THESE CivAssist SAAS TERMS OF SERVICE ARE EXPRESSLY INCORPORATED INTO THE SAAS AGREEMENT BETWEEN COMPANY AND USER. USER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO.
The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1. “User Data” means all information processed or stored through the SaaS by User or on User’s behalf. User data does not include payment records, credit cards or other information User uses to pay Company, or other information and records related to User’s account, including without limitation identifying information related to User staff involved in payment or other management of such account.
1.2. “Documentation” means Company’s standard manual (electronic, written) related to use of the SaaS.
1.3. “Privacy/Security Law” means privacy and security laws governing Company’s handling of User Data (if any).
1.4. “SaaS” means Company’s CivAssist software.
1.5. “Term” is defined in Section 11.1 below.
2. THE SAAS
2.1. Use of the SaaS. During the Term, User may access and use the SaaS pursuant to the terms herein.
2.2. Documentation. User may reproduce and use the Documentation solely as necessary to support Users’ use of the SaaS.
2.3. SaaS Revisions. Company may revise SaaS features at any time, including without limitation by removing features and functions at its own discretion. If any such revision to the SaaS materially reduces features or functionality, User may terminate this Agreement without cause.
3.1. Subscription Fees. User shall pay Company the fee set forth on the first page (the “Subscription Fee”) for each Term. Company’s invoices are due upon receipt. Company will not be required to refund the Subscription Fee under any circumstances.
4. USER DATA & PRIVACY
4.1. Use of User Data. Company shall not: (a) access, process, or otherwise use User Data other than as necessary to facilitate the SaaS; or (b) give User Data access to any third party, except Company’s subcontractors that have a need for such access to facilitate the SaaS and are subject to a reasonable written agreement governing the use and security of User Data. Company: (a) shall exercise reasonable efforts to prevent unauthorized disclosure or exposure of User Data; and (b) shall comply with all Privacy/Security Laws that are applicable both specifically to Company and generally to data processors in the jurisdictions in which Company does business and operates physical facilities.
4.3. Erasure. Company may permanently erase User Data if User’s account is delinquent, suspended, or terminated for 30 days or more, without limiting Company’s other rights or remedies. User’s data will be archived and available to the User during the Term of this Agreement.
4.4. Required Disclosure. Notwithstanding the provisions above of this Article 4, Company may disclose User Data as required by applicable law or by proper legal or governmental authority. Company shall give User prompt notice of any such legal or governmental demand and reasonably cooperate with User in any effort to seek a protective order or otherwise to contest such required disclosure, at User’s expense.
4.5. Risk of Exposure. User recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the SaaS, User assumes such risks. Company offers no representation, warranty, or guarantee that User Data may not be exposed or disclosed through errors or the actions of third parties.
4.6. Data Accuracy. Company shall have no responsibility or liability for the accuracy of data uploaded to the SaaS by User, including without limitation User Data and any other data uploaded by Users.
5. USER’S RESPONSIBILITIES & RESTRICTIONS
5.1. Acceptable Use. User shall not: (a) use the SaaS for service bureau or time-sharing purposes or in any other way allow third parties to exploit the SaaS; (b) provide SaaS passwords or other log-in information to any third party; (c) share non-public SaaS features or content with any third party; (d) access the SaaS in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the SaaS, or to copy any ideas, features, functions or graphics of the SaaS; or (e) engage in web scraping or data scraping on or related to the SaaS, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Company may suspend User’s access to the SaaS without advanced notice, in addition to such other remedies as Company may have. This Agreement does not require that Company take any action against User or any User or other third party for violation of the terms herein, this Section 5.1, or this Agreement, but Company is free to take any such action it sees fit.
5.2. Unauthorized Access. User shall take reasonable steps to prevent unauthorized access to the SaaS, including without limitation by protecting its passwords and other log-in information. User shall notify Company immediately of any known or suspected unauthorized use of the SaaS or breach of its security and shall use best efforts to stop said breach.
5.3. Compliance with Laws. In its use of the SaaS, User shall comply with all applicable laws, including without limitation Privacy/Security laws.
5.4. Users & SaaS Access. User is responsible and liable for: (a) Users’ use of the SaaS, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to User; and (b) any use of the SaaS through User’s account, whether authorized or unauthorized.
6. IP & FEEDBACK
6.1. IP Rights to the SaaS. Company retains all right, title, and interest in and to the SaaS, including without limitation all software used to provide the SaaS and all graphics, user interfaces, logos, and trademarks reproduced through the SaaS. This Agreement does not grant User any intellectual property license or rights in or to the SaaS or any of its components, except to the limited extent that such rights are necessary for User’s use of the SaaS as specifically authorized by this Agreement. User recognizes that the SaaS and its components are protected by copyright and other laws.
6.2. Feedback. Company has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that User, User’s Clients, or other Users give Company, and nothing in this Agreement or in the parties’ dealings arising out of or related to these Terms will restrict Company’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting User. Feedback will not be considered User’s trade secret. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Company’s products or services.)
7. CONFIDENTIAL INFORMATION
7.1. “Confidential Information” refers to the following items Company discloses to User: (a) any document Company marks “Confidential”; (b) any information Company orally designates as “Confidential” at the time of disclosure; (c) any other nonpublic, sensitive information User should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in User’s possession at the time of disclosure; (ii) is independently developed by User without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of User’s improper action or inaction; or (iv) is approved for release in writing by User. User is on notice that the Confidential Information may include Company’s valuable trade secrets.
7.2. Nondisclosure. User shall not disclose Confidential Information to any other third party without Company’s prior written consent. Without limiting the generality of the foregoing, User shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. User shall promptly notify Company of any misuse or misappropriation of Confidential Information that comes to User’s attention. Notwithstanding the foregoing, User may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. User shall give Company prompt notice of any such legal or governmental demand and reasonably cooperate with Company in any effort to seek a protective order or otherwise to contest such required disclosure, at Company’s expense.
7.3. Injunction. User agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in this Article 7; (b) it would be difficult to determine the damages resulting from its breach of this Article 7, and such breach would cause irreparable harm to Company; and (iii) a grant of injunctive relief provides the best remedy for any such breach, without any requirement that Company prove actual damage or post a bond or other security. User waives any opposition to such injunctive relief or any right to such proof, bond, or other security. (This Section 7.3 does not limit either party’s right to injunctive relief for breaches not listed.)
7.4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Company will retain all right, title, and interest in and to all Confidential Information.
7.5. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), User is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
(a) Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(b) Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
8.REPRESENTATIONS & WARRANTIES
8.1. From Company. Company represents and warrants that it is the owner of the CivAssist SaaS and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the SaaS set forth in this Agreement without the further consent of any third party. Company’s representations and warranties in the preceding sentence do not apply to use of the SaaS in combination with hardware or software not provided by Company. In case of breach of the warranty above in this Section 8.1, Company, at its own expense, shall promptly: (a) secure for User the right to continue using the SaaS; (b) replace or modify the SaaS to make it non infringing; or if such remedies are not commercially practical in Company’s reasonable opinion, (c) refund the fees paid for the SaaS for every month remaining in the then-current Term following the date after which User access to the SaaS ceases as a result of such breach of warranty. If Company exercises its rights pursuant to Subsection 8.1(c) above, User shall promptly cease all use of the SaaS and all reproduction and use of the Documentation and erase all copies in its possession or control. This Section 8.1, in conjunction with User’s right to terminate this Agreement where applicable, states User’s sole remedy and Company’s entire liability for breach of the warranty above in this Section 8.1.
8.2. From User. User represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the SaaS; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
8.3. Warranty Disclaimers. Except to the extent set forth Section 8.1 above, USER ACCEPTS THE SAAS “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) COMPANY HAS NO OBLIGATION TO INDEMNIFY OR DEFEND USER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SAAS WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SAAS IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT USER DATA WILL REMAIN PRIVATE OR SECURE.
9. INDEMNIFICATION. User shall defend, indemnify, and hold harmless Company and the Company Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to User’s alleged or actual use of, misuse of, or failure to use the SaaS, including without limitation: (a) claims by Users or by User’s employees, as well as by User’s own Users; (b) claims related Data Incidents (as defined below); (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the SaaS through User’s account, including without limitation by User Data; and (d) claims that use of the SaaS through User’s account, including by Users, harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. INDEMNIFIED CLAIMS INCLUDE, WITHOUT LIMITATION, CLAIMS ARISING OUT OF OR RELATED TO COMPANY’S NEGLIGENCE. User’s obligations set forth in this Article 9 include, without limitation: (i) settlement at User’s expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of court costs and other reasonable expenses; and (ii) reimbursement of reasonable attorneys’ fees incurred before Users’ assumption of the defense (but not attorneys’ fees incurred thereafter). If User fails to assume the defense on time to avoid prejudicing the defense, Company may defend the Indemnified Claim, without loss of rights pursuant to this Article 9. Company will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it or a Company Associate admit wrongdoing or liability or subjects either of them to any ongoing affirmative obligation. (“Company Associates” are Company’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns. A “Data Incident” is any (1) unauthorized disclosure of, access to, or use of User Data, including without limitation Excluded Data, or (2) violation of Privacy/Security Law through User’s account. Data Incidents include, without limitation, such events caused by User, by Company, by User’s Users or other users, by hackers, and by any other third party.)
10. LIMITATION OF LIABILITY
10.1. Dollar Cap. COMPANY’S CUMULATIVE LIABILTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT PAID BY USER.
10.2. Excluded Damages. Except with regard to breaches of Article 7 (Confidential Information), IN NO EVENT WILL COMPANY BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
10.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 9 APPLY TO THE BENEFIT OF COMPANY’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND THIRD PARTY CONTRACTORS, AS WELL AS: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF COMPANY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF USER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. User acknowledges and agrees that Company has based its pricing on and entered into this Agreement in reliance upon the limitations of liability and disclaimers of warranties and damages in this Article 10 and that such terms form an essential basis of the bargain between the parties. If applicable law limits the application of the provisions of this Article 9, Company’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Company’s liability limits and other rights set forth in this Article 9 apply likewise to Company’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
11. TERM & TERMINATION
11.1. Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for the period set forth in the first page herein. Thereafter, the Term will renew for successive periods, unless either party refuses such renewal by written notice before the renewal date.
11.2. Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
11.3. Effects of Termination. Upon termination of this Agreement, User shall cease all use of the SaaS. The following provisions will survive termination or expiration of this Agreement.
12.1. Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
12.2. Notices. Company may send notices pursuant to this Agreement to User’s email contact points provided by User, and such notices will be deemed received 24 hours after they are sent. User may send notices pursuant to this Agreement to an email address designated by Company and such notices will be deemed received 72 hours after they are sent. In addition, User is on notice and agrees that: (a) for claims of copyright infringement, the complaining party may contact an email address designated by Company; and (b) Company will terminate the accounts of subscribers who are repeat copyright infringers.
12.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, epidemics, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control.
12.4. Assignment & Successors. User may not assign this Agreement or any of its rights or obligations hereunder without Company’s express written consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
12.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.7. Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of California, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Mendocino County, California. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
12.9. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
12.10. Technology Export. User shall not: (a) permit any third party to access or use the SaaS in violation of any U.S. law or regulation; or (b) export any software provided by Company or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, User shall not permit any third party to access or use the SaaS in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
12.11. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.