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Terms and Conditions:


Terms of Use Agreement
Simplex Code Manager

March 1, 2012


This service agreement (“agreement”) is made between Civic Webware, LLC (“Civic”) with its principal address at 112 S. Main Street, Suite C, Lake Mills, Wisconsin, 53551 and the municipality listed above that the account is being created for (“Municipality”). This agreement is effective on the date that both parties have entered into this agreement (the “effective date”).


1.    Definitions
The following definitions (and additional definitions provided below) will apply:
       1.1.    “Activation Date” is defined in Section 23.
       1.2.    “Civic Content” means Civic-supplied text, audio, video, graphics and other information and data available by means of the service or on Civic’s website.
       1.3.    “Editor” means one of Municipality’s employees, representatives, consultants, contractors, or agents and other persons expressly permitted by Municipality in connection with Municipality’s business affairs who is authorized to administer the service and has been supplied editor identification(s) and password(s) by Municipality (or by Civic at Municipality’s request).
       1.4.     “Municipality Data” means data, information, or material provided or submitted by Municipality or any editor to Civic in the course of utilizing the service.
       1.5.     “Pricing Schedule” means the prices and fees stated on Civic’s website, which may change from time to time.
       1.6.    “Service” means Civic’s online service as described below and in any applicable documentation on Civic’s website. The service is an online web service that municipalities can use to create a custom website specifically for posting information related to their planning and zoning functions. All such websites are hosted on Civic’s servers as part of the service. The service includes access to a content management system that allows editors to manage the website and import component templates and customize them to fit their needs. Advanced modules are available as part of the service for an additional fee.
       1.7.    “Site Administrator” means Municipality’s representative who is authorized to create editor accounts, administer Municipality’s use of the service and otherwise represent Municipality for the purpose of this agreement.
       1.8.    “Term” means the term of this agreement as specified in Section 23.

2.     Municipality Use of the Service
       2.1.    Civic grants Municipality a license to access, administer, and use the service during the Term via the Internet under and subject to the terms of this agreement. Civic will host the service. Civic reserves the right to make changes and updates to the functionality and/or documentation of the service from time to time.
       2.2.    Municipality is licensed during the term to store, print, and display Civic Content only in connection with use of the service. No other use of Civic Content is permitted.

3.    Account Type
Municipality may establish a temporary account or a regular account. A temporary account constitutes a 30-day free trial. Temporary accounts allow editors to create a website, but it may not be publicly deployed. A temporary account may be upgraded to a regular account prior to the termination of the 30-day trial period. If a temporary account is not converted to a regular account, all Municipality Data will be lost.

4.    Fees Generally
Municipality agrees to pay fees as set forth in the pricing schedule or as Civic and Municipality otherwise agree in writing.

5.    Fees; Payment
       5.1.    Subject to the fee structure and calculations stated in the pricing schedule, license fees are due for the service annually based on Municipality’s population and use of any advanced modules. Use of advanced modules is offered at a set price regardless of population. All prices and fees are subject to change according to the terms of this agreement. Please check the pricing schedule for any changes.
       5.2.    Civic will invoice annually for use of the service. There will be no invoices for temporary accounts. For all regular accounts, the initial invoice will be sent prior to the activation date (as defined in Section 23). All invoices for any charges under this agreement are due and payable within 30 days of invoice date. Municipality’s account will be considered delinquent (in arrears) if payment in full is not received by the due date specified on the invoice. Amounts due are exclusive of all applicable taxes, levies, or duties, and Municipality will be responsible for payment of all such amounts. All amounts are payable in U.S. dollars. If Municipality believes that any specific charge under this agreement is incorrect, in order to obtain a credit, Municipality must contact Civic in writing within 30 days of invoice date setting forth the nature and amount of the requested correction; otherwise invoices are final.

6.    Excess Data Storage Fees
The maximum disk storage space for Municipality Data provided to Municipality at no additional charge is specified on the pricing schedule. If the amount of disk storage required for Municipality’s use exceeds this limit, Municipality can purchase more storage.

7.    Non-Payment
If Municipality’s account becomes delinquent (falls into arrears), in addition to other applicable remedies, Civic reserves the right to suspend and/or terminate Municipality’s access to the service and/or terminate this agreement, upon five days' e-mail notice. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including reasonable attorneys' fees and court costs. Municipality will be charged all applicable fees during any period of suspension.

8.    Account Information Submitted to Civic
Municipality agrees to provide Civic in writing with billing and contact information as Civic may reasonably require, including Municipality’s legal entity name, street address, billing address, and authorized billing contact’s name, e-mail address and telephone number. Municipality agrees to update this information promptly by means of e-mail to support@simplexcodemanager.com  and in any case within 15 days, if there is any change.

9.    Appropriate Use of the Service
       9.1.    Municipality may not sublicense, resell or supply the service for use in or for the benefit of any other organization, entity, business, or enterprise without Civic’s prior written consent.
       9.2.    Municipality agrees not to submit to the service any material that is illegal, misleading, defamatory, indecent or obscene, in poor taste, threatening, infringing of any third party proprietary rights, invasive of personal privacy, or otherwise objectionable (collectively “objectionable matter”). Municipality will be responsible to ensure that its editors do not submit any objectionable matter. In addition, Civic may, at its option, adopt rules for permitted and appropriate use and may update them from time to time on the Civic website; Municipality and Municipality’s editors will be bound by any such rules. Civic reserves the right to remove any Municipality Data that constitutes objectionable matter or violates any Civic rules regarding appropriate use, but is not obligated to do so. Municipality and Municipality’s editors will comply with all applicable laws regarding Municipality Data, use of the service and Civic Content, including laws involving private data and any applicable export controls. Civic reserves the right to terminate this agreement for cause in case the Municipality materially breaches the provisions of this section.
       9.3.    Civic reserves the right to suspend or terminate immediately any Municipality or editor account or activity that is disrupting or causing harm to Civic’s computers, systems or infrastructure or to other parties, or is in violation of state or federal laws regarding “spam,” including, without limitation, the CAN-SPAM Act of 2003. Any such spamming activity by Municipality will be a material breach of this agreement.

10.    Passwords and Access
Municipality is responsible for all activities that occur under Municipality’s editor and site administrator accounts. Municipality is responsible for maintaining the security and confidentiality of all editor and site administrator usernames and passwords. Municipality agrees to notify Civic immediately of any unauthorized use of any service username or password or account or any other known or suspected breach of security.

11.    Municipality Data
       11.1.    All Municipality Data submitted by Municipality to Civic, whether posted by Municipality or by editors, will remain the sole property of Municipality or such editors to the full extent provided by law.
       11.2.    Municipality will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Municipality Data. Civic will not use the Municipality Data for any purpose other than to provide the service to Municipality and for statistical reporting purposes. Civic may aggregate anonymous statistical data regarding use and functioning of its system by its various editors. Such aggregated statistical data will be the sole property of Civic.
       11.3.    Municipality is responsible for backing up Municipality Data and keeping original copies of all Municipality Data. Backup and data export services provided by Civic may be available at additional cost; Municipality may contact Civic customer support for details.
       11.4.    Civic will use commercially reasonable security measures to protect Municipality Data against unauthorized disclosure or use.

12.    Limited License to Municipality Data
Subject to the terms and conditions of this agreement, Municipality grants to Civic a non-exclusive license to use, copy, store, transmit and display Municipality Data to the extent reasonably necessary to provide and maintain the service.

13.    Civic’s Ownership
Civic and its suppliers retain all rights in the service and Civic Content. This agreement grants no ownership rights to Municipality. No license is granted to Municipality except as to use of the service as expressly stated herein. The Civic name, Civic logo, Civic Content, and product names associated with the service are trademarks and/or copyrights of Civic or third parties, and they may not be used without Civic’s prior written consent.

14.    Restrictions on Use of the Service
Municipality may not alter, resell or sublicense the service or provide it as a service bureau. Municipality agrees not to reverse engineer the service or its software or other technology. Municipality will not use or access the service to (1) build a competitive product or service, (2) make or have made a product using similar ideas, features, functions or graphics of the service, (3) make derivative works based upon the service or Civic Content, or (4) copy any features, functions, or graphics of the service or Civic Content. Municipality will not “frame” or “mirror” the service. Use, resale, or exploitation of the service and/or Civic Content except as expressly permitted in this agreement is prohibited.

15.    Privacy

Civic reserves the right to establish and modify its privacy and security policies from time to time in its business judgment and as it deems required for compliance with applicable law.

16.    Warranty Regarding the Service
Civic warrants that the service will perform in all material respects to the functionality as described in applicable online user documentation available via Civic’s website.

17.    Service Level Warranty
Civic warrants during the term of this agreement that the service will meet industry standards in regard to service level and uptime. If Civic does not achieve such service level and uptime standards, Civic will provide Municipality upon request with a credit as Municipality’s sole and exclusive remedy. This credit does not apply to the extent that the failure to achieve the service level or uptime is due to (1) circumstances that are subject to the force majeure clause of this agreement, (2) scheduled maintenance and system upgrades, or (3) Municipality’s misuse of the service. To claim a remedy under this section, Municipality is required to notify Civic within 15 days of the occurrence of the failure to provide the applicable service level.

18.    Additional Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Municipality represents and warrants that it has not falsely identified itself or provided any false information to gain access to the service and that Municipality’s billing information is correct.

19.    Advanced Modules
       19.1.    Municipality may upgrade the service to include certain advanced modules as made available by Civic. Each module will be billed, and Municipality agrees to pay, the price as listed on the pricing schedule for each respective module. Use of such advanced modules is bound by the terms of this agreement.
       19.2.    Access to modules that Municipality has upgraded to will be available as part of the service during the Term unless otherwise agreed in writing.

20.    Indemnification
       20.1.    Civic will defend, indemnify, and hold Municipality (and its officers, directors, employees, and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising from any third-party claim, suit, action, or proceeding arising from the actual or alleged infringement of any United States copyright, patent, trademark, or misappropriation of a trade secret by the service or Civic Content (other than that due to Municipality Data). In case of such a claim, Civic may, in its discretion, procure a license that will protect Municipality against such claim without cost to Municipality, replace the service with a non-infringing service, or if it deems such remedies not practicable, Civic may terminate the service and this agreement without fault, provided that in case of such a termination, Municipality will receive a pro-rata refund of the license fees prepaid for use of the service not yet furnished as of the termination date. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
       20.2.    Municipality will defend, indemnify, and hold Civic (and its officers, directors, employees, and agents) harmless from and against all losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (1) alleging that Municipality Data or other data or information supplied by Municipality infringes the intellectual property rights or other rights of a third party or has caused harm to a third party, or (2) arising out of breach of Sections 9 (Appropriate Use of the Service) or 10 (Passwords and Access) above.
       20.3.    Municipality will defend, indemnify, and hold Civic (and its officers, directors, employees and agents) harmless from any expense or cost arising from any third party subpoena or compulsory legal order or process that seeks Municipality Data and/or other Municipality-related information or data, including, without limitation, prompt payment to Civic of all costs (including attorneys’ fees) incurred by Civic as a result. In case of such subpoena or compulsory legal order or process, Municipality also agrees to pay Civic for its staff time in responding to such third party subpoena or compulsory legal order or process at Civic’s then applicable hourly rates.
       20.4.    In case of any claim that is subject to indemnification under this agreement, the party that is indemnified (“indemnitee”) will provide the indemnifying party (“indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this agreement. Each party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this section to the indemnitor upon request. Claims may be settled without the consent of the indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.

21.    Disclaimers and Limitations
       21.1.    THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY CIVIC. THERE ARE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED IN SECTIONS 16, 17 AND 18 ABOVE, THE SERVICE AND CIVIC CONTENT ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. MUNICIPALITY ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR MUNICIPALITY’S PURPOSES. CIVIC DOES NOT WARRANT THAT USE OF THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED. CIVIC IS NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY MUNICIPALITY OR EDITORS OR FOR THE OPERATION OR PERFORMANCE OF THE INTERNET.
       21.2.    Except with regard to Municipality’s payment obligations and with regard to either party’s indemnification obligations, in no event will either party’s aggregate liability exceed the license fees due for the 12-month period measured by the monthly payment obligation at the time of the event or circumstance giving rise to such claim. Except with regard to Municipality’s breach of Sections 9 or 10, in no event will either party be liable for any indirect, special, incidental, consequential damages of any type or kind (including, without limitation, loss of data, revenue, profits, use or other economic advantage).
       21.3.    The service may include gateways, links or other functionality that allows Municipality and/or editors to access third-party services (“third-party services”) and/or third-party content and materials (“third-party materials”). Civic does not supply and is not responsible for any third-party services or third-party materials, which may be subject to their own licenses, end-user agreements, privacy and security policies, and/or terms of use. CIVIC MAKES NO WARRANTY AS TO THIRD-PARTY SERVICES OR THIRD-PARTY MATERIALS.

22.    Confidentiality
       22.1.    “Confidential Information” means non-public information, technical data or know-how of a party and/or its affiliates, which is furnished to the other party in written or tangible form in connection with this agreement. Oral disclosure will also be deemed confidential information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential.
       22.2.    Notwithstanding the foregoing, confidential information does not include information which is (1) already in the possession of the receiving party and not subject to a confidentiality obligation to the providing party; (2) independently developed by the receiving party; (3) publicly disclosed through no fault of the receiving party; (4) rightfully received by the receiving party from a third party that is not under any obligation to keep such information confidential; (5) approved for release by written agreement with the disclosing party; or (6) disclosed pursuant to the requirements of law, regulation, or court order, provided that the receiving party will promptly inform the providing party of any such requirement and cooperate with any attempt to procure a protective order or similar treatment.
       22.3.    Neither party will use the other party’s confidential information except as reasonably required for the performance of this agreement. Each party will hold in confidence the other party’s confidential information by means that are no less restrictive than those used for its own confidential materials. Each party agrees not to disclose the other party’s confidential information to anyone other than its employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform such party’s obligations hereunder. The confidentiality obligations set forth in this section will survive for one year after the termination or expiration of this agreement.
       22.4.    Upon termination or expiration of this agreement, except as otherwise agreed in writing or otherwise stated in this agreement, each party will, upon the request of the disclosing party, either (1) return all of such confidential information of the disclosing party and all copies thereof in the receiving party’s possession or control to the disclosing party; or (2) destroy all confidential information and all copies thereof in the receiving party’s possession or control. The receiving party will then, at the request of the disclosing party, certify in writing that no copies have been retained by the receiving party, its employees or agents.
       22.5.    In case a party receives legal process that demands or requires disclosure of the disclosing party’s confidential information, such party will give prompt notice to the disclosing party, if legally permissible, to enable the disclosing party to challenge such demand.

23.    Term and Termination
       23.1.    The term commences on the effective date.
       23.2.    For temporary accounts, the term terminates 30 days after the effective date.
       23.3.    For regular accounts, the “activation date” will be the date that Civic first makes the service available to Municipality and provides e-mail or written notice of such availability to Municipality. The initial term of this agreement (“initial term”) will begin on the effective date and will end one year from the activation date. This agreement will automatically renew for successive one-year periods (each a “renewal term”) beginning at the end of the initial term, unless Municipality provides notice of termination not less than 60 days before the end of the initial term or current renewal term, as applicable. Applicable pricing, including monthly minimum fees, will continue unchanged from the previous term unless Civic notifies Municipality of changes in pricing at least 60 days prior to the expiration of the initial term or current renewal term, as applicable. Civic reserves the right to terminate this agreement for convenience not less than one year’s notice.
       23.4.    Civic, in its sole discretion, may suspend or terminate Municipality’s username(s) and password(s), account(s), or use of the service and/or terminate this agreement if Municipality materially breaches this agreement and such breach has not been cured within 10 business days of notice of such breach.
       23.5.    In the event that this agreement is terminated (for any reason), Civic will, within 10 days of Municipality’s request, make available in spreadsheet form all alphanumeric Municipality Data that is contained in a database (“grids”). Civic will provide exportability of all non-alphanumeric Municipality Data in the “media manager.” Municipality agrees and acknowledges that Civic has no obligation to retain and may delete Municipality Data that remains in Civic’s possession or control more than 30 days after termination.
       23.6.    The following provisions will survive termination: all definitions, Municipality’s accrued financial obligations, the license to Municipality Data to the extent reasonable for Civic’s discharge of its post-termination obligations, and the following Sections and paragraphs: 1 (Definitions), 7.2 (Overdue Payments), 11.1 (Municipality Data), 13 (Civic’s Ownership), 14 (Restrictions on Use of the Service), 20 (Indemnification), 21 (Disclaimers and Limitations), 22 (Confidentiality), 22.4 (Return of Municipality Data), 23.6 (Survival of Provisions), 24 (Notice), and 26 (Miscellaneous).

24.    Notice
Civic may give notice by means of electronic mail to Municipality’s e-mail address on record in Municipality’s account or by written communication sent by first class mail or by courier service to Municipality’s address on record in Municipality’s account. Such notice will be deemed to have been given upon the expiration of 36 hours after mailing (if sent by first class mail) or sending by courier or 12 hours after sending (if sent by e-mail), or, if earlier, when received. Municipality may give notice to Civic by e-mail or first class mail. A party may, by giving notice, change its applicable address, e-mail, or other contact information.

25.    Assignment
This agreement may not be assigned by Municipality without the prior written approval of Civic but may be assigned by Civic to (1) a parent or subsidiary, (2) an acquirer of all or substantially all of Civic’s assets involved in the operations relevant to this agreement, or (3) a successor by merger or other combination. Any purported assignment in violation of this section will be void. This agreement may be enforced by and is binding on permitted successors and assigns.

26.    Miscellaneous
       26.1.    Choice of Law; Jurisdiction. This agreement will be interpreted fairly in accordance with its terms, without any strict construction in favor of or against either party and in accordance with the laws of the State of Wisconsin and applicable US federal law. The state and federal courts located in the city of Madison, Wisconsin will have exclusive jurisdiction and venue over any dispute or controversy arising from or relating to this agreement or its subject matter.
       26.2.    Severability. If any provision of this agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
       26.3.    No Agency. No joint venture, partnership, employment, or agency relationship exists between Municipality and Civic as a result of this agreement or use of the service.
       26.4.    No Waiver. The failure of Civic to enforce any right or provision in this agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Civic in writing.
       26.5.    Force Majeure. Except for the payment by Municipality, if the performance of this agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God, or any other causes beyond the control of such party, that party will be excused from such to the extent that it is prevented, hindered, or delayed by such causes.
       26.6.    Entire Agreement. This agreement, together with any applicable schedule(s), comprises the entire agreement between Municipality and Civic and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. This agreement may be changed at Civic’s sole discretion or as Civic may communicate to Municipality from time to time.   



If you have any questions about this agreement, please contact Civic Webware at support@simplexcodemanager.com or at the mailing address above.
 
 
 

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Simplex Code Manager
is a service of Civic Webware