This Subscription and Support Agreement (the "Agreement"), hereby entered into by and between Client and Healthy Outcomes, Inc., DBA Engaged Public, ("Engaged Public"), is effective upon the acceptance of the terms and conditions by the Client ("Effective Date"). Client and Engaged Public are collectively referred to as "the Parties" and individually referred to as "Party."
WHEREAS, Engaged Public is in the business of developing web software and sites capable of hosting public policy simulations and related projects promoting an exchange of information and ideas for use by governmental and other entities;
WHEREAS, Client desires to subscribe to access Engaged Public’s proprietary web application known as Balancing Act to be used for public education and engagement, and
NOW, THEREFORE, in consideration of the foregoing recitals and mutual covenants contained herein, the parties agree as follows:
SCOPE OF ENGAGEMENT.
Subscription Agreement. Engaged Public shall provide Client with access to the Balancing Act web application and agrees to provide all of the technical, administrative, and professional support services necessary to perform this Agreement. Client is granted a non-exclusive, non-transferable, and revocable license to access and use the Balancing Act website. Client shall have the right to test and approve the application prior to it going live.
Fees. Client shall pay Engaged Public pursuant to the Fee Schedule selected by Client and attached hereto as Exhibit "A."
Client shall be responsible for the accuracy of all data utilized by Engage Public under this Agreement and shall comply with all laws and governmental regulations affecting its use, including all open and public records laws. Engaged Public shall have no responsibility to advise Client about the applicability of any laws or regulations that may apply to this Agreement.
TERM AND TERMINATION.
Term. This Agreement shall commence on the Effective Date and be effective for the period of time selected by Client from Exhibit "A" ("Initial Term"), unless terminated by either of the parties. Unless terminated by either party, this Agreement shall thereafter be automatically extended without further action from either Party on a monthly basis after the Initial Term.
Termination. Either party may terminate this Agreement at any time and for any reason by providing written notice of termination to the other party 10 days prior to the effective date of such termination, or may terminate this Agreement immediately without prior notice if the other party has materially breached this Agreement. In the event of termination by Client, Client shall immediately pay all Fees remaining due under this Agreement.
Effect of Termination. Upon termination, Client agrees that it will immediately cease using the Balancing Act services and website and Engaged Public may take steps to change, remove or otherwise block Client’s access to the Balancing Act website.
OWNERSHIP AND USE OF THE MATERIALS, USER CONTENT.
Creative Materials. The Parties acknowledge and agree that an integral part of the services is the creation of the Balancing Act application for Client, which includes the development of certain information, content, text, graphics, logos, photos, videos, software and other items, as well as their selection and arrangement ("Creative Materials"). Such Creative Materials are protected by copyrights, trademarks, patents, trade secrets and other intellectual property and proprietary rights, and Engaged Public shall be considered the author of such Creative Materials and retains all right, title and interest in and to such Creative Materials. Client’s rights to use the Creative Materials are limited to use solely in connection with this Agreement, and the rights and obligations granted hereunder. Any rights granted to Client under this Agreement to use the Creative Materials shall cease upon the termination of this Agreement.
User Content. The Parties acknowledge and agree that the user content generated on the Balancing Act website by others who are not parties to this Agreement is not owned by either Engaged Public or Client, but can be used by either Party for promotional purposes or any other purpose during and after the term of this Agreement. Engaged Public acknowledges that the Client can and will retain the right to use any user content and the deliverables under this Agreement for any and all purposes related to the general business of the Client.
LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES AND LIABILITY FOR ACTIONS OF THIRD PARTIES.
Other than the obligations under this Agreement, neither Party shall be liable to the other Party under this Agreement for any indirect, incidental, special, punitive or consequential damages for any claim, whether in contract, tort or otherwise. In no event will the total aggregate liability against a Party for any claims, losses or damages arising out of this Agreement exceed the total amount of fees and other consideration actually paid under this Agreement.
Except for the terms and conditions set forth in this Agreement, Engaged Public makes no express or implied warranties about the performance of Balancing Act, including warranties of merchantability or fitness for a particular purpose.
Neither party shall be liable for false or defamatory statements, either orally or in writing, made by others who are not parties to this Agreement.
PUBLIC ENTITIES ONLY AND AUTHORITY.
Engaged Public provides services to Public Entities, as those entities are defined by state or federal law. Under this Agreement, Public Entities shall include, but are not limited to the state, the judicial department of the state, any county, city and county, municipality, school district, special district, special improvement district, town, township, and every other kind of district, agency, instrumentality, or political subdivision thereof organized pursuant to law and any separate entity created by intergovernmental contract or cooperation only between or among the state, county, city and county municipality, school district, special improvement district, and every other kind of district, agency, instrumentality, or political subdivision thereof.
The person agreeing to the terms and conditions of this Agreement hereby represents and warrants that he or she is acting on behalf of the Public Entity whose budget is being simulated by Balancing Act and that he or she has the full right and authority to enter into this Agreement.
ASSIGNMENT. Either Party may assign all or a portion of its rights or obligations under this Agreement but only with the express written consent of the other Party.
CONFIDENTIALITY. During the term of this Agreement, each party (the "Disclosing Party") may provide the other (the "Receiving Party") with certain confidential and proprietary information ("Confidential Information"). Confidential Information includes, but is not limited to, (a) the Deliverables under this Agreement, (b) all business, financial and technical trade secrets, (c) any written information which is marked "Confidential", and (d) any information which is orally disclosed, identified as confidential at the time of disclosure and confirmed in writing as being confidential within 30 days thereafter. Confidential Information shall not include information that (a) is publicly known at the time of its disclosure; (b) is lawfully received by the Receiving Party from a third party not under an obligation of confidentiality to the Disclosing Party, or (c) is published or otherwise made known to the public by the Disclosing Party. The Receiving Party will refrain from using the Disclosing Party’s Confidential Information except to the extent necessary to exercise its rights or perform its obligations under this Agreement. Except as required by law, the Receiving Party may not disclose the Disclosing Party’s Confidential Information to any third party, other than its affiliates or representatives who have an absolute need to know such Confidential Information in order for the Receiving Party to perform its obligations and enjoy its rights under this Agreement, and only if such persons are informed of and are subject to the provisions of this Agreement. The Receiving Party remains liable for any unauthorized use or disclosure of the Confidential Information by any such representative or affiliate.
INDEPENDENT CONTRACTOR. Client and Engaged Public intend at all times to be independent contractors. Neither party is an employee, joint venture, agent or partner of the other, nor is either party authorized to assume or create any obligations or liabilities, express or implied, on behalf of or in the name of the other. The employees, methods, facilities and equipment of each Party shall at all times be under the exclusive direction and control of that Party.
GOVERNING LAW AND VENUE. This agreement shall be construed in accordance with and governed by the laws of the State of Colorado and any claim or lawsuit brought to enforce the terms of this Agreement shall be brought in the City and County of Denver, Colorado.
FULL AUTHORITY. The person agreeing to the terms and conditions of this Agreement states and affirms that they have the full authority of Client to enter into and execute this Agreement.