Amendment to Qualtrics Terms of Service Applicable to US Government Users

 

This Amendment to Qualtrics’ Terms of Service (“Terms”) found at http://www.qualtrics.com/terms-of-service/ is an agreement between Qualtrics and the U.S. Government and it applies to the use of the company’s Website and Services 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 Qualtrics. This Amendment allows Agencies to use the Website and Services under Federal-compatible terms that respect each Agency’s legal status, its public mission, and other circumstances unique to the U.S. Government.

A. Government entity:
As applied to the Agency, the word “you” in the Terms means the Agency itself and shall not apply to nor bind Agency employees or other individuals who use the Website and Services on Agency’s behalf. Instead, Qualtrics will look solely to the Agency as the party it will pursue if Qualtrics believes there’s been a violation or breach of the Terms.
B. Public purpose:
The Agency agrees to use the Website and Services solely to fulfill the Agency’s public purpose. Any requirement(s) set forth within the Terms that use of the Services be for private, personal and/or non-commercial purposes is hereby waived.
C. Agency Data serving the public:
Qualtrics will allow the Agency to distribute or publish, via the Website and Services, Data that may contain or constitute promotions, advertisements or solicitations for goods or services so long as the Data relates to the Agency’s mission.
D. Advertisements:
Neither Qualtrics nor the Agency wants the Government’s Data to be confused with other parties’ data. To minimize that risk, Qualtrics agrees not to serve or display any commercial advertisements or solicitations in any publicly available portion of the Website displaying data uploaded by or under the control of the Agency. This exclusion does not extend to house ads which Qualtrics may place in a non-intrusive manner.
E. No endorsement:
Qualtrics agrees that your Agency’s name, seals, trademarks, logos, service marks, trade names, and the fact that you have a presence on the Qualtrics Website and use its Services, shall not be used by Qualtrics in such a manner as to state or imply that Qualtrics’s products or services are endorsed, sponsored or recommended by you or by any other element of the U.S. Government, or are considered by you or the U.S. Government to be superior to any other products or services. Except for pages whose design and data is under the control of the Agency, or for links to or promotion of such pages, Qualtrics agrees not to display any Agency or government seals, trademarks, logos, service marks, and trade names on the Qualtrics’s homepage or elsewhere on the Website unless permission to do has been granted by the Agency or by other relevant federal government authority. Qualtrics may list the Agency’s name in a publicly available customer list on its homepage or elsewhere so long as the name is not displayed in a more prominent fashion than that of any other third party name.
F. Indemnification, Liability, Statute of Limitations, Disputes:
Any provisions in the Terms related to indemnification and filing deadlines are hereby waived, and shall not apply except to the extent expressly authorized by law. Liability 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. Federal Statute of Limitations provisions shall apply to any breach or claim. Any arbitration, mediation or similar dispute resolution provision in the Terms is hereby deleted.
G. Governing law:
The Terms and 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 Utah (excluding Utah’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 Qualtrics the right to change the Terms without notice at any time is hereby amended to grant you at least three days advance notice of any material change to the Terms. Qualtrics shall send this notice to the email address you designate at the time you sign up for service, and you shall notify Qualtrics of any change in the notification email address during the life of the Amendment.
I. Access and use:
Qualtrics understands the Agency’s use of Qualtrics Services may energize significant citizen engagement and otherwise become important to the Agency’s mission. Language in the Terms allowing Qualtrics to terminate service or close the Agency’s account at any time, for any reason, is modified to allow Qualtrics unilaterally to 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 on the Website, or if Qualtrics ceases to operate its Website or Services generally. Qualtrics 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 Data, 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 Qualtrics’ 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’s Data:
Any right Qualtrics reserves in the Terms to modify or adapt the Agency’s Data is limited to technical actions necessary to index, format and display that data. The right to modify or adapt does not include the right to substantively edit or otherwise alter the meaning of the Data. In the event Agency discovers that Agency’s Data has been modified in a manner that alters the meaning of such Data, Agency may contact Qualtrics and the two parties shall work together 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:
The Parties agree that nothing in the Limitation of Liability clause or elsewhere in the Terms in any way grants Qualtrics a waiver from, release of, or limitation of liability pertaining to, any past, current or future violation of federal law.
N. Uploading, deleting:
The Parties understand and agree that you are not obligated to place any Data on the Website, and you reserve the right to remove any and all of your Data at your sole discretion.
O. No business relationship created:
The Parties 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 you to expend appropriations or incur financial obligations. The Parties acknowledge and agree that 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. Provision of data:
In the event of termination of service, within 30 days of such termination Qualtrics will provide you with all user-generated Data that is publicly visible on the Website. Data will be provided in a commonly used file or database format as Qualtrics deems appropriate. Qualtrics will not provide data if doing so would violate its privacy policy, available at http://www.qualtrics.com/privacy-statement/.
R. Paid Services and Agency responsibilities under fee-based:
This Amendment applies to an Agency’s use of both free and fee-based services that Qualtrics may offer. Qualtrics will provide Agency with at least 30 days advance notice of a change involving the charging of fees for currently free services. The Parties understand that fee-based products and services are categorically different than free products and services, 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 Qualtrics or alternative providers may offer now or in the future, the Agency agrees to determine if it 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 Terms for conformance to federal procurement law, and in all other respects to follow applicable federal acquisition laws, regulations, and agency guidelines when acquiring fee-based services.
S. 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. However, Qualtrics or its subsidiaries may assign the Terms as modified by this Amendment to a subsidiary or parent without written consent from the Agency provided that the successor assumes Qualtrics’ obligations under the Terms as modified by this Amendment.
T. Termination rights:
Agency may close Agency’s account and terminate this Amendment at any time. Qualtrics may close Agency’s account and terminate this Amendment on 30 days written notice.
U. Security:
Qualtrics 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, Qualtrics will continuously work with you to ensure that its Services meet your requirements for the security of systems and data.
V. Federal Records:
Agency acknowledges that use of Qualtrics’s Services may require management of Federal records. Agency and user-generated Data may meet the definition of Federal records as determined by the agency. If Qualtrics holds Federal records, the Agency must 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. The Agency is responsible for ensuring that its use of the Services is compliant with applicable records management laws and regulations through the life and termination of its relationship with Qualtrics.
W. Intellectual property ownership:
Except as expressly allowed in the Terms, no rights to any derivative works, inventions, or Qualtrics product modifications are conferred on the Agency or any other party. All such rights belong solely to Qualtrics.
X. Precedence; Further Amendments:
If there is any conflict between this Amendment and the Terms, or between this Amendment and other terms, rules or policies posted on the Qualtrics Website or related to its Services, this Amendment shall prevail. This Amendment constitutes an amendment to the Terms; any language in the Terms 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.
Y. Additional Items for discussion and possible inclusion in this Amendment:
Qualtrics understands evolving federal law, regulation and policy may affect the Agency’s use of the Services in ways not addressed in the list of clauses above. Among the topics Agency may need to discuss with Qualtrics, and which may lead to a mutual agreement to insert additional clauses in this Amendment, are Privacy and Accessibility.