PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.

These Terms of Services (“TOS”) expressly include City Innovate’s Privacy Policy and Appropriate Use Policy. These TOS apply to the services (“Services”) that City Innovate, Inc. (“City Innovate”) provides to you (the “Customer”), and together with any order forms or other agreements mutually agreed to in writing between City Innovate and you (collectively order forms), are collectively referred to as the “Agreement.” The terms “you,” “your,” and “yours,” refer to Customer, the account administrator, any authorized individual or an entity using the Services. If you are accepting these TOS on behalf of an entity, you represent and warrant that you have the authority to do so. You agree that City Innovate may change these TOS as reasonably required and that your continued use of the Services after such a change is considered acceptance of any such changes. Do not access or use the Services if you are unwilling or unable to be bound by the TOS. This Agreement applies even as part of any “free-trial” or “beta” offerings by City Innovate, but such offerings are provided AS-IS.  City Innovate may terminate such offerings at any time with notice to you.

1. Services. Upon our acceptance of an order form from you or your agent (e.g., reseller), or otherwise upon your authorized access of the Services, subject to the terms of this Agreement or an order form, you will be granted a license for use of the Services during the order form term.  If a free-trial or beta, the term of such Services will be determined by the parties by an order form or otherwise in writing.

2. Account Registration. You must register for and maintain an account with City Innovate to use the Services. Your account registration requirements include:

  • responsibility to provide and maintain accurate and complete account information, which must be current and updated,
  • responsibility for all activities that occur through your account,
  • responsibility to maintain secure user identification and passwords, including individualized user logins and IDs, which cannot be shared between users,
  • responsibility to promptly notify City Innovate of any unauthorized use of a user account or any other breach of security, and
  • in the event of actual or suspected unauthorized use of the Services by anyone obtaining access through your account(s), you will, take all reasonable steps necessary to cease the unauthorized access.

Further, in the event of actual or suspected unauthorized use, City Innovate may suspend the account, your access to, and use of the Services. You will cooperate and assist with any actions taken by City Innovate to prevent or terminate unauthorized use of the Services. City Innovate, in its sole discretion, may re-instate your access to the Services if it determines that the actual or suspected unauthorized use was not due to your breach of the Agreement or if you have cured your breach of the Agreement. City Innovate may also credit your account for suspended access to the Services for reasons other than a breach of the Agreement by you.

3. Right to Access. Subject to the terms of this Agreement, City Innovate grants you a limited, personal, non- exclusive, non-transferable, non-sublicensable right to access and use the Services up the capacity or limits in an order form during the term of this Agreement. The right to access and use the Services granted by this section extends to any of your agents and contractors, provided you (i) ensure their compliance with the TOS and any applicable Agreement terms, and (ii) will be liable and responsible for any violations of the TOS and/or Agreement by those parties. You may also transfer this license to your own customers as part of a bundled product or service offering, provided that you: (1) ensure compliance by customers with the terms of this TOS, and (2) will be liable and responsible for any violations of the TOS by your customers as if those violations were committed by you, and (3) remain responsible for payment of all fees due to City Innovate, regardless of whether or not you have collected any fees from your customers.  Unless expressly set forth in the order form City Innovate, you may not reduce quantities or units in the order form during the order form term.

4. Login Credentials. Each set of login credentials for the Services may be used only by a single, individual user. you agree to promptly notify City Innovate of any unauthorized access or use of which you become aware.  You will be responsible for all use and misuse of the Services that occurs under your or your user’s login credentials.

5. Restrictions. The access and use of the Services (including professional services) is subject to the terms of these TOS and any applicable Agreement terms Agreement and does not include the right to: (i) operate or use the Services on behalf of other entities or persons (e.g., operate as a service bureau) other than as may be approved by City Innovate; (ii) modify or otherwise make any derivative uses of the Services, or any portion thereof; or (iii) use of the Services other than for their intended purposes; (iv) access for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes; (v) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, or use the Services to access or use any of City Innovate’s intellectual property except as permitted under this Agreement, an order form, or technical documentation.

6. API. City Innovate may provide access to its application-programming interface (API) as part of the Services or under an order form. Subject to the other terms of this Agreement, City Innovate grants you a non-exclusive, nontransferable, terminable license to interact only with the Services as allowed by the API.

  • you may not use the API in a manner–as reasonably determined by City Innovate–that exceeds the capacity limits in the order form, constitutes excessive or abusive usage, or fails to comply with any part of the API. If any of these occur, City Innovate can suspend or terminate your access to the API on a temporary or permanent basis.
  • City Innovate may change or remove existing endpoints or fields in API results upon at least 30 days’ notice to you, but City Innovate will use commercially reasonable efforts to support the previous version of the API for at least 6 months. City Innovate may add new endpoints or fields in API results without prior notice to you.
  • The API may be used to connect the Services to hosted or on-premise software applications not provided by City Innovate (Non-City Innovate Applications).  You are solely responsible for development, license, access to and support of Non-City Innovate Applications, and your obligation under this Agreement are not contingent on access to or availability of any Non-City Innovate Application.

7. Updates to the Services, Pricing and SKUs. City Innovate regularly updates Services, pricing and SKUs.  For Services, some of these changes will occur automatically, while others may require you to schedule and implement the changes.  City Innovate will provide you with reasonable advance notification in this case.  The changes may also mean that you need to upgrade your equipment or technology to make use of the Services.  For changes made by City Innovate to its pricing and SKUs, this means that the changes will occur at your order form’s next renewal period and will require a new quote for existing Services.

8. Professional and Support Services. If you order from City Innovate professional, consultative, training or support services under this Agreement, such work is performed only in support of and part of the Services and is subject to the terms of this Agreement. City Innovate will be responsible for its personnel, its performance of such Services under an order, and require such personnel to have the necessary qualifications, clearances, certifications required to perform the work.  Unless otherwise agreed to by City Innovate in writing under an order form, City Innovate may subcontract the work without the prior written consent of the you.

9. Third-Party Platform Services. You may be provided with access to certain third-party applications or web-based components as part of the Services (example without limitation, third-party software applications stock photos, data, and third-party maps) (Third-Party Services). you must agree to such Third-Party Services contracts if you choose to use those third-party services.  Such Third-Party Services will be solely governed by such third-party service contracts, and are provided AS-IS.

10. Proof of Delivery. Proof of delivery for the access and license to the commercial software portion of the Services (SaaS) is upon the initial delivery of the login credentials to you.  If you order an upgrade to the SaaS, proof of delivery is the date that component of the SaaS under an order is made available for your use through your account or otherwise.  There is no proof of delivery required for renewals of the SaaS Service already delivered.  Proof of delivery for professional services will be made in writing to you by City Innovate’s professional services team as the specific professional service component thereof is delivered to you.

11. SERVICE LEVEL AGREEMENT & WARRANTY

a. City Innovate represents and warrants that (i) it and its licensors own or controls all of the rights to the Services; (ii) it will perform the Services in accordance with commercial best practices in accordance with industry standards; (iii) the Services will conform to City Innovate’s technical documentation; and (iv) to the best of its knowledge, the Services neither violates nor infringes the intellectual rights of third parties.  The sole and exclusive remedy for breach of these warranties is for City Innovate to re-perform or fix the Services at no additional cost so they conform to the technical documentation as applicable.

b. DISCLAIMER. EXCEPT AS SET FORTH UNDER THIS AGREEMENT, CITY INNOVATE DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. WHILE CITY INNOVATE TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICES, CITY INNOVATE DOES NOT GUARANTEE THAT THE SERVICES CANNOT BE COMPROMISED. YOU UNDERSTANDS THAT THE SERVICES MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.

12. PAYMENT.

a. Payment Terms.  Unless expressly set forth in an order form, (i) you must pay to City Innovate all fees as specified on the order form or statement of work, but if not specified then within 30 days of receipt of an invoice. If you are working through a reseller, you will pay the fees set forth in the applicable reseller order form to reseller in accordance with the terms and conditions set forth in the applicable reseller order form.

b. Services Fees.  Unless expressly set forth under an order form or statement of work, in consideration of City Innovate providing you access to the Services, fees for the Services are due and payable up front.  Except as otherwise set forth in this Agreement, fees for the Services are committed and are non-cancellable and non-refundable.

c. Late Fees.  If any undisputed Services fees are not received from you by the due date, then at City Innovate discretion, such charges may accrue late interest at the rate of 1% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.  you is responsible for the payment of all sales, use, withholding, VAT and other similar taxes.

d. Suspension for Non-Payment.  City Innovate may suspend the Services with ten (10) days’ prior notice due to (1) non-payment; (2) or a purchase order, if required for payment, is not received or is otherwise deficient.

e. Disputes.  If you dispute an invoice (or proof of delivery notice), you must do so within 15 days of the receipt thereof to [email protected].  The parties will work together in good faith to resolve such disputes within 30 days of City Innovate’s receipt of such notice.

13. MUTUAL CONFIDENTIALITY

a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). City Innovate’s Confidential Information includes without limitation the Services, its user interface design and layout, manuals, schemas, templates, manuals, technical documents, training materials, related work product and deliverables, and pricing information.  Your Confidential Information includes Your Content.

b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this Agreement.

c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information.  The Recipient may disclose Confidential Information to the extent required by law or court order but will provide Discloser with advance notice to seek a protective order.

d. Public Disclosure Laws.  To the extent this Section 13 is contrary to public disclosure laws of you, then those laws shall apply to the extent of the conflict only.

e. Privacy Policy. City Innovate will process Your Content in accordance with City Innovate’s Privacy Policy.

f. Data Protection.  Each party will comply with applicable data protection laws as applicable.  City Innovate will maintain commercially reasonable administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of all Your Content.

g. Independent Development.  City Innovate will not be restricted in any way under any order from providing any services or developing works that are functionally comparable to or compete with any you products or services, and City Innovate shall not be restricted in its use of ideas, concepts, know-how and techniques acquired or learned in the course of activities hereunder, or retained in the unaided memories of City Innovate personnel, provided City Innovate does not intentionally breach any confidentiality obligation to you in this Section (Mutual Confidentiality).

14. INTELLECTUAL PROPERTY

a. City Innovate Property. Except for the rights to access and use the Services expressly granted to you by this Agreement, City Innovate retains all right, title, and interest in and to the Services including all related intellectual property rights.  The Services are protected by applicable intellectual property laws in the U.S. and internationally. No grant or transfer of any right, title or interest to you is implied. Notwithstanding anything to the contrary, upon termination or expiration of this Agreement, all rights and licenses granted to you under this Agreement will terminate.

b. Your Content.  All of your data, materials and associated intellectual property rights that you provide to City Innovate by yourself or on your behalf while using the Services, remain your property (the “Your Content”). You represent, warrant, and covenant that all of Your Content and its provision to City Innovate is compliant with all applicable laws, rules and regulations, and you own all rights, title and interest in and to Your Content, or have otherwise secured all necessary rights in Your Content for its use. During your use of the Services, you grant to us, our agents, consultants and subcontractors, a royalty-free and nonexclusive, right and license to use Your Content, solely to the extent required for fulfilling our duties and obligations to you under this Agreement or as otherwise described in City Innovate’s Privacy Policy. Except as expressly provided for in this section, City Innovate will not acquire any right, title or interest in Your Content, and no right, title or interest will be implied. Unless otherwise agreed in writing, the rights and licenses granted to City Innovate will cease upon termination of the Services.

c. Open-Source Code. City Innovate does not own any open-source code that may be provided with the API or any professional or consultative-related work performed under an order form; it is provided as a convenience to you. Such opens source code is provided AS IS and is governed by the applicable open-source license that applies to such code.

d. Aggregate Anonymized Data. During and after the term of this Agreement, City Innovate may use and owns all aggregate anonymized data within the Services for purposes of enhancing the Services, aggregated statistical analysis, technical support and other business purposes.

e. Feedback. If you provide feedback or suggestions about the Services, then City Innovate (and those it allows to use its technology) may use such information without obligation to you.

15. TERM AND TERMINATION

a. Agreement Term.  This Agreement will govern your right to access and use of the Services. Except as set forth under the Transition Period, below, all your rights to access the Services will automatically expire upon the termination of this Agreement.

b. Order Form Term. The Services will be licensed for the set term under the order form.  Unless set forth in the order form, the Services term starts when you or your users are provided access to the Services.  You must receive a new quote for each renewal term from City Innovate.  If City Innovate does receive your renewal order form on or before the expiration date of the order form term set to expire, the Services will automatically terminate.  An order form term will not be extended for no charge due to non-readiness, or late renewals by you. 

c. Mutual Termination for Material Breach. If either party is in material breach of this Agreement, the other party may terminate this Agreement at the end of a written 30-day notice/cure period if the breach has not been cured. 

d. Termination for Convenience and Non-Appropriation of Funds.  You may terminate this Agreement for convenience with 30 days’ prior written notice to City Innovate, provided that all of your financial obligations under this Agreement and any order forms that are in effect prior to the effective date of termination remain in full force and effect as written. If you are not appropriated the necessary funds for a renewal term of an order form, then you may terminate such order form for non-renewal upon written notice to City Innovate, as soon as practical but in any event at least 15 days prior to the effective date of the renewal of such order.

e. DMCA.  In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, City has adopted a policy of terminating, in appropriate circumstances and at City Innovate’s sole discretion, Users and Customers who are deemed to be repeat infringers.  City Innovate may also at its sole discretion limit access to the Services terminate the accounts you if City Innovate receives complaints that Your Content infringes any intellectual property rights of others, whether or not there is any repeat infringement.

f. Transition Period; Return of Your Content. Within 60-days after termination, upon request City Innovate will make the Services available only for you to export Your Content.   After such 60-day period, City Innovate has no obligation to maintain Your Content (or any of your configurations related to the Service) and may destroy it. 

g. Return City Innovate Property Upon Termination. Upon termination of an order form (or this Agreement) for any reason, you must pay City Innovate for any unpaid amounts, and destroy or return all property of City Innovate. Upon City Innovate’s request, you will confirm in writing its compliance with this destruction or return requirement.

h. Suspension for Violations. To mitigate its damages, City Innovate may temporarily suspend the Services, a user’s access, or both, if it in good faith believes that, as part of using the Services, you, Your Content or a user has violated a law or this Agreement or may harm the technology or equipment of City Innovate or its licensors or sub-processors. City Innovate will attempt to contact you in advance. 

16. LIABILITY LIMIT

a. EXCLUSION OF INDIRECT DAMAGES. City Innovate is not liable for any indirect, special, incidental or consequential damages arising out of or related to this Agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue or anticipated cost savings), even if it knows of the possibility of such damage or loss or if the damage or loss is foreseeable.

b. TOTAL LIMIT ON LIABILITY. Except for City Innovate’s indemnity obligations, City Innovate’s total liability arising out of or related to this Agreement (whether in contract, tort or otherwise) does not exceed the amount paid by you within the 12-month period prior to the event that gave rise to the liability.  This limit excludes undisputed amounts outstanding payments to City Innovate under an order form.

c. EXCLUSIONS.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT, THIS LIMITATION WILL NOT APPLY TO EITHER PARTY TO THE EXTENT PROHIBITED BY LAW.

d. INDEMNITY – DEFENSE OF THIRD-PARTY CLAIMS. City Innovate will defend or settle any third-party claim against you to the extent that such claim alleges that City Innovate technology used to provide the Services violates a copyright, patent, trademark or other intellectual property right, if you, promptly notifies City Innovate of the claim in writing, cooperates with City Innovate in the defense, and allows City Innovate to solely control the defense or settlement of the claim.  Costs. City Innovate will pay infringement claim defense costs it incurs in defending you, and City Innovate negotiated settlement amounts, and court awarded damages. Process. If such a claim appears likely, then City Innovate may modify the Services, procure the necessary rights, or replace it with the functional equivalent. If City Innovate determines that none of these are reasonably available, then City Innovate may terminate the Services and refund any prepaid and unused fees. Exclusions. City Innovate has no obligation for any claim arising from: City Innovate’s compliance with your specifications; a combination of the Services with other technology or aspects where the infringement would not occur but for the combination; use of Your Content; or technology or aspects not provided by City Innovate. THIS SECTION CONTAINS YOUR EXCLUSIVE REMEDIES AND CITY INNOVATE’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.

 

17. Publicity
Subject to the prior written consent of the you and in accordance with applicable law, City Innovate may use your name, trademark or logo on City Innovate’s website, on publicly available customer lists, and in media releases to identify you as a customer of City Innovate.  Subject to pre-publication review, you may agree to participate with City Innovate in the development and publication of a press release announcing the launch of the Services, a case study, and reasonable requests for participation in live events highlighting your use of the Services.  You may withdraw your permission to use your name, trademark, or logo on any City Innovate materials at any time with 30 days’ prior written notice.

 

18. Other Terms

a. Notices. You consent to receive electronically any communications related to your use of the Services. We may communicate with you by email or by posting notices on the City Innovate website or through your primary administrator’s City Innovate’s account. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. All notices from City Innovate intended for receipt by you will be deemed delivered and effective when sent to the primary administrator’s email address provided to us. City Innovate’s address for deliveries is: City Innovate Inc., Attn: Legal Department, 44 Montgomery Street, Ofc 2-148, USA, or [email protected].

b. U.S. Federal Application. The Services and documentation is a “commercial item,” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government End Users acquire only those rights in the Services and the Documentation that are provided under the Agreement. 

c. Anti-Corruption Laws.  Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party or in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

d. No Assignment. Neither party may assign or transfer this Agreement or an order form to a third party, except that this Agreement with all order forms may be assigned, without the consent of the other party, (i) to an affiliate; or (ii) as part of a merger, or sale of substantially all the assets, of a party.   

e. Independent Contractors; No third-party beneficiaries. The parties are independent contractors with respect to each other. Nothing in this Agreement will be deemed or construed to create any third-party beneficiaries or otherwise give any third party any claim or right of action against any party to this Agreement.  Notwithstanding the foregoing, City Innovate shall be a third-party beneficiary to the Agreement between the you and a reseller solely as it relates to the applicable order form.

f. Enforceability and Force Majeure. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.

g. Money Damages Insufficient. Any breach by a party of this Agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.

h. Survival of Terms. Any terms that by their nature survive termination of this Agreement for a party to assert its rights and receive the protections of this Agreement, will survive (including without limitation, the confidentiality, limitation of liability, and indemnity terms). The UN Convention on Contracts for the International Sale of Goods does not apply.

i. Entire Agreement and Changes.  The terms of this Agreement, constitutes the entire Agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter.  You agree are not relying on any representation concerning this subject matter, oral or written, not included in this Agreement. No representation, promise or inducement not included in this Agreement is binding. No modification of this Agreement is effective unless both parties sign it.  No waiver is effective unless the party waiving the right signs a waiver in writing.  The parties agree that any term or condition stated in Customer’s purchase order or in any other of Customer’s order documentation (excluding reseller order forms) is void.  In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) order form, (2) these TOS; and (3) City Innovate’s technical documentation. Notwithstanding the foregoing, City Innovate may update these TOS from time to time in its sole discretion and it will become effective upon posting of those changes on City Innovate’s website.

j. Governing Law and Forum. This Agreement is governed by the laws of the State of California (without regard to conflicts of law principles) for any dispute between the parties under this Agreement or relating in any way to this Agreement.  Nothing in this Agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.