R12-110 11 i
1
2 RESOLUTION NO. R12 -110
3
4
s A RESOLUTION OF THE CITY COMMISSION OF
6 BOYNTON BEACH, FLORIDA, APPROVING AND
7 AUTHORIZING THE GRANTS NETWORK MASTER
8 SUBSCRIPTION AND SERVICE AGREEMENT
9 BETWEEN THE CITY OF BOYNTON BEACH AND
10 ECIVIS, INC; AND PROVIDING AN EFFECTIVE DATE.
11
12
13 WHEREAS, the City of Boynton Beach Grants Team has successfully been using
14 eCivis grant management products to research and track grant opportunities and awards for
15 the past eleven years; and
16 WHEREAS, the current Agreement approved by the City Commission in 2007
17 expires on October 31, 2012; and
18 WHEREAS, the City Commission of the City of Boynton Beach, upon
19 recommendation of staff, deems it to be in the best interests of the residents and citizens of the
20 City of Boynton Beach to approve the Grants Network Master Subscription Agreement
21 between the City of Boynton Beach and eCivis, Inc.
22 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
23 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
24 Section 1. Each Whereas clause set forth above is true and correct and
25 incorporated herein by this reference.
26 Section 2. The City Commission of the City of Boynton Beach, Florida does
27 hereby approve the Grants Network Master Subscription Agreement between the City of
28 Boynton Beach and eCivis, Inc., and authorize the Interim City Manager to execute same, a
29 copy of said Agreement is attached hereto as Exhibit "A ".
1 Section 3. That this Resolution shall become effective immediately upon passage.
2 PASSED AND ADOPTED this 16 of October, 2012.
3
4 CITY OF r..IIYNTON BEACH, F J RIDA
5
6
7 Mayor — Woodrow
--''"
8
9i
10 ce a o .c McC ay
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12
13 Comf. er—
14 _ /
15
16 Commissioner — to e . olzman
17
18
19 Commissioner — Marlene Ross
20 ATTEST:
21
22 �n PAa4Auto
23 �• ' l
24 Jan t M. Prainito, MMC,
25 ity Clerk
26 G \ T .
27
28 (C • t'
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eCIviS
Your tools for viols success' ECIVIS MASTER SUBSCRIPTION AND SERVICE AGREEMENT
Date 9/10/2012
Contract No 5901
This Agreement is made by and between
eCivis, Inc , a Delaware corporation ( "eCivis ") and City of Boynton Beach, FL ( "Customer")
418 N. Fair Oaks Ave. #301 P.O. Box 310 100 East Boynton Beach BIvd.Boynton
Beach
Pasadena, CA 91103
Fax (626) 628 -3232 Boynton Beach, FL 33435
Sales Contact Phone: 561- 742 -6241
William Contact olm Principal Contact and Master Access Holder:
Debbie Majors, Grants Coordinator
This Agreement, and the Exhibits attached hereto, set forth the business relationship between the parties and the terms and conditions
under which the following products are licensed and services are provided to Customer, and supersedes all previous agreements
between eCivis and Customer. Please initial all pages of the terms and conditions of this contract.
GN Tracking & Reporting - Enterpnse Edition Grants Management and Reporting 1 $37,500 00 537,500 00
GN Research - Enterprise Edition Federal, State (if available), and Foundation 1 $20,000 00 $20,000 00
GN KnowledgeBase - Enterprise Edition Courses, Subject Briefs, Project Trends 1 $5,000 00 55,000 00
Product Sub -Total $62,500 00
Continuing Client Discount ($28,993 15)
Bundled Discount (56,000 00)
TOTAL PRICE 527,506 85
Subscription Penod(s) and Payment Terms
The Subscription Period of this Agreement will conclude 10/31/2013. Payment is due net 30 days from invoice date
Cycle 1 11/01/2012 through 10/31/2013 for a price of $ 27,506 85
PRICE IS ONLY VALID IF AGREEMENT IS SIGNED ON OR BEFORE. October 31, 2012.
Renewal Terms - Additional extension of this agreement will occur as follows:
This agreement will be eligible for renewal for extended periods through a mutually agreed upon purchasing vehicle executed before
the expiration of the subscription period listed above No guarantees are made as to rate, access, or included services within this
agreement Purchasing vehicles executed after the termination date of this agreement are subject to then - current retail rates for all
services provided
Accepted By Accepted By
City of Boynton Beach, FL eCivis, Inc.
By j u w V— By C '
(Auth zed Signature) (Authorized Signature)
Name Lori LaVerriere Name James Ha
(type or print) (type or print)
Title* Interim City Manager Title CEO
Date. November 7, 2012 Date: 9/10/2012
0 Send invoice to (if different than address above)
APPROVED 1 . TO ' —
CITY ATTORNEY
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eCivis Master Subscription and Service Agreement
THIS MASTER SUBSCRIPTION AND SERVICE AGREEMENT ( "AGREEMENT") GOVERNS YOUR ACQUISITION AND USE OF ALL OUR
SERVICES
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING THIS
AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A
COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES
TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS YOU OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS
AFFILIATES IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST
NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES
You may not access the Services if You are Our direct competitor, except with Our prior written consent In addition, You may not access the
Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes
This Agreement was last updated on January 1, 2012 It is effective between You and Us as of the date of You accepting this Agreement
Table of Contents
1 Definitions
2 Purchased Services
3 Use of the Services
4 Professional Services, Cooperation Delays
5 Fees and Payment for Purchased Services
6 Proprietary Rights
7 Confidentiality
8 Warranties and Disclaimers
9 Limitation of Liability
10 Term and Termination
11 Governing Law and Jurisdiction
12 General Provisions
13 Mutual Indemnification
1 DEFINITIONS
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity "Control," for
purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs
"Professional Services" means work performed by Us for You by Our Grants Professional Services division under this Agreement or any relevant
Purchase Order Such work shall include, but not limited to, Grant Writing, Peer Review and /or Training services
"Purchased Services" means Services that You or Your Affiliates purchase under this Agreement for Grants Network"' or Nonprofit One- Stop"
"Services" means the products and services that are ordered by You and made available by Us online via the customer login link at
http / /www ecivis com and /or other web pages designated by Us
"Users" means individuals who are authorized by You to use the Services, and who have been supplied user identifications and passwords by You
(or by Us at Your request) Users are limited to Your employees Non - employees such as Consultants, contractors and agents, and third parties with
which You transact business may not be granted access
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"We," "Us" or Our means eCivis, a Delaware corporation described in Section 13 (Who You Are Contracting With, Notices, Governing Law and
Jurisdiction)
You or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity
Your Data" means all electronic data or information submitted by You to the Purchased Services
2 PURCHASED SERVICES
2.1 Provision of Purchased Services We shall make the Purchased Services available to You pursuant to this Agreement and any relevant
Purchase Order during a subscription term You agree that Your purchases hereunder are neither contingent on the delivery of any future
functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features
2 2 User Subscriptions Unless otherwise specified in writing, (i) Services are purchased as User subscriptions and may be accessed by no more
than the specified number of Users, (11) additional User subscriptions may be added during the applicable subscription term at the same pricing as
that for the pre - existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User
subscriptions are added, and (111) the added User subscriptions shall terminate on the same date as the pre - existing subscriptions. User
subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing
former Users who no longer require ongoing use of the Services.
3 USE OF THE SERVICES
3 1. Our Responsibilities We shall (i) provide Our basic support for the Purchased Services to You at no additional charge, and/or upgraded
support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week,
except for (a) planned downtime (of which We shall give at least 8 hours notice via the Purchased Services and which We shall schedule to the
extent practicable during the weekend hours from 6 00 p m Friday to 3 00 a m Monday Pacific Time), or (b) any unavailability caused by
circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest,
acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of
service attacks, and (in) provide the Purchased Services only in accordance with applicable laws and government regulations
3 2 Our Protection of Your Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security,
confidentiality and integrity of Your Data We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with
Section 7 3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent
or address service or technical problems, or at Your request in connection with customer support matters
3 3 Your Responsibilities You shall (i) be responsible for Users' compliance with this Agreement, (n) be responsible for the accuracy, quality and
legality of Your Data and of the means by which You acquired Your Data, ( use commercially reasonable efforts to prevent unauthorized access to
or use of the Services, and notify Us promptly of any such unauthorized access or use and (iv) use the Services only in accordance with the user
guide and applicable laws and government regulations You shall not (a) make the Services available to anyone other than Users, (b) sell, resell,
rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or
transmit material in violation of third -party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the
integrity or performance of the Services or third -party data contained therein, or (f) attempt to gain unauthorized access to the Services or their
related systems or networks
3 4 Usage Limitations. Services may be subject to other limitations, such as, for example, limits on the number of grants that can be managed in
Our Grants Network' Tracking & Reporting product, on the number of grant applications, peer reviews and /or trainings provided by Us. Any such
limitations are specified in the signature page of this Agreement
4 PROFESSIONAL SERVICES, COOPERATION DELAYS
4 1 Should this Agreement include Our Professional Services, each party agrees to cooperate reasonably and in good faith with the other in the
performance of such Professional Services and acknowledges that delays may otherwise result You agree to provide, or provide access to, the
following as needed, and when applicable, for services that require Us to be at Your location office workspace, telephone and other facilities,
suitably configured computer equipment with Internet access, complete and accurate information and data from Your employees and agents,
continuous administrative access to its ecivis com account, coordination of onsite, online and telephonic meetings, and other resources as
reasonably necessary for satisfactory and timely performance of the Professional Services
4 2 Each party agrees its respective employees and agents will reasonably and in good faith cooperate with each other in a professional and
courteous manner in the performance of their duties under this Agreement Either party may suspend performance hereunder immediately upon
written notice should the other party's employees or agents fail to act accordingly.
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4 3. It is understood by You that delays in providing material or information resulting in missed grant application deadlines does not constitute
non - delivery of grant writing services by Us We shall provide a reasonable timeline to ensure the delivery of Our Granting Writing services
5 FEES AND PAYMENT FOR PURCHASED SERVICES
5 1 Fees You shall pay all fees specified under this Agreement. Except as otherwise specified herein, (i) fees are based on services purchased and
not actual usage for Purchased Services, (ii) payment obligations are non - cancelable and fees paid are non - refundable and will not result in any
refund or credit and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term
5 2 Invoicing and Payment You will provide Us with valid and updated credit card information, or pay by check If You provide credit card
information to Us, You authorize Us to charge such credit card for all Services listed under this agreement for the initial subscription term and any
renewal subscription term(s) as set forth in Section 10.2 (Term of Purchased User Subscriptions) Such charges shall be made in advance, either
annually or in accordance with any different billing frequency stated under this Agreement Unless otherwise stated in this Agreement, invoice
charge(s) are due net 30 days from the invoice date You are responsible for providing complete and accurate billing and contact information to Us
and notifying Us of any changes to such information
5 3 Overdue Charges If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest
at the rate of 1 5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment
was due until the date paid, and /or (b) We may condition future subscription renewals on payment terms shorter than those specified in Section 5 2
(Invoicing and Payment)
5 4 Suspension of Service and Acceleration If any amount owing by You under this or any other agreement for Our services is 30 or more days
overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our
other rights and remedies, suspend Our services to You until such amounts are paid in full We will give You at least 7 days' prior notice that Your
account is overdue
5.5 Taxes Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including
but not limited to value- added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively,
"Taxes ") You are responsible for paying all Taxes associated with Your purchases hereunder If We have the legal obligation to pay or collect Taxes
for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid
tax exemption certificate authorized by the appropriate taxing authority For clarity, We are solely responsible for taxes assessable against it based
on Our income, property and employees.
6 PROPRIETARY RIGHTS
6 1 Reservation of Rights in Services Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the
Services, including all related intellectual property rights No rights are granted to You hereunder other than as expressly set forth herein
6 2 Restrictions You shall not (i) pemiit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate
works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or
framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services
in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services
6 3 Your Applications and Code If You, a third party acting on Your behalf, or a User creates applications or program code using the Services, You
authorize Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Services in
accordance with this Agreement Subject to the above, We acquire no nght, title or interest from You or Your licensors under this Agreement in or to
such applications or program code, including any intellectual property rights therein
6 4 Your Data Subject to the limited rights granted by You hereunder, We acquire no nght, title or interest from You or Your licensors under this
Agreement in or to Your Data, including any intellectual property rights therein
6 5 Suggestions We shall have a royalty -free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions,
enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services
7 CONFIDENTIALITY
7 1 Definition of Confidential Information As used herein, "Confidential Information" means all confidential information disclosed by a party
( "Disclosing Party ") to the other party ( "Receiving Party "), whether orally or in writing, that is designated as confidential or that reasonably should be
understood to be confidential given the nature of the information and the circumstances of disclosure Your Confidential Information shall include
Your Data, Our Confidential Information shall include the Services, and Confidential Information of each party shall include the terms and conditions
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of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business
processes disclosed by such party However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes
generally known to the public without breach of any obligation owed to the Disclosing Party, (11) was known to the Receiving Party prior to its
disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (m) is received from a third party without breach of
any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party
7 2 Protection of Confidential Information The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own
confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for
any purpose outside the scope of this Agreement, and (11) except as otherwise authorized by the Disclosing Party in writing, to limit access to
Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for
purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less
stringent than those herein Neither party shall disclose the terms of this Agreement other than its Affiliates and their legal counsel and accountants
without the other party's prior written consent
7 3 Compelled Disclosure The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so,
provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable
assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure If the Receiving Party is compelled by law to
disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party
is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure
access to such Confidential Information
8 WARRANTIES AND DISCLAIMERS
8 1 Our Warranties. We warrant that (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall
perform materially in accordance with this Agreement, ( We will not transmit Malicious Code to You, provided it is not a breach of this subpart (iv) if
You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code For any breach of
a warranty above, Your exclusive remedy shall be as provided in Section 10 3 (Termination for Cause) below
8 2 Your Warranties You warrant that You have validly entered into this Agreement and have the legal power to do so
8 3 Disclaimer EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW
9 LIMITATION OF LIABILITY
9 1 Limitation of Liability NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS
AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF
$500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT
SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR
TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER THE FOREGOING
SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED SERVICES)
9 2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY
FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE
DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT
THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE
EXTENT PROHIBITED BY APPLICABLE LAW.
10. TERM AND TERMINATION
10 1 Term of Agreement This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance
with this Agreement have expired or been terminated
10 2 Term of Purchased User Subscriptions User subscriptions purchased by You commence on the start date specified under this Agreement and
continue for the subscription term specified herein
10 3 Termination for Cause A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach
if such breach remains uncured at the expiration of such period, or (11) if the other party becomes the subject of a petition in bankruptcy or any other
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proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10 4. Return of Your Data Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription,
We will make available to You for download a file of Your Data in comma separated value (csv) format along with attachments in their native format.
After such 30 -day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete
all of Your Data in Our systems or otherwise in Our possession or under Our control
10 5 Surviving Provisions Section 5 (Fees and Payment for Purchased Services), 6 (Proprietary Rights), 7 (Confidentiality), 8 3 (Disclaimer), 9
(Limitation of Liability), 10 4 (Return of Your Data), 11 (Governing Law and Jurisdiction), 12 (General Provisions) and 13 (Mutual Indemnification)
shall survive any termination or expiration of this Agreement
11 GOVERNING LAW AND JURISDICTION
11 1 Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Florida as it applies to a contract
made and performed in such state
12 GENERAL PROVISIONS
12 1 Anti - Corruption You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our
employees or agents in connection with this Agreement Reasonable gifts and entertainment provided in the ordinary course of business do not
violate the above restriction If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal
Department (legal @ecivis com)
12 2 Relationship of the Parties The parties are independent contractors This Agreement does not create a partnership, franchise, joint venture,
agency, fiduciary or employment relationship between the parties
12 3 No Third -Party Beneficiaries There are no third -party beneficiaries to this Agreement
12 4 Waiver No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right
12 5 Severability If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified
by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining
provisions of this Agreement shall remain in effect
12 6 Attorney Fees You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due
Us under this Agreement following Your breach of Section 5 2 (Invoicing and Payment)
12 7 Assignment Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior
written consent of the other party (not to be unreasonably withheld) Notwithstanding the foregoing, either party may assign this Agreement in its
entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate
reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party A party's sole remedy for any
purported assignment by the other party in breach of this paragraph shall be, at the non - assigning party's election, termination of this Agreement
upon wntten notice to the assigning party In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the
term of all subscriptions after the effective date of termination Subject to the foregoing, this Agreement shall bind and inure to the benefit of the
parties, their respective successors and permitted assigns
12.8 Entire Agreement This Agreement, including all exhibits and addenda hereto constitutes the entire agreement between the parties and
supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification,
amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party
against whom the modification, amendment or waiver is to be asserted
13 MUTUAL INDEMNIFICATION
13 1 Indemnification by Us We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party
alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim
Against You "), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by
You under a court- approved settlement of, a Claim Against You, provided that You (a) promptly give Us written notice of the Claim Against You, (b)
give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the
settlement unconditionally releases You of all liability), and (c) provide to Us all reasonable assistance, at Our expense In the event of a Claim
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Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the
Services so that they no longer infringe or misappropriate, without breaching Our warranties under "Our Warranties" above, (u) obtain a license for
Your continued use of the Services in accordance with this Agreement, or (111) terminate Your User subscriptions for such Services upon 30 days'
written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of
termination
13 2 Indemnification by You You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party
alleging that Your Data, or Your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third
party or violates applicable law (a "Claim Against Us "), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us
as a result of, or for any amounts paid by Us under a court- approved settlement of, a Claim Against Us, provided that We (a) promptly give You
written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not
settle any Claim Against Us unless the settlement unconditionally releases Us of all liability), and (c) provide to You all reasonable assistance, at
Your expense
13 3 Exclusive Remedy This Section 13 (Mutual Indemnification) states the indemnifying party's sole liability to, and the indemnified party's
exclusive remedy against, the other party for any type of claim described in this Section
[Remainder of page intentionally left blank, signature page is on the cover page to this Agreement]
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