Contract 2024-001ADocuSign Envelope ID: D859DD5A-09F4-4A90-B177-AC9CA78298CC
OpenGov End User License Agreement
This End User License Agreement (this 'Agreement') is made between OpenGov, Inc., a Delaware
corporation COpenGov'), and the customer listed on the signature block below (`Customer').
Customer is purchasing OpenGov services through an authorized rese Her CRZeseller'). This
Agreement, which takes effect on the date of the last signature below (`Effective Date'), sets
forth the terms under which Customer mayuse OpenGov's hosted software services.
Definitions
1.1. "Customer Data"means data that is provided by Customer to Op e nGov purs uant to this
Agreement (for example, by email or through Customer's software systems of record).
Customer Data does not include any confidential pers onally identifiable information.
1.2. 'Doc umentation"means materials pro duc e d by Op e nGov that provide information
about OpenGov's software products and systems. Customers may access the most up-
to-date Documentation on the Customer Resource Center page at
opengov.zendesk.com.
1.3. `intellectual Property Rights"means all inte He ctual property rights including allpast,
present, and future rights associated with works of authorship, including exclusive
exploitation rights, copyrights, and moralrights, trademark and trade name rights and
similar rights, trade secret rights, patent rights, and anyother proprietary rights in
inte He ctual property of everykind and nature.
1.4. `Order Form"means the document used between the Reseller and the Customer to
purchase specified OpenGov services.
1.5. `Party"(or `Parties') refers to OpenGov and/or Customer. For the avoidance of doubt,
Reseller is not a Partyto this Agreement.
1.6. `Subscription Term"means the period from the start date of the Software Services
specified on the first Order Form to the last end date of the Software Services
specified on any Order Form.
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 provide the commercial off -the -shelf
software solutions identified in the applicable Order Form (`Software Services').
2.2. Support and Service Levels. Customer support is available byemail to
support c@ropengov.com orbyusing the chat messaging functionalityof the Software
Services, both of which are available during OpenGov's standard business hours.
Customer mayreport issues anytime. However, OpenGovwilladdress issues during
business hours. OpenGov will provide support for the Software Services in accordance
with the Support and Software Service Levels found at opengov.com/service-sla, as
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long as Customer is entitled to eceive support under the applicable Order Form and
this Agreement.
2.3. Professional Services. If OpenGov or its authorized independent contractors provides
professional services to Customer through Reseller, such as implementation services,
then OpenGov wilbpecify the professional services ("Professional Services") in an
applicable statement of work ("SOW'). Unless otherwise specified in a SOW, any -pre
paid professional services must be utilized within one year from the Effective Date.
3. Restrictions and Respcnsibilities
3.1. Restrictions. Customer maynot use the Software Services in anymanner or for any
purpose other than as expresslypermitted bythe Agreement and Documentation. In
addition, Customer shallnot, and shallnot permit or enable anythird partyto: (a)use or
access anyof the Software Services to build a competitive product or service; (b)
modify, disassemble, decompile, reverse engineer or otherwise make anyderivative
use of the Software Services (except to the extent applicable laws spe cifically 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 anybenchmarking 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 shallbe 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 shallbe 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)alluses of Customer user accounts byanyparty
other than OpenGov.
4. Intellectual Property Rights; License Grants; Access to Customer Data
4.1. Software Services. OpenGov owns allinterests and Intellectual Property Rights in the
Software Services. The look and feel ofthe Software Services, including any custom
fonts, graphics and button icons, are the property of OpenGov. 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 grants Customer a
non-exclusive, royalty -free license during the Subscription Term to use the Software
Services.
4.2. Customer Data. Customer Data and the Intellectual Property Rights therein belong to
the Customer. Customer grants OpenGov and its partners (such as hosting providers) a
non-exclusive, royalty -free license to use, store, edit, and reformat the Customer Data
for the purpose of providing the Software Services. Customer further agrees that
OpenGov and its partners mayuse aggregated, anonymized Customer Data for
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purposes of sales, maketing, business development, product enhancement, customer
service, and data analysis. Insights gleaned from aggregated, anonymized Customer
Data will belong to OpenGov.
4.3. Access to Customer Data. Customer may download the Customer Data from the
Software Services at any time during the Subscription Term, excluding during routine
software maintenance periods. OpenGov has no obligation to return Customer Data to
Customer.
4.4. Deletion of Customer Data. Unless otherwise requested pursuant to this Section 4.4,
upon the termination of this Agreement, the Customer Data shall be deleted pursuant
to OpenGov's standard data deletion and retention practices. Upon written request,
Customer may request deletion of Customer Data prior to the date of termination of
this Agreement. Such a request must be addressed to "OpenGov Vice President,
Customer Success" at OpenGov's address for notice in Section 10.2.
4.5. Feedback. "Feedback" means suggestions, comments, improvements, ideas, or other
feedback or materials regarding the Softwae Services provided by Customer to
OpenGov, including feedback provided through online developer community forums.
Customer grants OpenGov a nolexclusive, royalty -free, irrevocable, perpetual,
worldwide license to use and incorporate into the Software Se/ices 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 the
improvements and modifications.
5. Confidentiality
5.1. `Confidential Information"means all confidential bus mess, technical, and financial
information of the disclosing Partythat is marked as `Confidential"or an equivalent
designation or that should reasonablybe understood to be confidential given the
nature of the information and/or the circumstances surrounding the disclosure.
OpenGov's Confidential Information includes, without limitation, the software
underlying the Software Services, and all Documentation.
5.2. Confidential lnformat]on does not include: (a)data that the Customer has previously
releasedto the public; (b)data that Customer would be required to release to the public
upon request under applicable federal, state, or local public records laws; (c)Customer
Data that Customer requests OpenGov make available to the public in conjunction with
the Software Services; (d)information that becomes publiclyknown through no breach
by either Party; (e) information that was rightfully received by a Party from a third Party
without restriction on use or disclosure; or (f)information independently developed by
the receiving Partywithout access to the disclosing Party's Confidential Information.
5.3. Each Party agrees to obtain prior written consent before disclosing any ofthe other
Party's Confidential Information. Each Party further agrees to use the other's
Confidential Information only in connection with this Agreement. Each Party further
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agrees to protect the other Party's Confidential Information usingthe measures that it
employs with respect to its own Confidential Information of a similar nature, but in no
event with less than reasonable care. If a Party is required to disclose Confidential
Information by law or court order, they must notify the othe Party in writing before
making the disclosure to give the other Party an opportunity to oppose or limit the
disclosure.
6. Term and Termination
6.1. Subscription Term. This Agreement commences when the Parties execute this
Agreement and continues untilthe last end date of the Software Services specified on
the Order Form, unless sooner terminated pursuant to Section 6.3.
6.2. Renewal. This Agreement willrenew if Customer enters another Order Form for the
Software Services and/or additional Professional Services before the end of the
Subscription Term.
6.3. Termination. If either Party mate riallybreaches anyterm of this Agreement and fails to
cure such breach within 30 days after receiving written notice bythe non -breaching
Partythe non -breaching Party may terminate this Agreement. Neither Party shallhave
the right to terminate this Agreement earlywithout a legallyvalid cause.
6.4. Effect of Termination. Upon termination of this Agreement pursuant to Section 6.1, 6.2,
or 6.3: (a) Customer shall pay in full for all Software Services and Professional Services
performed up to the date of termination or expiration, (b) OpenGov shall stop providing
Software Services and Professional Services to Customer; and (c) each Party shall (at
the other Party's option)return or delete any of the other Party's Confidential
Information in its possession.
7. Payment of Fees
7.1. Fees for Software Services are due at the beginning of each year of the Subscription
Term, and Customer must timelypayallapplicable fees to Reseller to avoid interruption
of the Software Services. Fees for Professional Services are due in advance, unless
indicated otherwise in the Order Form.
8. Representations and Warranties; Disclaimer
8.1. By OpenGov.
8.2. General Warranty. OpenGov repre s ents and warrants that it has all right and authority
necessaryto enter into and perform this Agreement.
8.3. Professional Services Warranty. OpenGov further represents and warrants that the
Professional Services, if any, willbe performed in a professionaland workmanlike
manner in accordance with the related SOW and generallyprevailing industry
standards. For anybreach of the Professional Services warranty, Customer's exclusive
remedy and OpenGov's entire liabilitywillbe the re -performance of the applicable
services. IfOpenGov is unable to re -perform such work as warranted, Customer willbe
entitled to recover all fees paid to OpenGov for the deficient work. Customer must give
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written notice of any claim under this warranty to OpenGov within 90 days of
performance of such work to receive such warranty remedies.
8.4. Software Services Warranty. OpenGov further represents and warrants that for a
period of 90 daysafter the subscription start date specified in the Order Form, 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 manneother 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. Customer must give written notice of any
claim under this warranty to OpenGov duringie Subscription 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 tamto, terminate the license
for such Software Services and refund the prepaid, unused portion of the fee for such
Software Services to the Reseller.
8.5. By Customer. Customer represents and warrants that (a) it has all right and authority
necessary to enterinto and perform this Agreement; and (b) 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.
8.6. Disclaimer. OPENGOV DOES NOT WARRANT THAT THE SOFIES 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 DISCLAIMIS_ UTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY,
TITLE, FITNESS FOR A PARTICULAR PURPOSE, ANEINGEMENT.
9. Limitation of Liability
9.1. By Type. NEITHEROPENGOVNORCUSTOMER, NORTHEIR SUPPLIERS, OFFICERS,
AFFILIATES, REPRESENTATIVES, CONTRACTORS OR EMPLOYEES, SHALL BE
RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJ ECT MATTER OF THIS
AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, S TRICT LIABILITY, OR OTHER
THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOS S OR INACCURACYOF
DATAOR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR LOSS OF
BUSINESS; (B)FOR ANYINDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES; OR (C) FOR ANYMATTER BEYOND APARTYS
REASONABLE CONTROL, EVEN IF SUCH PARTYHAS BEEN ADVISED OF THE
POSSIBILITYOF SUCHLOSS ORDAMAGE.
9.2. By Amount. IN NO EVENT SHALL EITHERPARTY'S AGGREGATE, CUMULATIVE
LIABII ,ITY F OR ANY CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO THIS
AGREEMENT EXCEED THE FEES PAIDFOR THE SOFTWARE SERVICES UNDER THE
APPLICABLE ORDER FORMIN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO
OpenGov End User License Agreement Revised June 1, 2023
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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 intentionabreach of its obligations set forth in Section 5
(Confidentiality), (b) claims arising out of fraud or willful misconduct by either Party and
(c) either Party's infringement of the other Party's Intellectual Property Rights.
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.
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 for 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 maybe conducted by email,
live chat or telephone. However, for notices, including legal notices, required by the
Agreement (in sections where the word `hotice"appears)the Parties must
communicate more formally in a writing sent via USPS certified mail and via email.
OpenGov's addresses for notice are: OpenGov, Inc., 6525 Crown Blvd #41340, San J ose,
CA95160, and legal@opengov.com.
10.3. Anti -corruption. Neither OpenGov nor any of its employees or agents has offered or
provided any illegal or improper payment, gift, or transfer of value in connection with
this Agreement. The Parties will promptly notify each other if they become aware of
any violation of any applicable anti -corruption laws in connection with this Agreement.
10.4. Injunctive Relief. The Parties acknowledge that anybreach of the confidentiality
provisions or the unauthorized use of Party's intellectualproperty may result in
serious and irreparable injuryto the aggrieved Partyfor which damages maynot
adequately compensate the aggrieved Party. The Parties agree, therefore, that, in
addition to anyother remedythat the aggrieved Partymayhave, it shallbe 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 Nhjeure. Neither Party shall be held responsible or liable for anylosses arising
out of anydelayor failure in performance ofanypart of this Agreement due to anyact
of god, act of governmental authority, or due to war, riot, labor difficulty, failure of
performance byanythird-party service, utilities, or equipment provider, or anyother
cause beyond the reasonable controlof the Partydelayed or prevented from
performing.
10.6. Severability; Waiver. If anyprovision of this Agreement is found to be unenforceable or
invalid, that provision willbe 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
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create a continuing waiver or any expectation of nonenforcement.
10.7. Survival. The following sections of this Agreement shall survive termination: Semen 5.
(Confidentiality), Section 7 (Payment of Fees), Section 4.4 (Deletion of Customer Data),
Section 8.3 (Warranty Disclaimer), Section 9 (Limitation of Liability) and Section 10
(Miscellaneous).
10.8. Assignment. There are no thirdparty beneficiaries to this Agreement. Except as set
forth in this Section 10.8, neither party may assign, delegate, or otherwise transfer this
Agreement or any of its rights or obligations to a third party without the other party's
written consent, which consent may not be unreasnably withheld, conditioned, or
delayed. Either party may assign, without such consent but upon written notice, its
rights and obligations under this Agreement to its corporate affiliate or to any entity
that acquires all or substantially all of its capitJ stock or its assets related to this
Agreement, through purchase, merger, consolidation, or otherwise. Any other
attempted assignment shall be void. This Agreement will benefit and bind permitted
assigns and successors.
10.9. Independent Contractors. This Agreenent does not create an agency, partnership,
joint venture, or employment relationship, and neither party has any authority to bind
the other.
10.10. Governing Law and Jurisdiction. This Agreement will be governed by the laws of the
Customer's jurisdiction, without regard to conflict of laws principles. The parties
submit to personal jurisdiction and venue in the courts of the Customer's jurisdiction.
10.11. Complete Agreement. OpenGov has made no other promises or representations to
Customer other than those containedin this Agreement. Any modification to this
Agreement must be in writing and signed by an authorized representative of each
party.
Signature page to follow.
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Signatures
Customer: City of Clermont
DocuSigned by -
Signature: 26A7692F758C492 .
Name: Tim Murry
Title: Mayor
Date: 1/10/2024
N.
OpenGov, Inc.
DocuSigned by:
Signature: E=FF18117C415
Name: Sam Kramer
Title: VP - Finance
Date: 1/10/2024
OpenGov End User License Agreement
Revised June 1, 2023