What are Terms of Service (TOS)?
Whenever you install iTunes or sign up for a site like Facebook or Twitter, at a certain point you have to click on a button and check a box that says something like “I agree to these Terms.” These are the Terms of Service (or TOS), the rules companies require for doing business with them. Most people never read the rules. They just accept them and jump right into using the tool. All sorts of products have terms: social sharing sites, usability testing tools, or many of the mobile apps on your smartphone.
Why are Terms of Service a big deal?
When you agree to the TOS for a product as part of your government job, you are agreeing to a contract with the company. Those Terms may not impact you as a private citizen, but they could end up creating serious problems for the federal government, including:
- Opening the government up to lawsuits or liability for unlimited damages (a.k.a. “Indemnification”)
- Giving up control over the content of your agency posts
- Requiring government personnel to travel to the state where the company operates to deal with disputes
- Allowing advertisements for private companies to run alongside government content—ads that might contain inappropriate words and images, or create the appearance of unfair endorsements
Do free products have Terms of Service, or just paid ones?
All products—whether free or paid—have terms that you must accept before using them. Many of the terms—such as those regarding advertising or altering uploaded content—apply whether or not there is money involved.
So what do we do about these Terms of Service?
The good news is that many companies are willing to negotiate their Terms of Service with the government to create an Amended Terms of Service for federal users, also known as a federal-compatible Terms of Service agreement. Here’s a link to a flowchart explaining how to do this. Take a look.
OK. What should I do to get an Amended Terms of Service?
You’ll need to know whether the tool is free or paid, because that will determine whether you should work with a Contracting Officer or not (again, see the flowchart). If a Contracting Officer is not involved, you’ll then work with your agency lawyers (legal counsel) to create an Amended Terms of Service. Many agencies have done this successfully. The results—more than 70 completed Amended TOS—can be found on our federally-compatible Terms of Service agreements page.
Your legal counsel will take a look at the company’s current TOS for the tool and identify any issues that could be a problem. She or he will then reach out to the company and ask them to modify their terms to meet federal needs. Often, the company will agree to the federal modifications your attorney proposes immediately. Other times, there is a back-and-forth as certain terms are added or deleted.
When it’s done and an agreement is reached, one of two things will happen:
- The company will post the terms to its website (ideally). This means you’ll see these on the site when you sign up and open your account and start using the tool. Or…
- The company will make special arrangements for your agency, and send you instructions on how to “agree” or “sign up” to the new terms.
How long does it take to reach an agreement on the TOS?
At best, a few weeks. However, it sometimes takes months or longer, especially if:
- the company you’re working with has no prior government exposure
- the company is large and has a lengthy internal review process
- there are many other tools ahead of you in line waiting for legal review at your agency.
Can someone help me with this?
Yes! GSA offers:
- A list of companies that have already negotiated Terms of Service with a government agency, and a list of negotiated agreements. You may be able to use these as a starting point in your own negotiations.
- A Model Terms of Service Agreement (MS Word, 55 KB) lists the major issues that need to be addressed. You can use it as a template, and modify as appropriate.
- A list of TOS contacts at every agency who can help you. If your request is approved, your agency contact will be the one reaching out to the company, not you.
- Help with negotiating Terms of Service agreements for free tools (not paid). If you are willing to take the lead in negotiations with a company, GSA can help. GSA is especially interested in helping with high-visibility tools that have wide application across the government. See our flowchart to see where GSA gets involved.
Why is GSA doing this?
In 2012, the Department of Justice, Office of Legal Counsel, issued a Memorandum on the subject of online TOS Agreements. Following DOJ’s lead, in 2013, OMB issued a Memorandum warning agencies not to use online tools whose Terms of Service are incompatible with federal law, regulation or practice. OMB advised agencies to carefully review the terms regarding these products and services. This includes items your agency is using now and items you plan to use in future. OMB recommended that GSA assist agencies who are seeking a federally-compatible Terms of Service agreement.
Each agency is unique and operates under its own set of authorities, and GSA itself does not have government-wide authority to represent other agencies in this area. The good news is that a wealth of experience has been accumulated, which means you can build upon work done by GSA and other agencies to make things happen a lot faster.
What are some tips to a successful TOS negotiation?
- Look at the company’s TOS with your lawyer to identify any issues your agency may have before reaching out to the company. Know the deal breakers that you can’t budge on.
- Use the Model Terms of Service Agreement (MS Word, 55 KB, 5 pages, October 2011) as your starting point and tailor it to your needs.
- Make sure your agency approves the use of the software or service for your job (be ready to discuss privacy, security, 508 requirements, etc.).
- Help identify a point of contact at the company for your agency to work with.
- Once you’re done getting an amended TOS, share the good news with your community through blog posts on DigitalGov.gov and webinars through DigitalGov University or your Community of Practice.
For more information
Visit our main Terms of Service page.
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