This Amednment to OptinMonster’s Terms of Service is an arrangement between Retyp LLC (“OptinMonster” or “Company”) and the United States Government (“DOS,” “Agency,” “You,” or “User”) and applies to Agency and other interested U.S. Government users of the Company’s Site and Services.
You, as a United States Government entity, 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. Company and Agency (together, the “Parties”) agree to modify the Company’s standard Terms of Service, available at https://optinmonster.com/terms/ (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, or 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 of breach of the TOS by such individuals, subject to federal law.
B. Public purpose: Agency employees shall use the Company Site and Services solely in furtherance of Agency’s public purpose. Company acknowledges that You may use the Company’s Site and Services from locations throughout the world on the same terms as You use it in the United States, and that You may have more than one account.
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. Advertisements: 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.
E. Liability, Statute of Limitations: Liability for any breach of the TOS as modified by this this Amendment, or any claim arising from the TOS as modified by the Amendment, shall be determined under the Federal Tort Claims Act, or other governing authority. Federal Statute of Limitations provisions shall apply to any breach or claim.
F. Changes to standard TOS: Language in the TOS reserving to Company 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. Company shall send this notice to You at the email address You designate on your account details page, and You shall notify Company of any change in the notification email address during the life of the Amendment.
G. No endorsement: Company agrees that Your seals, trademarks, logos, service marks, trade names, and the fact that You use Company’s 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 Government, or are considered by You or the Federal Government to be superior to any other products or services. Company agrees not to display any Agency or government seals or logos 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 government authority. Company may list the Agency’s name in a publicly available customer list so long as the name is not displayed in a more prominent fashion than that of any other third party name.
H. No business relationship created: The Parties are independent entities and nothing in the TOS as modified by this Amendment creates an agency, partnership, joint venture, or employer/employee relationship.
I. 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 or parent without written consent from the Agency provided that the successor assumes Company’s obligations under the TOS as modified by this Amendment.
J. 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.
K. Posting and availability of this Amendment: Any provision of the TOS requiring modifications to the TOS 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 Company Site and Services.
L. Security: 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. Recognizing the changing nature of the Web, Company will continuously work with users to ensure that its products and services 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.
M. Federal Records: Agency acknowledges that use of Company’s Site and Services may require management of Federal records. Agency-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 Services.
N. 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.
O. 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 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.
P. 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. Much depends on the nature of the products and services offered by the Company (which may change from time to time), and how Agency intends to use those services (which also may change). Among the topics Agency may need to discuss with Company and which may lead to a mutual agreement to insert additional clauses in the Amendment, are Privacy and Accessibility.
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. Much depends on the nature of the products and services offered by the Company (which may change from time to time), and how Agency intends to use those services (which also may change). Among the topics Agency may need to discuss with Company, and which may lead to the insertion of additional clauses in this Agreement, are Privacy and Accessibility.
