Denver, CO
800.314.0147
St. Paul, MN
800.314.0147
Washington, DC
800.314.0147
United Kingdom
+44.0845.467.2972
Continued Use Agreement
This Continued Use Agreement (“Agreement”) is made and entered into as of the latter date of the signatures below (the “Effective Date”) by and between Redondo Beach, CA (“Client”) and Granicus, LLC, a Minnesota Limited Liability Company d/b/a Granicus (“Granicus”). Client and Granicus may each be referred to herein as “Party” or collectively as “Parties”.
Granicus has notified Client that the Solution is being discontinued and will no longer be supported by Granicus. Granicus has made Client aware of the risks associated with Client’s continued use of the Solution, as further outlined below, and Client has determined it wishes to continue using the Solution independently without any support from Granicus.
Granicus is no longer doing any type of engineering work on the Solution code base and therefore is also not doing any updates for software bugs, security related vulnerabilities in the code, or third-party libraries. Client’s continued use of the Solution is not recommended by Granicus and Client acknowledges it has been advised as such.
1. Definitions. In addition to terms defined elsewhere in this Agreement, the following terms shall have the meaning specified:
“Agreement Term” means the total time covered by this Agreement, further specified in Section 6. “Solution” means the Civica product made available to Client pursuant to a separate agreement dated 5/5/2020.
2. Support
2.1. Support. Client acknowledges that by accessing and using the Solution Granicus will provide no ongoing or future support or assistance of any kind related to the administration and functionality of the Solution. Granicus makes no warranties or guarantees about the successful performance of the Solution, as outlined further in Section 4 below.
3. Use of Solution
3.1. Restrictions. Client shall not:
3.1.1. Misuse the Granicus Solution or cause any disruption, including but not limited to, the display of pornography or linking to pornographic material, advertisements, solicitations, or mass mailings to individuals who have not agreed to be contacted;
3.1.2. Use any process, program, or tool for gaining unauthorized access to the Granicus systems, networks, or accounts of other parties, including but not limited to, other Granicus Clients;
3.1.3. Disassemble, decompile, or otherwise reverse engineer all or any portion of the Granicus Solution;
3.1.4. Use the Granicus Solution for any unlawful purposes;
3.1.5. Export or allow access to the Granicus Solution in violation of U.S. laws or regulations;
3.1.6. Subcontract, disclose, rent, or lease the Granicus Solution, or any portion thereof, for third party use; or
3.1.7. Modify, adapt, or use the Granicus Solution to develop any software application intended for resale which uses the Granicus Solution in whole or in part.
3.2. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Granicus and/or its licensors reserve all right, title and interest in the Granicus Solution, the documentation and resulting product including all related intellectual property rights. Further, no implied licenses 2 are granted to Client. The Granicus name, the Granicus logo, and the product names associated with the Solution and services are trademarks of Granicus or its suppliers, and no right or license is granted to use them.
4. Representations, Warranties and Disclaimers
4.1. Representations. Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
4.2. Warranties. The Granicus Solution is provided “AS IS”.
4.3. Disclaimers. EXCEPT AS PROVIDED IN SECTION 4.2 ABOVE, EACH PARTY HEREBY DISCLAIMS ANY
AND ALL OTHER WARRANTIES OF ANY NATURE WHATSOEVER REALTED TO THE GRANICUS
SOLUTION WHETHER ORAL AND WRITTEN, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. GRANICUS DOES NOT WARRANT THAT GRANICUS SOLUTION WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE.
5. Confidential Information
5.1. Confidential Information. It is expected that one Party (Disclosing Party) may disclose to the other Party (Receiving Party) certain information which may be considered confidential and/or trade secret information (“Confidential Information”). Confidential Information shall include: (i) Granicus’ Solution, (ii) non-public information if it is clearly and conspicuously marked as “confidential” or with a similar designation at the time of disclosure; (iii) non-public information of the Disclosing Party if it is identified as confidential and/or proprietary before, during, or promptly after presentation or communication and (iv) any information that should be reasonably understood to be confidential or proprietary to the Receiving Party, given the nature of the information and the context in which disclosed.
Subject to applicable law, each Receiving Party agrees to receive and hold any Confidential Information in strict confidence. Without limiting the scope of the foregoing, each Receiving Party also agrees: (a) to protect and safeguard the Confidential Information against unauthorized use, publication or disclosure; (b) not to reveal, report, publish, disclose, transfer, copy or otherwise use any Confidential Information except as specifically authorized by the Disclosing Party; (c) not to use any Confidential Information for any purpose other than as stated above; (d) to restrict access to Confidential Information to those of its advisors, officers, directors, employees, agents, consultants, contractors and lobbyists who have a need to know, who have been advised of the confidential nature thereof, and who are under express written obligations of confidentiality or under obligations of confidentiality imposed by law or rule; and (e) to exercise at least the same standard of care and security to protect the confidentiality of the Confidential Information received by it as it protects its own confidential information.
If a Receiving Party is requested or required in a judicial, administrative, or governmental proceeding to disclose any Confidential Information, it will notify the Disclosing Party as promptly as practicable so that the Disclosing Party may seek an appropriate protective order or waiver for that instance.
5.2. Exceptions. Confidential Information shall not include information which: (i) is or becomes public knowledge through no fault of the Receiving Party; (ii) was in the Receiving Party’s possession before receipt from the Disclosing Party; (iii) is rightfully received by the Receiving party from a third party without any duty of confidentiality; (iv) is disclosed by the Disclosing Party without any duty of confidentiality on the third party; (v) is independently developed by the Receiving 3 Party without use or reference to the Disclosing Party’s Confidential Information; (vi) is disclosed with the prior written approval of the Disclosing Party; or (vii) is subject to the Public Records Act.
5.3. Storage and Sending. In the event that Granicus Solution will be used to store and/or send Confidential Information, Granicus must be notified in writing, in advance of the storage or sending. Should Client provide such notice, Client must ensure that Confidential Information or sensitive information is stored behind a secure interface and that Granicus Solution be used only to notify people of updates to the information that can be accessed after authentication against a secure interface managed by Client.
5.4. Return of Confidential Information. Each Receiving Party shall return or destroy the Confidential Information immediately upon written request by the Disclosing Party; provided, however, that each Receiving Party may retain one copy of the Confidential Information in order to comply with applicable laws and the terms of this Agreement. Customer understands and agrees that it may not always be possible to completely remove or delete all personal data from Granicus’ databases without some residual data because of backups and for other reasons.
6. Term and Termination
6.1. Agreement Term. The Agreement Term shall begin on the Effective Date and continue for as long as the Client is using the Solution in any way, shape, or form, at which point this Agreement will terminate.
6.2. Survival. The provisions of this Agreement with respect to warranties, liability, choice of law and jurisdiction, and confidentiality shall survive termination of this Agreement and continue in full force and effect.
7. Limitation of Liability
7.1. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. UNDER NO CIRCUMSTANCES SHALL
GRANICUS BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FURTHER, GRANICUS SHALL NOT BE LIABLE FOR: (A) ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF CLIENT DATA; (B) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (C) LOSS OF BUSINESS; (D) DAMAGES ARISING
OUT OF ACCESS TO OR INABILITY TO ACCESS THE SOLUTION, SOFTWARE, CONTENT, OR RELATED TO THE LACK OF ONGOING TECHNICAL SUPPORT AS OUTLINED IN SECTION 2.1; (E) CLIENT’S CONTINUED USE OF THE GRANICUS SOLUTION; OR (F) FOR ANY MATTER BEYOND GRANICUS’
REASONABLE CONTROL, EVEN IF GRANICUS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING LOSSES OR DAMAGES.
7.2. LIMITATION OF LIABILITY. GRANICUS DISCLAIMS ALL LIABILITIES AND CLIENT AGREES TO
INDEMNIFY AND HOLD GRANICUS COMPLETELY HARMLESS AGAINST ANY AND ALL CLAIMS RELATED TO OR ARISING FROM CLIENT’S USE OF THE GRANICUS SOLUTION. GRANICUS SHALL
NOT BE RESPONSIBLE FOR ANY LOST PROFITS OR OTHER DAMAGES, INCLUDING DIRECT,
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR ANY OTHER DAMAGES, HOWEVER CAUSED.
8. Indemnification
8.1. Indemnification by Client. Client shall defend, indemnify, and hold Granicus harmless from and against any claims, and shall pay all losses, to the extent arising out of or related to (a) Client’s (or that of anyone authorized by Client or using logins or passwords assigned to Client) use, 4 modification, or dissemination (whether intentional or otherwise) of any Granicus Solution; (b) any Client content; or (c) Client’s violation of applicable law.
8.2. Defense. With regard to any Claim subject to indemnification pursuant to this Section 8: (a) Granicus shall promptly notify the Client upon becoming aware of the Claim; (b) the Client shall promptly assume sole defense and control of such Claim upon becoming aware thereof; and (c) Granicusshall reasonably cooperate with the Client regarding such Claim. Nevertheless, Granicus may reasonably participate in such defense, at Client’s expense, with counsel of its choice, but shall not settle any such Claim without the Client’s prior written consent. The Client shall not settle or compromise any Claim in any manner that imposes any obligations upon Granicus without the prior written consent of Granicus.
9. General
9.1. Relationship of the Parties. Granicus and Client acknowledge that they operate independent of each other. Nothing in this Agreement shall be deemed or construed to create a joint venture, partnership, agency, or employee/employer relationship between the Parties for any purpose, including, but not limited to, taxes or employee benefits. Each Party will be solely responsible for the payment of all taxes and insurance for its employees and business operations.
9.2. Headings. The various section headings of this Agreement are inserted only for convenience of reference and are not intended, nor shall they be construed to modify, define, limit, or expand the intent of the Parties.
9.3. Amendments. This Agreement may not be amended or modified except by a written instrument signed by authorized representatives of both Parties.
9.4. 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.
9.5. Assignment. Neither Party may assign, delegate, or otherwise transfer this Agreement or any of its rights or obligations hereunder, either voluntarily or by operation of law, without the prior written consent of the other Party (such consent not to be unreasonably withheld); provided, however, that either Party may assign this Agreement without the other Party’s consent in the event of any successor or assign that has acquired all, or substantially all, of the assigning Party’s business by means of merger, stock purchase, asset purchase, or otherwise. Any assignment or attempted assignment in violation of this Agreement shall be null and void.
9.6. No Third-Party Beneficiaries. Subject to Section 9.5 this Agreement is binding upon and insures solely to the benefit of the Parties hereto and their respective permitted successors and assigns; there are no third-party beneficiaries to this Agreement.
9.7. Notice. Other than routine administrative communications, which may be exchanged by the Parties via email or other means, all notices, consents, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the day of receipt, as shown in the applicable carrier’s systems, if sent via FedEx, UPS, DHL, or other nationally recognized express carrier; (c) the third business day after sending by U.S. Postal Service, First Class, postage prepaid, return receipt requested; or (d) sending by email, with confirmed receipt from the receiving party. Either Party may provide the other with notice of a change in mailing or email address in which case the mailing or email address, as applicable, for that Party will be deemed to have been amended. The mailing and email addresses of the Parties are as follows:
5 Granicus Redondo Beach, CA
ATTN: Contracts ATTN:
Address: 408 St. Peter Street
Suite 600
Saint Paul, MN 55102
Address:
Phone: (651) 757-4154 Phone:
Email: [email protected] Email:
9.8. Force Majeure. Any delay in the performance by either Party hereto of its obligations hereunder shall be excused when such delay in performance is due to any cause or event of any nature whatsoever beyond the reasonable control of such Party, including, without limitation, any act of God; any fire, flood, or weather condition; any computer virus, worm, denial of service attack; any earthquake; any act of a public enemy, war, insurrection, riot, explosion or strike; provided, that written notice thereof must be given by such Party to the other Party within twenty (20) days after occurrence of such cause or event.
9.9. Choice of Law and Jurisdiction. This Agreement shall be governed by and interpreted under the laws of the State of California, without reference to the State’s principles of conflicts of law. The Parties expressly consent and submit to the exclusive jurisdiction of the state and federal courts of Los Angeles County, Southwest Division.
Entire Agreement. This Agreement sets forth the entire understanding of the Parties with respect to the subject matter of this Agreement, and supersedes any and all prior oral and written understandings, quotations, communications, and agreements.
9.10. Injunctive Relief. Granicus is entitled to obtain injunctive relief if Client’s use of Granicus Solution is in violation of any restrictions set forth in this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective dulyauthorized representatives on the Effective Date as set forth above.
Granicus Redondo Beach, CA
By: By:
(Authorized Signature) (Authorized Signature)
Name: Name:
(Print or Type Name of Signatory) (Print or Type Name of Signatory) Title: Title:
Date: Date:
(Execution Date) (Execution Date)
William C. Brand
Mayor
415 Diamond Street
Redondo Beach, CA 90277
APPROVED AS TO FORM:
______________________________
Michael W. Webb, City Attorney
ATTEST:
______________________________
Eleanor Manzano, City Clerk
Chris Benson
[email protected]
310-318-0658 x2621