1. DEFINITIONS.

• (a) "Aggregated Statistics" means data and information related to Subscriber's use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

• (b) "Authorized User" means Subscriber's employees, consultants, contractors, and agents

  • (i) who are authorized by Subscriber to access and use the Services under the rights granted to Subscriber pursuant to these Agreements and
  • (ii) for whom access to the Services has been purchased and paid for hereunder.

• (c) "Subscriber Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Subscriber or an Authorized User through the Services.

• (d) "Documentation" means Provider's end user documentation relating to the Services available at https://mco.run/legal/terms.

• (e) "Provider IP" means the Services, the Documentation, and any and all intellectual property provided to Subscriber or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Subscriber's access to or use of the Services, but does not include Subscriber Data.

• (f) “Governing Agreements” refers to those documents and agreements which, together, govern the relationship between the Provider and the Subscriber, including

  • (1) these Terms of Service (or the “TOS”),
  • (2) the signed Subscription Services Agreement (or the “SSA”),
  • (3) the Order Form,
  • (4) any applicable “Statement of Work” (or “SOW”), and
  • (5) any other annex or attachment to those documents described above as provided with or incorporated into the Services.

• Together, these Governing Agreements shall be considered to be fully integrated. In the event the terms of any of the individual Agreements conflict, the following order or precedence shall apply:

  • (i) the TOS;
  • (ii) this CityOS Subscription Services Agreement,
  • (iii) the Order Form,
  • (iv) any applicable SOW, and
  • (v) any other annex or attachment.

• (g) "Services" means the software-as-a-service offering described in the Governing Agreements, as may be set out more particularly in the Order Form and the Statement of Work.

• (h) "Third-Party Products" means any third-party products—including but not limited to those described in Section 4(b)—which were provided with or incorporated into the Services.

• (i) "Authorized Persons" means Service Provider's employees, contractors, agents, and auditors who have a need to know or otherwise access Personal Information to enable Service Provider to perform its obligations under these Agreements and Governing Agreements, and who are bound in writing by confidentiality and other obligations sufficient to protect Personal Information in accordance with the terms and conditions of these Terms of Service and Governing Agreements.

• (j) "Personal Information" means information that Subscriber provides or for which Subscriber provides access to Service Provider, or information which Service Provider creates or obtains on behalf of Subscriber, in accordance with these Agreements that:

  • (i) directly or indirectly identifies an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or
  • (ii) can be used to identify or authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, answers to security questions, an individual's internet activity or similar interaction history, inferences drawn from other personal information to create consumer profiles, geolocation data, an individual's commercial, employment, or education history, and other personal characteristics and identifiers), in case of both subclauses (i) and (ii), including Sensitive Personal Information as defined in Section 1(c). Subscriber's business contact information is not by itself Personal Information.

• (k) "Sensitive Personal Information" means an individual's

  • (i) government-issued identification number, including Social Security number, driver's license number, or state-issued identification number;
  • (ii) financial account number, credit report information, or credit, debit, or other payment cardholder information, with or without any required security or access code, personal identification number, or password that permits access to the individual's financial account; or
  • (iii) biometric, genetic, health, health insurance data; or
  • (iv) geolocation data.

• (l) "Data Breach or Security Incident" means any unauthorized access to or disclosure or acquisition of Personal Information.

2. ACCESS AND USE.

• (a) Provision of Access. Subject to and conditioned on Subscriber's payment of Fees and compliance with all other terms and conditions of these Agreements, Provider hereby grants Subscriber a non-exclusive, non-transferable (except in compliance with Section 12(i)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Subscriber's internal use. Provider shall provide to Subscriber the necessary passwords and network links or connections to allow Subscriber to access the Services. The total number of Authorized Users will not exceed the number set forth in the Suscription Services Argreement, the Order Form, and/or in any applicable Statement of Work, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.

• (b) Documentation License. Subject to the terms and conditions contained in these Agreements, Provider hereby grants to Subscriber a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(i)) license to use the Documentation during the Term solely for Subscriber's internal business purposes in connection with its use of the Services.

• (c) Use Restrictions. Subscriber shall not use the Services for any purposes beyond the scope of the access granted in these Agreements. Subscriber shall not at any time, directly or indirectly, and shall not permit any Authorized Users to:

  • (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part;
  • (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation;
  • (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part;
  • (iv) remove any proprietary notices from the Services or Documentation; or
  • (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

• (d) Reservation of Rights. Provider reserves all rights not expressly granted to Subscriber in these Agreements. Except for the limited rights and licenses expressly granted under these Agreements, nothing in these Agreements grants, by implication, waiver, estoppel, or otherwise, to Subscriber or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.

• (e) Suspension. Notwithstanding anything to the contrary in these Agreements, Provider may temporarily suspend Subscriber's and any Authorized User's access to any portion or all of the Services if:

  • (i) Provider reasonably determines that
    • (A) there is a threat or attack on any of the Provider IP;
    • (B) Subscriber's or any Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider;
    • (C) Subscriber, or any Authorized User, is using the Provider IP for fraudulent or illegal activities;
    • (D) subject to applicable law, Subscriber has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or
    • (E) Provider's provision of the Services to Subscriber or any Authorized User is prohibited by applicable law;
  • (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Subscriber to access the Services; or
  • (iii) in accordance with Section 5(a) (any such suspension described in Section 5(b) subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Subscriber and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Subscriber or any Authorized User may incur as a result of a Service Suspension.

• (f) Aggregated Statistics. Notwithstanding anything to the contrary in these Agreements, Provider may monitor Subscriber's use of the Services and collect and compile Aggregated Statistics. As between Provider and Subscriber, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Subscriber acknowledges that Provider may compile Aggregated Statistics based on Subscriber Data input into the Services. Subscriber agrees that Provider may

  • (i) make Aggregated Statistics publicly available in compliance with applicable law, and
  • (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law provided that such Aggregated Statistics do not identify Subscriber or Subscriber's Confidential Information.

3. SERVICE LEVELS AND SUPPORT.

• (a) Overview. CityOS will use commercially reasonable efforts to maintain the performance, availability, and support the Service Level commitments outlined below.

• (b) System Availability. CityOS will maintain 99% uptime for the production environment, measured monthly, excluding:

  • (i) Scheduled maintenance windows (not to exceed 4 hours per month, with at least 24 hours prior notice);
  • (ii) Emergency maintenance required to address critical vulnerabilities or outages;
  • (iii) Downtime caused by factors outside CityOS’s reasonable control (e.g., third-party platform outages such as Encompass, Vercel, Render, OpenAI, or internet service failures).
  • (iv) System availability will be determined according to the following metric:
  • (v) Measurement: Uptime = (Total Minutes – Downtime Minutes) / Total Minutes × 100.

• (c) Response and Resolution Times. CityOS provides technical support during limited business hours (11 AM – 5 PM MT, Monday – Friday, excluding holidays). Requests are triaged based on severity.

• (d) Performance Standards. -(i) Automation Execution: AI agent and task automation jobs shall initiate within 60 seconds of trigger events under normal operating conditions.

  • (ii) Data Sync: Data integrations (e.g., Encompass, Quickbooks, nCino, CRM) shall synchronize on their configured intervals, typically hourly or daily, assuming no connection interruptions.

• (e) Maintenance and Updates.

  • (i) Scheduled Maintenance: Regular updates and security patches may occur during low-usage windows (typically late evening or night hours).
  • (ii) Emergency Maintenance: May occur at any time to address critical issues; CityOS will notify affected clients as promptly as possible.
  • (iii) Version Management: New features and non-breaking updates are deployed on a rolling basis; breaking changes require prior client notice.

• (f) Data Protection and Backup.

  • (i) Backups: All production data is backed up daily and retained for 3 days.
  • (ii) Disaster Recovery: Recovery Point Objective (RPO) ≤ 24 hours; Recovery Time Objective (RTO) ≤ 4 hours.
  • (iii) Data Security: All data in transit is encrypted using TLS 1.2+; secure key and token data at rest is encrypted with AES-256.

• (g) Monitoring and Incident Management. CityOS will provide continuous monitoring of application health, infrastructure performance, and API integrations. Incident notifications issue target is within 1 hour of detection for any service outage impacting multiple clients. Post-incident root-cause analysis target for sharing with Subscriber is within 10 business days of a major incident.

• (h) Service Credits. If monthly uptime falls below 99%, client may request a service credit equal to 5% of the monthly service fee for each 0.5% increment below 99%, up to 10%. Credits are issued upon request within 30 days following the affected month.

• (i) Exclusions. Service Levels do not apply to:

  • (i) Issues caused by client-side systems, configurations, or unauthorized modifications.
  • (ii) Outages due to external vendors or APIs (e.g., OpenAI, Encompass).
  • (iii) Beta or experimental features unless expressly covered by written agreement.

• (j) Service Levels Review and Updates. CityOS may update these Service Levels periodically to reflect evolving infrastructure or capabilities, provided that no update materially reduces service quality without client consent.

4. SUBSCRIBER RESPONSIBILITIES.

• (a) General. Subscriber is responsible and liable for all uses of the Services and Documentation resulting from access provided by Subscriber, directly or indirectly, whether such access or use is permitted by or in violation of these Agreements. Without limiting the generality of the foregoing, Subscriber is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Agreements if taken by Subscriber will be deemed a breach of these Agreements by Subscriber. Subscriber shall use reasonable efforts to make all Authorized Users aware of these Agreements' provisions as applicable to such Authorized User's use of the Services and shall cause Authorized Users to comply with such provisions.

• (b) Third-Party Products.

  • (i) Provider may from time to time make Third-Party Products available to Subscriber. For purposes of these Agreements, such Third-Party Products are subject to their own terms and conditions and their applicable flow-through provisions. If Subscriber does not agree to abide by the applicable terms for any such Third-Party Products, then Subscriber should not install or use such Third-Party Products.
  • (ii) Following is a list of Third-Party Vendors and the relevent links to their terms and conditions.
    • (A) Vercel - https://vercel.com/legal/terms.
    • (B) Mongodb - https://www.mongodb.com/legal.
    • (C) Doppler - https://www.doppler.com/legal/terms.
    • (D) Render - https://render.com/terms.
    • (E) OpenAI - https://openai.com/policies/terms-of-use/.
    • (F) SendGrid - https://www.twilio.com/en-us/legal/service-country-specific-terms/email.
    • (G) Resend - https://resend.com/legal/terms-of-service.
    • (H) Microsoft Entra Id - https://www.microsoft.com/licensing/terms/.
    • (I) upstash / redis - https://upstash.com/docs/redis/help/legal.
    • (J) NeonDB - https://neon.com/terms-of-service.
    • (K) Go High Level - https://www.gohighlevel.com/terms-of-service.
    • (L) Zoho Desk - https://www.zoho.com/terms.html.
    • (M) Auth0 - https://www.okta.com/legal/terms-of-service/.

5. FEES AND PAYMENT.

• (a) Fees. Fees will be detailed in the Subscription Services Agreement and may be further delineated and set forth in particular in relevent Order Forms, and Statements of Work.

• (b) Payment Terms. Invoices are payable within fifteen (15) days of issuance (“Net 15”). Overdue balances shall accrue interest at 1.5% per month or the maximum rate permitted by law, whichever is higher. All Fees and other amounts payable by Subscriber under the Governing Agreements are exclusive of taxes and similar assessments. Subscriber is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Subscriber hereunder, other than any taxes imposed on Provider's income. Subscriber shall pay Provider all Fees and other amounts payable by Subscriber under the Governing Agreements without offset or deduction. Subscriber shall make all payments hereunder in US dollars on or before the due date set forth. If Subscriber fails to make any payment when due, without limiting Provider's other rights and remedies:

  • (i) Provider may charge interest on the past due amount at the rate of 1.5% calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law;
  • (ii) Subscriber shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and
  • (iii) if such failure continues for 10 days or more, CityOS may suspend or terminate Subscriber's and its Authorized Users' to any portion or all of the Services until such amounts are paid in full.

• (c) Auditing Rights and Required Records. Subscriber agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of 1 years after the termination or expiration of these Agreements with respect to matters necessary for accurately determining amounts due hereunder. Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Subscriber's records with respect to matters covered by these Agreements, provided that if such inspection and audit reveals that Subscriber has underpaid Provider with respect to any amounts due and payable during the Term, Subscriber shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(a). Subscriber shall pay for the costs of the audit if the audit determines that Subscriber's underpayment equals or exceeds 5% for any quarter. Such inspection and auditing rights will extend throughout the Term of these Agreements and for a period of 1 years after the termination or expiration of these Agreements.

6. CONFIDENTIAL INFORMATION.

From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information in written or electronic form or media, that is marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is:

• (a) in the public domain;
• (b) known to the receiving Party at the time of disclosure;
• (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or
• (d) independently developed by the receiving Party. Both parties shall protect each other’s confidential information with at least reasonable care.

CityOS will implement administrative, physical, and technical safeguards consistent with industry standards to protect Subscriber data. Subscriber remains responsible for the accuracy and legality of all Subscriber-provided data.The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required

• (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or
• (ii) to establish a Party's rights under these Agreements, including to make required court filings.

On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Agreements for as long as such Confidential Information remains subject to trade secret protection under applicable law.

7. INTELLECTUAL PROPERTY OWNERSHIP; FEEDBACK.

• (a) Provider IP. Subscriber acknowledges that, as between Subscriber and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
• (b) Subscriber Data. Provider acknowledges that, as between Provider and Subscriber, Subscriber owns all right, title, and interest, including all intellectual property rights, in and to the Subscriber Data. Subscriber hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Subscriber Data and perform all acts with respect to the Subscriber Data as may be necessary for Provider to provide the Services to Subscriber, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Subscriber Data incorporated within the Aggregated Statistics.
• (c) Feedback. If Subscriber or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.

8. DATA AND INFORMATION SECURITY PROVISIONS.

• (a) Definitions: the definitions provided above for “Authorized Persons”, “Personal Information”, “Sensitive Personal Information”, and “Data Breach or Security Incident” apply more particularly to this Section 8, entitled: “Data and Information Security Provisions”.
• (b) Service Provider and Subscriber Obligations.
  • (i) Service Provider will:
    • (A) comply with the terms and conditions set forth in these Agreements;
    • (B) be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information under its control or in its possession;
    • (C) not disclose Personal Information to any person other than its Authorized Persons without Subscriber's prior written consent unless required by applicable law, in which case, Service Provider will use reasonable efforts and to the extent permitted by applicable law notify Subscriber before such disclosure or as soon thereafter as reasonably possible; however,
    • (D) Service Provider may aggregate, de-identify, or anonymize Personal Information and use such aggregated, de-identified, or anonymized data, (which shall no longer be considered Personal Information), for its own research and development purposes.
  • (ii) Subscriber will:
    • (A) comply with the terms and conditions set forth in these Agreements;
    • (B) be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information under its control or in its possession;
    • (C) comply with any applicable laws and regulations and use only secure methods, according to accepted industry standards, when transferring or otherwise making available Personal Information to Service Provider;
    • (D) treat Service Provider's Information Security Policy, as defined in Section 8(c)(i) as Confidential Information under these Agreements.
• (c) Information Security.
  • (i) Service Provider will comply with applicable laws and regulations in its creation, collection, receipt, access, use, storage, disposal, and disclosure of Personal Information.
  • (ii) Service Provider will employ reasonable security measures to protect Personal Information in accordance with Service Provider's information security policy as amended from time to time ("Information Security Policy"), a current copy of which will be provided to Subscriber upon request.
  • (iii) If, in the course of its performance under these Agreements, Service Provider has access to or will collect, access, use, store, process, dispose of, or disclose credit, debit, or other payment cardholder information on Subscriber's behalf, Service Provider will comply with the Payment Card Industry Data Security Standard ("PCI DSS") requirements, as applicable.
• (d) Data Breach or Security Incident Procedures.
  • (i) Service Provider maintains a cyber incident breach response plan, a current copy of which will be provided to Subscriber upon request in accordance with accepted industry standards ("Cyber Incident Response Plan") and will implement the procedures required under such plan on the occurrence of a Data Breach or Security Incident.
  • (ii) Service Provider will notify Subscriber of a Data Breach or Security Incident as soon as reasonably practicable after Service Provider becomes aware of it.
  • (iii) Immediately following Service Provider's notification to Subscriber of a Data Breach or Security Incident, the parties will coordinate with each other, as necessary, to investigate the Data Breach or Security Incident in accordance with Service Provider's current Cyber Incident Response Plan.
  • (iv) Service Provider agrees that it will not inform any third party of any Data Breach or Security Incident without Subscriber's prior consent, other than to inform a complainant that the matter has been forwarded to Subscriber's legal counsel.
• (e) Security Controls Review or Audit. At least annually, Service Provider will obtain a security controls review or audit performed by an independent third party based on recognized industry standards, as specified in Section 8(c). Service Provider will make results of such controls review or audit available to Subscriber upon request and will timely address any noted exceptions.
• (f) Return or Disposal of Personal Information. At any time during the term of these Agreements at Subscriber's written request or on the termination or expiration of these Agreements, Service Provider will promptly return to Subscriber or securely dispose of all Personal Information in its possession or in the possession of Authorized Persons and notify Subscriber that such Personal Information has been returned to Subscriber or disposed of securely. If Service Provider is not reasonably able to return or securely dispose of Personal Information, including, but not limited to, Personal Information stored on backup media, Service Provider will continue to protect such Personal Information in accordance with the terms of these Agreements until such time that it can reasonably return or securely dispose of such Personal Information.

9. LIMITED WARRANTY AND WARRANTY DISCLAIMER.

• (a) Provider warrants that the Services will conform in all material respects to the service levels set forth in Section 3 when accessed and used in accordance with the Documentation. Provider does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Section 3. The remedies set forth in these Terms of Servic are Subscriber's sole remedies and Provider's sole liability under the limited warranty set forth in this Section 9(a). CityOS disclaims all implied warranties, including merchantability, fitness for a particular purpose, and non-infringement. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
• (b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), THE PROVIDER IP IS PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET SUBSCRIBER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

10. IDEMNIFICATION & LIMITATIONS ON LIABILITY.

• (a) If a claim is made that the Services, or any use of the Services in accordance with these Agreements, infringes or misappropriates a third party's US patents, copyrights, or trade secrets—or if such a claim appears possible—Subscriber agrees to permit Provider, at Provider's sole discretion, to
  • (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or
  • (B) obtain the right for Subscriber to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate these Agreements, in its entirety
• (b) The parties agree that City OS shall have no liability regarding any claim of infringement to the extent that the alleged infringement arises from:
  • (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing;
  • (B) modifications to the Services not made by Provider;
  • (C) Subscriber Data; or
  • (D) Third-Party Products.
• (c) Subscriber shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Subscriber Data, or any use of the Subscriber Data in accordance with these Agreements, infringes or misappropriates such third party's US intellectual property rights, provided that Subscriber may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
• (d) Sole Remedy. THIS SECTION 10 SETS FORTH SUBSCRIBER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER'S LIABILITY UNDER THIS SECTION 10 EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THESE AGREEMENTS IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
• (e) LIMITATIONS OF LIABILITY. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THESE AGREEMENTS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY:
  • (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES;
  • (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS;
  • (c) LOSS OF GOODWILL OR REPUTATION;
  • (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR
  • (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE AGREEMENTS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEEDTHE TOTAL AMOUNTS PAID TO PROVIDER UNDER THESE AGREEMENTS IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

11. TERM AND TERMINATION.

• (a) Term. The initial term of these Agreements begins on the Effective Date and, unless terminated earlier pursuant to these Agreements's express provisions, will continue in effect until one year from such date (the "Initial Term"). These Agreements will automatically renew for up to five additional successive one year terms unless earlier terminated pursuant to these Agreements's express provisions or either Party gives the other Party written notice of non-renewal at least 60 days prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term").
• (b) Termination. In addition to any other express termination right set forth in these Agreements:
  • (i) Provider may terminate these Agreements, effective on written notice to Subscriber, if Subscriber: (A) fails to pay any amount when due hereunder and such failure continues more than 10 days; or (B) breaches any of its obligations under Section 2(c) or Section 6;
  • (ii) either Party may terminate these Agreements, effective on written notice to the other Party, if the other Party materially breaches these Agreements, and such breach:
    • (A) is incapable of cure; or
    • (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
  • (iii) either Party may terminate these Agreements, effective immediately upon written notice to the other Party, if the other Party:
    • (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;
    • (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law;
    • (C) makes or seeks to make a general assignment for the benefit of its creditors; or
    • (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
• (c) Effect of Expiration or Termination. Upon expiration or earlier termination of these Agreements, Subscriber shall immediately discontinue use of the Provider IP and, without limiting Subscriber's obligations under Section 6, Subscriber shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Subscriber's obligation to pay all Fees that may have become due before such expiration or termination or entitle Subscriber to any refund.
• (d) Survival. This Section 11(d) and Section 11(c) above, as well as Sections 1, 2(d), 2(f), 4., 5, 6, 7, 8(b), 10, 10(d), and 12 survive any termination or expiration of these Agreements. No other provisions of these Agreements survive the expiration or earlier termination of these Agreements.

12. MISCELLANEOUS.

• (a) Entire Agreement. These Agreements, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Agreements and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
• (b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth in the Subscription Services Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these Agreements, a Notice is effective only:
  • (i) upon receipt by the receiving Party; and
  • (ii) if the Party giving the Notice has complied with the requirements of this Section.
• (c) Force Majeure. In no event shall Provider be liable to Subscriber, or be deemed to have breached these Agreements, for any failure or delay in performing its obligations under these Agreements, if and to the extent such failure or delay is caused by any circumstances beyond Provider's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
• (d) Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Agreements,
  • (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Agreements will operate or be construed as a waiver thereof, and
  • (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
• (e) Severability. If any provision of these Agreements is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Agreements or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Agreements so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
• (f) Governing Law; Submission to Jurisdiction. These Agreements is governed by and construed in accordance with the internal laws of the State of Utah without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Utah. Any legal suit, action, or proceeding arising out of or related to these Agreements or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Utah in each case located in the city of Salt Lake City and County of Salt Lake County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
• (g) Dispute Resolution, Arbitration & Attorney’s Fees. Any dispute, claim, or controversy arising out of or relating to these Agreements shall be resolved by binding arbitration in Salt Lake County, Utah, administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules. The prevailing party shall recover reasonable attorney’s fees and costs, including the costs of in-house counsel billed at $250.00 per hour. Either party may seek injunctive relief in court to protect its intellectual property or confidential information.
• (h) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Subscriber, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
• (i) Assignment. Subscriber may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. These Agreements are binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
• (j) Export Regulation. Subscriber shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Subscriber Data outside the US.

CityOS TERMS OF SERVICE ver.1112-25 rev.1650