PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
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 you are participating in a free trial or beta, the term of such Services will be determined by the parties by an order form or otherwise in writing. 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.
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), responsibility to take all reasonable steps necessary to cease the unauthorized access.
Further, in the event of actual or suspected unauthorized use or use in violation of this Agreement (including the Appropriate Use Policy), City Innovate may suspend the account and/or 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 reinstate 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 unauthorized access that was not caused by your actions or inactions or a breach of the Agreement by you.
3. Right to Access (Licensed Users). 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 set forth in the order form solely for your internal business purposes (except as expressly permitted herein) and solely in accordance with this Agreement and the Appropriate Use Policy. The right to access and use the Services granted by this section extends to any of your agents and contractors who are granted User licenses for the Services, 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.
4. Right to Access (Vendor Users). Certain SaaS products may allow your vendors to access restricted segments of your instance of the SaaS. If you order these products, you may also allow your vendors to access the Service (excluding Third-Party Services, defined below) as part of this specific bundled product or service offering, provided that you: (1) present terms at least as protective of City Innovate’s interests as those set forth in this Agreement and require vendors to consent to such terms, (2) ensure compliance by vendors with the terms of this Agreement and the Appropriate Use Policy, including terminating any vendors who violate the terms, (3) will be liable and responsible for any violations of the Agreement by your vendors as if those violations were committed by you, and (4) remain responsible for payment of all fees due to City Innovate, regardless of whether or not you have collected any fees from your customers. All vendor data submitted and processed by the Service is considered Your Content (defined below) under this Agreement.
5. 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, including by third parties using the Services on your behalf.
6. Restrictions/No Competitive Use. City Innovate may remotely monitor and audit usage of the Services to support and ensure compliance with the terms of this Agreement. Use of the Services is limited to use on behalf of your organization or your The access and use of the Services (including professional services) is subject to the terms of the Agreement terms 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 (to be granted or denied in City Innovate’s discretion); (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, creating or enhancing a competitive product, or for any other benchmarking or competitive purposes; (v) disassemble, reverse engineer, or decompile the Services; (vi) remove or modify a copyright or other proprietary rights notice in the Services; (vii) use the Services to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or otherwise engage in a malicious act or disrupt its security, integrity, or operation; (viii) access or disable any City Innovate or third-party data, software, or network; or (ix) 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 the intellectual property of City Innovate or third parties except as permitted under this Agreement, an order form, or technical documentation.
7. API and Connectors. City Innovate may provide access to one or more application-programming interfaces (API or Connectors) as part of the Services or under an order form. Subject to the other terms of this Agreement, City Innovate grants you a limited, 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 that exceeds the capacity limits in the order form, constitutes excessive or abusive usage, or fails to comply with any part of the API, all as reasonably determined by City Innovate. If any of these occur, City Innovate can suspend or terminate your access to the API on a temporary or permanent basis immediately without notice.
- City Innovate may change or remove existing endpoints or fields in API results upon at least 30 days’ notice to you, unless faster changes are required due to security, privacy or legal issues. City Innovate will use commercially reasonable efforts to support the previous version of the API for at least 6 months (unless such previous version cannot be maintained due to security, privacy or legal issues). 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 your use and access to Non-City Innovate Applications, which are subject to your separate agreement with the applicable third party software application providers. Your obligations under this Agreement are not contingent on access to or availability of any Non-City Innovate Applications and City Innovate makes no representations or warranties that the Services will always be able to connect to a particular Non-City Innovate Application.
8. 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 the event you have to implement such changes. 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, the changes will become effective upon renewal of your order form and will require a new quote for existing Services.
9. 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. City Innovate may subcontract the work without the prior written consent of the you.
11. Proof of Delivery of the SaaS. You agree that proof of delivery and acceptance 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 and acceptance is the date that component of the SaaS under an order is made available for your use through your account or otherwise.
12. Proof of Delivery of the Professional Services (Time and Materials). You agree that proof of delivery and acceptance of professional services portion of your order is upon delivery and acceptance of each milestone or activity under a SOW where services are rendered.
13. Proof of Delivery of the Professional Services (Monthly TAMS). You agree that proof and delivery and acceptance of TAMS under an order (if any) upon your request for access and performance of Services of the TAM for the month in which access and Services were provided. TAMS will not be billed for months in which no access or Services by the TAM were not provided.
14. Service Level Agreement and Warranty.
a. City Innovate Representations and Warranties.
City Innovate represents and warrants that (i) it will perform the Services in accordance with industry standards; and (ii) the Services will materially conform to City Innovate’s most current technical documentation. 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. High Risk Activity.The Services (including Third-Party Services) are not designed for any purpose requiring fail-safe performance, including stock trading, financial transaction processing, operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, weapons systems, or other management or operation of hazardous facilities or applications for which failure could result in death, personal injury, or severe physical, property, or environmental damage (each, a High Risk Activity). City Innovate, its licensors, and suppliers expressly disclaim all warranties of fitness for any such use.
c. DISCLAIMER. EXCEPT AS SET FORTH UNDER THIS AGREEMENT, CITY INNOVATE AND ITS LICENSORS DISCLAIM 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.
a. Payment Terms. Unless expressly set forth in an order form, you must pay to City Innovate all fees as specified on the order form or statement of work within 30 days of receipt of an invoice (unless another timeframe is set forth in the order form or statement of work). If you are purchasing through a reseller, you will pay the fees set forth in the applicable reseller order form directly to the reseller in accordance with the terms and conditions set forth in the applicable reseller order form.
b. Services Fees. Unless expressly set forth under this Agreement, 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’s 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 are 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; or (2) failure to provide a satisfactory purchase order (if one is required for payment).
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.
16. 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 16 is contrary to public disclosure laws applicable to government or regulatory entities, then those laws shall apply to the extent of the conflict only.
f. Data Protection. Each party will comply with 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 (defined below).
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 owed to you.
17. . 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. Third-Party Services. Third-Party Service Providers retain all right, title, and interest in and to their Third-Party Services including all related intellectual property rights. The Third-Party 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 to Third-Party Services under this Agreement will terminate.
d. 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 open-source code is provided AS IS and is governed by the applicable open-source license that applies to such code.
e. Aggregated, Anonymized Data. During and after the term of this Agreement, City Innovate may use and own all aggregated, anonymized data within the Services for purposes of enhancing the Services, aggregated statistical analysis, technical support and other business purposes.
f. 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.
18. 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, delays caused by, or late renewals by you.
c. 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 payment 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. City Innovate shall not be responsible for refunding any payments made. If you have 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 and terminate the accounts 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. For up to 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 will destroy it in accordance with its retention policies
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 in your possession. 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 but is not obligated to do so in the event of imminent harm.
19. Liability Limit
a. EXCLUSION OF INDIRECT DAMAGES. NEITHER CITY INNOVATE NOR ITS LICENSORS ARE 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 (AND ITS LICENSORS’) 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. 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, 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: Third-Party Services; 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.
e. INDEMNITY – DEFENSE OF THIRD-PARTY CLAIMS BY YOU. You will defend or settle any third-party claim against you to the extent arising out of your use of the Services or Your Content, if City Innovate promptly notifies you of the claim in writing, cooperates with you in the defense, and allows you to solely control the defense or settlement of the claim. Costs. You will pay infringement claim defense costs it incurs in defending City Innovate, you negotiated settlement amounts, and court awarded damages.
Subject to the prior written consent of you and in accordance with applicable law, City Innovate may use our 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.
21. 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 notice deliveries is: City Innovate Inc., Attn: Legal Department, 425 California Street, Suite 1350, San Francisco, CA 94104 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 this Agreement or the order form.
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. Equitable Remedies. The receiving party’s disclosure of Confidential Information except as provided in the Agreement, or a party’s infringement or misappropriation of the other party’s Intellectual Property Rights may result in irreparable injury for which a remedy in money damages may be inadequate. In the event of such actual or threatened disclosure, infringement or misappropriation, the aggrieved party may seek an injunction to prevent the breach or threatened breach without the necessity of proving irreparable injury or the inadequacy of money damages, in addition to remedies otherwise available to disclosing party at law or in equity.
e.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.
f. Independent Contractors; 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, (i) City Innovate shall be a third-party beneficiary to the Agreement between the you and a reseller or distributor solely as it relates to the applicable order form; and (ii) Third-Party Service Providers and licensors are granted third party beneficiary rights to this Agreement as it relates to the Third-Party Services incorporated in or otherwise managed by City Innovate as part of the Services.
g. 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.
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).
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. The UN Convention on Contracts for the International Sale of Goods does not apply to this Agreement.