SOFTWARE SERVICES AGREEMENTOPENGOV SOFTWARE SERVICES AGREEMENT
OpenGov Terms and Conditions — Software Services Agreement
(Purchase through an OpenGov Authorized Reseller)
This Software Services Agreement (this "Agreement") is entered into by OpenGov, Inc., a Delaware corporation
with a principal place of business at 955 Charter Street, Redwood City, California 94063 ("OpenGov") and the
customer listed on the signature block below ("Customer"), as of the date of last signature below (the "Effective
Date"). This Agreement sets forth the terms under which Customer will be permitted to use OpenGov's hosted
software services.
1. DEFINITIONS
"Customer Data" means data that is provided by Customer to OpenGov pursuant to this Agreement (for
example, by email or through Customer's software systems of record). Customer Data shall not include any
confidential personally identifiable information.
"Documentation" means the documentation for the Software Services at the Customer Resource Center page
found at https://opengov.zendesk.com.
"Feedback" means suggestions, comments, improvements, ideas, or other feedback or materials regarding
the Software Services provided by Customer to OpenGov, including feedback provided through online developer
community forums.
"Initial Term" means the initial license term specified in number of years on the Order Form, commencing on
the Effective Date.
"Intellectual Property Rights" means all intellectual property rights including all past, present, and future rights
associated with works of authorship, including exclusive exploitation rights, copyrights, and moral rights, trademark
and trade name rights and similar rights, trade secret rights, patent rights, and any other proprietary rights in
intellectual property of every kind and nature.
"Order Form" means the Reseller Software Services order form that: (a) specifies the Software Services
provided by OpenGov; (b) references this Agreement; and (c) is signed by authorized representatives of both
parties.
"Renewal Term" means each additional renewal period, which shall be for a period of equal duration as the
Initial Term, for which this Agreement is extended pursuant to Section 7.2.
"Reseller" means the channel partner authorized to resell the Software Services.
2. SOFTWARE SERVICES, SUPPORT AND PROFESSIONAL SERVICES
2.1 Software Services. Subject to the terms and conditions of this Agreement, OpenGov will use commercially
reasonable efforts to perform the software services identified in the applicable Order Form entered into by OpenGov
and Customer ("Software Services").
2.2 Support. Customer support is available by email to support@opengov.com or by using the chat messaging
functionality of the Software Services, both of which are available during OpenGov's standard business hours.
Customer may report issues any time. However, OpenGov will address issues during business hours.
2.3 Professional Services.
(a) If Reseller or its authorized independent contractors provides professional services to Customer, such as
implementation services, then these professional services will be described in a statement of work ("SOW") agreed
to by the parties (the "Professional Services"). For Professional Services performed on a time and materials
basis, any pre -paid Professional Services Fees must be utilized within one (1) year from the Effective Date. Any
unused pre -paid Professional Services Fees shall be forfeited.
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(b) Unless the SOW provides otherwise, all reasonable travel expenses, pre -approved by Customer and
incurred by Reseller in performing the professional services will be reimbursed by Customer. Travel expenses
include cost of coach airfare travel round trip from the individual's location to Customer's location, reasonable hotel
accommodations, ground transportation and meals.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Restrictions. Customer may not use the Software Services in any manner or for any purpose other than as
expressly permitted by the Agreement. Customer shall not, and shall not permit or enable any third party to: (a)
use or access any of the Software Services to build a competitive product or service; (b) modify, disassemble,
decompile, reverse engineer or otherwise make any derivative use of the Software Services (except to the extent
applicable laws specifically prohibit such restriction); (c) sell, license, rent, lease, assign, distribute, display, host,
disclose, outsource, copy or otherwise commercially exploit the Software Services; (d) perform or disclose any
benchmarking or performance testing of the Software Services; (e) remove any proprietary notices included with
the Software Services; (f) use the Software Services in violation of applicable law; or (g) transfer any confidential
personally identifiable information to OpenGov or the Software Services platform.
3.2 Responsibilities. Customer shall be responsible for obtaining and maintaining computers and third party
software systems of record (such as Customer's ERP systems) needed to connect to, access or otherwise use the
Software Services. Customer also shall be responsible for: (a) ensuring that such equipment is compatible with the
Software Services, (b) maintaining the security of such equipment, user accounts, passwords and files, and (c) all
uses of Customer user accounts by any party other than OpenGov.
4. INTELLECTUAL PROPERTY RIGHTS; LICENSE GRANTS; ACCESS TO CUSTOMER DATA
4.1 Software Services. OpenGov retains all right, title, and interest in the Software Services and all Intellectual
Property Rights in the Software Services. The look and feel of the Software Services, including any custom fonts,
graphics and button icons, are the property of OpenGov and Customer may not copy, imitate, or use them, in whole
or in part, without OpenGov's prior written consent. Subject to Customer's obligations under this Agreement,
OpenGov hereby grants to Customer a non-exclusive, royalty -free license during the Term to use the Software
Services.
4.2 Customer Data. Customer retains all right, title, and interest in the Customer Data and all Intellectual Property
Rights therein. Customer hereby grants to OpenGov a non-exclusive, royalty -free license to, and permit its partners
to, use, store, edit and reformat the Customer Data, and to use Customer Data for purposes of sales, marketing,
business development, product enhancement, customer service, or for analyzing such data and publicly disclosing
such analysis ("Insights"), provided that in all such uses Customer Data is rendered anonymous such that
Customer is no longer identifiable.
4.3 Access to Customer Data. Customer may download the Customer Data from the Software Services at any
time during the Term, other than during routine software maintenance periods. OpenGov has no obligation to return
Customer Data to Customer.
4.4 Feedback. Customer hereby grants to OpenGov a non-exclusive, royalty -free, irrevocable, perpetual,
worldwide license to use and incorporate into the Software Services and Documentation Customer's Feedback.
OpenGov will exclusively own any improvements or modifications to the Software Services and Documentation
based on or derived from any of Customer's Feedback including all Intellectual Property Rights in and to the
improvements and modifications.
5. CONFIDENTIALITY
5.1 Each party (the "Receiving Party") agrees not to disclose any Confidential Information of the other party (the
"Disclosing Party") without the Disclosing Party's prior written consent, except as provided below. The Receiving
Party further agrees: (a) to use and disclose the Confidential Information only in connection with this Agreement;
and (b) to protect such Confidential Information using the measures that Receiving Party employs with respect to
its own Confidential Information of a similar nature, but in no event with less than reasonable care. Notwithstanding
the above, the Receiving Party may disclose Confidential Information to the extent required by law or court order,
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provided that prior written notice of such required disclosure and an opportunity to oppose or limit disclosure is
given to the Disclosing Party.
5.2 "Confidential Information" means all confidential business, technical, and financial information of the
disclosing party that is marked as "Confidential" or an equivalent designation or that should reasonably be
understood to be confidential given the nature of the information and/or the circumstances surrounding the
disclosure (including the terms of the applicable Software Agreement). OpenGov's Confidential Information
includes, without limitation, the software underlying the Software Services and all Documentation.
5.3 Notwithstanding the foregoing, "Confidential Information" does not include: (a) "Public Data," which is data
that the Customer has previously released to the public, would be required to release to the public, upon request,
according to applicable federal, state, or local public records laws, or Customer requests OpenGov make available
to the public in conjunction with the Software Services. Confidential Information does not include (b) information
that has become publicly known through no breach by the receiving party; (c) information that was rightfully received
by the Receiving Party from a third party without restriction on use or disclosure; or (d) information independently
developed by the Receiving Party without access to the Disclosing Party's Confidential Information.
6. PAYMENT OF FEES
6.1 Fees; Invoicing; Payment: Expenses.
(a) Fees. The fees for the Software Services for the Initial Term and any Renewal Term ("Software Services
Fees") and the fees for Professional Services ("Professional Services Fees") are set forth in the applicable Order
Form. Software Services Fees and Professional Services Fees shall hereafter be referred to as "Fees".
(b) Inflation Adiustment. The Fees payable for the Software Services during any Renewal Term shall increase
by 4% each year of the Renewal Term.
(c) Invoicing and Payment. Reseller will invoice the Customer according to the Billing Frequency listed on the
Order Form. Customer shall pay all invoices according to the Payment Terms listed on the Order Form.
(d) Travel Expenses. Unless the SOW provides otherwise, Reseller will invoice Customer for pre -approved
travel expenses incurred in connection with each SOW as they are incurred. Customer shall pay all such valid
invoices within thirty (30) days of receipt of invoice. Each invoice shall include receipts for the travel expenses listed
on the invoice.
6.2 Taxes. All Fees under this Agreement are exclusive of any applicable sales, value-added, use or other taxes
("Sales Taxes"). Customer is solely responsible for any and all Sales Taxes, not including taxes based solely on
OpenGov's net income. If any Sales Taxes related to the Fees under this Agreement are found at any time to be
payable, the amount may be billed by Reseller to, and shall be paid by, Customer. If Customer fails to pay any
Sales Taxes, then Customer will be liable for any related penalties or interest. In the event Customer or the
transactions contemplated by the Agreement are exempt from Sales Taxes, Customer agrees to provide Reseller,
as evidence of such tax exempt status, proper exemption certificates or other documentation acceptable to
OpenGov.
7. TERM & TERMINATION
7.1 Term. Subject to compliance with all terms and conditions, the term of this Agreement shall commence on the
Effective Date and shall continue until the Subscription End Date specified on the Order Form (the "Initial Term").
7.2 Renewal. Unless either party terminates this Agreement in writing no less than thirty (30) days before the end
of the Initial Term, this Agreement shall renew for another period of the same duration as the Initial Term (the
"Renewal Term" and together with the Initial Term, the "Term").
7.3 Termination. If either party materially breaches any term of this Agreement and fails to cure such breach within
thirty (30) days after notice by the non -breaching party (ten (10) days in the case of non-payment), the non -
breaching party may terminate this Agreement. Additionally, Customer may terminate this Agreement, upon
providing at least ninety (90) days notice prior to the annual anniversary date of the Agreement ("Anniversary
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Date") upon the occurrence of an Event of Nonappropriation as defined below. An "Event of Nonappropriation"
occurs when prior to each Anniversary Date: a) Customer uses all efforts that are lawful and within Customer's
official power, to secure the appropriate funds for the next year's Fees, including indicating the Software Services
serve an essential purpose to Customer; and b) Customer has not acquired, used or issued a proposal for similar
products or services during this period or has not hired any third party or allowed its own employees to use other
services in place of the Software Services. Customer shall permit OpenGov to assist with the efforts in a) above,
including providing OpenGov with direct access to Customer's applicable appropriations team.
7.4 Effect of Termination.
(a) In General. Upon termination or expiration of this Agreement: (a) Customer shall pay in full for all Software
Services and Professional Services performed up to and including the effective date of termination, (b) all Software
Services provided to Customer hereunder shall immediately terminate; and (c) each party shall return to the other
party or, at the other party's option, destroy all Confidential Information of the other party in its possession.
(b) Deletion of Customer Data. If Customer requests deletion of its Customer Data in writing prior to the date
of termination or expiration of this Agreement, then OpenGov will permanently and irrevocably delete Customer
Data, excluding any Insights, stored by its cloud hosting provider within ten (10) days of the date of termination or
expiration of this Agreement. Such request must be addressed to "OpenGov Vice President, Customer Success"
at OpenGov's address for notice described at Section 10.
7.5 Survival. The following sections of this Agreement shall survive termination: Section 5 (Confidentiality), Section
6 (Payment of Fees), Section 7.4(b) (Deletion of Customer Data), Section 8.3 (Warranty Disclaimer), Section 9
(Limitation of Liability) and Section 10 (Miscellaneous).
8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
8.1 By OpenGov.
(a) General Warranty. OpenGov represents and warrants that: (i) it has all right and authority necessary to
enter into and perform this Agreement.
(b) Software Services Warranty. OpenGov further represents and warrants that for a period of ninety (90)
days, the Software Services will perform in all material respects in accordance with the Documentation. The
foregoing warranty does not apply to any Software Services that have been used in a manner other than as set
forth in the Documentation and authorized under this Agreement. OpenGov does not warrant that the Software
Services will be uninterrupted or error -free. Any claim submitted under this Section 8.1(b) must be submitted in
writing to OpenGov during the Term. OpenGov's entire liability for any breach of the foregoing warranty is to repair
or replace any nonconforming Software Services so that the affected portion of the Software Services operates as
warranted or, if OpenGov is unable to do so, terminate the license for such Software Services and refund the pre-
paid, unused portion of the Fee for such Software Services.
8.2 By Customer. Customer represents and warrants that (i) it has all right and authority necessary to enter into
and perform this Agreement; and (ii) OpenGov's use of the Customer Data pursuant to this Agreement will not
infringe, violate or misappropriate the Intellectual Property Rights of any third party.
8.3 Disclaimer. OPENGOV DOES NOT WARRANT THAT THE SOFTWARE SERVICES WILL BE
UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT
MAY BE OBTAINED FROM USE OF THE SOFTWARE SERVICES. EXCEPT AS SET FORTH IN THIS SECTION
8, THE SOFTWARE SERVICES ARE PROVIDED "AS IS" AND OPENGOV DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON -INFRINGEMENT.
9. LIMITATION OF LIABILITY
9.1 By Type. NEITHER PARTY, NOR ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES,
CONTRACTORS OR EMPLOYEES, SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT
MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER
THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OF DATA OR COST
OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR LOSS OF BUSINESS; (B) FOR ANY
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INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES; OR (C) FOR
ANY MATTER BEYOND SUCH PARTY'S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
9.2 By Amount. IN NO EVENT SHALL EITHER PARTY'S AND RESELLER'S AGGREGATE, CUMULATIVE
LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED
THE FEES PAID BY CUSTOMER TO RESELLER (OR, IN THE CASE OF CUSTOMER, PAYABLE) FOR THE
SOFTWARE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE
RISE TO THE LIABILITY.
9.3 Limitation of Liability Exclusions. The limitations of liability set forth in Sections 9.1 and 9.2 above do not apply
to, and each party accepts liability to the other for: (a) claims based on either party's intentional breach of its
obligations set forth in Section 5 (Confidentiality), (b) claim arising out of fraud or willful misconduct by either party
and (c) either party's unauthorized use, distribution, or disclosure of the other party's intellectual property.
9.4 No Limitation of Liability by Law. Because some jurisdictions do not allow liability or damages to be limited to
the extent set forth above, some of the above limitations may not apply to Customer.
9.5 Nothing contained in this Agreement is intended to nor shall it be construed as a waiver of any immunity from
or limitation from liability that the Customer is entitled to under the doctrine of sovereign immunity (Section 768.28,
Florida Statutes). Nothing herein shall be construed as consent by the Customer to be sued by third parties in any
manner arising out of this Agreement.
10. MISCELLANEOUS
10.1 Logo Use. OpenGov shall have the right to use and display Customer's logos and trade names for marketing
and promotional purposes in connection with OpenGov's website and marketing materials, subject to Customer's
trademark usage guidelines provided to OpenGov.
10.2 Notice. Ordinary day-to-day operational communications may be conducted by email, live chat or telephone
communications. However, for notices required by the Agreement (in Sections where the word "notice" appears)
the parties must communicate more formally in a writing given by personal delivery, by pre -paid first-class mail or
by overnight courier to the address specified in the most recent Order Form (or such other address as may be
specified in writing in accordance with this Section).
10.3 Anti -corruption. OpenGov and Reseller has not offered or provided any bribe, kickback, illegal or improper
payment, gift, or thing of value to any Customer personnel in connection with the Agreement, other than reasonable
gifts and entertainment provided Customer in the ordinary course of business. If OpenGov become aware of any
violation of the above restriction then OpenGov shall promptly notify Customer.
10.4 Injunctive Relief. The parties acknowledge that any breach of the confidentiality provisions or the unauthorized
use of a party's intellectual property may result in serious and irreparable injury to the aggrieved party for which
damages may not adequately compensate the aggrieved party. The parties agree, therefore, that, in addition to
any other remedy that the aggrieved party may have, it shall be entitled to seek equitable injunctive relief without
being required to post a bond or other surety or to prove either actual damages or that damages would be an
inadequate remedy.
10.5 Force Maieure. Neither party shall be held responsible or liable for any losses arising out of any delay or failure
in performance of any part of this Agreement, other than payment obligations, due to any act of god, act of
governmental authority, or due to war, riot, labor difficulty, failure of performance by any third -party service, utilities,
or equipment provider, or any other cause beyond the reasonable control of the party delayed or prevented from
performing.
10.6 Severability: Waiver. If any provision of this Agreement is found to be unenforceable or invalid, that provision
will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full
force and effect and enforceable. Any express waiver or failure to exercise promptly any right under this Agreement
will not create a continuing waiver or any expectation of non -enforcement. There are no third -party beneficiaries to
this Agreement.
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10.7 Assignment. Except as set forth in this Section, neither party shall assign, delegate, or otherwise transfer this
Agreement or any of its rights or obligations to a third party without the other party's prior written consent, which
consent shall not be unreasonably withheld, conditioned, or delayed. Either party may assign, without such consent
but upon written notice, its rights and obligations under this Agreement to: (i) its corporate affiliate; or (ii) any entity
that acquires all or substantially all of its capital stock or its assets related to this Agreement, through purchase,
merger, consolidation, or otherwise. Any other attempted assignment shall be void. This Agreement shall inure to
the benefit of and bind each party's permitted assigns and successors.
10.8 Independent Contractors. No agency, partnership, joint venture, or employment is created as a result of this
Agreement and neither party has any authority of any kind to bind the other party in any respect.
10.9 Attorneys' Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will
be entitled to recover costs and attorneys' fees.
10.10 Complete Agreement. This Agreement is the complete and exclusive statement of the mutual understanding
of the parties and supersedes and cancels all previous written and oral agreements, communications, and other
understandings relating to the subject matter of this Agreement. No modification of this Agreement will be binding,
unless in writing and signed by an authorized representative of each party.
10.11 Governing Law. This Agreement shall be administered and interpreted under the laws of the State of
Florida. The exclusive venue for any proceeding or suit in law or equity arising from or incident to this Agreement
will be in Pinellas County Florida.
10.12 10.12 Insurance. During the course of performing services under this Agreement, OpenGov agrees to
maintain the following levels of insurance: (a) Commercial General Liability of at least $1,000,000; (b) Professional
Liability (E&O) of at least $1,000,000; (c) Cyber Liability of at least $1,000,000; (d) Commercial Auto Insurance for
Hire and Non -owned vehicles of at least $1,000,000; and (e) Workers Compensation complying with applicable
statutory requirements. OpenGov will add Customer as an additional insured, primary and noncontributory, to our
Commercial General Liability policy. OpenGov will provide Customer with copies of certificates of insurance upon
Customer's written request.
Customer: City of Clearwater, FL,
Signature:
Name:
Title:
Date:
OPENGOV, INC.
Signature:
Name:
Title:
Date:
e—DocuSigned by:
-6151AD9171B644C...
Sean Wani
General counsel
9/9/2019
**SEE ATTACHED SIGNATURE PAGE FOR CITY OF
CLEARWATER SIGNATURES**
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Countersigned:
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George N. Cretekos
Mayor
Apprp d as to form:
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Owen Kohler
Assistant City Attorney
CITY OF CLEARWATER, FLORIDA
By:
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William B. Horne II
City Manager
Attest:
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'rod= Rosemarie Call
City Clerk