1. INTRODUCTION; ACCEPTANCE OF TERMS
(a) Thank you for entering into a Citizen Care™ Services Agreement (“Agreement”) with OAC LLC (“OAC”). As set forth in your Agreement, OAC offers governmental entities a web-based management solution known as Citizen Care for logging, tracking and resolving inquiries, complaints and other communications from local citizens. The services offered by OAC through Citizen Care are referred to as the “Citizen Care Services,” and are available through a link on your website to one or more servers owned or subcontracted by OAC (such servers are collectively referred to as the “OAC Site”). The software running the Citizen Care Services and all information entered through such link, are stored on the OAC Site. Persons who have entered into an Agreement with OAC are sometimes referred to in these TOS as the “User.”
(b) These Standard Terms of Service (“TOS”) govern your use of the Citizen Care Services and the Site. In your Agreement, you have agreed to these TOS, as they may be amended, restated or updated by OAC from time to time. You can review the most current version of the TOS at any time at http://www.civicservices.us/agreement/cc or at such other web address as OAC may provide.
2. Ownership. OAC IS THE SOLE AND EXCLUSIVE OWNER OF ALL RIGHT, TITLE AND INTEREST, INCLUDING TRADEMARKS, COPYRIGHTS, PATENTS, TRADE NAMES, TRADE SECRETS AND OTHER INTELLECTUAL PROPERTY RIGHTS, IN THE CITIZEN CARE CONCEPT AND BUSINESS PLAN, THE SITE, ALL SOFTWARE ASSOCIATED WITH CITIZEN CARE (WHETHER OR NOT LOCATED ON THE SITE), AND THE NAME AND MARK “CITIZEN CARE.”
3 User’s Representations and Warranties. User represents and warrants to OAC that (a) User has all governmental or other authority required to enter into the Agreement and the individual executing the Agreement on behalf of User is authorized to do so, and (b) User has reviewed with its legal counsel, is familiar with and will remain in compliance with all federal, state or local laws, rules, regulations or ordinances, and all court, administrative and arbitrator’s orders or judgments (collectively, “Laws”) applicable to its use and/or its citizens’ use of the Citizen Care Services.
4. CHANGES TO SITE AND SERVICES. OAC reserves the right at any time to revise and modify the Citizen Care Services and/or the Site, and to alter features, specifications, capabilities, functions, and other characteristics of the same, without notice to or the consent of User. If any such action materially and adversely affects the benefits User might reasonably be expected to obtain from the Citizen Care Services or the Site, User's sole and exclusive remedy shall be to give OAC notice of termination specifying the basis therefore in reasonable detail, which termination shall be effective thirty (30) days after it is given unless OAC modifies the Citizen Care Services and/or the Site to restore the benefits prior to expiration of such period.
5 Use of Site AND SERVICES. In connection with the use of the Citizen Care Services and the Site, User agrees as follows:
(a) The person designated in your Agreement as the “Authorized Contact” shall have primary responsibility for communicating with OAC. The Authorized Contact shall have authority to bind User, and OAC shall be entitled to rely on all information provided by and all requests of the Authorized Contact. User may change its Authorized Contact by written notice to OAC.
(b) User agrees to keep its login(s), password(s) and account number confidential, to allow no other person to use the same except in the presence of User or its authorized employees, and to notify OAC promptly if User has any reason to believe that any third party has unauthorized access to User’s account or has otherwise gained unauthorized access to the Site. User shall be responsible for any and all use of the Citizen Care Services or the Site occurring under User’s login(s) or account number.
(c) OAC agrees to take reasonable actions to prevent unauthorized use or disclosure of information entered by User, its employees, and/or citizens and stored at the Site (collectively, “User Information”), and OAC will not disclose such User Information to any third party without the written consent of User; provided, however, that notwithstanding the foregoing, OAC may disclose (without any obligation to do so under the Agreement) such User Information as OAC determines is necessary: (a) to comply with any Laws; (b) to perform its obligations under or to enforce the Agreement; (c) to respond to claims that OAC or User is engaged (through the Site or otherwise) in activities that violate the rights of third parties or violate any Laws.
(d) User shall use Citizen Care only for its intended purpose, i.e. for logging, tracking and resolving inquiries, complaints and other communications from local citizens.
(e) OAC reserves the right to adopt operating rules and policies of general application regarding the Citizen Care Services, the Site, and the use thereof (which may be in addition to these TOS).
(f) User shall not enter, store or maintain any User Information or other data or information at the Site that (i) may be illegal to store or maintain or to use for its intended purposes under any Laws, (ii) may infringe or violate any person’s property rights or right to privacy, or (iii) is inflammatory, obscene, or offensive, or is inconsistent with OAC’s operating rules and policies in effect from time to time. User shall use reasonable efforts to detect, and shall promptly delete, all User Information that violates this provision; if User fails to delete any such User Information promptly after OAC’s request, OAC shall have the right to delete or quarantine the same.
6. Maintenance. User acknowledges and agrees that (i) it may be necessary to take down the Site from time to time or on a periodic basis to resolve technical problems, upgrade software, or otherwise help ensure safe and efficient operation of the Site, and (ii) due to the foregoing, power interruptions, problems with service providers subcontracted by OAC, or other conditions outside OAC’s control, the Site and/or the Citizen Care Services may occasionally be unavailable. User waives any and all claims against OAC arising from any of the foregoing. OAC will use reasonable efforts to minimize the time during which the Site is down and Citizen Care Services are unavailable for such reasons.
7. Termination. The term of the Agreement shall be as set forth in the Agreement
and these TOS; provided, however, if User is in default under the Agreement or
these TOS and fails to cure the default within 10 days after written notice
from OAC specifying the default, OAC shall have the immediate right to block or
terminate User’s access to the Site and/or to suspend the Citizen Care Services
until User has cured the default, and/or to terminate this Agreement. Termination of this Agreement shall not
affect the parties’ obligations hereunder arising prior to the effective date of
the termination. If the Agreement is
terminated for any reason, OAC shall
provide User with a digital copy of the User Information and OAC shall
thereafter have the right to delete from the Site all User Information and any
and all other data or information
contained in User’s account.
8. Indemnification. To the fullest extent permitted by applicable law, User shall indemnify, hold harmless and defend (with counsel acceptable to OAC) OAC, its members (and their heirs and representatives), employees and independent contractors (including any Site hosts), successors and assigns from and against any and all claims, demands, liabilities, losses, fines, costs, expenses (including attorney fees at trial, on appeal or in any bankruptcy proceeding) and damages directly or indirectly arising out of or related to (a) the breach of any representation, warranty or covenant by User under the Agreement or these TOS, (b) the failure of User, its employees or agents to comply with any Laws in connection with its business or the use of the Citizen Care Services or the Site, and (c) the use or misuse by User, its employees or agents of the Citizen Care Services or the Site.
10. LATE FEE.. If any fee for Citizen Care Services remains delinquent 10 days after its invoice due date, User shall be assessed an additional late fee of 5% of the delinquent amount (subject to a minimum of $35) for each month of delinquency, without waiving OAC’s other rights and remedies under the Agreement or these TOS. The above late fees represent OAC’s estimate of its reasonable damages incurred in connection with late payments, and are in addition to OAC’s rights and remedies under Section 8.
11. MODIFICATION OF TOS. OAC shall have right to update, amend or restate these TOS and any policies and procedures relating to the Citizen Care Services, without the consent of User and without prior notice to User; provided, however, OAC will use reasonable efforts to give Users 10 days’ prior notice of any such updates, amendments or restatements.
12. Miscellaneous. The provisions of Sections 2, 3, 5, 7, 8, 9 and 12 shall survive any termination or expiration of the Agreement. No agency relationship, partnership or joint venture is created nor intended to be created by the Agreement or these TOS or the granting of certain rights to User hereunder. User shall not assign the Agreement, these TOS or any of its rights or obligations thereunder without the prior written consent of OAC, which may be granted, withheld or conditioned in OAC’s sole and absolute discretion. The Agreement and these TOS shall be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns. Except as otherwise expressly provided in the Agreement or these TOS, all notices or other communications required or permitted hereunder shall be in writing and shall be sent by United States first-class mail (with postage prepaid), by e-mail, or by facsimile (with a copy by first-class mail, with postage prepaid) and shall be deemed received and effective three (3) days after the date of posting, if mailed, upon receipt of confirmation of successful sending, if sent by e-mail, and upon receipt of confirmation of successful facsimile transmission, if sent by facsimile. The Agreement and these TOS shall be governed by and construed under Oregon, USA law (without regard to conflicts of laws principles), regardless of whether User resides or transacts business with OAC in Oregon. User hereby agrees that the Courts of Multnomah County, Oregon or, at OAC's option, the United States District Court for the District of Oregon, shall have jurisdiction to hear and determine any disputes between the parties relating to the Agreement. User further consents in advance to such jurisdiction and waives any objection it may have based upon lack of personal jurisdiction, improper venue or forum non conveniens. The Agreement and these TOS and any policies or procedures adopted pursuant hereto set forth the entire agreement and understanding of the parties and supersede all prior agreements and understandings relating to the subject matter hereof. If any provision of the Agreement or these TOS is held to be invalid, such event shall not affect, in any respect whatsoever, the validity of the remainder of the Agreement or these TOS, and the remainder shall be construed without the invalid provision so as to carry out the intent of the parties to the extent possible without the invalid provision. OAC’s failure to insist upon or enforce strict performance of any provision of the Agreement or these TOS shall not be construed as a waiver of any provision or right, nor shall the course of conduct between the parties modify any provision of the Agreement or these TOS. Neither party shall be liable to the other for any delay or failure in performance under the Agreement or these TOS resulting directly or indirectly from acts of nature or causes beyond its reasonable control. If any party hereto brings an action or proceeding for the declaration of the rights of the parties hereunder, for injunctive relief or for an alleged breach or default of, or any other action arising out of the Agreement or these TOS, the prevailing party in any such action shall be entitled to an award of reasonable attorneys' fees and any court costs incurred in such action or proceeding (including any bankruptcy case), in addition to any other damages or relief awarded, regardless of whether such action proceeds to final judgment.