in accordance with federal law. For State and Local Agencies, the forum shall be the State in which the Agency operates.
F. No automatic renewal: With respect to Section 3.2 of the Subscriber Agreement, Future Present Perfect Systems agrees to waive the provision allowing Future Present Perfect Systems to automatically charge the Agency upon a renewal date associated with Customer’s account. Future Present Perfect Systems 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, Future Present Perfect Systems 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 4 of the Subscriber Agreement, Future Present Perfect Systems agrees to waive the language that would otherwise permit Future Present Perfect Systems to terminate the contract if an alleged breach of the Agreement by the Agency occurs for Federal Agency accounts. Instead, recourse against the Federal Agencies for any alleged breach of the Agreement must be made under the Federal Tort Claims Act or as a dispute under the Contract Disputes Act, as applicable. During the resolution of the dispute the Contractor, Future Present Perfect Systems, 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. Right to Cure: Prior to any claim for breach of this Agreement being made, the Agency agrees to provide Future Present Perfect Systems with reasonable notice of any alleged deficiencies in its performance and Future Present Perfect Systems shall have thirty days to cure any alleged defect in performance.
I. Limitation of liability: The Parties agree that nothing in the limitation of liability provision in Section 8 or elsewhere in the Subscriber Agreement in any way grants Future Present Perfect Systems a waiver from, release of, or limitation of, liability pertaining to any past, current or future violation of federal law.
J. No endorsement: With reference to Section 11.4 of the Subscriber Agreement, Future Present Perfect Systems agrees that the Agency’s name, seals, logos, trademarks, service marks, trade names, and the fact that the Agency uses its Services, shall not be used by Future Present Perfect Systems in such a manner as to state or imply (in the judgment of a reasonable person) that Future Present Perfect Systems’ products or services are endorsed, sponsored or recommended by the Agency or by any other element of the Federal or State Government, or are considered by the Agency or the Federal or State Government to be superior to any other products or services. Except for pages whose design and content is under the control of the Agency, Future Present Perfect Systems agrees not to display any Agency names, seals, trademarks, logos, service marks, and trade names on Future Present Perfect Systems’ homepage or elsewhere on the Future Present Perfect Systems Site unless permission to do so has been granted by the Agency or by other relevant federal government authority. Future Present Perfect Systems 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.
K. Assignment: As indicated in Section 11.9 of 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 Future Present Perfect Systems’ free services only, Future Present Perfect Systems 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 Future Present Perfect Systems assets related to a Federal 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).
L. 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 Future Present Perfect Systems 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 in Section 11.12 indicating it alone is the entire agreement between the Parties is waived. Any further amendment must be agreed to in writing by both Parties. As stated in Section 11.11 of the Subscriber Agreement, Agency’s continued use of the Service after receiving notice of modifications shall constitute agreement to the revised version of this agreement.
M. Posting of Amendment: This Amendment shall be posted with the Future Present Perfect Systems’ online Subscriber Agreement either by incorporation of its text or via an integral link.