This Amendment to Beatshare’s Terms of Service (“Terms”) is an agreement between Beatshare and the U.S. Government and it applies to use of Beatshare Services by the U.S. Government.
The reason for this Amendment is that each U.S. Government entity (“you” or “Agency”) must follow Federal laws, regulations, rules, and practices when entering into a binding agreement, such as the Terms offered by Beatshare at Terms of Service. This Amendment allows Agencies to use Beatshare Services under Federal-compatible terms that respect each Agency’s legal status, its public mission, and other circumstances unique to the U.S. Government.
A. Government entity: As applied to U.S. Government users, the words “you” and “your” within the Terms refer to the Agency itself and do not apply to nor bind the individuals who use the Services on the Agency's behalf. Instead, Beatshare will look solely to the Agency as the party it will pursue if Beatshare believes there’s been a violation or breach of the Terms.
B. Advertisements: Neither Beatshare nor the Agency wants the Government’s content to be confused with other content. To minimize that risk, Beatshare will not insert commercial advertisements or solicitations within an Agency’s own Story.
C. No endorsements: Beatshare agrees that your Agency name, seals, trademarks, logos, service marks, trade names, and the fact that you use the Services and Products will not be used by Beatshare in such a manner as to state or imply that Beatshare’s services and products are endorsed, sponsored, or recommended by the Agency or by any other entity of the Federal Government, or are considered by those entities to be superior to other available products or services. Except for areas whose content is under the control of the Agency, or for links to or promotion of such areas or content, Beatshare agrees not to display any Agency or Government seals, trademarks, logos, service marks, and trade names on Beatshare’s homepage or elsewhere on its Site unless permission to do has been granted by the Agency or by other relevant Federal Government authority. Beatshare may list the Agency’s name in a publicly available customer list on its homepage, in promotional materials, or elsewhere so long as the name is not displayed in a more prominent fashion than that of any other third party name.
D. Indemnification, liability, statute of limitations, governing law, and forum: While the title of this section looks complicated, the rule Beatshare and the Agency will follow is simple. We agree that any provisions in the Terms related to legal subjects will apply to Agency usage only to the extent consistent with Federal law. By way of examples, this means:
All indemnity and limitation-of-damages provisions in the Terms are waived.
Liability of Agency for any breach of the Terms as modified by this Amendment, or any claim arising from the Terms as modified by this Amendment, will be determined under the Federal Tort Claims Act, the Contract Disputes Act (if Agency is using a paid Service), or other governing federal authority.
The Arbitration, Class Waiver, and Jury Waiver provisions in the Terms are deleted in their entirety.
The Forum and Venue provision is deleted in its entirety. A lawsuit, if any, by the Agency or Beatshare against the other will occur in a federal tribunal.
The Choice of Law provision is deleted in its entirety. The Terms as modified by this Amendment will be governed, interpreted, and enforced in accordance with the federal laws of the United States.
E. Access and use: Beatshare understands that the Agency’s use of Beatshare Services may energize significant citizen engagement and otherwise become important to your public mission. Language in the Terms allowing Beatshare to terminate your right to use the Service is modified to allow termination only if the Agency breaches its obligations under the Terms, if it fails to comply with instructions and guidelines posted on the Site, or if Beatshare ceases to operate its Services generally. Beatshare will provide the Agency with notice and a reasonable opportunity to cure any identified breach or failure, unless Beatshare, in its discretion, determines that it must terminate immediately to protect the rights, property, safety, or security of Beatshare, its users, or others.
F. Provision on crawlers: Any provision in the Terms prohibiting “crawler,” “spider,” or similar processes is amended to allow the Agency to apply such tools solely to gather its own content, and solely to fulfill the Agency’s obligations under the Federal Records Act or other applicable Federal law or regulation.
G. Modifications of Agency content: The right that Beatshare reserves to use the Agency’s content and do the things Beatshare needs to do to provide its Services in all media and distribution methods does not include the right to substantively edit or otherwise alter the meaning of the Agency’s content. In the event the Agency discovers that Agency content has been modified in a manner that alters its meaning, the Agency may contact Beatshare and the parties will work together in good faith to resolve the matter.
H. No business relationship created: The parties are independent entities and nothing in the Terms as modified by this Amendment creates a partnership, joint venture, agency, or employer/employee relationship.
I. Paid services and Agency obligation: This Amendment applies to the Agency’s use of free as well as premium, enterprise, subscription, or other fee-based services or products that Beatshare may offer. The parties understand that fee-based products and services are different than those that are free because paid services used by the Agency are subject to Federal procurement rules and processes. Before an Agency decides to enter into a paid or fee-based service that Beatshare or alternative providers may offer now or in the future, it is the Agency’s responsibility to: (a) determine it has a need for those services, (b) consider the service’s value in comparison with comparable services available elsewhere, (c) make sure funds are available for payment, (d) properly use the Government Purchase Card if that Card is used as the payment method, (e) review the Terms applicable at the time of ordering for its conformance to Federal procurement law, and (f) in all other respects follow applicable Federal acquisition laws, regulations, and Agency guidelines when initiating that separate action.
J. Federal records: The Agency acknowledges that use of Beatshare’s Site and Services may require management of Federal records. Agency and user-generated content such as comments may meet the definition of Federal records as determined by the Agency. If Beatshare holds Federal records, the Agency 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. It is the Agency that is responsible for complying with applicable records management laws and regulations through the period the Agency is using the Site and Services.
K. Precedence; further amendment: Language in the Terms indicating the Terms alone make up the entire agreement between the parties is waived, as this Amendment applies as well. If there is any conflict between this Amendment and the Terms, or between this Amendment and other terms, rules, or policies related to its Services, then this Amendment will prevail. Any modification to this Amendment must be agreed to by both parties.
June 5, 2016
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