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Amendment to Disqus Terms of Service Applicable to U.S. Federal Government Users

This Amendment to the standard Terms of Service (“Terms”) of Disqus, Inc. (“Disqus” or "Company") posted at https://help.disqus.com/customer/portal/articles/466260-terms-of-service is an agreement between the Company and the U.S. Government and it applies to the use of the Disqus Service by U.S. Government entities (“You” or the “Agency”).

The reason for this Amendment is that the Agency must follow federal laws, regulations, rules, and practices when entering into a binding agreement with a provider such as Disqus. This Amendment allows Agencies to use the Disqus Service under federal-compatible terms that respect the Agency’s legal status, its public mission, and other circumstances unique to the U.S. Government.  
 
A. Government entity: “You,” “Your,” and “User” within the Terms shall mean the Agency itself and shall not apply to, nor bind (i) the individual(s) who use the Services on Agency's behalf, or (ii) any individual users who happen to be employed by or otherwise associated with the Agency. 
 
B. Public purpose: Agency will use the Service solely in furtherance of Agency's public purpose. Any provision in the Terms requiring that use of the Service be for private, personal and/or non-commercial purposes is waived. 
 
C. Agency content serving the public: Company will allow Agency's distribution or other publication via the Service of material that may contain or constitute promotions, advertisements or solicitations for goods or services, so long as the material relates to the Agency's mission.

D. Advertisements: Neither Disqus nor the Agency wants the Government’s Content to be confused with other parties’ content. To minimize that risk, Disqus agrees not to serve or display any commercial advertisements or solicitations on any part of the website displaying content uploaded by or under the control of the Agency. This exclusion will not extend to house ads that Company may serve on such pages in a non-intrusive manner. This exclusion shall also not extend to windows or interfaces that are part of Company’s Service but not specific to Agency’s site, such as global commenter profiles.  

E. No endorsement: Disqus agrees that Your name, seals, trademarks, logos, service marks, trade names, and the fact that You use the Service, shall not be used by Company in such a manner as to state or imply that Disqus’ products or services are endorsed, sponsored or recommended by You or by any other element of the Federal Government, or are considered by You or the Federal Government to be superior to any other products or services. Except for pages whose design and content is under the control of the Agency, or for links to or promotion of such pages, Company agrees not to display any Agency or government seals, trademarks, logos, service marks, and trade names on the Company's homepage, elsewhere on the Service, or in Company advertisements and promotions, unless permission to do 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 so long as the name is not displayed in a more prominent fashion than that of any other third party name.

F. Indemnification, Liability, Damages, Arbitration: Any provisions in the Terms related to indemnification are waived and shall not apply except to the extent expressly authorized by federal law. Liability and damages for any breach of the Terms as modified by this Amendment, or any claim arising from the Terms as modified by this Amendment, shall be determined under the Federal Tort Claims Act or other governing federal authority. Any mandatory arbitration, mediation or similar dispute resolution provisions in the Terms are waived and shall not apply unless expressly agreed to by the Agency.  Federal statute of limitations provisions shall apply to any breach or claim.

G. Governing law: The Terms as modified by this Amendment shall be governed by and interpreted and enforced in accordance with the laws of the United States of America without reference to conflict of laws. 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.

H. Changes to standard Terms: Language in the Terms reserving to Company the right to change the Terms without notice at any time is amended to grant You at least three days advance notice of any material change to the Terms. Company will send this notice to the email address You designate at the time You sign up for an account. You agree to notify Company of any change in Your notification email address during the life of the account. 
 
I. 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 Terms allowing Company to terminate service or close the Agency's account at any time, for any reason or no 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 Terms or Agency's material failure to comply with the instructions and guidelines posted by Disqus, or if Company ceases to operate its Service generally. Company will provide Agency with a reasonable opportunity to cure any breach or failure on Agency's part.   
 
J. Provision on crawlers: Any provision in the Terms 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. 
 
K. Ownership of names: Any provision in the Terms related to Company'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. 

L. Modifications of Agency content: Any right the Company reserves in the Terms 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 finds that Agency Content has been modified in a manner that alters its meaning, Agency may contact Company and together the parties will work in good faith to resolve the matter.  Notwithstanding the foregoing, nothing in this Amendment shall result in an expansion of 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. 
 
M. Limitation of liability: Nothing in the Limitation of Liability clauses or elsewhere in the Terms in any way grants Company a waiver from, release of, or limitation of liability pertaining to, any past, current or future violation of federal law. 

N. Uploading, deleting: You are not obligated to place any User Content on the Service, and You reserve the right to remove all or any portion of Your Content at Your sole discretion.   

O. No business relationship created: Disqus and the Agency are independent entities and nothing in the Terms as modified by this Amendment creates a partnership, joint venture, agency, or employer/employee relationship.   
 
P. No-cost agreement: Nothing in the Terms as modified by this Amendment obligates the Agency to expend appropriations or incur financial obligations. 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. 
 
Q. Paid Services and Agency Obligation:  This Amendment applies to Agency’s usage of both free and paid (fee-based) Services that Disqus may provide. The parties understand that fee-based products and services are categorically different than free products and services, as the former are subject to federal procurement regulations. Before an Agency decides to enter into a fee-based service that this Company or alternative providers may offer now or in the future, Agency understands it must: determine whether it has a need for those additional services for a fee; consider the service’s value in comparison with comparable offerings 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 the provider’s Terms for conformance to federal procurement law; and in all other respects to follow applicable federal acquisition laws, regulations, and Agency guidelines when contracting for a paid service. 
 
R. Assignment: Neither party may assign its obligations under the Terms as modified by this Amendment to any third party without prior written consent of the other; provided, however, Company or its subsidiaries may assign the Terms as modified by this Amendment to a subsidiary or parent without written consent from the Agency if the successor agrees to assume Company's obligations under the Terms as modified by this Amendment. 

S. Provision of data: In the event of termination of service, within 30 days of such termination Company will provide You with all User-generated Content that is publicly visible on the Service. Data will be provided in a commonly used file or database format as Company deems appropriate. Company will not provide data if doing so would violate its privacy policy (https://help.disqus.com/customer/en/portal/articles/466259-privacy-policy).

T. Security: Company will, in good faith, exercise due diligence using generally accepted commercial business practices for IT security, to ensure that systems are operated and maintained in a secure manner, and that management, operational and technical controls are employed to ensure security of systems and data.  Recognizing the changing nature of the Web, 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 Agency to conform to the Federal Information Security Management Act (FISMA), 44 U.S.C. 3541 et seq. 
   
U. Federal Records: Agency acknowledges that its use of the Service as a public comment platform may generate federal records. If so, it is the Agency’s responsibility to manage those federal records in accordance with all applicable records management laws and regulations, including but not limited to the Federal Records Act (44 U.S.C. chs. 21, 29, 31, 33), and regulations of the National Archives and Records Administration (NARA) at 36 CFR Chapter XII Subchapter B). Managing the records includes, but is not limited to, secure storage, retrievability, and proper disposition of all federal records including transfer of permanently valuable records to NARA in a format and manner acceptable to NARA at the time of transfer. 

V. Precedence; Further Amendments: If there is a conflict between this Amendment and the Terms, or between this Amendment and other Disqus terms, rules and policies related to its Service, then this Amendment shall prevail. Any language in the Terms indicating it alone represents the entire agreement between Disqus and Agency is waived. Any further amendment must be agreed to by both parties. 
 
W. Additional Items for discussion and possible inclusion in this Amendment: Company understands that changes in federal law, regulation and policy may affect Agency's use of the Company's Service in ways not addressed in the preceding clauses. Among the topics Agency may seek to discuss with Company, and which may lead to a mutual agreement to insert additional clauses in this Amendment, are the subjects of privacy and accessibility.

[July 2016]

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