InternationalTradeAdministration/developerportal — pull request #25 by adelevie (2014-08-14 19:58:35+00:00)
Title: Remove indemnification clause from TOS

There are several reasons to remove the indemnification clause:

1. They are unenforceable against government agencies, according to a [March 12, 2012 DOJ Memorandum](http://www.justice.gov/sites/default/files/olc/opinions/2012/03/31/aag-ada-impls-of-consent-by-govt-empls_0.pdf) which was [recently codified](https://www.federalregister.gov/articles/2013/12/31/2013-31150/federal-acquisition-regulation-terms-of-service-and-open-ended-indemnification-and-unenforceability#h-7) as a Final Rule to be part of the Federal Acquisition Regulation.

2. According to the same Final Rule and DOJ Memorandum, agreement to such indemnification clauses by a government employee may be a violation of the Anti Deficiency Act, depending on the contracting authority of that employee.

3. Perhaps most importantly, the indemnification clause poses *unnecessary* risk and uncertainty to all API users, not just government employees. An API is just another type of publication. If the content, data, and information on [trade.gov](http://trade.gov) (or http://www.commerce.gov/ for that matter) can be published without an indemnification clause, so can [developer.trade.gov](http://developer.trade.gov). APIs should be welcoming to developers. Unnecessary (and likely illusory) additional liabilities placed on those developers is not very welcoming.

If you ultimately decide that an indemnification clause is necessary for non-government users, you can follow the example of GitHub (and many other services) by including [government-specific amendments](https://help.github.com/articles/amendment-to-github-terms-of-service-applicable-to-government-users) to the Terms of Service. GitHub's language, as it applies to indemnification, is below:

> 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.

I am not a lawyer. Please read for yourself the documents I linked to in this Pull Request. They speak clearly and without ambiguity on the consequences of government employees accepting indemnification clauses.