Terms of Service

This Customer Agreement (SaaS) (this “Agreement”) is between CivicNexus, Inc., a Delaware corporation (“CivicNexus”), and you (“Customer”) and is effective as of the date you use our service (the “Effective Date”).

Background

CivicNexus has developed and makes available a SaaS-based legislative monitoring and engagement platform (the “CivicNexus Product”).

1.0 Definitions

1.1 Defined Terms

The following terms, when used in this Agreement will have the following meanings:

“Affiliate” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists, wherein “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity or power to direct an entity’s management.

“Confidential Information” means any information disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information that (a) is in the public domain through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

“Customer Materials” means any data, content or materials that Customer (including its Users) submits to its CivicNexus Product accounts.

“Documentation” means CivicNexus’s standard usage documentation for the CivicNexus Product.

“Order Form” means an order form, quote or other similar document that sets forth the specific CivicNexus Product to which Customer is subscribing, pricing therefor, permitted number of users and subscription term, and that references this Agreement and is mutually executed by the parties. Unless otherwise specified there within, the Order Form is deemed to be executed as of this agreement’s Effective Date.

“User” means anyone that Customer allows to use its accounts for the CivicNexus Product, consisting of (a) Customer’s employees and contractors (solely for purposes of providing services to Customer) and (b) others if permitted in the Documentation or an Order Form.

2.0 CivicNexus Product

2.1 Provision of CivicNexus Product

Subject to this Agreement, CivicNexus will make the CivicNexus Product available to Customer pursuant to this Agreement and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the CivicNexus Product for its internal business purposes during the applicable subscription term. Customer may permit Users to use the CivicNexus Product on its behalf. Customer is responsible for provisioning and managing its User accounts, for its Users’ actions through the CivicNexus Product and for their compliance with this Agreement.

2.2 Data Security

CivicNexus will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Materials; (ii) protect against threats or hazards to the security or integrity of Customer Materials; and (iii) prevent unauthorized access to Customer Materials.

2.3 Customer Responsibilities

1. Customer acknowledges that CivicNexus’s provision of the CivicNexus Product is dependent on Customer providing all reasonably required cooperation, and Customer will provide all such cooperation in a diligent and timely manner.

2. Customer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the CivicNexus Product and notify CivicNexus promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the CivicNexus Product and (ii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the CivicNexus Product, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and CivicNexus will have no liability for such failure (including under any service level agreement). As between the parties, Customer is responsible for the content and accuracy of Customer Materials.

2.4 Affiliates

Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and CivicNexus and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.

3.0 Fees

3.1 Fees

Customer will pay CivicNexus the fees set forth in the applicable Order Form. Customer will pay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt of the applicable invoice (the “Payment Period”), unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified. Except as otherwise specified herein or in such Order Form, payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. If Customer disputes an invoice in good faith, it will notify CivicNexus within the Payment Period and the parties will seek to resolve the dispute as soon as reasonably practicable. CivicNexus may provide Customer with written notice of a change or increase in pricing for such Order Form at least sixty (60) days prior to the end of the then-current subscription term, and such modified pricing will become effective thereafter at the time of the renewal.

3.2 Late Payment

CivicNexus may suspend access to the CivicNexus Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date.

3.3 Taxes

All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively, “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of CivicNexus. Customer will not withhold any Taxes from any amounts due to CivicNexus.

4.0 Proprietary Rights

4.1 Proprietary Rights

As between the parties, CivicNexus exclusively owns all right, title and interest in and to the CivicNexus Product, System Data and CivicNexus’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Materials, output produced specifically for Customer via the use of the CivicNexus Product by Customer (which will constitute Customer Materials for purposes hereof) and Customer’s Confidential Information. “System Data” means data collected by CivicNexus regarding the CivicNexus Product that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the CivicNexus Product.

4.2 Feedback

Customer may from time to time provide CivicNexus suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the CivicNexus Product. CivicNexus will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. CivicNexus will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services. All Feedback is provided “AS IS” and CivicNexus will not publicly identify Customer as the source of Feedback without Customer’s permission.

4.3 Product Improvement

Customer acknowledges that a fundamental component of the CivicNexus Product is the use of machine learning for the purpose of improving and providing CivicNexus’s products and services. Notwithstanding anything herein, Customer agrees that CivicNexus is hereby granted the right to retain and use (during and after the term hereof) anonymized Customer Materials to train its algorithms internally through machine learning techniques for such purpose.

5.0 Confidentiality; Restrictions

5.1 Confidentiality

Each receiving party agrees that it will use the Confidential Information of the disclosing party solely in accordance with the provisions of this Agreement and it will not disclose the same to any third party without the disclosing party’s prior written consent, except as otherwise permitted hereunder. However, the receiving party may disclose such Confidential Information (a) to its employees and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers.

5.2 Technology Restrictions

Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the CivicNexus Product; (b) attempt to probe, scan or test the vulnerability of the CivicNexus Product, breach the security or authentication measures of the CivicNexus Product without proper authorization or wilfully render any part of the CivicNexus Product unusable; (c) use or access the CivicNexus Product to develop a product or service that is competitive with CivicNexus’s products or services or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign the CivicNexus Product or otherwise offer the CivicNexus Product on a standalone basis; or (e) otherwise use the CivicNexus Product in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.

5.3 Injunctive Relief

In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.

6.0 Warranties and Disclaimers

6.1 Mutual Warranties

Each party warrants that (a) it has the legal power and authority to enter into this Agreement and (b) it will use industry-standard measures to avoid introducing viruses or other malicious code into the CivicNexus Product.

6.2 CivicNexus Warranty

CivicNexus warrants that  the CivicNexus Product will perform materially as described in the Documentation and CivicNexus will not materially decrease the overall functionality of the CivicNexus Product during the applicable subscription term (the “Performance Warranty”). CivicNexus will use reasonable efforts to correct a verified breach of the Performance Warranty reported by Customer. If CivicNexus fails to do so within 30 days after Customer’s warranty report, then either party may terminate the applicable Order Form as it relates to the non-conforming CivicNexus Product, in which case CivicNexus will provide Customer a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term. To receive these remedies, Customer must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the CivicNexus Product. These procedures are Customer’s exclusive remedies and CivicNexus’s sole liability for breach of the Performance Warranty.

6.3 Customer Warranty

Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit CivicNexus to use the same as contemplated hereunder.

6.4 Disclaimers

EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

6.5 No-Charge Products

From time to time, Customer may have access to free accounts or trial use, pre-release, alpha or beta versions or features (collectively, “No-Charge Products”) offered by CivicNexus. Customer’s use of No-Charge Products is subject to any additional terms that CivicNexus may specify. Except as otherwise set forth in this Section, this Agreement applies to No-Charge Products. CivicNexus may modify or terminate Customer’s right to use No-Charge Products at any time. NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CIVICNEXUS DISCLAIMS ALL OBLIGATIONS, WARRANTIES AND LIABILITIES WITH RESPECT TO NO-CHARGE PRODUCTS, INCLUDING ANY SERVICE LEVEL OR INDEMNITY OBLIGATIONS.

7.0 Indemnification

7.1 Indemnity by CivicNexus

CivicNexus will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the CivicNexus Product as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by CivicNexus) in connection with any such Claim; provided that (a) Customer will promptly notify CivicNexus of such Claim, (b) CivicNexus will have the sole and exclusive authority to defend and/or settle any such Claim (provided that CivicNexus may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with CivicNexus in connection therewith. If the use of the CivicNexus Product by Customer has become, or in CivicNexus’s opinion is likely to become, the subject of any claim of infringement, CivicNexus may at its option and expense (i) procure for Customer the right to continue using and receiving the CivicNexus Product as set forth hereunder; (ii) replace or modify the CivicNexus Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide Customer a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term. CivicNexus will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) designs, guidelines, configurations, plans or specifications provided by Customer; (B) use of the CivicNexus Product by Customer not in accordance with this Agreement; (C) modification of the CivicNexus Product by or on behalf of Customer; (D) Customer Materials, or (E) the combination, operation or use of the CivicNexus Product with other products or services where the CivicNexus Product would not by itself be infringing (clauses (A) through (E), “Excluded Claims”). This Section states CivicNexus’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.

7.2 Indemnification by Customer

Customer will defend CivicNexus against any Claim made or brought against CivicNexus by a third party arising out of any Excluded Claims, and Customer will indemnify CivicNexus for any damages finally awarded against CivicNexus (or any settlement approved by Customer) in connection with any such Claim; provided that (a) CivicNexus will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without CivicNexus’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases CivicNexus of all liability) and (c) CivicNexus reasonably cooperates with Customer in connection therewith.

8.0 Limitation of Liability

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACH OF SECTION 5, GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

9.0 Termination

9.1 Term

The term of this Agreement will commence on the Effective Date and continue until terminated as set forth below. The initial term of any Order Form will begin on the Order Form Effective Date of such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.

9.2 Termination Rights

Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.

9.3 Survival

Upon expiration or termination of this Agreement (a) all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to payment, proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below, and (b) except as set forth herein, each receiving party will return or destroy, at the disclosing party’s option, any Confidential Information of such disclosing party in the receiving party’s possession or control.

10.0 General

10.1 Publicity

Customer agrees that CivicNexus may refer to Customer’s name and trademarks in CivicNexus’s marketing materials and website; however, CivicNexus will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).

10.2 Assignment

Neither party hereto may assign this Agreement without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

10.3 Amendment; Waiver

No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

10.4 Relationship

Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

10.5 Unenforceability

If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.

10.6 Governing Law

This Agreement will be governed by the laws of the State of Delaware, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

10.7 Notices

Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the parties must be sent to the respective address set forth in the signature blocks below, or such other address designated pursuant to this Section.

10.8 Entire Agreement

This Agreement comprises the entire agreement between Customer and CivicNexus with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by CivicNexus, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.

10.9 Force Majeure

Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations (excluding payment obligations) due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

10.10 Interpretation

For purposes hereof, “including” means “including without limitation”.

10.11 Government Terms

Reserved.

IN WITNESS WHEREOF, the duly authorized representatives of each of the parties hereto have executed this Agreement as of the Effective Date.

CivicNexus:
By:
Name: Seiichi Nagai
Title: CEO
Address for noticeCivicNexus, Inc.1200 Ala Moana Blvd STE 380: Care of Boxjelly Honolulu, HI 96814

Exhibit B

SLA

Availability Commitment.

The CivicNexus Product will be Available 99.5% of the time, measured on a calendar monthly basis (the “Availability Commitment”). “Availability” means that the CivicNexus Product is accessible to Customer. Availability measures will not include downtime resulting from:

• Upgrades: Customer will receive prior notice by email of CivicNexus’s upgrade windows, which will be scheduled between 8pm and 3am Hawaii Time to the extent feasible. Downtime due to upgrades that is excluded from the Availability calculation will not exceed 4 hours per month.
• Pre-scheduled maintenance periods: Customer will receive at least 24 hours prior notification by email of pre-scheduled maintenance periods. Maintenance will be scheduled between 8pm and 3am Hawaii Standard Time. Downtime due to pre-scheduled maintenance that is excluded from the Availability calculation will not exceed 4 hours per month.
• Emergency maintenance periods: Customer will receive prior notification by email on a commercially reasonable effort basis. These maintenance periods will involve applying critical security patches and other emergency repairs to the CivicNexus infrastructure.

The Availability Commitment does not apply to any downtime of the CivicNexus Product that results from:

• Account suspension or termination due to Customer’s breach of the Agreement;
• Disengagement of functionality of the CivicNexus Product due to Customer’s request;
• Force Majeure Events; or
• Customer’s or its service provider’s equipment, software or other technology.

CivicNexus will provide Customer with reports on Availability upon request.

Credit.

If CivicNexus fails to achieve the above Availability for the CivicNexus Product in a month, Customer may claim a credit based on the subscription fee paid by Customer and attributable to such month, as provided below.

Customer will not be entitled to a credit if it is in breach of this Agreement, including its payment obligations. To receive a credit, a Customer must file a claim for such credit within five (5) days following the end of the month in which the Availability Commitment was not met by contacting CivicNexus at support@CivicNexus.com with a complete description of the downtime, how Customer was adversely affected, and for how long.

The credit remedy set forth in this Service Level Agreement is Customer’s sole and exclusive remedy for the unavailability of the CivicNexus Product.

Customer Support.

CivicNexus live technical support business hours will start at 9:00 am Hawaii Standard Time and run until 6:00 pm Hawaii Time on weekdays. Technical support can be contacted via email at support@CivicNexus.com or via shared channels in the customer communication platform.

Communication Channels:

Live technical support will not be available on Christmas Day (December 25) and New Year’s Day (January 1). Limited technical support will be available during the hours listed above during CivicNexus holidays. The current CivicNexus holidays are set forth below:

• Presidents Day (third Monday of February)
• Memorial Day (last Monday of May)
• Independence Day (July 4)
• Labor Day (first Monday of September)
• Thanksgiving Day (fourth Thursday in November)
• Christmas Eve (December 24)
• New Year’s Eve (December 31)