HomeMy WebLinkAboutCM 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