ACCEPTABLE USE POLICY (“AUP”)
A. Acceptable Use
Vendor requires that all customers and other users of Vendor’s cloud-based service (the “Service”) conduct themselves with respect for others. In particular, observe the following Acceptable Use Policy rules in your use of the Service:
1) Abusive Behavior: Do not harass, threaten, or defame any person or entity. Do not contact any person who has requested no further contact. Do not use ethnic or religious slurs against any person or group.
2) Privacy: Do not violate the privacy rights of any person. Do not cooperate in or facilitate identity theft. Do not collect or disclose any Personal Information without the subject’s prior consent. “Personal Information” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with an individual person or household. Personal Information includes (without limitation) all of the following: Social Security numbers, other personal tax ID numbers, military identification numbers, student identification numbers, passport numbers, driver’s license numbers, other government identification numbers, financial account data, payment card numbers, biometric information, health or medical information, insurance information, usernames, Internet protocol addresses, passwords, access codes, and security questions, as well as any information that if compromised could permit a person to assume the identity of another person.
3) Intellectual Property: Do not infringe upon the copyrights, trademarks, trade secrets, or other intellectual property rights of any person or entity. Do not reproduce, publish, or disseminate software, audio recordings, video recordings, photographs, articles, or other works of authorship without the written permission of the copyright holder. Do not engage in web scraping, crawling or spidering to gather or copy data.
4) Hacking, Viruses, & Network Attacks: Do not access any computer or communications system without authorization, including the computers used to provide the Service. Do not attempt to penetrate or disable any security system. Do not intentionally distribute a computer virus, launch a denial-of-service attack, or in any other way attempt to interfere with the functioning of any computer, communications system, or website. Do not attempt to access or otherwise interfere with the accounts of other users of the Service.
5) Spam: Do not send bulk unsolicited e-mails (“Spam”) or sell or market any product or service advertised by or connected with Spam. Do not facilitate or cooperate in the dissemination of Spam in any way. Do not violate the CAN-SPAM Act of 2003.
6) Fraud: Do not issue fraudulent offers to sell or buy products, services, or investments. Do not mislead anyone about the details or nature of a commercial transaction. Do not commit fraud in any other way.
7) Violations of Law: Do not violate any law.
B. Consequences of Violation
Violation of this Acceptable Use Policy (this “AUP”) may lead to suspension or termination of the user’s account or legal action. In addition, the user may be required to pay for the costs of investigation and remedial action related to AUP violations. Vendor reserves the right to take any other remedial action it sees fit. However, Vendor is not required to take any action against any customer or user violating this AUP.
C. Reporting Unacceptable Use
Vendor requests that anyone with information about a violation of this AUP report it via e-mail to [email protected]. Please provide the date and time (with time zone) of the violation and any identifying information regarding the violator, including e-mail or IP (Internet Protocol) address if available, as well as details of the violation.
D. Revision of AUP
Vendor may change this AUP at any time by posting a new version on this page and sending the user written notice thereof. The new version will become effective on the date of such notice
SOFTWARE AS A SERVICE AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THE AGREEMENT.
This Software as a Service Agreement (this “Agreement”) is made by and between MYGOVGUIDE, LLC, a Florida Limited Liability Company whose principal place of business is 3607 North Monroe Street, #180310, Tallahassee, FL 32318-771 (“MyGovGuide”) and the individual, corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Customer”). This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” (the “Effective Date”). Customer’s use of and MyGovGuide’s provision of MyGovGuide’s SaaS (as defined below in Section 1.5) are governed by this Agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON ACCEPTING THIS AGREEMENT ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1. “AUP” means MyGovGuide’s acceptable use policy currently posted at https://mygovguide.com/terms-of-use/.
1.2. “Customer Data” means all information processed or stored through the SaaS by Customer or on Customer’s behalf. Customer data does not include payment records, credit cards or other information Customer uses to pay MyGovGuide, or other information and records related to Customer’s account, including without limitation identifying information related to Customer staff involved in payment or other management of such account.
1.3. “Documentation” means MyGovGuide’s standard manual related to use of the SaaS.
1.4. “Order” means an order for access to the SaaS, executed on the day of initial subscription.
1.5. “Privacy/Security Law” means privacy and security laws governing MyGovGuide’s handling of Customer Data (if any).
1.6. “SaaS” means MyGovGuide’s combined hosting and support services provided in this Agreement.
1.7. “Term” is defined in Section 11.1 below.
1.8. “User” means any individual who uses the SaaS on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
2.1. Use of the SaaS. During the Term, Customer may access and use the SaaS pursuant to the terms of any outstanding Order, including such features and functions as the Order requires.
2.2. Service Levels. MyGovGuide shall provide the remedies listed in the SLA for any failure of the SaaS listed in the SLA. Such remedies are Customer’s sole remedy for any failure of the SaaS, and Customer recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy. Credits issued pursuant to the SLA apply to outstanding or future invoices only and are forfeit upon termination of this Agreement. MyGovGuide is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this Agreement.
2.3. Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the SaaS.
2.4. SaaS Revisions. MyGovGuide may revise SaaS features and functions or the SLA at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the SaaS materially reduces features or functionality provided pursuant to an outstanding Order, Customer may within 30 days of notice of the revision terminate such Order, without cause, or terminate this Agreement without cause if such Order is the only one outstanding. Such revisions will become part of the SaaS (and so subject to all this Agreement’s terms governing the SaaS).
2.5. Maintenance. MyGovGuide shall, using its sole discretion, provide bug fixes, corrections, modifications, enhancements, upgrades and new releases to the SaaS and such updates will become part of the SaaS (and so subject to all this Agreement’s terms governing the SaaS). The SaaS fees shall be inclusive of the fees for maintenance.
3.1. Subscription Fees. Customer shall pay MyGovGuide the fee set forth in the Order (the “Subscription Fee”) for each Term prior to receiving access to the SAAS. MyGovGuide will not be required to refund the Subscription Fee under any circumstances.
3.2. Taxes. Amounts due under this Agreement are payable to MyGovGuide without deduction for any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (collectively, “Sales Tax”). Except as forbidden by applicable law, MyGovGuide may require that Customer submit applicable Sales Taxes to MyGovGuide. However, the preceding sentence does not apply to the extent that Customer is tax exempt, provided it gives MyGovGuide a valid tax exemption certificate within 30 days of the Effective Date. MyGovGuide’s failure to include any applicable tax in an invoice will not waive or dismiss its rights or obligations pursuant to this Section 3.2. If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, Customer shall separately pay MyGovGuide the withheld or deducted amount, over and above fees due. For the avoidance of doubt, this Section 3.2 does not govern taxes based on MyGovGuide’s net income.
3.3 Price Adjustment. The fee set forth in the Order (the “Subscription Fee”) shall be subject to an annual four percent (4%) price adjustment, effective on the anniversary of the Effective Date of this Agreement, to account for market changes in the cost of providing the services.
CUSTOMER DATA & PRIVACY.
4.1. Use of Customer Data. MyGovGuide is not responsible for storing, compiling or maintain data, information, or material that the Customer submits to the SaaS in the course of using the SaaS. Customer, not MyGovGuide, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and right to use all Customer Data, and MyGovGuide shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. MyGovGuide reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including without limitation, Customer non-payment. Upon termination for cause, Customer’s right to access or use Customer Data immediately ceases, and MyGovGuide shall have no obligation to maintain or forward any Customer data. MyGovGuide shall not: (a) access, process, or otherwise use Customer Data other than as necessary to facilitate the SaaS and/or improve its services and products; or (b) give Customer Data access to any third party, except MyGovGuide’s subcontractors that have a need for such access to facilitate the SaaS and are subject to a reasonable written agreement governing the use and security of Customer Data. Further, MyGovGuide: (c) shall exercise reasonable efforts to prevent unauthorized disclosure or exposure of Customer Data.
4.2. Statutory Special Terms. If MyGovGuide receives a “right to know,” deletion, “right to be forgotten,” or similar request related to Customer Data, MyGovGuide may respond in accordance with applicable law. Nothing in this Agreement precludes MyGovGuide from asserting rights or defenses it may have under applicable law related to such requests.
4.3. Additional Fees. Customer recognizes and agrees that MyGovGuide may charge additional fees (without limitation) (a) for activities (if any) required by Privacy/Security Laws and (b) for activities Customer requests to help it comply with Privacy/Security Laws.
4.5. De-Identified Data. Notwithstanding the provisions above of this Article 4, MyGovGuide may use, reproduce, sell, publicize, or otherwise utilize De-Identified Data (as defined below) in any way, in its sole discretion, including without limitation aggregated with data from other customers. (“De-Identified Data” refers to Customer Data with the following removed: information that identifies or could reasonably be used to identify an individual person, a household, or Customer.)
4.6. Erasure. MyGovGuide may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more, without limiting MyGovGuide’s other rights or remedies.
4.7. Required Disclosure. Notwithstanding the provisions above of this Article 4, MyGovGuide may disclose Customer Data as required by applicable law or by proper legal or governmental authority. MyGovGuide shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
4.8. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the SaaS, Customer assumes such risks. MyGovGuide offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
4.9. Data Accuracy. MyGovGuide shall have no responsibility or liability for the accuracy of data uploaded to the SaaS by Customer, including without limitation Customer Data and any other data uploaded by Users.
4.10. Excluded Data. Customer warrants that (a) it has not and will not transmit Excluded Data (as defined below), or permit transmission of Excluded Data, to MyGovGuide or its computers or other media and, (b) to the best of its knowledge, Customer Data does not and will not include Excluded Data. Customer shall inform MyGovGuide of any Excluded Data within Customer Data promptly after discovery (without limiting MyGovGuide’s rights or remedies). Customer recognizes and agrees that: (i) the provisions of this Agreement related to Customer Data do not apply to Excluded Data; (ii) MyGovGuide has no liability for any failure to provide protections in the Excluded Data Laws (as defined below) or otherwise to protect Excluded Data; and (iii) MyGovGuide’s systems are not intended for management or protection of Excluded Data and may not provide adequate or legally required security for Excluded Data. MyGovGuide is not responsible or liable for any data exposure or disclosure or related loss to the extent that it involves Excluded Data. (“Excluded Data” means protected health information (PHE) under HIPAA, social security numbers and financial information subject to the Gramm-Leach-Bliley Act. “Excluded Data Laws” means any law or regulation governing Excluded Data, including without limitation any law or regulation protecting privacy or security rights of Excluded Data subjects.)
CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
5.1. Acceptable Use. Customer shall comply with the AUP. Customer shall not: (a) use the SaaS for service bureau or time-sharing purposes or in any other way allow third parties to exploit the SaaS; (b) provide SaaS passwords or other log-in information to any third party; (c) share non-public SaaS features or content with any third party; (d) access the SaaS in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the SaaS, or to copy any ideas, features, functions or graphics of the SaaS; or (e) engage in web scraping or data scraping on or related to the SaaS, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, MyGovGuide may suspend Customer’s access to the SaaS without advanced notice, in addition to such other remedies as MyGovGuide may have. Neither this Agreement nor the AUP requires that MyGovGuide take any action against Customer or any User or other third party for violating the AUP, this Section 5.1, or this Agreement, but MyGovGuide is free to take any such action it sees fit.
5.2. Use of Data and Content Provided. Customer shall use the content and data provided by the SaaS for general information and strategy purposes only. Use of or reliance on the content and data provided is at the Customer’s own risk. The content and data are mainly sourced from governmental entities and the MyGovGuide does not warrant the accuracy, completeness, or usefulness of the content and data provided.
5.3. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the SaaS, including without limitation by protecting its passwords and other log-in information. Customer shall notify MyGovGuide immediately of any known or suspected unauthorized use of the SaaS or breach of its security and shall use best efforts to stop said breach.
5.4. Compliance with Laws. In its use of the SaaS, Customer shall comply with all applicable laws, including without limitation Privacy/Security laws.
5.5. Users & SaaS Access. Customer is responsible and liable for: (a) Users’ use of the SaaS, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; (b) any use of the SaaS through Customer’s account, whether authorized or unauthorized; (c) Customer shall designate at least one authorized user to act as the Customer’s principal point of contract with MyGovGuide for purposes of this Agreement; and (d) subject to Customer’s and its authorized users’ continuing compliance with this Agreement and payment of the applicable fees, MyGovGuide hereby grants to Customer a limited, personal, non-exclusive, non-transferable right for authorized users of Customer and any other authorized Customer entities to access the features and functions of the SaaS during the subscription term. This access grant may not be sublicensed, in whole or in part. The scope of the Customer’s use of the SaaS is subject to the terms and conditions of this Agreement, including any usage or other parameters or limitations set forth in the applicable SaaS Order.
IP & FEEDBACK.
6.1. IP Rights to the SaaS. MyGovGuide retains all right, title, and interest in and to the SaaS, including without limitation all software used to provide the SaaS and all graphics, user interfaces, logos, and trademarks reproduced through the SaaS. This Agreement does not grant Customer any intellectual property license or rights in or to the SaaS or any of its components, except to the limited extent that such rights are necessary for Customer’s use of the SaaS as specifically authorized by this Agreement. Customer recognizes that the SaaS and its components are protected by copyright and other laws. MyGovGuide may use Customer’s name and\or logo to identify the Customer as a client of the MyGovGuide’s. MyGovGuide’s use of the Customer’s name and logo does not create any ownership right therein and all rights not granted to MyGovGuide are reserved by the right owner.
6.2. Feedback. MyGovGuide has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer, Customer’s Clients, or other Users give MyGovGuide, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict MyGovGuide’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer. Feedback will not be considered Customer’s trade secret. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of MyGovGuide’s products or services.)
CONFIDENTIAL INFORMATION. “Confidential Information” refers to the following items MyGovGuide discloses to Customer: (a) any document MyGovGuide marks “Confidential”; (b) any information MyGovGuide orally designates as “Confidential” at the time of disclosure, provided MyGovGuide confirms such designation in writing within 10 business days; (c) the Documentation, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer. Customer is on notice that the Confidential Information may include MyGovGuide’s valuable trade secrets.
7.1. Nondisclosure. Customer shall not use Confidential Information for any purpose other than operating and utilizing the SaaS (the “Purpose”). Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 6.2; and (b) shall not disclose Confidential Information to any other third party without MyGovGuide’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify MyGovGuide of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give MyGovGuide prompt notice of any such legal or governmental demand and reasonably cooperate with MyGovGuide in any effort to seek a protective order or otherwise to contest such required disclosure, at MyGovGuide’s expense.
7.2. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.1 above (Nondisclosure) will terminate 3 years after the date of disclosure; provided that such obligations related to Confidential Information constituting MyGovGuide’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to MyGovGuide or certify, in writing, the destruction thereof; and (a) MyGovGuide reserves the right to modify, suspend or terminate access to the SaaS on the MyGovGuide application at any time with five (5) days’ notice, including the right to require you to change login credentials or passwords; (b) if the SaaS is terminated for convenience by MyGovGuide, you will receive a prorated refund of your remaining subscription fee; (c) MyGovGuide reserves the right to delete all program and data files associated with your account and/or other information relating to your account stored on MyGovGuide systems upon termination of your account
7.3. Injunction. Customer agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in this Article 7; (b) it would be difficult to determine the damages resulting from its breach of this Article 7, and such breach would cause irreparable harm to MyGovGuide; and (iii) a grant of injunctive relief provides the best remedy for any such breach, without any requirement that MyGovGuide prove actual damage or post a bond or other security. Customer waives any opposition to such injunctive relief or any right to such proof, bond, or other security. (This Section 7.3 does not limit either party’s right to injunctive relief for breaches not listed.)
7.4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. MyGovGuide will retain all right, title, and interest in and to all Confidential Information.
7.5. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Customer is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
(a) Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(b) Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
REPRESENTATIONS & WARRANTIES.
8.1. From MyGovGuide. MyGovGuide represents and warrants that it is the owner of the SaaS and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the SaaS set forth in this Agreement without the further consent of any third party. MyGovGuide’s representations and warranties in the preceding sentence do not apply to use of the SaaS in combination with hardware or software not provided by MyGovGuide. In case of breach of the warranty above in this Section 8.1, MyGovGuide, at its own expense, shall promptly: (a) secure for Customer the right to continue using the SaaS; (b) replace or modify the SaaS to make it non-infringing; or if such remedies are not commercially practical in MyGovGuide’s reasonable opinion, (c) refund the fees paid for the SaaS for every month remaining in the then-current Term following the date after which Customer access to the SaaS ceases as a result of such breach of warranty. If MyGovGuide exercises its rights pursuant to Subsection 8.1(c) above, Customer shall promptly cease all use of the SaaS and all reproduction and use of the Documentation and erase all copies in its possession or control. This Section 8.1, in conjunction with Customer’s right to terminate this Agreement where applicable, states Customer’s sole remedy and MyGovGuide’s entire liability for breach of the warranty above in this Section 8.1.
8.2. Warranty of Function from MyGovGuide. MyGovGuide represents and warrants that the SAAS will perform materially as described in the technical specifications set forth as follows: Module: Dashboard: Deliver visualized information about timelines, organization structure, employment, news, positions, and budgets. Provide capability to bookmark, tag, create filterable notes. Module: Agencies: Deliver visualized information about agency details, structure, leadership, budgets, news, contracts, position changes. Module: Budgets: Deliver visualized version of the state of Florida budget with dynamic search capability of contacts, programs, budgets, and leadership. Module: Contacts: Deliver an executive branch enterprise contact dynamic search capability, position change tracking, travel insights, searchable leadership organizational structure. Module: GovGuidance: Deliver executive branch content to foster comprehensive learning and information understanding. Deliver searchable government nomenclature interpretation content. In the event of breach of the warrant in Section 8.2, MyGovGuide shall (a) repair the SAAS; or (b) if such attempts do not succeed after 10 days, refund a prorated amount of the annual payment made by Customer for every month remaining in the Customer’s Term, following the date after which Customer is required to cease operation of the SAAS. However, MyGovGuide shall have no obligation with respect to this warranty claim unless notified of such claim within (30) days of the first material functionality problem. Further, MyGovGuide shall have no obligation with respect to this warranty claim, and Customer may not terminate the Agreement, where any alleged nonconformity is due to User error as reasonably determined by the parties after investigation and analysis by MyGovGuide’s Support Center. MyGovGuide does not warrant that the Service will be free of non-material errors, bugs, or minor interruption, or that all such errors will be corrected.
8.3. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the SaaS; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
8.4. Warranty Disclaimers. Except to the extent set forth in the SLA and in Section 8.1 above, CUSTOMER ACCEPTS THE MYGOVGUIDE SAAS AND SERVICE “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) MYGOVGUIDEMYGOVGUIDE HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) MYGOVGUIDE DOES NOT REPRESENT OR WARRANT THAT THE SAAS WILL PERFORM WITHOUT INTERRUPTION OR ERROR; (c) MYGOVGUIDE DOES NOT REPRESENT OR WARRANT THAT THE SAAS IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE; (d) MYGOVGUIDE MAKES NO WARRANTY OR REPRESENTATION WITH RESPECT TO THE ACCURACY, COMPLETENESS, USEFULNESS, SECURITY, RELIABIILTY, QUALITY OR AVAILABILITY OF THE SAAS, INCLUDING BUT NOT LIMITED TO, THE DATA OR CONTENT PROVIDED OR AGGREGATED BY THE SAAS; AND (e) MYGOVGUIDE MAKES NO WARRANTY THAT THE SAAS WILL MEET YOUR REQUIREMENTS, ACHIEVE INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, HAVE ACCURATE OR UP TO DATE CONTENT OR STORED DATA, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERROS OR DEFECTS CAN OR WILL BE CORRECTED.
INDEMNIFICATION. Customer shall defend, indemnify, and hold harmless MyGovGuide and the MyGovGuide Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the SaaS, including without limitation: (a) claims by Users or by Customer’s employees, as well as by Customer’s own customers; (b) claims related Data Incidents (as defined below); (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the SaaS through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the SaaS through Customer’s account, including by Users, harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. INDEMNIFIED CLAIMS INCLUDE, WITHOUT LIMITATION, CLAIMS ARISING OUT OF OR RELATED TO MYGOVGUIDE’S NEGLIGENCE. Customer’s obligations set forth in this Article 9 include, without limitation: (i) settlement at Customer’s expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of court costs and other reasonable expenses; and (ii) reimbursement of reasonable attorneys’ fees incurred before Customers’ assumption of the defense (but not attorneys’ fees incurred thereafter). If Customer fails to assume the defense on time to avoid prejudicing the defense, MyGovGuide may defend the Indemnified Claim, without loss of rights pursuant to this Article 9. MyGovGuide will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it or a MyGovGuide Associate admit wrongdoing or liability or subjects either of them to any ongoing affirmative obligation. (“MyGovGuide Associates” are MyGovGuide’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns. A “Data Incident” is any (1) unauthorized disclosure of, access to, or use of Customer Data, including without limitation Excluded Data, or (2) violation of Privacy/Security Law through Customer’s account. Data Incidents include, without limitation, such events caused by Customer, by MyGovGuide, by Customer’s customers or other users, by hackers, and by any other third party.)
LIMITATION OF LIABILITY.
10.1. Dollar Cap. MYGOVGUIDE’S CUMULATIVE LIABILTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT FOR THE PREVIOUS 12 MONTHS.
10.2. Excluded Damages. Except with regard to breaches of Article 7 (Confidential Information), IN NO EVENT WILL MYGOVGUIDE BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
10.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 9 APPLY TO THE BENEFIT OF MYGOVGUIDE’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND THIRD PARTY CONTRACTORS, AS WELL AS: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF MYGOVGUIDE IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. Customer acknowledges and agrees that MyGovGuide has based its pricing on and entered into this Agreement in reliance upon the limitations of liability and disclaimers of warranties and damages in this Article 10 and that such terms form an essential basis of the bargain between the parties. If applicable law limits the application of the provisions of this Article 9, MyGovGuide’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, MyGovGuide’s liability limits and other rights set forth in this Article 9 apply likewise to MyGovGuide’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
TERM & TERMINATION.
11.1. Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for the period set forth in the Order or, if none, for 12 months. Thereafter, the Term will renew for successive periods equal to the initial period set forth in the Order, unless either party refuses such renewal by written notice 30 or more days before the renewal date.
11.2. Terminations: Termination for Cause: Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure; and Termination for Convenience: Customer has the right to terminate this Agreement, in good faith, within the first ten days following the Effective Date of this Agreement. The termination within the first ten days of the initial term must be a written notice to MyGovGuide delivered to [email protected] and will incur a $200 early cancellation fee to MyGovGuide which will be deducted from the prorated refunded subscription fee, (b) notwithstanding any other provision herein, MyGovGuide may terminate a free account at any time in its sole discretion without notice; (c) notwithstanding any other provision herein, if Customer breaches the payment obligations or unauthorized use of the MyGovGuide SaaS or service, MyGovGuide in its sole discretion, may terminate the Customer’s password, account, or use for all Registered Users of the SaaS.
11.3. Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the SaaS and delete, destroy, or return all copies of the Documentation in its possession or control and MyGovGuide may irretrievably delete Customer Data. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
12.1. Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
12.2. Notices. MyGovGuide may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to [email protected], and such notices will be deemed received 72 hours after they are sent. In addition, Customer is on notice and agrees that MyGovGuide will terminate the accounts of subscribers who are repeat copyright infringers.
12.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, epidemics, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control.
12.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without MyGovGuide’s express written consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
12.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.7. Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of Florida, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The Parties consent to the personal and exclusive jurisdiction of the federal and state courts of Leon County, Florida. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
12.9. Technology Export. Customer shall not: (a) permit any third party to access or use the SaaS in violation of any U.S. law or regulation; or (b) export any software provided by MyGovGuide or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the SaaS in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
12.10. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
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