CLIENT TERMS AND CONDITIONS
These Phone2Action Terms and Conditions (“Terms and Conditions”), any exhibits and schedules attached hereto (collectively, “Schedules”) together with any sales order (“Sales Order”) or statement of work (“SOW”) executed by the parties which reference these Terms and Conditions shall be referred to collectively as the “Agreement”.
IMPORTANT — These Terms and Conditions, any Schedules, Sales Order and any SOW form a legal agreement between you (“Client“) and Phone2Action, Inc., doing business as Capitol Canary and its subsidiaries (“Phone2Action”, “We“, “Us” or “Our”). This document sets forth the legal terms and conditions for your use of Phone2Action’s Online Advocacy and Engagement Platform, Legislative And Regulatory Tracking Services, Data And Directory Materials (Collectively the “Phone2Action Platform”) and other services ordered pursuant to an applicable Sales Order and as such services may be described in more detail in such Sales Orders (the “Service(s)“). Unless explicitly referenced in the Sales Order or SOW, in the event of a conflict between the terms of this Agreement, Sales Order or SOW, the terms of this Agreement shall govern.
BY ACCESSING AND/OR USING THE SERVICES, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS:
1. Term. This Agreement will be effective for so long as at least one Sales Order that is subject to these Terms and Conditions remains active. Unless otherwise specified in a Sales Order, the initial term of each Sales Order (“Initial Term”) will begin on the effective date of the applicable Sales Order (“Effective Date”). Thereafter, unless explicitly stated otherwise thereon, the Initial Term will automatically extend for a period equal to the length of the Initial Term or one year, whichever is longer (each a “Renewal Term” and, together with the Initial Term, the “Term”). Prices are subject to annual increases in accordance with Section 7 below or as set forth in an applicable Sales Order. This Agreement will expire when all outstanding Sales Orders have expired or otherwise terminated on their own terms or in accordance with the terms of this Agreement.
2.1. Subscription Services. Subject to the payment obligations and Client’s compliance with the Terms and Conditions, Capitol Canary hereby grants Client a non-exclusive, non-transferable, non-assignable, limited basis, non-sublicenseable right and license during the Term, for its Authorized Users (as defined below), to access and use the Services, solely for Client’s own internal business purposes. For purposes of this Agreement, “Authorized Users” means Client’s (a) employees, who are fully bound to Client’s obligations under this Agreement by the terms of their employment, or (b) contractors, agents and representatives, or (c) who have, to Capitol Canary’s satisfaction, executed appropriate confidentiality agreements with Client with terms and conditions no less stringent than those contained in Sections 3.3 (Restrictions), 5 (Intellectual Property Rights), 10 (Confidentiality), and 13.9 (Survival), as Section 13.9 applies to Sections 2.2(ii)-(iii), 5, and 10, herein and to otherwise abide by the Terms and Conditions relating to the use, distribution and cessation of use of Capitol Canary’s Confidential Information (as defined in Section 10.1 below). The Client agrees that each such subscription includes only the number of authorized individual licenses (“Individual Licenses”) and/or enterprise licenses providing access to the Services for all Authorized Users (“Site Licenses”) identified in the Sales Order. If Client obtains Individual Licenses or Site Licenses to use certain Services that are directories of specialized information regarding government officials available within the Salesforce platform, each Authorized User must have a Salesforce subscription.
2.3. Hosted Applications. To the extent that Client uses a Capitol Canary-hosted interface to display information or content on Client’s website (“Hosted Applications”), Capitol Canary hereby grants Client a non-exclusive, non-transferable, non-assignable, limited basis, non-sublicensable, license to access, use and display the applicable Hosted Applications on Client’s website for its own internal business purposes during the Term and in accordance with the applicable Terms and Conditions herein.
2.4. Salesforce Applications. To the extent that Client uses a Capitol Canary Salesforce solution that includes the Salesforce directory components (“Salesforce Applications”), Client acknowledges that the directory data and the corresponding managed package are the exclusive property of Capitol Canary. Client agrees to terminate the Capitol Canary Salesforce Applications agrees to delete all Capitol Canary Salesforce Applications upon termination of this agreement. Client agrees to execute a Capitol Canary Salesforce Applications Notice of Deletion prior to the end of the Term.
3. Client Obligations and Restrictions.
3.1. Compliance by Authorized Users and Supporters. Client shall ensure that each of its Authorized Users and Supporters comply with the obligations and restrictions set forth in these Terms and Conditions. Client shall use commercially reasonable efforts to prevent unauthorized access to or use of Capitol Canary Confidential Information, the Services and the Capitol Canary Platform. Client shall notify Capitol Canary promptly of any unauthorized access or use of the Capitol Canary Platform, Services or Capitol Canary Confidential Information. Client shall also comply with terms of service of any non-Salesforce applications (“Non-SFDC Applications”) with which Client uses the Capitol Canary Platform, Services or Capitol Canary Confidential Information.
3.2. Connectivity. Client and its Authorized Users and Supporters are solely responsible for securing all telecommunication and internet connections required to access the Services, as well as all hardware and software necessary to access or use the Services. In addition to other third-party costs that may apply, Client agrees to be responsible for all telecommunications costs, fees, repairs and services required for and dedicated to Client’s access to the Services.
3.4. Compliance with Applicable Law. At all times during use of any Services and any Capitol Canary Confidential Information as allowed under this Agreement it is Client’s responsibility to comply with Applicable Law (as defined in Section 8.1 below).
3.5. Export Compliance. Client shall not use any of the Services, or allow the transfer, transmission, export, or re-export of any of the Services or portion thereof, in violation of any laws or regulations of any governmental agency, including without exception any export control laws or regulations administered by the U.S. Commerce Department or any other government agency.
4. Capitol Canary Obligations.
4.1. Information Security. Capitol Canary maintains administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data (as defined in Section 6.1 below). Those safeguards include, but will not be limited to, measures for preventing access, use, modification or disclosure of Client Data by our personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 10.4 (Compelled Disclosure) below, or (c) as Client expressly permit in writing. In addition, Capitol Canary shall not commingle or otherwise disclose any Client Data to any other third-party except as allowed hereunder. Capitol Canary will report to Client as soon as commercially reasonable any unauthorized access or disclosure of Client Data of which Capitol Canary becomes aware of a security incident involving Client Data.
4.2. Training and Support Services. Capitol Canary shall provide training and support services during Capitol Canary’s normal business hours in accordance with the package purchased by Client as described in the applicable Sales Order. Additional training and support services may be purchased by Client by executing one or more Sales Orders in accordance with the procedure provided in Section 4.3 below. If Client reports a problem with the Services and requests Capitol Canary to provide additional support services, and Capitol Canary identifies the problem as caused by third-party software, application or device not under Capitol Canary’s control, such support services shall be considered a professional service and shall be invoiced and paid according to the payment terms in Section 7 (Fees) and the applicable Sales Order.
4.3. Consulting Services. During the term of the Agreement, Capitol Canary may provide consulting and other professional services as particularly described in one or more SOWs to this Agreement. Such SOW shall be governed by the terms of this Agreement, except to the extent specifically declared in any such SOW, and may require the payment of additional fees to Capitol Canary, also as set forth in such SOW. Capitol Canary shall have no obligation to perform any consulting or professional services without the execution of an applicable SOW containing mutually agreed upon terms.
5. Intellectual Property Rights. Client acknowledges and agrees that (i) all Services are protected by applicable intellectual proprietary rights including but not limited to patents, copyrights, and/or trade secrets together with any and all ideas, processes, techniques, designs, architecture, and “know-how” (collectively, “Intellectual Property Rights”), as applicable, of Capitol Canary and its vendors/licensors and that Client has no right to copy, assign, transfer or reproduce any Services or prepare any derivative works with respect to, or disclose Capitol Canary’s Confidential Information pertaining to, any Services or any part of them, and (ii) that Capitol Canary owns all right, title, and interest in and to the Services and Capitol Canary Platform, including, but not limited to, any changes or modifications made thereto, including Capitol Canary’s Confidential Information. Under no circumstances will Client be entitled to receive or be deemed to receive title or rights to all or to any portion of the Capitol Canary Platform or Services, title to which at all times will be held exclusively by Capitol Canary. Client will preserve all Services from any liens, encumbrances, and claims of any individual or entity. Client will not contest the validity of any Capitol Canary Intellectual Property Rights, or any Intellectual Property Rights of its vendors/licensors. Any such use of Capitol Canary’s Confidential Information, or any breach of Section 3.3(ii)-(iii) (Restrictions), will constitute a material, non-curable breach of this Agreement. Subject to the limited rights expressly granted hereunder, Capitol Canary reserves all of its rights, title and interest in and to the Services. No rights are granted to Client other than as expressly and specifically set forth in this Agreement.
6. Client Data.
6.1. License to Client Data. “Client Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client, Authorized User or Supporter through the Services. Capitol Canary shall permit Client to submit Client Data through the Services subject to the Terms and Conditions for purposes of achieving Client’s internal business objectives under this Agreement. Except for the rights expressly granted herein, Client owns all right, title and interest in and to any Client Data that is owned by or proprietary to Client. To the extent Client submits Client Data to Capitol Canary, Client grants Capitol Canary a non-exclusive, worldwide, royalty-free license to use the Client Data to perform the Services and carry out any obligations under this Agreement or an applicable Sales Order.
6.2. Responsibility for Client Data. In addition to the Client’s warranty related to Client Data set forth in Section 8.1(ii) below, Client is responsible for the accuracy, quality and legality of Client Data, the means by which Client acquired the Client Data and Client’s use of Client Data with the Service Client agrees that all Supporter communications that are stored in the Services will be sent or deleted within ninety (90) calendar days. Client will be responsible for obtaining all rights, consents, permissions, and authorizations prior to providing the Client Data to Capitol Canary for use as contemplated under this Agreement and hereby represents and warrants that all Client Data provided to Capitol Canary has all necessary rights, permissions and authorizations. Capitol Canary shall have the right to aggregate, analyze and derive anonymized statistical and usage data related to the Services as well as use the Client Data in an aggregated, de-identified manner to perform research and/or improve its Services (the “Anonymized Data”). As long as such Anonymized Data does not include any personally identifiable information of Client, its Authorized Users or Supporters, Capitol Canary will be the owner of all right, title and interest in such Anonymized Data.
6.3. European Union Data Processing. If applicable, Capitol Canary may require Client to execute a Data Processing Addendum (“DPA“) and Standard Contractual Clauses attached thereto prior to processing of Personal Data of ‘Data Subjects’ as such terms are defined in the General Data Protection Regulation (GDPR) and Client agrees to execute the Standard Contractual Clauses and not to send any Personal Data of Data Subjects to Capitol Canary prior to execution thereof. If applicable, for the purposes of the Standard Contractual Clauses attached to the DPA Client shall be deemed the Controller and data exporter, and Capitol Canary shall be the data importer and Processor. The DPA shall only apply if Capitol Canary is requested to processes any Personal Data of Data Subjects in the European Economic Area subject to the GDPR regulations on Client’s behalf to perform the Service If Client uses the Capitol Canary emailer service, in the provision of the Services, Client agrees to comply with the terms of the Emailer Use Policy, which is incorporated herein by reference. The Emailer Use Policy shall only apply if Client uses the emailer service.
6.4. Third-Party Materials. The Services may contain products, services or information provided by third parties that are not owned or controlled by either Capitol Canary or Client (“Third-Party Data”). Any acquisition of Third-Party Data is solely between Client and the applicable Third-Party provide Capitol Canary does not warrant or support any products or services not offered by Capitol Canary, unless expressly provided otherwise in an Order Form. The use of such Third-Party Data may be subject to a separate agreement between Client and the third-party providing any such Third-Party Data.
6.5. Feedback. Client may voluntarily provide suggestions, comments, or other feedback (collectively, “Feedback”) to Capitol Canary with respect to its products and services. Capitol Canary may use Feedback for any purpose without obligation or restriction of any kind. To the extent a license is required under Client’s Intellectual Property Rights to make use of the Feedback, Client grants Capitol Canary an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with Capitol Canary’s business, including the enhancement of the Services.
7.1. General. Capitol Canary will invoice Client all fees associated with the Services, as further described in the applicable Schedule(s). All fees shall be non-refundable. Client will pay all invoices within thirty (30) calendar days of invoice date. Payments not made within that time period will be subject to late charges equal to the lesser of (i) one and one-half percent (1.5%) per month of the overdue amount, or (ii) the maximum amount permitted under applicable law. In the event an invoice remains unpaid forty-five (45) or more calendar days from the invoice date, Capitol Canary may, in its discretion, suspend the Services until the invoice is paid in full. Following the Initial Term of each Sales Order, on thirty (30) days’ prior notice to Client, Capitol Canary may, at its sole discretion, adjust any or all fees due hereunder. Client may elect not to renew the Sales Order with written notice to Capitol Canary within fifteen (15) calendar days of its receipt of notice from Capitol Canary to adjust the fees; provided, however, that if Client fails to object to such adjustment in writing within the foregoing thirty (30) calendar days then Client will be deemed to have agreed to the adjustment.
7.2. Taxes. In addition to any other payments due under this Agreement, Client agrees to pay, any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Services under this Agreement. Client agrees to indemnify, and hold harmless Capitol Canary from any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Services under this Agreement; excluding, however, income taxes on profits or taxes which may be levied against Capitol Canary.
8.1. Client Warranty. Client represents and warrants that (i) it has full power, capacity, and authority to enter into this Agreement and to grant the license(s) set forth in Section 6.1 (License to Client Data); (ii) any Client Data provided by Client to Capitol Canary for use in connection with the Services does not and will not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of applicable foreign, federal, state, or local laws, rules, or regulations (including, but not limited to, applicable policies and laws related to spamming, privacy, or consumer protection) (collectively, “Applicable Law”); (iii) it will not attempt to adapt, translate, rent, lease, loan, time-share, sublicense, distribute, give away, donate, disclose the Capitol Canary Platform, Services, or Capitol Canary Confidential Information, or for third-party training, commercial time-sharing or service bureau use; (iv) it will not use any of the Capitol Canary Platform, Services and Capitol Canary Confidential Information in a format or manner that permits any unauthorized access or the ability to copy or replicate the same (or any portion thereof); and (v) its use of the Capitol Canary Platform, Services and Capitol Canary Confidential Information will be in compliance with the Terms and Conditions with all Applicable Law.
8.2. Capitol Canary Warranty. Capitol Canary represents and warrants that (i) it has full power, capacity, and authority to enter into this Agreement, and during the Term, (ii) it shall use commercially reasonable efforts to screen the Services for viruses, Trojan horses, worms, and other similar intentionally harmful or destructive code; and (iii) it shall comply with Applicable Law in performing the Services. In the event of a breach of the warranty in this Section, Capitol Canary’s sole and exclusive liability and Client’s sole and exclusive remedy will be for Capitol Canary to re-perform the defective Service. In the event Capitol Canary is unable through reasonable efforts to correct the defective Service within thirty (30) calendar days from receipt of notice from Client of the failure of the Services to comply with the warranty, Client may elect to terminate this Agreement and receive a pro-rated refund of any pre-paid, unused recurring fees for the non-conforming Services.
8.3. Disclaimer of Warranties. EXCEPT AS PROVIDED IN SECTION 8.2 (Capitol Canary WARRANTY), THE SERVICES ARE PROVIDED “AS IS” AND Capitol Canary HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. Capitol Canary SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8.2, CAPITOL CANARY MAKES NO WARRANTY OF ANY KIND THAT THE CAPITOL CANARY PLATFORM, SERVICES, OR ANY CAPITOL CANARY CONFIDENTIAL INFORMATION OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S, AUTHORIZED USERS, SUPPORTERS OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9.1. Capitol Canary Indemnity. Capitol Canary will defend, indemnify, and hold harmless Client from any and all claims and associated damages arising from a claim by a third-party that Client’s use of the Services infringes that third-party’s United States Intellectual Property Rights. Capitol Canary will defend, indemnify, and hold harmless Client from any and all claims and associated damages arising from unauthorized disclosure of Confidential Information. The foregoing indemnification obligations of Capitol Canary is contingent upon Client promptly notifying Capitol Canary in writing of such claim within 10 days, permitting Capitol Canary sole control of the defense and settlement of such claims, and providing Capitol Canary reasonable assistance in connection therewith. If Capitol Canary receives information about an infringement or claim related to the Services, Capitol Canary in its discretion and at no cost to Client may (i) modify the Services so that they are no longer claimed to infringe, (ii) obtain a license for Client’s continued use of the Services in accordance with this Agreement, or (iii) terminate Client’s subscriptions for the Services upon 30 days’ written notice and refund Client any prepaid fees covering the remainder of the term. The defense and indemnification obligations set forth in this Section do not apply if (1) the allegation does not state with specificity that Capitol Canary’s Services are the basis of the claim against Client; (2) a claim against Client arises from the use or combination of Capitol Canary’s Services with software, hardware, data, or processes not provided by Capitol Canary, if Capitol Canary’s Services would not infringe without such combination; (3) a claim against Client is based on traditional online functionality that is or was in general use in the industry; or (4) a claim arises from Client Data submitted by Client or Client’s use of the Services in violation of this Agreement (collectively, the “Excluded Claims”). The provisions of this Section 9.1 (Capitol Canary Indemnity) state the sole and exclusive obligations and liability of Capitol Canary and its licensors and suppliers, and Client’s sole and exclusive remedy, for any claim arising out of or relating to the Services or this Agreement, and are in lieu of any implied warranties of non-infringement and title, all of which are expressly disclaimed.
9.2. Client Indemnity. Client will defend, indemnify, and hold harmless Capitol Canary from any and all claims and associated damages incurred by Capitol Canary as a result of any claim by a third-party arising from (i) Client’s, its Authorized Users’ or Supporters’ use of the Services (to the extent not arising from a claim for which Capitol Canary has an indemnification obligation pursuant to Section 9.1), (ii) the Excluded Claims, (iii) Client’s breach of Section 6.1 (License to Client Data), or (iv) any dispute between Client and any Authorized User or Client and any Supporter. The foregoing indemnification obligation of Client is contingent upon Capitol Canary promptly notifying Client in writing of such claim and providing Client reasonable assistance in connection therewith.
9.3. Sole Remedy. THIS SECTION 9 SETS FORTH CLIENT’S SOLE REMEDIES AND CAPITOL CANARY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10.1. Confidential Information. Each party agrees that all information supplied by one party and its affiliates and agents (collectively, the “Disclosing Party”) to the other party and its affiliates and agents (including any Authorized Users or Supporters of the Client) (the “Receiving Party”) including, without limitation: (i) prices, trade secrets, mask works, databases, hardware, software, data feed, designs and techniques, programs, models, displays and manuals, and the selection, coordination, and arrangement of the contents of such materials, (ii) any unpublished information concerning research activities and plans, customers, marketing or sales plans, sales forecasts or results of marketing efforts, pricing or pricing strategies, costs, operational techniques, strategic plans, and unpublished financial information, including information concerning revenues, profits and profit margins, and (iii) any information provided by the Disclosing Party to the Receiving Party received under circumstances reasonably interpreted as imposing an obligation of confidentiality, will be deemed confidential and proprietary to the Disclosing Party, regardless of whether such information was disclosed intentionally or unintentionally or marked as “confidential” or “proprietary” (“Confidential Information”). The Capitol Canary Platform, Services, the Hosted Applications and the licensed materials contained therein are the Confidential Information of Capitol Canary. The Client Data is the Confidential Information of Client.
10.2. Exclusions. Confidential Information will not include any information or material, or any element thereof, whether or not such information or material is Confidential Information for the purposes of this Agreement, to the extent any such information or material, or any element thereof: (i) at the time of disclosure to Receiving Party was in the public domain or after disclosure becomes part of the public domain, unless it has become generally known through a breach of this Agreement or a similar confidentiality or non-disclosure agreement; (ii) was already rightfully known to the Receiving Party prior to being disclosed by or obtained from the Disclosing Party as evidenced by written records kept in the ordinary course of business of or by proof of actual use by the Receiving Party; (iii) has been or is hereafter rightfully received by the Receiving Party from a third person (other than the Disclosing Party) without restriction or disclosure and without breach of a duty of confidentiality to the Disclosing Party; or (iv) has been independently developed by or on behalf of the Receiving Party without access to Confidential Information of the Disclosing Party.
10.3. Treatment of Confidential Information. With respect to each party’s Confidential Information, each party agrees as follows: (i) the Receiving Party will hold any and all Confidential Information it obtains in confidence and will use and permit use of Confidential Information solely to achieve the purposes of this Agreement; (ii) without limiting the foregoing, the Receiving Party will use at least the same degree of care, but no less than reasonable care, to avoid unauthorized disclosure or use of this Confidential Information as the Receiving Party employs with respect to its own Confidential Information of high importance; (iii) the Receiving Party may disclose or provide access to its responsible employees who have a need to know and may make copies of Confidential Information only to the extent reasonably necessary to carry out its obligations hereunder; (iv) the Receiving Party currently has, and in the future will maintain in effect and enforce, rules and policies to protect against access to, or use or disclosure of, Confidential Information other than in accordance with this Agreement, including, without limitation, written instruction to, and agreements with, employees and agents who are bound by an obligation of confidentiality no less stringent than set forth in this Agreement to ensure that such employees and agents protect the confidentiality of Confidential Information; (v) the Receiving Party expressly will instruct its employees and agents, including any Authorized Users and/or Supporters of Client, not to disclose Confidential Information to third-parties, including, without limitation, customers, subcontractors, or consultants, without the Disclosing Party’s prior written consent, and to use Confidential Information only as permitted by the terms of this Agreement; and (vi) the Receiving Party will notify the Disclosing Party immediately of any unauthorized disclosure or use, and will cooperate fully with the Disclosing Party to protect, all proprietary rights in and ownership of its Confidential Information.
10.4. Compelled Disclosures. To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order, or requirement, and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing if legally permitted to do so and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose, or seek to limit such disclosure by the Receiving Party, and any subsequent disclosure or use of Confidential Information that may result from such disclosure. Any such compelled disclosure by the Receiving Party will not otherwise affect the Receiving Party’s obligations hereunder.
10.5. Return of Confidential Information. On termination or expiration of this Agreement, Receiving Party will return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential Information, and will also provide a written certification in form and substance reasonably satisfactory to the Disclosing Party that the Disclosing Party’s Confidential Information has been returned or destroyed. Notwithstanding the foregoing, the Receiving Party will not be required to return or destroy copies of the Disclosing Party’s Confidential Information from its backup media and servers, where doing so would be commercially impracticable. In addition, the foregoing destruction and return obligation will be subject to any records retention obligations imposed on Receiving Party by law or regulation.
10.6. Non-Exclusive Equitable Remedy. Each party acknowledges and agrees that due to the unique nature of either party’s Confidential Information there can be no adequate remedy at law for any breach of the Receiving Party’s obligations hereunder, that any such breach or threatened breach may allow such Receiving Party or third-parties to unfairly compete with the Disclosing Party, resulting in irreparable harm to such Disclosing Party. Therefore, upon any such breach or any threat thereof, the Disclosing Party will be entitled to appropriate equitable and injunctive relief from a court or forum of competent jurisdiction without the necessity of proving actual loss. Any breach of this Section 10 (Confidentiality), or Section 3.3(ii)-(iii) (Restrictions) will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching party.
10.7. Personal Data. In connection with this Agreement and performance of the Services, Capitol Canary may be provided or obtain from Client, Personal Data (as defined below) pertaining to Client’s Authorized Users and Supporters and (ii) may need to Process (as defined below) such Personal Data and/or transfer it, all subject to the restrictions set forth in this Agreement and otherwise in compliance with all applicable foreign and domestic laws and regulations for the sole purpose of performing the Services. For purposes of this Agreement, “Personal Data” shall mean any information relating to an identified or identifiable individual that would permit such individual’s identity to be determined. For the avoidance of doubt, Personal Data shall include, but not be limited to, all “nonpublic personal information,” as defined under the Gramm-Leach-Bliley Act (15 United States Code (“U.S.C.”) §6801 et seq.), “Personal Data” as that term is defined in Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (“GDPR”) and “Personal Information” as that term is defined in the California Consumer Privacy Act of 2018 (“CCPA”). “Process” or “Processing” shall mean any operation or set of operations performed upon the Personal Data, whether or not by automatic means, including collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of Personal Data.
10.8. Treatment of Personal Data. Without limiting any other warranty or obligation specified in this Agreement, and in particular the confidentiality provisions of this Section 10 (Confidentiality), Capitol Canary will not gather, store, log, archive, use or otherwise retain any Personal Data in any manner and will not disclose, distribute, sell, share, rent or otherwise transfer any Personal Data to any third-party, except as permitted in Sections 4.1 and 6.1, required to perform its obligations under this Agreement or as Capitol Canary may be directed in advance in writing by Client. Capitol Canary will use Personal Data only in compliance with Applicable Laws. Capitol Canary will notify Client of any actual breach of confidentiality or security with regard to Personal Data that it becomes aware of. Capitol Canary will reasonably cooperate with Client in investigating any breach it becomes aware of, including, but not limited to, the provision of system, application, and access logs, conducting forensics reviews of relevant systems, imaging relevant media, and making personnel available for interview, provided that any such investigation does not unreasonably disrupt Capitol Canary’s business operations. On notice of such actual breach, Capitol Canary will institute reasonable measures designed to maintain and preserve electronic evidence relating to such actual breach. Capitol Canary will reasonably cooperate with Client and any regulator or other governmental entity having jurisdiction over and the lawful possession and use of the Personal Data, provided that such cooperation does not unreasonably disrupt Capitol Canary’s business operations.
10.9. California Consumer Privacy Act. Capitol Canary shall not retain, use, or disclose any Personal Data that, under the CCPA constitutes “Personal Information” (“CA Personal Information”) for any purpose other than for the specific purpose of providing the Services, or as otherwise permitted by CCPA, including retaining, using, or disclosing the CA Personal Information for a commercial purpose. Capitol Canary shall not (i) sell any CA Personal Information; (ii) retain, use or disclose any CA Personal Information for any purpose other than for the specific purpose of providing the Services, including retaining, using, or disclosing the CA Personal Information for a commercial purpose other than provision of the Services; or (iii) retain, use or disclose the CA Personal Information outside of the direct business relationship between Capitol Canary and Client. Capitol Canary hereby certifies that it understands its obligations under this Section and will comply with them. Notwithstanding anything in this Agreement or any sales order entered in connection therewith, the parties acknowledge and agree that Capitol Canary’s access to CA Personal Information or any other Personal Data does not constitute part of the consideration exchanged by the parties in respect of the Agreement.
11. Limitation of Liability.
11.1. No Consequential Damages. NEITHER CAPITOL CANARY NOR ITS AGENTS, VENDORS, LICENSORS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS WILL HAVE ANY LIABILITY TO CLIENT OR ANY THIRD-PARTY FOR ANY LOSS OF PROFITS, SALES, TRADING LOSSES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, USE OF OR INABILITY TO USE THE SERVICES.
11.2. Total Liability Limitation. THE TOTAL LIABILITY OF CAPITOL CANARY AND ITS AGENTS, VENDORS, LICENSORS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, TO CLIENT OR ANY THIRD-PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY CLIENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING WRITTEN NOTICE PROVIDED TO CAPITOL CANARY OF THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
11.3. No Liability for Acts or Omissions of Client or Authorized Users. IN NO EVENT WILL CAPITOL CANARY, OR ITS AGENTS, VENDORS, LICENSORS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE FOR ANY ACTS OR OMISSIONS TAKEN BY CLIENT, AUTHORIZED USERS OR SUPPORTERS RESULTING FROM THEIR USE OF THE SERVICES AND CLIENT AGREES TO BE SOLELY LIABLE FOR ALL SUCH ACTS OR OMISSIONS NOTWITHSTANDING ANY ADDITIONAL AGREEMENTS BETWEEN CAPITOL CANARY AND ANY AUTHORIZED USERS AND/OR SUPPORTERS.
11.4. No Liability for Client Use of Services. UNDER NO CIRCUMSTANCES WILL CAPITOL CANARY BE LIABLE OR RESPONSIBLE FOR ANY USE, OR ANY RESULTS OBTAINED BY THE USE, OF THE SERVICES IN CONJUNCTION WITH ANY SERVICES, SOFTWARE, OR HARDWARE THAT ARE NOT PROVIDED BY CAPITOL CANARY.
11.5. No Liability for Unauthorized Use. CAPITOL CANARY ACCEPTS NO RISK, RESPONSIBILITY OR LIABILITY AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESSLY OR IMPLIED FOR ANY UNAUTHORIZED USE, AND ALL SUCH UNAUTHORIZED USE WILL BE AT AND TO CLIENT’S SOLE RISK AND LIABILITY.
12.1. Termination. This Agreement will terminate (i) thirty (30) calendar days after either party gives the other written notice of a breach by the other of any material term or condition of this Agreement, unless the breach is cured before that day, or (ii) immediately upon written notice by either party if (a) a receiver is appointed for the other party or its property, (b) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors, or (c) any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) calendar days from the date of commencement thereof.
12.3. Effect of Termination. Upon termination of this Agreement or termination of a particular Service for any reason: (i) Client’s access to and use of the Services, and that of its Authorized User(s) and Supporter(s), will cease as of the effective date of termination; (ii) Client will immediately pay to Capitol Canary all sums due to Capitol Canary for Services through the effective date of such expiration or termination (prorated as appropriate); (iii) Client will purge and destroy all Capitol Canary Confidential Material from Client’s computer files, mobile devices used by Client’s Authorized Users and Client’s Salesforce instance (if any); and (iv) at Capitol Canary’s standard time and materials rates, Capitol Canary will reasonably cooperate with Client in deleting or downloading the Client Data.
13. General Provisions.
13.1. Publicity. Capitol Canary and Client each agree not to use the name, trademark, service mark, or trade name of the other party, its divisions, subsidiaries, or affiliates in publicity releases, promotional material, promotional media or written advertising, including customer lists, without the prior written consent of the other party.
13.2. Force Majeure. Except for payment obligations, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including, without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, pandemics, war, riot, act of God, export control regulation, laws, judgments or government instructions.
13.3. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by Client without Capitol Canary’s prior written consent, but may be assigned by Capitol Canary without restriction.
13.4. Entire Agreement; Amendment. This Agreement sets forth the entire agreement between the parties with regard to the subject matter hereof. Capitol Canary may amend this Agreement from time to time. No other agreements, representations, or warranties, written, oral or otherwise, have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced herein. For the avoidance of doubt, no oral or written information or advice given by Capitol Canary or its will create any other warranties or in any way increase the scope of Capitol Canary’s obligations hereunder.
13.5. Governing Law, Venue, and Limitation of Actions. This Agreement will be construed according to, and the rights of the parties will be governed by, the laws of the State of Delaware, without reference to its conflict of laws rules. The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the state or federal courts (if permitted by law and a party elects to file an action in federal court) located in the State of Delaware. This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section 13.5 (Governing Law, Venue, and Limitation of Actions). Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or theory or to object to venue with respect to any proceeding brought in accordance with this Section 13.5 (Governing Law, Venue, and Limitation of Actions). No action, regardless of form, arising out of this Agreement, may be brought by either party more than one (1) year after the cause of action has arisen. The prevailing party in any action or proceeding will be entitled to recover its reasonable attorneys’ fees and costs.
13.6. Relationship of the Parties. The parties agree that Capitol Canary will perform its duties under this Agreement as an independent contractor. Nothing contained in this Agreement will be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. Personnel employed or retained by Capitol Canary who perform duties related to this Agreement will remain under the supervision, management, and control of Capitol Canary. There are no third-party beneficiaries to this Agreement.
13.7. Severability. If any of the provisions of this Agreement are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of this Agreement and will not cause the invalidity or unenforceability of the remainder of this Agreement.
13.8. Waiver. Neither party will by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party will not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.
13.9. Survival. The following Sections will survive termination or expiration of this Agreement: Sections 3.3(ii)-(iii) (Restrictions), 5 (Intellectual Property), 8.3 (Disclaimer of Warranties), 9.1 (Capitol Canary Indemnity) (for claims accruing prior to termination), 9.2 (Client Indemnity) (for claims accruing prior to termination), 10 (Confidentiality), 11 (Limitation of Liability), 12 (Termination), and 13 (General Provisions).
13.10. Notices. Any written notice or demand required by this Agreement will be sent by electric mail, registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or other guaranteed delivery to the other party at the address set forth in the applicable Sales Order. The notice will be effective as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, as of five (5) calendar days after the date of posting if the notice is transmitted by registered or certified mail. Any party may change the address at which it receives notices by giving written notice to the other party in the manner prescribed by this Section.
13.11. Purchase of Information Restrictions. To the extent that Client subscribes to certain Services that require payment for collection of publicly available information, it is specifically agreed that Capitol Canary is not charging Client for any information displayed on the public page of the Capitol Canary Platform and also is not, in accordance with various state laws, charging Client for collection and/or aggregation of publicly available data from the following states: Colorado, C., Illinois, Kansas, Indiana, Iowa, Maine, Missouri, Nebraska, Pennsylvania, South Dakota, Wisconsin and Wyoming as those states may prohibit the republication of data for profit. Client understands and agrees that Capitol Canary may be required to remove or restrict access to certain data from the Services as a result of this Section and Client agrees that such removal shall not be considered a breach of this Agreement.
13.12. Campaign Finance Data. To the extent that Client uses certain Services that utilize publicly-reported campaign finance data (“Campaign Finance Data”), the Federal Election Campaign Act and multiple state laws may govern and affect Client’s use of such information. Capitol Canary does not endorse any particular method of data use or analysis. By using Campaign Finance Data made available by the Services Client agrees, in addition to its compliance with Applicable Law requirements, to abide by the following relevant constitutional and statutory use regulations and limitations: 2 U.S.C. § 438(a)(4); Ala. Code §17-5-11; Colo. Const. art. XXVIII, § 9(1)(e); D.C. Code Ann. § 1-1163.04(3); Haw. Rev. Stat. Ann. § 11-344; 10 Ill. Comp. Stat. Ann. 5/9-17; Ind. Code Ann. § 3-9-4-5; Iowa Code Ann. § 68B.32A; Stat. Ann. § 25-4154(d); Me. Stat. tit. 21-A § 1005; Minn. Stat. Ann. § 10A.35; Mo. Ann. Stat. § 130.056(5); Neb. Rev. Stat. Ann. § 49-14, 132; 25 Pa. Cons. Stat. § 3249(d), 4 Pa. Code § 177.1(g); S.C. Code Ann. §§ 30-2-30(3), 30-2-50(A), (D); S.D. Codified Laws § 12-27-33; Vt. Stat. Ann. tit. 15 § 1158, Vt. Stat. Ann. tit. 17 §§ 2141, 2154; Wis. Stat. Ann. § 11.1304(12); Wyo. Stat. Ann. 22-26-112(a)(viii) and any other relevant state or federal law.