HomeMy WebLinkAboutNextRequest Contract - Public Record Request Software NextRequest
Terms and Conditions
Version 3.0 (June 2018)
These Terms and Conditions, together with the order form ("Order Form") executed between
NextRequest Co. and Customer, which is incorporated herein by reference, constitute a legally
binding contract between NextRequest and Customer. The Order Form, together with these
Terms and Conditions is referred to as the "Agreement" or"Service Agreement". Any terms on
Customer's purchase order or other business forms by which Customer orders or pays for
Service will not become part of this Agreement, unless such order is on a form provided by
NextRequest.
NextRequest means NextRequest Co., a Delaware Corporation with principal offices at 433
Bryant Street, San Francisco, CA 94107 and Customer means the entity or person identified as
such in the Order Form. Each of NextRequest and Customer may each be referred to as a"Party"
and together as the"Parties".
TERMS AND CONDITIONS
1. Services.
1.1. NextRequest Service. During the term of this agreement, NextRequest will use
commercially reasonable efforts to deploy, host, and maintain for Customer an instance
of the Service as further described in the Order Form.
1.2. Service Level Agreement.NextRequest will provide support for the Service according to
the terms of the Service Level Agreement attached hereto as Exhibit A and incorporated
by reference.
1.3. Other Services. If provided in the Order Form, NextRequest will provide Additional
Services consistent with industry standards and according to the terms in the Order
Form. Services such as setup or customer support will be provided during Business
Hours, online, or by telephone,unless otherwise agreed to by the Parties.
1.4. Excluded Services. Unless expressly provided in the Order Form, NextRequest is not
responsible for registering or maintaining domain names or DNS; hardware or software
not provided as part of the Service; integration between the Service and any other
software or system (except for issues originating with the Service or its interfaces); or
direct support to Requesters.
1.5. Security. The Service is hosted by third-party Service Providers pursuant to agreements
between NextRequest and such Service Providers. NextRequest maintains the level of
security outlined in NextRequest's Systems Security Plan ("Security Plan), which is
available at: https://www.nextrequest.com/compliance/system-security-plan
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2. Intellectual Property and Licenses.
2.1. Service. The Service is protected by copyright, trademark, trade secret, and other
intellectual property laws of both the United States and foreign countries. Except for the
express licenses granted in this Section 2.1, NextRequest reserves all rights in the
Service. As between Customer and NextRequest, NextRequest retains all and exclusive
rights, title, and interest in and to the Service, including all Intellectual Property in the
Service and any software used to provide the Service to Customer.During the Term and
conditioned upon Customer's compliance with all provisions of this Agreement,
NextRequest hereby authorizes Customer to access and use the Service for purpose of
accepting, responding to and managing public records requests and publishing
responsive documents ("Purpose"), and grants to Customer a personal, limited,
royalty-free,non-exclusive,non-assignable, non-sublicensable and non-transferable right
and license to use the Service only for the Purpose. Customer and Customer's Users
shall not (a)copy, modify, translate or create derivative works or improvements of the
Service; (b)rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or
otherwise make available any Service or any part or derivative thereof to any person;
(c)reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to
derive or gain access to the source code, underlying ideas, algorithms, structure or
organization of the Service, in whole or in part; or(d)defeat,bypass, breach, deactivate,
or otherwise circumvent any security device or protection used by the Service or access
or use the Service other than through the use of its own then valid access credentials.
2.2. Third-Party Software. Open source software licenses for components of the Service
released under an open source license constitute separate written agreements. To the
limited extent that the open source software licenses expressly supersede this
Agreement, the open source licenses govern Customer's agreement with NextRequest
for the use of the components of the Service released under an open source license. For
the avoidance of doubt, the owners of the open source licenses do not have access to
Customer Content or Requester Content.
2.3. Customer Content. As between Customer and NextRequest, Customer retains ownership
of all Intellectual Property in Customer Content. Subject to the terms of this Agreement,
Customer grants to NextRequest and its Service Providers a,non-exclusive,royalty-free,
fully paid, sub-licensable, transferrable, limited right to use, host, store, cache,
reproduce, publish, publicly display, distribute, transmit, and modify Customer Content
[and Requester Content], in all media now known or later developed, received or
accessed by NextRequest for the sole purpose of providing the services under this
Agreement to Customer. All right, title and interest in Customer Content [and Requester
Content] shall remain with the Customer or Requestors, as applicable.NextRequest may
not access and/or duplicate Customer Content or [Requester Content] for any reasons
other than those stated herein without the prior written consent of Customer or
Requestor. Except as expressly provided in section 2.7, NextRequest shall not collect,
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mine, save, disclose or otherwise use any [deleted "end user"] Requester or Customer
User personal information or Customer Content[deleted "Data"]or Requester Content
for any purpose other than to provide the services expressly contemplated under this
Agreement to the Customer.
2.4. Requester Credentials and Content. Nextrequest and/or Requesters retain ownership of
all Intellectual Property related to Requester's credentials used to access the
NextRequest software. NextRequest acknowledges that all public records requests and
subsequent communication between Customer and Requestor hosted through the
NextRequest software(Requestor Content)shall be considered a public record owned by
the Customer. Prior to any discontinuation of service or deletion of said Requestor
Content, NextRequest shall afford Customer the opportunity and a reasonable amount of
time to create a backup of Requestor Content for its own retention.
2.5. Usage Data. NextRequests retains ownership of all Intellectual Property in Usage Data,
and Customer hereby unconditionally and irrevocably grants to NextRequest an
assignment of all right, title and interest in and to the Usage Data, including all
Intellectual Property rights relating thereto. NextRequest grants to Customer a
worldwide, non-exclusive, royalty-free, fully-paid, non-transferrable, irrevocable,
perpetual, and non- sublicensable right to use Usage Data for the Purpose.
NextRequest's use of any Usage Data shall protect the confidentiality of personal
information relating to Requesters and Customer Users.
2.6. Transfer of Content. Customer Content may be disclosed and otherwise transferred to an
acquirer, or successor or assignee as part of any merger, acquisition,debt financing, sale
of company assets, or similar transaction, as well as in the event of an insolvency,
bankruptcy, or receivership in which such data is transferred to one or more third parties
as a NextRequest business asset.
2.7. Feedback and improvements. Any suggestions provided by Customer to NextRequest
with respect to NextRequest's products or services shall be collectively deemed
"Feedback." NextRequest will be free to use Feedback without any obligation to
Customer and Customer hereby assigns to NextRequest all rights, title, and interest in
and to any Feedback. NextRequest will be considered the sole author of all
modifications or improvements to the Service. NextRequest may use Customer Content
to improve the Service and shall be the sole owner of any such improvements, so long as
such use protects the confidentiality of Customer Content.
3. Customer Obligations.
3.1. Payment. Customer will make all payments required under Section 5.
3.2. Security. Customer will protect the accounts, passwords, and other authentication
information Customer uses to access the Service and any NextRequest system and will
be responsible for any activity attributable to a Customer account or Customer Users.
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Customer's user names, passwords, other login information or personal information
may be stored by NextRequest or its Service Providers in the course of providing
Service and may be available to the NextRequest application and Service Providers.
3.3. Data Backup. Customer will maintain backups of all Customer Content stored in the
Service in an environment separate from the Service.
3.4. Laws Applicable to Customer. Customer is solely responsible for Customer Content and
will comply with all laws applicable to Customer's use of the Service, including without
limitation privacy and security laws and laws regarding the export of data or software.
NextRequest shall not be liable for any damages that arise due to Customer or Customer
Users' publication,processing, storage or transmission of any information in violation of
any law. Customer represents and warrants that it has reviewed the Security Plan
carefully and has made its own, independent determination whether the levels of privacy
and security set forth in the Security Plan are sufficient for Customer's use of the
Service. Customer acknowledges and agrees that the Service, including without
limitation the degree of privacy and security provided by the Service, may not comply
with special privacy and security requirements relating to the processing, storage or
transmission of Sensitive Information. Customer agrees that if Customer uses the
Service to process Sensitive Information, any such use is at Customer's own risk and
NextRequest will have no liability to Customer or any third party arising out of or
relating to such use. Customer will indemnify NextRequest and its Service Providers
against any and all damages, liabilities, costs, and expenses (including reasonable
attorneys' fees) arising out of or relating to such use. To the extent that Customer
Content causes NextRequest or its Service Providers to be subject to any law to which it
otherwise would not be subject, NextRequest or its Service Providers may remove such
data pursuant to Section 9 or discontinue the Service without any liability except to
refund any fees Customer paid to NextRequest attributable to unused services.
NextRequest will make reasonable efforts to notify the Customer prior to such removal
or discontinuation.
3.5. Public Records Laws. Customer is solely responsible for compliance with all applicable
public record laws and under no circumstances shall NextRequest be liable for any
damages relating to non-compliance, regardless of whether such non-compliance arises
out of or relates to Customer's use of or reliance on the Service. Customer warrants that
Customer is solely responsible for all Customer Content and use of Customer Content by
Requesters. Neither NextRequest nor its Service Providers guarantees the accuracy,
integrity or quality of Customer Content.
3.6. Acceptable Use Policy. Customer and Customer Users shall not use the Service (i) to
send or facilitate the sending of unsolicited bulk commercial email (spam) or inundating
a target with communications requests so the target cannot effectively respond to
legitimate traffic; (ii)to send,upload, distribute,or transmit or store Prohibited Content
unless such content could be considered a part of normal business operations in service
of the Purpose.If Customer or Customer Users send,upload, distribute,transmit or store
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Prohibited Content using the Service, any such use is at Customer's own risk and
NextRequest will have no liability to Customer or any third party arising out of or
relating to such use. Customer will indemnify NextRequest and its Service Providers
against any and all damages, liabilities, costs, and expenses (including reasonable
attorneys' fees) arising out of or relating to such use; (iii) to distribute malware,
including viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a
destructive or deceptive nature; (iv) to alter, disable, interfere with, disrupt, circumvent
or exploit vulnerabilities in any aspect of the Service or NextRequest's or third parties'
other services or systems; (vi) monitor data or traffic on the Service without permission;
(vii) forge TCP-IP packet headers, e-mail headers, or any part of a message describing
its origin or route; (viii)to infringe or misappropriate the Intellectual Property or privacy
rights of any person; (ix)to otherwise violate, or promote the violation of, any law or the
legal rights of any person; (x) to impersonate another person; (xi) for any high risk use
where failure of the Service could lead to death or serious bodily injury or any person or
to physical or environmental damages, such as applications controlling transportation,
medical systems or weaponry systems; or (xii) to otherwise access or use the Service
beyond the scope of the authorization granted under Section 2.1. If Customer becomes
aware of any actual or threatened activity prohibited under this section, Customer shall
immediately take all reasonable measures to stop the activity,to mitigate its effects, and
to notify NextRequest. Customer is responsible for any act or omission of any Customer
User. NextRequest and its Service Providers may report any activity, including
disclosing appropriate information, if they suspect such activity violates any law or
regulation.
3.7. Service Policies and Privacy. Customer acknowledges and agrees that Requesters must
agree to the NextRequest Terms of Service available at https://www.nextrequest.com/
termsofservice which may be updated from time to time. Customer agrees to the
NextRequest privacy policy available at https://www.nextrequest.com/privacypolicy,
which applies to information collected with respect to Requesters and with respect to the
Agency and Agency personnel using the Service, including Requester Content, Usage
Data and email correspondence handled by the Service. The NextRequest privacy policy
applies to Usage Data but does not apply to Customer Content itself.
3.8. Deletion of Customer Content. The Service enables Customer to delete Customer
Content for purposes of adhering to Customer's document retention or other policies.
When Customer deletes Customer Content("Deleted Content"),relevant documents are
removed from databases accessible to Customer and/or the general public so that
Customer no longer has access to Deleted Content. However, copies and backups of
Deleted Content may continue to be stored on NextRequest's or its Service Providers'
servers. Customer acknowledges and agrees that after deletion, under no circumstances
will NextRequest provide Customer with copies of Deleted Content. NextRequest may
provide Deleted Content to third parties as required by law or a court order.
4. Customer Representations and Warranties. Customer represents and warrants and
undertakes that it has all necessary rights in the Customer Content to permit Customer's use
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of the Service and to grant the licenses contained in this Agreement without infringing the
Intellectual Property or other rights of any third parties, violating any applicable laws, or
violating the terms of any license or agreement to which it is bound. Customer represents and
warrants that it has full power and authority to enter into this Agreement and that it is binding
upon and enforceable in accordance with its terms.
5. Fees and Invoicing.
5.1. Fees, Invoicing. Customer will pay all fees stated in the Order Form within 30 days of
receipt of NextRequest invoices.
5.2. Expenses. If Customer purchases Hourly Services, Customer will reimburse
NextRequest for all ordinary and necessary expenses incurred in connection with the
performance of the Hourly Services, including travel-related expenses.All travel will be
pre-approved by Customer.
5.3. Taxes. Customer is responsible for any Washington State taxes that may be due as a
result of this Agreement, except for taxes on NextRequest's income. Taxes payable by
Customer will be billed as separate items on NextRequest's invoices and will not be
included in NextRequest's fees. If Customer claims a tax exemption, Customer must
provide documentation of the exemption to NextRequest at the time of Customer order.
6. Confidential Information.
6.1. Duty to Protect Confidential Information. Each Party will exercise the same degree of
care and protection with respect to the Confidential Information of the other Party that it
exercises with respect to its own Confidential Information, at least a reasonable degree
of care. A Party will not use the Confidential Information of the other Party except as
permitted by this Agreement. Notwithstanding the foregoing (i) either Party may
disclose the other's Confidential Information to its employees and agents who have a
need to know, provided that any agent to which Confidential Information is disclosed is
bound by non-disclosure terms at least as protective as those in this Section 6; (ii)either
Party may disclose Confidential Information, including personal data that is Customer
Content, Requester Content or Usage Data, if so required by law(including court order
or subpoena) or in response to lawful requests by public authorities; and(iii)Usage Date
relating to Customer's Content that is also Confidential Information is subject to
NextRequest's Privacy Policy.
Return of Confidential Information. Unless otherwise authorized,upon the earlier of termination
of this Agreement or request by the other Party, each Party will promptly return or,
subject to Section 3.8, destroy all Confidential Information disclosed to it by the other
Party and provide certification that all such Confidential Information has been returned
or destroyed.
6.2. Notification Obligation. If a Party becomes aware of any unauthorized use or disclosure
of the Confidential Information of the other Party, it will make commercially reasonable
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efforts to notify the other Party of the unauthorized use or disclosure and assist in
seeking a protective order or other appropriate remedy.
7. Publicity. Customer agrees that NextRequest may publicly disclose Customer's use of the
Service and may use Customer's name and logo to identify Customer as its customer in
promotional materials, including press releases.
8. Term and Termination.
8.1. Term. The term of this agreement begins on the earlier of(1) acceptance of these Terms
and Conditions by Customer or(2)the first date on which NextRequest begins providing
Services to Customer and ends on the later of(a) the last day of the Initial Term as set
forth in the Order Form, (b) the last date of any renewal term, or (c) the last date on
which NextRequest provides Services to Customer. Unless NextRequest receives notice
of termination from Customer sixty (60) days or more before the expiration of the initial
term (or any renewal term), the Agreement will renew automatically on the terms set
forth herein for an additional term of one year at NextRequest's then-current rates.
8.2. Termination for Convenience. Customer may terminate for convenience at any time
upon thirty (30) days' written notice to NextRequest but will not be entitled to any
refund of fees for any unused portion of the Service or unused Hourly Services.
8.3. Termination for Breach. Either Party may terminate the Agreement for breach if the
other Party materially fails to meet any obligation stated in the Agreement and does not
remedy that failure within thirty(30) days of written notice from the nonbreaching Party
describing the failure.
8.4. Termination in Insolvency. Either Party may terminate the Agreement with immediate
effect on written notice if the other is subject to an "Insolvency Event," meaning that it
(i) is unable to pay its debts; or (ii) enters into compulsory or voluntary liquidation; or
(iii) compounds with or contravenes a meeting of its creditors; or (iv) has a receiver or
manager or an administrator appointed (or an application is made to the court for the
same); or (v) ceases for any reason to carry on business or takes or suffers any similar
action which means that it may be unable to pay its debts. Notwithstanding anything to
the contrary within the Agreement, any fees that Customer owes to NextRequest for the
Service will become due immediately upon the occurrence of an Insolvency Event.
8.5. Effect of Termination. Upon expiration or termination of this Agreement for any reason,
all licenses and rights to use the Service granted to Customer shall terminate
immediately and Customer shall immediately cease all use of the Service. If Customer
has paid in advance for Service, and this Agreement terminates due to material breach of
this Agreement by NextRequest, NextRequest shall refund Customer a prorated amount
of any amount already paid. Upon termination by Customer for convenience or due to
material breach by Customer, in addition to any remedy provided in this Agreement or
provided in law or equity, NextRequest shall be entitled to retain any amounts already
paid. The following terms will survive expiration or termination of the Agreement:
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Sections 2.3-2.7, 4, 5, 6, 11, 12 and 14 as well as all other provisions of the Agreement
that by their nature are intended to survive expiration or termination of the Agreement.
9. Removal of Customer Content. Suspension of Service.
9.1. NextRequest and its Service Providers reserve the right to remove or prohibit any
Customer Content or Requester Content. NextRequest may suspend or terminate
Customer's use of the Service without liability if NextRequest or a Service Provider
reasonably believes that: (a) it is required to do so by law or a regulatory or government
body, or doing so is necessary to protect the rights of NextRequest, its Service Providers,
or its other customers; (b) Customer or any Customer User has failed to comply with any
material term of this Agreement, including the Acceptable Use Policy; (c)Customer's or
any Customer User's use violates applicable law or third-party rights; (d) Customer
Content causes NextRequest to be subject to any law to which it otherwise would not be
subject; or (e) this Agreement expires or is terminated. Notwithstanding the foregoing
and for the avoidance of doubt, NextRequest and its Service Providers have no
obligation to monitor, filter, or disable access to any Customer Content or Requester
Content.
9.2. If NextRequest or a Service Provider elects to remove Customer Content or suspend the
Service,to the extent possible NextRequest will give Customer advance notice of at least
one(1)Business Day.
9.3. If Customer Content is removed as part of the notice-and-takedown procedure provided
by the Digital Millennium Copyright Act ("DMCA"), and Customer believes such
Customer Content was wrongly removed as a result of a copyright infringement notice,
Customer may notify NextRequest as provided in section 6.3 of the Terms of Service.
10. Changes to Services. NextRequest may change, update or discontinue any or all of the
Service at any time. NextRequest will make commercially reasonable efforts to timely notify
Customer of discontinuation of the Service. Any such change, update, or modification shall
not impede Customer's ability to use the Service for the Purpose such that there is no
work-around, technical or otherwise. Customer acknowledges and agrees that if
work-arounds are not acceptable remedy is discontinuation of the Service.NextRequest shall
refund a prorated amount of any amounts paid for which Service have not yet been received
in the case any portion of the Service is discontinued.
11. Intellectual Property Infringement and Indemnification.
11.1.NextRequest's Obligations for IP Infringement. If any action is instituted by a third
party against Customer based upon a claim that any part of the Service (an"Infringing
Item"), infringes a United States patent, copyright or trademark, NextRequest's sole
obligation will be at its option and expense to (a) procure for Customer the right to
continue using the Infringing Item, (b)replace or modify the Infringing Item so that it is
no longer infringing but continues to provide comparable functionality, or(c)terminate
this Agreement and Customer's access to the Service, in which case NextRequest shall
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refund a prorated amount of any amounts paid for which Service have not yet been
received. NextRequest shall have no liability to Customer for any infringement action
to the extent such action arises out of a breach of the terms and conditions of this
Agreement by Customer or of the use of the Service (or any component part thereof)
after it has been modified by Customer without NextRequest's prior written consent.
This Section 11.1 states NextRequest's sole liability to, and Customer's exclusive
remedy against,NextRequest for infringement claims.
11.2. Customer's Indemnification of NextRequest. Customer agrees to defend, indemnify and
hold harmless NextRequest and its affiliates and their respective directors, officers,
employees, and agents from and any and all damages, liabilities, costs, and expenses
(including reasonable attorneys' fees) incurred as a result of any claim, judgment, or
proceeding relating to or arising out of: (a) Customer's breach of this Agreement,
including of any of its warranties or representations; (b) Section 3.4, or (b) any claim
alleging that NextRequest has infringed or secondarily infringed on the patent,
trademark, trade dress, or copyright of a third party as a result of Customer Content or
Customer's use of the Service, whether or not Customer was aware of the allegedly
infringing conduct and whether or not the conduct is actually infringing.
12. Disclaimers and Limitations on NextRequest's Liability.
12.1.NextRequest is not responsible to Customer or any third party for unauthorized access
to Customer Content or the unauthorized use of the Service unless the unauthorized
access or use results from NextRequest's or its Service Providers' failure to meet its
security obligations under this Agreement. Customer is responsible for the use of the
Service by any employee of Customer, any person Customer authorizes to use the
Service, any person to whom Customer has given access to the Service, and any person
who gains access to Customer Content or the Service as a result of Customer's failure
to use reasonable security precautions, even if such use was not authorized by
Customer. Customer is not responsible for the use of the Service by Requesters, so long
as such use would not otherwise be a violation of the foregoing sentence.
12.2.Disclaimer of Warranty. TO THE FULLEST EXTENT PERMITTED BY
WASHINGTON STATE LAW AND OTHER APPLICABLE LAWS, THE SERVICE
IS PROVIDED "AS IS" AND "AS AVAILABLE" AND NextRequest MAKES NO
WARRANTY OF ANY KIND, WHETHER EXPRESS,IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND
NONINFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF
DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, NextRequest MAKES NO
REPRESENTATION OR WARRANTY (A) USE OF THE SERVICE WILL MEET
CUSTOMER'S REQUIREMENTS, (B) THAT THE SERVICE WILL BE
UNINTERRUPTED OR ERROR-FREE, OR (C) REGARDING THE ACCURACY
OR RELIABILITY OF ANY CONTENT.
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12.3. Limitation of Liability. NextRequest WILL NOT BE LIABLE FOR LOST
REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL,
EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO
THIS AGREEMENT EXCEPT FOR THOSE CAUSED BY THE NEGLIGENT OR
INTENTIONAL ACTS OF ITS EMPLOYES, OFFICERS, AGENTS, OR SERVICE
PROVIDERS. TO THE EXTENT APPLICABLE LAW PROHIBITS THE
FOREGOING LIMITATION OF LIABILITY, NEXTREQUEST'S LIABILITY IS
LIMITED TO THE GREATEST EXTENT ALLOWED BY APPLICABLE LAW.
12.4. Nothing in this Agreement limits or excludes either Party's liability for any loss or
damages resulting from death or personal injury caused by its negligence, or any fraud or
fraudulent misrepresentation.
13. Payments Processing. This section applies to Customers who use the Payments Module.
The Payments Module is made available through agreement(s)with Stripe, Inc.,the terms of
which are available at https://stripe.com/us/legal. By electing to use the Payments Module,
Customer agrees to abide by the relevant terms of NextRequest's agreements with Stripe,
Inc., including without limitation terms relating to compliance with applicable laws, data
privacy, and permitted and prohibited uses. Transactions processed using the Payments
Module are handled directly between Requesters, Customer and Stripe and NextRequest does
not receive sensitive financial information (such as credit card or bank numbers) relating to
the transactions. The only data made available to NextRequest is a record of the transaction
including invoice information and the amount of the transaction.
14. General.
14.1. Governing Law. This Agreement will in all respects be governed by and construed and
enforced in accordance with the laws of the State of Washington.
14.2.Arbitration. In the event of a dispute between the parties regarding the interpretation,
breach, or enforcement of this Agreement, the parties shall first meet in a good faith
effort to resolve the dispute by themselves or with the assistance of a mediator. The
remaining dispute shall be resolved by arbitration pursuant to RCW 7.04A, as amended,
with all parties waiving the right of a jury trial upon de novo review. Arbitration shall
be conducted in Benton County, Washington, with the substantially prevailing party
being awarded its reasonable attorney fees and costs against each other.
14.3. Arbitration Award. The arbitrator will not have the authority to award exemplary or
punitive damages to any injured party. A decision by the arbitrator will be fmal and
binding. Judgment may be entered on the arbitrator's award in any court having
jurisdiction.
14.4.Notice. Written notice by either Party to the other may be given: (i)in person, and such
notice will be deemed valid on the date of delivery in person; or (ii) by email to the
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Party contact identified in the Order Form, and such notice will be deemed valid as of
the proof of mailing date.
14.5. Assignment. Neither Party may assign any of its rights or obligations hereunder,
whether by operation of law or otherwise, without the prior written consent of the
other Party (not to be unreasonably withheld). Notwithstanding the foregoing, either
Party may assign this Agreement in its entirety, without consent of the other Party,to
its affiliate or in connection with a merger, acquisition, corporate reorganization, or
sale of all or substantially all of its assets. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of the Parties, their respective successors and
permitted assigns. NextRequest may use Service Providers to perform all or any part
of the Service, but NextRequest remains responsible to Customer under this
Agreement for Service performed by its Service Providers to the same extent as if
NextRequest performed the Service itself.
14.6. Force Majeure. Neither Party will be in breach of the Agreement if the failure to
perform the obligation is due to an event beyond either Party's control, such as
significant failure of a part of the power grid, significant failure of the Internet,natural
disaster, war, riot, insurrection, epidemic, strikes or other organized labor action,
terrorism, or other events of a magnitude or type for which precautions are not
generally taken in the industry.
14.7. Modifications. Unless otherwise expressly permitted in this Agreement,the Agreement
may be amended only by a formal written agreement signed by both Parties.An Order
Form may be amended to modify, add, or remove services by mutual written agreement
of the Parties, agreement by email being sufficient.Any terms on Customer's purchase
order or other business forms by which Customer orders or pays for Service will not
become part of this Agreement, unless such order is on a form provided by
NextRequest.
14.8. Entire Agreement. The Agreement, together with the Terms of Use and Privacy Policy,
constitutes the complete and exclusive agreement between the Parties regarding the
Service and supersedes and replaces any prior understanding or communication,written
or oral. Customer acknowledges that it has not relied on any statement, promise or
representation made or given by or on behalf of NextRequest which is not set out in the
Agreement.
14.9. Precedence. If there is a conflict between the Order Form and this Agreement,then this
Agreement will control.
14.10.Unenforceable Provisions. If any part of the Agreement is found unenforceable by a
court, the rest of the Agreement will nonetheless continue in effect, and the
unenforceable part will be reformed to the extent possible to make it enforceable but
still consistent with the business and financial objectives of the Parties underlying the
Agreement.
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14.11.No Waiver. Each Party may enforce its respective rights under the Agreement even if
it has waived the right or failed to enforce the same or other rights in the past.
14.12.No Partnership. The relationship between the Parties is that of independent contractors
and not business partners.Neither Party is the agent for the other, and neither Party has
the right to bind the other to any agreement with a third party.
14.13.No Third-party Beneficiaries. There are no third-party beneficiaries to this
Agreement.
14.14. Counterparts. This Agreement may be executed in two or more counterparts, each of
which will be considered a legal original for all purposes.
15. Defined Terms. Capitalized terms used in this Agreement have the following meanings:
"Business Day" or "Business Hours" means 9:00 a.m.—6:00 p.m. Monday through Friday,U.S.
Pacific time, excluding public holidays in the United States.
"Confidential Information" means all information disclosed by one Party to the other, whether
before or after the effective date of the Agreement, that the recipient should reasonably
understand to be confidential, including information that is marked or otherwise conspicuously
designated as confidential, and for NextRequest, scripts and other tools used in the Service.
Information that is independently developed by either Party, without reference to the other's
Confidential Information, or that becomes available to either Party other than through breach of
the Agreement or applicable law,will not be "Confidential Information" of the other Party.
"Customer Content" means content(such as data,text, audio,video, or images)that Customer or
Customer Users transfers to NextRequest for processing, storage or transmission in connection
with Customer's use of the Service, as well as any results (such as redacted versions of
documents) that Customer derives from the foregoing through its use of the Services. Customer
Content does not include Usage Data collected from Customer, Customer Users, or Requesters.
"Customer User" means a person authorized by Customer, such as a Customer employee,to use
the Service on Customer's behalf. Customer User does not include Requesters.
"Hourly Services" means hourly support or training services to be provided by NextRequest
under an applicable Order Form.
"Intellectual Property" or "IP" means legally protectable rights related to patents, copyrights,
trademarks,trade secrets,rights of publicity and any other proprietary intellectual property.
"Prohibited Content" means content (i) that violates any third party's rights, including privacy
or Intellectual Property rights; (ii) that is libelous, harassing, abusive, fraudulent, defamatory,
excessively profane, obscene, abusive, hate related, violent, harmful to minors; (iii) that
NextRequest
Terms and Conditions- 12
Document Ref:PRCHK-FDUEK-BRJNN-SZKB8 Page 12 of 20
advocates racial or ethnic intolerance;(iv)intended to advocate or advance computer hacking or
cracking; (v) gambling; (vi) other illegal activity; (vii) drug paraphernalia; (viii) phishing; (ix)
malicious content; and(x)other material, products or services that violate or encourage conduct
that would violate any laws or third-party rights.
"Requester"means a person that uses the Service to make a public records request.
"Requester Content" means information provided by or collected from a Requester. Requester
Content does not include Usage Data collected from Requesters.
"Sensitive Information" means information such as financial data, personal data, individually
identifiable information about children, individually identifiable health information, geolocation
information about specific people, Social Security numbers, driver's license numbers, other
confidential ID numbers, financial account numbers, credit or debit card numbers, personal
identification numbers (PINs) or passwords, street addresses, phone numbers or other personal
information.
"Service" means NextRequest's integrated web-based service, which assists customers in
responding to public records requests. The Service consists of a core web-based application and
any optional modules which may be purchased by Customer. The details of the Service subject
to this Agreement are set forth in the Order Form.
"Service Level Agreement"or"SLA"means the NextRequest Service Level Agreement attached
as Exhibit A to this Agreement and incorporated by reference.
"Service Providers"means third-party providers of services that are part of the Service.
"Usage Data" means information other than Customer Content or Requester Content that is
collected, directly or indirectly, from Customer, Customer Users, or Requesters by or through the
Service, including information that incorporates or is derived from the processing, storage or
transmission of information, data or content by or through the Service as well as any
information, data or other content derived from NextRequest's or its Service Providers'
monitoring of Customer's access to or use of the Service such as information reflecting the
access or use of the Service by or on behalf of Customer, any Customer User, or any Requester.
NextRequest
Terms and Conditions- 13
Document Ref:PRCHK-FDUEK-BRJNN-SZKB8 5, Page 13 of 20
tivt,r/L,
NEXTREQUEST,
By: Date:
08/30/2018
Tamara Manik-Perlman
Chief Executive Officer
CITY OF PASCO,WASHINGTON
By: /L� �` Date: 9/4/2,51e>
Dave Zabell, ty M.nager
er
g
Attest:
By: 4L _
. :/. �� I 4.i
Daniela Erickson,City Clerk
Approved as orm:
By:
Leland B. Kerr, City Attorney
NextRequest
Terms and Conditions- 14
Document Ref.PRCHK-FDUEK-BRJNN-SZKB8 Page 14 of 20
Exhibit A
NextRequest
Service Level Agreement
This Service Level Agreement ("SLA") defines the support obligations of NextRequest Co.
("NextRequest"') to you, a purchaser of NextRequest's service. These terms are incorporated into
and subject to the terms of the NextRequest Service Agreement. Capitalized terms not defined in
this SLA shall have the meanings given to them in the NextRequest Service Agreement.
1. Service Guarantees
1.1 Availability. NextRequest provides hosting for the NextRequest service through a
Service Provider ("Hosting Provider"), which does not make guarantees about uptime. Based on
past performance, NextRequest anticipates 99.9% uptime of the application,with the exception of
planned outages for maintenance and upgrades for which NextRequest notifies the Customer 24
hours in advance ("Uptime"). If NextRequest fails to meet the Uptime, the Customer will be
eligible for credits as described in section 3.2.
1.2 Security. NextRequest take the security of the Customer's data seriously and
protects it according to the rigorous security practices described in our System Security Plan. The
Hosting Provider utilizes certified data centers managed byAmazon, which implements
industry-leading physical, technical, and operational security measures and has received ISO
27001 certification and Federal Information Security Management Act (FISMA) Moderate
Authorization and Accreditation from the U.S. General Services Administration. If NextRequest
becomes aware of any unauthorized access to its systems that poses any threat to the Service or the
Customer's data, NextRequest will notify the Customer in writing of the issue no later than the
close of the next business data after NextRequest learns of it.
1.3 Data Integrity. The Hosting Provider makes daily backups of Customers' systems
and data. Seven(7)daily backups and five (5)weekly backups are retained.
1.4 Location of Service. Service and Customer's data is hosted in the U.S.
2. Service Request Process
2.1 Service Request Definition. A Service Request is any email, phone call, or in-app
chat ticket sent to NextRequest by the Customer indicating support action is necessary or desired.
This includes Bug reporting and Customer Support.
2.2 Severity Levels and Response Times. Each Service Request will be
assigned a Severity Level by the party initiating the request. If NextRequest reasonably determines
that the Customer has assigned an incorrect Severity Level to a ticket, NextRequest may assign a
different Severity Level. The Severity Levels are defined
Document Ref:PRCHK-FDUEK-BRJNN-SZKB8 Page 15 of 20
below, along with the corresponding Initial Response Time within which NextRequest (or, in the
case of Critical requests, our Hosting Partner) will respond to the Customer's request and begin
work on the issue:
Severity Level Definition Initial
(Priority) Response
Time and
Channel
Critical Service Service is inoperative, Customer's 2 hours
is inoperative business operations or productivity are (phone or
severely impacted with no available email)
workaround, a critical security issue
exists.
Standard Service is operating but issue is 1 Business
(High) causing significant disruption of Day
Customer's business operations; (phone or
workaround is unavailable or email)
inadequate.
Standard Service is operating and issue's impact 1 Business
(Medium) on the Customer's business operations Day
is moderate to low; a workaround or (email)
alternative is available.
Standard(Low) Issue is a minor inconvenience and 1 Business
does not impact business operations in Day
any significant way; little or no time (email)
sensitivity.
2.3 Standard Service Requests.
2.3.1 Initiating Standard Service Requests. The Customer may initiate a Standard
Service Request by opening a ticket via the NextRequest in-app chat system.NextRequest support
team members or systems may also create tickets on the Customer's behalf in response to issues
identified by monitoring systems.
2.3.2 Response and Resolution. Once NextRequest has responded to a Service Request,
NextRequest will work during Business Hours with the Customer's representatives and, as needed,
our Hosting Partner to resolve the problem or provide a workaround. NextRequest makes no
guarantee regarding the time to resolve a Service Request, only that NextRequest will use the
reasonable efforts described above.
2.4 Critical Service Requests,
2.4.1 Initiating Critical Service Requests. The Customer may initiate a Critical Service
Document Ref:PRCHK-FDUEK-BRJNN-SZK68 Page 16 of 20
Request by calling NextRequest directly at 833-698-7778. The Customer will be directed to leave
contact information and a detailed description.
2.4.2 NextReguest's Response. NextRequest's support staff will contact the Customer
within 2 hours of receiving the Customer's report of a Critical Service Request and will work
continuously until the issue is resolved or a workaround is available.NextRequest will provide the
Customer with regular updates until the issue is resolved and will coordinate with the Customer
during Business Hours.
2.5 Customer Responsibilities. The Customer agrees to assist NextRequest as
necessary to resolve Service Requests and to provide any information NextRequest reasonably
requests, including information necessary to duplicate the issue. The Customer agrees to make
available personnel capable of understanding and accurately communicating technical details
necessary to enable NextRequest to review issues, and to assist NextRequest in diagnosing issues.
2.6 Bugs and Bug Reporting.
2.6.1 Bug Definition. A Bug is defined as any issue where the NextRequest application
does not function as intended. It is at the sole discretion of NextRequest staff to determine if an
issue is classified as a Bug. None of the Customer's Customer Support hours will be deducted for
reporting Bugs. The Customer may submit a Service Request in order to report a Bug.
2.7 Customer Support.
2.7.1 Customer Support Definition. Staff time spent by NextRequest assisting the
Customer or Customer's representatives after the Service Agreement has been signed is defined as
Customer Support. This may include helping users with account creation, account log in,
configuration, or understanding features. Customer Support hours exclude: bug reporting and
related discussions and fixes; regularly scheduled check-ins with NextRequest staff as specified in
the Order Form; and training sessions specified in the Order Form. The Customer may submit a
Service Request in order to receive Customer Support.
2.7.2 Premium Customer Support. Customers have an initial amount of Premium
Customer Support hours specified in their Order Form. These Customer Support hours will adhere
to the Service Request response times outlined in Sect. 2. Additional "Premium Customer
Support" may be purchased as needed.
2.7.3 Regular Customer Support. If a customer has exhausted their Premium Customer
Support hours they will continue to receive Regular Customer Support. Customers receiving
Regular Customer Support will receive the same level of support regarding Service Requests and
response times outlined in Sect. 2 with the exception that customers with Premium Customer
Support will take priority and have their issues addressed first.
3. Service Credits.
3.1 Issuance. If NextRequest fails to meet the response time stated above,the Customer will
Document Ref:PRCHK-FDUEK-BRJNN-SZKB8 Page 17 of 20
be entitled to a credit of 2 service hours for each hour during which the response time guarantee is
not met, up to a total of 8 hours per incident. The Customer must request a credit in writing via a
support ticket no later than 14 days following the occurrence of the event giving rise to the credit.
Credits will be applied to invoices issued in the future.
3.2 Sole Remedy. The credits stated in this Agreement are the Customer's sole remedy
in the event NextRequest fails to meet a guarantee for which credits are provided. If NextRequest
fails to perform any obligation for which a credit is not provided,the Customer's sole remedy is to
have NextRequest perform or re-perform the obligation, as applicable. The maximum total credit
for failure to meet any guarantee during any calendar month shall not exceed one twelfth of the
annual recurring fee for the NextRequest Service.
3.3 Credits for Downtime. During the term of the contract,the application will be operational
and available at least 99.9% of the time in any calendar month, with the exception of planned
outages for maintenance and upgrades in which NextRequest notifies the Customer twenty-four
(24) hours in advance. If NextRequest does not meet the SLA, the Customer will be eligible to
receive the service credits described below. In order to receive service credits,the Customer must
request the credit in writing via a support ticket within fourteen (14) days from the time the
Customer becomes eligible to receive a service credit.
Days of Service added to the end of the service term at
Monthly Uptime no charge to you
Percentage
<99.9%to>=
99.0% 3
<99.0%to>= 7
95.0%
<95.0% 15
3.4 Extraordinary Events. The Customer is not entitled to a credit for downtime or outages
resulting from denial-of-service attacks, hacking attempts, or any other circumstances that are not
within our control.
3.5 No Credit in Breach. The Customer is not entitled to a credit if: (i) the Customer is in
breach of the Agreement (including the Customer's payment obligations to NextRequest) at the
time of the occurrence of the event giving rise to the credit, (ii) the event giving rise to the credit
results from the Customer's prior breach of the Agreement, or(iii)to the extent our failure to meet
an Initial Response Time guarantee results from the Customer's delay or failure to meet the
requirements of Section 2.5 ("Customer Responsibilities") of this SLA.
Document Ref:PRCHK-FDUEK-BRJNN-SZKB8 Page 18 of 20
NEXTREQUEST, CO.
By:
Date:
08/30/2018
Tamara Manik-Perlman
Chief Executive Officer
CITY OF PASCO, WASHINGTON
By: / Date: "l re
Dave Zabet'I, City Manager
Attest:
Daniela Erickson, City Clerk
Approved as to Form:
By:
Leland B. Kerr, City Attorney
Document Ref:PRCHK-FDUEK-BRJNN-SZKB8 Page 19 of 20
ONextRequest
NextRequest Order Form - Pasco
Current Date: Aug 29,2018 1 (valid for 60 days from Current Date)
Customer Pasco Term Start September 1,2018
Address 525 N.3rd Ave.,Pasco,WA Term End August 31,2019
Contact Daniela Erickson Invoicing Invoiced Annually
Name Price QTY Subtotal
Annual NextRequest License $6,250.00 1 $6,250.00
• Record Request Management Module&Document Module
• Unlimited users in specified agency or departments
• Software as a Service(SaaS);fully hosted,maintained,and cloud-based
• Support: Dedicated customer success staff;responses in <_ 1 business day
Redaction Module(yearly) $750.00 1 $750.00
Unlimited users
Custom URL(yearly) $500.00 1 $500.00
Custom web domain for agency portal,e.g.records.examplecity.gov,default
would be examplecity.nextrequest.com
Set Up(one time) $1,500.00 1 $1,500.00
•Customer Success Plan+Application Configuration
•Two webinar training sessions(video recorded)
Subtotal $9,000.00
Total $9,000.00
nextrequest.com I 460 Brannan St.#77208,San Francisco,CA 94107 (info@nextrequest.com I(833)698-7778
Document Ref PRCHK-I=DU!KBRJNN-SZKB8