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Amendment to Smartwaiver TOS



This Amendment ("Amendment") only applies to U.S. Government and State Government users of the Site and Services.

You, as a Government entity ("THE AGENCY"), are required when entering into agreements with other parties to follow applicable federal and/or state laws and regulations, including those related to ethics; privacy and security; accessibility; federal and/or state records; limitations on indemnification; fiscal law constraints; advertising and endorsements; freedom of information; and governing law and dispute resolution forum. SW DEVELOPMENT LLC. ("THE COMPANY") and Agency (together, the "Parties") agree to modify the Company's standard Terms of Service, available at https://www.smartwaiver.com/tos (the "TOS") to accommodate Agency's legal status, its public (in contrast to private) mission, and other special circumstances. Accordingly, the TOS are hereby modified by this Amendment as they pertain to Agency's use of the Company Site and Services.

A. Government entity: "You" within the TOS shall mean the Agency itself and shall not apply to, nor bind (i) the individual(s) who utilize the Company Site or Services 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 TOS by such individuals, subject to federal and/or state law.

B. Public purpose: Agency shall use the Company Site and Services solely in furtherance of Agency's public purpose. Any requirement set forth within the TOS that use of the Company Site and Services be for private, personal or non-commercial purposes is hereby waived.

C. Agency content serving the public: Company will allow Agency's distribution or other publication via the Site or Services of material that may contain or constitute promotions, advertisements or solicitations for goods or services, so long as the material relates to the Agency's mission.

D. Indemnification, Liability, Statute of Limitations: Any provisions in the TOS related to indemnification and filing deadlines shall not apply except to the extent expressly authorized by law. Liability for any breach of the TOS as modified by this Amendment, or any claim arising from the TOS as modified by this Amendment, shall be determined under the Federal or State law applicable to the Agency. The Federal or State provisions statute of limitations applicable to the Agency shall apply to any breach or claim. Liability of Company for any breach of the TOS or this Amendment or any claim arising from the TOS or this Amendment, shall be determined by applicable U.S. Federal or State law.

E. Governing law: Any arbitration, mediation or similar dispute resolution provision in the TOS is hereby deleted. The TOS and this Amendment shall be governed by, interpreted and enforced in accordance with the laws of the United States of America or the laws of the Agencys state without reference to conflict of laws. To the extent not precluded by federal or state law, the laws of the State of Oregon will apply in the absence of controlling federal and/or state law.

F. Changes to standard TOS: If Company exercises its right to change the TOS, Company shall, whenever practicable, provide notice to subscribers with .gov email addresses alerting them to the change. Company acknowledges that changes to the TOS may be the basis for Agencys termination of this agreement and its use of the Company Site and Services if the changes conflict with Federal or State law applicable to the Agency.

G. Access and use: Company acknowledges that the Agency's use of Company's Site and Services may energize significant citizen engagement and otherwise become important to the Agency's mission. Language in the TOS 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 TOS 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 provide the Services generally. Company will provide Agency with a reasonable opportunity to cure any breach or failure on Agency's part.

H. Ownership of names: Any provision in the TOS 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.

I. Modifications of Agency content: Any right Company reserves in the TOS 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. In addition, the provision in the TOS allowing the company to remove any comment at any time in its sole discretion shall not be applied to Agency accounts. 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 seq.), specifically including Section 105 of such Act.

J. 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 or state law.

K. Uploading, deleting: 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.

L. No endorsement: 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 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 or State Government, or are considered by You or the Federal or State Government to be superior to any other products or services. 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 so has been granted by the Agency or by other relevant federal or state 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.

M. No business relationship created: The Parties are independent entities and nothing in the TOS as modified by this Amendment creates a partnership, joint venture, agency, or employer/employee relationship.

N. No cost agreement: Nothing in the TOS as modified by this Amendment obligates You to expend appropriations or incur financial obligations apart from Your payment to the Company for the Services used by the Agency. Other than as stated in the previous sentence, the Parties acknowledge and agree that none of the obligations arising from the TOS as modified by this Amendment are contingent upon the payment of fees by one party to the other.

O. 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 may be subject to federal or state 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 TOS for conformance to federal and/or state procurement law, and in all other respects to follow applicable federal or state acquisition laws, regulations, and agency guidelines when initiating that separate action.

P. Security Breach: Company will comply with applicable state and federal laws in the event of a security breach. In the event of any security breach, Company will notify you of the breach following its discovery in the most expedient time possible and without unreasonable delay, and will take necessary measures to determine the scope and cause of the breach and to restore security and privacy. If the laws of the State where you are located require notice to persons affected by a security breach as a result of actions taken by Company, Company will make commercially reasonable efforts to assist Agency in providing any required notification.

Q. Assignment: Neither party may assign its obligations under the TOS 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 TOS as modified by this Amendment to a subsidiary, parent or successor without written consent from the Agency provided that the successor assumes Company's obligations under the TOS as modified by this Amendment.

R. Termination rights: 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.

S. Security: Company will, in good faith, exercise due diligence using generally accepted commercial business practices for Information Technology 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.

T. Intellectual property ownership: Except as expressly allowed in the TOS, 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.

U. Precedence; Further Amendments: If there is any conflict between this Amendment and the TOS, or between this Amendment and other terms, rules or policies on the Company Site or related to its Services, this Amendment shall govern. This Amendment constitutes an amendment to the TOS; any language in the TOS indicating it may not be modified or that it alone is the entire agreement between the Parties is waived to the extent necessary to give force and effect to this Amendment. Any further amendment must be agreed to by both Parties.

V. Additional Items for discussion and possible inclusion in this Amendment: Company understands current federal or state 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.

Updated: July 6, 2016

If you are a government customer of Smartwaiver and you would like to be notified of changes to this TOS please send an email to support@smartwaiver.com and ask to be added to the notification list.