Terms of Service.

These Terms of Service are intended for the exclusive benefit of the Parties described in an executed agreement (“Agreement”) that references these Terms of Service; nothing herein will be construed to create any benefits, rights, or responsibilities in any other parties.

1. Web-Based Software/End User License

1.1 License

The web-based software products (“Software”) listed in the Agreement are protected under the laws of the United States and the individual states and by international treaty provision. Tolemi retains full ownership of the Software and grants to Client a limited, nonexclusive, nontransferable license to use the Software subject to the following terms and conditions:

1.1.1 The Software is licensed to Client, not sold.

1.1.2 The software is provided for use by Client employees and Client Users, defined herein as any user granted a license by the Client and governed by the Agreement or these Terms of Service. Client shall be responsible for the activities of all Client Users.

1.1.3 The Software will be delivered or made available to Client via Internet access. The license is granted for use on a computer or other internet-enabled device that Client owns or otherwise is authorized to use. Client may not (i) reproduce the Software or make it available for use to any other party, (ii) rent, lease, lend, sell, redistribute or sublicense Client’s license to use the Software, or (iii) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software, or any part thereof (except as and only to the extent any foregoing restriction).

1.1.4 The Software is web-based/accessed via Internet, and therefore little or no installation should be required on Client computers. Tolemi will provide the Client with instructions to access the software and will also provide the Client with the number of administrative log-ins agreed in the Agreement.

1.1.5 Client may not make any form of derivative work from the Software, although Client is permitted to develop additional or alternative functionality for the Software using tools and/or techniques licensed to Client by Tolemi.

1.1.6 Client is liable to Tolemi for any losses incurred as the result of unauthorized reproduction or distribution of the Software, which occur while the Software is in Client’s possession or control.

1.1.7 Client may use the Software to conduct relevant real estate property management, planning, and civic engagement functions relating to properties within both its own geographical and political boundaries, and may not sell, rent, assign, sublicense, lend, or share any of its rights under the Agreement or these Terms of Service.

1.1.8 Client is entitled to receive the Software compiled (object) code and is licensed to use any data code produced through implementation and/or normal operations of the Software; Client is not entitled to receive source code for the Software.

1.1.9 Tolemi will not be liable to Client or any other party for any loss or damage in Client’s election to terminate use of Tolemi’s Software.

1.1.10 Tolemi reserves all rights not expressly granted to Client.

1.1.11 This license pertains specifically to the Software and not the original data held within the Software. The Client retains all ownership and rights to its data that it populates in the Tolemi platform. Tolemi will retain ownership and rights to derivative products and services of the data. Any open access and external use of those derivative products and services will be attributed to Tolemi.

1.2 License Warranties

1.2.1 Tolemi warrants that it has full power and authority to grant this license and that, as of the effective date of the Agreement, the Software does not infringe on any existing intellectual property rights of any third party.

1.2.2 Client expressly acknowledges that use of the Software by Client or any of Client’s agents is at its own sole risk and that the entire risk as to satisfactory quality, performance, accuracy, and effort is with Client.

1.2.3 Tolemi has no obligation for any claim based upon a modified version of the Software or the combination or operation of the Software with any product data or apparatus not provided by Tolemi. Tolemi provides no warranty whatsoever for any third-party hardware or software products that are used in conjunction with the Tolemi platform.

1.2.4 To the maximum extent permitted by applicable law, the Software and any services performed or provided by the Software (“Services”) are provided “as is” and “as available” with all faults and without warranty of any kind, and Tolemi hereby disclaims all warranties and conditions with the respect to the Software and any services, either express, implied, or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, and of non-infringement of third party rights.

1.2.5 Tolemi does not warrant against interference with Client’s enjoyment of the Software, the functions contained in, or services will meet Client’s requirements, that the operation of the Software or services will be uninterrupted or error-free, or that defects in the Software or services will be corrected. No oral or written information or advice given by Tolemi or its authorized representatives shall create a warranty to the extent not prohibited by law.

1.2.6 The Software may provide access and direct links to third party websites and services, which Client acknowledges Tolemi do not control and for which Tolemi disclaims all responsibility. Client uses such services and third-party websites at its own risk.

2. Professional Services

Tolemi will provide the various Professional Services to the Client. This includes but is not limited to: implementation of web-based technology, data processing and conversion, and/or related training services (“Professional Services”) described in the Agreement.

2.1 Intellectual Property

Tolemi will retain full ownership and rights to products and services that are developed during the course of its engagement with the Client, including, but not limited to source code, workflow diagrams, software designs, object codes, manuals, work books, engagement notes, business rules, and technology and off-line intellectual property. The Client will retain full rights and ownership of original data that it provides to Tolemi.

2.2 Warranty

Tolemi will commence and complete the Professional Services in a sound manner consistent with the practices and standards of care generally accepted within and expected of Tolemi’s industry.

2.3 Client Participation

As required, Client agrees to provide Tolemi with appropriate access to the Client-owned data or systems and other resources including, but not limited to, those referenced in Exhibit A to complete the engagement. Client acknowledges that the implementation process described in Exhibit A is cooperative in nature and that Client must complete its designated tasks in a timely manner in order for Tolemi to proceed with and to complete the Professional Services. Client delays during the implementation period may have adverse collateral effects on Tolemi’s overall work schedule. Although Tolemi will use its best efforts to immediately resume work following such a delay, Client acknowledges that schedules for the Professional Services may be delayed by more than just the number of days delayed by Client.

3. Compensation

3.1 License Fees

In exchange for the Software license described hereinabove Client will pay Tolemi the amounts indicated in the Agreement.

3.2 Payment Terms

Amounts are quoted in United States dollars and do not include applicable taxes if any Client will be responsible for payment of all federal state or provincial and local taxes and duties except those based on Tolemi’s income. If Client is exempt from certain taxes Client will provide Tolemi with an appropriate certificate of exemption. Client will be invoiced for all amounts upon occurrence of the billing events described in the Agreement. The payment terms of all invoices are net thirty (30) calendar days from the dates of the invoices. Tolemi may at its sole discretion suspend its obligations hereunder without penalty until payments for all past due billings have been paid in full by Client.

4. Confidentiality

4.1 Definitions

“Disclosing Party” and “Recipient” refer to the party which discloses information and the party to which information is disclosed, respectively, in a given exchange. Either Tolemi or Client may be deemed Disclosing Party or Recipient depending on the circumstances of a particular communication or transfer of information. “Confidential Information” means all disclosed information relating in whole or in part to non-public data, proprietary data compilations, computer source codes, compiled or object codes, scripted programming statements, byte codes or data codes, entity relation or workflow diagrams, financial records or information, client records or information, organizational or personnel information, business plans, or works in progress, even where such works when completed would not necessarily comprise Confidential Information. The foregoing listing is not intended by the Parties to be comprehensive and any information that Disclosing Party marks or otherwise designates as “Confidential” or “Proprietary” will be deemed and treated as Confidential Information. Information which qualifies as "Confidential Information" may be presented to Recipient in oral, written, graphic, and/or machine-readable formats. Regardless of presentation format, such information will be deemed and treated as “Confidential Information”. The following specific classes of information are not Confidential Information within the meaning of this Section:

4.1.1 information which is in Recipient possession prior to disclosure by Disclosing Party;

4.1.2 information which is available to Recipient from a third party without violation of the Agreement or these Terms of Service, or Disclosing Party intellectual property rights;

4.1.3 information disclosed pursuant to Subsection 6.4 below;

4.1.4 information which is in the public domain at the time of disclosure by Disclosing Party or which enters the public domain from a source other than Recipient after disclosure by Disclosing Party;

4.1.5 information which is subpoenaed by governmental or judicial authority; and

4.1.6 information subject to disclosure pursuant to the Public Records Laws of the state in which the Client is located.

4.2 Confidentiality Term

The obligations described in this Section commence on the Effective Date and will continue until two (2) years following any termination or expiration of the Agreement.

4.3 Confidentiality Obligations

During the Confidentiality Term Recipient will protect the confidentiality of Confidential Information using the same degree of care that it uses to protect its own information of similar importance but will in any case use no less than a reasonable degree of care to protect Confidential Information. Recipient will not directly or indirectly disclose Confidential Information or any part thereof to any third party without Disclosing Party’s advance express written authorization to do so. Recipient may disclose Confidential Information only to its employees or agents under its control and direction in the normal course of its business and only on a need-to-know basis. In responding to a request for Confidential Information, Recipient will cooperate with the Disclosing Party in a timely fashion and in a manner not inconsistent with applicable laws to protect the Confidential Information to the fullest extent possible.

4.4 Publicity

During the term of the Agreement, including the term of any amendment hereto, Tolemi may publicly disclose its ongoing business relationship with Client. Such disclosures may indicate Client identity and the Tolemi products and services provided or contracted to be provided to Client. These disclosures may include press releases or other communications to media, display on Tolemi web sites, or use in other marketing activities, but will not include non-public information or indicate Client’s express endorsement of Tolemi products or services without Client’s prior written authorization.

5. SMS Text Messaging

5.1 Opting Out

If at any time you wish to stop receiving SMS messages from us, simply reply to the text with "STOP." You may receive an SMS message confirming your opt out.

5.2 Message and Data Rates

Please be aware that message and data rates may apply to any SMS messages sent or received. The rates are determined by your carrier and the specifics of your mobile plan.

5.3 Support

If you have any questions or need assistance regarding our SMS communications, please email us at support@tolemi.com or call at 1-800-535-2329.

6. Other Terms and Conditions

6.1 Mutual Indemnification

Tolemi agrees to indemnify, defend, and hold Client and its officers, agents, and employees harmless against any claims, suits, or damages arising out of physical property damage or bodily injury caused by the negligence or misconduct of Tolemi or its employees or agents while the terms and conditions of the Agreement or these Terms of Service remain enforceable. Subject to Client limitations of liability based on the Laws of New York, Client agrees to indemnify, defend, and hold Tolemi and its officers, agents, and employees harmless against any claims, suits, or damages arising out of physical property damage or bodily injury caused by the negligence or misconduct of Client or its employees or agents while the terms and conditions of the Agreement and these Terms of Service remain enforceable.

6.2 Limitation of Liability

Tolemi provides no warranty whatsoever for any third-party hardware or software products. Third party applications which utilize or rely upon the license may be adversely affected by remedial or other actions performed pursuant to the Agreement or these Terms of Service. Tolemi bears no liability for and has no obligation to remedy such effects. Except as set forth herein, Tolemi provides Software and related Services “as is” without express or implied warranty of any kind regarding the character, function, capabilities, or appropriateness of such services or deliverables. In no event will Tolemi’s cumulative liability for any general, incidental, special, compensatory, or punitive damages whatsoever suffered by Client or any other person or entity exceed the fees paid to Tolemi by Client during term of service described under the Agreement.

In no event shall Tolemi be liable for personal injury, or any incidental, special, direct, indirect, or consequential damages whatsoever, including, without limitation, damages for loss of profits, loss of or disclosure of data (including personal data or information), business interruption, or any other commercial damages or losses arising out of or related to Client’s inability to use the Software, however caused, regardless of the theory of liability (contract, tort, or otherwise), and even if Tolemi has been advised of the possibility of such damages. Certain jurisdictions do not permit limitation of liability, and in those cases, this shall not apply to Client.

6.3 Force Majeure

If either party is delayed in its performance of any obligation under the Agreement or these Terms of Service due to causes or effects beyond its control that party will give timely notice to the other party and will act in good faith to resume performance as soon as practicable.

6.4 Dispute Resolution

This Agreement and these Terms of Service are governed under the laws of Delaware. Any controversy or claim arising out of or relating to the Agreement or these Terms of Service or the breach thereof will be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules including the Emergency Interim Relief Procedures and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The place of arbitration will be Boston, Massachusetts. Either party may apply to the arbitrator for injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party also may without waiving any remedy under the Agreement or these Terms of Service seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party pending the arbitrator determination of the merits of the controversy immediately preceding the circumstances which give rise to such claims of liability, even if Tolemi or its agents have been advised of the possibility of such damages. Each party will initially bear its own expenses and an equal share of the costs of the arbitration but the prevailing party may be awarded its expenses reasonable attorney fees and costs The failure of either party to object to a breach of the Agreement or these Terms of Service will not prevent that party from thereafter objecting to that breach or any other breach of the Agreement or these Terms of Service.

6.5 Assignment

Tolemi may assign its rights and obligations hereunder for purposes of financing or pursuant to corporate transactions involving the sale of all or substantially all of its stock or assets. Tolemi may subcontract with qualified third parties to provide portions of the Services described hereinabove.

6.6 Survival

The following provisions will survive the termination or expiration of the Agreement: Section 3 and all subsections thereof as to Client obligation to pay any fees accrued or due at the time of termination or expiration; Section 4 and all subsections; Section 5 and all subsections.

6.7 Alternate Terms Disclaimed

The parties expressly disclaim any alternate terms and conditions, accompanying drafts, and/or purchase orders issued by Client.

6.8 Severability Amendment

If any particular provision of the Agreement or these Terms of Service are determined to be invalid or unenforceable that determination will not affect the other provisions of the Agreement or these Terms of Service, which will be construed in all respects as if the invalid or unenforceable provision were omitted. No extension, modification, or amendment of the Agreement or these Terms of Service will be effective unless it is described in writing and signed by the Parties.