Public Sector Addendum

This Public Sector Addendum (this “Addendum”) is incorporated by reference into that certain EDSuite Service Agreement (the “Service Agreement”) by and between Encore and Client. This Addendum contains terms applicable only if Client is a Public Sector Client. Capitalized terms used but not defined herein shall have the meaning provided to them in the Service Agreement.

Auto-Renewals. If Client is a Public Sector Client and is expressly prohibited by applicable law from entering into agreements that are subject to auto-renewals, then the auto-renewals in Section 3.1.2, Section 3.1.3, and Section 3.1.4 of the Service Agreement shall not apply to the extent prohibited by applicable law.
Termination If No Funding Received. In addition to the other termination rights set forth in Section 3.2 of the Service Agreement, if Client is a Public Sector Client and is subject to public appropriation requirements, upon 30 days’ prior written notice to Encore, Client may terminate the Agreement at the end of its then-current fiscal period if Client does not receive funding for a subsequent fiscal period.
Offset Rights. If Client is a Public Sector Client and is required by applicable law to have offset rights, then that portion of the first sentence of Section 4.1 of the Service Agreement prohibiting offset or deduction by Client shall not apply.

Interest Rate on Late Payments. If Client is a Public Sector Client and is prohibited by applicable law from paying interest on past due amounts at a rate of 1.5% per month calculated daily and compounded monthly, then, notwithstanding anything in Section 4.1 of the Service Agreement to the contrary, the applicable interest rate on past due amounts shall be the highest rate permitted by applicable law.
Disclosure. If Client is a Public Sector Client, Encore understands that Client may be compelled to disclose certain Encore Confidential Information pursuant to federal or state public disclosure laws. Notwithstanding anything in Section 8 of the Service Agreement to the contrary, a disclosure by the Client of Encore Confidential Information to the extent required by applicable law will not be considered a breach of the Agreement, provided that the Client promptly provides Encore with prior notice of such disclosure (to the extent permitted by applicable law), follows the process set forth in any applicable law, and provides reasonable assistance, at Encore’s expense, if Encore wishes to contest the disclosure.
Client Indemnification. If Client is a Public Sector Client and is expressly prohibited by applicable law from indemnifying Encore, then Section 10.2 of the Service Agreement shall not apply to the extent of the prohibition.

Limitations of Liability. If Client is a Public Sector Client and applicable law limits Client’s ability to agree to contractual limitations of liability, then the limitations of liability set forth in Section 11.1 and Section 11.2 shall apply to Client only to the maximum extent permitted by applicable law.

Governing Law; Submission to Jurisdiction. If Client is a Public Sector Client and applicable law expressly requires a particular law to govern that is different than the law set forth in Section 12.6 of the Service Agreement or expressly requires a particular venue that is different than the venue set forth in Section 12.6 of the Service Agreement, in each case, in the Service Agreement with Encore, then Section 12.6 shall not apply and the governing law and/or venue, as the case may be, required by applicable law shall apply instead.

Commercial Computer Software. If Client is a Public Sector Client that is an agency of the U.S. government or any contractor therefor, the following language shall be deemed included in the Service Agreement as Section 12.12:
12.12 Commercial Computer Software. Each of the Documentation and the software components that constitute the EDSuite Services is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Client is an agency of the U.S. government or any contractor therefor, Client only receives those rights with respect to the EDSuite Services and the Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other U.S. government users and their contractors.
Sovereign Immunity. If Client is a Public Sector Client, nothing in the Agreement is intended as, or will be construed as, a waiver, limitation, or relinquishment of any sovereign, government, or other immunity available to Client under applicable law.
Audit Rights. If Client is a Public Sector Client and applicable law provides Client or its authorized governmental oversight bodies with a right to review or audit records relating to the Agreement, Encore will use reasonable efforts to cooperate with such review or audit requests. Any such review or audit must be conducted during normal business hours, must not unreasonably interfere with Encore’s business, and must be conducted pursuant to reasonable confidentiality terms similar to those contained in the Service Agreement.
Anti-Corruption. If Client is a Public Sector Client and applicable law requires Client to obtain Encore’s agreement to comply with applicable anti-corruption and anti-bribery laws, Encore agrees to so comply. Furthermore, if Client is a Public Sector Client and applicable law requires Client to obtain Encore’s representation that it has not offered or provided, and will not offer or provide, any payment, gratuity, or anything of value to any public official or employee of Client in violation of applicable law in connection with the Agreement, Encore so represents to Client.
Future Fees or Penalties. If Client is a Public Sector Client, then any language in the Service Agreement requiring Client to pay any future fees, penalties, interests, or legal costs that would cause a violation of the Anti-Deficiency Act shall not apply.

Updated Terms; Termination Right. If Client is a Public Sector Client and is prohibited by applicable law from agreeing to terms that may be unilaterally updated without Client’s consent, then any provision of the Service Agreement providing that certain terms may be updated by Encore from time to time shall not apply and only such terms that are in effect as of the Effective Date shall apply.

Provision of Applicable Law. If requested by Encore, a Client that is a Public Sector Client shall provide Encore with a copy of any applicable law referenced in this Addendum.

Order of Preference. If Client is a Public Sector Client, in the event of a conflict between a provision in this Addendum and a provision in the Service Agreement, the provision in this Addendum shall prevail and control.