Customer Agreement

BY EXECUTING AN ORDER OR STATEMENT OF WORK THAT REFERENCES THIS CUSTOMER AGREEMENT (“AGREEMENT”), YOU AGREE TO BE BOUND TO  THE TERMS OF THIS AGREEMENT.   AS USED IN THIS AGREEMENT,  “CUSTOMER” MEANS THE LEGAL ENTITY ON WHOSE BEHALF THIS AGREEMENT IS ENTERED INTO  AND “CIVIS” MEANS CIVIS ANALYTICS, INC., A DELAWARE CORPORATION.

1. DEFINITIONS
   “
   Civis IP
   ” means any concepts, processes, approaches, methodologies, know-how, models, tools, workflows, data, surveys, survey responses, market research, information, knowledge, experience, and other Intellectual Property Rights of Civis, including without limitation Civis Solutions. “
   Civis Platform
   ” means any Civis software hosted and made available by Civis as a software- or platform-as-a-service, which includes but is not limited to Civis’s data analytics platform and any and all current and future features, functionality, and improvements, modules, and applications that are developed for, ran or managed on such platform.
   “Civis Solutions
   ” means all or any portion of Civis Platform, Services, and/or Licensed Data, including but not limited to the underlying source code, technology, algorithms, models, features, and functionality.“
   Claim
   ” means any claim, action or suit, including actions by government regulatory agencies.“
   Confidential Information
   ” means all confidential, non-public or proprietary information and materials provided or made available by a disclosing party that by the nature of the information or the circumstances of disclosure should reasonably be considered to be confidential. For avoidance of doubt, Licensed Data and Customer Data are considered Confidential Information. “
   Customer Data
   ” means all data provided to Civis by or on behalf of Customer.“
   Deliverables
   ” means written reports, toplines and crosstabs of survey results, memos, user instructions, and other materials specifically identified as Deliverables in the applicable Statement of Work that Civis delivers to Customer.“
   End User
   ”   means an employee, authorized agent of Customer or other individual authorized by Customer, and approved by Civis, that has been assigned a username and password to access and use Civis Platform. “
   Intellectual Property Rights
   ” means all forms of proprietary rights, title, interest, and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works,
   droit moral
   (moral rights), survey responses and all similar rights of every type that may exist now or in the future in any jurisdiction, including all related applications and registrations and rights to apply for any of the foregoing.“
   Licensed Data
   ” means (i) data, proprietary scores, models, categories, projections, forecasts, and other analytical tools;(ii) all surveys, survey responses, and respondent data (including metadata) collected in connection with Services that are licensed from Civis or received by Customer as a part of any Deliverables, and (iii) any and all data that is labeled as Licensed Data by Civis that is not Customer Data.“
   Order
   ” means a written order that references this Agreement and is signed by authorized representatives of both parties and describes Civis Solutions that Civis licenses, provides or makes available to Customer.“
   Services
   ” means any services that Civis provides or makes available to Customer, which may include access to and use of Civis Platform, analytics services, support, surveys, message testing, analytics services, modeling, and/or related services as defined in the applicable Statement of Work or Order.“
   Statement of Work
   ” or “
   SOW
   ” means a document signed by authorized representatives of both parties that references this Agreement and describes Services and/or Deliverables.“
   Third Party Materials
   ” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment or components of or relating to Civis Solutions that are not proprietary to Civis or Customer Data.“
   Usage Limitations
   ” means Customer’s data storage limits, monthly bandwidth caps, and other limits and restrictions applicable to Customer’s use of Civis Platform, as set forth in an Order.

2. CIVIS SOLUTIONS
   Point of Contact. Each party will appoint a main point of contact, who will be identified in each SOW or Order, to serve as its primary point of contact for day-to-day communications, consultation, and decision-making regarding Civis Solutions. Customer will ensure its point of contact has sufficient organizational authority, skill, experience, and other qualifications to facilitate day-to-day consents and approvals. Changes. For any change to contracted Civis Solutions, the parties will agree upon the scope of the change and any resulting adjustment to the cost and/or timing. Changes will be documented in a change order or additional SOW or Order. Civis will not be obligated to provide any additional or different Civis Solutions until the change order or additional SOW or Order has been signed by authorized representatives of both parties.Reporting. Customer will report to Civis any unauthorized use, disclosure or access of or to Civis Solutions within seventy-two hours of discovery. Customer’s report must identify, to the extent such details are available: (i) the nature of the unauthorized use, disclosure or access; (ii) the part(s) of Civis Solutions used, disclosed or accessed without authorization; (iii) the parties involved in the unauthorized use, disclosure or access and, if applicable, all parties who received the unauthorized disclosure; (iv) what Customer has done or will do to mitigate the effects of the unauthorized use, disclosure or access; and (v) what corrective action(s) Customer has taken or will take to prevent future similar unauthorized use, disclosure or access. Customer will provide additional information as reasonably requested by Civis. Civis reserves the right to audit Customer’s use of the applicable Civis Solutions.Suspension. Civis may suspend Customer’s access to or use of any Civis Solutions without notice if: (i) in the sole discretion of Civis, such action is necessary to prevent material errors or harm to any party or to limit Civis’s liability; (ii) Customer attempts to use or uses Civis Solutions in a manner not authorized by this Agreement, including in violation of the use restrictions in this Agreement and/or in the applicable SOW or Order, (iii) Customer attempts to use or uses Civis Solutions in any manner that infringes upon Civis IP or third-party Intellectual Property Rights, or violates any applicable law, rule or regulation; or (iv) Customer fails to make payments as detailed in Section 6 below or  the applicable SOW or Order.Usage Data. Customer acknowledges and agrees that Civis collects information about the performance and Customer’s use of Civis Solutions (“
   Usage Data
   ”) and can create anonymized analyses of aggregate data and reports, evaluations, benchmarking tests, studies, analyses, and other work product from Usage Data (“
   Usage Data Analyses
   ”); provided, however, that no Usage Data or Usage Data Analyses will identify or permit identification of Customer. Civis has exclusive ownership rights to, and the exclusive right to use and distribute, such Usage Data and Usage Data Analyses for any purpose.

3. CIVIS PLATFORM
   License. If Civis Platform is made available to Customer, Civis grants to Customer a revocable, non-exclusive, non-transferable, non-sublicensable license to use Civis Platform solely for Customer’s internal business operations during the term of the applicable Order and subject to the terms of this Agreement. As between Civis and Customer, Civis reserves all rights in and to Civis Platform, including the underlying source code, algorithms, features, and functionality. End Users. Civis grants Customer the right to access and use Civis Platform, exercisable through authorized End Users, during the term of the applicable Order solely for authorized purposes supporting Customer’s internal business operations, subject to the terms of this Agreement and applicable laws and regulations. Customer is responsible for all activities related to End Users’ use of Civis Platform. General. Civis reserves the right to modify and update the features and functionality of Civis Platform, and will provide commercially reasonable notice of material modifications or updates that may affect the functionality of Civis Platform. Uptime. Civis will use commercially reasonable efforts to make Civis Platform available at least 99.5% of the time, calculated monthly on a per-minute basis, excluding planned downtime of which Customer is notified in advance (the “
   Uptime Commitment
   ”).  The Uptime Commitment will not apply if Civis Platform is unavailable due to: (i) equipment, software or service malfunctions not within the reasonable control of Civis; or (ii) other 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. Customer further acknowledges that any requested change to Civis Platform configurations pursuant to a change order may result in reduced Civis Platform functionality for up to five business days or as agreed upon in the applicable Order or change order. Support. Civis will provide technical support to Customer, if indicated in the applicable Order, during Civis’s normal business hours. Technical support consists of answering questions from End Users regarding use of Civis Platform,  correcting  any errors within Civis Platform, providing a workaround or offering any other resolution in Civis’s reasonable determination. Only End Users may request technical support. Civis will use commercially reasonable efforts to respond to each case within two business days 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. Technical support does not include assistance or advice regarding data analytics generally or anything other than the technical use of or errors within Civis Platform. Any such assistance or advice is provided only pursuant to an Order or SOW.

4. SERVICES
   General. The SOW will identify: (i) the nature of the Services; (ii) Deliverable(s) and/or Licensed Data, if any; (iii) acceptance criteria and process, if any; (iv) a time schedule for estimated performance of Services; and (v) fixed prices or labor rates for Civis Solutions. Provision of Services. Civis will provide Services using its reasonable efforts and judgment based on the information available to Civis. To the extent Civis uses subcontractors in the performance of Services, it remains liable for their performance. If Services include Third Party Materials, additional terms applicable to Customer’s access to and use of Third Party Materials will be provided upon Customer’s request.Customer Resources. Customer will maintain and make available to Civis, at Customer’s expense and in a timely manner: (i) qualified personnel or representatives designated by Customer to consult with Civis in connection with Services; (ii) access to Customer Data, if applicable; and/or (iii) any other additional documentation or resources specified in the applicable SOW or Order or as Civis may reasonably request to enable Civis to perform Services. If Customer does not provide such resources timely, Civis’s time for performance of Services may, at Civis’s option, be extended by the amount of time corresponding to such delay. Customer’s delays will not affect invoicing schedules or Customer payment obligations unless agreed upon in writing by Civis.Completion Services. Services are complete on the earliest of: (i) achievement of all milestones in the Order or SOW; or (ii) Customer’s production use of Civis Solutions.Customer’s Management. Customer acknowledges that Services and/or Deliverables are advisory in nature, and Civis has no responsibility for Customer’s management decisions or management functions in connection with Services and/or Deliverables.

5. LICENSED DATA
   License. If Licensed Data is made available to Customer or is included in a Deliverable (such as, for example, scores, survey response data or data added to Customer Data), Civis grants to Customer a revocable, non-exclusive, non-transferable, non-sublicensable license to use Licensed Data solely for Customer’s internal business operations during the term of the applicable SOW or Order and subject to the terms of this Agreement, solely for the purpose listed in the SOW or Order. As between Civis and Customer, Civis reserves all rights in and to Licensed Data except for the usage right granted in this Section. Restrictions on Use. Licensed Data is provided for Customer’s internal use only. Customer shall not share with, and shall not cause or permit, any third party, to: (i) copy, distribute, rent, lease, lend, sublicense, transfer or convey Licensed Data or any of its fields, records or formats to, or use it for the benefit of, any third party, except as expressly permitted by a SOW or Order; (ii) decompile, reverse engineer or disassemble Licensed Data or otherwise attempt to reconstruct or discover any underlying ideas, file formats, methodologies or hidden or protected fields or filters contained within Licensed Data; (iii) create derivative works of or from Licensed Data except as expressly permitted by a SOW or Order; (iv) modify, remove or obscure any copyright, trademark, patent or other notices or legends that appear on Licensed Data or Deliverable(s); or (v) use or refer to Licensed Data to develop a competitive offering; (vi) provide any Licensed Data to Catalist, LLC, Aristotle, Inc., Acxiom Corp., or Experian Information Solutions, Inc. without prior written consent from Civis; (vii) contact any of the individuals listed in Licensed Data without independently obtaining any consents required under applicable law for such outreach; or (viii) use Licensed Data in violation of any applicable laws or Customer’s own posted privacy policies. Restrictions on Export. Customer shall not make Licensed Data or any of its fields, records or formats available outside of Civis Platform, except as expressly permitted by a SOW or Order.  In the event that Customer is specifically granted the license to export Licensed Data outside of Civis Platform pursuant to, and as detailed in, an Order or SOW, Customer shall maintain a data security program that contains administrative, technical, and physical safeguards appropriate to the level of complexity, nature, and scope of the Licensed Data.  Such safeguards will meet industry standards including, but not limited to: secure the confidentiality of Licensed Data; protect against any anticipated threats or hazards to the security or integrity of Licensed Data; and protect against unauthorized access to or use of Licensed Data that could result in substantial harm or inconvenience.Disclaimer. Civis may not be able to furnish any Licensed Data when conditions are not in accordance with Civis’s standards, or if Civis is otherwise limited by or restricted from providing such data by a third-party owner of certain Licensed Data.

6. FEES AND PAYMENT TERMS
   Customer will pay Civis the fees set forth in each SOW or Order. Unless otherwise stated in the SOW or Order, fees will be invoiced monthly, in advance. Invoices are payable in US dollars within thirty days of the invoice date. Any amounts payable under this Agreement that are not received by the date due will be subject to a late fee of the lesser of 1.5% per month or the maximum charge permitted by law. Fees do not include taxes, which are Customer’s responsibility.

7. OWNERSHIP
   Deliverables. Civis grants to Customer a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide license to make, use, sell, offer for sale, import, and otherwise exploit any Deliverables, provided that Customer acknowledges and agrees that Deliverables may incorporate or be produced using Civis IP, and that such Civis IP is and remains the sole property and Confidential Information of Civis. In addition to the license granted to Customer with respect to any Licensed Data included in a Deliverable, Civis grants to Customer a non-exclusive, royalty-free, non-transferable, non-sublicensable license to use Civis IP that is incorporated into any Deliverable solely for Customer’s internal business purposes during the term of the Order and/or SOW. Nothing in this Agreement or any SOW or Order transfers or assigns Customer any ownership interest in Civis IP or in any technology, materials, information or data created or provided by Civis.  Notwithstanding anything to the contrary in a SOW or Order, any Deliverables described in a SOW that are Civis Solutions features, functionalities or improvements are a part of Civis Solutions licensed to Customer and do not entitle Customer to any ownership rights therein.Reservation of Rights. As between the parties, Civis owns all right, title, and interest to Civis IP and Licensed Data. Nothing in this Agreement grants any rights, title or ownership of any Civis Solutions or other Civis software, technology, materials, information or Intellectual Property Rights to Customer. Customer Data. As between the parties, Customer owns all right, title, and interest in and to Customer Data. Customer hereby grants to Civis during the Term (as defined in Section 8) a non-exclusive, worldwide license to use, reproduce, modify, create derivative works of, display, perform, and transmit Customer Data solely in connection with Civis’s performance of the Services, including operation of Civis Platform. Civis may disclose Customer 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 Customer Data than the terms of Section 10. Customer acknowledges and agrees that Customer Data may be transmitted through Civis’s systems and reside on Civis’s systems for the purposes of performing Services. Civis will not use or disclose Customer Data except as permitted in this Agreement or as otherwise requested or authorized by Customer, or as required by law.  Civis reserves the right to remove any Customer Data which Civis becomes aware of that 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 U.S. privacy right.Feedback. To the extent Customer provides any suggestions, proposals, ideas, recommendations or other feedback regarding improvements to Civis Solutions and related resources (“
   Feedback
   ”), Customer grants to Civis a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import, and otherwise exploit Feedback (including by incorporation of such feedback into Services) without restriction. Customer shall ensure that: (i) Feedback does not identify Customer or its End Users, or include any non-public Customer Data; and (ii) Customer has obtained requisite authorization from any End User or other third party to grant the license described in this Section. Customer acknowledges 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 Customer. For the avoidance of doubt, Feedback does not constitute Customer Confidential Information.

8. TERM AND TERMINATION
   Term. This Agreement is effective as of the Effective Date and continues in full force and effect until (i) all Orders and/or SOWs have expired or have been terminated; or (ii) all Services have been completed, whichever is later (the “
   Term
   ”). Each Order and/or SOW will be valid for the period indicated in the Order and/or SOW unless earlier terminated in accordance with this Agreement.Termination for Cause. Either party may terminate this Agreement or any applicable SOW or Order effective immediately upon written notice if the other party (i) is in material breach of any obligation, representation or warranty hereunder and has failed to cure such material breach (if capable of cure) within thirty (30) days after receiving written notice identifying the breach; (ii) files a petition for bankruptcy or insolvency or is adjudicated as bankrupt or insolvent, or  a petition in bankruptcy or any other insolvency law is filed against the other party and such petition is not removed or resolved within sixty calendar days; (iii) makes an assignment for the benefit of its creditors or an arrangement for its creditors; or (iv) discontinues its business or is dissolved or liquidated, or a receiver is appointed over all or substantially all of the other party’s assets or proceeds.Effects of Termination. Upon expiration or termination of this Agreement: (i) all licenses and rights granted by Civis hereunder will immediately cease; (ii) Civis will promptly destroy Customer Data, except for copies of Customer Data retained on Civis’s systems as part of Civis’s regular backup procedures, which will be destroyed according to Civis’s normal data retention and destruction practices; (iii) Customer will destroy and cease all use of Licensed Data immediately; (iv) Civis and Customer shall promptly cease all use of and destroy any of the other party’s Confidential Information in their possession or control; and (v) Customer will pay Civis for all Services rendered and expenses incurred by Civis and any Deliverables and/or Licensed Data delivered by Civis prior to the effective date of such termination. The following Sections survive expiration or termination of this Agreement: 1,2.3, 2.5, 7, 8, 10, 11, 12, 13, and 14.

9. REPRESENTATIONS AND WARRANTIES
   Mutual. Each party represents and warrants to the other party that: (i) it has the full power and authority to enter into this Agreement; (ii) execution and performance of its obligations under this Agreement do not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid, and binding obligation.Civis. Civis represents and warrants that Civis will perform its obligations under this Agreement in a professional and workmanlike manner and in compliance with applicable laws, rules, and regulations.Customer. Customer represents and warrants that: (i) Customer is solely responsible for Customer Data, including without limitation its format, integrity, accuracy, completeness, and maintenance, and Customer has all necessary rights, title, and interest (including all necessary consents) in and to Customer Data for its use in connection with Civis Solutions; (ii) Customer will not use Civis Solutions, Deliverables or any other materials provided by Civis 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, or any provision of this Agreement; (iii) Customer will not use Civis Solutions, Deliverables 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) Customer will not use Civis Solutions, Deliverables or any other materials provided by Civis, in connection with or anticipation of litigation, including without limitation for preparation of expert testimony; and (v) Customer Data (including the storage, reproduction, transfer, and use thereof as contemplated under this Agreement) does not and will not violate any applicable law, rule or regulation or infringe upon the Intellectual Property Rights or privacy rights of, slander, defame or libel any person.Non-Production Material.  If any materials are provided by Civis on a trial, courtesy or evaluation basis or are labeled as “Pre-Release,” “Limited Release,” “Beta” or otherwise described as experimental, untested or not fully functional (“
   Non-Production Material
   ”), this Section shall supersede other terms and conditions to the extent necessary to resolve the conflict. All Non-Production Material is provided as-is, without any representations, warranties or indemnification obligations, express or implied, subject to any statutory rights that cannot be excluded or limited by law. Non-Production Material may contain defects, errors, and other problems that could cause system or other failures and data loss. Accordingly, Customer acknowledges that any use of Non-Production Material is entirely at Customer’s own risk. Customer also acknowledges that Civis has no obligation, express or implied, to: (i) announce or make available any Non-Production Material to anyone in the future; (ii) introduce a product similar to or compatible with Non-Production Material; or (iii) provide any updates to any Non-Production Material. Data Processing Addendum. Where applicable, the Parties shall comply with the
   Data Processing Addendum
   incorporated into this Agreement.

10. CONFIDENTIALITY
    Each party agrees to protect Confidential Information of the other party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Limited Use. Except as authorized in writing by the disclosing party, neither party shall use any Confidential Information of the other party for any purpose other than performing its obligations under this Agreement and/or SOW or Order. Limited Disclosure. The receiving party may disclose the disclosing party’s Confidential Information to its employees, agents or contractors, only where (i) they have a “need to know” such Confidential Information in order to assist the receiving party in performing its obligations under this Agreement and/or SOW or Order; and (ii) they have signed an agreement binding them to disclosure and use provisions no less protective that those set forth in this Agreement. Except as authorized in this Section, neither party will disclose the other party’s Confidential Information to any third party.  Exclusions. Confidential Information does not include information that is: (i) publicly available through no fault of the receiving party; (ii) known without an obligation of confidentiality 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) independently developed by the receiving party without use of, reference or access to Confidential Information. Legal Disclosure. The obligations of this Section 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 or other confidential treatment. Confidential Information that is required to be disclosed by law or legal process must remain confidential for all other purposes. Relief. If either 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, without the need to post a bond or other surety. Upon termination or expiration of this Agreement, Confidential Information will be handled as detailed in Section 8.

11. INDEMNIFICATION
    Civis Indemnity. Civis agrees to, at its own expense and at Customer’s option, defend and hold harmless Customer against any claim brought by a third party against Customer that Services or Civis Platform infringe a US patent or copyright (an “
    IP Claim
    ”). Subject to the terms of Section 11.4, Civis will indemnify Customer for those amounts finally awarded by a court of competent jurisdiction against Customer, or payable pursuant to a settlement agreement, with respect to an IP Claim. If Civis, in its sole discretion, believes an IP Claim or an adverse judgment in connection with an IP Claim is likely, then Civis shall, at its option: (i) obtain a license from such third party claimant that allows Customer to continue the use of the infringing material; (ii) modify the Deliverable or Civis Solution or re-perform the applicable Services so as to be non-infringing; or (iii) if neither (i) nor (ii) is available to Civis on commercially reasonable terms, terminate this Agreement upon written notice to Customer and provide Customer with a pro-rata refund for any unused, prepaid Fees. This Section sets forth the entire liability of Civis and the sole and exclusive remedy of Customer for any IP Claim.Exclusions. Civis will have no obligation or liability relating to any IP Claim that: (i) is based on modification or customization of any Civis Solutions and/or Deliverables at the direction of Customer or any third party without the prior written consent of Civis; (ii) is based on the combination or use of any Civis Solutions with any software, hardware, system, method, device or materials not provided or required by Civis; (iii) results from Customer’s use of any Civis Solutions in a manner that is inconsistent with its intended use or is in breach of this Agreement or in violation of applicable laws, rules or regulations; (iv) results from Customer’s failure to implement updates to Civis Solutions, as applicable; or (v) results from Customer’s misconduct, fraud, gross negligence or breach or alleged breach of this Agreement. Customer Indemnity. Customer agrees to, at Customer’s own expense and at Civis’s option, defend and hold harmless Civis against any Claim brought by a third party against Civis arising out of or relating to Customer’s misconduct, fraud, gross negligence  or breach or alleged breach of this Agreement. Customer will indemnify Civis for those amounts finally awarded by a court of competent jurisdiction against Civis, or subject to the terms of Section 11.4, payable pursuant to a settlement agreement with respect to the Claim.Indemnification Procedure. Each party must promptly notify the other party in writing of any Claim for which such party believes it is entitled to be indemnified. As required under this Agreement, the indemnitor will, at its expense, take control of the defense and investigation of such Claim with the cooperation of the indemnitee. The indemnitee’s failure to perform any obligations under this Section will relieve the indemnitor of its obligations only to the extent that the indemnitor can demonstrate that it has been 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 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 indemnitee.

12. DISCLAIMERS
    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 CIVIS SOLUTIONS AND/OR DELIVERABLES WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE OR THAT ALL DEFECTS WILL BE CORRECTED. CIVIS DOES NOT WARRANT THE RESULTS OF USE OF ANY CIVIS SOLUTIONS OR DELIVERABLES. CIVIS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO WHETHER THE NECESSARY AND PROPER CONSENTS FOR ANY MARKETING OR OUTREACH ACTIVITIES INTENDED BY CUSTOMER WITH RESPECT TO LICENSED DATA, IF ANY, HAVE BEEN OBTAINED FROM THE INDIVIDUALS DESCRIBED IN THE LICENSED DATA.

13. LIMITATION OF LIABILITY
    IN NO EVENT WILL CIVIS’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE LESSER OF THE TOTAL FEES PAID OR PAYABLE TO CIVIS UNDER THE APPLICABLE ORDER OR SOW DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE OR $250,000. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE OR PROFITS, OR COST OF REPLACEMENT SERVICES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM CIVIS’S FAILURE TO PROVIDE, OR ERRORS OR INACCURACIES IN, LICENSED DATA, EVEN IF THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

14. MISCELLANEOUS
    Non-Solicitation. Customer acknowledges that Civis’s employees are valuable assets and are difficult to replace. Accordingly, during the Term and for six months afterward, Customer will not directly or indirectly solicit as an employee or independent contractor any of Civis’s employees that had direct contact with Customer or Customer’s employees or agents. Customer will not be in breach of this Section if the Civis employee (i) applies to Customer’s general posting or solicitation without inducement from Customer or Customer’s agents; or (ii) has been terminated from employment with Civis prior to applying to the general posting or solicitation. In the event Customer violates this Section, Civis will be entitled to liquidated damages equal to the compensation paid by Civis to the applicable employee during the prior twelve months.Non-Exclusivity. This Agreement is non-exclusive and does not restrict or prevent either party from entering similar relationships with any third party, nor will this Agreement restrict or prevent from providing, receiving or soliciting similar or identical materials, information, data, products, services or technologies to or from other parties, as long as doing so does not breach any other provision of this Agreement.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 this Agreement (in whole but not in part) 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.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, infectious diseases, 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 such performance is excused to the extent that it is prevented or delayed by any of the foregoing.Notices. All notices under this Agreement will be given in writing, and sent by email to: (i) for Civis,
    [email protected]
    and (ii) for Customer, the email address in the legal notice block on the SOW or Order. All notices are effective upon receipt.Governing Law; Jurisdiction; Attorneys’ 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 venue for resolution of any disputes arising under or relating to this Agreement is proper in the state and federal courts in Cook County, Illinois and consents to the exclusive jurisdiction of those courts for resolution of such disputes. In the event of a final judgment by a court of competent jurisdiction, the prevailing party shall be entitled to  seek its reasonable attorneys’ fees and court costs, provided, however, that the recovery of such fees and costs shall be limited to only those claims for which the party prevailed.Publicity. Civis is permitted to use Customer’s name and logo to list Customer as a client of Civis in external communications, marketing materials, and on Civis’s website. Customer is not permitted to use Civis’s name, logo or other marks without the prior written consent of Civis.U.S. Government Users. If Customer is an agency, department or other entity of the United States government (“
    U.S. Government
    ”), the use, duplication, reproduction, release, modification, disclosure or transfer of Civis Solutions, software, manuals, any technical specifications or any related documentation of any kind, including technical data (for the purposes of this Section, “
    Software and documentation
    ”), is restricted in accordance with Federal Acquisition Regulation (FAR) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (DFARS) 227.7202 for military agencies. The Software and documentation is commercial computer software and commercial computer software documentation. The use of the Software and documentation is further restricted in accordance with the terms of the Agreement, or any modification thereto.Relationship of the Parties; Third Party Beneficiaries. The parties are independent contractors, and this Agreement does not create a partnership, joint venture or employment relationship. Neither party has any right to obligate or bind the other party.  There are no third party beneficiaries to this Agreement.Amendments. This Agreement may only be amended in a writing executed by authorized representatives of both parties. No regular practice or method of dealing between the parties modifies, interprets, supplements or alters in any manner the terms of this Agreement.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.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. A waiver of the performance under 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. A party’s failure to insist upon the strict performance of this Agreement, or to exercise any term, will not act as a waiver of any other right, promise or term. This Agreement may be signed in counterparts, each of which will be considered an original, and may be signed electronically.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 in this Agreement.

Last Updated April 1, 2023

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