FOR GOVERNMENTS AND FEDERALLY FUNDED AGENCY’S
This section is relevant to governments, government employees, and all federally funded agency’s (i.e. a United States government user acting in a government capacity). If you are not acting in this capacity, this section does not apply.
This Amendment is an agreement between EarthX, Inc. ("EarthX") and U.S. Government users, and applies solely to the U.S. Government users, account holders, and subscribers who use or access the Services on behalf of a U.S. Government agency ("you"). It applies only to EarthX users in their capacity as government or public entities or in their capacity as employees of a government or public entity.
Federal agencies, because of their status as U.S. Government entities, 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; document retention; and governing law and dispute resolution forum. EarthX and you (together, the "Parties") agree that modifications to EarthX’s standard Terms of Service, are appropriate to accommodate your legal status, your public (in contrast to private) mission, and other special circumstances.
Accordingly, the TOS is hereby modified by this Amendment to allow for your use of EarthX services.
A. Indemnification: All indemnification, liability 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, the Contract Disputes Act, or other governing authority. Liability of EarthX 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. In any event, neither party shall be liable for consequential damages. The claim period within which a cause of action must be commenced by either party will be governed by federal law.
B. Governing law and jurisdiction: The TOS and this Amendment shall be governed, interpreted and enforced in accordance with the federal laws of the United States of America.
C. Limitation of liability: The Parties agree that nothing in the Warranty or Limitation of Liability provisions in the TOS in any way grants EarthX a waiver from, release of, or limitation of liability pertaining to, any past, current or future violation of federal law.
E. No endorsement: Unless explicit permission is granted in writing, EarthX agrees that your seals, trademarks, logos, service marks, trade names, and the fact that you use the software, services, maps, and other content of EarthX sites and services shall not be used by EarthX in such a manner as to state or imply that EarthX products or services are endorsed, sponsored or recommended by you or by any other entity of the Federal Government, or are considered by these federal entities as superior to any other company's products or services. EarthX agrees not to display any Agency or government seal or logo on our platform, applications, website or elsewhere on 3rd party partner sites, unless permission to do has been granted by the Agency or by other relevant federal government authority. EarthX may list the Agency's name in a publicly available user list so long as the name is not displayed in a more prominent fashion than that of any other third party name, and reference your Agency as a Mapbox user.
F. No business relationship created: The Parties are independent entities and nothing in the TOS or this Amendment creates an agency, partnership, joint venture, or employer/employee relationship.
G. Fee based services: The Parties understand that fee-based services are categorically different than free products, and are subject to federal procurement rules and processes. Before you decide to enter into a premium or enterprise subscription, or any other fee-based service that EarthX 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.
H. Assignment: Neither party may assign its obligations under this Amendment to any third party without prior written consent of the other.
I. Precedence; Further Amendment; Termination: If there is any conflict between this Amendment and the TOS, or between this Amendment and other rules or policies regarding EarthX Services, this Amendment shall prevail. This Amendment may be further amended only upon written agreement executed by both Parties. You may terminate this Amendment at any time. EarthX may terminate this Amendment on 30 days written notice.
J. Posting and availability of this Amendment: 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 EarthX Services.
K. Security: EarthX 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 Internet, EarthX will continuously work with users to ensure that its products and services meet users' requirements for the security of systems and data.
L. Title and Intellectual Property Rights: To the extent permitted under Federal law, all rights, title and interest to any and all work produced and created by User pursuant to or in connection with the use of the EarthX Site shall vest in the User. Ownership or possession of such rights, title and interest shall not be affected by any alleged or actual breach of the TOS or this Amendment. Under no circumstances may EarthX claim a right, title or interest in Content that is in the public domain.
M. Permanent Geocoding API: Use of the API is restricted in accordance with the LIMITED or RESTRICTED rights as described in any applicable DFARS, FAR. In case of conflict between any of the FAR and/or DFARS that may apply to the API, the construction that provides greater limitations on the Government’s rights shall control. For purposes of any public disclosure provision under any federal, state, or local law, it is agreed that the databases powering the API and any geocoding results derived from the API are trade secrets and proprietary commercial products and not subject to disclosure.