Infilla Terms of Service

1. Defined Terms

• a. “Customer Data” means Customer’s data, content and materials that are submitted into the Infilla Platform by on behalf of Customer or by Public End Users interacting with Customer. Customer Data includes, without limitations, resolved Forum Data and Public Content. 
• b. “Documentation” means collectively, written user guides and guidelines that describe the Infilla Platform and Infilla Services. 
• c. “End User” means any employee or contractor of Customer that uses the Infilla Platform and Infilla Services under Customer’s account. 
• d. “Fees” means the money in US Dollars that Customer is obligated to pay Company under each applicable Order Form. 
• e. “Forum Data” means Customer Data that consists of comments posted and referenced materials posted by Customer or its End Users in the Forum Feature of the Infilla Platform. 
• f. “Forum Feature” is the module of the Infilla Platform that enables a customer and its End Users to post internal and track discussion threads regarding the interpretation of a legal or other process requirement and to mark a thread as resolved when the discussion is complete and an interpretation is settled upon. 
• g. “Public Data” means Customer Data that consists of forms, checklists, and related instructional materials for completing and submitting them that Customer make accessible to the Public End Users. 
• h. “Public End Users” means members of the public, such as developers, contractors, property owners and managers, that access and use any features of the Infilla Platform to interact with Customer with respect to Customer’s municipal planning, zoning and or permitting functions covered by the modules of the Infilla Platform subscribed to by Customer. 
• i. “Intellectual Property Rights” means all (i) copyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, mask-work rights, trade secrets, moral rights, author’s rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or any other state, country or jurisdiction; (ii) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; and (iii) all derivatives of any of the foregoing. 
• j. “Infilla Proprietary Materials” means (i) Infilla Services, and Infilla Services, Documentation; (ii) any content (other than Customer Service or Customer Products or any derivative works thereof) embodied in or used in connection with the implementation, operation, maintenance, or hosting of the Infilla Platform and Infilla Services; and (iii) all Intellectual Property Rights embodied therein and all derivative works, improvements, updates, modifications, or translations thereof.
• k. “Infilla Platform” means Company’s proprietary hosted software platform that streamlines the management of municipal planning, zoning and permitting operations, including any APIs to such platform. 
• l. “Infilla Services” means Infilla’s services provided under this Agreement with respect to the implementation of, use of and support of the Infilla Platform. 
• m. “Order Form” means the form evidencing an order for the Infilla Platform and Infilla Services executed between Company and Customer. 
• n. “Subscription Period” is the subscription period set forth in the applicable Order From. o. “Usage Data” means operations and telemetry data about Customers and its End Users and Public End Users configuration, access and use of Infilla Platform and Infilla Services. 

2. License to the Infilla Platform and Infilla Services. Company grants Customer the non- sublicensable, non-transferrable, non-exclusive, limited right to remotely access and use the Infilla Platform modules and the Infilla Services described in the applicable Order Form, including the right to use any associated Documentation, but only for Customer’s own operations and subject to Customer’s compliance with the Documentation. For clarity, this license includes the right to use the Infilla Platform to interact with Public End Users.

3. General Restrictions. Customer shall not (and shall not allow any third party) to: (a) rent, lease, copy, provide access to or sublicense the Infilla Platform or the Infilla Services to a third party (except contractors acting on Customer’s behalf and Public End Users– and Customer is fully responsible and liable for their breach of this agreement); (b) use the service to help develop any competitive product or service, (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code of any part of the Infilla Platform or the Infilla Services, (d) modify or create derivatives of the Infilla Platform or the Infilla Services any other materials provided by Company, or (e) remove or obscure any proprietary or other notices contained in the Infilla Platform or Documentation. 

4. Customer’s Third-Party Services and Software. The service will enable Customer to send Customer Data to and from different third-party products and software (collectively, “Third-Party Services”). Customer’s use of any Third-Party Services is subject to Customer’s separate agreement with the provider. Customer is responsible for selecting and configuring the third-party services it chooses to use with the Infilla Platform and Infilla Services and for any exchange of Customer Data it enables through the service. Company is not responsible for any Third-Party Services used by Customer with the Infilla Platform and Infilla Services, their code or technology, or how the providers use or protect Customer Data. 

5. Customer Usage Data Licenses to Company. 

• a. Customer grants to Company a non-exclusive, non-transferable, worldwide, perpetual, royalty-free license to collect, analyze or Usage Data. Company shall distribute such Usage Data publicly only in aggregate, non-personally identifiable form that cannot be used to identify Customer and individual End Users or Public End Users. 
• b. Customer grants to Company a non-exclusive, non-transferable, worldwide, perpetual, irrevocable, royalty-free license to reproduce, distribute, publicly perform and publicly display all Public Data and resolved Forum Data in connection with Company’s product and services offerings. 

6. Customer Data. Other than as expressly provided in this Agreement, Customer will have control over any and all Customer Data which Customer or End Users upload through the Customer Service. Customer hereby grants to Company a non-exclusive, royalty-free, worldwide license during the Termof this Agreement to reproduce, distribute, publicly perform, publicly display and digitally perform the Customer Data in conjunction with the Infilla Platform and Infilla Services as offered to Customer.

8. Reservation of Rights. Customer acknowledges and agrees that, except for the rights and licenses expressly granted to Customer in this Agreement, Company shall retain all right, title and interest in and to the Infilla Proprietary Materials and any derivatives, modifications or improvements of the foregoing; and nothing contained in this Agreement shall be construed as conferring upon Customer by implication, operation of law, estoppel, or otherwise, any other license or right. Company agrees that, except for the rights and licenses expressly granted to Company in this Agreement, Customer shall retain all right, title and interest in and to the Customer Data; and nothing contained in this Agreement shall be construed as conferring upon Company by implication, operation of law, estoppel, or otherwise, any other license or right.

9. Certain Rights And Obligations Of Company. a. Delivery of the Infilla Platform and Infilla Services. Company shall provide to Customer the Infilla Platform and Infilla Services in accordance with this Agreement and the applicable Order Form. b. Suspension of Customer. Company reserves the right to suspend or deactivate a Customer’s account and access to the Infilla Platform and Infilla Services if any acts or omission of Customer, its End Users or its Public End Users materially threatens the stability or performance of the Infilla Platform and Infilla Services.

10. Certain Rights And Obligations Of Customer. Customer shall notify Company regarding any End User that engages in (or that Customer believes has engaged in) activity that is illegal, fraudulent, malicious, or violates any rights of any third party or the terms of this Agreement. Customer shall promptly notify Company if it becomes aware of any actual or suspected unauthorized use or any other breach or suspected breach of security related to the Infilla Platform and Infilla Services. Company will not be liable for any loss or damage arising from unauthorized use of any accounts.

11. Payment.

• a. Fees. As compensation for its services under this Agreement, Customer shall pay to Company the Fees as agreed in an Order Form. Except in case of termination for breach against Company or as otherwise specifically stated in this agreement, in which case there shall be a refund for the Fees covering the remainder of the then-current term dating from the Customer’s notice of non-conformance, there will be no refunds or credits for partial months of service, or unused months. Fees listed do not include any applicable sales, use, excise or VAT taxes. Customer shall be responsible for payment of all such taxes (excluding taxes based on Company’s net income), fees, duties and charges, and any related penalties and interest, arising from the payment of such fees or the delivery or use of the Infilla Platform or Infilla Services. 
• b. Payment Disputes. In the event of a good faith dispute as to the calculation of a charge, Customer shall promptly give written notice to Company stating the details of any such dispute and shall promptly pay any undisputed amount. The acceptance by Company of such partial payment shall not constitute a waiver of payment in full by Company of the disputed amount. Customer agrees topay all costs and expenses of whatever nature, including reasonable attorneys’ fees, incurred by or on behalf of Company in connection with the collection of any unpaid amounts due to Company hereunder.
• c. Timely Payment; Suspension of Service. Any amount due to Company under this Agreement, not disputed in accordance with Subsection 11.b above, that is not paid within thirty (30) days of invoice due date may be subject to a finance charge payable by Customer which is equal to one and one-half percent (1.5%) or the highest rate allowable by law, whichever is less, determined and compounded daily from the date such amount is due until the date such amount is paid. Notwithstanding anything to the contrary contained in this Agreement, failure to make timely payments of undisputed amounts shall constitute a default hereunder and shall entitle Company to suspend Customer access to the Infilla Platform and Infilla Services without notice at Company’s sole discretion. 

12. Company Warranties. 

• a. Company warrants it has full power and authority to enter into and perform the Company Services as described in this Agreement. 
• b. Company represents and warrants that the Infilla Platform and Infilla Services provided to Customer hereunder will conform substantially to specifications set forth in the applicable Documentation, as may be amended from time to time at Company’s reasonable discretion. 
• c. The preceding warranties will not apply if: (i) any products, services, or deliverables provided by Company hereunder are used in material variation with this Agreement or the Documentation; (ii) any products, services, or deliverables licensed hereunder or any part thereof have been modified without the prior written consent of Company; or (iii) a defect in any products, services, or deliverables provided hereunder has been caused by any of Customer’s equipment, software or third party software. 
• d. In the event Customer discovers that the Infilla Platform or Infilla Services provided by Company hereunder, as applicable, are not in conformance with the representations and warranties set forth in this section and reports such non-conformity to Company, Company will exercise commercially reasonable efforts to correct the non-conformity at no additional charge to Customer. THE REMEDY STATED IN THIS PARAGRAPH CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY FOR BREACH OF WARRANTY. 

13. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS AND SERVICES PROVIDED HEREUNDER BY COMPANY ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE CUSTOMER. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE INFILLA PLATFORM AND INFILLA SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE. THIS DISCLAIMER OF WARRANTY EXTENDS TO CUSTOMER AND END USERS OF CUSTOMER’S PRODUCTS AND SERVICES AND IS IN LIEU OF ALL WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT WITH RESPECT TO THE PRODUCTS AND SERVICES, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. 

14. Indemnification. Company will: (i) defend Customer against any claim, demand, suit or proceeding (each, an “Action”) made or brought against Customer by a third party alleging that Services being used by Customer, when used in accordance with this Agreement, infringe such third party’s United States patent or copyright, or misappropriate such third party’s trade secrets (each, an “InfringementAction”) and (ii) indemnify Customer from and against any damages, costs and expenses (including attorneys’ fees) (collectively “Losses”) finally awarded against Customer as a result of such Infringement Action, or for amounts paid by Customer under a settlement approved in writing by Company resulting from such Infringement Action. If Customer’s use of Services becomes, or in Company’s opinion is likely to become, the subject of an Infringement Action, Company may in its discretion and at its own expense: (1) obtain for Customer the right to continue using Services; (2) modify Services so that they no longer infringe or misappropriate; or (3) terminate this Agreement and all Orders and issue a pro-rate refund based on the terminated portion of the Subscription Period. Company will have no obligation to indemnify Customer for an Infringement Action to the extent it arises from any of the following (collectively, “Customer-Controlled Matters”): Customer hardware, software or Internet connections, Customer Data, or any access or use of Services by Customer or an End User in a manner that is not in conformity with this Agreement. This indemnification clause states Company’s entire liability and Customer’s exclusive remedies for any claim of Intellectual Property Rights infringement or misappropriation. The indemnification obligations under this article are subject to the indemnified party a) promptly giving written notice of the Action to the indemnifying party, b) giving the indemnifying party sole control of the defense and settlement of (that part of) the Action for which the indemnifying party has an obligation to indemnify, c) providing the indemnifying party, at its cost, all reasonable assistance in respect of the Action, and d) not negotiating, settling or compromising any such Actions without the prior written consent of the indemnifying party, which consent is not unreasonably to be withheld or delayed. 

15. Term and Termination. 

• a. This Agreement shall commence on the Effective Date and shall continue for the Subscription Period. 
• b. This Agreement may be terminated by either party at any time upon written notice (i) in the event of a material breach by the other Party that remains uncured after thirty (30) days written notice thereof, or (ii) in the event that the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors that is not dismissed within sixty (60) days. Notwithstanding the foregoing, Company reserves the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any free, trial, or beta versions with or without notice. 

16. Effects of Termination. Upon expiration or termination of this Agreement, all licenses granted to the Infilla Platform and Infilla Services and the Documentation shall expire. Company shall discontinue the provision of the Infilla Platform and Infilla Services; provided that, upon Customer’s written request, an End User will be permitted to access Services for up to thirty (30) days after termination of this Agreement to the extent necessary to retrieve Customer Data, and for no other purpose. In addition, upon expiration or termination of this Agreement, Customer shall immediately pay any outstanding invoices for services rendered through the date of termination. 

17. Limitation of Liability. EXCEPT FOR FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE; COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR (II) ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES PAID OR PAYABLETO COMPANY HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. 

18. General Terms. 

• a. Confidential Information. Definition. “Confidential Information” means any data or information, oral or written, treated as confidential that relates to either party’s (or, if either party is bound to protect the confidentiality of any third party’s information, such third party’s) past, present, or future research, development or business activities, including any unannounced products and services, any information relating to services, developments, Documentation (in whatever form or media provided), inventions, processes, plans, financial information, End User data, revenue, transaction volume, forecasts, projections, and the financial terms of this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information if: (i) it was already known to the receiving party prior to the Effective Date of this Agreement, as established by documentary evidence; (ii) it is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving party; (iii) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (iv) it has been approved for release by written authorization of the owner of the Confidential Information; or, (v) it has been independently developed by a party without access to or use of the Confidential Information of the other party. 
• Each party (as “Recipient”) shall use at least the same degree of care that it uses to protect its own similar confidential information (but not less than reasonable care) to: (a) use the Confidential Information disclosed by the other party or their respective employees agents or contractors (collectively, “Discloser”) only as permitted under this Agreement, unless Discloser has provided prior written consent for other uses, and (b) only disclose the Discloser’s Confidential Information to Recipient’s, or its Affiliates’, employees, partners, contractors (including legal counsel and accountants), and service providers (“Representatives”) who (i) are bound by non-use and non-disclosure obligations at least as protective as those contained in this Agreement and (ii) have a need to know the Confidential Information for the Recipient to exercise its rights or perform its obligations under this Agreement. Recipient shall be responsible for any breach of these obligations by its Representatives to the same extent it is responsible for its own breaches. To the limited extent any use or disclosure is required by applicable law (including open records laws) or a valid and binding order of a governmental body (such as a subpoena or court order), the Recipient may disclose only that portion of the Discloser’s Confidential Information that it is required to disclose upon the advice of its counsel, provided that, to the extent permitted under applicable law, the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information. 
• b. Severability. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all written or oral prior agreements and understandings between the parties concerning such subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted. In the event of any conflict or inconsistency among the following documents, the order of preference shall be: (1) the applicable Order Form, (2) these Terms and Conditions. If any one or more of the provisions of the Agreement shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect any of the other portions of this Agreement.
• c. Waivers. The waiver by either Party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right.
• d. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties. 
• e. Assignment. Neither party may assign this Agreement, except that either party may assign this Agreement to a successor-in-interest in connection with any merger, consolidation or reorganization, or a sale of all or substantially all of such party’s business or assets relating to this Agreement to an unaffiliated third party. Any purported assignment in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns. 
• d. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties. 
• e. Assignment. Neither party may assign this Agreement, except that either party may assign this Agreement to a successor-in-interest in connection with any merger, consolidation or reorganization, or a sale of all or substantially all of such party’s business or assets relating to this Agreement to an unaffiliated third party. Any purported assignment in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns. 
• f. Force Majeure. Except for the obligation to pay fees due under this Agreement, neither party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, natural disasters, war, acts of terrorism, strikes, revolutions, lack or failure of transportation facilities, lack or failure of public utilities, laws or governmental regulations or other causes that are beyond the reasonable control of such Party. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cessation of any cause of such failure. In the event that such force majeure should obstruct performance of this Agreement for more than thirty (30) days, the parties hereto shall consult with each other to determine whether this Agreement should be modified or terminated. 
• g. Survival. Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including, without limitation, all provisions with respect to confidentiality, Intellectual Property Rights, limitation of liabilities, and indemnification shall survive any termination or expiration of this Agreement and continue in full force and effect in perpetuity. 
• h. Governing Law; Arbitration. This Agreement shall be governed by and construed under the laws of the State of California and the United States without regard to conflicts of laws provisions thereof. Any legal action or proceeding arising under or relating to this Agreement shall be brought exclusively in the state or federal courts located in San Francisco, California, USA, and the parties expressly consent to personal jurisdiction and venue in those courts. 
• i. Notices. Any notice required or permitted to be given hereunder will be deemed to have been delivered and given for all purposes: (i) on the delivery date, if delivered by hand courier to the Party to whom such notice is directed; (ii) two (2) Business Days after deposit with a commercial overnight carrier;; and (v) the first business day after sending by email (provided email shall not be sufficient for notices of an indemnifiable claim).