Effective: February 1, 2016
- Acceptance of Terms.
- b) If you are entering into this TOS on behalf of a company or other legal entity, you represent that you have the authority to bind such entity, its Members, its Administrative Users, and its affiliates to this TOS. In that case, the terms “you” or “your” shall also refer to such entity, its Members, its Administrative Users, and its affiliates, as applicable. If you do not have such authority, or if you do not agree with this TOS, you may not use the Service. You acknowledge that this TOS is a contract between you and Cola, even though it is electronic and is not physically signed by you and Cola, and it governs your use of the Service.
- c) If you are accessing the Service in your capacity as a United States government entity, there are special US Government Terms that may apply to you as specified in the attached “Amendment to Cola Terms of Service Applicable to Government Users”.
- d) As our business evolves, Cola may change this TOS. If we make a material change to the TOS, we will provide you with reasonable notice prior to the changes by posting a notice on the Site. You can review the most current version of the TOS at any time by visiting this page. The revised terms and conditions will become effective on the date set forth in our notice, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is to stop using the Services and uninstalling the Cola application from your devices.
- e) As part of the registration process, you will identify a user’s phone number for the account. You or the user may use these credentials to invite individuals to become users. You are responsible for maintaining the confidentiality of and access to your device.
- f) By accessing or using the Services, you affirm that you are at least 18 years of age (or have reached the age of majority if that is not 18 years of age where you live). You represent that you are fully able and competent to enter into and comply with the terms and conditions in this TOS. If you are between 13 and 17, your parent or legal guardian must have reviewed and agreed to these Terms. The Service is not directed to children under 13, so if you are under 13 years of age, you are not permitted to access or use the Services. If we become aware that you are using the Service even though you are under 13, we will deactivate your account.
- Description of Service.
The “Service(s)” means (a) Cola’s real-time communication, messaging, and archiving services and related systems and technologies, as well as the website http://www.cola.io (the “Site”), and (b) all software (including the Software, as defined below), applications, data, reports, text, images, and other content made available by or on behalf of Cola through any of the foregoing. The “Service” does not include Your Data (as defined below) or any software application (such as 3rd party Cola Bubbles) or service that is provided by you or a third party, which you use in connection with the Service, whether or not Cola designates them as “official applications or services” (each a “Non-Cola Product”). Any modifications and new features added to the Service are also subject to this TOS. Cola reserves the right to modify or discontinue the Service (or any Service plan) or any feature or functionality thereof at any time without notice to you. All rights, title and interest in and to the Service and its components (including all intellectual property rights) will remain with and belong exclusively to Cola.
- Access and Use of the Service.
- a) You may access and use the Service only for lawful, authorized purposes and you shall not misuse the Service in any manner (as determined by Cola at its sole discretion). See Section 6 for specific provisions outlining prohibited uses of the Service. You shall comply with any codes of conduct, policies, storage limitations, or other notices Cola, Inc. provides you or publishes in connection with the Service from time to time, but if any of those policies materially change the TOS, we will provide you with reasonable notice as provided in Section 1.4 above. You shall promptly notify Cola if you learn of a security breach related to the Service.
- b) Any software that may be made available by or on behalf of Cola in connection with the Service, including Cola’s mobile applications, (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, Cola only grants you a personal, non-sublicensable and non-exclusive license to use the object code of any Software solely in connection with the Service. Any rights not expressly granted herein are reserved.
- c) Cola reserves the right to use your name as a reference for marketing or promotional purposes on the Site and in other communication with existing or potential Cola customers. For example, we might list your company on one of our webpages under lists of Cola customers. We don’t want to list customers who don’t want to be listed, so you may send an email to [email protected] stating that you do not wish to be used as a reference.
- Your Data Rights and Related Responsibilities.
- a) “Your Data” means any data and content you upload, post, transmit or otherwise made available via the Services (which may include data you elect to import from Non-Cola Products you use). “Your Data” includes messages you send, files you upload, comments you make on files, profile information and anything else you enter or upload into the Service. Cola will make commercially reasonable efforts to ensure that all facilities used to store and process Your Data meet a high standard for security. For more information on our current practices and policies regarding data privacy, security and confidentiality, please see http://www.cola.io/privacy; we keep that document updated as these practices and policies evolve over time.
- b) In order for us to provide the Service to you, we require that you grant us certain rights with respect to Your Data. For example, we need to be able to transmit, store and copy Your Data in order to display it to you and others in your Conversations, to make backups to prevent data loss, and so on. Your acceptance of this TOS gives us the permission to do so and grants us any such rights necessary to provide the service to you, only for the purpose of providing the service (and for no other purpose). This permission includes allowing us to use third-party service providers (such as Amazon Web Services and Layer) in the operation and administration of the Service and the rights granted to us are extended to these third parties to the degree necessary in order for the Service to be provided.
- c) If you send us any feedback or suggestions regarding the Service, you grant Cola an unlimited, irrevocable, perpetual, free license to use any such feedback or suggestions for any purpose without any obligation to you.
- d) You are solely responsible for your conduct (including by and between all users), the content of Your Data, and all communications with others while using the Services. We may choose to review Content (as defined below) for compliance with our policies and guidelines, but you acknowledge that Cola has no obligation to monitor any information on the Services. However, Cola may remove or disable any Content at any time for any reason or for no reason at all. For example, if you upload files that do not belong to you and to make these files available users, we can delete those files. We are not responsible for the accuracy, appropriateness, or legality of Your Data or any other information you and your users may be able to access using the Services. The Services provide features that allow you and your users to share Your Data and other materials with others. Please consider carefully what you allow to be shared.
- Representations and Warranties.
You represent and warrant to Cola that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Data or have obtained all permissions, releases, rights or licenses required to engage in your activities (and allow Cola to perform its obligations) in connection with the Services without obtaining any further releases or consents; and (iii) Your Data and your other activities in connection with the Service, and Cola’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Data contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing.
You also agree not to:
- a) upload, post, transmit, or otherwise make available any of Your Data that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
- b) use the Service to harm minors in any way;
- c) impersonate any person or entity, including, but not limited to, a Cola employee, other users, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- d) manipulate identifiers in order to disguise the origin of any of Your Data;
- e) upload, post, transmit, or otherwise make available any of Your Data that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- f) upload, post, transmit or otherwise make available any of Your Data in a manner that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- g) sublicense, resell, rent, lease, transfer or assign (except as permitted in Section 16) the Service or its use, or offer the Service on a time share basis to any third party;
- h) use the Service to upload, post, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
- i) use the Service to upload, post, transmit, or otherwise make available any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware;
- j) disrupt the normal flow of dialogue, or otherwise act in a manner that negatively affects other users’ ability to engage in real time exchanges using the Service;
- k) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service, including using any device or software;
- l) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or its related systems or networks.
- m) intentionally or unintentionally violate any applicable local, state, national or international law in connection with your use of the Service, including, but not limited to, any data, privacy, or export control laws, or regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange, or the NASDAQ, and any regulations having the force of law;
- n) use the Service to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
- o) use the Service to “stalk” or otherwise harass another; and/or
- p) collect or store personal data about other users in connection with any of the prohibited conduct and activities set forth above.
You acknowledge that Cola and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any of Your Data that is available via the Service. If, for instance, you upload files that do not belong to you and make these files available to other users, we can delete those files. We may also review Your Data transmitted through non-public mechanisms (such as private Conversations within the Service) where we deem appropriate, including for violations of this TOS or in response to a user complaint. Without limiting the foregoing, Cola and its designees shall have the right (but not the obligation) to remove any of Your Data that violates the TOS or is otherwise objectionable. You must evaluate, and bear all risks associated with, the use of Your Data, including any reliance on the accuracy, completeness, or usefulness of Your Data.
You acknowledge, consent and agree that Cola may access, preserve and disclose your account information and Your Data if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the TOS; (iii) respond to claims that any of Your Data violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of Cola, its users and the public.
- Term; Termination.
- a) This TOS will continue in full effect unless and until your account or this TOS is terminated as described herein. You have the right to deactivate your account at any time by deleting all copies of the Cola application.
- b) We reserve the right to deactivate and delete your account (or the access privileges of any user) and terminate this TOS at any time for any reason, or no reason, with or without notice. Without limiting the foregoing, Cola may, in its sole discretion, publish policies whereby we delete your account for prolonged inactivity. Upon any termination of this TOS, we will have no obligation to maintain or provide Your Data.
- d) All accrued rights to payment and the terms of Section 5 and Sections 8 through 20 shall survive termination of this TOS.
- Disclaimer of Warranties.
- a) The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond our reasonable control, but Cola shall use reasonable efforts to provide advance notice of any material scheduled service disruption. Further, you understand that Your Data may be transmitted or handled in an unencrypted manner if you or others choose to use unencrypted mechanisms to connect to the Service. Additionally, while Cola takes steps to ensure that information provided to its third party vendors and hosting partners is transmitted using reasonable security measures, it does not guarantee that these transmissions will be encrypted. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Data. Cola will have no liability to you for any unauthorized access or use of any of Your Data, or any corruption, deletion, destruction or loss of any of Your Data.
- b) THE SERVICE AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND COLA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT COLA DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM COLA OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
- Limitation of Liability.
- a) UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL COLA BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, FIVE HUNDRED ($500) U.S. DOLLARS, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
- b) Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE JURISDICTIONS, COLA’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
- Dispute Resolution/Arbitration.
- a) PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. In order to expedite and control the cost of disputes, you and we agree that any legal or equitable claim arising out of or relating in any way to your use of the Services or these TOS, and the formation, validity, enforceability, scope, or applicability of this TOS, including this Section 9 (referred to as a “Claim”) will be resolved as follows:
- b) Informal Resolution. We will first try to resolve any Claim informally. Accordingly, neither of us may start a formal proceeding (except for Claims described in Section 9.4 below) for at least 30 days after one of us notifies the other of a Claim in writing. Notice of the Claim will include a brief written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, claim, or controversy and the relief requested. You will send your notice by email to [email protected] AND to the address listed directly below.
795 Folsom Street, First Floor
San Francisco, CA 94107
- c) Formal Resolution. Except as provided in Section 9.4, if we cannot resolve a Claim informally, any Claim either of us asserts will be resolved only by binding arbitration and not in courts of general jurisdiction. The arbitration will be conducted under the rules of JAMS that are in effect at the time the arbitration is initiated (referred to as the “JAMS Rules”) and under the rules set forth in this TOS. If there is a conflict between JAMS Rules and the rules set forth in this TOS, the rules set forth in this TOS will govern. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to your state’s law.
- c.1. Human Users. If you are an individual user and you decide to initiate arbitration on your own behalf as a living person, we agree to reimburse your arbitration initiation fee, and any additional deposit required by JAMS to initiate your arbitration. We also agree to pay the costs of the arbitration proceeding. Other fees, such as attorney’s fees and expenses of travel to the arbitration, will be paid in accordance with JAMS Rules. The arbitration will be held at a location in your hometown area unless you and we both agree to another location or telephonic arbitration. To start an arbitration, you or we must do the following things:
(1) Write a Demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com.
(2) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to:
500 North State College Blvd., Suite 600
Orange, CA 92868
(3) Send one copy of the demand for arbitration to us at the U.S. mailing address noted above.
- c.2. Legal Entities. If you decide to initiate arbitration on behalf of the company or legal entity you represent, you will be required to pay the arbitration initiation fee as well as any additional deposit required by JAMS to initiate your arbitration. You also agree to pay the costs of the arbitration proceeding. Other fees, such as attorney’s fees and expenses of travel to the arbitration, will be paid in accordance with JAMS Rules. The arbitration will be held at a location in your hometown area unless you and we both agree to another location or telephonic arbitration. To start an arbitration, you or we must do the following things:
(1) Write a Demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com
(2) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to:
500 North State College Blvd., Suite 600
Orange, CA 92868
(3) Send one copy of the demand for arbitration to us at the U.S. mailing address noted above.
- d) Special Rules. In the arbitration proceeding, the arbitrator has no authority to make errors of law, and any award may be challenged if the arbitrator does so. Otherwise, the arbitrator’s decision is final and binding on all parties and may be enforced in any federal or state court that has jurisdiction. Neither you nor we shall be entitled to join or consolidate claims in arbitration by or against other individuals or entities, or arbitrate any claim as a representative member of a class or in a private attorney general capacity. Accordingly, you and we agree that the JAMS Class Action Procedures do not apply to our arbitration. A court may sever any portion of Section 9 that it finds to be unenforceable, except for the prohibition on class, representative and private attorney general arbitration.
- e) Notwithstanding the foregoing, the notice and 30-day negotiation period required by this paragraph shall not apply, however, to disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Service, including disputes involving a violation of the Communications Act of 1934, 47 U.S.C. § 605, or the Digital Millennium Copyright Act, 17 U.S.C. § 1201, or the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521, or any other statement or law governing theft of service, may be decided only by a court of competent jurisdiction. You may also assert an individual action in small claims court in lieu of arbitration.
- f) User Right to Opt Out. If you are a User, you have the right to opt-out and not be bound by the binding arbitration requirement by sending written notice of your decision to opt-out to the Email address [email protected] AND by U.S. Mail to Cola, Inc., 795 Folsom Street, First Floor, San Francisco, CA 94107
- g) The notice must be sent within the later of 30 days of January 1, 2015 or your first use of the Services, whichever is later. If you opt-out of the binding arbitration requirement, Cola also will not be bound by the requirement. Administrative Users may not opt-out of the binding arbitration requirements.
- h) Changes to this Section. Cola will provide 30 days’ notice of any changes to this section. Changes will become effective on the 30th day, and will apply prospectively only to any claims arising after the 30th day.
- STATUTE OF LIMITATIONS.
Regardless of any statute or law to the contrary or the applicable dispute resolution process, an informal complaint pertaining to any Claim or cause of action arising out of or related to use of the Service or under the TOS must be filed with Cola within one (1) year after such Claim or cause of action arose or be forever barred. For Claims pursuant to the exceptions identified in Section 9.4, these Claims must be filed with the appropriate court within three (3) years after such claim or cause of action arose or be forever barred.
- NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT
We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Cola’s Copyright Agent the following information:
- a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- b) a description of the copyrighted work or other intellectual property that you claim has been infringed;
- c) a description of where the material that you claim is infringing is located;
- d) your address, telephone number, and email address;
- e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Cola’s Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
c/o Cola, Inc.
795 Folsom Street, First Floor
San Francisco, CA 94107
By phone: 408-690-2270
By email: [email protected]
You shall defend, indemnify, and hold harmless Cola from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Data, or your) use or misuse of the Service. Cola shall provide notice to you of any such claim, suit or demand. Cola reserves the right to conduct the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Cola’s defense of such matters.
If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable.
- Integration, Modification, and Authority.
This TOS is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS. All waivers and modifications to this TOS must be in a writing signed by both parties that expressly by its terms modifies or waives a provision of this TOS, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind Cola in any respect whatsoever.
You may not assign this TOS without the prior written consent of Cola, except, if you are a company or other legal entity, you may assign this TOS in connection with a merger, re-organization or acquisition of all or a substantial portion of your assets by another company, but only upon 30-days prior notice to Cola. Cola may assign or transfer this TOS, in whole or in part, without restriction.
Except as otherwise set forth herein, all notices under this TOS will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
- Choice of Law and Forum.
The TOS and the relationship between the parties shall be governed by the laws of the State of California without regard to its conflict of law.
- Waiver and Severability of Terms.
The failure of Cola to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision.
- No Right of Survivorship and Non-Transferability.
If you are a living person, you agree that your account is non-transferable and your rights to the content within your account terminate upon your death, however the content may be thereafter be available and accessible by Administrative Users.
- Government Users.
Nothing herein makes Cola a government contractor. If you are a government user or otherwise accessing or using the Cola Service in a government capacity, the Amendment to Cola TOS for Government Users attached below.
Amendment to Cola Terms of Service Applicable to Government Users
This Amendment to Cola’s Terms of Service (“Amendment” or “Agreement”) applies only to users of the Cola Service (as defined in the TOS) that are accessing, using, or wish to access or use Cola’s Service in their capacity as U.S. government or U.S. public entities or in their capacity as employees of a U.S. government or U.S. public entity. If You are a U.S. government or U.S. public entity or an employee acting on behalf of one of those entities, read on. This Amendment applies to You. If You aren’t, then Cola’s Terms of Service apply to you.
This Amendment is an agreement between Cola, Inc. (“Cola” or “Company”) and U.S. Government users of the Service and applies solely to any U.S. Government agency Administrative Users and Members who use or access the Service on behalf of such U.S. Government agency (the “Agency”). 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.
Cola and You (together, the “Parties”) agree that these modifications to the Cola standard Terms of Service, available at the “TOS” are appropriate to accommodate Your legal status, Your 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 Services.
- Government entity: For the purposes of this Amendment to the TOS, “You” shall mean the Agency itself and shall not bind in their individual capacity (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 the Agency to enforce any violation or breach of the TOS by such individuals when they are acting on behalf of the Agency, subject to federal law. All other defined terms in the standard TOS will retain their definitions as set forth in that agreement.
- Public purpose: Agency shall use the Services solely in furtherance of Agency’s public purpose. Any requirement(s) set forth within the TOS that use of the Services be for private, personal and/or non-commercial purposes is hereby waived. Company acknowledges that You may use the Services from locations throughout the world, and that you may have more than one account. Any prohibitions to the contrary are hereby waived.
- Advertisements: Company hereby agrees not to serve or display any third-party 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 serve on such pages in a non-intrusive manner.
- Indemnification, Liability, Statute of Limitations: Any 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.
- Governing law: Any arbitration, mediation or similar dispute resolution provision in the TOS is hereby waived. The TOS and this Amendment shall be governed, interpreted and enforced in accordance with applicable federal laws of the United States of America without reference to conflict of laws and exclusive jurisdiction shall be in the appropriate U.S. federal courts. 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.
- 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 the email address You designate at the time You sign up for service and send to [email protected], and You shall notify Company of any change in the notification email address during the life of the Amendment.
- Access and use: Company 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 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 the Agency’s obligations under the TOS, its material failure to comply with the instructions and guidelines posted on the Service, if Company ceases to operate the Service generally or as provided in paragraph S. below. Company will provide the Agency with a reasonable opportunity to cure any breach or failure on the Agency’s part.
- 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.
- Ownership of names: Any provision(s) 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), 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.
- 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. Notwithstanding the foregoing, nothing in this Amendment shall result in an expansion of Your 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.
- 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 direct past, current or future violation of federal law by Company.
- Uploading, deleting: The Parties understand and agree that You are not obligated to place any of Your Data on the Service, and You reserve the right to remove any and all of Your Data at Your sole discretion.
- No endorsement: Company agrees that Your seals, trademarks, logos, service marks, trade names, and the fact that You have a presence on the 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 U.S. Government, or are considered by You or the U.S. 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 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 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.
- 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.
- 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. Cola currently offers free service under a free usage plan, and in that case this Amendment will apply to the Agency’s usage under the free account/plan. This Amendment also applies if the Agency chooses to use Cola’s paid usage plans, if offered.
- Separate future action for fee based Services: Company provides Services at a basic level free of charge to the public, but this may change in the future. Agency acknowledges that while Company will provide Agency with some Services and features for free, Company reserves the right to begin charging for the Services and features at some point in the future. Company will provide Agency with at least 30 days advance notice of a change involving the charging of fees for a previously-free service. 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 the 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, You agree: to determine the Agency 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 (including those related to payments) when initiating that separate action.
- 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; however, Cola or its subsidiaries may assign the TOS as modified by this Amendment to a subsidiary or parent or successor to its assets or business without written consent from the Agency provided that the successor assumes Cola’s obligations under the TOS as modified by this Amendment.
- Termination: 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, but the Agency shall not be entitled to a refund of any fees paid.
- Posting and availability of this Amendment: Any provision of the TOS requiring modifications of its terms 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 at large. You may also post it for the benefit of other U.S. Government agencies interested in using the Service on http://www.digitalgov.gov/resources/negotiated-terms-of-service-agreements/ or similar federal informational web sites.
- Security: Company will, in good faith, exercise due diligence using reasonable 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 Site and Services meet users’ requirements for the security of systems and data. Company agrees to discuss implementing additional security controls as deemed necessary by the Agency to conform to the Federal Information Security Management Act (FISMA), 44 U.S.C. 3541 et seq., but is under no obligation to provide such additional security controls.
- Federal Records: Agency acknowledges that use of Company’s Services may require management of Federal records. Your Data may meet the definition of Federal records as determined by the Agency. Company makes tools available to its users that enable compliance with a range of recordkeeping requirements. Some recordkeeping tools may only be available as part of Cola’s paid service. Agency should advise Company if it has questions about recordkeeping tools or capabilities and should review tools available for each type of Cola plan before registering, but Agency has sole responsibility for complying with the applicable federal recordkeeping laws and Cola has no duty to provide Agencies using free accounts with tools only available to Cola’s paid users.
- User Privacy: Agency acknowledges that Company’s Service allows the Agency broad access to user-generated content, including direct messaging which may be considered private by users, as well as IP information and other usage data. Agency shall be solely responsible for informing users of its policies that apply to the use of Cola, including whether or not there is a reasonable expectation of privacy in any communications or activity. Further, Agency shall be solely responsible for complying with any applicable law including the U.S. Constitution and the Electronic Communications Privacy Act in access to, handling, and use of user information and communications content collected via Agency’s use of the Company’s Service.
- Intellectual property ownership: Except as expressly allowed in the TOS, no rights to the Company Site or Services or any derivative works, inventions, or Company product or service modifications are conferred on Agency or any other party. All such rights belong solely to Company.
- 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 in writing.
- Additional Items for Discussion and Possible Inclusion in this Agreement: 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.