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CM OpenGov 2018 AmendmentDocuSign Envelope 10: 1DF7B852-FAEC-4FDC-A8F4-449B930D6325 OPENGOV, INC. AMENDED AND RESTATED SOFTWARE AGREEMENT 6) OPENGOV Contract Effective Date Contract End Date Contract Term 2/1/2018 1/31/2019 12 Months CUSTOMER INFORMATION City of San Rafael, CA Rebecca Woodbury OpenGov, Inc. 955 Charter Street Redwood City, CA 94063 United States Prepared By Title Email Address Bill To Name Bill To Address Greg Balter Account Executive gbalter@opengov.com City of San Rafael, CA PO Box 151560 Customer Name Contact Name Phone Email Address 415-485-3070 rebecca.woodbury@cityofsanrafael.org San Rafael, CA 94901 United States ORDER DETAILS Solution OpenGov Reporting & Analysis and Budget Builder CRED IT for Prepaid Unused Fees for OpenGov Reporting & Analysis and Budget Bui lder services from 2/1/2018 through 9/24/2018 at $23,500.00 Annual Rate OpenGov Performance Measures and Stories Annual Fee Billing Frequency $34,500.00 Annual Effective Date 2/1/2018 2/1 /2018 21112018 End Date Annual Fee Total Price 1/31/2019 $18,500.00 $18,500.00 9/24/2018 $0.00 -$15 ,194.52 1/31/2019 $16,000.00 $16,000.00 Grand Total $19,305.48 This Amended and Restated Software Agreement between City of San Rafael, California (the "Customer") and OpenGov, Inc. ("OpenGov") is effective as of the Contract Effective Date listed above and supersedes in its entirety that certain Software Agreement, dated February 10, 2017, between the parties. This Amended and Restated Software Agreement ("Agreement") IS entered into between OpenGov, Inc., with ItS principal place of business at 955 Charter Street, Redwood City, 94063 ("OpenGov"), and you, the entity identified above ("Customer"), as of the Effective Date. This Agreement includes and incorporates the OpenGov Terms and Conditions attached as Appendix A. By signing this Agreement, Customer acknowledges that it has reviewed, and agrees to be legally bound by, the OpenGov Terms and Conditions. Each party 's acceptance of this Agreement is conditional upon the other's acceptance of the terms in the Agreement to the exclUSion of all other terms. SIGNATURE Customer: City of OpenGov, Inc. San Rafael, CA ~ [F'"Cti" Signature Signature AAA~47PB5C40B Name Name Leo C 01 Title CjY-~a~Lrr Title VP, Finance Date Date 3/8/2018 1 DocuSign Envelope 10: 1DF78852-FAEC-4FDC-A8F4-4498930D6325 OPENGOV, INC. AMENDED AND RESTATED SOFTWARE AGREEMENT ERMS AND CONDITIONS APPENDIX A OpenGov Terms and Conditions .1. SOFTWARE SERVICES 1.1 Subject to the terms and conditions of these OpenGov Terms and Conditions (the "Agreement"), OpenGov will use commercially reasonable efforts to perform the software services (the "Software Services") identified in the applicable Software Agreement entered into by OpenGov and Customer ("Software Agreement"). 1.2 Customer understands that OpenGov's performance depends on Customer timely providing OpenGov with a copy of the Customer's chart of accounts In .csv or .xls format. In addition, Customer agrees to provide OpenGov with five or more years of general ledger data, also in .csv or .xls format, includ ing budget data for the current year and actual expense and revenue data for past years. Any dates or time periods relevant to OpenGov's performance will be extended appropriately and equitably to reflect any delays caused by Customer's failure to timely deliver any such materials. OpenGov shall not be liable for any delays in performance under this Agreement resulting from Customer's failure to meet these obligations. 2. RESTRICTIONS AND RESPONSIBILITIES 2.1 This is a contract for access to the Software Services and Customer agrees not to , directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code , object code, or underlying structure, ideas, or algorithms of the Software Services, documentation or data related to the Software Services, except to the extent such a restriction is lim ited by applicable law ; modify , translate, or create derivative works based on the Software Services; or copy , rent , lease , distribute, assign, sell, or otherwise commercially exploit, transfer, or encumber rights to the Software Services; or remove any proprietary notices. 2.2 Customer will use the Software Services only in compliance With all applicable laws and regulations (including, but not limited to, any export restrictions). 2.3 Customer shall be responsible for obtaining and maintaining any equipment and other services needed to connect to, access or otherWise use the Software Services and Customer shall also 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) for all uses of Customer user accounts with or without Customer's knowledge or consent. 3. OWNERSHIP. OpenGov retains all right, title , and interest in the Software Services and 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) therein. 4. CONFIDENTIALITY. Each party (the "Receiving Party") agrees not to disclose (except as permitted herein) any Confidential Information of the other party (the "Disclosing Party") without the DisclOSing Party's prior written consent. "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 confidenttal 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 relating to the Software Services. "Confidential Information" does not include "Public Data," which is data that the Customer has previously released or would be required to release according to applicable federal, state, or local public records laws . The Receiving Party agrees: (i) to use and disclose the Confidential Information only in connection with thiS Agreement ; and (ii) 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 foregoing, Confidential Information does not include information that: (i) has become publicly known through no breach by the receiving party ; (Ii) was rightfully received by the receiving party from a third party without restriction on use or disclosure; or (iii) is independently developed by the Receiving Party without access to such Confidential Information. Notwithstanding the above, the Receiving Party may disclose Confident ial Information to the extent required by law or court order, provided that prior written notice of such required disclosure and an opportunity to oppose or limit disclosure is given to the Disclosing Party. 5. DATA LICENSE. Customer grants OpenGov a non-exclusive, transferable, perpetual, worldw ide , and royalty-free license to use any data or information submitted by Customer to OpenGov for the development of new software or the provision of the Software Services. 6. PAYMENT OF FEES. The fees for the Software Services ("Fees") are set forth in in the Order Details "Solution " on page 1 of this Agreement. Customer shall pay all Fees within thirty (30) days after the date of OpenGov's invoice . which shall be billed as of the Effective Date. 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 2 DocuSign Envelope 10 : 1DF7B852-FAEC-4FDC-A8F4-449B930D6325 OPENGOV, INC. AMENDED AND RESTATED SOFTWARE AGREEMENT by OpenGov 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, and will indemnify OpenGov for any liability or expense incurred in connection with such Sales Taxes . 7. TERM & TERMINATION 7.1 Subject to compliance with all terms and conditions, the term of this Agreement shall be from the Contract Effective Date and shall continue until the Contract End Date speci fi ed on page one (1) of the Agreement (the "Initial Term"). The Customer will be billed according to the Billing Frequency as specified above. Unless either party declines to renew in writing no less than thirty (30) days before the Contract End Date, this Agreement shall renew for another period of the same duration as the Initial Term. The Customer will be billed on an annual basis for each twelve (12) month term. 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 ca se of non-payment), the non-breaching party may terminate this Agreement immediately upon notice. 7.2 Upon termination, Customer will pay in full for all Software Services performed up to and including the effective date of termination. Upon any termination of thiS Agreement: (a) all Software Services provided to Customer hereunder shall immediately terminate; and (b) 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. 7.3 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. 8. WARRANTY AND DISCLAIMER 8.1 OpenGov represents and warrants that: (i) it has all right and authority necessary to enter into and perform this Agreement; and (ii) the Software Services shall be performed In a profeSSional and workmanlike manner in accordance with generally prevailing industry standards. 8.2 Customer represents and warrants that (i) it has all right and authority necessary to enter into and perform th iS Agreement; (ii) it owns all right, title, and interest in and to all data provided to OpenGov for use in and In connection with th is Agreement, or possesses the necessary authorization thereto; (iii) OpenGov's use of such materials in connection with the Software Services will not violate the rights of any third party and (iv) it will not transfer any Personally Identifiable Information ("PII") to the Software Services platform. 8.3 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 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. NEITHER PARTY, NOR ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES , CONTRACTORS AND EMPLOYEES, SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR RELATED TERMS AND CONDITIONS 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 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. IN NO EVENT SHALL EITHER PARTY'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 OPENGOV (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. 10. MISCELLANEOUS. Capitalized terms not otherwise defined in these Terms and Conditions have the mean ing set forth in the applicable Software Agreement. Neither party shall be held responsible or liable for any losses arising out of any delay or fa il ure 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. 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 (as provided to OpenGov). If any proviSion of thiS Agreement is found to be unenforceable or invalid, that provision will be limited or elim inated to the minimum extent necessary so that this Agreement will otherwise remain In full force and effect and enforceable. This Agreement is not assignable or transferable by either party without the other party's prior written consent, provided however that either party may assign this Agreement to a successor to all or substantially all of ItS business or assets. ThiS Agreement (including the Software 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 th is Agreement, and that all waivers and modifications must be in a writing signed by both parties. 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. In any action or proceeding 3 DocuSign Envelope ID: 1 DF7BB52-FAEC-4FDC-ABF4-449B930D6325 OPENGOV, INC. AMENDED AND RESTATED SOFTWARE AGREEMENT to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered ; when rece ipt is electronically confirmed , if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service ; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. APPENDIXB OpenGov Service level Metrics 1. SCHEDULED DOWNTIME. When needed, OpenGov will schedule downtime for routine maintenance or system upgrades ("Scheduled Downtime") for its Services. OpenGov shall exercise commercially reasonable efforts to schedule Scheduled Downtime outside of peak traffic periods. OpenGov will notify Customer's designated contact at least twenty-four (24) hours pri or to the occurrence of Scheduled Downtime. 2. SYSTEMS ACCESSIBILITY WARRANTY. The Services will be accessible 99.9% of the time, 7 days of the week, and 24 hours per day, as calculated over a calendar month ("Systems Accessibility Warranty"). Such System Accessibility Warranty shall not apply to, and OpenGov will not be responsible for, any inaccessibility which: 1) results from Scheduled Downtime, Including a maintenance period every Tuesday from 6:00pm Pacific Time to 11:00pm Pacific Time; 2) results from a failure of equipment, software or services not under the direct control of OpenGov; 3) results from the failure of communication or telephone access service or other outside service or equipment not the fault of OpenGov; 4) is caused by a third parry not under OpenGov' control; or 5) is a result of causes beyond the reasonable control of OpenGov, Including any force majeure event. To the extent solely under OpenGov' control, OpenGov shall be responsible for monitoring and maintaining adequate controls over Customer Data transmissions and storage. OpenGov shall be solely responsible for setting applicable data processing and transmission parameters. APPENDIX C OpenGov Support Services 1. Support. Customer support is available via email 12 hours per day, Monday through Friday, excluding OpenGov' corporate designated holidays. See below for a list of holidays observed by OpenGov. Problems may be reported any time , however, OpenGov will not be obligated to assign work after business hours (9 a.m. to 5 p.m. Pacific Time). 2. Liaisons. On or before the Activation Date, Customer and OpenGov shall each designate a liaison as a respective point of contact for technical issues. Each party may change such liaison upon written notice from time to time at reasonable intervals. OpenGov will not be obligated to provide support to any person other than the Customer's designated liaison. 3. Holidays. OpenGov observes the following holidays: New Year's Day, Presidents Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Day after Thanksgiving Day, Christmas Eve Day, Christmas Day, and New Year's Eve. 4 CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: City Manager Project Manager: Jim Schutz Extension: 3475 Contractor Name: OpenGov, Inc Contractor's Contact: Greg Balter Contact's Email: gbalter@opengov.com o FPPC: Check if Contractor/Consultant must file Form 700 Step 1 2 3 4 5 6 7 8 9 RESPONSIBLE DEPARTMENT Project Manager City Attorney Project Manager Project Manager PRINT Project Manager City Attorney City Attorney City Manager / Mayor City Clerk DESCRIPTION a. Email PINS Introductory Notice to Contractor b. Email contract (in Word) & attachments to City Atty c/o Laraine.Gittens@cityofsanrafael.org a. Review, revise, and comment on draft agreement and return to Project Manager b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor Forward three (3) originals of final agreement to contractor for their signature When necessary, * contractor-signed agreement agendized for Council approval *PSA > $20,000; or Purchase> $35,000; or Public Works Contract> $125,000 Date of Council approval CONTINUE ROUTING PROCESS WITH HARD COPY Forward signed original agreements to City Attorney with printed copy of this routing form Review and approve hard copy of signed agreement Review and approve insurance in PINS, and bonds (for Public Works Contracts) Agreement executed by Council authorized official Attest signatures, retains original agreement and forwards copies to Project Manager COMPLETED DATE N/A 2/6/2018 C lick here to e Her .1 date. N/A Click here to enter a date ~ N/A Or Click here to enter a date 2/16/18 REVIEWER Check/Initial LQ