Basic Terms of Service

JANRAIN, INC.
JANRAIN ENGAGE BASIC™ TERMS OF SERVICE

NOTE: THIS JANRAIN ENGAGE BASIC™ TERMS OF SERVICE (“AGREEMENT”) WILL ONLY APPLY TO THE EXTENT THAT NO BINDING AGREEMENT, WRITTEN OR ELECTRONIC, (THE “OTHER AGREEMENT”) IS ALREADY IN PLACE BETWEEN LICENSEE (DEFINED BELOW) AND JANRAIN, INC.(“JANRAIN”) PERTAINING TO THE PRODUCTS TO WHICH THIS AGREEMENT APPLIES. TO THE EXTENT THAT ANY OTHER AGREEMENT IS IN EFFECT, THEN SUCH OTHER AGREEMENT WILL GOVERN LICENSEE’S USE OF THE SOLUTION (AS DEFINED BELOW) AND THIS AGREEMENT WILL NOT APPLY EVEN IF YOU ARE REQUIRED TO CLICK ANY BUTTON OR BOX AFFIRMING YOUR CONSENT TO THE TERMS OF THIS AGREEMENT.

YOU HEREBY AGREE THAT YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THE PERSON AND/OR ENTITIE(S) (COLLECTIVELY, THE “LICENSEE”) WISHING TO USE THE SOLUTION (DEFINED BELOW) LISTED ON THE ORDER CONFIRMATION PAGE, THE PAGE WHICH INCLUDES THE “CREATE APPLICATION” OR SIMILAR BUTTON, AN ORDER FORM, QUOTE AND/OR INVOICE (EACH AN “ORDER TERMS”) WHICH WE PROVIDE OR MAKE AVAILABLE TO LICENSEE IN CONNECTION WITH THE PURCHASE OF LICENSES TO THE SOLUTION DESCRIBED BELOW OR RELATED PROFESSIONAL SERVICES. THE TERMS OF EACH ORDERING DOCUMENT WILL SET FORTH THE SPECIFIC TERMS OF THE ORDER BUT ALL APPLICABLE TERMS AND CONDITIONS BELOW SHALL APPLY.

IF YOU DO NOT HAVE THE AUTHORITY TO BIND THE LICENSEE OR YOU OR THE LICENSEE DO NOT AGREE TO ANY OF THE TERMS BELOW, JANRAIN IS UNWILLING TO PROVIDE THE SOLUTION TO THE LICENSEE, AND YOU SHOULD DISCONTINUE THE ORDER PROCESS AND NOT CLICK ON ANY BUTTON OR BOX AFFIRMING YOUR CONSENT TO THE TERMS OF THIS AGREEMENT.

1. ORDERING.
The Order Terms will set forth the licenses to access and use the Janrain Engage Basic product offering (the “Solution”) to be hosted and made available by Janrain in object code format on a software-as-a-service basis (the “Hosting Services”). No implementation, customization or other professional services are provided by Janrain under this Agreement. Upon Janrain’s acceptance of each Order Terms, such Order Terms shall constitute a binding commitment to purchase the items described on such Order Terms under the terms and conditions of this Agreement.

2. LICENSE RIGHTS AND RESTRICTIONS.

2.1 Scope. Licensee may access and use the Solution in accordance with this Section 2 in connection with the number of authorized individual, unique, non-concurrent users of Licensee Properties (as defined in Section 2.2.1 below) set forth on the applicable Order Form(s) (collectively, the “Users”). For purposes of counting, a User is only counted when initially recognized by the Solution during the term. The number of Users that interact with the Solution is tracked by Licensor and the aggregate total usage against the subscription level is tracked by the Solution and available to Licensee in the online administration dashboard provided as part of the Solution.

2.2 Solution and Documentation. During the applicable Subscription Term (as defined in Section 6.1 below) and subject to the terms and conditions of this Agreement, Janrain hereby grants to Licensee a limited, worldwide, non-exclusive, non-transferable license to: (a) access, use, perform and display the Solution, and to allow Users to access and use applicable user-interface portions of the Solution, as made available by Janrain in connection with the Hosting Services for Licensee’s business purposes related to managing User accounts within one or more production or non-production (i.e., internal testing and development) web sites or mobile applications that are owned or operated by Licensee and/or its agent(s) on behalf of Licensee (each, a “Licensee Property”); and (b) use and make a reasonable number of copies of any technical documentation and/or software development kit (“SDK”) made available to Licensee by Janrain that describes the operation and/or functionality of the Solution (collectively, “Documentation”) solely for Licensee’s internal business purposes.

2.3 Administrative Rights. The Solution will include a restricted-access administrative interface component (“Administrative Interface”) to allow employees or specific independent contractors designated by Licensee (“Administrative Users”) to access the configuration and settings components of the Solution to manage, configure and monitor the Solution for Licensee’s benefit. Each Administrative User will be provided access to and use of the Administrative Interface (“Admin User Access”). Licensee shall be responsible for ensuring the security and confidentiality of all Admin User Access. Licensee acknowledges that it will be solely and fully responsible for all liabilities incurred through use (permitted or unpermitted) of any Admin User Access.

2.4 Limitations on Usage. The Order Terms will set forth the number of maximum Users permitted to access the Solution during each annual term of this Agreement (“Maximum User Count”) and the number of maximum posts that each User can make to social networking sites utilizing the Solution during each annual term of this Agreement (“Maximum Post Count”). If Licensee exceeds either the Maximum User Count or the Maximum Post Count during the Subscription Term (defined below), Licensee will be charged a per-User or per-post overage fee as designated by Janrain (“Overages”). Additionally, for each license purchased, Licensee may only use the Solution in connection one Licensee Property. Use with any additional Licensee Property requires the purchase of additional licenses.

2.5 Restrictions. Except as otherwise expressly permitted under this Agreement, Licensee agrees not to: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Solution or any portion thereof; (b) embed or incorporate in any manner the Solution (or any element thereof) into applications of Licensee or third parties other than the Licensee Properties; (c) create modifications to or derivative works of the Solution; (d) reproduce the Solution or Documentation; (e) use the Solution in a manner not authorized under the Documentation or in violation of any applicable law, rule or regulation, including any export/import laws, (f) in any way access, use, or copy any portion of the Solution code (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Solution, or (g) in any way remove, obscure or otherwise affect in any manner any Janrain logos or branding included on or within the Solution. Additionally, Licensee may not (h) resell, distribute, transfer, grant sublicenses, or otherwise make available the Solution (or any portion thereof) to third parties other than Users, including, but not limited to, making such Solution available as an application service provider, service bureau, or rental source or (i) bundle or embed the Solution in any other product or service, in each case without first obtaining Janrain’s prior written consent (which may require the execution of a separate agreement and/or payment of additional fees).

3. USER DATA.

3.1 User Data. Licensee acknowledges and agrees that through its use of the Solution certain personally identifiable User data (“User Data”) may be processed and shared between applicable third party social network and/or identity providers (“Third Party Providers”) and Licensee with which the Solution has been configured by an Administrative User. User accounts with Third Party Providers shall be subject to such Third Party Providers’ then-current terms of use and privacy policies (“Third Party Policies”) and Janrain shall not be responsible for any violation by a Third Party of the Third Party Policies. Licensee is responsible for establishing and enforcing terms of use and privacy policies (“Licensee Policies”) with Users that authorize Licensee’s use of the Solution as permitted under this Agreement and are in compliance with applicable law, including export regulation and data protection legislation.

3.2 System Activity Information. Janrain may store and use certain activity log data relating to the use of the Solution within the Licensee Properties (“System Activity Information”) for its own business purposes.

4. SUPPORT SERVICES. During the applicable Subscription Term, subject to Licensee’s payment of all related Fees, Janrain shall use commercially reasonable efforts to respond to support requests submitted through its online support ticketing system. Licensee will provide all support to Licensee’s Users. This sets forth the extent of Janrain’s obligations to provide support of the Solution under this Agreement.

5. FEES AND PAYMENT. Licensee must maintain a current credit card on file with Janrain to maintain access to and use of the Solution. Subject to the terms and conditions below, all fees for licenses to the Solution (i.e., implementation, subscription and overage fees) (collectively, the “Fees”) will be set forth on the applicable Order Terms. Janrain will automatically charge Licensee’s designated credit card for all Fees and Overages. Licensee will indemnify Janrain for any costs incurred in connection with its attempts to collect Fees and Overages that are due but not paid on time (e.g. due to unauthorized credit card).

6. Term and Termination.

6.1 Term of Agreement. This Agreement shall continue in effect until terminated as set forth herein. The initial Subscription Term for each license purchased will be as set forth in the applicable Order Terms.

6.2 Subscription Terms; Adjustment; Renewal. The term of each license to the Solution purchased by Licensee will commence on the date that both parties have executed the Order Terms under which Licensee acquires such license, unless a later commencement date is expressly set forth on such Order Terms, and will continue for the period set forth on such Order Terms, subject to any adjustment and/or renewal as described in this Section 6.1 (collectively, the “Subscription Term”). Each Solution license will automatically renew (i) for the renewal period specified on the applicable Order Terms, if any, or, if not specified, for a period of one (1) year and (ii) at the same Fees applicable during the immediately preceding term unless either party notifies the other at least thirty (30) days prior to the commencement of the renewal term that it does not intend to renew the Subscription Term upon the same terms.

6.3 Termination. This Agreement and/or any Order Terms, if applicable, may be terminated by Janrain if License or any User does not comply with the terms and conditions herein. Additionally, a particular Order Terms may be terminated by Janrain in the event that Licensee fails to pay applicable Fees when due.

6.4 Effect of Termination. Upon any termination of this Agreement or an Order Terms, without prejudice to any other rights or remedies which the parties may have, (a) all rights licensed and obligations required thereunder shall immediately cease; provided that Sections 2.4, 5, 6.4, 7, 8, 9, 11 and 12 shall survive termination, (b) Licensee will promptly delete and destroy all copies of the Documentation or SDKs in its possession or control, and (c) Janrain may immediately charge Licensee’s credit card for any outstanding Fees and/or Overages.

7. PROPRIETARY RIGHTS; CONFIDENTIALITY. As between the parties, Janrain will retain all ownership rights in and to the Solution, all updates and/or upgrades thereto, the Documentation, and other derivative works of the Solution and/or Documentation that are provided by Janrain, and all intellectual property rights incorporated into or related to the foregoing. All rights not expressly licensed by Janrain under this Agreement are reserved.  As between the parties hereto, Licensee and its Users will retain all ownership rights in and to all User Data. The Solution and all trade secret information incorporated therein or derived, directly or indirectly, therefrom are confidential information of Janrain. Licensee shall keep in confidence and trust and not disclose or disseminate, or permit any employee, agent or other party working under Licensee’s direction to disclose or disseminate, the substance of any such confidential information of Janrain.  The commitments in this Agreement will not impose any obligations on Licensee with respect to any portion of the received information which, as evidenced by independent documentation: (a) is now generally known or available or which hereafter, through no act or failure to act on Licensee’s part, becomes generally known or available; or (b) is rightfully known to Licensee at the time of receiving such information. Licensee acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure or use of Janrain’s confidential information and that Janrain may seek, without waiving any other rights or remedies, such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.

8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

8.1 Warranties. Licensee represents, warrants and covenants to the other party that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement, (b) the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a party, (c) this Agreement constitutes the legal, valid and binding obligation of such party when executed and delivered and (d) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules and regulations.

8.2 Disclaimer. ALL CONDITIONS AND WARRANTIES PERTAINING TO THE SOLUTION, THE DOCUMENTATION, THE SDK AND/OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED BY JANRAIN. JANRAIN DOES NOT WARRANT THAT LICENSEE’S USE THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.

9. INDEMNIFICATION, LIMITATION OF LIABILITY.

9.1 Indemnification. Licensee will indemnify, defend, and hold Janrain harmless from and against any and all liabilities, damages, losses, claims, costs, and expenses (including attorneys’ fees) arising out of or resulting from (a) any violation of such parties representations and warranties set forth in Section 8.1 above, (b) Licensee’s acts or omissions, (c) Licensee’s use of the Solution, a claim that Licensee has violated the Licensee Policies or otherwise failed to comply with applicable law regarding such party’s personally identifiable information or other data.

9.2 Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL JANRAIN BE LIABLE TO LICENSEE, USERS OR TO ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE SOLUTION, SERVICES AND INTELLECTUAL PROPERTY PROVIDED HEREUNDER, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR (A) ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER JANRAIN IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (B) ANY AMOUNTS IN EXCESS OF THE TOTAL OF THE FEES ACTUALLY PAID AND THE FEES PAYABLE TO JANRAIN BY LICENSEE UNDER THIS AGREEMENT DURING THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES.

10. PUBLICITY. Licensee agrees to grant to Janrain the right to use its name, logos, service marks and/or trademarks in connection with marketing and promoting Janrain’s products and services in all forms of media. Licensee may not use Janrain’s name, trademarks, service marks or similar branding attributes without Janrain’s prior written consent.

11. INJUNCTIVE RELIEF. The parties acknowledge that the Solution and Janrain’s confidential information are unique property, and the unauthorized use thereof will cause the injured party irreparable harm that may not be adequately compensated by monetary damages. Accordingly, the parties agree that the injured party will, in addition to other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Agreement, including to prevent any actual or threatened unauthorized use or sublicensing of Janrain’s confidential information, the Solution, or any information or data contained therein.

12. MISCELLANEOUS.
The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties.  Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. This Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals.  The terms of this Agreement shall be binding on the parties, and all successors to the foregoing. Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement.  This Agreement shall be governed by the laws of the State of Oregon, without regard to Oregon conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Multnomah County, Oregon. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. The prevailing party shall be entitled to recover reasonable attorney’s fees and other costs from the other party. These fees and other costs are in addition to any other relief to which the prevailing party may be entitled. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement includes any Order Terms agreed to by the parties in writing and all expressly referenced documents. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by Janrain. The terms on any purchase order or similar document submitted by Licensee to Janrain will have no effect and are hereby rejected. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on at the beginning of this Agreement and are deemed delivered when received. This Agreement may be executed in counterparts.

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13. AMENDMENT TO JANRAIN’S TERMS OF SERVICE APPLICABLE TO GOVERNMENTAL USERS/MEMBERS.

This Amendment, agreed to by both parties, applies to the following governmental agency/department (“Agency”, “User”, or “You”): [Name of 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; limitations on indemnification; fiscal law constraints; advertising and endorsements; freedom of information; and governing law and dispute resolution forum. [Janrain] (“Janrain” or “We”) and You (together, the “Parties”) agree that modifications to the [Janrain’s] standard Terms of Service, available at http://www.janrain.com/basic-terms-service (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 Janrain web site and services.

A. Government entity: “You” or the “Licensee” within the TOS shall mean the Agency itself and shall not apply to, or bind (i) the individual(s) who utilize the Janrain site or 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: Any requirement(s) set forth within the TOS that use of the Janrain site and services be for private, personal and/or non-commercial purposes is hereby waived.

C. Agency content serving the public: Janrain hereby approves Agency’s distribution or other publication via the Website 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.

D. Advertisements: Janrain hereby agrees not to serve or display any third party commercial advertisements or solicitations on any pages within the Janrain site displaying content created by or under the control of the Agency. This exclusion shall not extend to house ads, which Janrain may serve on such pages in a non-intrusive manner.

E. Indemnification: All indemnification and damages provisions of the TOS are hereby waived. 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 under the Federal Tort Claims Act, or other governing authority. Liability of Janrain 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 law.

F. Governing law: The dispute resolution provision in the TOS is hereby deleted. The TOS and this Amendment shall be governed, interpreted and enforced in accordance with the federal laws of the United State of America. To the extent permitted by federal law, the laws of the State of Oregon will apply in the absence of federal law.

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

H. Access and use: Janrain acknowledges that the Agency’s use of Janrain’s Engage services may energize significant citizen engagement. Language in the TOS allowing Janrain to terminate service, or close the Agency’s account, at any time, for any reason, is modified to reflect the Parties’ agreement that Janrain 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 instructions and guidelines posted on the Site, or if Janrain ceases to operate its site or services generally. Janrain will provide Agency with a reasonable opportunity to cure any breach or failure on Agency’s part.

I. Provision on crawlers: Any provision 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 obligations under the Federal Records Act or other applicable federal law or regulation.

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

K. Modifications of user content: Janrain agrees that any right reserved in the TOS to “modify” or “adapt” Your 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 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.

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

M. Uploading, deleting: The Parties understand and agree that You are not obligated to use the Janrain site or Deliverables, or place any User Content on the Janrain site, and You reserve the right to remove any and all User Content at Your sole discretion.

N. No endorsement: Janrain agrees that Your seals, trademarks, logos, service marks, trade names, and the fact that You use its services, shall not be used by Janrain in such a manner as to state or imply that Janrain’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, Janrain agrees not to display any Agency or government seals or logos on the Janrain’s homepage or elsewhere on the Janrain Site, unless permission to do has been granted by the Agency or by other relevant federal government authority. Janrain 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.

O. 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.

P. No cost agreement: Nothing in this Amendment or TOS obligates You to expend appropriations or incur financial obligations. 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.

Q. Provision of data: In case of termination of service, within 30 days of such termination Janrain will provide you with all user-generated content that is publicly visible through the Sites You created at Janrain. Data will be provided in a commonly used file or database format as Janrain deems appropriate. Janrain will not provide data if doing so would violate its privacy policy, available athttp://www.janrain.com/privacy-policy.

R. Separate future action for fee based services: Janrain provides Deliverables and services at a basic level free of charge to the public, but this may change in the future. You acknowledge that while Janrain will provide You with some services and features for free, Janrain reserves the right to begin charging for those services and features at some point in the future. Janrain will provide you with at least 30 days advance notice of a change involving the charging of fees for the basic level of service. You also understand that Janrain may currently offer other premium and enterprise services for a fee. The Parties understand that fee-based services are categorically different than free products, and are subject to federal procurement rules and processes. Before an Agency decides to enter into a premium or enterprise subscription, or any other fee-based service that this Janrain or alternative providers may offer now or in the future, You agree to determine your 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 when initiating that separate action.

S. Assignment: Neither party may assign its obligations under this Amendment or TOS to any third party without prior written consent of the other.

T. Precedence; Further Amendment; Termination: This Amendment constitutes an amendment to the TOS; language in the TOS indicating it alone is the entire agreement between the Parties is waived. If there is any conflict between this Amendment and the TOS, or between this Amendment and other rules or policies on the Company site or services, 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 agreement at any time. Company may close Agency’s account and terminate this agreement on 30 days written notice.

U. Posting and availability of this Amendment: The provision of the TOS requiring modifications to the TOS to be posted on Company’s website 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 You may release it to the public upon request and to other agencies interested in using Company Site and services.

V. 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 will be employed to ensure security of systems and data.  An SAS 70 Type II audit certification will be conducted annually, and Company agrees to provide Agency with the current SAS 70 Type II audit certification upon the agency’s request.  Recognizing the changing nature of the Web, Company will continuously work with users to ensure that its products 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.

W. Federal Records: Agency acknowledges that use of Company’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 the Company holds Federal records, the Agency and the Company 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 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. The Agency is responsible for ensuring that the Company is compliant with applicable records management laws and regulations through the life and termination of the Agreement.

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