Terms & Conditions
These terms and conditions (the “Agreement”) govern your use and access to the Citylitics Subscription Service described in Subscription Service (the “Subscription Service”) provided by Cityitics. (“Citylitics”). By subscribing to the Subscription Service you (the “Client”) are indicating your acceptance to be bound by this Agreement. If you are accepting this Agreement on behalf of your employer or other organization, you represent and warrant that you have the necessary authority to bind such organization.
1. Service. Subject to the terms and conditions of this Agreement, Citylitics will deliver the Subscription Service to the Client during the Subscription Period. The deliverables will be provided via a web-based platform, however Citylitics reserves the right to change the Subscription Service format from time to time. Citylitics may update or change the Subscription Service from time to time without notice, and the Client acknowledges and agrees that such updates may be required in order to continue using the Subscription Service. At Client’s request, Service may include cooperation with Client’s Affiliates and any other contractor(s) retained directly by Client and assigned to work on Citylitics’ Service with or for Client (“Client-Affiliates”). For purposes of this Agreement, “Affiliate” means, with respect to any entity, any other entity directly or indirectly controlling or controlled by, or under direct or indirect common control with, such entity or one or more of the other Affiliates of that entity (or a combination thereof). For purposes of this definition, an entity shall control another entity if the first entity: (i) owns, beneficially or of record, more than fifty percent (50%) of the voting securities of the other entity; or (ii) has the ability to elect a majority of the directors of the other entity. Information received from a Party’s Affiliates must be treated the same as Information and samples received from that Party. Nothing herein shall prevent Citylitics from dealing with any third party.
2. Client’s Conduct and Use Guidelines.
2.1 Client Conduct. The Client’s use of the Subscription Service is solely for the Client’s internal use. The Client shall not, directly or indirectly, do any of the following acts: rent, lease, distribute, license, sublicense, sell, resell, transmit, assign, or otherwise commercially exploit the Subscription Service or make the Subscription Service available to a third party other than as contemplated in this Agreement.
3.1 Fees. The Client agrees to pay the fees set out in the Subscription Service (the “Fees”). Fees paid are non-refundable (except as set out in Section 3.3). Citylitics may change its Fees at any time by up to ten percent (10%) from the applicable price on the prior Fees, unless Citylitics provide you written notice of different pricing at least 90 days prior to the applicable Renewal Term.
3.2 Overdue Charges. If for any reason any fees or other charges are not received from the Client by the due date, then at Citylitics’ discretion, such outstanding amounts may accrue interest at the rate of 1.5% of the outstanding balance per month (18% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
3.3 Suspension of Subscription Service and Acceleration. If any amount owing by the Client under this or any other agreement with Citylitics is overdue, Citylitics may, without limiting its other rights and remedies, suspend the Client’s access to the Subscription Service until such amounts are paid in full.
3.4 Taxes. Unless otherwise stated, Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, provincial, federal or foreign jurisdiction (collectively, “Taxes”). The Client is responsible for paying all Taxes associated with its subscription hereunder. If Citylitics has the legal obligation to pay or collect Taxes for which the Client is responsible under this section, the appropriate amount shall be invoiced to and paid by the Client.
4. Intellectual Property & Confidentiality
4.1 Client Information: “Client Information” means all business and technical information that Citylitics receives in the course of Services from Client or Client-Affiliates. Client retains ownership in all Client Information. Client grants to Citylitics a non-exclusive license to use Client Information solely to the extent necessary to deliver Service hereunder. To the extent that any Client Information is confidential, it shall be kept confidential by Citylitics in accordance with Section 4.4 below.
4.2 Intellectual Property Rights: For purposes of this Agreement: “Intellectual Property Right” means any right that is or may be granted or recognized under any Canadian or foreign legislation regarding patents, copyrights, neighboring rights, moral rights, trade-marks, trade names, service marks, industrial designs, mask work, integrated circuit topography, privacy, publicity, celebrity and personality rights and any other statutory provision or common or civil law principle regarding intellectual and industrial property, whether registered or unregistered, and including rights in any application for any of the foregoing; and “Pre-Existing Intellectual Property” means Intellectual Property Rights of a party existing as of the Effective Date, or developed by a party independent of this Agreement. Each party retains all rights, title and interest, including ownership, to the extent that they exist, in and to all of its respective Pre-Existing Intellectual Property and shall not be deemed to have assigned all or part of the Pre-Existing Intellectual Property to the other party. Citylitics retains ownership of all Intellectual Property Rights it creates in the delivery of the Services. Citylitics grants to Client a non-exclusive, fully paid-up license to use any deliverables provided by Citylitics to Client pursuant to this Agreement. To the extent that any deliverables contain any third party Intellectual Property Rights, use of those third party materials may be subject to certain additional third party terms and conditions.
4.3 Further Assurances: Each party shall execute and deliver all such further documents and instruments and do all acts and things as the other party may reasonably require to carry out the full intent and meaning of this Agreement.
4.4 Confidentiality Obligations: For purposes of this Agreement, “Confidential Information” means any information which is confidential in nature or that is treated as being confidential by a party or by any of its Affiliates and that is furnished or transferred by or on behalf of such party or any of its Affiliates (collectively, the “Disclosing Party”) to the other party or to any of its Affiliates (collectively, the “Receiving Party”), whether such information is or has been conveyed verbally or in written or other tangible form, and whether such information is acquired directly or indirectly such as in the course of discussions or other investigations by the Receiving Party, including, but not limited to, trade secrets and technical, financial or business information, data, ideas, concepts or know-how that is considered and treated as being confidential by the Disclosing Party. Confidential Information disclosed in tangible or electronic form may be identified by Disclosing Party as confidential with conspicuous markings, or otherwise identified with a legend as being confidential, but in no event shall the absence of such a mark or legend preclude disclosed information which would be considered confidential by a party exercising reasonable business judgment from being treated as Confidential Information by Receiving Party. Receiving Party shall not use Disclosing Party’s Confidential Information for any purpose other than to exercise or perform its rights or obligations under this Agreement. Receiving Party shall not copy or otherwise reproduce Disclosing Party’s Confidential Information, or disclose, disseminate or otherwise communicate, in whole or in part, Disclosing Party’s Confidential Information to any third party, without the prior written consent of Disclosing Party. Receiving Party further agrees that it shall safeguard Disclosing Party’s Confidential Information from disclosure and, at a minimum, use efforts commensurate with those Receiving Party employs for protecting the confidentiality of its own Confidential Information which it does not desire to disclose or disseminate, but in no event less than reasonable care. Immediately upon the demand of Disclosing Party, Receiving Party shall return Disclosing Party’s Confidential Information (and any and all permitted copies thereof) to Disclosing Party. Citylitics’ Confidential Information shall include, without limitation, its technical know-how used to provide the Services. Client’s Confidential Information shall include, without limitation, the context in which it uses Citylitics’ Service.
4.5 The Confidential Information of both parties shall remain confidential until such information is no longer confidential in accordance with Section 4.6 below.
4.6 Exclusions: The obligations of Section 4.4 do not apply to any particular information that the Receiving Party can prove:
(a) was available to the public through no fault of the Disclosing Party, or
(b) was already in its possession prior to disclosure by the Disclosing Party, or
(c) it acquired from a third party without obligation of confidence.
The Receiving Party may comply with a court order compelling production of Confidential Information, but it must give the Disclosing Party reasonable prior notice and use reasonable efforts to obtain confidential protection for such Confidential Information. Detailed information or materials are not excluded from the obligations of Section 4.4 merely because that detailed information or those materials are embraced by more general information or materials excluded under (a), (b), or (c). Confidential Information shall not lose its confidential nature merely because it is mixed with non-confidential information.
5. Use of Name. The parties agree that each party can reproduce the other party’s name and/or logo (without changing the name or logo) for purposes of making third parties or the public aware of the relationship between the parties set out in this Agreement. For greater certainty and without limiting the generality of the foregoing, Client may include Citylitics’ logo in internal documents, and Citylitics can use Client’s name and logo on Citylitics’ website. Each party may withdraw its consent to the use of its name and logo by providing written notice to the other party at any time.
6.1 Term: This Agreement shall commence on the date set out in the Data Scope and shall remain in effect through the end of the Subscription Term, unless terminated earlier pursuant to the terms of this Agreement (the “Initial Term”). Your subscription will automatically renew at the end of the Initial Term for an additional 12-month term and shall continue to renew for successive 12-month terms thereafter (each a “Renewal Term”) unless you provide us with written notice of your intent not to renew at least sixty (60) days before the expiration of the Initial Term or the Renewal Term. Payment for Services for the Renewal Term is due on the first day of the Renewal Term.
6.2 Termination for breach. Either party may terminate this Agreement in the event of a breach by the other party of its obligations hereunder provided that such breach is not cured within thirty (30) days of notification of such breach.
6.3 Effects of Termination: The parties’ rights and obligations under Sections 4, 5, 6, 7, and 8.3 through 8.6 survive termination of this Agreement.
7.1 Citylitics does not warrant that the Subscription Service will meet the Client’s requirements, be error free, be available or operate without interruptions.
7.2 Limitation of Liabilities. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, INCIDENTAL, OR EXEMPLARY DAMAGES, LOSS OF BUSINESS OPPORTUNITY OR LOSS OF PROFIT, ARISING OUT OF ACTIVITIES
RELATING TO THIS AGREEMENT. EXCEPT IN CASE OF CITYLITICS’ FRAUD, MISREPRESENTATION, OR WILLFUL MISCONDUCT, CITYLITICS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT TO CLIENT EXCEED AN AMOUNT EQUAL TO TWICE THE FEES FOR THE INITIAL TERM. DELIVERY DATES SET OUT IN AGREEMENT ARE ESTIMATES ONLY AND CITYLITICS SHALL NOT HAVE LIABILITY FOR ANY DELAY IN DELIVERY LESS THAN TEN (10) BUSINESS DAYS.
8. General Provisions.
8.1 Independent Contractor: Citylitics and Client are independent contractors and this Agreement does not create a partnership between the parties.
8.2 Assignment: Except as set out in this Paragraph, neither party may assign this Agreement except with the prior written consent of the other party. Citylitics may assign this Agreement, without Client’s consent, in connection with the sale of all or substantially all of the assets of Citylitics, and upon any such assignment, Citylitics shall be fully released from its obligations hereunder and the assignee shall assume the rights and obligations of Citylitics as if the assignee were an original party to this Agreement. Citylitics shall provide written notice of any such assignment to Client. This Agreement is binding upon, and will inure to the benefit of, the parties and their respective successors and assigns.
8.3 Choice of Law: This Agreement is governed by the governing law in force in the Province of Ontario, Canada. The parties agree to the exclusive jurisdiction of the courts of Ontario located in Toronto, Ontario for all matters arising in connection with this Agreement.
8.4 Severability: If any provision of this Agreement is held invalid, such invalidity shall not affect the other provisions of this Agreement.
8.5 Waiver: Any failure by a party or Affiliate at any time, or from time to time, to enforce or require strict keeping and performance of any of the terms or conditions of this Agreement shall not constitute a waiver of such terms or conditions and shall not affect or impair such terms or conditions in any way, or the right of such party at any time to avail itself of such remedies as it may have for any breach or breaches of such terms or conditions.
8.6 Entire Agreement: This Agreement, with its attachments, embodies the complete, exclusive and final agreement between the parties with respect to Services and can be modified only by written amendment signed by both parties. It is understood and agreed that in the event of a conflict or inconsistency in the provisions of this Agreement and the provisions of any other document, proposal, specification, writing or drawing forming a part of or otherwise associated with this Agreement, the provisions of this Agreement shall always prevail.
End of Terms and Conditions