Polco Confluence Inc. ~ C230026 ~
CITY OF TIGARD - CONTRACT SUMMARY & ROUTING FORM
Contract Overview
Contract/Amendment Number: C230026a1
Contract Start Date: 01/13/2023 Contract End Date: 01/12/2026
Contract Title: National Community Survey Polling
Contractor Name: Polco Confluence, Inc.
Contract Manager: Nicole Hendrix
Department: CM
Contract Costs
Original Contract Amount: $23,150.00
Total All Previous Amendments: n/a
Total of this Amendment: $20,450.00
Total Contract Amount: $43,600.00
Procurement Authority
Contract Type: Information Technology Vendor Agreement
Procurement Type: Intermediate Quotes $10K<=$150K
Solicitation Number: n/a
LCRB Date: n/a
Account String: Fund-Division-Account Work Order – Activity Type Amount
FY 24 6001000-54001 $20,450.00
Contracts & Purchasing Approval
Purchasing Signature:
Comments: Extending agreement for 2 years of service.
DocuSign Routing
Route for Signature Name Email Address
Contractor Alex Pederson alex@polco.us
City of Tigard Kathy Nyland kathyn@tigard-or.gov
Final Distribution
Contractor Alex Pederson alex@polco.us
Contractor PM Alec Vice avice@polco.us
City Signer Kathy Nyland kathyn@tigard-or.gov
Project Manager Nicole Hendrix nicoleh@tigard-or.gov
Project Manager Alex Richardson alex.richardson@tigard-or.gov
Buyer Rosie McGown rosie.mcgown@tigard-or.gov
Amendment to Contract C230026 for Services No. 1
This Amendment to the Contract for Services (“Agreement”) is entered into on
_________________ by and between Policy Confluence, Inc., a Delaware corporation(“Polco”
or “Company”), and City of Tigard, OR an Oregon municipality (“Customer”).
Whereas, the Customer and Polco entered into an Agreement effective January 13,
2023 and
Whereas, the parties desire to amend the Agreement;
Now, therefore, in consideration of the benefits and obligations of this Agreement, the
Parties mutually agree as follows:
1. Following the Initial Term of the Agreement, ending January 12, 2024, the Agreement shall
renew for an additional twenty-four (24) month period and will expire on January 12, 2026.
2. The Company shall provide the new services described on the new scope of work below in
Schedule A and the Customer agrees to compensate the Company for such new services as
described in Schedule A.
3. The Enterprise Terms and Conditions are amended as attached in Exhibit A.
POLICY CONFLUENCE, INC
By:
Name:
Title:
City of Tigard, OR :
By:
Name:
Title:
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Alex Pedersen
CSO
4/15/2024
Kathy Nyland
Assistant City Manager, E&I
Schedule A
Fee Type Name Fee
Software
Service
Subscription
Polco Engage Module(All) + Assess Module (50k-100k
Population) - 2025 The National Community Survey® (The
NCS®)
Assess: (Formerly Performance) Per assessment, per iteration. The
National Community Survey® (The NCS®): The nation’s most trusted
community assessment of resident opinion.
Engage: Unlimited surveys, polls, and live events for resident input and
measuring resident satisfaction on a variety of livability topics.
$18,5002-Years
$17,000/2-Years
Subscription Additional Page of Custom Questions
We recognize that while you are making this larger effort to get input from
your residents you may want to add a few custom items. This is not
included in the Assess Module, but can be added.
$4,800/2-years
$3,450/2-years(Spanish
Translation Credit)
Total: $20,450/2-years
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Exhibit A
Enterprise Terms and Conditions
These Enterprise Terms and Conditions (“Enterprise Terms”), along with the terms of the Agreement,
shall govern the provision of the Services by Policy Confluence, Inc., a Delaware corporation (“Polco”
or “Company”), to the entity or person identified on the Order Form as the purchaser (“Customer”).
Customer and Company are each referred to herein as a “Party” and are collectively referred to
herein as the “Parties.” All capitalized terms used but not defined herein shall have the respective
meanings ascribed to them under the Order Form. The Order Form, Website Terms, and these
Enterprise Terms collectively referred to as the “Agreement”.
1. Definitions.
"Authorized User" means each of the individuals authorized to use the Services (defined below in
Section 2.1) or Polco Materials pursuant to the terms and conditions of this Agreement, or any
additional individuals or Persons authorized to use the Services or Polco Materials as approved
solely by Polco, as set forth in the applicable Order Form.
"Customer Data” means, information, data and other content, other than Resultant Data in any form
or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer
or an Authorized User by or through the Services or that incorporates or is derived from the
Processing of such information, data or content by or through the Services.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied
for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark,
trade secret, database protection or other intellectual property rights laws, and all similar or
equivalent rights or forms of protection, in any part of the world.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity,
governmental authority, unincorporated organization, trust, association or other entity.
“Polco Materials” means any and all other information, data, documents, materials, works and other
content, devices, methods, processes, hardware, software and other technologies and inventions,
including any deliverables, technical or functional descriptions, requirements, plans or reports, that
are provided or used by Polco in connection with the Services or otherwise comprise or relate to the
Services. For the avoidance of doubt, Polco Materials include Resultant Data and any information,
data or other content derived from Polco’s monitoring of Customer's access to or use of the
Services, but do not include Customer Data.
“Process” means to take any action or perform any operation or set of operations that the Services 1
are capable of taking or performing on any data, information or other content. “Processing” and “
Processed” have correlative meanings.
"Representatives" means, with respect to a party, that party's and its affiliates' employees, officers,
directors, consultants, agents, independent contractors, service providers, and legal advisors.
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“Resultant Data” means information, data and other content that is derived by or through the
Services from Processing Customer Data, including, without limitation, statistics and Services
analytics, and is sufficiently different from such Customer Data that such Customer Data cannot be
reverse engineered or otherwise identified from the inspection, analysis or further Processing of
such information, data or content.
2. Services.
2.1. Services. The Company offers a variety of and products and services accessible through the
Company’s website https://polco.us (the “Website”) free of charge including promoting civic
engagement by providing tutorials, example questions, sample result dashboards, and a library of
best civic engagement practices and other such functionality as may be provided from time to time
(collectively, the "Free Content and Services"). During the Term (defined below in Section 7.1) and
subject to the and conditioned on Customer’s and its Authorized Users’ compliance with the terms
and conditions of this Agreement, Polco shall use commercially reasonable efforts to provide to
Customer and its Authorized Users (a) the Free Content and Services, and (b) any custom survey
services as described in appliable Order Form and this Agreement (the “Custom Services,” together
with Free Content and Services, the “Services”). Polco will use commercially reasonable efforts to
make the Services available to the Customer twenty-four (24) hours per day, seven (7) days per week
every day of the year, except for: (i) Service downtime or degradation due to a Force Majeure Event
(defined below in Section 12); (ii) any other circumstances beyond Polco’s reasonable control,
including Customer’s or any Authorized User’s use of third party materials or use of the Services
other than in compliance with the express terms of this Agreement or the Terms of Use; and (iii) any
suspension or termination of Customer’s or any Authorized Users’ access to or use of the Services
as permitted by this Agreement or the Terms of Use.
2.2. Service and System Control. Except as otherwise expressly provided in this Agreement, as
between the parties: (a) Company has and will retain sole control over the operation, provision,
maintenance, and management of the Services; and (b) Customer has the responsibility for making
all arrangements necessary for Customer to have access to the Website and ensuring that all
persons who access the Website through Customer’s internet connection are aware of this
Agreement, the Terms of Use, and the Privacy Policy, and comply therewith.
2.3. Changes. Polco reserves the right, in its sole discretion, to make any changes to the Services or
Polco Materials that it deems necessary or useful to: (a) maintain or enhance the quality or delivery
of Polco’s services to its customers, or (b) to comply with applicable law. Without limiting the
foregoing, either party may, at any time during the Term, request in writing changes to the Services
or Polco Materials. The parties shall evaluate and, if agreed, implement all such requested changes.
No requested changes will be effective unless and until memorialized in a written change order
signed by both parties.
2.4. Suspension or Termination of Services. Polco may suspend, terminate or otherwise deny
Customer’s or any Authorized User’s access to or use of all or any part of the Services or Polco
Materials if: (a) Polco believes, in its sole discretion, that Customer or any Authorized User has failed
to comply with, any term of this Agreement, or accessed or used the Services or Polco Materials
beyond the scope of the rights granted or for a purpose not authorized under this Agreement; or (b)
this Agreement expires or is terminated. This Section 2.4 does not limit any of Polco’s other rights or
remedies, whether at law, in equity or under this Agreement.
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3. Authorization and Customer Restrictions.
3.1. Authorization. Subject to and conditioned on Customer’s payment of the fees and compliance
and performance in accordance with all other terms and conditions of this Agreement, Polco hereby
authorizes Customer to access and use, solely during the Term, the Services and Polco Materials as
Polco may supply or make available to Customer. This authorization is non-exclusive and, other than
as may be expressly set forth in Section 13.6, non-transferable. Notwithstanding the foregoing,
Polco hereby grants to Customer a perpetual, royalty-free, non-transferable license to use any
tangible Polco Materials provided to Customer by or through the Services during the Term, which
license shall survive the termination of this Agreement.
3.2. Limitations and Restrictions. Customer shall not, and shall not permit any other Person to,
access or use the Services or Polco Materials except as expressly permitted by this Agreement. For
purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as
this Agreement expressly permits:
(a) copy, modify or create derivative works or improvements of the Services or Polco Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available
any Services or Polco Materials to any Person, including on or in connection with the internet or any
time-sharing, service bureau, software as a service, cloud or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain
access to the source code of the Services, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or access or use the
Services other than by an Authorized User through the use of his or her own then valid access
credentials;
(e) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any
manner the Services or Polco’s provision of services to any third party, in whole or in part;
(f) access or use the Services or Polco Materials in any manner or for any purpose that infringes,
misappropriates or otherwise violates any Intellectual Property Right or other right of any third party
(including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure
of the data of any other Polco customer), or that violates any applicable law;
(g) access or use the Services or Polco Materials for purposes of competitive analysis of the
Services, the development, provision or use of a competing software service or product or any other
purpose that is to Polco’s detriment or commercial disadvantage; or
(h) otherwise access or use the Services or Polco Materials beyond the scope of the authorization
granted under Section 3.1.
3.3. Customer Responsibilities. Except as otherwise determined by Polco, Customer shall be
responsible for obtaining and maintaining any equipment and ancillary services needed to connect
to, access or otherwise use the Services, including, without limitation, modems, hardware, servers,
software,
operating systems, networking, web servers and the like (collectively, “Equipment”). In the event
Polco obtains or provides any such Equipment, Polco shall only be responsible for maintaining such
Equipment. Customer shall also be responsible for maintaining the security of the Equipment,
Customer account, passwords (including but not limited to administrative and user passwords) and
files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge
or consent.
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4. Fees; Payment Terms.
4.1. Fees. Customer shall pay Polco the fees (“Fees”) for the Services on or prior to the Invoice Date
set forth in the applicable Order Form , which shall be payable to Polco in US dollars in the amounts
and pursuant to the payment schedules set forth on the applicable Order Form. To the extent Fees
are not set forth on the applicable Order Form Polco may, in its sole discretion, modify and increase
Fees upon providing written notice to Customer at least sixty (60) calendar days prior to the
commencement of any Renewal Term, and the applicable Agreement will be deemed amended
accordingly.
4.2. Taxes. All fees and other amounts payable by Customer under this Agreement are exclusive of
taxes and similar assessments. Customer 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 Customer hereunder, other than
any taxes imposed on Polco’s income.
5. Intellectual Property Rights.
5.1. Ownership of Services and Polco Materials. All right, title and interest in and to the Services,
Polco Materials and the Resultant Data, including all Intellectual Property Rights therein, are and will
remain with Polco. Customer has no right, license or authorization with respect to any of the
Services or Polco Materials except as expressly set forth in Section 3.1. All other rights in and to the
Services and Polco Materials are expressly reserved by Polco and the respective third-party
licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to
Polco an assignment of all right, title and interest in and to the Resultant Data, including all
Intellectual Property Rights relating thereto.
6. Confidentiality.
6.1. Confidential Information. In connection with this Agreement, each party (as the "Disclosing Party
") may disclose or make available Confidential Information to the other party (as the "Receiving Party
"). "Confidential Information" means information in any form or medium (whether oral, written,
electronic or other) that the Disclosing Party considers confidential or proprietary, including, but not
limited to, information relating to the Disclosing Party’s technology, software, code, and trade
secrets, designated or otherwise identified as "Confidential". Without limiting the foregoing, all Polco
Materials are the Confidential Information of Polco. Confidential Information does not include
information that the Receiving Party can demonstrate by written or other documentary records: (a)
was rightfully known to the Receiving Party without restriction on use or disclosure prior to such
information's being disclosed or made available to the Receiving Party in connection with this
Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or
any of its Representatives' noncompliance with this Agreement; (c) was or is received by the
Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of
such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently
developed by the Receiving Party without reference to or use of any Confidential Information.
6.2. Protection of Confidential Information. As a condition to being provided with any disclosure of
or access to Confidential Information, the Receiving Party shall for three (3) years after the Term: (a)
not access or use Confidential Information other than as necessary to exercise its rights or perform
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its obligations under and in accordance with this Agreement; (b) not disclose or permit access to
Confidential Information other than to its Representatives who: (i) need to know such Confidential
Information for purposes of performing obligations under and in accordance with this Agreement; (ii)
are informed of the confidential nature of the Confidential Information and bound by written
confidentiality and restricted use obligations at least as protective as the terms set forth in this
Section 6.2; (c) safeguard the Confidential Information from unauthorized use, access or disclosure
using at least the degree of care it uses to protect its most sensitive information and in no event less
than a reasonable degree of care; and (d) ensure its Representatives' compliance with the terms of
this Section 6.
6.3. Residual Works. In addition to other rights and provisions in this Agreement, Polco shall be free
to use for any purpose the Resultant Data resulting from access to or work with the Confidential
Information or any information or ideas provided by Customer with respect to the Services.
6.4. Feedback. The Customer may from time to time provide suggestions, comments or other
feedback ("Feedback") to Polco with respect to the Services. Both parties agree that all Feedback is
and shall be given entirely voluntarily. Feedback, even if designated as confidential by Customer,
shall not, absent a separate written agreement, create any confidentiality obligation for Polco.
Furthermore, except as otherwise provided herein or in a separate subsequent written agreement
between the parties, Polco will own the Feedback and shall be free to use, disclose, protect (e.g.,
patent, copyright, trademark, trade secret, etc.), reproduce, license or otherwise distribute, and
exploit the Feedback provided to it as it sees fit.
6.5. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by
applicable law to disclose any Confidential Information then, to the extent permitted by applicable
law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party
in writing of such requirement so that the Disclosing Party can seek a protective order or other
remedy or waive its rights under Section 6; and (b) provide reasonable assistance to the Disclosing
Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If
the Disclosing Party waives compliance or, after providing the notice and assistance required under
this Section 6.5, the Receiving Party remains required by law to disclose any Confidential
Information, the Receiving Party shall disclose only that portion of the Confidential Information that
the Receiving Party is legally required to disclose.
7. Term and Termination.
7.1. Term. The initial term of this Agreement shall be for a period of twenty-four (24) months from
the Effective Date ("Initial Term").
7.2. Termination. In addition to any other express termination right set forth elsewhere in this
Agreement:
(a) Polco may terminate this Agreement, effective immediately upon written notice to Customer, if
Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than
thirty (30) days after the date such amounts are due; or (ii) breaches any of its obligations under
Section 3.2 (Limitations and Restrictions) or Section 6 (Confidentiality);
(b) either Party may terminate this Agreement, effective on written notice to the other Party, if the
other Party materially breaches this Agreement, and such breach: (a) is incapable of cure; or (b)
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being capable of cure, remains uncured 30 days after the non-breaching party provides the
breaching party with written notice of such breach; or
(c) either party may terminate this Agreement, effective immediately upon written notice to the other
party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts
as they become due; (ii) 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; (iii) makes or seeks to make a general assignment for the
benefit of its creditors; or (iv) 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.
7.3. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement,
except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents and authorizations (including, without limitation, access to the
Services) granted by either party to the other hereunder will immediately terminate;
(b) Customer shall immediately cease all use of any Services and Polco Materials and (i) promptly
return to Polco, or at Polco’s written request destroy, all documents and tangible materials
containing, reflecting, incorporating or based on Polco’s Confidential Information; and (ii)
permanently erase Polco’s Confidential Information from all systems Customer directly or indirectly
controls; except to the extend and for so long as required by applicable law and all such information
and materials will remain subject to all confidentiality requirements of this Agreement;
(c) Polco may disable all Customer and Authorized User access to the Services; and
(d) if Polco terminates this Agreement pursuant to Section 7.2, all Fees that would have become
payable had the Agreement remained in effect until expiration of the Term will become immediately
due and payable.
7.4. Surviving Terms. The provisions set forth in the following sections, and any other right or
obligation of the parties in this Agreement that, by its nature, should survive termination or expiration
of this Agreement, will survive any expiration or termination of this Agreement: Section 3.2, Section 5
, Section 6, Section 7.3, this Section 7.4, Section 8, Section 9, Section 10, Section 11, and Section 13.
8. Representations and Warranties.
8.1. Representations and Warranties. Customer represents and warrants to Polco that it has the full
right, power and authority to enter into and perform its obligations and grant the rights, licenses,
consents and authorizations it grants or is required to grant under this Agreement; and Customer
owns or otherwise has and will have the necessary rights and consents in and relating to the
Customer Data so that, as received by Polco and Processed in accordance with this Agreement, they
do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or
any privacy or other rights of any third party or violate any applicable law. Additionally, Customer
represents and warrants that Customer will use (and will cause any Authorized Users to use) the
Services and Polco Materials only in compliance this Agreement, and all applicable laws and
regulations.
8.2. DISCLAIMER OF WARRANTIES. ALL SERVICES ARE PROVIDED “AS IS” AND POLCO HEREBY
DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND POLCO
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
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PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM
COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, POLCO
MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF
THE USE THEREOF, WILL MEET CUSTOMER’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. ANY THIRD-PARTY MATERIALS ARE PROVIDED “AS IS”
AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS
IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE
THIRD-PARTY MATERIALS.
9. Indemnification.
9.1. Indemnification.
(a)Subject to the limitations of the Oregon Tort Claims Act, Customer shall indemnify, hold harmless
and defend Polco and its their respective officers, directors, employees, agents, successors and
assigns from and against any and all losses, liability, claims, damages, actions, penalties, costs, or
expenses of whatever kind, including actual attorneys’ fees and the costs of enforcing any right to
indemnification under this Agreement, arising out of or relating to (a) any negligent act or omission
or willful misconduct by Customer or any Authorized Users in connection with use of the Services;
(b) Customer’s or any Authorized User’s use of the Services or Polco Materials other than as
expressly allowed by this Agreement; (c) Customer’s or any Authorized User’s breach of this
Agreement; or (d) any actual or alleged infringement of a third party's Intellectual Property Rights
resulting from Customer’s or any Authorized User’s modifications and/or combinations of the
Services or Polco Materials. Customer shall inform Polco as soon as practicable of any claim or
action alleging such infringement or unauthorized disclosure.
(b) Polco shall indemnify, hold harmless and defend Customer and its respective officers, directors,
employees, agents, successors and assigns from and against any and all losses, liability, claims,
damages, actions, penalties, costs, or expenses of whatever kind, including actual attorneys’ fees
and the costs of enforcing any right to indemnification under this Agreement, arising out of or
relating (a) any negligent act or omission or willful misconduct by Polco in connection with use of
the Services; (b) Polco’s breach of this Agreement; or (c) any actual or alleged infringement of a third
party's Intellectual Property Rights resulting from the use of the Services or Polco Materials. Polco
shall inform Customer as soon as practicable of any claim or action alleging such infringement or
unauthorized disclosure.
10. Mitigation.
10.1. Mitigation. If any of the Services or Polco Materials are, or in Polco's opinion are likely to be,
claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or
if Customer's or any Authorized User's use of the Services or Polco Materials is enjoined or
threatened to be enjoined, Polco may, at its option and sole cost and expense: (a) obtain the right for
Customer to continue to use the Services and Polco Materials materially as contemplated by this
Agreement; (b) modify or replace the Services and Polco Materials, in whole or in part, to make the
Services and Polco Materials non-infringing, or (c) by written notice to Customer, terminate this
Agreement with respect to all or part of the Services and Polco Materials, and require Customer to
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immediately cease any use of the Services and Polco Materials or any specified part or feature
thereof. THIS SECTION 10.1 SETS FORTH CUSTOMER'S SOLE REMEDIES AND POLCO’S SOLE
LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS
AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND POLCO
MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY
INTELLECTUAL PROPERTY RIGHT.
11. Limitations of Liability.
11.1. EXCLUSION OF DAMAGES. IN NO EVENT WILL POLCO OR ANY OF ITS LICENSORS, SERVICE
PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS
SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a)
LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b)
IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS,
DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR
(d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE
DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF
SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE,
AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL
PURPOSE.
11.2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY
OF POLCO AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY,
INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND
OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID BY THE CUSTOMER TO POLCO WITHIN THE
IMMEDIATELY PRECEDING 12 MONTHS. THE FOREGOING LIMITATION APPLIES
NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL
PURPOSE.
12. Force Majeure. In no event will Polco be liable or responsible to Customer, or be deemed to have
breached this Agreement, for any failure or delay in fulfilling or performing any term of this
Agreement, when and to the extent such failure or delay is caused by any circumstances beyond
Polco’s reasonable control (a “Force Majeure Event”), including, but not limited to, failures or
interruptions of communications facilities or equipment of third parties, labor strikes or slowdowns,
shortages of resources or materials, acts of God, natural disasters, fire, world events, delay or
disruption of shipment or delivery, trespass or interference of third parties, or similar events or
circumstances outside Polco’s reasonable control, whether or not otherwise enumerated. Either
party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted
for a period of thirty (30) days or more.
13. General Provisions.
13.1. Further Assurances. Upon a party’s reasonable request, the other party shall, at the requesting
party’s sole cost and expense, execute and deliver all such documents and instruments, and take all
such further actions, necessary to give full effect to this Agreement.
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13.2. No Agency. Nothing in this Agreement shall be construed to create a partnership, joint venture
or agency relationship between the parties.
13.3. Notices. All notices, requests, claims, demands and other communications hereunder shall be
in writing by electronic mail or other electronic means to the address of the party specified by the
parties from time to time.
13.4. Headings. The headings in this Agreement are for reference only and do not affect the
interpretation of this Agreement.
13.5. Notices sent in accordance with the notice provisions in the Order Form will be deemed
effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b)
when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent,
if by email, (with confirmation of transmission), if sent during the addressee’s normal business
hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on
the fifth day after the date mailed by certified or registered mail, return receipt requested, postage
prepaid.
13.6. Assignment. Customer shall not assign or otherwise transfer any of its rights or obligations
under this Agreement without Polco’s prior written consent, which consent Polco may give or
withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its
generality, any merger, consolidation or reorganization involving Customer will be deemed to be a
transfer of rights or obligations under this Agreement for which Polco’s prior written consent is
required. No delegation or other transfer will relieve Customer of any of its obligations or
performance under this Agreement. Any purported assignment, delegation or transfer in violation of
this Section 13.6 is void. Polco shall not assign or otherwise transfer its rights or obligations under
this Agreement without Customer’s prior written consent, unless such assignment or transfer is to
an affiliate or in connection with a sale of all or substantially part of Polco’s business to which such
rights and obligations pertain. This Agreement is binding upon and inures to the benefit of the
parties hereto and their respective permitted successors and assigns.
13.7. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is
effective unless it is in writing and signed by each party. No waiver by any party of any of the
provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so
waiving.
13.8. Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of
this Agreement 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 hereto shall negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties 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.
13.9. Governing Law; Venue. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Wisconsin. The parties submit all of their disputes arising
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out of or in connection with this Agreement to the exclusive jurisdiction of the state and/or federal
courts located in Washington County, the State of Oregon.
13.10. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have
to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the
transactions contemplated hereby.
13.11. Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by
Customer of any of its obligations under Section 3.2 or Section 6 would cause Polco irreparable
harm for which monetary damages would not be an adequate remedy and agrees that, in the event
of such breach or threatened breach, Polco will be entitled to equitable relief, without any
requirement to post a bond. Such remedies are in addition to all other remedies that may be
available at law, in equity or otherwise.
13.12. Counterparts. This Agreement may be executed in counterparts, including by facsimile or pdf,
each of which shall be deemed to be an original, but all of which, taken together, shall constitute one
and the same agreement. The Parties may execute this Agreement and any amendment hereto in
the form of an electronic record utilizing electronic signatures, as such terms are defined in the
Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001, et. seq.). Electronic
signatures, or signatures transmitted electronically via PDF or similar file delivery method is legal,
valid, and binding upon execution and delivery for all purposes and each shall have the same effect
as an original signature.
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