This Amendment applies to U.S. Government users of the Cyfe Site and Service.
"You" within the TOU shall mean the Agency itself and shall not apply to, nor bind (i) the individual(s) who utilize the Company Site or Service on Agency's behalf, or (ii) any individual users who happen to be employed by, or otherwise associated with, the Agency. Company will look solely to Agency to enforce any violation or breach of the TOU by such individuals, subject to federal law.
Agency shall use the Company Site and Service solely in furtherance of Agency's public purpose. Any requirement(s) set forth within the TOU that use of the Company Site and Service be for private, personal and/or non-commercial purposes is hereby waived.
Agency content serving the public
Company will allow Agency's distribution or other publication via the Site or Service of material that may contain or constitute promotions, advertisements or solicitations for goods or Service, so long as the material relates to the Agency's mission.
Company agrees not to serve or display any commercial advertisements or solicitations in the publicly available portion of the Site displaying content uploaded by or under the control of the Agency. This exclusion shall not extend to house ads, which Company may place in a non-intrusive manner.
Indemnification, Liability, Statute of Limitations
Any provisions in the TOU related to indemnification and filing deadlines are hereby waived, and shall not apply except to the extent expressly authorized by law. Liability for any breach of the TOU as modified by this Amendment, or any claim arising from the TOU as modified by this Amendment, shall be determined under the Federal Tort Claims Act, or other governing federal authority. Federal Statute of Limitations provisions shall apply to any breach or claim.
Any arbitration, mediation or similar dispute resolution provision in the TOU is hereby deleted. The TOU and this Amendment shall be governed by and interpreted and enforced in accordance with the laws of the United States of America without reference to conflict of laws. To the extent permitted by federal law, the laws of the State of Massachusetts will apply in the absence of applicable federal law.
Changes to standard TOU
Language in the TOU reserving to Company the right to change the TOU without notice at any time is hereby amended to grant You at least three days advance notice of any material change to the TOU. Company shall send this notice to the email address You designate at the time You register for the Site and Service, and You shall notify Company of any change in the notification email address during the life of the Amendment.
Access and use
Company acknowledges that the Agency's use of Company's Site and Service may energize significant citizen engagement and otherwise become important to the Agency's mission. Language in the TOU allowing Company to terminate service or close the Agency's account at any time, for any reason, is modified to reflect the Parties' agreement that Company may unilaterally terminate service and/or terminate Agency's account only for breach of Agency’s obligations under the TOU or Agency's material failure to comply with the instructions and guidelines posted on the Site, or if Company ceases to operate its Site or Service generally. Company will provide Agency with a reasonable opportunity to cure any breach or failure on Agency's part.
Provision on crawlers
Any provision in the TOU prohibiting "crawl," "spider" or similar processes is amended to allow the Agency to apply such tools solely to its pages and content, and solely to fulfill Agency's obligations under the Federal Records Act or other applicable federal law or regulation.
Ownership of names
Any provision in the TOU related to Company's ownership of and right to change Your selected user name(s), user ID(s), domain name(s), channel name(s), and group name(s), are modified to reasonably accommodate Agency's proprietary, practical, and/or operational interest in its own publicly-recognized name and the names of Agency programs.
Modifications of Agency content
Any right Company reserves in the TOU to modify or adapt Agency content is limited to technical actions necessary to index, format and display that content. The right to modify or adapt does not include the right to substantively edit or otherwise alter the meaning of the content. In the event Agency discovers that Agency content has been modified in a manner that alters the meaning of such content, Agency may contact Company and the Parties shall work together in good faith to resolve the matter. Notwithstanding the foregoing, nothing in this Amendment shall result in an expansion of Agency's rights as a United States Government entity under the Copyright Act of 1976 (17 U.S.C. §§101 et sec.), specifically including Section 105 of the Act.
Limitation of liability
The Parties agree that nothing in the Limitation of Liability clause or elsewhere in the TOU 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.
The Parties understand and agree that You are not obligated to place any user content on the Site, and You reserve the right to remove any and all of Your Content at Your sole discretion.
Company agrees that Your seals, trademarks, logos, service marks, trade names, and the fact that You have a presence on the Company Site and use its Service, shall not be used by Company in such a manner as to state or imply that Company's products or Service are endorsed, sponsored or recommended by You or by any other element of the Federal Government, or are considered by You or the Federal Government to be superior to any other products or Service. Except for pages whose design and content is under the control of the Agency, or for links to or promotion of such pages, Company agrees not to display any Agency or government seals, trademarks, logos, service marks, and trade names on the Company's homepage or elsewhere on the Company Site unless permission to do has been granted by the Agency or by other relevant federal government authority. Company 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 name.
No business relationship created
The Parties are independent entities and nothing in the TOU as modified by this Amendment creates a partnership, joint venture, agency, or employer/employee relationship.
No cost agreement
Nothing in the TOU as modified by this Amendment obligates You to expend appropriations or incur financial obligations. The Parties acknowledge and agree that none of the obligations arising from the TOU as modified by this Amendment are contingent upon the payment of fees by one party to the other.
Provision of data
Paid Services and Agency Obligation
The Parties agree this Amendment applies to Agency’s usage of both free and paid services that Company may provide. The Parties understand that fee-based products and services are categorically different than free products and services, and are subject to federal procurement rules and processes. Before an Agency decides to enter into a premium or enterprise subscription, or any other fee-based service that this Company or alternative providers may offer now or in the future, Agency agrees to determine if it 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 Agency 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 TOU for conformance to federal procurement law, and in all other respects to follow applicable federal acquisition laws, regulations, and agency guidelines when initiating that separate action.
Neither party may assign its obligations under the TOU as modified by this Amendment to any third party without prior written consent of the other; provided however, Company or its subsidiaries may assign the TOU as modified by this Amendment to a subsidiary or parent without written consent from the Agency provided that the successor assumes Company's obligations under the TOU as modified by this Amendment.
Agency may close Agency's account and terminate this Amendment at any time. Company may close Agency's account and terminate this Amendment on 30 days written notice.
Posting and availability of this Amendment
Any provision of the TOU requiring modifications of its terms to be posted on Company's Site is inapplicable since this Amendment is of limited, not general, application, and is otherwise waived for this special circumstance. The Parties agree this Amendment contains no confidential or proprietary information, and either party may release it to the public upon request and to other agencies interested in using the Site and Service.
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 are employed to ensure security of systems and data. An SAS 70 Type II audit certification will be conducted annually, and Company agrees to provide Agency with the current SAS 70 Type II audit certification upon the agency's request. Recognizing the changing nature of the Web, Company will continuously work with users to ensure that its Site and Service meet users' requirements for the security of systems and data. Company agrees to discuss implementing additional security controls as deemed necessary by Agency to conform to the Federal Information Security Management Act (FISMA), 44 U.S.C. 3541 et seq.
Agency acknowledges that use of Company's Site and Service may require management of Federal records. Agency and user-generated content may meet the definition of Federal records as determined by the agency. If the Company holds Federal records, the Agency 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 Agency is responsible for ensuring that the Company is compliant with applicable records management laws and regulations through the life and termination of its use of the Site and Service.
Intellectual property ownership
Except as expressly allowed in the TOU, no rights to any derivative works, inventions, or Company product modifications are conferred on Agency or any other party. All such rights belong solely to Company.
Precedence; Further Amendments
If there is any conflict between this Amendment and the TOU, or between this Amendment and other terms, rules or policies on the Company Site or related to its Service, this Amendment shall prevail. This Amendment constitutes an amendment to the TOU; any language in the TOU indicating it may not be modified or that it alone is the entire agreement between the Parties is waived. Any further amendment must be agreed to by both Parties.
Additional Items for discussion and possible inclusion in this Amendment
Company understands current federal law, regulation and policy may affect Agency's use of the Company's products and services in ways not addressed in the list of clauses above. Among the topics Agency may need to discuss with Company, and which may lead to a mutual agreement to insert additional clauses in this Amendment, are: Privacy and Accessibility.