1. These Subscription Terms and Conditions (“Terms”) govern the use of the products offered by CityGovApp Inc., (“CityGovApp” with its principal place of business located at 2411 Roosevelt Ave, Berkeley, CA 94703, and its Customer,as identified in an executed Order for products.
2. These Subscription Terms and Conditions (“Terms”) are effective upon execution of the Order by Customer and are for the exclusive benefit of the Parties. Nothing herein will be construed to create any benefits, rights, or responsibilities in any other parties. “Customer” refers to the subscribing customer designated on the attached Order. “Provider” shall mean CityGovApp or, where Customer has purchased from an authorized CityGovApp Reseller, the CityGovApp authorized Reseller.
3. Customer’s subscription term commences on the commencement date listed on the Order.Said date is Customer’s “Service Date” for purposes of designating the start of any subscription term.
4. Subscription terms are twelve (12) calendar months in duration. At the end of Customer’s subscription term or, if a multi-term subscription is indicated on the Order, the last of Customer’s subscription terms, Customer’s subscription will renew for an additional term. The per-unit pricing during said additional term will be the same as the prior term’s annual fees unless Provider notifies Customer otherwise not less than sixty(60) calendar days prior to the end of said prior term. Any price increase will be effective at the start of the renewal term. Customer may opt-out from said automatic renewal by providing written notice to Providernot less than sixty (60) calendar days prior to the Service Date anniversary which begins the renewal term.
5. In exchange for its use of the Subscribed Services, Customer will pay the amounts indicated in the Order. Said amounts are based on services purchased and not actual usage; payment obligations are non-cancelable and fees paid are non-refundable, to these Terms during a subscription term. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by CityGovApp regarding future functionality or features.
6. The Subscribed Services are protected under the laws of the United States and the individual states and by international treaty provisions. CityGovApp retains full ownership in the Subscribed Services and grants to Customer a limited, nonexclusive, nontransferable right to use the Subscribed Services, subject to the following terms and conditions: a) The Subscribed Services are provided for use only by Customer employees and to the extent of their duties for Customer, Customer’s agents, contractors and officials; b) Customer may not make any form of derivative work from the Subscribed Services, although Customer is permitted to develop additional or alternative functionality for the Software using tools and/or techniques provided to Customer by CityGovApp_; c) Customer may not obscure, alter, or remove any confidentiality or proprietary rights notices; d) Customer may use the Subscribed Services only to process transactions relating to properties within both its own geographical and political boundaries and may not sell, rent, assign, lend, or share any of its rights hereunder; e) Customer is responsible for all activities conducted using its user credentials and for its users’ compliance with the provisions of these Terms; and f) All rights not expressly granted to Customer are retained by CityGovApp. CityGovAppwill make the Subscribed Services available to Customer pursuant commercially reasonable efforts to provide updates toward resolution of the issue.CityGovApp maintenance includes the following services:
App store administration
Agency Technical Support Support for functionality, back-end integration and usability of the app. Maximum of 10 hours per month. Additional time will be charged at $75-$100 per hour, depending on resources required.
7.CityGovApp warrants that it has full power and authority to agree to these Terms and that, as of the effective date hereof, the Subscribed Services do not infringe on any existing intellectual property rights of any third party. If a third party claims that the Subscribed Services do infringe, CityGovApp may, at its sole option, secure for Customer the right to continue using the Subscribed Services or modify the Subscribed Services so that these do not infringe. CityGovApp will have the sole right to conduct the defense and will defend any legal action and conduct all negotiations for its settlement or compromise.
8.CityGovApp has no obligation for any claim based upon a modified version of the Subscribed Services, where such modifications were not made or authorized by CityGovApp, or the combination or operation of the Subscribed Services with any product, data, or apparatus not provided by CityGovApp. CityGovApp provides no warranty whatsoever for any third-party hardware or software products. Except as expressly set forth herein, CityGovApp disclaims any and all express and implied warranties, including but not limited to warranties of merchantability and fitness for a particular purpose.
11. In support of the Subscribed Services, CityGovApp will provide Customer with a) a telephone number to contact live technical support, which is available from 7:00 a.m. until 6:00 p.m. Pacific time Monday through Friday, excluding CityGovApp’s observed holidays; b) one or more electronic mail addresses to which Customer may submit routine or non-critical support requests, which CityGovApp will address during its regular business hours; and c) access to archived software updates and other technical information inCityGovApp’s online support databases, which are continuously available.Where support is needed to address non-functioning or seriously impaired Services and there is no reasonable workaround available, CityGovApp will promptly respond to the support request and use Services; b) Services required by Customer to be performed by CityGovApp outside of it’s usual working hours; c) Services required due to external factors including, but not necessarily limited to, Customer’s use of software or hardware not authorized by CityGovApp; or d) Services required to resolve or work-around conditions which cannot be reproduced in CityGovApp’s support environment.
12. The following are not covered by these Terms, but may be separately available at rates and on terms which may vary from those described herein: a) Services required due to misuse of the Subscribed records or information, client records or information, organizational or personnel information, business plans, or works-in-progress, even where such works, when completed, would not necessarily comprise Confidential Information. The foregoing listing is not intended by the Parties to be comprehensive, and any information which Disclosing Party marks or otherwise designates as “Confidential” or “Proprietary” will be deemed and treated as Confidential Information. Information which qualifies as “Confidential Information” may be presented to Recipient in oral, written, graphic, and/or machine-readable formats. Regardless of presentation format, such information will be deemed and treated as Confidential Information. Notwithstanding, the following specific classes of information are not “Confidential Information” within the meaning of this Section: a) information which is in Recipient’s possession prior to disclosure by Disclosing Party; b) information which is available to Recipient from a third party without violation of this Section or Disclosing Party’s intellectual property rights; c) information which is in the public domain at the time of disclosure by Disclosing Party, or which enters the public domain from a source other than Recipient after disclosure by Disclosing Party; d) information which is subpoenaed by governmental or judicial authority; and e) information subject to disclosure pursuant to a state’s public records laws. Recipient will protect the confidentiality of Confidential Information using the same degree of care that it uses to protect its own information of similar importance, but will in any case use no less than a reasonable degree of care to protect Confidential Information. Recipient will not directly or indirectly disclose Confidential Information or any part thereof to any third party without Disclosing Party’s advance express written authorization to do so. Recipient may disclose Confidential Information only to its employees or agents under its control and direction in the normal course of its business and only on a need-to-know basis. In responding to a request for Confidential Information, Recipient will cooperate with Disclosing Party, in a timely fashion and in a manner not inconsistent with applicable laws, to protect the Confidential Information to the fullest extent possible.
13. Customer warrants that it owns or has been authorized to provide the data to CityGovApp. Customer retains full ownership of said data and grants to CityGovApp a limited, nonexclusive, nontransferable license to use said data only to perform CityGovApp ’s obligations in accordance with these Terms.
14. Customer acknowledges that transmissions and processing of Customer’s electronic communications are fundamental to Customer’s use of the Subscribed Services. Customer further acknowledges that portions of such transmissions and processing may occur within various computer networks not owned or operated by CityGovApp. Customer agrees that _CityGovApp is not responsible for any delays, losses, alterations, interceptions, or storage of its electronic communications which occur in computer networks not owned or operated by CityGovApp.
15. Either party may end Customer’s access to the Subscribed Services if the other materially breaches these Terms and, after receiving a written notice describing the circumstances of the default, fails to correct the breach within thirty (30) calendar days.Upon any termination for cause by Customer, CityGovApp will refund any prepaid subscription fees covering the remainder of the subscription term after the effective date of termination.
16. “Disclosing Party” and “Recipient” refer respectively to the party which discloses information and the party to which information is disclosed in a given exchange. Either CityGovApp or Customer may be deemed Disclosing Party or Recipient depending on the circumstances of a particular communication or transfer of information. “Confidential Information” means all disclosed information relating in whole or in part to non-public data, proprietary data compilations, computer source codes, compiled or object codes, scripted programming statements, byte codes, or data codes, entity-relation or workflow diagrams, financial contract, tort, or otherwise, even if the other has been advised of the possibility of such loss or damages. Client will indemnify and hold CityGovApp harmless against any claims incurred by CityGovApp arising out of or in conjunction with Client’s breach of this Agreement, as well as all reasonable costs, expenses and attorneys’ fees incurred therein. CityGovApp ’s total liability under this Agreement with respect to the Work, regardless of cause or theory of recovery, will not exceed the total amount of fees paid by Client to CityGovApp during the six (6)month period prior to the date the claim arises. CityGovApp will at all times during the agreement, maintain insurance coverage appropriate to the use of its products and its responsibilities here under.
17. Neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the performance of CityGovApp’s Work, whether in Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control.
18. The performance by CityGovApp of its duties and obligations under this Agreement will be that of an independent contractor, and nothing in this Agreement will create or imply an agency relationship between CityGovApp and Client, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
19. Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of California. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.
20. If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees and costs.
21. If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
22. Neither party will be held responsible for any delay or failure in performance of any part of this except as otherwise specifically-provided herein.Unless otherwise stated, such fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (“Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Providerhas the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer, unless Provideris provided with a valid tax exemption certificate authorized by the appropriate taxing authority. Provider is solely responsible for taxes assessable against it based on its income, property and employees.
23. The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties here to.
24. This Agreement together with any attachments referred to herein constitute the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
25. The Parties expressly disclaim any alternate terms and conditions accompanying drafts and/or purchase orders issued by Customer.
26. Section 5 will survive the End of Term for so long as is required to complete collection of unpaid amounts. The agreements, rights, limitations and waivers described in Sections 6-8, 13, 16, 17, 19-13 and 26 will survive the End of Term.. Section 21 will survive the End of Term for a period of two (2) years. With the exceptions of the foregoing surviving sections, the remainder of these Terms will terminate at the End of Term.
26. If any particular provision of these Terms is determined to be invalid or unenforceable, that determination will not affect the other provisions, which will be construed in all respects as if the invalid or unenforceable provision were omitted. No extension, modification, or amendment of these Terms will be effective unless it is described in writing and signed by the Parties.