AMENDMENT TO GITHUB TERMS OF SERVICE APPLICABLE TO GOVERNMENT USERS
This Amendment to GitHub's Terms of Service applies only to users of GitHub's sites or services that are accessing or using or wish to access or use GitHub sites or services in their capacity as government or public entities or in their capacity as employees of a government or public entity. If you are a government or public entity, read on. This Amendment applies to you. If you aren't, then GitHub's Terms of Service apply to you.
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This Amendment is an agreement between GitHub, Inc. ("GitHub" or "Company") and U.S. Government users of the GitHub.com web site (the “Service”) and applies solely to any U.S. Government agency users, account holders and subscribers who use or access the Service on behalf of such U.S. Government agency (the "Agency").
You, as a United States Government entity, are required, when entering into agreements with other parties, to follow applicable federal or state laws and regulations, including those related to ethics; privacy and security; accessibility; federal records; limitations on indemnification; fiscal law constraints; advertising and endorsements; freedom of information; and governing law and dispute resolution forum.
GitHub and You (together, the "Parties") agree that modifications to the GitHub standard Terms of Service, available at https://help.github.com/terms/ (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 Company web site and services.
A. Government entity: "You" within the TOS 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, subject to federal law.
B. Public purpose: Any requirement(s) set forth within the TOS that use of the Company site and services be for private, personal and/or non-commercial purposes is hereby waived.
C. Agency content serving the public: Company 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 and complies with any requirements set forth in the TOS relating to Content (as such term is defined in the TOS).
D. Advertisements: Company hereby agrees not to serve or display any third-party commercial advertisements or solicitations on any pages within the Company site displaying content created 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. The foregoing obligations are contingent upon the email address designated on Your account details page ending in ".gov" or ".mil" (excluding U.S. state or other non-federal government agency domain names with such endings).
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 Company 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.
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 applicable federal laws of the United States of America and exclusive jurisdiction shall be in the appropriate U.S. federal courts. To the extent permitted by federal law, the laws of the State of California will apply in the absence of federal law. If you are a state or municipal entity and legally or constitutionally cannot agree to this Governing Law provision, it is hereby waived.
G. Changes to standard TOS: Language in the TOS reserving to Company 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. Company shall send this notice to the email address You designate at the time You sign up for service, and You shall notify Company of any change in the notification email address during the life of the Amendment. If the TOS provides for advance notice of material changes to the TOS, then the foregoing amendment does not apply.
H. Access and use: Company acknowledges that the Agency's use of and the Service may energize significant citizen engagement. Language in the TOS allowing Company to terminate service, refuse or remove any Content, or close the Agency's account, at any time, for any reason, is modified to reflect the Parties' agreement that Company may unilaterally modify or discontinue service, temporarily or permanently, refuse or remove any Content, and/or terminate the Agency's account only for breach of the Agency’s obligations under the TOS or its material failure to comply with the instructions and guidelines posted on the Service, or if Company ceases to operate the Service generally. Company will provide the Agency with a reasonable opportunity to cure any breach or failure on the 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 or repositories and solely to fulfill Agency's obligations under the Federal Records Act or other applicable federal or state law or regulation.
J. Ownership of names: Any provision(s) in the TOS 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.
K. Modifications of user content: Company agrees that the 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 Company 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 place any User Content on the Company site, and You reserve the right to remove any and all User Content at Your sole discretion.
N. No endorsement: Company agrees that Your seals, trademarks, logos, service marks, trade names, and the fact that You have a presence on the Company site and use its services, shall not be used by Company in such a manner as to state or imply that Company'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, Company agrees not to display any Agency or government seals or logos on the Company's homepage or elsewhere on the Company Site, 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.
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. At the Company’s discretion, GitHub may offer a free account under a free usage plan, such as a Free for Open Source Plan, and in that case this Amendment will apply to the Agency’s usage under the free account/plan. This Amendment also applies when the Agency uses one of GitHub’s paid usage plans.
Q. Provision of data: In case of termination of service, within 30 days of such termination Company will provide you with all user-generated content that is publicly visible through the Sites You created at Company. 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, available at https://help.github.com/privacy/.
R. Agency responsibilities under paid usage plans: You acknowledge that while Company will provide You with service under a free plan, Company reserves the right to begin charging for that service at some point in the future. Company will provide You with at least 30 days advance notice of a change involving the charging of fees for a free service. You also understand that Company offers paid plans 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 the Agency decides to enter into a business or enterprise subscription, or any other fee-based service that this Company 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.
S. Assignment: Neither party may assign its obligations under this Amendment or TOS to any third-party without prior written consent of the other; however, GitHub may, without the Agency's consent, assign its obligations under this Amendment or TOS to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger, acquisition, corporate reorganization or consolidation, or the sale of all or substantially all of GitHub's assets.
T. Precedence; Further Amendment; Termination: This Amendment constitutes an amendment to the TOS; language in the TOS indicating it may not be modified or that 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, but the Agency shall not be entitled to a refund of any fees paid.
U. 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 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.howto.gov/ or similar federal informational web sites.
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. Recognizing the changing nature of the Web, Company will continuously work with users to ensure that its products and services are operated and maintained in a secure manner. 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.
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.
Additional Items for Discussion and Possible Inclusion in this Agreement: Company 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 list of clauses above. Much depends on the nature of the products and services offered by the Company (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 Company, and which may lead to the insertion of additional clauses in this Agreement, are Privacy and Accessibility.
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