Master Subscription Agreement
This Master Subscription Agreement, together with the Subscription Service Order shall constitute the entire Agreement between the parties (hereinafter together the “Agreement”). The Terms of this Master Subscription Agreement (hereinafter “MSA”) shall apply to and are expressly incorporated into all Agreements between the parties. Any capitalized terms used in these Terms but not otherwise defined will have the meanings ascribed to them in the Subscription Service Order (“Service Order”) . If there is any conflict or inconsistency between the terms of the Service Order and the MSA Terms, then the MSA Terms will control solely to the extent of the conflict or inconsistency.
HeyGov reserves the right to modify and amend the terms of this MSA during the initial term of the Agreement or any renewal thereof and customer shall be deemed to have accepted any new terms or updates to this Agreement after ten (10) days’ notice of any such changes to this Agreement.
a. “Authorized Purpose” means (i) to input, import and export data and perform functions related to government management within the geographic regions identified on the Service Order; and (ii) to enable Public Users to submit and view certain data within the geographic regions identified on the Service Order through the Public Service and GIS Map.
b. “Authorized User” means Customer’s employees who may access the Service with a valid username and password issued by HeyGov.
c. “Confidential Information” means any information disclosed by either Party to the other Party that is marked “Confidential” or “Proprietary” at the time of Without limiting the foregoing, Confidential Information disclosure to the disclosing party includes this Agreement, the Service Order the non-public facing aspects of Service, any responses to technical support requests, and any business information, technical data, or know-how relating to the Service. Confidential Information will not, however, include any information which, as shown by documents in the receiving Party’s possession, (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving Party; (iii) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party as shown by the receiving Party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information. Additionally, Confidential Information will not include any Data (defined in Section 3 below) or any information that can be obtained through a public records request under applicable law.
d. “Customer Data” means any and all data, including, but not limited to shape files, entered or imported into HeyGov, either directly or through hosted forms, by Authorized Users or Public Users.
e. “GIS Map” means the geographic information system graphical interface including Pre-Loaded Data and Customer Data added by Customer and made available in the form of a map for use by Authorized Users and Public
f. “Legacy Data” means any and all historical data the Customer submits. Legacy Data must conform to HeyGov’s importing requirements.
g. “Pre-Loaded Data” such as the property data, tax assessment data, sales data and map layer data, where available, that is related to the properties on the Service and pre-loaded within the Service by HeyGov.
h. “Professional Services” means those services described in the Service Order, onboarding and implementation process, and onboarding statement of work as set forth in the Service Order.
i. “Public Users” means a user of the Public Service.
j. “Public Service” means the limited online platform made available to members of the public, which allows members of the public to access digital e-commerce forms, public forms approved by Customer and the public-facing GIS Map regarding properties in the geographic regions identified on the Service Order.
k. “Service” means the online platform to which access is provided to Customer pursuant to this Agreement and which allows Authorized Users to access the Pre-Loaded Data, the systems, modules, digital e-commerce forms and public-facing GIS Map regarding properties in the geographic regions identified on the Service Order.
l. “Subscription” means the subscription type selected on the Service Order required for Authorized Users to access the HeyGov platform
m. “Variables” means areas within module that can be modified without charge.
2. Access to Service
b. Additional Restrictions. Neither Customer nor any party acting on its behalf (including Authorized Users) may: (i) transfer, distribute, sell, lease, license or sublicense access to the Service; (ii) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Service; (iii) allow any party to access the Service except for Authorized Users and Public Users; (iv) write or develop any derivative software or any other software program based upon the Service or any Confidential HeyGov Information; (v) attempt to disrupt the integrity or performance of the Service; (vi) attempt to gain unauthorized access to the Service or its related systems or networks; or (vii) otherwise use the Service in any manner that may violate any applicable laws, rules or regulations or infringe any third party intellectual property or other rights.
c. Authorized Users. Customer acknowledges and agrees that it is responsible for all use or misuse of the Service by its Authorized Users, and a breach by any such Authorized User of any term of this Agreement will be deemed a breach under this Agreement. All Authorized Users will be deemed to have accepted the Terms of this Agreement. HeyGov reserves the right to immediately suspend any or all Authorized Users’ access to the Service if HeyGov believes, in its sole discretion, that an Authorized User has misused the Service under the terms of this agreement. Customer will provide HeyGov with the name and email address of each Authorized User promptly following the Effective Date and update the list as it may change during the Term. The access credentials that HeyGov provides to each Authorized User is personal to that specific individual and may not be transferred, sold or otherwise assigned to or shared with any other individual or entity.
d. HeyGov Ownership. Except for the rights granted to Customer in Section 2(a) above and Customer’s rights to Data, as between the Parties, HeyGov retains all right, title and interest, including all intellectual property rights, in and to the Service (including all updates thereto) and all aggregated and de-identified information that HeyGov’s systems or applications automatically collect regarding use of the Service and its performance (“Diagnostic Data”). All rights that HeyGov does not expressly grant to Customer in this Section 2 are reserved and HeyGov does not grant any implied licenses under this Section 2.
e. Feedback. From time-to-time, Customer may provide HeyGov with feedback, analysis, suggestions and/or comments related to the Service (collectively, “Feedback”). Customer hereby grants to HeyGov a perpetual, irrevocable, transferable, sublicenseable, royalty-free and worldwide right to use, reproduce, modify, create derivative works of, distribute, publicly display or perform the Feedback without restriction whatsoever, in any media now known or hereafter devised, and without any compensation or credit to Customer.
f. Training and Support. Commercially reasonable training and support are available for the Service via remote web session. HeyGov will only respond to training and support requests from the primary and secondary Customer contacts identified on the Service Order. Telephone support is only available between 8:00 a.m. and 4:00 p.m. Central Standard Time during normal business days. Training and support are subject to the rates set forth in the Cover Sheet.
As between Customer and HeyGov, Customer owns all Data. Customer hereby grants to HeyGov a license to use all data entered into the Service by Customer or any party acting on its behalf (including Authorized Users) (collectively, “Data”) to provide and improve the Service. Customer represents and warrants that: (a) it owns the Data or otherwise has and will have the rights necessary to grant the license set forth in this Section; and (b) the uploading or transmitting of Data to the Service does not and will not violate any third party rights, including, without limitation, any intellectual property or confidentiality rights.
4. Professional Services
a. General. Subject to Customer’s compliance with the terms and conditions of this Agreement, HeyGov will perform the Professional Services in accordance with this agreement and any specifications set forth in the onboarding and implementation process and onboarding statement of work. Professional Services are deemed accepted upon receipt unless otherwise expressly indicated in the Service Order. Customer will reasonably cooperate with HeyGov to facilitate provision of Professional Services. This cooperation will include, without limitation, (i) performing any tasks reasonably necessary for HeyGov to provide the Professional Services and to avoid unnecessary delays; (ii) fulfilling any obligations described in the Service Order in a timely manner; and (iii) responding to HeyGov’s reasonable requests related to Professional Services in a timely manner.
b. Intellectual Property Rights. HeyGov solely owns all right, title and interest in and to any software, notes, records, drawings, designs or other copyrightable materials, inventions (whether or not patentable), improvements, developments, discoveries and trade secrets conceived, discovered, authored, invented, developed or reduced to practice by HeyGov, solely or in collaboration with others, arising out of, or in connection with, HeyGov performing the Professional Services, including any copyrights, patents, trade secrets, mask work rights or other intellectual property rights relating to the foregoing (“Inventions”). HeyGov hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right during the Term only to use the portion of the Inventions that is incorporated into any deliverables that HeyGov must provide to Customer as set forth Subscription Service Order solely to use any such deliverables. HeyGov reserves all rights not expressly granted in the prior sentence and does not grant any implied licenses under this Agreement.
a. Payment of Fees. In consideration for the access granted to the Service and HeyGov’s performance of the Professional Services, Customer will pay the fees set forth in the Service Order, and if applicable the onboarding statement of work. Payments may only be made by check. Payments more than thirty (30) days overdue will accrue interest at a rate of 15% per year, or the maximum allowed by law, whichever is less.
b. Taxes. All charges and fees provided for in this Agree¬ment are exclusive of any taxes, duties, or similar charges imposed by any government (“Taxes”). Customer will pay or reimburse HeyGov for all such Taxes arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes on the net income of HeyGov).
c. Changes to Fees. HeyGov reserves the right to increase the Fee in a Renewal Term (defined in Section 9 below) upon notice to Customer at least ninety (90) days prior to the applicable Renewal Term.
6. Representations and Warranties and Limitation of Liability
a. Representations and Warranties. Each Party represents and warrants that: (i) it is duly organized, validly existing and in good standing under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (ii) it has the right, power and authority to enter this Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (iii) this Agreement constitutes a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (iv) it will abide by all applicable federal, state and local laws and regulations in connection with its performance under this Agreement.
b. Warranty Disclaimer. Except as expressly set forth under section 6(a), HeyGov makes no other warranties relating to the Service (including, without limitation, any content or data appearing therein) or the Professional Services, and hereby disclaims all other such warranties, whether express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT AND/OR ANY SERVICE ORDER ISSUED HEREUNDER, HeyGov HEREBY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY WARRANTY PROVIDED BY AN “ORIGINAL EQUIPMENT MANUFACTURER’’, “OEM”.
c. Limitation of Liability. To the fullest extent permitted by applicable law, (i) in no event will either Party be liable for any loss of profits, loss of use, business interruption, work stoppage, impairment of other assets, loss of or damage to data or indirect, punitive, special, incidental or consequential damages of any kind in connection with or arising out of the Service and Professional Services, whether or not foreseeable, and even if such Party has been advised of the possibility of such damages; and (ii) neither Party’s liability under this agreement will exceed the fees paid by Customer to HeyGov under this Agreement. The provisions of this section 6 allocate risks under this Agreement between Customer and HeyGov. The fee reflects this allocation of risks and limitation of liability.
a. Infringement Indemnity
(i) Indemnity. HeyGov will defend Customer from any claim, action or allegation brought against Customer by a third party alleging that the Service infringes any copyright or trade secret right of that third party, and HeyGov will pay any final judgments awarded by a court of competent jurisdiction or written settlements entered into with respect to such third party claims, subject to Customer’s compliance with Section 7(c) (each, an “Infringement Claim”).
(ii) Options. In the event of any Infringement Claim, HeyGov may, at its sole option and expense: (A) procure for Customer the right to continue use of the Service or infringing part thereof; (B) modify or amend the Service or infringing part thereof, or replace the Service or infringing part thereof with other software having substantially the same or better capabilities; or, (C) if neither of the foregoing is commercially practicable, terminate this Agreement and repay to Customer a pro-rata portion, if any, of any pre-paid Fees.
(iii) Exclusions. HeyGov will have no liability for any Infringement Claim if the alleged infringement results from (A) Customer’s breach of this Agreement; (B) any modification, alteration or addition made to the Service or any use thereof, including any combination of the Service with software or other materials not provided by HeyGov; (C) Customer’s failure to use any corrections or modifications made available by HeyGov that would not result in any material loss of functionality; (D) use of the Service in a manner or in connection with a product or data not contemplated by this Agreement; or (E) any settlements entered into by Customer or costs incurred by Customer for such claim that are not pre-approved by HeyGov in writing.
b. Customer. To the fullest extent permitted by applicable law, Customer will defend HeyGov from any claim, action or allegation brought against HeyGov arising from Customer’s breach of this Agreement, and Customer will pay any final judgments awarded by a court of competent jurisdiction or written settlements entered into with respect to such Third Party Claims, subject to HeyGov’s compliance with Section 7(c).
c. Procedures. Any claim subject to indemnification under this Section 7 will be subject to the following provisions:
(i) the indemnifying Party will be given prompt written notice of the claim by the indemnified Party, provided that any delay in providing notice will not relieve the indemnifying Party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying Party was materially prejudiced by the delay as proven by documentary evidence; (ii) the indemnifying Party will have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that no settlement on the part of the indemnified Party may be made without the express written consent of the indemnified Party; and (iii) the indemnified Party will reasonably cooperate with the indemnifying Party and its counsel at the indemnifying Party’s cost and expense.
d. Limitation. This Section 7 states each Party’s sole remedy and liability, as applicable, in connection with indemnity claims that fall within the scope of this Section 7.
8. Confidential Information
The receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable efforts). Each Party agrees not to use any Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under this Agreement. Each Party agrees not to disclose any Confidential Information of the other Party to any third parties except to its employees who have a need to know such information to perform obligations or exercise rights under this Agreement. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information of the disclosing Party if it is compelled by law to do so, provided the receiving Party gives the disclosing Party prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure. Upon the termination or expiration of this Agreement, each Party will immediately delete all tangible embodiments of the other Party’s Confidential Information within its possession or control.
9. Term and Termination
a. Term. This Agreement will take effect on the Effective Date and will remain in force for the initial term specified on the Service Order (“Initial Term”). Thereafter, the Agreement will renew on an annual basis until either Party provides at least thirty (30) days’ prior written notice of its desire not to renew prior to the end of the then-current term (each, a “Renewal Term,” and together with the Initial Term, the “Term”).
b. Termination for Cause. Either Party may, immediately upon providing written notice to the other Party, terminate this Agreement if the other Party (i) is in material breach of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after the non-breaching Party gives the other Party written notice of such breach; or (ii) terminates or suspends its business, becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to direct control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.
c. Survival and Termination. Immediately upon expiration or termination of this Agreement for any reason whatsoever, Customer will cease all access to and use of the Service and all outstanding Fees will become immediately due and payable to HeyGov. Sections 1, 2(b)-(e), 3, 4(b), 5(a)-(b), 6-8, 9(c), 10 and all defined terms appearing in those Sections will survive this Agreement.
a. Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by either Party, in whole or in part, whether voluntary or by operation of law, without the prior written consent of the other Party, except in connection with a sale of assets, reorganization, acquisition, merger or consolidation. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns. Any assignment in violation of this Section 10(a) will be null and void.
b. Notices. Any notice required or permitted to be given under this Agreement will be effective if it is (i) in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth in the Service Order and with the appropriate postage affixed; or (ii) sent via facsimile or electronic mail pursuant to the contract information set forth in the Service Order. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section. Notices are deemed given two (2) business days following the date of mailing, one (1) business day following delivery to a courier, and/or on the same day a facsimile or electronic mail is sent to the recipient.
c. Limitation on Claims. No action arising out of any breach or claimed breach of this Agreement or transactions contemplated by this Agreement may be brought by either Party more than one (1) year after the cause of action has accrued. For purposes of this Agreement, a cause of action will be deemed to have accrued when a Party knew or reasonably should have known of the breach or claimed breach.
d. Force Majeure. Force Majeure: Neither party shall be liable to the other for any failure or delay in performing its obligations hereunder, or for any loss or damage resulting therefrom, due to: (1) acts of God or public enemy, acts of government, riots, terrorism, fires, floods, strikes, lock outs, epidemics, or unusually severe weather, or (2) causes beyond their reasonable control and which are not foreseeable (each a “Force Majeure Event”). In the event of any such Force Majeure Event, the date of delivery or performance shall be extended for a period equal to the time lost by reason of the delay. The party experiencing the delay shall be prompt in restoring normal conditions, establishing new schedules and resuming operations as soon as the event causing the failure or delay has ceased. HeyGov shall notify the Customer promptly of any such delay and shall specify the effect on the product as soon as practical. Neither Party will incur any liability to the other Party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the applicable Party. Such events, occurrences, or causes will include a Force Majeure Event, but the inability to meet financial obligations is expressly excluded.
e. Waiver. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such Party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such Party’s right to take subsequent action.
f. Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the Parties will endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the Parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
g. Integration. This MSA and the Subscription Service Order contains the entire agreement of the Parties (together the "Agreement") with respect to the subject matter of this Agreement and supersedes all previous or contemporaneous communications, representations, understandings and agreements, either oral or written, between the Parties with respect to said subject matter. This Agreement may not be amended, except by a writing signed by both Parties.
h. Purchase Orders. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the acquisition or licensing of the Service will have any effect on the rights, duties or obligations of the Parties under, or otherwise modify, this Agreement, regardless of any failure of HeyGov to object to such terms, provisions or conditions.
i. Export. Customer acknowledges that the Service may contain features subject to United States and local country laws governing import, export, distribution and use. Customer is responsible for compliance by the Customer and its Authorized Users with United States and local country laws and regulations and will not export, use or transmit the Service (i) in violation of any export control laws of the United States or any other country; or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Order.
j. U.S. Government Restricted Rights. If the Service is accessed or used by any agency or other part of the
U.S. Government, the U.S. Government acknowledges that HeyGov provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a U.S. government agency has a need for rights not granted under these terms, it must negotiate with HeyGov to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
k. Trademarks. Upon obtaining the other Party’s prior written consent in each instance, each Party may use the other Party’s name, trademarks, trade-names, service marks, and logos, in its client or service provider list, as applicable, in the same manner in which it uses the names of its other clients and service providers, as applicable.
l. Governing Law.This Agreement will be governed by the laws of the State of Delware, without reference to its conflict of laws principles. Any dispute between the Parties regarding this Agreement will be subject to the exclusive venue of the Delware state and federal courts. The Parties hereby consent to the exclusive jurisdiction and venue of the Delaware courts and agree not to challenge such venue under any circumstances.
J. Collections. Collection: Should HeyGov be required to commence legal action against Customer to collect any sums due under this agreement, HeyGov shall be entitled to collect and receive as part of the total damages all costs of suit, including costs, fees and attorney’s fees in pursuing such action.