Terms of Service

Effective 7th of July 2014

Updated: Jan 2015 - added CCPA

1. Acceptance of Terms



1.1  This Terms of Service document, (will be referred to as “TOS”), is an agreement you must accept in order to use XaaSWare’s Service as discussed below. It is applicable to all “Client” - this includes Admin users & Staff members who have either private wiki access and/or set up a demo/project or working on an existing project. The terms “Client” includes all Users, Active/Non-Active Admins & Staff Member. This agreement details both your rights and your obligations for using our Service. It is important that you read it carefully because you will be legally bound to these terms. XaaSWare, Inc(“XaaSWare” “Company”) only provides its Service (as defined below) to Users subject to this TOS. By accepting this TOS or by accessing or using the Service, Users agree to be bound by this TOS (including the Privacy Policy, which is incorporated here by reference).

1.2  If Users are entering into this TOS on behalf of a company or other legal entity, Users represent that Users have the authority to bind such entity and its affiliates to this TOS. In that case, the terms “Client” will also refer to such entity as applicable. If Users do not have such authority, or if User does not agree with this TOS, Users may not use the Service. Users acknowledge that this TOS is a contract between Users and XaaSWare, even though it is electronic and is not physically signed by Users and XaaSWare, and it governs your use of the Service.

1.3 XaaSWare reserves the right to change our TOS as our business evolve. XaaSWare will notify Users of any material change within a reasonable time frame via email, blog or on our Site. Users 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 Users use the Service after that date, Users will agree to accept revised terms. If any change to this TOS is not acceptable to Users, please do not use our Service.

1.4  Users are responsible for maintaining the confidentiality of your login, password, and account and for all activities that occur under your login or account, including the activities of other project Users.

1.5  Primary Users (account owners) are solely responsible for informing members of the applicable company policies, obtaining any legally required member consent to such policies, and for ensuring that all uses of the Services comply with applicable federal, state and/or international privacy laws, including but not limited to, the Electronic Communications Privacy Act, 18 U.S.C. § 2510 et seq.

1.6  By using our Services, Users affirm that you are at least 18 years of age (or legal age of local residence). Users represent that you fully understand and are in compliance with the terms and conditions in this TOS. Do not use our Service if you are under the age of 13, unless you have parental or guardian permission. If we become aware that you are using the Service even though you are under 13, we will deactivate your account.

1.7  Any U.S school teachers who would like their students, who are over 13, to use the Service are responsible for complying with the U.S. Family Educational Rights and Privacy Act (“FERPA”). This means the students’ parents/guardians must be notified of the personally identifiable information Users will collect and share with XaaSWare and obtain legal consent. When obtaining such consent, Users should provide parents/guardians with a copy of our Privacy Policy. Users must keep all consents on file and provide them to us if we request them. For any Non U.S. Users, XaaSWare will rely upon you to obtain any required consent or approval from the parent or guardian of any student covered by similar laws and, as a condition to your and your students’ use of the Service, you will comply with such laws.

2. Description of Service.

XaaSWare offers an online solutions. The tools and services provided depend on the Client’s Paid Plan. XaaSWare can make updates or modifications to the Service but will notify users in advance if it affects functionality or features.

The Service does not include User Data or any software/application/service provided by you or a third party. Any changes or new features added to the Service are also subject to this TOS.  XaaSWare can modify or discontinue the Service (or any plan) without notice. All rights and intellectual property belong exclusively to XaaSWare.

3. Access and Use of the Service.

3.1 Use the Service lawfully and don't misuse it. Refer to Section 6 for prohibited uses. Notify XaaSWare of any security breaches.

3.2 XaaSWare's Software is confidential and protected by intellectual property laws. You have a non-exclusive license to use the Software in connection with the Service.

3.3 XaaSWare may use your name and company as a reference for marketing purposes, unless you opt out by contacting Legal [at] XaaSWare.io

4. User Data Rights and Related Responsibilities.

4.1 "User Data" refers to any data and content uploaded or made available via the Services by Users, including files, profile information, and anything entered or uploaded into the Service. XaaSWare ensures high security standards for storing and processing User Data.

4.2 To provide the Service, we require certain rights with respect to User Data such as transmission, storage, copying, indexing for search purposes, and backups to prevent data loss. By accepting this TOS, you grant XaaSWare permission to perform these actions and extend necessary rights to third-party service providers.

4.3 If users provide feedback or suggestions regarding the Service, XaaSWare has full rights to use them without obligation.

4.4 Users are solely responsible for their User Data's content and all communications while using the Services. XaaSWare is not liable for accuracy or legality of User Data accessed through the Services. Please be cautious when sharing or making data public.

5. Payment.

5.1 If Client is on a Paid Plan, they must provide accurate billing data. A valid Credit Card and Billing information are required for purchase. Payments will be charged in US Dollars. By subscribing to the Monthly/Yearly Subscription, Users authorize XaaSWare to charge their Credit Card in advance and throughout their billing cycle. Paid Plan users will be charged based on the plan pricing and number of Active Users/Projects each month. Users can update their billing information under their XaaSWare Account or at https://FinOps.XaaSWare.io . Failure to update billing information will result in continued charges using the payment method on file. If XaaSWare is unable to charge due to a billing error, it reserves the right to cancel the current subscription plan and issue a credit until the error is resolved. XaaSWare will make every effort to contact Users through email or other electronic means regarding any billing errors. If after 4 attempts there is no resolution, regardless of prepaid annually or monthly, XaaSWare will cancel the subscription and issue a credit. You agree to pay XaaSWare as per Site terms and this TOS, authorizing them or third-party processors for periodic advance payments according to such terms.

5.2 If you dispute any charges, you must inform XaaSWare within sixty (60) days of receiving the invoice. After 60 days, all payments are non-refundable. Please note that XaaSWare reserves the right to change prices in the future. If there is a price change, users who continue to use the service will be responsible for paying the updated amount.

6. User Responsibilities.

Users also agree not to:

a. upload, post, transmit, or otherwise make available any of User Data that is unlawful or illegal, libelous, or invasive of another's privacy;

b. use the Service to harm minors in any way;

c. impersonate any person or entity, including, but not limited to, a XaaSWare employee or other Member, or misrepresent your affiliation with a person or entity;

d. manipulate identifiers in order to disguise the origin of any of User Data;

e. upload, post, transmit, or otherwise make available any User Data that you do not have a right to under any law or under contractual or fiduciary relationships;

f. upload, post, transmit or otherwise make available any of User Data in a manner that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;

g. 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;

h. interfere with or disrupt the Service or servers or networks connected to the Service;

i. modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or its related systems or networks.

j. intentionally or unintentionally violate any applicable local, state, national or international law in connection with your use of the Service, including

k. 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;

l. use the Service to engage in any unlawful or illegal activities; and/or

m. collect or store personal data about other users in connection with any of the prohibited conduct and activities set forth above.

You acknowledge that XaaSWare and its designees have the right (but not the obligation) to pre-screen, refuse, or remove any User Data available via the Service. Without limiting the foregoing, XaaSWare and its designees have the right to remove any User Data that violates this TOS. Users must carefully evaluate all risks associated with using User Data, including relying on its accuracy, completeness, or usefulness.

You acknowledge, consent, and agree that XaaSWare may access, preserve, and disclose your account information and User Data if required by law or in 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 User Data violates third-party rights;
(iv) respond to your customer service requests; or
(v) protect the rights, property or personal safety of XaaSWare, its users, and the public.

7. Termination.

7.1 This TOS will continue in full effect unless and until your User Account or this TOS is terminated as described herein. All service plans will automatically renew for additional months/year depending on which plan and recurrence User has chosen. XaaSWare will not automatically terminate your account unless specifically requested.

7.2 XaaSWare reserve the right delete your account if XaaSWare determines that Users have violated rules and conditions as stated in this TOS.

7.3 Data in expired subscriptions for XaaSWare Applications will not be deleted. For example, Issue Tracker issues will be stored as data and only deleted if you cancel your account (see point 7.5 below for further details).

7.4 Data backups (Wiki: Backup your data), if included into your plan, has a retention policy of 30 days.

7.5 XaaSWare reserves the right to terminate all accounts if there are no activities within the last 30 days. If a User remains inactive, i.e., does not login to reactivate their XaaSWare account within a week's time after notification, then XaaSWare will delete the account and associated data. 

7.6 XaaSWare stores data from deleted projects and associated files up to 30 days. All data will be deleted post 90 days unless User reactivates their account.

7.7 All accrued rights to payment and the terms of Section 5 and Sections 8 through 20 shall survive termination of this TOS.

8. Disclaimer of Warranties.

8.1 The service may cancel maintenance due to updates or factors beyond our control. XaaSWare will give advance notice of any disruption.  Users should be aware that unencrypted gateways may transmit their data. XaaSWare strives for secure transmission but cannot guarantee encryption with third-party vendors and hosting partners. Users are responsible for data security, protection, and backup. XaaSWare is not liable for unauthorized access, use, corruption, deletion, destruction, or loss of user data.

8.2 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 XAASWARE 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. USERS ACKNOWLEDGE THAT XAASWARE 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 XaaSWare OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.

9. Limitation of Liability.

9.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL XAASWARE BE LIABLE TO USERS 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) ANY MATTER BEYOND OUR REASONABLE CONTROL IN CONNECTION WITH THE USE OF OUR SERVICES. UNDER NO CIRCUMSTANCES SHALL XAASWARE BE LIABLE TO YOU FOR ANY AMOUNT. 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.

9.2 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, XAASWARE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

10. Dispute Resolution/Arbitration.

Please read carefully:

In order to expedite and control the cost of disputes, Users and XaaSWare agree that any legal or equitable claim arising out of or relating in any way to Users’ use of the Services or this TOS will be resolved as follows:

10.1 Informal Resolution is the first step to resolve any claim. Both parties must wait for at least 30 days after receiving an official notice of the claim in writing before starting a formal proceeding. The notice should include the name, address, contact information, facts related to the dispute, and requested relief. To send your notice, use Legal@XaaSWare.io and the provided address.

XaaSWare, Inc.
One World Trade Center Suite 8500 New York, NY 10007
+1 (844) 247-9227

10.2 Formal Resolution. If we cannot resolve a Claim informally, any asserted Claim 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.

10.3 If you are an individual User and decide to initiate arbitration on your own behalf as a living person, XaaSWare agrees 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 http://www.jamsadr.com .

(2) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to:

JAMS
500 North State College Blvd., Suite 600
Orange, CA 92868
1-800-352-5267

(3) Send one copy of the demand for arbitration to us at the U.S. mailing address noted above.

10.4 If user initiates an arbitration on behalf of the company or legal entity User is representing, User will be required to pay the arbitration initiation fee as well as any additional deposit required by JAMS. User 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, User or XaaSWare 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 http://www.jamsadr.com

(2) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to:

JAMS
500 North State College Blvd., Suite 600
Orange, CA 92868
1-800-352-5267

(3) Send one copy of the demand for arbitration to us at the U.S. mailing address noted above.

10.5 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 User nor XaaSWare 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, Users and XaaSWare agree that the JAMS Class Action Procedures do not apply to our arbitration. A court may sever any portion of Section 10 that it finds to be unenforceable, except for the prohibition on class, representative and private attorney general arbitration.

10.6 Exceptions. 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. Users may also assert an individual action in small claims court in lieu of arbitration.

10.7 Opt Out. Users 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 Legal@XaaSWare.io AND by U.S. Mail to XaaSWare, Inc 3066 Foothill Rd Santa Barbara, CA 93105. The notice must be sent no later 30 days after your first use of the Services. If you opt-out of the binding arbitration requirement, XaaSWare also will not be bound by the requirement. Administrative Users may not opt-out of the binding arbitration requirements.

10.8 Changes to this Section. XaaSWare 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.

11. 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 XaaSWare 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 10.4, 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.

12. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT.

XaaSWare respects the intellectual property of others, and we ask our Users to do the same. XaaSWare may, at its discretion, disable and/or terminate the accounts of Users who are repeat infringers. If Users 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 XaaSWare’s with 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 on the site;

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.

By mail:

XaaSWare, Inc.
One World Trade Center Suite 8500 New York, NY 10007
+1 (844) 247-9227

By email: GRC@XaaSWare.io

13. Indemnification.

Users should defend, indemnify, and hold harmless XaaSWare from any claims, actions or demands arising from their breach of this TOS, any User Data, or misuse of the Service. XaaSWare will provide notice to Users of any such claim, suit or demand. XaaSWare reserves the right to conduct the exclusive defense and control of any matter that is subject to indemnification under this section. In such cases, Users agree to cooperate with any reasonable requests assisting XaaSWare’s defense of these matters.

14. Enforceability.

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.

15. 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 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 XaaSWare in any respect whatsoever.

16. Choice of Law and Forum.

The TOS shall be governed and enforced by the laws of the State of New York without regard to its conflict of law.

17. Waiver and Severability of Terms.

XaaSWare’s failure to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision.

18. No Right of Survivorship and Non-Transferability.

If Users are a living person, User agrees that your account is non-transferable and your rights to the content within your account terminate upon your death.

19. Government Users.

Nothing herein makes XaaSWare a government contractor for any federal, state, local, or foreign government.

19.1 U.S. Government Users: If Users are a U.S. government user or otherwise accessing or using the Service in a U.S. government capacity, please review the Amendment to XaaSWare’s TOS for Government below.

20. TERMS OF SALE.

XaaSWare Paid Plans

XaaSWare now offers subscription Plan, Client is billed based on the number of active users they have and/or projects. All users are subject to XaaSWare’s Terms and Conditions as described below –.

Plan Upgrades

XaaSWare will not upgrade you automatically.

Active Users

Active Users are defined as any users who have signed up/logged/requested support, remote assistance into XaaSWare as part of an active project(s) in your account, and at least once during the billing cycle.

Billing Structure

Monthly Plan

When engaged on a subscription Plan, Client is billed based on the number of active users they have and/or projects. The monthly payment is calculated by multiplying the cost per user ($X) with the total number of active users/projects. If there are changes in the number of active users/projects during a billing cycle, XaaSWare adjusts the charges accordingly and adds credits or debits as necessary. This ensures that you only pay for their actual usage each month.

Yearly Plan

Any plans that engage in a 12+ month engagements with additional discounts.

XaaSWare will send a renewal reminder exactly one month and 7 days before Customer’s renewal date. Failure to respond or make changes after the Grace Period, will result in a nonrefundable charge.

Renewals.

All service plans will automatically renew for additional monthly/yearly depending on its users/projects plan; and have recurrence fee monthly/yearly of [ 6% ] per users/projects. Users have the right to cancel. Data on users/project is retained for up to 30 days.

Payment

If you choose a Paid Plan, you must provide accurate billing information including a valid Credit Card. Payments will be charged in US Dollars. By subscribing to the Monthly/Yearly Subscription, Client authorize XaaSWare to charge their Credit Card in advance and throughout the subscription period. Client can update their billing information on their XaaSWare Account or through https://www.FinOps.XaaSWare.io.

Refund Policy

XaaSWare will not provide any refund except for the following circumstances:

Exception 1

XaaSWare will auto-renew Yearly Subscriptions upon the renewal date unless directly notified by customers beforehand or within 7 calendars after their renewal date (“Grace Period”). If a Customer contacts XaaSWare to cancel their Yearly Subscription within the Grace Period, XaaSWare will manually process a refund net refund transaction fees. Refund fees will be the greater of either $50 USD or 6% of the refunded amount. Any cancellation request after the Grace Period will be denied.

Exception 2

XaaSWare will address any significant bugs or platform issues. If customers encounter limitations due to these problems, they must inform XaaSWare. Customers can request a refund by providing reasons and the timeframe of work disruptions caused by bugs or problems. Each refund request will be evaluated individually, but XaaSWare is not obligated to grant refunds solely based on requests.

When canceling or downgrading subscriptions, active users may receive credits that cannot be refunded but do not expire. These credits will be used for future subscriptions in the customer's account.

Amendment to XaaSWare Terms of Service Applicable to Government Users

This Amendment to XaaSWare’s Terms of Service applies specifically to Users in a US Government or US Public entity capacity. It is an agreement between XaaSWare, Inc and U.S. Government Users of the Service, and it outlines the obligations and requirements for U.S. Government agency Administrative Users who use or access the Service on behalf of their respective agencies. The amendment ensures compliance with federal laws and regulations related to ethics, privacy and security, accessibility, federal records, indemnification limitations, fiscal law constraints, advertising and endorsements, freedom of information, as well as governing law and dispute resolution forum. These modifications are made to accommodate Users' legal status, public mission, and other special circumstances while using the Services provided by XaaSWare under this Agreement.

A. 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.

B. 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.

C. 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.

D. 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.

E. 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.

F. Changes to standard TOS: Language in the TOS reserving to XaaSWare 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. XaaSWare shall send this notice to the email address You designate at the time You sign up for service, and You shall notify XaaSWare of any change in the notification email address during the life of the Amendment.

G. Access and use: XaaSWare 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 XaaSWare to terminate service or close the Agency's account at any time, for any reason, is modified to reflect the Parties' agreement that XaaSWare 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 XaaSWare ceases to operate the Service generally or as provided in paragraph S. below. XaaSWare will provide the Agency with a reasonable opportunity to cure any breach or failure on the Agency's part.

H. 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.

I. Ownership of names: Any provision(s) in the TOS related to XaaSWare’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.

J. Modifications of Agency content: Any right XaaSWare 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 XaaSWare 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.

K. Limitation of liability: The Parties agree that nothing in the Limitation of Liability clause or elsewhere in the TOS in any way grants XaaSWare a waiver from, release of, or limitation of liability pertaining to, any direct past, current or future violation of federal law by XaaSWare.

L. 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.

M. No endorsement: XaaSWare 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 XaaSWare in such a manner as to state or imply that XaaSWare’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, XaaSWare agrees not to display any Agency or government seals, trademarks, logos, service marks, and trade names on the XaaSWare’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. XaaSWare 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.

N. 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.

O. 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. At the its discretion, XaaSWare may offer a free account 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 one of XaaSWare’s paid plans.

P. Provision of data: In case of termination of Service, within 30 days of such termination XaaSWare will enable You to export all of Your user-generated content that is publicly visible on the Site (subject to the specific export functionality included in Your usage plan). Data will be provided in a commonly used file or database format as XaaSWare deems appropriate.

Q. Separate future action for fee-based Services: XaaSWare provides Services at a basic level free of charge to the public, but this may change in the future. Agency acknowledges that while XaaSWare will provide Agency with some Services and features for free, XaaSWare reserves the right to begin charging for the Services and features at some point in the future. XaaSWare will provide Agency with at least 30 days advance notice of a change involving the charging of fees for a previously-free service. You also understand that XaaSWare currently offers 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 the Agency decides to enter into a premium or enterprise subscription, or any other fee-based service that this XaaSWare 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.

R. 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, XaaSWare 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 XaaSWare’s obligations under the TOS as modified by this Amendment.

S. Termination: Agency may close Agency's account and terminate this Amendment at any time. XaaSWare 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.

T. Posting and availability of this Amendment: Any provision of the TOS requiring modifications of its terms to be posted on XaaSWare’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 websites.

U. Security: XaaSWare 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, XaaSWare will continuously work with users to ensure that its Site and Services meet users' requirements for the security of systems and data. XaaSWare 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.

V. Federal Records: Agency acknowledges that use of XaaSWare’s Services may require management of Federal records. Your Data may meet the definition of Federal records as determined by the Agency. XaaSWare 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 XaaSWare’s paid service. Agency should advise XaaSWare if it has questions about recordkeeping tools or capabilities and should review tools available for each type of XaaSWare plan before registering, but Agency has sole responsibility for complying with the applicable federal recordkeeping laws and XaaSWare has no duty to provide Agencies using free accounts with tools only available to XaaSWare’s paid users.

W. User Privacy: Agency acknowledges that XaaSWare’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 XaaSWare, 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.

X. Intellectual property ownership: Except as expressly allowed in the TOS, no rights to the XaaSWare Site or Services or any derivative works, inventions, or XaaSWare product or service modifications are conferred on Agency or any other party. All such rights belong solely to XaaSWare.

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 XaaSWare 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.

Z. Additional Items for Discussion and Possible Inclusion in this Agreement: XaaSWare understands a current federal law, regulation and policy may affect Agency's use of the XaaSWare’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 XaaSWare (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 XaaSWare, and which may lead to the insertion of additional clauses in this Agreement, are Privacy and Accessibility.