1. INTRODUCTION; ACCEPTANCE OF TERMS
(a) Thank
you for entering into a Request Manager™ Services Agreement (“Agreement”) with
OAC LLC (“OAC”). As set forth in your
Agreement, OAC provides online problem resolution management services (the
“Services”) at OAC’s www.civicservices.us website (the “Site”). Persons who have entered into an Agreement
with OAC are sometimes referred to in these TOS as the “User.”
(b) These
Standard Terms of Service (“TOS”) govern your use of, and our provision of, the
Services and the Site. In your
Agreement, you have agreed to these TOS, as they may be amended, restated or
updated by OAC from time to time. You
can review the most current version of the TOS at any time at the Site address
provided above.
2. Ownership. OAC IS THE SOLE AND EXCLUSIVE OWNER OF ALL RIGHT,
TITLE AND INTEREST, INCLUDING TRADEMARKS, COPYRIGHTS, PATENTS, TRADE NAMES,
TRADE SECRETS AND OTHER INTELLECTUAL PROPERTY RIGHTS, IN THE REQUEST MANAGER
CONCEPT AND BUSINESS PLAN, THE SITE, ALL SOFTWARE DOWNLOADED OR DOWNLOADABLE AT
THE SITE, AND THE NAME AND SERVICE MARK “REQUEST MANAGER.”
3 User’s
Representations and Warranties. User
represents and warrants to OAC that (a) User has all corporate, company or other
authority required to enter into the Agreement and the individual executing the
Agreement on behalf of User is authorized to do so, (b) User has all necessary
permits and licenses to operate its business as presently conducted, (c) User
is not engaged in whole or in part, directly or indirectly, in any type of
business that has not been disclosed to and approved by OAC in writing, and (d)
User has reviewed with its legal counsel, is familiar with and will remain in
compliance with all federal, state or local laws, rules, regulations or
ordinances, and all court, administrative and arbitrator’s orders or judgments
(collectively, “Laws”) applicable to its business, the Services, or User’s
activities in connection therewith.
4. CHANGES TO SITE AND SERVICES. OAC reserves the right at
any time to revise and modify the Services and/or the Site, and to alter
features, specifications, capabilities, functions, and other characteristics of
the same, without notice to or the consent of User. If any such action materially and adversely affects the benefits
User might reasonably be expected to obtain from the Services or the Site,
User's sole and exclusive remedy shall be to give OAC notice of termination
specifying the basis therefore in reasonable detail, which termination shall be
effective thirty (30) days after it is given unless OAC modifies the Services
and/or the Site to restore the benefits prior to expiration of such period.
5 Use of Site AND
SERVICES. In connection with the use of the Services
and the Site, User agrees as follows:
(a) The
person designated in your Agreement as the “Authorized Contact” shall have
primary responsibility for communicating with OAC. The Authorized Contact shall have authority to bind User, and OAC
shall be entitled to rely on all information provided by and all requests of
the Authorized Contact. User may change its Authorized Contact by written
notice to OAC.
(b) User
agrees to keep its login(s), password(s) and account number confidential, to
allow no other person to use the same except in the presence of User or its
authorized employees, and to notify OAC promptly if User has any reason to
believe that any third party has unauthorized access to User’s account or has
otherwise gained unauthorized access to the Site. User shall be responsible for any and all use of the Services or
the Site occurring under User’s login(s) or account number.
(c) User
shall comply with all applicable Laws with regard to the use of the Site and
the Services by User, its employees, agents and by members of the public who
use or access the same to communicate with User.
(d) User
shall not enter, store or maintain any User Information or other data or
information at the Site that, in OAC’s sole discretion, (i) may be illegal to
store or maintain or to use for its intended purposes under any Laws, (ii) may
infringe or violate any person’s property rights or right to privacy, or (iii)
is inflammatory, obscene, or offensive, or is inconsistent with OAC’s operating
rules and policies in effect from time to time. OAC reserves the right to remove any such User Information that
violates the terms of this subparagraph.
6. Maintenance. User acknowledges and agrees that (i) it may be
necessary to take down the Site from time to time or on a periodic basis to
resolve technical problems, upgrade software, or otherwise help ensure safe and
efficient operation of the Site, and (ii) due to the foregoing, power
interruptions, problems with service providers subcontracted by OAC, or other
conditions outside OAC’s control, the Site and/or the Services may occasionally
be unavailable. User waives any and all
claims against OAC arising from any of the foregoing. OAC will use reasonable efforts to minimize the time during which
the Site is down and Services are unavailable for such reasons.
7. Termination. The term of the Agreement shall be as set forth in the Agreement
and these TOS; provided, however, if User is in default under the Agreement or
these TOS, OAC shall have the immediate right to block or terminate User’s
access to the Site and to suspend the Services until User has cured the
default, or to terminate this Agreement.
8. Indemnification. To the fullest extent permissible by applicable law, User shall
indemnify, hold harmless and defend (with counsel acceptable to OAC) OAC, its
members (and their heirs and representatives), employees and independent
contractors, successors and assigns from and against any and all claims,
demands, liabilities, losses, fines, costs, expenses (including attorney fees
at trial, on appeal or in any bankruptcy proceeding) and damages directly or
indirectly arising out of or related to (a) the breach of any
representation, warranty or covenant by User under the Agreement or these TOS,
(b) the failure of User, its employees or agents to comply with any Laws in
connection with its business or the use of the Services or the Site, (c) the
use or misuse of the Services or the Site by User, its employees or agents or
by members of the public who use or access the same to communicate with User.
9. Disclaimer
of Warranties; LIMITATION OF LiabilitY. THE
SERVICES AND SITE ARE PROVIDED “AS IS”
WITHOUT WARRANTY OF ANY KIND. USER
ASSUMES THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICES
AND THE SITE. OAC DISCLAIMS ALL EXPRESS
OR IMPLIED WARRANTIES REGARDING THE SERVICES OR THE SITE, INCLUDING ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THERE IS NO WARRANTY AGAINST INTERFERENCE
WITH USER’S ENJOYMENT OF THE PRODUCT OR AGAINST INFRINGEMENT. THERE IS NO WARRANTY THAT THE SERVICES, THE
SITE OR OAC’S EFFORTS WILL FULFILL ANY OF USER’S PARTICULAR PURPOSES OR NEEDS,
OR THAT THE
SERVICES OR THE SITE WILL RESOLVE OR ASSIST IN RESOLVING ANY PROBLEM OR
COMPLAINT THAT MAY BE ENTERED OR FILED USING SUCH SERVICES OR SITE. OAC, its
members, MANAGERS, employees and independent contractors AND THEIR RESPECTIVE
successors AND assigns DISCLAIM AND SHALL NOT BE LIABLE, UNDER ANY
CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY LOSS OF BUSINESS, PROFITS
OR GOODWILL, FOR LOSS OR CURRUPTION OF DOCUMENTS, FILES OR DATA STORED AT THE
SITE, FOR INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, EVEN IF ANY OF SUCH PERSONS
IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM USER’S USE OF
OR INABILITY TO USE THE SITE OR THE SERVICES. IF IT IS DETERMINED BY A COURT OF
COMPETENT JURISDICTION THAT ANY PORTION OF THE FOREGOING EXCLUSION OF
WARRANTIES AND LIABILITIES IS VOID OR UNENFORCEABLE, OAC’S LIABILITY TO USER
SHALL NOT, FOR ANY REASON, EXCEED THE AMOUNT PAID BY USER TO OAC DURING THE
PREVIOUS TWO-MONTH PERIOD.
10. LATE FEE. If any fee for Services
remains delinquent 10 days after its invoice due date, User shall be assessed
an additional late fee of 5% of the delinquent amount (subject to a minimum of
$35) for each month of delinquency, without waiving OAC’s other rights and
remedies under the Agreement or these TOS.
The above late fees represent OAC’s estimate of its reasonable damages
incurred in connection with late payments, and are in addition to OAC’s rights
and remedies under Section 7 and under applicable law.
11. MODIFICATION OF TOS. OAC shall have right to update, amend or restate these TOS and
any policies and procedures relating to the Services, without the consent of
User and without prior notice to User; provided, however, OAC will use
reasonable efforts to give User 10 days’ prior notice of any such updates,
amendments or restatements.
12. Miscellaneous. The provisions of Sections 2, 3, 5, 7, 8, 9 and 12 shall survive
any termination or expiration of the Agreement. No agency relationship, partnership or joint venture is created
nor intended to be created by the Agreement or these TOS or the granting of
certain rights to User hereunder. User
shall not assign the Agreement, these TOS or any of its rights or obligations
thereunder without the prior written consent of OAC, which may be granted,
withheld or conditioned in OAC’s sole and absolute discretion. The Agreement and these TOS shall be binding
upon and shall inure to the benefit of the parties and their respective
permitted successors and assigns. Except as otherwise expressly provided in the
Agreement or these TOS, all notices or other communications required or
permitted hereunder shall be in writing and shall be sent by United States
first-class mail (with postage prepaid), by e-mail, or by facsimile (with a
copy by first-class mail, with postage prepaid) and shall be deemed received
and effective three (3) days after the date of posting, if mailed, upon receipt
of confirmation of successful sending, if sent by e-mail, and upon receipt of
confirmation of successful facsimile transmission, if sent by facsimile. The Agreement and these TOS shall be
governed by and construed under Oregon, USA law (without regard to conflicts of
laws principles), regardless of whether User resides or transacts business with
OAC in Oregon. User hereby agrees that
the Courts of Multnomah County, Oregon, USA or, at OAC's option, the United
States District Court for the District of Oregon, shall have jurisdiction to
hear and determine any disputes between the parties relating to the
Agreement. User further consents in
advance to such jurisdiction and waives any objection it may have based upon
lack of personal jurisdiction, improper venue or forum non conveniens. The
Agreement and these TOS set forth the entire agreement and understanding of the
parties and supersede all prior agreements and understandings relating to the
subject matter hereof. If any provision
of the Agreement or these TOS is held to be invalid, such event shall not
affect, in any respect whatsoever, the validity of the remainder of the
Agreement or these TOS, and the remainder shall be construed without the
invalid provision so as to carry out the intent of the parties to the extent
possible without the invalid provision. OAC’s failure to insist upon or enforce
strict performance of any provision of the Agreement or these TOS shall not be
construed as a waiver of any provision or right, nor shall the course of
conduct between the parties modify any provision of the Agreement or these
TOS. Neither party shall be liable to
the other for any delay or failure in performance under the Agreement or these
TOS resulting directly or indirectly from acts of nature or causes beyond its
reasonable control. If any party hereto brings an action or proceeding for the
declaration of the rights of the parties hereunder, for injunctive relief or
for an alleged breach or default of, or any other action arising out of the
Agreement or these TOS, the prevailing party in any such action shall be
entitled to an award of reasonable attorneys' fees and any court costs incurred
in such action or proceeding (including any bankruptcy case), in addition to
any other damages or relief awarded, regardless of whether such action proceeds
to final judgment.