This Amendment to Mode's Terms of Service applies only to government or public entities that access or use Mode's data analysis platform, website and associated tools (collectively, the "Service"), including access or use of the Service by individuals in their capacity as employees or contractors of the government or public entity (the "Agency," "You," or "User"). Mode's Terms of Service as amended by this Amendment is an agreement between Mode Analytics, Inc. ("Mode") and the Agency.
As a U.S. Government entity, You 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; federal records; limitations on indemnification; fiscal law constraints; advertising and endorsements; freedom of information; and governing law and dispute resolution forum. Mode and Agency (together, the "Parties") agree to modify Mode's standard Terms of Service, available here (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 Service.
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 Service on Agency's behalf, or (ii) any individual users who happen to be employed by, or otherwise associated with, the Agency. Mode will look solely to Agency to enforce any violation or breach of the TOS by such individuals, subject to federal law.
B. Public purpose: Agency shall use the Service solely in furtherance of Agency's public purpose. Any requirement(s) set forth within the TOS that use of the Service be for private, personal and/or non-commercial purposes is hereby waived.
C. Agency content serving the public: Mode will allow Agency's distribution or other publication via the Service 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. Advertisements: Mode agrees not to serve or display any commercial advertisements or solicitations in the publicly available portion of the Service displaying content uploaded by or under the control of the Agency. This exclusion shall not extend to house ads, which Mode may place in a non-intrusive manner.
E. Indemnification, Liability, Statute of Limitations: All provisions in the TOS 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 TOS as modified by this Amendment, or any claim arising from the TOS 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.
F. Governing law: The dispute resolution provision in the TOS is hereby deleted. The TOS 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 California (excluding California's choice of law rules) will apply in the absence of applicable federal law.
G. Changes to standard TOS: Language in the TOS reserving to Mode the right to change the TOS without notice at any time is hereby amended to grant You at least three days advance notice of any material change to the TOS. Mode shall send this notice to the email address You designate at the time You sign up for the Service, and You shall notify Mode of any change in the notification email address during the life of this Amendment.
H. Access and use: Mode acknowledges that the Agency's use of the Service may energize significant citizen engagement and otherwise become important to the Agency's mission. Language in the TOS allowing Mode to terminate the Service or close the Agency's account at any time, for any reason, is modified to reflect the Parties' agreement that Mode may unilaterally terminate the 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 Service, or if Mode ceases to operate the Service generally. Mode will provide Agency with a reasonable opportunity to cure any breach or failure on Agency's part.
I. Provision on crawlers: Any provision in the TOS 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.
J. Ownership of names: Any provision in the TOS related to Mode'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.
K. Modifications of Agency content: Any right Mode 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 Mode 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.
L. Limitation of liability: The Parties agree that nothing in the Limitation of Liability clause or elsewhere in the TOS in any way grants Mode a waiver from, release of, or limitation of liability pertaining to, any past, current or future violation of federal law.
M. Uploading, deleting: The Parties understand and agree that You are not obligated to place any user content on the Service, and You reserve the right to remove any and all of Your Content at Your sole discretion.
N. No endorsement: Mode agrees that Your seals, trademarks, logos, service marks, trade names, and the fact that You have a presence on and use the Service, shall not be used by Mode in such a manner as to state or imply that Mode's products or services 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 services. Except for pages whose design and content is under the control of the Agency, or for links to or promotion of such pages, Mode agrees not to display any Agency or government seals, trademarks, logos, service marks, and trade names on the Mode's homepage or elsewhere on the Service unless permission to do has been granted by the Agency or by other relevant federal government authority. Mode 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.
O. 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.
P. No cost agreement: Nothing in the TOS 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 TOS as modified by this Amendment are contingent upon the payment of fees by one party to the other.
R. Separate future action for fee-based services: Mode provides the Service at a basic level free of charge to the public, but this may change in the future. Agency acknowledges that while Mode will provide Agency with some services and features for free, Mode reserves the right to begin charging for the Service and features at some point in the future. Mode will provide Agency with at least 30 days advance notice of a change involving the charging of fees for currently free services. Agency also understand that Mode may currently offer other premium and enterprise services for a fee. 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 Agency decides to enter into a premium or enterprise subscription, or any other fee-based service that this Mode 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 procurement law, and in all other respects to follow applicable federal acquisition laws, regulations, and agency guidelines when initiating that separate action.
S. 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, Mode or its subsidiaries may assign the TOS as modified by this Amendment to a subsidiary or parent without written consent from the Agency provided that the successor assumes Mode's obligations under the TOS as modified by this Amendment.
T. Termination rights: Agency may close Agency's account and terminate this Amendment at any time. Mode may close Agency's account and terminate this Amendment on 30 days written notice.
U. Posting and availability of this Amendment: Any provision of the TOS requiring modifications of its terms to be posted on Mode's website 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 Service.
V. Security: Mode 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.
W. Federal Records: Agency acknowledges that use of the 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 Mode holds Federal records, the Agency and Mode 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 Mode is compliant with applicable records management laws and regulations through the life and termination of its use of the Service.
X. Intellectual property ownership: Except as expressly allowed in the TOS, no rights to any derivative works, inventions, or Mode product modifications are conferred on Agency or any other party. All such rights belong solely to Mode.
Y. 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 Mode website or related to the Service, this Amendment shall prevail. 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. Any further amendment must be agreed to by both Parties.
Z. Additional Items for discussion and possible inclusion in this Amendment: Mode understands current federal law, regulation and policy may affect Agency's use of Mode's products and services in ways not addressed in the list of clauses above. Among the topics Agency may need to discuss with Mode, and which may lead to a mutual agreement to insert additional clauses in this Amendment, are Privacy and Accessibility.