A. Application of these Government Terms

These Government Terms are an agreement between Sourcegraph, Inc. ("Sourcegraph" or "Company") and U.S. federal government users of the Sourcegraph.com web site, a private or self-hosted Sourcegraph instance, or any Sourcegraph product for use in conjunction with Sourcegraph.com or a private or self-hosted Sourcegraph instance (the "Services") and applies solely to any U.S. federal government agency and its users who use or access the Service on behalf of the U.S. federal government (the "Government").

You, as a United States government entity, are required, when entering into agreements with other parties, to follow applicable federal laws and regulations, including those related to ethics; privacy and security; accessibility; records retention; limitations on indemnification; fiscal law constraints; advertising and endorsements; freedom of information; and governing law and dispute resolution forum.

Sourcegraph and You (together, the "Parties") agree that modifications to the Sourcegraph Terms of Service (the "ToS") are appropriate to accommodate Your legal status, Your public (in contrast to private) mission, and other special circumstances. Accordingly, the ToS are hereby modified by these Government Terms as they pertain to the Government's use of the Company web site and services:

B. Commercial Item Designation

The Services were developed entirely with private financing and constitute a "Commercial Item" as defined at 48 C.F.R. § 2.101. The Services and Documentation consist of "Commercial Computer Software" and "Commercial Computer Software Documentation" as those terms are used in 48 C.F.R. § 12.212. Consistent with 48 C.F.R. § 12.212 and 48 C.F.R. §§ 227.7202-1 through 227.7202-4, all U.S. Government End Users acquire only those rights in the Services and Documentation that are specifically provided by the Agreement. Consistent with 48 C.F.R. § 12.211, all U.S. Government End Users acquire only technical data and the rights in that data customarily provided as specifically set forth in the Agreement.

C. Public purpose

1. Government entity. "You" within the ToS shall mean the Government itself and shall not bind, in their individual capacity, the individual(s) who utilize the Services on the Government's behalf. Company will look solely to the Government to enforce any violation or breach of the ToS by such individuals, subject to federal law.

D. Your content on Sourcegraph

1. Access and use. Company acknowledges that the Government's use of the Service may energize significant citizen engagement. Language in the ToS allowing Company to terminate service, refuse or remove any User Content, or close the Government's account, at any time, for any reason, is modified to reflect the Parties' agreement that Company may unilaterally modify or discontinue service, temporarily or permanently, refuse or remove any Content, and/or terminate the Government's account only for breach of the Government's obligations under the ToS or its material failure to comply with the instructions and guidelines posted on the Services or in the Documentation, or if Company ceases to operate the Service generally. Company will provide the Government with a reasonable opportunity to cure any breach or failure on the Government's part. For any self-hosted instance, Company does not operate or have access to the Government's deployment environment; accordingly, Company's rights under this Section to modify, discontinue, refuse, or remove Content are limited to suspending or terminating the Government's license, and do not include any ability to access, alter, or remove Content residing on the Government's own or a third party's infrastructure.
2. No endorsement. Company agrees that Your seals, trademarks, logos, service marks, trade names, and the fact that You use the Services, shall not be used by Company in such a manner as to state or imply that Company's products or services are endorsed, sponsored or recommended by You or by any other element of the federal government, or are considered by these entities to be superior to any other products or services. Except for pages whose design and content is under the control of the Government, or for links to or promotion of such pages, Company agrees not to display any government seals or logos on the Company's homepage or elsewhere on the Company Site, unless permission to do so has been granted by the Government or by other relevant federal government authority. Company may list the Government's name in a publicly available customer list so long as the name is not displayed in a more prominent fashion than that of any other third-party name.
3. Provision of data. In case of termination of service, within 30 days of such termination, upon request, Company will provide you with all user-generated content that is publicly visible. Data will be provided in a commonly used file or database format as Company deems appropriate. Company will not provide data if doing so would violate its Privacy Policy.

E. Trials and Paid Services

1. Trials and POCs. Sourcegraph may make the Services available to You on a trial, beta, or proof of concept basis at no charge. Sourcegraph reserves the right to begin charging for any Services previously provided at no charge upon at least thirty (30) days advance written notice to You. Nothing in these Government Terms or the ToS obligates You to expend appropriations or incur financial obligations beyond what is expressly set forth in an Order Form.
2. Paid Services. Paid access to the Services is governed by the terms of the applicable Order Form. The Parties understand that fee-based services are categorically different than free products, and are subject to federal procurement rules and processes. Before entering into a paid Order Form, You agree: to determine the Government has a need for those additional services for a fee; to consider the subscription's value in comparison with comparable services available elsewhere; to determine that Government funds are available for payment; to properly use the Government Purchase Card if that Card is used as the payment method; to review any then-applicable ToS for conformance to federal procurement law; and in all other respects to follow applicable federal acquisition laws, regulations and agency guidelines (including those related to payments) when initiating that separate action.
3. No business relationship created. The Parties are independent entities and nothing in these Government Terms or the ToS creates an agency, partnership, joint venture, or employer/employee relationship.

F. Federal Regulations

1. Security. Where Company hosts or operates the Services (e.g., Sourcegraph.com or a Company-managed cloud instance), Company will, in good faith, exercise due diligence using generally accepted commercial business practices for IT security, to ensure that systems are operated and maintained in a secure manner, and that management, operational and technical controls will be employed to ensure security of systems and data. Recognizing the changing nature of the Web, Company will continuously work with users to ensure that its products and services are operated and maintained in a secure manner. Company agrees to discuss implementing additional security controls as deemed necessary by the Government to conform to the Federal Information Security Management Act (FISMA), 44 U.S.C. 3541 et seq. Where the Government deploys the Services on its own or a third-party's infrastructure (a self-hosted instance), the Government is responsible for operating, configuring, and securing that environment, and Company's obligations are limited to providing the Services and Documentation, in accordance with the Agreement.
2. Federal Records. Government acknowledges that use of Company's Services may require management of Federal records. Government and user-generated content may meet the definition of Federal records as determined by the agency. If the Company holds Federal records, the Government and the Company must manage Federal records in accordance with all applicable records management laws and regulations, including but not limited to the Federal Records Act (44 U.S.C. chs. 21, 29, 31, 33), and regulations of the National Archives and Records Administration (NARA) at 36 CFR Chapter XII Subchapter B). Managing the records includes, but is not limited to, secure storage, retrievability, and proper disposition of all Federal records including transfer of permanently valuable records to NARA in a format and manner acceptable to NARA at the time of transfer. The Government is responsible for ensuring that the Company is compliant with applicable records management laws and regulations through the life and termination of the Agreement.

G. General Conditions

1. Indemnification. Any provisions in the ToS related to indemnification, damages, attorney's fees, and settlement are hereby waived. Liability of the Government for any breach of the ToS or this Agreement, or any claim, demand, suit or proceeding arising from the ToS or this Agreement, shall be determined under the Federal Tort Claims Act, or other governing authority. Liability of Company for any breach of the ToS or this Agreement, or any claim, demand, suit or proceeding arising from the ToS or this Agreement, shall be determined by applicable federal or state law.
2. Limitation of liability. The Parties agree that nothing in the Limitation of Liability clause or elsewhere in the ToS in any way grants Company a waiver from, release of, or limitation of liability pertaining to, any past, current or future violation of federal law.
3. Governing law and Forum. The dispute resolution provision in the ToS is hereby deleted. The ToS and these Government Terms shall be governed, interpreted and enforced in accordance with applicable federal laws of the United States of America and exclusive jurisdiction shall be in the appropriate U.S. federal courts. To the extent permitted by federal law, the laws of the State of California will apply in the absence of federal law.
4. Assignment. Neither party may assign its obligations under these Governing Terms or the ToS to any third-party without prior written consent of the other; however, Sourcegraph may, without the Government's consent, assign its obligations to a Government using the Services in connection with a merger, acquisition, corporate reorganization or consolidation, or the sale of all or substantially all of Sourcegraph's assets.

H. Changes to this agreement

1. Precedence; Further Amendment; Termination. These Government Terms constitute an amendment to the ToS; language in the ToS indicating it may not be modified or that it alone is the entire agreement between the Parties is waived. If there is any conflict between these Governing Terms and the ToS, or between these Governing Terms and other rules or policies on the Company site or services, these Governing Terms shall prevail. This Amendment may be further amended only upon written agreement executed by both Parties. The Government may close its account (or, for a self-hosted instance, terminate its license under the Agreement) and terminate this agreement at any time. Company may close Government's account (or terminate Government's license, as applicable) and terminate this agreement on 30 days' written notice, but the Government shall not be entitled to a refund of any fees paid.
2. Posting and availability of these Government Terms. The parties agree these Government Terms contain no confidential or proprietary information, and either party may release it to the public at large.