AMENDMENT TO TERMS OF SERVICE
APPLICABLE TO U.S. GOVERNMENT USERS/MEMBERS
If you are an employee of the federal government of the United States and are using any of the Vyond business subscriptions for official government work, the TOS is amended as follows:
- “Government entity” “You” within the TOS shall mean the Agency itself and shall not apply to, nor bind (i) the individual(s) who utilize the Services on the Agency’s behalf, or (ii) any individual users who happen to be employed by, or otherwise associated with, the Agency. GoAnimate will look solely to the Agency to enforce any violation or breach of the TOS by such individuals, subject to federal law.
- Public purpose: Any requirement(s) set forth within the TOS that use of the business subscriptions on the Vyond platform be for private, personal and/or non-commercial purposes is hereby waived.
- Agency content serving the public: GoAnimate hereby approves Agency’s distribution or other publication via Vyond Studio of materials which may contain or constitute promotions, advertisements or solicitations for goods or services, so long as the material relates to the Agency’s mission and complies with any requirements set forth in the TOS relating to Content (as such term is defined in the TOS).
- Advertisements: GoAnimate agrees not to serve or display any third-party commercial advertisements or solicitations on any pages within the publicly available portion of the Services displaying content uploaded by or under the control of the Agency. This exclusion shall not extend to house ads, which GoAnimate may place in a non-intrusive manner and which may include mentions of partner services.
- Indemnification: All indemnification and damages provisions of the TOS are hereby waived. Neither Party will be liable to the other for any lost profits or business opportunities, loss of use, business interruption, loss of data, or any other indirect, special, incidental, or consequential damages under any theory of liability, whether based in contract, tort (including negligence and product liability), or otherwise. Liability of Agency for any breach of the TOS or this Agreement, or any claim arising from the TOS or this Agreement, shall be determined by applicable federal or state law. Federal Statute of Limitations provisions shall apply to any breach or claim.
- Governing law: The TOS and this Amendment shall be governed, interpreted and enforced in accordance with applicable federal law without reference to conflict of laws. To the extent permitted by federal law, the law of the State of California will apply in the absence of federal law.
- Changes to standard TOS: Language in the TOS reserving to GoAnimate 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. GoAnimate shall send this notice to the email address You designate at the time You sign up for service, and you shall notify GoAnimate of any change in the notification email address during the life of the Amendment.
- Access and use: GoAnimate acknowledges that the Agency use of the Vyond Studio and Service may energize significant citizen engagement and otherwise become important to the Agency’s mission. Language in the TOS allowing GoAnimate 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 Agency’s obligations under the TOS or its material failure to comply with the posted instructions and guidelines, or if GoAnimate ceases to operate the Service generally. Go Animate will provide the Agency with a reasonable opportunity to cure any breach or failure on the Agency’s part.
- Provision on crawlers: Any provision(s) in the TOS prohibiting crawl or spider processes is amended to allow the Agency to apply such tools solely to its pages and solely to fulfill Agency’s obligation under the Federal Records Act or other applicable federal or state laws or regulation. Notwithstanding the foregoing, automated means may never be used under any circumstances for video publishing, conversion, exporting or downloading functions.
- Ownership of names: Any provision in the TOS related to GoAnimate’s ownership of and right to change Your selected user name(s), user ID(s), domain name(s), channel name(s), and group 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 User Content: GoAnimate agrees that any right reserved in the TOS to modify, adapt, or change 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. Notwithstanding the foregoing, nothing in this Amendment shall result in an expansion of the Agency’s 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 GoAnimate a waiver from, release of, or limitation of liability pertaining to, any past, current, or future violation of federal law.
- Uploading, deleting: The Agency is not obligated to place any Agency Content on the Vyond website or Service, and the Agency reserves the right to remove any and all Agency Content at its sole discretion.
- No endorsement: GoAnimate agrees that Agency seals, trademarks, logos, service marks, trade names and the fact that Agency has used GoAnimate’s services, shall not be used by GoAnimate in such a manner as to state or imply that GoAnimate’s products or services are endorsed, sponsored or recommended by you or by any other element of the Federal Government, or are considered by these entities 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, GoAnimate agrees not to display any Agency or government seals or logos on GoAnimate’s homepage or elsewhere on the Vyond website, unless permission to do so has been granted by the Agency or by other relevant federal government authority. GoAnimate may list the Agency’s name in a publicly available customer list so long as the name is not displayed in a more prominent fashion than that of any other third party name.
- No business relationship created: The Parties are independent entities and nothing in this Amendment or TOS creates an agency, partnership, joint venture, or employer/employee relationship.
- No cost agreement. Nothing in this Amendment or TOS obligates the Agency to expend appropriations or incur financial obligations during or following a free trial. Except for Vyond Studio subscription accounts, the Parties acknowledge and agree that none of the obligations arising from this Amendment or TOS are contingent upon the payment of fees by one party to the other.
- Provision of data: In the case of termination of service, within 180 days of such termination GoAnimate will purge Agency data and videos.
- Paid services: The Parties understand that fee-based products and services are categorically different that free products and services and are subject to federal procurement rules and processes. Before Agency decides to enter into a premium or enterprise subscription or any other fee-based service that GoAnimate or alternative providers may offer now or in the future, Agency agrees to determine it has a need for those additional services for a fee, to consider the subscriptions 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 when initiating that separate action.
- Assignment: Neither party may assign its obligations under this Amendment or TOS to any third party without prior written consent of the other; however, GoAnimate may, without the Agency’s consent, assign its obligations under this Amendment or TOS to an affiliate or to a successor or acquirer, without the written consent from the Agency provided the successor assumes GoAnimate’s obligations under the Terms as modified by this Amendment.
- Termination rights: Agency may close Agency’s account and terminate this Amendment at any time. Company may close Agency’s account and terminate this Amendment on 30 days’ written notice. Subscription fees are not refundable.
- Posting and availability of this Amendment: This Amendment shall be posted with the TOS posted on the Service either by incorporation of its text or via an integral link. The Parties agree this Amendment contains no confidential or proprietary information and either party may release it upon request to the public and to other agencies interested in using the Services.
- Security: GoAnimate will, in good faith, exercise due diligence using generally accepted commercial business practices for IT security, to ensure that commercially reasonable management, operational and technical controls are employed to ensure 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.
- Federal Records: Agency acknowledges that use of GoAnimate’s site and services may require management of Federal Records. Agency and user-generated content may meet the definition of Federal records as determined by the agency. If GoAnimate holds Federal records, the Agency and GoAnimate must manage Federal records in accordance with all applicable records management laws and regulations, including but not limited to the Federal Records Act (44 U.S.C. chs. 21, 29, 31,33) and the regulations of the National Archives and Records Administration (NARA) at 36 CFR Chapter XII, Subchapter B. Managing the records includes, but is not limited to secure storage, retrievability, and proper disposition of all Federal records including the transfer of permanently valuable records to NARA in a format and manner acceptable to NARA at the time of transfer. The Agency is responsible for ensuring that GoAnimate is compliant with all applicable records management laws and regulations through the life and termination of the Agreement.
- Intellectual property ownership: Except as expressly allowed in the TOS, no rights to any derivative works, inventions, or Company product modifications are conferred on Agency or any other party. All such rights belong solely to GoAnimate.
- 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 Vyond website 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.
- Additional Items for discussion and possible inclusion in this Amendment: GoAnimate 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 clauses above. Among the topics Agency may need to discuss with GoAnimate, and which may lead to a mutual agreement to insert additional clauses in this Amendment, are Privacy and Accessibility.