Amendment to Terms of Service
Amendment to Switchboard Terms of Service Applicable to Government Users
This "Amendment" to Switchboard's Terms of Service (the "Terms") applies only to users of the Switchboard Services that are accessing or using or wish to access or use the Switchboard Services in their capacity as government or public entities or their capacity as employees or contractors of a government or public entity ("Agency" or "You"). If you are a government or public entity, then this Amendment applies to you. If not, then only Switchboard's Terms of Service apply to you.
This Amendment is an agreement between Switchboard Live, Inc. ("Switchboard") and Agency regarding use of the Switchboard Services as defined in the Terms, including, for clarification, all programs, features, functions and report formats, and subsequent updates or upgrades of any of the foregoing made generally available by Switchboard (the "Switchboard Services"), and this Amendment applies solely to Agency.
You, as a United States Government entity, are required, when entering into agreements with other parties, to follow applicable federal or state 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.
Switchboard and You (sometimes hereafter a "Party" and, together, the "Parties") agree that modifications to the Terms, available at Terms of Service. Terms are appropriate to accommodate Your legal status, Your public (in contrast to private) mission, and other special circumstances. Accordingly, the Terms are hereby modified by this Amendment as they pertain to Agency's use of the Switchboard Services.
A. Government Entity
"You" within the Terms shall mean the Agency itself and shall not bind in their individual capacity (i) the individual(s) who utilize the Switchboard Services on Agency's behalf, or (ii) any individual users who happen to be employed by, or otherwise associated with, the Agency. Switchboard will look solely to Agency to enforce any violation or breach of the Terms by such individuals, subject to federal law; provided, however, that nothing herein shall limit Switchboard's rights under Section G of this Amendment allowing Switchboard to enforce the Terms in relation to content on the Switchboard Services including, without limitation, removal of user-generated content and closure of user Accounts, as and when Switchboard believes there is a violation or breach of the Terms.
B. Public Purpose
Any requirement(s) set forth within the Terms that use of the Switchboard Services be for private, personal and non-commercial purposes is hereby waived. Switchboard acknowledges that Agency may use the Switchboard Services outside of the United States and that Agency may open more than one Account (as defined in the Terms).
C. Agency Content Serving the Public
Switchboard hereby approves Agency's distribution or other publication via the Switchboard Services of materials that may contain or constitute promotions, advertisements or solicitations for goods or services, so long as the material relates to Agency's mission and complies with any requirements set forth in the Terms.
All indemnification and damages provisions of the Terms are hereby waived. Liability of Agency for any breach of the Terms or this Amendment, or any claim arising from the Terms or this Amendment, shall be determined under the Federal Tort Claims Act, or other governing authority. Liability of Switchboard for any breach of the Terms or this Amendment, or any claim arising from the Terms or this Amendment, shall be determined by applicable federal or state law. Federal statute of limitations provisions shall apply to any claim, demand, suit or proceeding arising from the Terms or this Amendment.
E. Governing Law and Forum
The governing law and dispute resolution provisions in the Terms is hereby deleted. The Terms and this Amendment shall be governed, interpreted and enforced in accordance with applicable federal laws of the United States of America, 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 federal law. Any arbitration, mediation or other dispute resolution provision in the Terms is hereby waived by the Parties. The forum for purposes of resolving claims and disputes will be determined in accordance with federal law.
F. Changes to Standard Terms
Language in the Terms reserving to Switchboard the right to change the Terms without notice at any time is hereby amended to grant You at least three (3) days' advance notice of any material change to the Terms. Switchboard shall send this notice to the email address You designate at the time You sign up for service, and You shall notify Switchboard of any change in the notification email address during the life of the Amendment. If the Terms provides for advance notice of material changes to the Terms, then the foregoing amendment does not apply.
G. Access and Use
Switchboard acknowledges that Agency's use of the Switchboard Services may energize significant citizen engagement or otherwise become important to Agency's mission. Language in the Terms allowing Switchboard to terminate service, refuse or remove content, or close Agency's account, at any time, for any reason, is modified to reflect the Parties' agreement that Switchboard may unilaterally modify or discontinue service, temporarily or permanently, and/or terminate Agency's account only for breach of the Agency's obligations under the Terms or its material failure to comply with the instructions and guidelines posted on Switchboard's website, or if Switchboard ceases to operate the Switchboard Services generally. Switchboard will provide Agency with a reasonable opportunity to cure any breach or failure on Agency's part. Notwithstanding anything herein, Switchboard reserves the right to disable any user account's ability to add content to the Switchboard Services or remove previously posted content, without prior notice, if Switchboard believes that such account or content violates the Terms. Any provision in the Terms prohibiting "crawl," "spider" or similar processes is amended to allow the Agency to apply such tools reasonably 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. Limitation of Liability
The Parties agree that nothing in the "Exclusion of Damages; Limitation of Liability" clause or elsewhere in the Terms in any way grants Switchboard a waiver from, the release of, or limitation of liability pertaining to, any past, current or future violation of federal law.
I. Uploading, Deleting
The Parties understand and agree that You are not obligated to distribute any Customer Data (as defined in the Terms) through the Switchboard Services, and You reserve the right to remove any and all Customer Data at Your sole discretion.
J. No Endorsement
Switchboard agrees that Your seals, trademarks, logos, service marks, trade names ("Agency Marks"), and the fact that You use the Switchboard Services shall not be used by Switchboard in such a manner as to state or imply that the Switchboard 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 any aspect of your account whose design and content is under the control of Agency, or for links to or promotion of such aspects, Switchboard agrees not to display any Agency Marks on Switchboard's homepage or elsewhere on Switchboard's website unless permission to do has been granted by Agency or by other relevant Federal Government authority. Switchboard may list 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.
K. No Business Relationship Created
The Parties are independent entities and nothing in this Amendment, or the Terms creates an agency, partnership, joint venture, or employer/employee relationship.
L. No Cost Agreement
Nothing in this Amendment or the Terms obligates You to expend appropriations or incur financial obligations. The Parties acknowledge and agree that none of the obligations arising from the Terms as modified by this Amendment are contingent upon the payment of fees by one Party to the other.
M. Provision of Data
N. Separate Future Action for Fee-Based Services
Switchboard provides some Switchboard Services at a basic level free of charge to the public, but this may change in the future. You acknowledge that, while Switchboard may provide You with some services and features for free, Switchboard reserves the right to begin charging for those services and features at some point in the future. Switchboard will provide You with advance notice of a change involving the charging of fees at least thirty (30) days prior to such change taking effect. You also understand that Switchboard may currently offer other premium and enterprise services as part of the Switchboard 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 any paid subscription with Switchboard, or any other fee-based service as part of the Switchboard Services offered by Switchboard or alternative providers now or in the future, Agency agrees to determine if it has a need for such 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 use any government purchase card properly if same is used as the payment method, to review any then-applicable Terms for conformance with federal procurement law, and in all other respects to follow applicable federal acquisition laws, regulations, and agency guidelines when initiating that separate action.
Neither Party may assign its obligations under this Amendment or the Terms to any third party without prior written consent of the other, except that Switchboard may, without the Agency's consent, assign its obligations under this Amendment or the Terms to an affiliate or a successor or acquirer, as the case may be, in connection with a merger, acquisition, corporate reorganization or consolidation, or the sale of all or substantially all of Switchboard's assets, provided that such successor assumes Switchboard's obligations under the Terms as modified by this Amendment.
P. Precedence; Further Amendment; Termination
This Amendment constitutes an amendment to the Terms; language in the Terms indicating it may not be modified or that it alone is the entire agreement between the Parties is waived insofar as incorporating this Amendment and any modification hereto in accordance with applicable law. If there is any conflict between this Amendment and the Terms or Supplemental Terms (as defined in the Terms), or between this Amendment and other rules or policies on Switchboard's website, this Amendment shall prevail. This Amendment may be further amended only upon written agreement executed by both Parties. Agency may close Agency's account and terminate this Amendment at any time. Agency may close its account and terminate this Amendment at any time. Switchboard may close Agency's account and terminate this Amendment upon thirty (30) days' written notice to Agency.
Q. Posting and Availability of this Amendment
Any provision of the Terms requiring modification of its terms to be posted on Switchboard's website is inapplicable because this Amendment is of limited, not general, application, and is otherwise waived for this special circumstance. The Parties agree that 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 Switchboard Services. You may also post it for the benefit of other U.S. Government agencies interested in using the Switchboard Services on this site or similar federal informational websites.
Switchboard 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 will be employed to ensure the security of systems and data. Switchboard 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.
S. Federal Records
Agency acknowledges that use of the Switchboard Services may require management of federal records. Agency and user-generated content may meet the definition of federal records as determined by Agency. If Switchboard holds federal records, Agency and Switchboard must manage such records in accordance with all applicable records management laws and regulations including, without limitation, the Federal Records Act (44 U.S.C. chs. 21, 29, 31 and 33, and regulations of the National Archives and Records Administration (NARA) at 36 C.F.R. Ch. XII, Subchapter B). Managing such records includes, without limitation, secure storage, retrieving capability, 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. Agency is responsible for ensuring that Switchboard is compliant with applicable records management laws and regulations through the term and termination of its use of the Switchboard Services.
T. Intellectual Property Ownership
Except as expressly permitted under the Terms, no rights to any derivative works, inventions or any modifications to the Switchboard Services are conferred upon Agency or any other party, as all such rights belong solely to Switchboard.
U. Additional Items for Discussion and Possible Inclusion in this Amendment
Switchboard understands that current federal law, regulations, and policies may affect Agency's use of the Switchboard Services in ways not addressed in the list of clauses in this Amendment. Among the topics that Agency may need to discuss with Switchboard, and which may lead to a mutual agreement to insert additional clauses in this Amendment, include privacy and accessibility matters. Agency should contact Switchboard as set forth in the Terms in the event that Agency becomes aware of the need to discuss any such topics.Switchboard Live, Inc.
230 S. Broad Street
Philadelphia, PA 19102