16-112 OpenGov, Inc., Transparency and Intelligence and Budget BuilderDocuSign Envelope ID: 2FOB4FED-CA32-4414-AF68-8FD0928AD9ED
OPENGOV, INC . SOFTWARE AGREEMENT
Quote Number: OG-000003113
Created Date : 8/19/2016
Expiration
Date :
Customer Information
Contact Name Kristina .Alfaro
Phone 408-777-3200
Email kristinaa@cupertino.org
OpenGov, Inc.
955 Charter Street
Redwood City, CA 94063
United States
Prepared By :
Phone :
Email :
Contract Dates :
BillTo Name
Bill To
Fax
Brendan Carry
650-489-907 4
bcarry@opengov.com
Effective : 9/1/2016
Ends on : 9/1/2020
City of Cupertino, CA
10300 Torre Ave
Cupertino , CA 95014
Order Details
Description OpenGov Intelligence'"' allows customers to easily create and share internal operational reports ,
combining unlimited financial (e .g ., general ledger, chart of accounts, current year and month
spending , transactions, and balance sheet) and non-financial data (performance metrics,
operational data , census data . custom financial projections , etc.) from numerous sources to help
governments make better financial decisions and operate more efficiently. OpenGov Intelligence
includes the features of OpenGov Transparency, allowing multiple years of financial and non -
financial data to be access ible by citizens th rough an online portal.
OpenGov Transparency and Intelligence
Open Gov Budget Builder
OpenGov Intelligence Deployment
Billing Frequency Annual
51%
100%
4 years
4 years
$20,425
$9 ,575
waived
Welcome to OpenGovi Thanks for using our software . This 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 Agreementincludes
and incorporates the OpenGovTerms and Conditions attached as Appendix A ; Band C. By signing this Agreement
Customer acknowledges that it has reviewed , and agrees to be legally bound by, the OpenGovTerms and Conditions .
Each party's acceptance of this Agreement is conditional upon the other's acceptance of the tenn s in the Agreement
to the exclusion of all other terms .
Signature
City of Cupertino, CA
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OpenGov, Inc .
Signature:
lnDocuSigned by:
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Name: Ainslie Mayberry
Title : CFO
Date : 8/23/2016
DocuSign Envelope ID: 2FOB4FED-CA32-4414-AF68-8FD0928AD9ED
OPENGOV, INC. SOFTWARE AGREEMENT
Terms and Conditions
Appendix A
OpenGov Terms and Conditions
1. SOFTWARE SERVICES
1.1 Subject to the terms and conditions of these OpenGovTerms and Conditions (the "Agreement"), OpenGovwill
use commercially reasonable efforts to perform the software services (the "Software Services ") identified in the
applicable Software Agreemententered into by Open Gov and Customer("Software Agreement").
1.2 Customer understands that OpenGov's performance depends on Customertimelyproviding OpenGov with a
copy of the Customer's chart of accounts in .csv or .xis format. In addition , Customer agrees to provide OpenGov with
five or more vears of oeneral ledoerdata . also in .csv or .xis format . includino budqetdata forthe currentvear and
actual expense and revenue data for past years . Any dates or time periods relevant to OpenGov's performance will
be extended appropriately and equitablyto reflect any delays caused by Customer's failure to timelydeliver any such
materials . OpenGovshall 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 ,
exceot to the extent such a restriction is limited bvaoolicable law : modifv. 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 Customerwill use the Software Services only in compliance with all applicable laws and regulat ions (including ,
but not limited to , any export restrictions).
2 .3 Customershall be responsible for obtaining and maintaining anyequipmentand other services needed to
connect to, access or otherwise use the Software Services and Customers hall 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 orwithoutCustomer's knowledge
or consent.
3 . OWNERSHIP . OpenGov retains all right, title , and interest in the Software Services and all intellectual property
riohts (includinq all oast . oresent. and future riohts associated with works of authorship, includinq 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 . CONADENTIALITY. Each party (the "Receiving Party'') agrees not to disclose (except as permitted here in) 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
confidential oiven the nature of the information andtorthe circumstancessurroundinq the disclosure (includinq 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
requ ired to release according to applicable federal, state , or local public records laws . The _Receiving Party agrees : (i)
to use and disclose the Confidential Information on Iv in connection with this Aoreement: and (iil to protect such
Confidential Information using the measures that Receiving Party employs with respectto its own Confidential
Information of a similarnature , 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 (i ii) is independentlydeveloped by the Receiving Party without access to such Confidential Information.
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DocuSign Envelope ID : 2FOB4FED-CA32-4414-AF68-8FD0928AD9ED
OPENGOV, INC . SOFTWARE AGREEMENT
Notwithstanding the above , the Receiving Party may disclose Confidential Information to the extent required by law or
court order.
5 . DATA LICENSE. Customergrants OpenGova non-exclusive , transferable , perpetual , worldwide, and royalty-free
license to use any data or information submitted byCustomerto 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 the applicable Software
Aqreem ent. 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 .
7. TERM & TERMINATION
7 .1 Subject to compliance with all terms and conditions, the term of this Agreement shall be from the Effective Date
and shall continue until the End date specified on oaoe one 11 l of the Aoreement. The Customer will be billed
according to the Bill ing Frequency as specified above . 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 partymay terminate this Agreement immediately upon notice .
7 .2 Upon termination , Customerwill 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 immediatelyterminate; 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 the ir nature should survive termination will survive termination ,
includino . without limitation , accrued rights to payment, confidentiality obligations , warranty disclaimers. and
limitations of liab i lity.
8 . WARRANTY AND DISCLAIMER
8 .1 OpenGov represents and warrants that: (i) it has all right and authority necessaryto enter into and perform this
Aoreement and Iii) the Software Services shall be performed in a professional and workmanlike manner in
accordance with generally preva i ling industry standards .
8.2 Customer represents and warrants that l i l it has all rioht and authoritv necessarvto enter into and perform this
Agreement; (ii) it owns all right , title , and interest in and to all data provided to OpenGov for use in and in connection
w ith this Agreement, or possesses the necessary authorization thereto ; and (iii) OpenGov's use of such materials in
connection with the Software Services will not violate the rights of any third party.
8 .3 OPENGOV DOES NOT WARRANT THAT THE SOFTWARE SERVICES WILL BE UNINTERRUPTED OR
ERROR FREE ; NOR DOES IT MA.KE ANY WARRANTY AS TO THE RESULTS THAT WIAY 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 WIATTER 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 DAWIAGES ; OR (C) FOR ANY WIATTER BEYOND
SUCH PARTYS REASONABLE CONTROL , EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH LOSS OR DAWIAGE. IN NO EVENT SHALL EITHER PARTYS 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
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DocuSign En velope ID: 2FOB4FED-CA 32-4414 -AF68-8FD0928AD9ED
OPENGOV , INC . SOFTWARE AGREEMENT
SOF1WARE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT T HAT GAVE RISE
TO THE LIABILITY.
1 o. MISCELLANEOUS . Capitalized terms not otherwise defined in these Terms and Conditions have the meaning
set forth in the applicable Software Agreement. Neither party shall be held responsible or liable for any losses arising
out of anv delay or fa ilure in performance of anv part of this Aoreement. other than pavmentoblioations . due to any
act of god , act of governmental authority, or due to wa r, riot , labor difficulty, failure of performance by any third party
service , uti lities , or equ ipment provider , or any other cause beyond the reasonab le control of the party delayed or
preven ted from performing . OpenGov shall have the right to use and d isplay Customer's logos and trade names for
marketi ng and promotional purposes in connection w ith OpenGov's website and marketing materials , subjecllo
Customer's trademark usaoe ouidel ines(as provided to Op e n Gov). If any provision of this Aoreementis found to be
unenforceable or invalid , that provision will be limited orelimina led to the minimum extentnecessaryso 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 priorwritten consent, provided however that either party may
assign this Agreementto a successor to all or substantiallyall of its business or assets . This Agreement (i ncluding
the Software Aoreementl is the complete and exclusive statementofthe mutual understandinq of the parties and
supersedes and cancels all previous written and oral agreements , communications , and other understandings
relat ing to the subject matter of this Agreement , and that all wa ivers and modifications must be in a wr iting s igned 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 k i nd to bind the other party in any respect. In any action or proceed ing to
enforce riohts under this Ao reement. the preva ilinq party will be entitled to recover cos ts and attornevs ' fees. All
notices under t hi s Agreement w ill be in writ ing and w i ll be deemed to have been duly given when received, if
personallydelivered ; when receipt is electron ically co nfirmed , i f transmitted by facsimile ore-mail ; the day after it is
sent , if sent fo r next day de livery by recogni ze d ove rn ight delivery service ; and upon receip t, if sent by certified or
registered mail , return receipt requested . This Agreement shall be governed by the laws of the State of Ca l ifornia
without regard to its conflict of laws provisions
Appendix B
OpenGov Service Level Metrics
1. SCHEDULED DOWNTIME. When needed , Open Gov will schedule downtime for routine maintenance or
system upgrades ("Scheduled Downtime ") for its Se rvi ces . OpenGov shall exercise commerci allyreasonable efforts
to schedule Scheduled Downtime outs ide of peak traffic periods . Open Gov will notify Customer's des ignated con ta d
at least twenty-four (24 ) hours prior to the occurre nce of Sched u led Downtime .
2. SYSTEMS ACCESSABILITY WARRANTY.
A. The Services will be access ible 99 .9% of the time , 7 days of the week , and 24 hours pe r day, as calcu laed
over a calendar month ("Systems Accessibility Warranty"). Such System Accessibility Warranty shall not app ly to ,
and Open Gov 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 :OOpm 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 equ ipment not the fault of OpenGov; 4) is caused by a th ird
party not underOpenGov' control ; or 5) is a result of causes beyond the reasonable control ofOpenGov, i ncluding any
force majeure event. To the extent solely under Open Gov' control , OpenGov shall be responsible for monitoring and
maintaining adequate controls over Customer Data transmissions and storage . Open Gov shall be solely responsible
for setting app licable data processi ng and transmission parameters .
B. If the Services experience Downtime , then as Customer's so le and exclusive remedy, and OpenGov' sole and
exclusive financial liability and obligation , Customer is entitl ed to a Service Level Credit equa l as follows :
99 .00 %-< 99 .9 % 10%
95 .00 % -< 99 .00 % 25 %
< 9 5 .00 % 50 %
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DocuSign Envelope ID : 2FOB4FED -CA32-4414 -AF68-8FD0928AD9ED
OPENGOV, INC . SOFTWARE AGREEMENT
"Downtime" means that for a valid request by our externa l verification service , made on no less than a
m inutelybasis . results in a serve r error (HTIP status SXX or the server response takes 3 or more
m inutes)
• "Downtime Period" means a period o f fiftee n consecu tive minutes of Downtime . In termitten t Downtime
for a period of less than fifteen minutes w ill not be counted towards any Downtime Periods .
"Monthly Uptime Percentage " mean s total numberofminutes in a month , minus the number of
minutes of Downtime suffe red from all Do w ntim e Pe riods in am on th , divided by the tota l numbe r of
m i nute s i n a month .
C. To receive a Service Leve l Credit, Customer must submit a written request for Service Level Credits to
Customer's designated account manager o r the OpenGovsupport team . To be eligible, the request must (i) i nclude 1he
dates and times of each incident of Downtime experienced by Customer in the preceding month ; and (ii) be rece ived
by Open Gov within thirty days after the end of the current monthly period in which the Downtime occurred .
EXHIBIT A
OpenGov Service Level Metrics
D. Upon receipt of a Service Level Credit request in compliance with the above requirements , OpenGov shall
have 30 days to review the request and to validate the information provided . If OpenGov determines in good faith that
the Services failed to meet the Systems AccessibilityWarranty as alleged in such a request. then OpenGovwill apply
such Service Level Credits to Customer's next billing period . Customer's failure to comply with the provisions of Section
2 .C . above w i ll disqua li fy it from receiving a Service Level Credit.
E. Customers whose accounts are past due . delinquent, and/or not in good standing a t any time during the
service month of a g iven service outage a re not eligible for a credit.
APPENDIX C
OpenGov Support Services
1. Support. Customer support is available via email 12 hours per day, Monday through Friday, excluding Open Gov'
corporate designated hol idays . See below for a list of ho l idays observed by OpenGov. Problems maybe repored
any time , however. OpenGov will not be obligated to ass ign work after business hours (9 a .m . to 5 p .m . Pacific
Time).
2 . Liaisons . On or before the Activation Date , Customer and OpenGovshalleach designate a liaison as a respe cti-.e
po i nt of contact for technical issues . Each party may change such liaison upon written notice from time to time at
reasonable intervals . Open Gov will not be obligated to provide support.to any person other than the Customer's
des ignated lia ison .
3 . Holidays . OpenGov observes the follow ing holidays : New Year's Day, Presidents Day, Memorial Day,
Independence Day, Labor Day, Thanksg iving Day, Day after Thanksgiving Day, Christmas Eve Day, Chrisbnas
Day, and New Yea r's Eve .
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