SERVICE SUBSCRIPTION AGREEMENT
THIS SERVICE SUBSCRIPTION AGREEMENT (this “Agreement”), effective as of May 2017 (the “Effective Date”), is by and between CITYZENITH, LLC, a Delaware limited liability company, (“Cityzenith”) and you, the customer (“Customer”). The parties hereby agree as follows:
1.1 “Background Materials” means all intellectual property and proprietary rights of Cityzenith (including, without limitation, ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, copyrights, patents, trademarks, service marks, trade dress, trade secrets and other technologies and information) that are used by Cityzenith in providing the Service and Results (including any correction, improvement, extension or other modification to the Service made, created, conceived or developed by or for Cityzenith, including at Customer’s request.
1.2 “Content” means the audio and visual information, Documentation, software, products, and services contained or made available to Customer and its Users in the course of using the Service.
1.3 “Customer Data” means all information, data and other content provided by Customer or its Users for Customer’s benefit in connection with its authorized use of the Service.
1.4 “Documentation” means the user guide, help information and other documentation regarding the Service that is provided by Cityzenith to Customer in electronic or other form.
1.5 “Cityzenith Properties” means the Service, Documentation, Content, Background Materials, Compiled Data (as defined in Section 5.5) and Reports (as defined in Section 5.5).
1.6 “Results” means the work products resulting from the Service that are (i) delivered to Customer by Cityzenith through the Service and (ii) based solely on the Customer Data. For the sake of clarity, Results shall expressly exclude all Cityzenith Properties.
1.7 “Service” means the online subscription services hosted by Cityzenith and to which Customer is provided access under this Agreement, together with the underlying Software and any Updates thereto, as more specifically identified in EXHIBIT A (the “Service Schedule”).
1.8 “Software” means those certain applications, operating systems, utility programs, communications software, interfaces and other computer software utilized by Service Cityzenith as part of the Service provided by Service Cityzenith.
1.9 “Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Service that are not proprietary to Cityzenith.
1.10 “Updates” means maintenance revisions, improvements, modifications, bug fixes, patches, corrections and enhancements to the Service that are provided by Cityzenith generally to its customers. The term “Updates” shall not include custom reports or enhancements for which Cityzenith charges a separate or additional fee.
1.11 “Users” means Customer’s employees, agents, contractors, and other third parties authorized under this Agreement to access the Service for Customer’s benefit.
2.1 Start Up. Each party will provide the other with reasonable cooperation, assistance, information and access as may be necessary to initiate Customer’s use of the Service (including implementing any interface or transaction logic to which both parties agree). As part of the implementation process, Customer will identify an administrative user name and password that will be used to set up Customer’s account. Customer may use the administrative user name and password to create subaccounts for its Users (each with unique login IDs and passwords). Customer shall be responsible for the acts or omissions of any person who accesses the Service using passwords or access procedures provided to or created by Customer. Cityzenith reserves the right to refuse registration of, or to cancel, login IDs that violate the terms and conditions set forth in this Agreement or that have been inactive for a period of six (6) consecutive months.
2.2 Access Grant. Subject to all terms and conditions of this Agreement, during the Term Cityzenith grants Customer a nonexclusive, nontransferable and nonsublicensable right and license to access and use the Service through a web-based interface, solely for Customer’s internal business purposes. The Service is made available to Customer solely as hosted by or on behalf of Cityzenith, and nothing in this Agreement shall be construed to grant Customer any right to receive any copy of the Software. Customer’s access and use of the Service shall comply with all other conditions set forth in the Service Schedule (such as, for example, any requirements regarding data formats, number of permitted users or prohibited uses).
2.3 Users. Customer may grant access to the Service to the number of authorized Users as set forth on the Service Schedule. Each authorized User shall access and use the Service (i) in accordance with the terms of this Agreement, and, (ii) when applicable, through a unique and reasonably secure username and password. The Service allows Customer to grant different levels of access to Customer Data, to different Users, as described in more detail in the Service Schedule. It is Customer’s responsibility to designate the applicable access to be granted to each User. Customer shall cause all Users to comply with all obligations of Customer hereunder, to the extent applicable to Users. Customer’s failure to cause a User to comply with the terms of this Agreement or any uncured User noncompliance shall constitute a material breach of this Agreement by Customer. Except for Customer’s system administrators where reasonably necessary for administrative or security purposes, no User may use the username/user identification or password of any other User.
2.4 Customer Data. Customer hereby grants Cityzenith a nonexclusive and royalty-free right and license to access, copy, process and use the Customer Data, solely for the purpose of providing the Service. Customer agrees that (a) the Service depends on the availability of the Customer Data and (b) Cityzenith will not assume any responsibility for, or undertake to verify, the accuracy or completeness of the Customer Data.
2.5 Storage. Customer may store Customer Data and Results through the Service up to the amount set forth on the Statement of Work. If the amount of storage used exceeds this limit, Customer will be charged, on a monthly basis, the excess storage fees pursuant to the Statement of Work. Cityzenith reserves the right to establish or modify its general practices and limits relating to storage of Customer Data and Reports, provided that the minimum amount of storage included without additional charge and any security or privacy measures relating to Customer Data may not be modified without Customer’s prior written consent.
2.6 Customer Systems. Customer is solely responsible for providing (a) all equipment, subscriptions and credentials necessary for Cityzenith to receive the Customer Data, (b) all modems, servers, devices, storage, software, databases, network and communications equipment and ancillary services needed to connect to, access or otherwise use the Service at its facility and (c) all corresponding backup, recovery, network security and maintenance services (collectively, “Customer Systems”). Customer shall ensure that Customer Systems are compatible with the Service and comply with all configurations and specifications described in the Documentation. For the sake of clarity, in no event will Customer Systems include any Cityzenith Properties. The Service does not replace the need for Customer to maintain regular data backups or redundant data archives. CITYZENITH HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
2.7 Excluded Events. Cityzenith will not be liable for any delay or failures in the, Service, or any other problems which are related to (a) act or omission of Customer or any Customer User, including any delays in their performance or cooperation with respect to the obligations set forth in this Agreement (including its exhibits), (b) the Customer Data or Customer Systems, (c) any satellite, telecommunications, network or other equipment or service outside of Cityzenith’s facilities or control, (d) unauthorized access, breach of firewalls or other hacking by third parties, (e) a Force Majeure Event or (f) any other circumstances beyond Cityzenith’s reasonable control, including Customer’s or any User’s access or use of Third Party Materials, misuse of the Service, or use of the Service other than in compliance with the express terms of this Agreement and the Documentation (each, a “Excluded Event”).
(a) Customer shall not, and shall not permit any other person to, access or use the Service, Cityzenith Materials or Third Party Materials, except as expressly permitted by this Agreement and, in the case of Third Party Materials, the applicable third party license agreement. Customer is responsible for all activity occurring under its Users’ accounts and shall abide by all applicable local, state, national, and foreign, laws, treaties and regulations in connection with Customer’s use of the Service and Results, including those related to data privacy, international communications, and the transmission of technical or personal data. Customer shall: (i) notify Cityzenith immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Cityzenith immediately and use reasonable efforts to stop immediately any copying or distribution of any Cityzenith Property that is known or suspected by Customer or its Users; and (iii) not impersonate another Cityzenith user or provide false identity information to gain access to or use the Service.
(b) Customer may use the Service only for Customer’s internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or their related systems or networks.
(c) Customer shall not directly or indirectly (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party any Cityzenith Property in any way, (ii) use any of Cityzenith’s Confidential Information or any other Cityzenith Property to create any service, software or documentation that is similar to any Cityzenith Property, (iii) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Service, Software or other Background Materials, (iv) access or use the Service in any manner (A) that abuses or violates the privacy or property rights of others, (B) to build a competitive product or service, (C) to build a product using similar ideas, features, functions or graphics of the Service or other Cityzenith Properties, or (D) to copy any ideas, features, functions or graphics of the Service or other Cityzenith Properties (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (v) encumber, sublicense, transfer, distribute, rent, lease, time-share or use any Cityzenith Property in any service bureau arrangement or otherwise for the benefit of any third party, (vi) adapt, combine, create derivative works of or otherwise modify any Cityzenith Property, (vii) create Internet “links” to any Cityzenith Property or “frame” or “mirror” any Cityzenith Property on any other server or wireless or Internet-based device or (viii) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction. Additionally, neither Customer nor any User shall use or access the Services if any of them is a direct competitor of Cityzenith or for purposes of monitoring the availability, performance or functionality of the Services or for any other benchmarking or competitive purposes. Any noncompliance with the preceding sentence shall result in immediate termination of this Agreement by Cityzenith.
2.9 Support. Cityzenith will use commercially reasonable efforts to provide Customer with technical support and updates for the Service. Customer agrees that Cityzenith may charge in accordance with its then current policies for any support service resulting from problems, errors or inquiries related to the Customer Data or Customer Systems.
3.1 Payment Terms.
(a) Customer shall pay a fee for the right to use the Service (“Service Fee”) as set forth in the Service Schedule. Customer shall pay the Service Fee annually in advance. Payment of the Service Fee for the first year of the Term is due upon both parties’ execution of this Agreement.
(b) All payment obligations are non-cancelable and, except where expressly stated otherwise in this Agreement, all amounts paid are nonrefundable. Customer must provide Cityzenith with valid credit card or approved purchase order information as a condition to entering into this Agreement. Payments shall be made in US dollars at Cityzenith’s address (or to an account specified by Cityzenith), in full without set-off, counterclaim or deduction. Past due amounts shall bear a late payment charge, until paid, at the rate of one and one half percent (1.5%) per month or the maximum amount permitted by law, whichever is less.
(c) In addition to any other rights granted to Cityzenith herein, Cityzenith reserves the right to suspend or terminate this Agreement and Customer’s access to the Service if Customer’s account becomes delinquent. If Customer or Cityzenith initiates termination of this Agreement, Customer will be obligated to pay the balance due on Customer’s account computed in accordance with this Section. Customer agrees that Cityzenith may bill Customer for such unpaid fees.
(d) Cityzenith reserves the right to impose a reconnection fee in the event Customer is suspended and thereafter request access to the Service. Customer agrees and acknowledges that Cityzenith has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if Customer’s account is 30 days or more past due. Customer agrees to reimburse Cityzenith for all costs (including attorneys’ fees) incurred by Cityzenith in collecting late payments.
3.2 Taxes. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Cityzenith’s net income. All amounts payable by Customer hereunder, including all Service Fees, shall be grossed-up for any withholding taxes imposed by any foreign government on Customer’s payment of such amounts to Cityzenith.
4.1 Scope. “Confidential Information” means all financial, business or technical information disclosed by or for a party in relation to this Agreement. Without limitation, the Service, Software and other Cityzenith Properties and pricing information are Cityzenith’s Confidential Information.
4.2 Confidentiality. Except for the specific rights granted by this Agreement, neither party (“Recipient”) may use, copy or disclose any of the other’s (“Discloser”) Confidential Information without Discloser’s written consent, and shall use reasonable care to safeguard Discloser’s Confidential Information, including ensuring that Recipient’s employees and Users with access to Discloser’s Confidential Information (a) have a need to know for the purposes of this Agreement and (b) are bound by substantially similar confidentiality obligations. The foregoing obligations shall not apply to any Confidential Information that Recipient can demonstrate is (i) already known by it without restriction, (ii) rightfully furnished to it without restriction by a third party not in breach of any obligation to Discloser, (iii) generally available to the public without breach of this Agreement or (iv) independently developed by it without reference to or use of any of Discloser’s Confidential Information. Each party shall be responsible for any breach of confidentiality by its employees and Users, as applicable. Promptly after any termination of this Agreement (or at Discloser’s request at any other time), Recipient shall return all of Discloser’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records, copies, summaries, analyses and materials developed therefrom. Each party may disclose the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, however, that either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any financing transaction or due diligence inquiry.
4.3 Compelled Disclosure. Nothing herein shall prevent a party from disclosing this Agreement or any of the other’s Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement or similar requirement or investigation; provided, prior to any such disclosure, Recipient shall use reasonable efforts to (a) promptly notify Discloser in writing of such requirement to disclose and (b) cooperate with Discloser in protecting against or minimizing any such disclosure or obtaining a protective order.
5.1 Results. Unless otherwise agreed by the parties, (a) Customer shall own all right, title and interest (including all applicable intellectual property and other proprietary rights) in and to the Results, (b) Results are works made for hire to the extent allowed by law and (c) Cityzenith makes all assignments to Customer necessary to accomplish the foregoing ownership. Unless expressly specified otherwise in the Service Schedule, Cityzenith has no obligation to store any Results for longer than 60 days.
5.2 Background Materials. To the extent that Cityzenith includes any Background Materials in the Results, then subject to all terms and conditions of this Agreement, Cityzenith agrees to grant Customer (without right to sublicense) a nonexclusive, nontransferable, royalty-free right and license to use such Background Materials as embodied in the applicable Results, solely for Customer’s internal business purposes.
5.3 Customer. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Customer shall retain all right, title and interest (including all applicable intellectual property and proprietary rights embodied therein) in and to the Customer Data and Customer Systems.
5.4 Cityzenith. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Cityzenith (and its licensors) shall retain all right, title and interest (including all worldwide intellectual property and proprietary rights embodied therein) in and to the Cityzenith Properties and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating to any Cityzenith Property. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to any Cityzenith Property. Cityzenith’s name, Cityzenith’s logo, and the product names associated with the Service and other Cityzenith Properties are trademarks of Cityzenith or third parties, and no right or license is granted to use them.
5.5 Third Party Materials. Except as expressly set forth in the applicable third party license and Section 3.1 of this Agreement, nothing in this Agreement grants any right, title or interest in or to (including any license under) any intellectual property rights in or relating to, Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Third Party Materials are and will remain with the respective rights holders in the Third Party Materials.
6.1 Term. This Agreement shall commence on the Effective Date and continue in effect for one year (the “Initial Term”). Thereafter, this Agreement will be extended automatically for additional terms of one year each (each “Renewal Term”) at the end of the Initial Term and each Renewal Term (the Initial Term and each Renewal Term, the “Term”)], unless either party gives written notice of non-renewal at least 90 days prior to the end of the then current term.
6.3 Effects of Termination. Upon the termination of this Agreement: (i) Cityzenith shall deactivate all user names and passwords and cease providing the Service to Customer, and Customer and its Users shall cease use of the Service and (ii) all other rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of this Agreement shall survive, and (b) the provisions of Sections 3 (Payments), 4 (Confidentiality), 5 (Proprietary Rights), 7.4 (Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 10 (General Provisions) and this Section 6.3, shall survive. Cityzenith has no obligation to retain any Results after the Term; provided, upon Customer’s written request received within 30 days after termination, Cityzenith will deliver to Customer a copy of the Results then currently stored by Cityzenith (in the same format maintained by Cityzenith).
7.1 Customer Data. Customer represents and warrants that it owns all right, title and interest, or possesses sufficient license rights, in and to the Customer Data as may be necessary to permit the use contemplated under this Agreement. Customer bears all responsibility and liability for the accuracy, completeness, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data and Cityzenith’s access, possession and use as permitted herein. Cityzenith shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of Customer’s breach), Cityzenith will make available to Customer a file of the Customer Data within 30 days of termination if Customer so requests at the time of termination. Cityzenith reserves the right to withhold, remove, or discard Customer Data without notice for any breach, including, without limitation, Customer’s non-payment. Upon termination for cause, Customer’s right to access or use Customer Data immediately ceases, and Cityzenith shall have no obligation to maintain or forward any Customer Data
7.2 Service. During the Term, Cityzenith warrants that the Service will perform in all material respects in accordance with the Documentation when used in accordance with the terms of this Agreement on the hardware and with the third-party software specified by Cityzenith from time to time. Customer’s sole and exclusive remedies, and Cityzenith’s sole liability and obligations, for any breach by Cityzenith of the warranty provided in this Section shall be as follows: (i) first, Cityzenith shall use commercially reasonable efforts to deliver to Customer a replacement Service, a work-around or an error/bug fix as may be necessary to correct the nonconformity; and (ii) second, if Cityzenith is unable or determines that it is not commercially reasonable to correct such nonconformity within 30 days after notice of such nonconformity from Customer, then Customer may terminate this Agreement for cause in accordance with Section 6.2(a).
(a) THE LIMITED WARRANTIES AND REMEDIES SET FORTH IN SECTION 7.2 ARE EXCLUSIVE, AND EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTION 7.2, THE SERVICE, CITYZENITH PROPERTIES, RESULTS, AND ALL OTHER SERVICES PROVIDED BY CITYZENITH HEREUNDER ARE PROVIDED WITHOUT ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, CITYZENITH AND ITS LICENSORS MAKES NO REPRESENTATION OR WARRANTY (I) THAT THE SERVICE WILL MEET CUSTOMER’S OR ANY USER’S REQUIREMENTS OR EXPECTATIONS, (II) THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR BUG-FREE, (II) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SERVICE, OR (III) THAT ANY ERRORS OR DEFECTS IN THE SERVICE WILL BE CORRECTED. TO THE FULLEST EXTENT PERMITTED BY LAW, CITYZENITH HEREBY DISCLAIMS (FOR ITSELF AND ITS LICENSORS AND SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
(b) CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICE, RESULTS, AND OTHER CITYZENITH PROPERTIES TO WHICH CUSTOMER AND ITS USERS HAVE ACCESS ARE TOOLS TO BE USED BY CUSTOMER AND ITS USERS IN THE COURSE OF EXERCISING THEIR PROFESSIONAL JUDGMENT. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CITYZENITH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS OUTSIDE OF ITS REASONABLE CONTROL. ADDITIONALLY, CITYZENITH AND ITS LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS. NO ADVICE OR INFORMATION OBTAINED BY CUSTOMER OR ANY USER FROM CITYZENITH OR FROM ANY THIRD PARTY OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. NO CITYZENITH AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY EXPANSION, MODIFICATION OR ADDITION TO THIS LIMITATION AND EXCLUSION OF WARRANTIES IN THIS AGREEMENT.
(c) THE SERVICE DOES NOT REPLACE THE NEED FOR CUSTOMER TO MAINTAIN REGULAR DATA BACKUPS OR REDUNDANT DATA ARCHIVES. CITYZENITH HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
(d) ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS.
(e) Cityzenith shall not be responsible or liable for: (i) any non-conformities of the Service with Documentation, omissions, delays, inaccuracies or any other failure caused by Customer’s or its Users’ computer systems, hardware or software (other than the Service), including by interfaces with such third party software, or any inaccuracies that such systems may cause within the Service; (ii) any data that Cityzenith receives from Customer, any of its Users or other third party sources and including the data’s accuracy or completeness, or any decisions made by Customer, any of its Users or any other party or (iii) any Excluded Event. Cityzenith disclaims any liability for interception of any such data or communications, including of encrypted data. Customer agrees that Cityzenith shall have no responsibility or liability for any damages arising in connection with access to or use of the Service by Customer, any User or any other party, other than as expressly authorized by this Agreement.
8.1 Infringement. Except as provided below, Cityzenith agrees to (a) defend Customer against any demand, claim, action or suit by a third party that Customer’s use of the Service (excluding Customer Data and Third Party Materials) in compliance with this Agreement infringes any US patent or copyright or misappropriates any trade secret of such third party and (b) indemnify Customer for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded to such third party by a court of competent jurisdiction or agreed to as part of a monetary settlement arising out of such claim; provided, that (i) Customer promptly provides Cityzenith written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) Cityzenith shall have sole control and authority to defend, settle or compromise such claim. If the Service becomes or, in Cityzenith’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Cityzenith may, at its option (A) obtain for Customer the right to continue using the Service or (B) replace or modify the Service so that it becomes non-infringing without substantially compromising its principal functions. If (A) and (B) are not reasonably available to Cityzenith, then it may terminate this Agreement upon written notice to Customer and refund to Customer any prepaid Service Fees, pro-rated for the remainder of the prepaid period.
8.2 Exclusions. Cityzenith shall have no liability or obligation to Customer hereunder with respect to any claim based upon (a) any use of the Cityzenith Properties not strictly in accordance with this Agreement, (b) modifications or combinations of the Cityzenith Properties not provided by Cityzenith, (c) that portion of the Cityzenith Properties that implements Customer’s specific requirements or that is related to the Customer Data or Customer Systems, (d) Customer’s continuing allegedly infringing activity after being notified thereof or (e) Customer’s continuing use of any version of the Cityzenith Properties after being provided modifications that would have avoided the alleged infringement. Customer agrees to (i) defend Cityzenith against any claim by a third party that results from or arises out of any demand, claim, action or suit excluded under clauses (a) – (d) above and (ii) indemnify Cityzenith for settlement amounts and damages, liabilities, penalties, costs and expenses (including reasonable attorneys’ fees) awarded to such third party by a court of competent jurisdiction or agreed to as part of a monetary settlement and arising out of such claim.
8.3 Entire Liability. The foregoing states the entire liability of Cityzenith, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Service or any part thereof or by its use or operation.
8.4 Indemnification by Customer. Customer agrees to indemnify, defend and hold harmless Cityzenith, its Affiliates, and all their officers, directors, shareholders, employees and other agents for and against any damage, cost, liability, expense, claim, suit, action or other proceeding, to the extent based on or arising in connection with, with respect to Customer’s and each of its User’s: (a) use of the Services in a manner not authorized by this Agreement, or in violation of applicable law, (b) use of Services or the Results with respect to or any decisions made by Customer, any of its Users or any other party, (c) Customer Data, or the combination of either with other applications, content, or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights, or the use, development, design, manufacture, production, advertising, promotion, or marketing of Customer Data, (c) violation of any term or condition of this Agreement, including without limitation, applicable representations and warranties, or (d) negligence or willful misconduct.
10.2 Third Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies upon any party other than the parties to this Agreement.
10.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, USA, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to this Agreement.
10.4 Dispute Resolution.
(a) If a dispute arises out of or relates to this Agreement or a breach thereof, the parties shall first try to resolve their dispute through informal and good faith negotiation. If the parties fail to resolve the dispute within 30 days, then the parties agree first to try in good faith to settle the dispute by mediation under the rules established by ADR Systems of America in Chicago, Illinois, before resorting to arbitration, litigation, or some other dispute resolution procedure.
(b) Except that either party may seek equitable or similar relief from any court of competent jurisdiction, any dispute, controversy or claim arising out of or in relation to this Agreement that cannot be settled amicably by agreement of the parties hereto shall be finally settled by binding arbitration before ADR Systems of America in Chicago, Illinois and in accordance with the Arbitration Rules of ADR Systems of America, and judgment upon the award rendered by the arbitrator may be entered in any court or tribunal having jurisdiction thereof. Either party may commence the arbitration process called for in this Agreement by filing a written demand for arbitration with ADR Systems of America. The arbitration will be conducted in accordance with the ADR Systems of America Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration. The parties will select one arbitrator from ADR Systems of America’s panel of neutrals and will share equally in the costs. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
10.5 Other Countries. Cityzenith makes no representation that the Service is appropriate or available for use in other locations. If Customer uses the Service from outside the United States of America or the European Union, Customer is solely responsible for compliance with all applicable laws, including export and import regulations of other countries. Any diversion of the Service contrary to United States or European Union (including European Union Member States) law is prohibited.
10.6 Equitable Relief. Each party agrees that, in the event of any breach or threatened breach by (a) Customer of Section 2 or (b) either party of Section 4 or 5, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond or of proving actual damages.
10.7 Force Majeure. Cityzenith shall have no liability for any failure or delay in performance of its obligations under this Agreement because of circumstances beyond its reasonable control, including without limitation, acts of God, fires, floods,earthquakes, wars, civil disturbances, terrorism, sabotage, accidents, unusually severe weather, labor disputes, governmental actions,power failures, viruses that are not preventable through generally available retail products, inability to obtain labor, material or equipment, catastrophic hardware failures, usage spikes, attacks on Cityzenith’s server, or any inability to transmit or receive information over the Internet, (each, a “Force Majeure Event”) nor shall any such failure or delay give Customer the right to terminate this Agreement. If there is an act or event that constitutes a force majeure event under a contract between Cityzenith and any of its vendors, subcontractor or other third party contractor, as the case may be, then that act or event is a Force Majeure Event as to Cityzenith.
10.8 Publicity. Customer hereby consents to inclusion of its name and logos in customer lists that may be published as part of Cityzenith’s marketing and promotional efforts.
10.9 Third Party Interactions. During use of the Service, Customer may enter into correspondence with, purchase goods or services from, or participate in promotions of advertisers, sponsors or other third parties showing their goods or services through the Service. Any such activity, and any terms, conditions, warranties, or representations associated with such activity, is solely between Customer and the applicable third party. Cityzenith and its licensors shall have no liability, obligation, or responsibility for any such correspondence, purchase, or promotion between Customer and any such third party. Cityzenith does not endorse any sites on the Internet that are linked through the Service. Cityzenith provides these links to Customer only as a matter of convenience, and in no event shall Cityzenith or its licensors be responsible for any content, products, or other materials on or available from such sites. Cityzenith provides the Service to Customer pursuant to the terms and conditions of this Agreement. Customer recognizes, however, that certain third party providers of ancillary software, hardware, or services may require Customer’s agreement to additional or different license or other terms prior to Customer’s use of or access to such software, hardware or services.
10.10 Notices. Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified herein, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
10.11 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld. However, without consent, each party may assign this Agreement to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise); provided that, in the case of Customer, such successor is not a competitor of Cityzenith. Any assignment in violation of this Section shall be deemed null and void ab initio. Cityzenith may use contractors and other third party service providers in performing the Service. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
10.12 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
10.13 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original but all of which together shall constitute one and the same Agreement.