Last Updated: January 3, 2017

Subscription Terms & Conditions

These Subscription Terms & Conditions (the “Subscription Terms”) govern your use of our Web-delivered data and analytics service (the “Service“). We provide the Service from our Web site at http://www.govini.com and from any mobile sites, mobile applications, widgets, and other internet points of presence that we make available to you to access the Service (collectively, the “Site“). THIS AGREEMENT GOVERNS ALL USE OF OUR SERVICE AND SITE, WHETHER ON A NON-PAID OR PAID BASIS.

1.  Acceptance of Agreement.  These Subscription Terms are entered into by and between Poplicus Inc. dba Govini, together with its affiliated companies (collectively, “we,” “us,” or “Govini”) and the customer (“you”) identified in a Subscription Agreement or other written agreement between you and us for your subscription to the Service (“Subscription Agreement”).  Collectively, the Subscription Agreement and Subscription Terms are referred to herein as the “Agreement.”

2. Fees; Payment.  You agree to pay the fees (“Subscription Fees”, “Services Fees”, or “Renewal Fees”) set forth in the Subscription Agreement or other written agreement between you and us for your subscription to the Service (each a “Subscription Agreement”).  Unless otherwise provided in the Subscription Agreement, all amounts under this Agreement are payable in U.S. dollars.  Subscription Fees, and service-related Training Fees and Professional Services Fees referred hereafter as “Services Fees”, are due and payable as set forth in the Subscription Agreement or, if not set forth in the Subscription Agreement, net fifteen (15) days from the date of our invoice.  We may charge a late fee of one and one half percent (1.5%) per month on past due amounts.  If you pay by credit card, you are responsible for maintaining up-to-date, valid credit card or other payment information, and you acknowledge that we may immediately terminate this Agreement and/or suspend your right to access the Service if we are unable to charge your credit card for fees when due. The fees payable under this Agreement do not include local, state or federal taxes or duties of any kind; all such taxes will be assumed and paid by you, except for taxes based on Govini’s income or receipts.  You will send payments to the payment address specified in the Subscription Agreement or our invoice.

3. User Accounts.

3.1  User Accounts. Govini will provision username/password pairs (“User Accounts”) for up to the number of individual authorized users and products specified in your Subscription Agreement (“End Users”).

3.2  End Users.  You may designate your employees or independent contractors as End Users; provided, that (a) you are responsible for all use of the Service that occurs under your User Accounts and for any breach of this Agreement by any of your End Users, and (b) all use of the Service by End Users is subject to the pricing terms and limitations set forth in your Subscription Agreement.  Each User Account may be used by only one individual End User.  You agree to notify us of any unauthorized access or use of which you become aware.

4. Permitted Use of the Service.

4.1 Govini Content. Subject to the terms and conditions of this Agreement, you are authorized to access and use the text, graphics, data, benchmarks, analytics, business metrics, indicators, data analysis tools, and other information and content that we make available to you through the Service (“Govini Content“) and otherwise use the features and functionality of the Service only for your internal business purposes (if you represent a company, non-profit, governmental agency or other entity) or your personal, non-commercial use (if you are an individual).

4.2 Govini APIs and Software. From time to time, we may make application programming interfaces (APIs), HTML scripts, data import tools, or other software code or executables available to you as part of the Service (“Govini APIs and Software“). We grant you a non-exclusive, non-transferable license, only while this Agreement remains in effect, to use the Govini APIs and Software (if any) to access and use the Service in compliance with the terms of this Agreement, and for no other purpose.

5. Prohibited Uses of the Service. You specifically agree not to:
– access the Service using the username and password of another user;
– permit anyone else (including another employee or contractor from your company) to access the Service using your username or password;
– make copies of any Govini Content or distribute Govini Content to any third party, except where we specifically authorize the reproduction and use of content we make publicly available to non-subscribers;
– use any robot, spider, data scraping, crawler or extraction tool or similar mechanism with respect to the Service, including to retrieve or copy Govini Content or other materials from the Service;
– reproduce or distribute any Govini Content except as expressly permitted in writing;
– “frame,” distribute, resell, or permit access to the Service (including Govini Content) by any third party;
– use the Service other than in accordance with the instructions or documentation we provide and in compliance with applicable laws;
– interfere with the Service or disrupt any other user’s access to the Service;
– reverse engineer, attempt to gain unauthorized access to the Service, or attempt to discover the underlying source code, data sources, or structure of the Service;
– submit to the Service any routine, device or other undisclosed feature, including a so-called time bomb, virus, worm, Trojan horse, trapdoor or back door, that is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service, or which is intended to allow unauthorized access or produce unauthorized modifications;
– distribute, or permit any third party to use, Govini APIs and Software; or
– if you are (or your company is) our competitor, access, use, distribute or resell any of the content on the Site, directly or indirectly.

6. Your Content.

6.1 Ownership; Representation.  As between the parties, you retain all right, title and interest in any and all search terms, search histories, data, text, personally identifiable information, and other content that you or your End Users upload or submit to the Service (collectively, “Your Content”).  You represent and warrant that you have all rights, permissions and consents necessary to submit Your Content to the Service and to grant us the limited rights to use Your Content set forth in this Agreement.  Your Content may include Public Content (as defined in Section 6.2 below) that you submit to the Service.

6.2 Use of Your Content.  You agree that we may use Your Content to make the Service and its features available to you in accordance with this Section 6, including without limitation by making Your Content available for viewing, modification or download by your End Users.  You agree that we may distribute Your Content to our service providers who act on our behalf in providing the Service, provided, that we bind such service providers to confidentiality obligations substantially as protective of Your Content as this Agreement, and that we will be responsible for any breach of this Agreement by such service providers in connection with our provision of the Service.  The Service and Site may include areas or pages where you can submit content designated for public availability to all users of the Site and Service (“Public Content”).  If you submit Public Content, you grant us a perpetual, irrevocable, royalty free, worldwide license to (a) display, distribute, reproduce, reformat, make available for download, modify and use Public Content and to sublicense these rights to other users of the Site and Service.

6.3 Security; Treatment at Termination.  We will maintain commercially reasonable administrative, technical and procedural safeguards designed to protect Your Content from unauthorized access, disclosure or loss.  After termination or expiration of this Agreement, Govini has no obligation to retain, and may delete, Your Content from the Service at any time.

7. No Competitive Use. If you are (or your company is) a direct competitor of Govini, you may not use our Service. The Service is intended for use by our customers, not our competitors, and may contain data or information proprietary and confidential to us. Accordingly, if you violate this Section 7, we may terminate this Agreement and your access to the Service immediately, retain any amounts you have prepaid for the Service and, invoice you for a termination fee of $25,000.00 per End User, which you will pay net (30) days from the date of our invoice. You acknowledge that this termination fee represents liquidated damages rather than a penalty, and reflects a reasonable measure of our actual damages associated with violation of this Section 7. For avoidance of doubt, the remedies available to us under this Section 7 are in addition to, and do not limit, any other rights we may have, at law or in equity, arising from your breach of any other provision of this Agreement

8. Term and Termination.

8.1 Term. This Agreement begins when you accept it and register for the Service (the “Effective Date“), and remains in effect throughout the Subscription Period identified in your Subscription Agreement (“Initial Term”) unless earlier terminated as provided in this Section 8.  After the Initial Term, the Agreement and your subscription will automatically renew for successive one year renewal terms (each a “Renewal Term”) at the then current subscription list price (“Renewal Fees”) unless either party provides written notice of non-renewal at least 30 days prior to the end of the Initial Term or then-current Renewal Term.

8.2 Termination by You. You may terminate this Agreement at any time by giving us at least thirty (30) days’ prior written notice via email to accounts@govini.com, but you will not be entitled to any refund of Subscription Fees in connection with such termination except as expressly provided in in Section 8.5 below, and you will promptly pay any unpaid portion of your Subscription Fees for your then-current Subscription Period.

8.3 Termination by Us for Cause. We may terminate this Agreement immediately and discontinue your access to the Service at any time, upon written notice to the email address you provide when you register for the Service, if (a) you are in breach of any material provision of this Agreement, (b) you misappropriate or infringe any of our intellectual property or proprietary rights, or (c) you fail to make a payment when due (e.g., because your payment information is out-of-date or invalid).

8.4 Termination by Us for Convenience. In addition, we may terminate this Agreement at any time, for any reason, upon written notice to you, in which case we will provide you the pro-rated refund for any pre-paid, unused Subscription Fees described in Section 8.5 below.

8.5 Effect of Termination. Upon expiration or termination of this Agreement for any reason: (a) all rights and obligations of the parties will cease, except that the following sections of the Agreement will survive any such termination or expiration: 1, 2 (but only with respect to amounts that are accrued but unpaid as of the effective date of termination), 3.2, 5, 6, 8.5, 9 through 17, 19, 20 and 21; (b) notwithstanding any provision of a surviving section, you will have no further right to use the Service, Govini Content, or Govini Software and APIs; and (c) you will not be entitled to any refund of any Subscription Fees, except that if we terminate the Agreement for convenience under Section 8.4 before your subscription to a paid account has ended, we will provide you with a pro-rated refund of any unused Subscription Fees.

9. Intellectual Property.

9.1 Service. We retain all right, title and interest in the Service and the technology and software we use to provide the Service, including any Govini APIs and Software. Any HTML scripts or other software code created to generate or display content on the Service is protected by our copyright, and you have no right to copy or adapt that code.

9.2 Govini Content. The Govini Content and all trademarks, logos, button icons, graphics, “look and feel,” and additional materials on the Site are the property of Govini and our licensors, and protected by copyright, trademark, and other intellectual property rights. Use or reproduction not authorized in this Agreement is prohibited. If the Service permits you to download and distribute any Govini Content, you must preserve all copyright, trademark, and other proprietary rights notice in the Govini Content or any copy you make of such Govini Content that is authorized by this Agreement.

9.3 Your Content. Except for the rights you grant to us in this Agreement, you retain all right, title and interest in Your Content.

9.4 Feedback. We are grateful for input and suggestions you provide, but we need to maintain our intellectual property rights in the Service.  You acknowledge and agree that all feedback and suggestions for enhancement that you provide to us concerning the Service (“Feedback”) will be owned by us without any obligation of compensation to you.

10. Warranty Disclaimer. The Service is provided via the internet, and may therefore experience periods of downtime, including but not limited to scheduled maintenance. Further, much of the Govini Content available through the Service was obtained by us from third party sources. Accordingly, WE MAKE NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICE, THE Govini CONTENT AND ANY DOCUMENTATION WE MAKE AVAILABLE VIA THE SERVICE, OR ANY GOVINI SOFTWARE AND APIS. WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, OR RESULTS TO BE OBTAINED FROM THE SERVICE. WE DO NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.

11. Privacy. Your (and your End Users’) use of the Service is governed by our Privacy Policy, which we may update from time to time. Our Privacy Policy describes our practices regarding collection, use and disclosure of information we obtain about you in connection with the Service. However, our Privacy Policy does not apply to personal information that you may submit as part of Your Content.

12. Confidentiality. Each party (the “receiving party”) agrees not to disclose, duplicate, publish, release, transfer or otherwise make available the Confidential Information of the other party (the “disclosing party”) in any form to, or for the use or benefit of, any person or entity without the disclosing party’s prior written consent. “Confidential Information” means the disclosing party’s financial, technical, or business information that is designated as confidential at the time of disclosure, or that the receiving party reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. The specific features of the Service, the documentation we provide to you in connection with the Service including any pricing for products or services, and the Govini Software and APIs are included among our Confidential Information. Your Content and any personal information you submit to the Service are your Confidential Information; provided, however, that our display or disclosure of Your Content as necessary to provide the Service to you and your End Users or disclosure of personal information submitted by you or your End Users consistently with the Privacy Policy will not be deemed to violate this section. Confidential Information does not include information that: (i) is or becomes generally known to the public without breach of the receiving party’s confidentiality obligation under this Agreement; (ii) was independently developed by the receiving party without breach of its confidentiality obligation under this Agreement; or (iii) the receiving party received from a third party who obtained such Confidential Information without breach of any obligation owed to the disclosing party.

13. Limited Liability; Exclusion of Certain Damages. EXCEPT FOR LIABILITY ARISING FROM OUR FRAUD, WILLFUL MISCONDUCT OR OUR INFRINGEMENT OF YOUR INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL WE BE LIABLE UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, FOR (I) ANY AMOUNT IN EXCESS OF THE SUBSCRIPTION FEES ACTUALLY PAID TO US DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE APPLICABLE CLAIM AROSE, (II) ANY LOST PROFITS OR OTHER INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF WE HAVE BEEN GIVEN ADVANCE NOTICE OF SUCH POSSIBLE DAMAGES; OR (III) ANY LOSS OF YOUR CONTENT OR DATA SUBMITTED TO THE SERVICE.

14. Indemnification.

14.1 By Us.  We will defend, indemnify and hold harmless you and your corporate affiliates, directors, officers, employees, successors, assigns and agents from and against any third party claim, demand or action, and all resulting damages, settlement amounts, penalties, costs and expenses, to the extent such claim, demand or action alleges that the Service, when used by you in compliance with this Agreement, infringes or violates any intellectual property or proprietary right of any third party; provided, that we will not be obligated under this sentence to the extent any such infringement or violation arises from (a) use of the Service in combination with technology or services not provided by us, (b) Your Content, or (c) third party content made available to you through the Service.

14.2 By You.  You agree to indemnify and hold us and our corporate affiliates, directors, officers, employees, successors, assigns and agents harmless from and against any claim, demand, action, proceeding, loss, damage, settlement, penalty, cost, expense or other liability (including but not limited to reasonable attorneys’ fees and expenses) arising out of (1) any allegation that, if true, would establish a breach of this Agreement by you, or (2) Your Content (except to the extent such liability results from our modification of Your Content or our violation of this Agreement).

14.3 Conditions.  The indemnifying party’s obligations under this section are contingent on the indemnified parties: (a) promptly providing written notice of the claim to the indemnifying party, (b) giving the indemnifying party sole control of the defense and settlement of the claim (provided, however, that the indemnifying party will not enter into any settlement that imposes any monetary liability on, or admits any fault on the part of, an indemnified party); and (c) providing the indemnifying party, at the indemnifying party’s expense, all reasonable assistance in connection with such claim.  In no event will an indemnified party be liable for any settlement that admits any fault of or imposes any monetary liability on an indemnified party without its prior written consent.

15. Publicity. You agree that we may identify you as a customer on our Site or other public communications.

16. Copyright Complaints. If you believe that your copyrighted work has been infringed by content appearing on our Site, please follow our Procedure for Making Claims of Copyright Infringement.

17. Links to Third Party Sites. This Site may contain links to Web sites maintained by others. These links are provided solely as a convenience, and not because we endorse the content or have an opinion about the content on such sites. If you access any of these Web sites, you do so at your own risk.

18. Insurance. We will maintain at our sole cost and expense errors and omissions/professional liability insurance in the amount of no less than one million dollars ($1,000,000) per claim, covering acts, errors, omissions, negligence, infringement of copyrights, trademarks or trade secrets, and unauthorized disclosure of your Confidential Information.  The insurance required herein shall protect us, you, and your end users from claims for which we have an obligation to indemnify you hereunder.

19. Modifications. We reserve the right to modify the terms and conditions of this Agreement from time to time. We will post any updated version on the Site, and it will become effective if you renew your subscription after the subscription period identified in your Subscription Agreement. Your continued use of the Service under the modified Agreement will constitute your acceptance of the modified Agreement.

20. Notices. Except in cases where this Agreement permits notice via email, all notices required under this Agreement must be in writing, must be sent via internationally recognized delivery service or messenger or via U.S. mail, and will be deemed given five (5) business days after having been sent. Notices must be addressed as follows: if to us, to Attn: Legal Affairs, 1735 North Lynn Street, Arlington, Virginia 22209, and for notices permitted to be sent via email, to legal@govini.com; and, if to you, to the contact name and address or email address that you have provided us in your Subscription Agreement or otherwise.

21. Miscellaneous. Neither you nor we will be liable for delay or default under this Agreement if caused by conditions beyond our or your reasonable control (e.g., technology malfunctions or acts of God). This Agreement is governed by the internal laws of the Commonwealth of Virginia, without regard to its conflicts of law rules, and you hereby consent to exclusive jurisdiction and venue in the state and federal courts located in Arlington County, Virginia for any dispute arising out of this Agreement. Neither party may assign this Agreement to a third party without the written consent of the other party in advance, except that we may assign this Agreement without such consent to a third party acquiring all or substantially all of our assets or equity securities. This Agreement will bind and benefit the parties, their successors, and their permitted assigns. You and we are independent contractors to each other in our activities under this Agreement. This Agreement, including our Privacy Policy and the other documents referenced in this Agreement, represents the entire agreement between you and us with respect to your use of the Service, and expressly supersedes any terms or conditions stated in a Customer purchase order or similar document, whether submitted or executed before or after the Effective Date. In any action to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party will be entitled to recover its costs, including attorneys’ fees. If any provision of this Agreement is invalid or unenforceable in any jurisdiction, the other provisions herein will remain in full force and effect, and will be liberally construed to effectuate the purposes of this Agreement. This Agreement supersedes any contemporaneous or prior agreements regarding the Service.

 

 

 

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