Last revised on: August 4, 2020
Subject to the provisions of this Agreement and payment of the applicable fees, Civitech grants to Customer a revocable, non-exclusive, personal, limited, non-transferable, non-sublicensable license to use the Platform for Customer’s internal use only and only in the ordinary course of business. Customer shall be responsible, at its sole expense, for procuring, operating, and maintaining the computer hardware, systems software, telecommunications applications and providers, and other items necessary or appropriate to enable it to exercise the rights and licenses hereunder. Customer is fully responsible for its account, including use of the account by any third party, and maintaining the confidentiality of its passwords. Customer represents that the information provided via the Platform for registration is true, valid, complete and up-to-date in all respects. Customer shall not make its account accessible for use by other persons or entities.
a. Civitech Materials. Civitech is the owner of the Platform and all intellectual property rights contained therein. Specifically, as between Civitech and Customer, all title, ownership rights, and intellectual property rights in and to the Platform and all methodology, user interfaces, data, algorithms, tools, documentation, specifications, trademarks, logos, content, and computer code therein or associated therewith (collectively, the “Civitech Materials”), including the design, structure, selection, coordination, expression, “look and feel,” and arrangement of the Civitech Materials are, and will at all times remain, the sole and exclusive property of Civitech and/or its licensors and is protected by trade dress, trade secret, copyright, patent, and trademark laws, and other intellectual property rights. Civitech and/or its licensors will hold all title, ownership rights, and intellectual property rights to any modifications, updates, copies, translations, improvements, adaptations or incorporations of the Civitech Materials. Under no circumstances will you have any rights of any kind in or to the Civitech Materials, other than the right to use the Civitech Materials in accordance with this Agreement.
b. Customer Content. Customer is the owner of the data, content, materials and information it submits or provides through the Platform (collectively, “Customer Content”). For the avoidance of doubt, all third-party data, content, materials and information provided by Customer into the Platform is included as Customer Content. Customer retains all right, title and interest in and to the Customer Content that it submits or provides and all intellectual property rights embodied therein. By providing Customer Content, Customer represents that it has the full legal right to provide the Customer Content and that it has provided all disclosures and obtained all necessary rights, consents and permissions to collect, share and use the Customer Content as contemplated in this Agreement. Customer further represents and warrants that use of the Customer Content will not: (a) infringe any intellectual property rights of any person or entity or any rights of publicity, personality, or privacy of any person or entity; (b) violate any law, statute, ordinance, or regulation; (c) be defamatory, libelous or trade libelous, unlawfully threatening, or unlawfully harassing; (d) contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data or personal information, or that facilitate or enable such or that are intended to do any of the foregoing; or (e) constitute disclosure of any confidential information owned by any third party. Customer is solely responsible for the content, legality, and accuracy of all Customer Content.
4. Storage and Use of Customer Content; Sensitive Personal Information. Civitech will maintain and enforce administrative, technical, and physical safeguards designed to reasonably protect the confidentiality, availability, and integrity of Customer Content. Civitech will promptly report to you any compromise of security that it becomes aware of with regard to Customer Content. Civitech shall store and transmit Customer Content as necessary in connection with the provision of the Platform or at Customer’s direction. To that end, Customer hereby grants to Civitech a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Content solely to the extent necessary to provide the Platform to Customer or as otherwise authorized by Customer. Notwithstanding the foregoing, Customer agrees not to use the Platform to collect, store, process or transmit any of the following: (i) credit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”), or other financial account numbers or credentials; (ii) protected health information as defined and regulated by the Health Insurance Portability and Accountability Act (“HIPAA”); (iii) social security numbers, driver’s license numbers or other government issued ID numbers; or (iv) other personal or sensitive information subject to regulation or protection under applicable laws, rules, and regulations (collectively, “Sensitive Personal Information”). Except as otherwise explicitly set out herein, Civitech shall have no liability under this Agreement for Sensitive Personal Information. You are solely responsible for the security or functionality of the systems used by You to access the Platform.
5. Third Party Connections and Content.
The Platform may enable you to share Customer Content or otherwise interact with third parties for your convenience. Interacting with such third parties, and any other material or content on and made available by such third parties, is entirely at your own risk. Civitech does not recommend and expressly disclaims any responsibility for the content, the accuracy of the information, or the quality of products or services provided by any third parties or the transactions you conduct or enter into with third parties.
6. Unauthorized Activities.
Customer shall not (a) sell, rent, display, sublicense, summarize, or otherwise provide any Civitech Materials to any other person or entity; (b) publish any Civitech Materials within the meaning of the United States Copyright Act; (c) refer to, reproduce, distribute, make available, or use any item of the Civitech Materials as part of any effort to develop any service or product having any characteristics, attributes, expressions, or quality similar to the services or products provided by Civitech herein or to compete with Civitech; (d) reverse engineer, copy, modify, create derivative works, alter, maintain, enhance, remove, or replace data or otherwise modify the Platform or other Civitech Materials; (e) make any unauthorized use or disclosure of any Civitech Materials which is in violation of any laws, governmental regulations or tariffs; (f) upload or transmit through the Platform any computer viruses, trojan horses, worms or anything else designed to interfere with, interrupt or disrupt the normal operating procedures of a computer; or (g) remove from, alter, modify, or deface any copyright or other proprietary notices contained on, affixed to, or encoded or recorded in any item of the Civitech Materials, or fail to preserve all copyright and other proprietary notices in all copies of Civitech Materials made by Civitech. With the exception of your printing and internal use of any printable reports contained within and accessed through the Platform, you further agree not to modify, disclose, distribute, copy, exchange, disseminate, archive, reproduce, transmit, publicly display, publicly perform, broadcast, retransmit, publish by hard copy or electronic means, adapt, edit, compile or create derivative works of the Platform or the other material contained therein, or otherwise use the Platform or other Civitech Materials in any way for any purpose without prior written approval from Civitech. Customer acknowledges and agrees that the unauthorized use of the Civitech Materials could cause irreparable harm to Civitech and that in the event of such unauthorized use, Civitech shall be entitled to an injunction in addition to any other remedies available at law or in equity. All rights not expressly granted are reserved by Civitech.
Civitech and Customer acknowledge that by reason of their relationship under this Agreement, they may have access to and acquire knowledge from, material, data, systems and other information concerning the operation, business, projections, market goals, financial affairs, products, customers and intellectual property rights of the other party that may not be accessible or known to the general public (“Confidential Information”). Confidential Information includes: (i) the terms of this Agreement; (ii) Civitech Materials; and (iii) Customer Content. The party receiving such Confidential Information (the “Receiving Party”) shall permanently hold, and cause its personnel to hold, all Confidential Information of the party disclosing such information and materials (the “Disclosing Party”) in strict confidence, except that the Receiving Party may disclose Confidential Information that is required to be disclosed by governmental agencies, regulatory authorities, or pursuant to court order, but only to the extent such disclosure is required by law and only if the Receiving Party provides prompt prior written notice to the Disclosing Party of the disclosure and cooperates with and assists the Disclosing Party’s efforts to avoid or limit the disclosure. The Receiving Party shall limit the duplication and use of the Disclosing Party’s Confidential Information to the exercise of the rights explicitly granted to it under this Agreement and shall limit access to and possession of Confidential Information only to those of its employees whose exercise of such rights reasonably requires such access or possession. The Receiving Party shall advise all such persons before they receive access to or possession of any Confidential Information of the confidential nature of the Confidential Information. Any duplication, use, disclosure, or other act or omission by any person or entity that obtains access to or possession of Confidential Information through the Receiving Party that would be a breach of this Agreement if committed by the Receiving Party shall be a breach of this Agreement by the Receiving Party for which the Receiving Party shall be responsible. Notwithstanding anything in this Agreement to the contrary, Civitech shall have the right to use, in any way, any aggregate data (i.e., metadata) gathered in the course of its business operations, provided that the anonymity of the data is preserved and protected. For the avoidance of doubt, Civitech shall not release any personally identifiable data, including any data that could potentially identify a particular individual or linked to a specific Customer. “Confidential Information” does not include items that were (a) possessed by the Receiving Party prior to receipt or availability pursuant to this Agreement (other than through prior disclosure or availability by the Disclosing Party); (b) independently developed by the Receiving Party without the benefit of disclosure or availability of any of the Disclosing Party’s Confidential Information; (c) published or available to the general public other than through a breach of this Agreement or breach by a third Party of its confidentiality obligations to the Disclosing Party; or (d) obtained by the Receiving Party from a third party with a valid right to disclose or make available such Confidential Information (provided that such third party is not under a confidentiality obligation to the Disclosing Party).
8. Termination. Either party may terminate this Agreement immediately by giving written notice of termination to the other party and without prejudice to any other rights or remedies such party may have if the other party breaches any of its material obligations under this Agreement and does not cure the breach within 30 days after written notice reasonably describing the breach.
9. Availability; Nature of the Internet.
Civitech uses reasonable efforts to ensure that the Platform is generally available 99% of the time, excluding the Excluded Downtime as defined in the SLA. Civitech will provide notice of scheduled maintenance. However, there may be occasions when access to the Platform will be interrupted or unavailable. Civitech will use reasonable commercial efforts to minimize such disruption where it is within Civitech’s reasonable control. Customer agrees that Civitech shall not be liable for any modification, suspension or discontinuance of the Platform. You understand that the technical processing and transmission of any Platform content may be involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Please be advised that Civitech strives to use best industry practices to secure Customer Content but, given the unpredictable nature of the Internet, Civitech does not guarantee that any information sent from the Platform will be secure during transmission, nor can Civitech guarantee the confidentiality of any communication or material transmitted to Civitech via the Platform or the Internet, including, for example, personal information.
10. Third Party Hosting.
You acknowledge that the Platform will be hosted and delivered from a data center operated by Google or another provider which is subject to industry-standard external auditing; provided that Civitech shall provide thirty (30) days prior written notice to you of any material change to the operation of the data center. Such data center will maintain a written information security program incorporating reasonable administrative, physical and technical safeguards, and compliant with all applicable privacy and data security laws and regulations, to protect the security and integrity of the Platform. Civitech shall use only data centers that engage a third party auditor to perform, no less than on an annual basis, a Statement on Standards for Attestation Engagements No. 16 (SSAE 16) SOC 2, Type II audit of their operations, information security program and disaster recovery/business continuity plan.
The Civitech Materials, including the Platform and the information and data provided in connection with the Platform, are for informational purposes only. Civitech, its subsidiaries, and affiliates are not responsible for and do not guarantee the accuracy or completeness of any data, information, services, products or other items contained within or provided by the Civitech Materials, which relies in part on the accuracy and completeness of the materials and information Civitech receives from Customer and third parties. Civitech shall not be liable for or in breach of any provision of this Agreement directly or indirectly resulting from any inaccuracies contained in any of the data or information provided to Civitech by you and/or by third parties. EXCEPT AS OTHERWISE PROVIDED HEREIN, CIVITECH DISCLAIMS ALL OTHER LIABILITY AND RESPONSIBILITY. THE PLATFORM, CIVITECH MATERIALS, CUSTOMER CONTENT, SERVICES, PRODUCTS, INFORMATION AND OTHER MATERIALS ON, IN AND MADE AVAILABLE BY OR ON BEHALF OF Civitech ARE MADE AVAILABLE “AS IS” AND “WITH ALL FAULTS.” USE OF THE PLATFORM AND OTHER Civitech MATERIALS IS ENTIRELY AT YOUR OWN RISK. Civitech AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES, AND DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE PLATFORM, Civitech MATERIALS, THE CUSTOMER CONTENT, DATA AND OTHER SERVICES, PRODUCTS AND MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE PLATFORM, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEMS INTEGRATION, NON-INTERFERENCE, QUALITY, TITLE, AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, COMPLETENESS AND EFFORT WITH REGARD TO THE PLATFORM, CUSTOMER CONTENT, SERVICES, PRODUCTS, DATA AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE PLATFORM, IS WITH CUSTOMER.
12. LIMITED LIABILITY.
Civitech WILL NOT BE LIABLE FOR ANY DAMAGES EXCEPT AS EXPLICITLY SET OUT HEREIN. Civitech AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, EXTRA-CONTRACTUAL, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING LOST REVENUES OR LOST PROFITS, WHICH MAY OR DOES RESULT FROM THE USE OF, ACCESS TO, OR INABILITY TO USE THE PLATFORM, CUSTOMER CONTENT, SERVICES, PRODUCTS, DATA AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE PLATFORM, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT CUSTOMER OR Civitech HAD BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES, AND EVEN IF THE REMEDIES OTHERWISE AVAILABLE FAIL OF THEIR ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF Civitech AND ITS LICENSORS TO CUSTOMER OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH, BASED UPON, OR ARISING FROM THE PLATFORM, CUSTOMER CONTENT, SERVICES, PRODUCTS, DATA OR OTHER MATERIALS OFFERED IN CONNECTION THEREWITH EXCEED THE PRICE PAID BY YOU DURING THE PRECEDING YEAR FOR USE OF THE PLATFORM. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE TOTAL LIABILITY OF Civitech AND ITS LICENSORS SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).
Customer will defend, indemnify, and hold harmless Civitech, its affiliates and licensors, and their officers, directors, agents and employees from any and all third-party claims, actions, demands, liabilities, costs or expenses, including reasonable attorneys’ fees, resulting from (i) Customer’s access to and use of the Civitech Materials, except to the extent arising from a breach by Civitech of this Agreement; (ii) Customer’s fraud, violation of law, negligence, or willful misconduct; (iii) use of the Customer Content; and (iv) breach of Customer’s representations, warranties or other obligations herein. Customer will not consent to the entry of any judgment or enter into any settlement or compromise affecting Civitech, to the extent that the judgment, settlement or compromise requires the admission of liability, fault, or wrongful act or conduct on the part of Civitech and/or otherwise involves more than the payment of money by Customer, without the prior written consent of Civitech.
14. Changes to this Agreement.
Upon thirty (30) days prior written notice to Customer, Civitech reserves the right at any time to modify, alter or update the Civitech Materials and/or this Agreement. Civitech will notify you of any new or revised terms to this Agreement, including information regarding the location of the new or revised terms and conditions. Customer’s use of the Platform following notice of any changes means that Customer agrees to follow and be bound by the terms as changed. It is the Customer’s obligation to keep apprised of changes to this Agreement.
Customer may not transfer or assign any of its rights or obligations hereunder to any other party in any manner (by assignment, operation of law or otherwise) unless Customer has obtained written consent from Civitech. If Customer attempts to transfer or assign any of its rights or obligations hereunder without Civitech’s consent, the transfer or assignment will be ineffective, null, and void (and Customer will be in material breach of this Agreement).
16. Governing Law and Jurisdiction.
This Agreement represents the entire agreement between Customer and Civitech with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous written and oral representations, understandings, and agreements, express and implied, and will be governed by and construed in accordance with the laws of the District of Columbia, without reference to its conflict of law rules. In any dispute arising under this Agreement shall be submitted exclusively to binding arbitration before three (3) arbitrators in the District of Columbia, in accordance with the rules of the American Arbitration Association, and each party consents to such exclusive forum; provided that nothing herein shall prevent either party from seeking a preliminary injunction or other equitable relief in a judicial proceeding to prevent irreparable harm pending arbitration. EACH PARTY HEREBY IRREVOCABLY (i) CONSENTS AND SUBMITS TO THE PERSONAL JURISDICTION OF THE SPECIFIED FORUMS, AND VENUE THEREIN AND (ii) VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BETWEEN THEM BASED DIRECTLY OR INDIRECTLY ON THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY RELATED TO THIS AGREEMENT. The application of the Uniform Computer Information Transactions Act is expressly excluded.
17. Force Majeure.
Notwithstanding anything to the contrary in this Agreement, except for Customer’s obligation to pay amounts due, neither party will be deemed to be in default of any provision of this Agreement for any delay, error, failure, or interruption of performance due to any act of God, terrorism, war, insurrection, riot, boycott, strike, or other labor or civil disturbance, interruption of power service, interruption of communications services, problems with the Internet, epidemic, act of any other person not under the control or direction of such party, or other similar cause. The party subject to any of the foregoing events shall give the other party reasonable written notification of any resulting material or indefinite delay.
The Platform is owned, managed and controlled from within the United States. Without limiting anything else, Civitech makes no representation that the Civitech Materials, including the Platform, services, products, information or other materials available on, in, or through the Platform, are appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited. Those who choose to access the Civitech Materials from other locations do so on their own volition and are responsible for compliance with applicable laws. The waiver or failure of Civitech to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any of other rights established under this Agreement. In the event one or more of the provisions of this Agreement or the application thereof to any circumstance are found to be invalid or unenforceable to any extent, the remaining provisions shall continue in full force and effect. The following provisions of this Agreement will survive expiration or termination of this Agreement: Sections 3, 6, 7, 9, 11, 12, 13, 16, 18. Headings used in this Agreement are for reference only and shall not affect the interpretation of this Agreement. The parties do not intend, nor shall any clause be interpreted, to create under this Agreement any obligations of either Civitech or Customer in favor of, or benefits to, or rights in, any third party. When used herein, the words “includes” and “including” and their syntactical variations shall be deemed followed by the words “without limitation.”