(i) SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, during the Term, PermitFlow will provide Customer with access to the Services (as defined on the Order Form) through the Internet, solely for Customer’s internal use. The software underlying the Services will be hosted on a server under control or direction of PermitFlow. Projects initiated in PermitFlow and subsequently found not to require a permit or are canceled by Customer will be billed unless PermitFlow makes an explicit exception. The Services are subject to modification from time to time at PermitFlow’s sole discretion, for any purpose deemed appropriate by PermitFlow; provided that PermitFlow will not reduce the aggregate features and/or functionalities of the Services below those expressly set forth on the Order Form. PermitFlow will use reasonable efforts to give Customer prior written notice of any material modification.
1.2 PermitFlow will undertake commercially reasonable efforts to make the Services available 99.5% of the time, excluding any time referred to in the next sentence. Notwithstanding the foregoing, PermitFlow reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this agreement, including without limitation, failure to pay any amounts due to PermitFlow. PermitFlow will use reasonable efforts to give Customer prior written notice of suspension.
1.3 Subject to the terms and conditions hereof, PermitFlow will provide reasonable support to Customer for the Services as described in the Order Form. Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to PermitFlow.
1.4 To the extent the Services on an applicable Order Form include professional support services in obtaining permits on behalf of Customer, all obligations of PermitFlow with respect to such permitting support shall terminate one year after termination of this Agreement or the applicable Order Form (whichever is earlier), even in circumstances where the permit(s) remain pending and unissued for any reason.
(ii) RESTRICTIONS AND RESPONSIBILITIES
1.1 Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software provided by PermitFlow, documentation or data output from the Services (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services, software provided by PermitFlow, or any data output from the Services; except as expressly permitted herein, use the Services or software for timesharing or service bureau purposes; use the services or software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any privacy laws, and laws and regulations concerning intellectual property, consumer and child protection, obscenity or defamation); except as expressly permitted by the functionalities of the Services, run or use any processes that run or are activated while Customer is not logged on to the Services or that “crawl,” “scrape,” or “spider” the Services; or use the Services or software in any manner that (1) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable (including without limitation, accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, and/or attempting to circumvent any user authentication or security process), (2)impersonates any person or entity, including without limitation any employee or representative of PermitFlow, or (3) contains a virus, trojan horse, worm, time bomb, unsolicited bulk, commercial, or “spam” message, malware, or other harmful computer code, file, or program (including without limitation, password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/or encryption circumvention programs).
1.2 Customer will reasonably cooperate with PermitFlow in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as PermitFlow may reasonably request to assist in its provision of the Services. Customer will also cooperate with PermitFlow in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services. Each Customer end-user of the Services must (a) be a current employee, consultant, contractor or agent of Customer using the Services only on Customer’s behalf and for Customer’s direct benefit, and (b) be bound by obligations that are no less protective of the Services than the terms set forth in this Agreement. Customer will be directly responsible to PermitFlow with respect to all actions and/or inactions of its end-users of the Services.
1.3 Customer hereby agrees to defend, indemnify and hold PermitFlow harmless against any damages, losses, liabilities, settlements and expenses(including without limitation costs and attorneys’ fees), in each case, that are paid or payable to un-Affiliated third parties in connection with any claim or action that alleges any (i) infringement, violation or misappropriation of any intellectual property or proprietary right(s) by any Content (as defined below), including, without limitation, in connection with distribution and/or analysis thereof through the Services, and/or (ii) violation of applicable law(s) and/or regulations) by Customer in performance of its obligations and/or exercise of its rights pursuant to this Agreement; provided Customer is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and sole control over defense and settlement thereof. “Affiliate” means any entity controlling, controlled by, or under common control with a party hereto, where “control” means the ownership of more than 50% of the voting securities in such entity.
1.4 PermitFlow hereby agrees to defend, indemnify and hold Customer harmless against any damages, losses, liabilities, settlements and expenses(including without limitation costs and attorneys’ fees), in each case, that are paid or payable to un-Affiliated third parties as a result of any claim or action that alleges the infringement, violation or misappropriation of any intellectual property or proprietary right(s) of any third party by the Services (excluding all Content); provided that PermitFlow is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and sole control over defense and settlement thereof. The foregoing obligations do not apply with respect to portions or components of the Services provided byPermitFlow (i) not created by or on behalf of PermitFlow, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified after delivery by PermitFlow, (iv) combined with other products, processes or materials where the alleged infringement arises out of such combination,(v) where Customer continues allegedly infringing activity after being notified there of or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement and all related documentation.
(iii) CONFIDENTIALITY
1.1 Each party (the “Receiving Party”) understands that the other party(the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, the Services are PermitFlow’s Proprietary Information, and the Content provided by Customer is Customer’s Proprietary Information.
1.2 The Receiving Party agrees: (i) except as expressly provided herein, not to divulge to any third party any such Proprietary Information, (i) to give access to such Proprietary Information solely to those employees and contractors with a need to have access thereto for purposes of this Agreement (and who are bound by written confidentiality obligations as protective of the DisclosingParty’s Proprietary Information as this Agreement), and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document(a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party (to the extent legally permissible) gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Not with standing anything to the contrary, PermitFlow may collect data with respect to, use, and report on, and otherwise fully exploit the aggregate response rate and other aggregate measures of the Services’ performance and Customer’s usage of the Services (including without limitation, the Content); provided that PermitFlow will not identify (or disclose any information or data that could reasonably be used to identify) Customer or any individual without Customer’s prior written consent.
1.3 Both parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors and/or acquirors.
(iv) INTELLECTUAL PROPERTY RIGHTS
4.1 Except as expressly set forth herein, PermitFlow alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services and related software and any suggestions, enhancement requests, feedback, and/or recommendations provided by Customer or any of its end-users as incorporated in the Services and/or the software provided by PermitFlow, which are hereby assigned to PermitFlow. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Except as expressly set forth herein, this Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services or related software, or any intellectual property rights.
4.2 Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all content and data provided by or on behalf of Customer and/or its end-users (“Content”) and the intellectual property rights with respect to that Content. If PermitFlow receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party or any applicable law or regulation (a “Claim”), PermitFlow may (but is not required to) suspend activity here under with respect to that Content. Customer, on behalf of itself and its suppliers and licensors (as applicable) hereby grants PermitFlow a worldwide, non-transferable, non-sub licensable, nonexclusive license to view, copy, reformat, distribute, display and analyze the Content solely in connection with PermitFlow’s performance of the Services. Notwithstanding anything to the contrary, PermitFlow is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion, and to place Customer’s name and logo on its website and marketing materials for this purpose. Unless otherwise specified, PermitFlow may use Customer’s name, logo and marks (including marks on Customer Properties, and parties involved in the permitting process that PermitFlow manages including the general contractor, developer, and owner) to identify Customer as an PermitFlow customer on PermitFlow’s website and other marketing materials.
(v) PAYMENT OF FEES
1.1 Customer will pay PermitFlow the applicable fees as set forth in the Order Form (the “Fees”), without any right of set-off or deduction. All payments will be made in accordance with the payment schedule and the method of payment set forth in the Order Form. If not otherwise specified, payments will be due within thirty (30) days of invoice. Customer expressly authorizes PermitFlow to incur any necessary costs for permit application purposes on behalf of customer (“Pass-Through Costs”) and Customer shall be solely responsible for any such Pass-Through Costs. All Fees paid hereunder (including any prepaid amounts or Pass-Through Costs) are non-refundable, including without limitation if this Agreement is terminated in accordance with Section 6 below.
1.2 Unpaid Fees are subject to a finance charge of one and a half percent (1.5%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding taxes based on PermitFlow's net income) unless Customer has provided PermitFlow with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to PermitFlow on account thereof. Further, in the event of any late payment for the Services, PermitFlow may Suspend the Services.
1.3 If you elect to enroll in automatic billing, then the following terms in this section apply: By providing my credit, or debit card or bank account information (“Payment Method”), you authorize PermitFlow to charge the full invoiced amount for any services to your Payment Method when such invoice becomes due; and you authorize the financial institution for the Payment Method specified above to charge or debit my account and remit payment to PermitFlow. This authority will remain in effect until you give notification, as required under this Agreement, to terminate this authorization. You will receive a post-payment confirmation email following all automatic recurring payments. In the event your Payment Method is declined, you will be contacted to address any payment issues. You may withdraw your consent to automatic billing at any time by providing written notice to PermitFlow.
(vi) TERMINATION
1.1 Unless earlier terminated in accordance with this Section 6, this Agreement shall continue for the Initial Term (as defined in the Order Form). After the Initial Term, this Agreement will automatically renew for successive Renewal Terms (as defined in the Order Form, and collectively with the Initial Term, the “Term”), unless and until either party provides the other with at least thirty (30) days’ written notice of its intention not to renew prior to the end of the then-current Term. The Fees charged in each Renewal Term are subject to annual increases of five percent (5%); however, provided that the scope of Service in a Renewal Term remains materially the same as the previous period, the Fees shall not increase by more than ten percent (10%) from the amounts charged in the previous subscription period.
1.2 Either party hereto may terminate this Agreement upon thirty (30) calendar days’ prior written notice in the event of any material breach of this Agreement by the other party hereto (including, without limitation, by PermitFlow in the event of any breach by Customer of Section 2.2 and/or failure to pay any Fees when due hereunder) that is not cured during such notice period.
1.3 Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings (provided such proceedings are not dismissed within one hundred twenty (120) days of such institution), (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business without a successor.
1.4 Customer’s access to the Services, and any licenses granted here under to Customer, shall terminate upon any termination of this Agreement. PermitFlow shall have no obligation to maintain or permit access to Content following this period and shall not be liable hereunder for any loss or destruction of Content thereafter. Subject to the foregoing, the following Sections will survive any termination of this Agreement: 2.1, 2.3, 2.4, 3 through 6, 8 through 11, and any accrued rights to payment.
(vii) GENERAL WARRANTIES
Each party represents and warrants to the other party that (a) it has the legal right and power to enter into this Agreement, (b) the performance of its obligations hereunder will not violate or conflict with any agreements, contracts or other arrangements to which it is a party, and (c) the execution of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and any other consents required to be obtained by it have been obtained. PermitFlow represents and warrants to Customer that the Services, when properly installed and implemented by Customer, will perform substantially in accordance with PermitFlow’s then-current written documentation as provided to Customer.
(viii) WARRANTY DISCLAIMER
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES, DOCUMENTATION, AND ANYTHING ELSE PROVIDED BY PERMITFLOW IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITIES FOR SELECTION OF THE SERVICES TO ACHIEVE CUSTOMER’S INTENDED RESULTS, AND FOR THE USE OF, AND RESULTS OBTAINED FROM, THE SERVICES. PERMITFLOW HEREBY DISCLAIMS ANY AND ALL ADDITIONAL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. PERMITFLOWS PECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. PERMITFLOW DOES NOT WARRANT THAT THE SERVICES, DATA PROVIDED, AND/OR ANYTHING ELSE PROVIDED IN CONNECTION WITH THIS AGREEMENT WILL BEERROR-FREE OR THAT THE SERVICES WILL WORK WITHOUT INTERRUPTIONS. THE FOREGOING LIMITATIONS WILL APPLY EVENIF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
(ix) LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY HERETO OR THEIR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL,SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR INANY WAY CONNECTED WITH THE USE OF THE SERVICES, OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT,ANY DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVENIF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.THE TOTAL LIABILITY OF EACH PARTY AND THEIR LICENSORS, WITH RESPECT TO THIS AGREEMENT, AND/OR ANY SERVICES PROVIDED, WHETHER BASED IN CONTRACT, TORT(INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE,WILL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID TO PERMITFLOW HEREUNDER IN THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FORE GOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
(x) U.S. GOVERNMENT MATTERS
Notwithstanding anything to the contrary, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof(collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Services is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by PermitFlow are “commercial items” and according to DFAR section252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
(xi) MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub licensable by either party, except with the other party’s prior written consent; provided that each party may assign or otherwise transfer this Agreement to a successor in connection with a sale of all or substantially all of its business or assets to which this Agreement relates. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties hereto, and supersedes and cancels all previous written and oral agreements, communications and other understandings between the parties hereto relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed or otherwise agreed to by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile ore-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. PermitFlow will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. Project Cancellation Policy: All project cancellations must be made in writing through the PermitFlow platform and addressed to the PermitFlow project team lead. For cancellations made through any other method such as phone, email, and/or text, PermitFlow is not liable for delayed processing and confirmation. PermitFlow reserves the right to decide, upon receiving the cancellation notice, whether the the project is entitled to a refund or not.
Project Billable Policy: For projects that have been submitted to PermitFlow, the initial deposit is non-refundable. The final project deposit is refundable only if customer follows the “Project Cancellation Policy”, after which time PermitFlow reserves the right to decide whether the customer is entitled to a refund or not.
