Attachment D - FHFA Subscriber Addendum.pdf

ATTACHMENT D

Federal Housing Finance Agency Subscriber Addendum

1. The Federal Housing Finance Agency (FHFA), also known as “Subscriber” or “Licensee”, is an independent Federal Government agency.

2. This Addendum applies to FHFA and Contractor (together known as “the Parties”).

3. Notwithstanding any other provision in the Contractor’s Subscription Agreement, End

User License Agreement, Terms of Use, License Agreement, Order Form terms and conditions, or other similar agreement (Contractor’s Agreement), the Parties acknowledge and agree to the following terms and conditions notwithstanding any conflicting terms and conditions in the Contractor’s Agreement:

a. Order of Precedence.

If there is any conflict among the terms and conditions of this Addendum, any applicable FHFA contract or purchase order, and that of Contractor’s Agreement, the terms and conditions of FHFA’s contract or purchase order and this Addendum govern.

b. Governing Law/Venue/Waivers.

Contractor’s Agreement and this Addendum are governed by and construed in accordance with the Federal laws of the United States of America. Any language purporting to subject the U.S. Government to the laws of a U.S. state, U.S.

territory, district, or municipality, or a foreign nation, except where Federal law expressly provides for the application of such laws, is hereby deleted. Any language requiring a specific venue that is different from that prescribed in Federal law or that purports to waive any rights of the U.S. Government are hereby deleted.

c. Disputes.

Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable Federal law is hereby deleted.

Any language prescribing a different time period for bringing an action than that prescribed by applicable Federal law in relation to a dispute is hereby deleted.

Equitable remedies, injunctions, and binding arbitration clauses may not be enforced unless explicitly authorized in accordance with applicable federal law, regulation, and/or agency policy and agreed to in writing by FHFA.

d. Changes.

Material changes in the terms and conditions of Contractor’s Agreement and this Addendum may be made only by a written modification executed by the Parties.

A material change is defined as:

(i) Terms that significantly change Government rights or obligations;

(ii) Terms that increase Government prices;

(iii) Terms that limit any other Government right addressed elsewhere in FHFA’s contract or purchase order.

e. No automatic renewals/reinstatement fees.

Any provision in Contractor’s Agreement providing for automatic renewal and/or reinstatement fees is hereby deleted.

f. Assignment.

Assignment of Contractor’s Agreement and this Addendum is prohibited except where expressly authorized in accordance with the Federal Acquisition Regulation (FAR) Subpart 42.12, or for payment purposes, FAR 52.212-4.

g. Indemnification.

Any provision in Contractor’s Agreement requiring FHFA to indemnify, defend, or hold harmless Contractor is hereby deleted; any provision of Contractor’s Agreement permitting Contractor to control and direct the investigation, defense and settlement of any third party claim of infringement is hereby amended to provide that FHFA will determine representation of the United States in any such action (28 USC 516; 12 USC 4513(c)(1)).

h. Limitation of Liability.

Any Limitation of Liability provision in Contractor’s Agreement will end with the following sentence, “THE FOREGOING EXCLUSIONS AND LIMITATIONS

OF LIABILITY SHALL NOT APPLY TO CONTRACTOR’S

INDEMNIFICATION OBLIGATIONS OR IN THE CASE OF DAMAGES

CAUSED BY CONTRACTOR’S FRAUD OR WILLFUL MISCONDUCT.”

i. Prices and Payment Terms.

Where an FHFA contract or purchase order is executed, prices and payment terms are governed by that FHFA contract or purchase order. Any terms in Contractor’s Agreement referring to automatic increases in prices or the imposition of charges that are not specified and expressly agreed to by FHFA are hereby deleted.

j. Term/Period of Performance.

Where an FHFA contract or purchase order is executed, the term or period of performance is governed by that FHFA contract or purchase order. Any terms in Contractor’s Agreement referring to a different term or period of performance are

k. Third Party Beneficiary Rights.

Any reference in Contractor’s Agreement to an affiliate’s or a third party’s rights to assert and enforce the provisions of Contractor’s Agreement directly on its own behalf as a third party beneficiary are hereby deleted.

l. Physical Compliance Audits.

Any reference in Contractor’s Agreement to a compliance audit requiring physical access to FHFA, its documents, and/or network are hereby deleted.

m. Privacy/Data Protection Laws.

Any reference to the European Economic Area General Data Protection

Regulation (GDPR) or other privacy or data protection law that does not apply to FHFA is hereby deleted.

n. Marketing/Use of Name and Logo.

FHFA does not permit Contractor to use its name, logo, or marks without express written permission. Any reference to use of FHFA’s name, logo, or marks or any requirement for FHFA to assist Contractor in its marketing efforts is hereby deleted.

o. Termination.

Where an FHFA contract or purchase order is executed, termination terms are governed by that FHFA contract or purchase order; any terms in Contractor’s Agreement that allow Contractor to unilaterally terminate or suspend services are

p. Purchase Order No.

Wherever the Purchase Order is specified in Contractor’s Agreement, it is hereby replaced with Purchase Order No. TBD.

q. Notices.

Notices of Subscriber shall be provided to:

Jennifer T. Sellers Contracting Officer Federal Housing Finance Agency

Office of Budget and Financial Management Constitution Center 400 7th Street, S.W.

Washington, D.C. 20219

r. Entire Agreement.

The entire agreement includes the FHFA purchase order, Contractor’s Agreement, and this Addendum.