Negotiating a Mobile Terms of Service Agreement

In our personal lives, most of us barely pay attention to Terms of Service (TOS) agreements. But in our professional lives, as federal employees, mindlessly clicking through a TOS is not an option.

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The DigitalGov article Getting to Yes: Working with Vendors to Secure Terms of Service and Federal Friendly Pricing explored the legal dilemmas that arise when negotiating TOS agreements for government use of tools, and how federal employees can communicate the benefits of federal-friendly agreements to businesses. ‘Getting to yes’ also includes gaining the support of your federal team.

Last year, employees in the Department of Energy (DOE) successfully negotiated three TOS agreements for the launch of their native app, Lantern Live. With these agreements in place, their app is available on Google Play.

Gabriel Soll, an attorney with DOE, shared tips for negotiating TOS agreements for agencies that are releasing their own native apps.

Coordination

Start early. Communicate often.

This is Soll’s first piece of advice.

Typically, there are numerous clauses of TOS agreements that need to be edited to fit federal regulations. A TOS template (.doc) is available on DigitalGov, but there is usually some back-and-forth discussions between agencies and companies.

“This really does require quite a bit of coordination,” said Soll. “The first challenge for me was to put enough emails out there to customer service representatives and push my way through until I finally got someone who could deal with a U.S. government inquiry and actually address the changes that we needed to make.”

Soll noted that it can be challenging to find the right people to work with: Some companies may be unfamiliar with government processes, or others may be too busy to deal with the unique requirements of federal agencies.

Coordination and communication among government employees is critical. Engage procurement and legal staff early in the process, Soll said. Intellectual property teams should also be involved when doing app or product development.

Denice Ross, Presidential Innovation Fellow at DOE, noted that anybody can start the TOS negotiation process—it does not have to be attorneys who get the ball rolling. She also noted that there may be several attorneys involved in the process because they all have specialities related to specific parts of TOS agreements.

To handle the additional email flow, DOE created a special email account for app development and TOS agreements.

Timelines

The goal for DOE was to have all three agreements in place prior to completion of the app. Although this may initially seem out of order, Soll said it worked well for the Lantern Live project because of delays in getting agreements approved. The app and the TOS agreements for Lantern Live ended up being ready at the same time.

It took around five months to negotiate the three TOS agreements for Lantern Live. As more agencies negotiate agreements, Soll anticipates that it will be easier for other government agencies to move through the process. Until that time, however, he says the initial steps are “going to be pushing and filling in people, calling back, sending emails and escalating into various chains that we have until we can get there.”

Community Collaboration

The Mobile Community of Practice offers a collaborative space for federal employees engaged in mobile app development. Soll found the community to be an excellent resource.

“We got a lot of support from other agencies, in terms of coming up to speed on these agreements,” Soll said. “We spoke to attorneys at three or four agencies who have either worked in this realm or negotiated these agreements. I cannot stress enough: reach out and really use this community as a resource.”

Are you developing an app? DigitalGov has a Mobile Application Development Program page full of helpful resources and case studies. Information about other agencies’ experiences with native application iOS development is also available, and you can read the overview of TOS agreements and review the list of federal-friendly Terms of Service Agreements that have already been negotiated.