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MSA

BY ACCEPTING THIS MASTER SERVICES AGREEMENT (“AGREEMENT”), EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM OR STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT, YOU AGREE (A) TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND (B) THAT YOU ARE OF A LEGAL AGE (AT LEAST 18 YEARS OLD IN MANY JURISDICTIONS) AND LAWFULLY ABLE TO ENTER INTO CONTRACTS.  IF YOU ARE AGREEING TO THESE TERMS OF USE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND THAT ENTITY.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE OUR SERVICES OR THE PLATFORM.  AS USED IN THIS AGREEMENT, “YOU” MEANS YOU AND THE LEGAL ENTITY ON WHOSE BEHALF YOU ARE ENTERING INTO THIS AGREEMENT (IF APPLICABLE) AND “CIVIS” MEANS CIVIS ANALYTICS, INC., A DELAWARE CORPORATION.

The terms of this Agreement apply to all free trials. If You registered on for a free trial or otherwise receive access to a free trial, Civis will make certain Services or the Civis Platform available to You on a trial basis free of charge until the earliest of (a) the end of the free trial period for which You registered to use the applicable Services or Civis Platform, or (b) the start date of any Order or SOW for paid Services or Civis Platform, or (c) termination by Civis in its sole discretion. Additional trial terms and conditions may appear on the free trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

ANY DATA YOU ENTER INTO THE CIVIS PLATFORM OR SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE CIVIS PLATFORM OR SERVICES BY OR FOR YOU DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU, BEFORE THE END OF THE TRIAL PERIOD (A) PURCHASE A LICENSE TO THE SAME SERVICES OR THE CIVIS PLATFORM AS THOSE COVERED BY THE TRIAL, (B) PURCHASE APPLICABLE UPGRADED SERVICES, OR (C) EXPORT SUCH DATA.

  1. DEFINITIONS

1.1  “Aggregate Data” means information about the performance and Your use of the Civis Platform and Licensed Data, which may include Your Data that is anonymized and combined with data from other clients.

1.2  “Aggregate Data Analyses” means anonymized analyses of Aggregate Data and reports, evaluations, benchmarking tests, studies, analyses and other work product from Aggregate Data.

1.3  “Civis IP” means any concepts, processes, approaches, methodologies, know-how, models, tools, data, surveys, market research, information, knowledge, experience, the Civis Platform, the Civis Platform Materials and other intellectual property rights of Civis that (i) exist as of the Effective Date, (ii) were developed or collected concurrently with the Services but which are generally applicable to Civis’ business and do not incorporate Your Data, and/or (iii) are unrelated to the Services or were otherwise developed or acquired outside the performance or scope of the Services.

1.4  “Civis Platform” means any Civis software hosted and made available by Civis as a software- or platform-as-a-service which includes Civis’ data analytics platform, modules, and applications for such platform. References to the “Civis Platform” in this Agreement refer to the version of the Civis Platform, including all features and functionality created under SOW(s), subscribed to by You pursuant to an Order, and any future updates, features, and functionality that Civis makes available to You.

1.5  “Civis Platform Materials” means including the underlying source code, algorithms, models, features, or functionality of the Civis Platform, and any software, technology, materials, data, and information that are Civis IP.

1.6  “Civis Solutions” means, collectively, the Civis Platform, Services, and Licensed Data.

1.7  “Claim” means any claim, action or suit, including actions by government regulatory agencies.

1.8  “Confidential Information” means all confidential, non-public, or proprietary information and materials provided or made available by a disclosing party that a reasonable Person knowledgeable in the disclosing party’s industry would recognize to be confidential.

1.9  “Deliverables” means the written reports, memos, and lists that Civis may create and deliver to You pursuant to the Services.

1.10  “End Users” means the individuals authorized by You to use the Civis Platform.

1.11  “Feedback” means ideas, feedback or suggestions regarding Civis Solutions.

1.12  “Fees” means, individually and collectively, the fees and expenses set forth in each Order and SOW hereunder.

1.13  “Implementation” means the Civis Platform configuration and integration Services to be performed by Civis pursuant to the initial SOW (if applicable).

1.14  “including” means including without limitation.

1.15  “Indemnitee” means the party seeking indemnification, which includes a party hereto and its affiliates, directors, officers, and employees.

1.16  “Indemnitor” means the party that indemnifies the other party.

1.17  “Intellectual Property Rights” means all forms of proprietary rights, titles, interests, and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, droit moral (moral rights), and all similar rights of every type that may exist now or in the future in any jurisdiction, including all applications and registrations therefore and rights to apply for any of the foregoing.

1.18  “IP Claim” means a Claim alleging that the Civis Solutions infringe a third party’s Intellectual Property Rights.

1.19  “Licensed Data” means data, proprietary scores, models, categories, projections and other analytical tools that You license from Civis, which may be owned by third parties or by Civis.

1.20  “Order” means each written agreement for a license to the Civis Platform and/or Licensed Data, applicable Usage Limitations, the number of End Users, and the Fees due for the foregoing.

1.21  “party” means You or Civis, as the context requires.

1.22  “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.

1.23  “Services” means any services requested that Civis agrees to perform for You hereunder, including configuration services, analytics services, training services, development and provision of custom features or functionality, user interface customizations and new integrations with third party data providers. Services will only be provided pursuant to a Statement of Work.

1.24  “Statement of Work” or “SOW” means each written agreement for Services to be performed subject to this Agreement.

1.25  “Term” means the period from the Effective Date until the termination of all Orders and SOWs.

1.26  “Third Party Agreements” means agreements between Civis and the operators of Third Party Services.

1.27  “Third Party APIs” means application programming interfaces or other means of interoperability made generally available by the operators which Civis does not control.

1.28  “Third Party Materials” means materials and information, in any form or medium, including any software (including open-source software), documents, data, content, specifications, products, equipment or components of or relating to the Services or Deliverables that are not proprietary to the Civis.

1.29  “Third Party Services” means features or functionality that interoperate with online services operated by third parties.

1.30  “Usage Limitations” means Your data storage limits, monthly bandwidth caps, and other limits and restrictions applicable to Your use of the Civis Platform, as set forth in an Order.

1.31  “Your Data” means, as between Civis and You, all data owned by You and provided to Civis by or on behalf of You.

1.32  “Your Resources” means (i) the qualified personnel or representatives designated by You to consult with Civis in connection with the Services and provide Civis with documentation or other information (ii) access to Your premises and appropriate systems and/or workspace for Civis personnel at Your premises; and (iii) access to Your Data.

1.33  Other Terms. Other capitalized terms used in this Agreement have the meanings set forth in the cover page or elsewhere in this Agreement.

2. SERVICES (WHEN YOU HIRE CIVIS TO PERFORM CONSULTING AND ANALYTICS SERVICES)

2.1  Performance of Services. Civis will perform the Services using its reasonable efforts and judgement based on the information available to Civis. To the extent Civis uses subcontractors in the performance of the Services, it remains liable for their performance hereunder.

2.2  The parties may execute one or more SOWs setting forth the Services. Each SOW must be signed by authorized representatives of both parties, and the Services will only be provided pursuant to a mutually executed SOW. Each SOW will identify the following: (i) the nature of the Services; (ii) the Deliverables, if any, to be provided by Civis to You in connection with the Services and the acceptance criteria and process therefor; (iii) a time schedule for estimated performance of Services by Civis; and (iv) labor rates and/or amount of payment for Services, including any expenses which are to be reimbursed, including reasonable air travel, hotel accommodations, and meals for meetings at or other travel to Your site. Unless otherwise agreed in writing by both parties, the labor rates delineated in each Statement of Work apply only to that Statement of Work. Except to the extent otherwise provided for in an SOW, any Deliverables under an SOW that are Civis Platform features or functionality constitute part of the Civis Platform made available to You pursuant to Your payment. Your rights with respect to any tangible Deliverables are set forth in the applicable SOW. For the avoidance of doubt, any Civis Platform features or functionality do not constitute Deliverable(s).

i.) Implementation. If applicable, the initial SOW covering Implementation of the Civis Platform is attached hereto as Exhibit A. Implementation is complete on the earliest of: (a) all the milestones in Exhibit A being met; (b) You notify Civis that the Implementation is complete; or (c) You commence use of the Civis Platform.

2.3  Your Resources. You will provide, maintain and make available to Civis, at Your expense and in a timely manner, Your Resources as necessary to perform the Services, and such other additional resources as are specified in the applicable SOW or as Civis may reasonably request in connection with Civis’ performance of the Services.

2.4  Effect of Your Failure or Delay. In the event You do not provide Your Resources in a timely manner (regardless of whether such failure is by You or by Your third party vendor, supplier, licensor or contractor), Civis’ time for performance of the applicable services may, following written notice to You, be extended by the amount of time corresponding to such delay. You acknowledge that Your delays will not affect invoicing schedules and payment obligations unless agreed upon in writing by the Civis.

2.5  Project Management. Each party will, throughout the Term, maintain within its organization a project manager to serve as such party’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each such project manager is responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party will ensure its project manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. The parties’ project managers will be identified in each SOW. Each party will use commercially reasonable efforts to maintain the same project manager in place throughout the SOW Term. If either party’s project manager ceases to be employed by such party or such party otherwise wishes to replace its project manager, such party will promptly name a new project manager by written notice to the other party.

2.6  Third Party Materials. The Services and related Deliverables may include or operate in conjunction with Third Party Materials. For any Third Party Materials that are provided by Civis, the Civis will obtain the necessary rights, licenses, and permissions to permit You to use the Services and Deliverable(s) as contemplated by this Agreement.

2.7  Either party may, at any time during the Term, request in writing changes to the Services. At a minimum, the parties will agree upon the scope of the changes and additional Deliverables, commensurate fee increases, time extensions, and pass-through of additional costs and expenses to You. If the parties agree on at least the minimum terms listed above, the parties will memorialize the agreement in a written change order or additional SOW signed by both parties, and implement all such changes. No changes will be effective unless and until memorialized in a written change order or additional SOW signed by both parties, pursuant to the requirements in Section 12.8.

2.8  Your Management. You acknowledge that the Services that Civis provides are inherently advisory in nature, and Civis has no responsibility for Your management decisions or management functions. Further, You acknowledge that You are responsible for evaluating the adequacy and results of the Services, and accepting responsibility for the results of those Services.

3. CIVIS PLATFORM AND DATA (WHEN YOU LICENSE CIVIS TECHNOLOGY AND DATA)

3.1  The parties may execute one or more Orders setting forth the Civis Platform (and Licensed Data, if applicable) that Civis will make available to You. Each Order must be signed by authorized representatives of both parties, and the Civis Platform (and Licensed Data, if applicable) will only be provided pursuant to a mutually executed Order. All Orders that are entered into between the parties are governed by the terms of this Agreement and are hereby made part of and incorporated into this Agreement. Each Order will, at a minimum, identify the following: (i) the Civis Platform Features (and Licensed Data, if applicable) subscribed to by You; (ii) applicable Usage Limitations; (iii) the number of the End Users authorized to use the Civis Platform; and (iv) the Fees due for the foregoing.

3.2  End User Accounts. You and Your End Users will use all proper administrative, physical, and technical means to secure user names and passwords, and will promptly notify Civis if You suspect that any user name and password has been compromised. Each Civis Platform account may only be accessed and used by the specific named End User for whom such account is created. You are responsible for all acts and omissions of End Users as it pertains to the Civis Platform and Licensed Data. You acknowledge that use of a Civis Platform account by any individual other than the applicable named End User is a material breach of this Agreement, and You are responsible for the acts or omissions of such individuals. You may change the End User authorized under a Civis Platform account by providing a written request to support@cliquedomains.com.

3.3  You acknowledge that use of the Civis Platform and Licensed Data are provided for Your benefit only, and agree not to use the Civis Platform or Licensed Data for the benefit of any third party (including through conducting analysis for a third party). You agree not to, not to attempt to, nor allow any third party to: (i) copy, distribute, rent, lease, lend, sublicense or transfer the Civis Platform or Licensed Data, other than as expressly provided for in an Order, make the Civis Platform or Licensed Data available to any third party or use the Civis Platform or Licensed Data on a service bureau or time sharing basis, (ii) decompile, reverse engineer, or disassemble the Civis Platform or Licensed Data or otherwise attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Civis Platform, (iii) create derivative works based on the Civis Platform or Licensed Data; (iv) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Civis Platform or Licensed Data or during the use and operation thereof; (v) publicly disseminate performance information or analysis (including benchmarks) relating to the Civis Platform; (vi) utilize any software or technology designed to circumvent any license keys or copy protection used in connection with the Civis Platform; (vii) scrape, export, store, or otherwise retain any source code, underlying ideas, algorithms, file formats or programming interfaces of the Civis Platform or (viii) use the Civis Platform or Licensed Data to develop a competitive product offering. You will not use any automated means, including agents, robots, scripts, or spiders, to access or manage the Civis Platform, except solely to the extent as may be specifically enabled and authorized by Civis. The Civis Platform and Licensed Data may include maps or other third party content. Such maps or other third party content may only be used with the Civis Platform in the manner enabled through the Civis Platform, and (without limiting the generality of this section) may not be sold, licensed or distributed (whether alone or as part of any collection or product).

3.4  Suspension/Termination. Civis may terminate Your access to or use of the Civis Platform and/or the Licensed Data, and/or terminate this Agreement at any time if: (i) in the sole discretion of Civis, such action is necessary to prevent material errors or harm to any system or network, or to limit Civis’ liability; or (ii) You attempt to access or use the Civis Platform in a manner not authorized by this Agreement, including any attempt to gain access to data or information relating to other Civis customers, or any use that infringes third party Intellectual Property Rights or violates any applicable law, rule or regulation.

3.5  Usage Data. You acknowledge and agree that Civis collects Aggregate Data and can create Aggregate Data Analyses; provided, however, that no Aggregate Data or Aggregate Data Analysis will identify or permit identification of You. Civis has exclusive ownership rights to, and the exclusive right to use and distribute, such Aggregate Data and Aggregate Data Analyses for any purpose.

3.6  The parties may execute additional Orders to, for example, change the version of the Civis Platform applicable hereunder, add End Users, add additional Licensed Data, and/or change Usage Limitations. Such additional Orders are subject to applicable Fees based on Civis’ then-current price sheet. You acknowledge that such modifications may require a lead time of 14 days for Civis to implement.

3.7  Civis Platform.

i.) Provision of the Civis Platform. Subject to all terms and conditions of this Agreement, following Implementation (if applicable), You have the right to access and use the Civis Platform during the Term solely for purposes of supporting Your internal business operations and solely in the manner enabled by Civis and in accordance with all applicable Usage Limitations and documentation. Civis reserves the right to modify and update the features and functionality of the Civis Platform from time to time. Civis will provide commercially reasonable notice of material and substantial modifications or updates that may affect the functionality of the Civis Platform. If such modifications or updates materially and adversely affect the functionality of the Civis Platform, You may terminate this Agreement, if Civis is unable to materially restore functionality within ten business days of receipt of Your written notice describing such material adverse effect and stating Your intent to terminate. Except for as expressly set forth herein, You are solely responsible for purchasing and configuring all hardware, software and services that may be necessary or desirable for Your use of the Civis Platform.

ii.) Third Party Services and Modifications. The Civis Platform may include Third Party Services pursuant to Third Party Agreements or through Third Party APIs. Third Party Agreements and Third Party APIs (and the policies, terms and rules applicable to Third Party APIs) can be modified, suspended or terminated at any time. Any such modification, suspension or termination does not affect any payment obligations under this Agreement and Civis has no liability with respect thereto. If such modification, suspension or termination materially and adversely affects the functionality of the Civis Platform, You may terminate this Agreement upon written notice to Civis if Civis is unable to materially restore such functionality within10 business days of receipt of Your written notices describing such material adverse effect and stating Your intent to terminate. Additionally, You acknowledge that, subject to and consistent with Section 3.7 i.), Civis may change, suspend, modify, or remove certain functions and features within the Civis Platform.

iii.) Availability of the Civis Platform. Civis is responsible for operating the servers that make the Civis Platform available, and will use commercially reasonable efforts to maintain availability of the Civis Platform of at least 99.5%, calculated monthly on a per-minute basis. You acknowledge and agree that the Civis Platform may be unavailable (in whole or in part) from time to time due to: (i) equipment, software or service malfunctions; (ii) maintenance, update or upgrade procedures or repairs; or (iii) causes beyond the control of Civis, including interruption or failure of telecommunication or digital transmission links, malicious attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures, and that Civis is not liable for any unavailability caused by any of the foregoing. You further acknowledge that any change to the number of clusters or nodes provisioned for Your use of the Civis Platform pursuant to an amended Order may result in read-only cluster access and reduced Civis Platform functionality for up to two days.

iv.) Civis Platform Support. Provided that You timely make all payments due under this Agreement, Civis will provide technical support to You pursuant to the applicable Order. Such technical support consists of answering questions from End Users regarding use of the Civis Platform and any errors within the Civis Platform during Civis’ normal business hours. Only End Users may request technical support. Civis will use commercially reasonable efforts to respond to each case within 48 hours and will use commercially reasonable efforts to promptly resolve each case. Actual resolution time will depend on the nature of the case and the resolution. A resolution may consist of a fix, workaround or other solution in Civis’ reasonable determination. Technical support does not include assistance or advice regarding data analytics generally or anything other than use of (or errors within) the Civis Platform, such as answering questions regarding SQL queries, Stata or R. Any such assistance or advice is provided only pursuant to a separate SOW.

v.) Control of Your Data in the Civis Platform. You acknowledge and agree that Civis will not, and has no obligation to, monitor or edit Your Data, and that You are solely responsible for Your Data, including without limitation, its format, integrity, accuracy, completeness, maintenance, and its compliance with all applicable laws, rules, and regulations, except, however, Civis is responsible for maintaining administrative, physical, and technical safeguards for the protection of the security, integrity, and confidentiality of Your Data hosted by Civis. reserves the right to remove any Your Data which Civis becomes aware may violate the terms of this Agreement, any applicable law, rule, or regulation, or infringe, misappropriate or violate any third party Intellectual Property Right or privacy right.

vi.) Your Management. You acknowledge that the results of the Platform are inherently advisory in nature, and Civis has no responsibility for Your management decisions or management functions. Further, You acknowledge that You are responsible for evaluating the adequacy and results of the Platform, and accepting responsibility for the results of the Platform.

3.8  Licensed Data.

i.) License to the Data. If you license Licensed Data from Civis, You will have the right to access and use the Licensed Data during the Term solely for purposes of supporting Your internal business operations and solely in the manner enabled by Civis and in accordance with all applicable Usage Limitations and documentation. As between Civis and You, Civis reserves all rights in the Licensed Data except as granted herein. Subject to the terms and conditions of this Agreement, Civis hereby grants to You a revocable, non-exclusive, non-transferable, non-sublicensable license to use the Licensed Data solely for the purpose listed in the Order.

ii.) Restrictions. You shall not (a) provide any Licensed Data to Catalist, Aristotle, Inc., Acxiom Corp., and/or Experian Information Solutions, Inc. for any use, except where authorized by Civis in writing in advance; (b) license, sublicense, transfer, convey or otherwise make available any data field, record, or data contained within or constituting any part of the Licensed Data, to any Person other than (1) Your employees and contractors and (2) Your own customers, provided that Your customers are subject to terms and confidentiality obligations at least as restrictive as those in this Agreement.

iii.) Export Restrictions. Licensed Data must, at all times, remain on Civis systems and must only be accessed, modeled, and processed through the Civis Platform. You may not export the Licensed Data, in part or in whole, except that You may export a minimum amount of Licensed Data necessary solely for internal reporting purposes (for example, to illustrate an item in an internal report).

iv.) Transfer of Licensed Data. Civis may not be able to furnish any Licensed Data when conditions are not in accordance with Civis’ standards, or if Civis is otherwise limited by or restricted from providing such data by the third party owner of the Licensed Data. Civis will not be liable, in contract, tort (including negligence) or otherwise, for any loss, expense or damage of any kind including, without limitation, special, incidental or consequential damages, resulting from any failure to provide any Licensed Data, any errors or inaccuracies in the Licensed Data or the use by You or third parties of any Licensed Data.

v.) Reporting of Unauthorized Disclosures or Misuse of Data. Within 24 hours of discovery, you will report to Civis any use or disclosure of Licensed Data not authorized by this Agreement. Your report must identify, to the extent such details are available: (i) the nature of the unauthorized use or disclosure, (ii) the parts of the Licensed Data used or disclosed, (iii) who made the unauthorized use and, if applicable, all parties who received the unauthorized disclosure, (iv) what You have done or will do to mitigate the effects of the unauthorized use or disclosure, and (v) what corrective action You have taken or will take to prevent future similar unauthorized use or disclosure. You will provide such other information including a written report, as reasonably requested by Civis. Civis reserves the right to audit such usage.

vi.) Voter and Political Contribution Data. This section only applies if You license voter and political contribution data. If Licensed Data includes fields sourced or derived from voter files or political contribution reports, You acknowledge that permitted uses of voter and political contribution data are defined by applicable statute(s), and that You are solely responsible, at Your own expense, for ensuring that its use of the voter and/or political contribution data complies with the statutory restrictions in each applicable jurisdiction (including those from the Federal Election Commission or relevant state laws). Additionally:

i.  If Acquiring Virginia Voter Data. By entering this Agreement, You represent and warrant that: (a) You are a Person authorized by § 24.2-405, 24.2-406, 24.2-706, or 24.2-710 of the Code of Virginia to receive a copy of the Virginia voter file (including voter participation history), (b) any Virginia voter data will be used only for political purposes or other purposes prescribed in the statutes referenced above and for no other use, and (c) You will not permit the use or copying of such lists by Persons not authorized by the Code of Virginia to obtain them.

ii.  If Acquiring California Voter Data. You must sign the certifications required by the Office of the Secretary of State of California for use of California state voter registration database information. You acknowledge that You are not entitled to receive (and Civis is not permitted to transmit) the California state voter data until (a) You have signed all certifications and (b) the certifications are accepted and approved by the Office of the Secretary of State of California.

4. PAYMENT

4.1  You will pay Civis the Fees as set forth in each Order and SOW. All recurring monthly Fees under an Order are invoiced in advance of the applicable month.

4.2  Payment Terms. Unless otherwise stated by the parties in an Order or SOW, Civis invoices You for Fees monthly. You agree to pay each invoice within thirty (30) days of the invoice date. All payments will be made in U.S. dollars. Any amounts due Civis under this Agreement not received by the date due will be subject to a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less. You will pay the amounts due under each invoice without deducting any taxes that may be applicable to such payments. You are responsible for paying all withholding, sales, value added or other taxes, duties or charges applicable to this Agreement, other than taxes based on Civis’ income.

5. OWNERSHIP

5.1  All Deliverable are Your property, provided that You acknowledge and agree that all Deliverables provided by Civis hereunder may incorporate and/or be produced using Civis IP, and that such Civis IP is and remains the sole property and confidential information of Civis. Upon receipt of payment for the applicable Deliverable(s), Civis hereby grants to You a non-exclusive, royalty-free, non-transferable, non-sublicensable license under the copyrights in any Civis IP embodied in such Deliverable(s) to use the Deliverable(s) for Your internal business purposes. For the avoidance of doubt, with the sole exception of the Deliverable(s) as provided for in this Section 5, nothing in this Agreement or any SOW transfers or assigns You any ownership interest in the Civis IP or in any software code, technology, materials, information or data created or provided by Civis.

5.2  Civis Platform. As between the parties, Civis owns all right, title and interest (including all Intellectual Property Rights) in and to the Civis Platform and the Civis Platform Materials. Nothing herein transfers any rights, title or ownership of the Civis Platform, the Civis Platform Materials, or any Civis software, technology, materials, information or Intellectual Property Rights to You. For avoidance of doubt, subject to the foregoing, You own all works created by You using the Civis Platform that use Your Data as an input. You are not required to provide any Feedback to Civis. To the extent You provide any Feedback to Civis, You agree to assign and hereby does assign all right, title and interest in and to such Feedback to Civis and acknowledge that Civis may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to You.

5.3  Your IP. As between the parties, You own all right, title and interest (including all Intellectual Property Rights) in and to Your Data and any software, technology, materials and information owned by You prior to the Effective Date or created, authored, developed, made, conceived or reduced to practice by You after the Effective Date. Nothing herein transfers any rights, title or ownership of Your Data or any Your software, technology, materials, information or Intellectual Property Rights to Civis.

5.4  Your Data. As between the parties, You own all right, title and interest in and to Your Data. You hereby grant Civis a non-exclusive, worldwide license to use, reproduce, modify, create derivative works of, display, perform and transmit Your Data in solely connection with Civis’ operation of the Civis Platform or Services provided by Civis to You. Civis may disclose Your Data to its third party service providers as necessary to assist Civis in providing the Services pursuant to confidentiality agreements that are not materially less protective of Your Data than the terms of Section 10. You acknowledge and agree that Your Data may be transmitted through Civis’ systems and reside on Civis’ systems for the Term of this Agreement, provided that Your Data will not be retained by Civis following the Term of this Agreement pursuant to Section 3. Civis will not use or disclose Your Data except as permitted in this Agreement or as is otherwise requested or authorized by You.

6. TERM AND TERMINATION

6.1  This Agreement is effective as of the Effective Date, and continues in full force and effect for the Term.

6.2  Termination.

i.) Each Order or SOW may be terminated for convenience by either party as of the last day of the then-effective term of such Order or SOW by delivering written notice of termination to the other party at least 30 days prior to the last day of the then-effective Order or SOW term. Additionally, either party may terminate an individual Order or SOW in accordance with the termination provisions described in the applicable Order or SOW. In the event of a conflict, the termination terms of an Order or SOW control. This Agreement remains in effect until the termination or expiration of all Orders and SOWs.

ii.) Either party may terminate this Agreement or any applicable SOW or Order effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within ten (10) days after receiving written notice of the breach from the non-breaching party. The non-breaching party can waive its right to terminate the Agreement under this section upon written notice to the breaching party.

iii.) Either party may terminate this Agreement immediately upon written notice at any time if: (a) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (b) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within sixty (60) calendar days; (c) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues its business; (v) a receiver is appointed over all or substantially all of the other party’s assets or business; or (vi) the other party is dissolved or liquidated.

6.3  Effect of Termination. All rights and obligations of the parties hereunder terminate upon expiration or termination of this Agreement, provided that Sections 1, 3, 3.8(ii), 4 (with respect to accrued but unpaid Fees), 5, 6.3, 7, 8, 9, 10, 11 and 12 survive expiration or termination of this Agreement. You are solely responsible for requesting a copy of Your Data prior to the effective date of termination of an applicable Order or SOW. Upon the effective date of termination, Civis will destroy Your Data, provided, however You acknowledge that copies of Your Data could be retained on Civis’ systems as part of Civis’ regular backup procedures and that such retained copies (if any) are only accessible by the limited number of administrators of Civis’ systems. You will destroy and cease use of the Licensed Data, provided, however, Civis acknowledges that copies of Licensed Data could be retained on Your systems as part of Your regular backup procedures and that such retained copies (if any) are only accessible by the limited number of administrators on Your systems. In addition, upon any termination, You will pay Civis for all portions of Services rendered by Civis and for any Deliverables accepted by You prior to the effective date of such termination, and will reimburse Civis for any out-of-pocket third party expenses incurred by Civis in the performance of any SOW which expenses cannot be mitigated by Civis through commercially reasonable efforts.

7. REPRESENTATIONS AND WARRANTIES

7.1  Each party represents and warrants to the other party that: (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation.

7.2  Civis represents and warrants that it shall perform its obligations under this Agreement in a professional and workmanlike manner. Your sole remedy, and Civis’ exclusive liability, with respect to any breach of the representation and warranty set forth in this Section 7.1 is, at Civis’ election: (i) Civis may re-perform the non-compliant Services such that they are compliant or (ii) termination of the applicable SOW to the extent it relates to such non-compliant Services and refund of a proportionate amount of the Fees paid by You under such SOW to the extent such amount relates to such non-compliant Services.

7.3  You represent and warrant that: (i) You have all necessary rights, title, and interest (including all necessary consents) in and to Your Data for its use in connection with the Civis Solutions; (ii) You will not use the Civis Solutions or Deliverable(s) in a manner or in connection with any activity that would violate any law, rule, or regulation, including those relating to discrimination, privacy, or data protection, including the Fair Credit Reporting Act and the Telephone Consumer Protection Act; (iii) You will not use the Civis Solutions or Deliverable(s), or any other materials provided by Civis, in connection with or for the purpose of determining eligibility for employment, housing, credit, or insurance purposes, or to make offers of credit or insurance; (iv) You will not use the Civis Solutions or Deliverable(s), or any other materials provided by Civis, in connection with or anticipation of litigation; (v) You use commercially reasonable administrative, technical, and physical security measures to safeguard and preserve the confidentiality, integrity, and availability of the Licensed Data, and (vi) Your Data (including the storage, reproduction, transfer, and use thereof as contemplated under this Agreement) does not and will not (x) violate any state, federal, or local law, rule or regulation, (y) infringe upon the intellectual property or privacy rights of any third parties, or (z) slander, defame, or libel any Person.

8. INDEMNIFICATION

8.1  Civis Indemnity. Civis agrees to, at its own expense, defend and/or settle any P Claim brought by a third party against You or Your Indemnitees. Civis will pay those amounts finally awarded by a court of competent jurisdiction against You or Your Indemnitees, or subject to the terms of Section 3, payable pursuant to a settlement agreement with respect to the Claim.

i.) If Civis, in its sole discretion, believes an IP Claim or an adverse judgment in connection with an IP Claim is likely, then Civis may, at its option, (a) obtain a license from such third party claimant that allows You to continue the use of the Civis Platform, (b) modify the Civis Platform or re-perform the applicable Services so as to be non-infringing, or (c) if neither (a) nor (b) is available to Civis on commercially reasonable terms, terminate this Agreement upon written notice to You and provide You with a pro-rata refund for any unused, prepaid Fees.

ii.) Civis will have no obligation or liability relating to any IP Claim that: (a) is based on modification or customization of the Civis Platform at the direction of You or any third party without the prior written consent of Civis; (b) is based on the combination or use of the Civis Platform (or any component of either) with any software, hardware, system, method, device or materials not provided or required by Civis; or (c) results from Your use of the Civis Platform in a manner that is inconsistent with its intended use or is in breach of this Agreement.

iii.) These Sections 8.1(i) and (ii) set forth the entire liability of Civis and the sole and exclusive remedy of You in the event of any claim that the Civis Platform infringes any third party Intellectual Property Right.

8.2  Your Indemnity. You agree to, at Your own expense, indemnify, hold harmless, defend and/or settle any Claim brought by a third party against Civis or its Indemnitees arising out of or relating to Your gross negligence, willful misconduct, or breach or alleged breach of Sections 1 or 7.3. You will pay those amounts finally awarded by a court of competent jurisdiction against Civis or its Indemnitees, or subject to the terms of Section 8.3, payable pursuant to a settlement agreement with respect to the Claim.

8.3  Indemnification Procedure. Each party must promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified pursuant to Sections 1 or 8.2, as the case may be. The Indemnitee will cooperate with the Indemnitor at the Indemnitor’s sole cost and expense. The Indemnitor will immediately take control of the defense and investigation of such Claim or IP Claim at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this section will not relieve the Indemnitor of its obligations under Section 8 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor may settle a Claim or IP Claim so long as any settlement (i) does not, without Indemnitee’s prior written approval, (a) involve the admission of any wrongdoing by any Indemnitee, (b) restrict any Indemnitee’s future actions (except with regard to Indemnitee’s ability to use a third party’s intellectual property), or (c) require any Indemnitee to take any action, including the payment of money, and (ii) includes a full release of the Indemnitees.

9. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. Civis and ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE FUNCTIONALITY PROVIDED BY THE CIVIS PLATFORM WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE OR THAT ALL DEFECTS WILL BE CORRECTED. Civis DOES NOT WARRANT THE RESULTS OF USE OF ANY OF THE CIVIS SOLUTIONS.

10. CONFIDENTIALITY. Each party must keep and instruct its employees and agents to keep Confidential Information confidential by using at least the same care and discretion as it uses with its own confidential information, but in no case less than a prudent and commercially reasonable standard of care. Neither party will use Confidential Information other than for purposes of performing its obligations under this Agreement or as authorized in writing by the disclosing party. The terms of this Agreement, the features, functionality and content of the Civis Platform, any Civis Platform documentation, Licensed Data, the Fees charged hereunder and any information regarding planned modifications or updates to the Civis Platform or other Civis products and services constitutes Confidential Information of Civis. Confidential Information does not include information that is: (i) publicly available through no fault of the receiving party, (ii) known to the receiving party prior to the time of disclosure by the disclosing party, (iii) lawfully and rightfully disclosed to the receiving party by a third party on a non-confidential basis, or (iv) developed by the receiving party without reference to Confidential Information. The confidentiality obligations herein are waived for Confidential Information that is required to be disclosed by law or legal process, provided that the receiving party promptly provides notice to the disclosing party of such request or requirement (to the extent such notice is legally permissible) so the disclosing party may seek appropriate protective orders. If any party, its employees or agents breaches or threatens to breach the obligations of this section, the affected party may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.

11. Limitation of Liability. WITH RESPECT TO SECTION 8 OR EITHER PARTY’S BREACH OF SECTION 10, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY AND DAMAGES UNDER THIS AGREEMENT EXCEED $1 MILLION. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER HE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FOR ALL OTHER CLAIMS, IN NO EVENT WILL EITHER PARTY’S LIABILITY AND DAMAGES UNDER THIS AGREEMENT EXCEED THE LESSER OF THE SUM OF THE TOTAL FEES PAID TO CIVIS UNDER THE APPLICABLE ORDER OR SOW DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR $250,000.

12. MISCELLANEOUS

12.1  Relationship of the Parties. The parties are independent contractors with respect to each other. This Agreement does not constitute and does not create a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party has any right to obligate or bind any other party in any manner whatsoever.

12.2  Non-Solicitation. You acknowledge that Civis’ employees are valuable assets and are difficult to replace. Accordingly, during the term of this Agreement and for a period of six months after termination, You will not directly solicit as an employee or independent contractor any of Civis’ employees that had direct contact with You or Your employees during the Term of this Agreement. The foregoing shall not be violated if the Civis employee (i) applies to Your general posting or solicitation without inducement from You or Your agents, or (ii) has been terminated from employment with Civis prior to applying to the general posting or solicitation. In the event You violate this section, Civis will be entitled to liquidated damages equal to the compensation paid by Civis to the applicable employee during the prior twelve 12 months.

12.3  Non-Exclusivity. This Agreement is non-exclusive and does not restrict or prevent Civis in any way from (i) entering similar relationships with any third party and (ii) providing similar or identical materials, information, data (excluding Your Data), products, services, or technologies to other parties. You are not restricted or prevented from (i) entering similar relationships with any third party and (ii) receiving or soliciting similar or identical materials, information, data, products, services, or technologies from other parties.

12.4  Third Party Beneficiaries. Except as expressly set forth in this Agreement, nothing herein gives, or is intended to give, any rights of any kind to any third parties.

12.5  Assignment. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, except that either party may assign its rights and obligations under this Agreement without the consent of the other party pursuant to any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all assets related to this Agreement or similar transaction. This Agreement inures to the benefit of and binds the parties’ permitted assignees, transferees and successors.

12.6  Force Majeure. Except for payment obligations, neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance is excused to the extent that it is prevented or delayed by reason of any of the foregoing.

12.7  Notices. All notices under the terms of this Agreement will be given in writing and sent by registered or certified mail, with postage prepaid and return receipt requested, to the addresses noted on the cover page of this Agreement. All notices are presumed to have been given three (3) business days following deposit in the mail as set forth in the foregoing.

12.8  Amendments. An amendment of this Agreement is binding upon the parties so long as it is in writing and executed by both parties. No regular practice or method of dealing between the parties modifes, interprets, supplements or alters in any manner the express terms of this Agreement.

12.9  Construction. In the event of a conflict between the terms of this Agreement and any Order or SOW, the terms of this Agreement control unless the parties explicitly state otherwise in an Order or SOW, and in such instances the terms of such Order or SOW will control only as to the subject matter discussed and only for that Order or SOW. This Agreement will be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party. Each party has had the opportunity to consult with counsel in the negotiation of this Agreement. Section headings are for reference purposes only, and should not be used in the interpretation hereof.

12.10  Severability; Wavier; Counterparts. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect. This Agreement may be signed in counterparts. Each of them is an original, and all of them constitute one agreement.

12.11  Governing Law; Jurisdiction; Fees. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Illinois, without reference to conflicts of laws principles. The parties agree that the state and federal courts in Cook County, Illinois will have exclusive jurisdiction and venue under this Agreement, and the parties hereby agree to submit to such jurisdiction exclusively. In the event of a final judgment by a court of competent jurisdiction, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs.

12.12  Publicity. Notwithstanding anything to the contrary, Civis is permitted to use Your name and logo to list You as a client of the Civis in external communications, marketing materials, and on Civis’ website. You will not use Civis’ name, logo, or other marks without the prior written consent of Civis, except, however, You must include Civis’ name as source attribution on all reports (including visualizations) created by You on the Civis Platform.

12.13  Entire Agreement. This Agreement constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.

12.14  FREE, TRIAL, EVALUATION, PRE-RELEASE AND BETA PRODUCTS AND APPLICATIONS ARE PROVIDED “AS-IS”.  If the Services that You are accessing are features, functionality or applications within the Civis Platform that Company provides to You on a trial, courtesy or evaluation basis or that is labeled as “Pre-Release,” “Limited Release,” “Beta” or otherwise described as experimental, untested, or not fully functional (“Free Software”), then this section of the Agreement shall also apply. To the extent that any provision in this section is in conflict with any other term or condition in this Agreement, this section shall supersede such other term(s) and condition(s) with respect to such Free Software, but only to the extent necessary to resolve the conflict. All Free Software is provided as is, without any warranty, indemnity, maintenance or support, express or implied, subject to any statutory rights that cannot be excluded or limited by law. You acknowledge that Free Software may contain bugs, errors and other problems that could cause system or other failures and data loss. You acknowledge that Civis has not promised or guaranteed to You that Free Software will be announced or made available to anyone in the future, that Civis has no express or implied obligation to You to announce or introduce Free Software, and that Civis is not obligated to introduce a product similar to or compatible with Free Software or any updates to any Free Software. Accordingly, You acknowledge that any use of the Free Software is entirely at Your own risk.

Updated January [2], 2019