For U.S. Government Users
This Amendment to Boombox’s Terms of Service (“TOS”) is an agreement between Movement Ventures (creator of Boombox) and the U.S. Government. The Amendment applies to the use of the Boombox Site and 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, and practices when entering into a binding agreement such as the terms offered in Boombox’s TOS. Among other subjects, federal rules deal with ethics, privacy, security, accessibility, government records, limitations on indemnification, fiscal law constraints, advertising and endorsements, freedom of information, and the rules that control how, where, under which laws disputes are to be resolved
Boombox and you (formally the “Parties” or “We”) have decided that Boombox’s general TOS, available here, should include an Amendment to allow Agencies to use the Site and Services under federal-compatible terms. The items presented below are intended to respect your legal status, your public mission, and other circumstances unique to the U.S. Government. With that as background, the TOS is modified as follows.
A. Government entity:
We want to be clear what “you” means within the TOS. For Government users, “you” means the Agency itself and will not apply to nor bind the individuals who use the Boombox Site and Services on the Agency’s behalf. Instead, Boombox will look solely to the Agency as the party it will pursue if Boombox believes there’s been a violation or breach of the TOS.
B. Public purpose and usage:
The Agency agrees to use the Boombox Site and Services solely to fulfill the Agency’s public purpose. Any requirement in the TOS that use of Boombox be for private, personal and/or non-commercial purposes is waived.
We don’t want government content to be confused or mixed up with commercial advertisements or solicitations. Boombox agrees not to display or insert any such ads in the publicly available portion of the Site displaying content uploaded by or under the control of the Agency. This doesn’t apply to what are commonly called “house ads” – Boombox is allowed to place those in a non-intrusive manner and if they don’t cause confusion.
D. Indemnification, Liability, Statute of Limitations, Governing law and Forum:
While the title of this section looks complicated, the proposition We will follow is simple. Boombox agrees that any provisions in the TOS related to legal subjects – such as indemnification, liability, damages, dispute forum, filing deadlines, defense of lawsuits, collection expenses, attorneys fees, and settlement – will apply to you only to the extent consistent with federal law. The arbitration requirement in the TOS will not apply to government usage. We expect the Boombox-Agency relationship under the TOS and Amendment to go smoothly, but if something should go awry, the Parties agree the TOS will be governed by, and interpreted and enforced in accordance with, applicable federal laws of the United States of America. Federal statute of limitations provisions will apply to any breach or claim. To the extent permitted under federal law, the laws of the State of Utah will apply. Jurisdiction of disputes will be in federal forums.
E. Changes to standard TOS:
Language in the TOS reserving to Boombox 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. Boombox shall send this notice to the email address you designate at the time you open an account. Agency shall notify Boombox of any change in the notification email address during the life of the Amendment.
F. Access and use:
Boombox understands that the Agency’s use of Boombox Services may energize significant citizen engagement and otherwise become important to your public mission. Language in the TOS allowing Boombox to terminate service or close the Agency’s account at any time, for any reason, is modified to reflect the Parties’ agreement that Boombox 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 Boombox ceases to operate its Site or Services generally. Boombox will provide Agency with a reasonable opportunity to cure any breach or failure on Agency’s part.
G. 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.
H. Modifications of Agency content:
The right Boombox reserves to use Agency’s content and do the things Boombox needs to provide its Services does not include the right to substantively edit or otherwise alter the meaning of the Agency’s content. In the event Agency discovers that Agency content has been modified in a manner that alters its meaning, Agency may contact Boombox and the Parties shall work together in good faith to resolve the matter.
I. Limitation of liability:
The Parties agree that nothing in the Limitation of Liability clause or elsewhere in the TOS in any way grants Boombox a waiver from, release of, or limitation of liability pertaining to, any past, current or future violation of federal law.
J. No endorsement:
Boombox agrees that your name, seals, trademarks, logos, service marks, trade names, and the fact that you have a presence on the Boombox Site and use its Services, shall not be used by Boombox in such a manner as to state or imply that Boombox’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, Boombox agrees not to display any Agency or government seals, trademarks, logos, service marks, and trade names on the Boombox’s homepage or elsewhere on the Boombox Site unless permission to do has been granted by the Agency or by other relevant federal government authority. Boombox 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.
K. 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.
L. 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. However, the Parties agree that this Amendment applies to Agency’s usage of both Free and Premium (paid) subscription or other fee-based Services that Boombox may offer.
M. Provision of data:
N. Paid Services and Agency Obligation:
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 subscription or other Premium, paid, or fee-based service that Boombox or alternative providers may offer now or in the future, the Agency must: (a) determine whether it has a need for those services, (b) consider the service’s value in comparison with comparable services available elsewhere, (c) determine that funds are available for payment, (d) properly use the Government Purchase Card if that Card is used as the payment method, (e) review the TOS applicable at the time 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.
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, Boombox 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 Boombox’s obligations under the TOS as modified by this Amendment.
P. Termination rights:
Agency may close Agency’s account and terminate this Amendment at any time. Boombox may close Agency’s account and terminate this Amendment on 30 days written notice.
Boombox 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, Boombox will continuously work with users to ensure that its Site and Services meet users’ requirements for the security of systems and data. Boombox 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.
R. Federal Records:
Agency acknowledges that use of Boombox’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 the Boombox holds Federal records, the Agency and the Boombox 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 working with Boombox to insure compliance with applicable records management laws and regulations through the period Agency is using the Site and Services.
S. Intellectual property ownership:
Except as expressly allowed in the TOS, no rights to any derivative works, inventions, or Boombox product modifications are conferred on Agency or any other party. All such rights belong solely to Boombox.
T. 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 Boombox 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.
U. Additional Items for discussion and possible inclusion in this Amendment:
Boombox understands that changes in federal laws, regulations and policies may affect Agency’s use of the Boombox’s products and Services in ways not addressed in the clauses above. Among the topics Agency may seek to discuss with Boombox, and which may lead to a mutual agreement to insert additional clauses in this Amendment, are Privacy and Accessibility.
V. Posting of Amendment:
This Amendment shall be posted with Boombox’s online TOS either by incorporation of its text or via an integral link to a separate page on Boombox.com.