HomeMy WebLinkAboutCA 1 Sole Source- Cartegraph Name Change to OpenGov EXECUTIVE SUMMARY
AGENDA ITEM:
Approval of Provider Name Change from Cartegraph Systems,LLC to OpenGov, Inc. and Master Service
Agreement and Software Service Agreement with OpenGov, Inc.
Date: June 1, 2023
BACKGROUND:
On October 18, 2017, the Board of Supervisors approved the Sole Source status of Cartegraph Systems,
LLC. On December 30,2020,CCUA entered into a Software Service and Professional Service Agreement
#2020-PA-2983 with Cartegraph Systems, LLC to provide CCUA with an infrastructure asset
management software. On May 16,2023,CCUA received notice that OpenGov,Inc., acquired Cartegraph
m Systems, LLC. OpenGov, Inc., is a larger cloud software for public agency operations and infrastructure
a asset management.
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Staff respectfully requests the Board of Supervisors approval of the name change from Cartegraph
Systems, LLC. to OpenGov, Inc., and approval of the Master Service Agreement and Software Service
Agreement with OpenGov, Inc., and approval of the Sole Source status of OpenGov, Inc.
ATTACHMENTS:
OpenGov, Inc.,Notice of Acquisition of Cartegraph Systems, LLC.
OpenGov, Inc., Master Service Agreement
OpenGov, Inc., Software Service Agreement
//AW(Author)
//PS (Review)
//PS (Final)
0 OPENGOV
OpenGov Continues Expansion with Acquisition of Operations and
Asset Management Leader Cartegraph to Address the Growing
Demand for Infrastructure Improvements
SAN JOSE, Calif.(July 27,2022)- OpenGov, the leader in modern cloud software for our nation's
cities, counties, and state agencies, expands its industry-leading government cloud solutions with
the acquisition of Cartegraph, the leader in cloud software for public agency operations and
infrastructure asset management.
"With this acquisition, we are bringing together two incredible, mission-driven teams to meet the
needs of the public sector, now and for the future," said OpenGov Co-founder and CEO Zac
Bookman."There has never been a better time to modernize our nation's governments, and we have
been investing to grow the OpenGov Cloud to ensure that every government leader has the best
solutions to serve the critical needs of their(and our)communities. We are thrilled to welcome
Cartegraph and its team of outstanding employees and innovative local government customers to
to
the OpenGov family!"
Local government modernization has been rapidly accelerating over the past few years, driven by a
"perfect storm"of forces—from workforce changes, and the rise of ransomware attacks, to a
massive inflow of federal stimulus funds, and increasing demand for digital services.
Legacy technology is aging out and cloud software is on the rise because it enables connected
workflows and access to critical data. America's infrastructure challenges, in particular, are at the
forefront of this digital transformation, due in part to the $1.2 trillion Infrastructure Investment and
Jobs Act. To effectively manage this unprecedented level of spending, local governments need a
purpose-built government cloud solution like Cartegraph.
Over the past 10 years, OpenGov has built modern, cloud software to serve the budgeting and
planning; permitting, licensing, and code enforcement; procurement and solicitation development;
financial management; and reporting and transparency needs of local and state governments.
Meanwhile, Cartegraph has developed a powerful suite of public agency operations and
infrastructure management solutions, including asset and work management tools for public
OpenGov
6525 Crown Blvd #41340
San Jose, CA 95160
(650)336-7167
OPENGOV
works, utilities, parks, and facilities teams. By bringing together these solutions, OpenGov can
more effectively serve the key strategic functions of governments.
"We couldn't be more excited about joining OpenGov,"said Josh Mallamud, Cartegraph CEO."As we
sought a partner for the next chapter of Cartegraph's growth, we looked for a team with three key
components: aligned vision and values, a commitment to customer success and building modern
cloud-first solutions, and a desire to accelerate our current, exceptional momentum through
increased investment. OpenGov delivers on all accounts. With a phenomenal team, the right
technology architecture, the resources to invest in Cartegraph's accelerated growth and software
development, and a clear commitment to this market for decades to come, OpenGov is the perfect
place for the Cartegraph team to continue to grow."
For this transaction, Cartegraph, a Pamlico Capital portfolio company, was represented by William
Blair. OpenGov, with new investment from Cox Enterprises, was represented by Shea & Company.
This announcement refers to a definitive agreement between OpenGov and Cartegraph, subject to
to customary conditions and regulatory approval and is expected to close in the third quarter of 2022.
About OpenGov
OpenGov is the leader in modern cloud software for our nation's cities,counties,and state agencies.With a
mission to power more effective and accountable government, OpenGov serves more than 1,600 agencies
across the U.S.and is built exclusively for the unique budgeting, procurement,and citizen services needs of
the public sector.The OpenGov Cloud makes organizations more collaborative and efficient and enables
best-in-class communication with stakeholders and community.
About Cartegraph
Cartegraph builds safer, more resilient and sustainable communities through better stewardship of buildings
and critical infrastructure. It offers powerful, intuitive SaaS solutions that help government agencies,
utilities,and educational institutions manage their physical assets and associated operations.With
Cartegraph software, users optimize the life of their infrastructure, deploy maintenance resources
efficiently,and increase productivity to drive high-performance operations.
For more information,visit cartegraph.com.
OpenGov
6525 Crown Blvd #41340
San Jose, CA 95160
(650)336-7167
OpenGov Master Services Agreement
The parties to this Master Services Agreement(this"Agreement")are OpenGov, Inc., a
Delaware corporation("OpenGov"), and the customer named in the signature block below
("Customer"). This Agreement, which becomes binding when the parties have signed it(the
"Effective Date"), sets forth the terms under which Customer will be permitted to use
OpenGov's hosted software services and receive professional services.
1. Definitions
1.1. "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 does not include any confidential personally identifiable information.
1.2. "Documentation"means materials produced by OpenGov 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 intellectual property rights including all past,
present, and future rights associated with works of authorship, including exclusive
to 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.
1.4. "Order Form"means the document executed by the parties that specifies the Software
Services that OpenGov will provide to Customer under this Agreement.
1.5. "Term"refers to the Initial Term defined in Section 6.1 plus all Renewal Terms defined in
Section 6.2.
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 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. OpenGov will provide support for the Software Services in accordance
with the Support and Software Service Levels found at opengov.com/service-sla, as
long as Customer is entitled to receive support under the applicable Order Form and
this Agreement.
2.3. Professional Services
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OpenGov Master Services Agreement Revised May 17,2023
2.3.1. If OpenGov or its authorized independent contractors provides professional
services to Customer, such as implementation services, then these professional
services("Professional Services")will be described in an applicable statement of
work("SOW")agreed to by the parties. Unless otherwise specified in the SOW, any
pre-paid Professional Services must be utilized within one year from the Effective
Date.
2.3.2. Relevant travel expenses are provided in the SOW. Any other travel expenses
related to the performance of the Professional Services shall be pre-approved by
and reimbursed by Customer.
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 and Documentation. In
addition, 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)
to 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 owns all interests and 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. 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 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
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OpenGov Master Services Agreement Revised May 17,2023
OpenGov and its partners may use aggregated, anonymized Customer Data for
purposes of sales, marketing, 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 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 Software Services provided by Customer to
OpenGov, including feedback provided through online developer community forums.
Customer grants 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
to 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. "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.
OpenGov's Confidential Information includes, without limitation, the software
underlying the Software Services, and all Documentation.
5.2. Confidential Information does not include:(a)data that the Customer has previously
released to 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 publicly known 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 information independently developed by
the Receiving Party without access to the Disclosing Party's Confidential Information.
5.3. Each party agrees to obtain prior written consent before disclosing any of the 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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OpenGov Master Services Agreement Revised May 17,2023
agrees to protect the other party's Confidential Information using the 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 other 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. Initial Term. This Agreement begins on the Effective Date and ends on the date the
subscription ends("Initial Term"), according to the Order Form, unless sooner
terminated pursuant to Section 6.3.
6.2. Renewal. This Agreement shall automatically renew for another period of the same
duration as the Initial Term(each one is a new"Renewal Term")unless either party
notifies the other party of its intent not to renew this Agreement in writing no less than
30 days before the end of the Initial Term.
6.3. Termination. If either party materially breaches any term of this Agreement and fails to
cure such breach within 30 days after receiving written notice by the non-breaching
party(10 days in the case of non-payment),the non-breaching party may terminate this
Agreement. Neither party shall have the right to terminate this Agreement early
without a legally valid cause.
to 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 and including 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 the other party's
Confidential Information in its possession.
7. Payment of Fees
7.1. Fees; Invoicing; Payment; Expenses.
7.1.1. Fees. Fees for Software Services and for Professional Services are set forth in the
applicable Order Form, and OpenGov will invoice Customer accordingly. Customer
agrees to pay invoices within 30 days without setoffs, withholdings or deductions
of any kind. Invoices are deemed received when OpenGov emails them to
Customer's designated billing contact. Obligations to pay fees are non-cancelable,
and payments are non-refundable.
7.1.2. Annual Software Maintenance Price Adjustment. OpenGov shall increase the fees
for the Software Services during any Renewal Term by 5% each year of the Renewal
Term.
7.1.3. Travel Expenses. OpenGov will invoice Customer for travel expenses provided in the
SOW as they are incurred. Customer shall pay all such valid invoices within 30 days
of receipt of invoice. Each invoice shall include receipts for the travel expenses
listed on the invoice.
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OpenGov Master Services Agreement Revised May 17,2023
7.1.4. Customer Delays; On Hold Fee.
7.1.4.1. On Hold. Excluding delays caused by a force majeure event as described in
Section 10.5, if OpenGov determines that Customer's personnel or contractors
are not completing Customer's responsibilities described in the applicable SOW
timely or accurately, OpenGov may place the Professional Services on hold. If
OpenGov places a Customer on hold, OpenGov will ensure that Customer is
made aware of its obligations necessary for OpenGov to continue performing
the Professional Services. Upon placing a customer on hold, OpenGov may,
without penalty, suspend Professional Services to the Customer and reallocate
resources until the Customer has fulfilled its obligations. OpenGov shall bear no
liability or otherwise be responsible for delays in the provision of the
Professional Services occasioned by Customer's failure to complete Customer's
responsibilities.
7.1.4.2. On Hold Notice; On Hold Fee. OpenGov may also issue an"On Hold Notice"
specifying that the Customer will be invoiced for lost time in production(e.g.,
delayed or lost revenue resulting from rescheduling work on other projects,
delay in receiving milestone payments from Customer, equipment, hosting
providers and human resources idle)for a fee equal to 10% of the first year's fee
for Software Services. OpenGov may remove the on hold status and may
rescind the fee in its discretion upon Customer's fulfillment of its obligations
to set out in the On Hold Notice. And OpenGov may extend the timeline to
complete certain Professional Services depending on the availability of
qualified team resources(OpenGov cannot guarantee that these team
resources will be the same as those who were working on the project prior to it
being placed On Hold).
7.2. Consequences of Non-Payment. If Customer fails to make any payments required
under any Order Form or SOW, then in addition to any other rights OpenGov may have
under this Agreement or applicable law,(a)Customer will owe late interest penalty of
1.5% of the outstanding balance per month, or the maximum rate permitted by law,
whichever is lower and(b)If Customer's account remains delinquent(with respect to
payment of a valid invoice)for 30 days after receipt of a delinquency notice from
OpenGov, which may be provided via email to Customer's designated billing contact,
OpenGov may temporarily suspend Customer's access to the Software Service for up to
90 days to pursue good faith negotiations before pursuing termination in accordance
with Section 6.3. Customer will continue to incur and owe all applicable fees
irrespective of any such Service suspension based on such Customer delinquency.
7.3. 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 OpenGov to, and shall be paid by, Customer. If Customer fails
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OpenGov Master Services Agreement Revised May 17,2023
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. In the event Customer or the transactions contemplated by the
Agreement are exempt from Sales Taxes, Customer agrees to provide OpenGov, as
evidence of such tax exempt status, proper exemption certificates or other
documentation acceptable to OpenGov.
8. Representations and Warranties; Disclaimer
8.1. By OpenGov.
8.1.1. General Warranty. OpenGov represents and warrants that it has all right and
authority necessary to enter into and perform this Agreement.
8.1.2. Professional Services Warranty. OpenGov further represents and warrants that the
Professional Services, if any, will be performed in a professional and workmanlike
manner in accordance with the related SOW and generally prevailing industry
standards. For any breach of the Professional Services warranty, Customer's
exclusive remedy and OpenGov's entire liability will be the re-performance of the
applicable services. If OpenGov is unable to re-perform such work as warranted,
Customer will be entitled to recover all fees paid to OpenGov for the deficient work.
Customer must give written notice of any claim under this warranty to OpenGov
within 90 days of performance of such work to receive such warranty remedies.
to 8.1.3. Software Services Warranty. OpenGov further represents and warrants that for a
period of 90 days after the Effective Date, 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. Customer must give written notice of any claim under this warranty 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(a)it has all right and authority
necessary to enter into 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.
8.3. 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,
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OpenGov Master Services Agreement Revised May 17,2023
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 INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL
DAMAGES; OR(C)FOR ANY MATTER BEYOND A 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 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 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
to 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)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 in 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. However, for notices, including legal notices, required by the
Agreement(in sections where the word"notice"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 Jose,
CA 95160, 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.
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OpenGov Master Services Agreement Revised May 17,2023
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 Majeure. 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.
10.7. Survival.The following sections of this Agreement shall survive termination: Section 5.
to (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 third-party 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 unreasonably 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 capital 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 Agreement 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. California laws govern this Agreement, without regard
to conflict of laws principles. Exclusive jurisdiction for litigation of any dispute,
controversy or claim arising out of or in connection with this Agreement shall be only in
the Federal or State court with competent jurisdiction located in San Mateo County,
California, and the parties submit to the personal jurisdiction and venue therein.
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OpenGov Master Services Agreement Revised May 17,2023
10.11. Complete Agreement. OpenGov has made no other promises or representations to
Customer other than those contained in this Agreement. Any modification to this
Agreement must be in writing and signed by an authorized representative of each
party.
Signature block to OpenGov Master Services Agreement
Signatures
Customer: OpenGov, Inc.
Signature: Signature: _
Name: I Name:
Title: Title:
Date: Date:
Notices to:
Address:
to
Email:
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OpenGov Master Services Agreement Revised May 17,2023
O FENG 0\SO FTWARE SERVICES AG ITEM ENT
0 FENG 0 VSO FTWARE SERVICES AG ITEM ENT
This Software Services Agreem sit (this "Agreement") is entered into by 0 penG a, Inc., a Delaware corporation
with a principal place of business at 6525 Crown Blvd #41340, San Jose, CA 95160 CO penG w") and the
custom a- listed on the signature block below ("Custom er"), as of the date of last signature below (the "Effective
Date"). This Agreem sit sets forth the terms under which Custom er will be perm tted to use 0 penG a's hosted
software services.
1. DEFINITIO NS
"Custom if Data" means data that is provided by Custom er to 0 penG a pursuant to this Agreement (for
example, by em al or through Customer's software systems of record). Customer Data shall not include any
confidential personally identifiable inform ation.
"Documentation" means the docum altation for the Software Services at the Custom er Resource Center
page found at https://opengov.zendesk.com
"Feedback" m sans suggestions, com m sits, im provem sits, ideas, or other feedback or m Aerials regarding
the Software Services provided by Custom er to 0 penG a, including feedback provided through online developer
corn m unity forum s
"Initial Term" means the initial license term specified in num Ler of years on the 0 der Form,corn m icing 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 m cral rights,
tradem a-k and trade name rights and sim lar rights, trade secret rights, patent rights, and any other proprietary
to rights in intellectual property of every kind and nature.
"0 der Form" means 0 penG a's Software Services order form that: (a) specifies the Software Services
provided by 0 penG at; (b) references this Agreem ent; and (c) is signed by authorized representatives of both
parties.
"Renewal Term" m eens each additional renewal period, which shall be for a period of equal duration as the
Initial Term,for which this Agreem alt is extended pursuant to Section 7.2.
2. SO FTWARE SERVICES, SUPPO RT AND PRO FESSIO N4L SERVICES
2.1 Software Services. Subject to the terms and conditions of this Agreem sit, O penG a will use
corn m ecially reasonable efforts to perform the software services identified in the applicable 0 der Form entered
into by 0 penG a and Custom er("Softw a•e Services").
2.2 Support & Service Levels. Custom er support is available by em al to support@opengov.com or by using
the chat messaging functionality of the Software Services, both of which are available during 0 penG cv's standard
business hours. Custom er m ay report issues any time However, 0 penG or will address issues during business
hours. 0 penG cv will provide support for the Software Services in accordance with the Support and Software
Service Levels found at https://ooengov.com ervice-sla, as long as Custom er is entitled to receive support under
the applicable 0 der Form and this Agreem sit.
2.3 Professional Services.
(a) If OpenG a or its authorized independent contractors provides professional services to Customer, such
as im plem altation services, then these professional services will be described in a statem alt of work ("SO W)
agreed to by the parties (the "Professional Services"). Unless otherwise specified in the SOW,any pre-paid
Professional Services Fees m Lst be utilized within one (1) year from the Effective Date. Any unused pre-paid
Professional Services Fees shall be forfeited.
(b) Unless the SOW provides otherwise, all reasonable travel expenses, pre-approved by Custom er and
incurred by 0 penG or in perform ng the professional services will be reim Lursed by Custom er. Travel expenses
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O FENG 0\SO FTWARE SERVICES AG ITEM ENT
include cost of coach airfare travel round trip from the individual's location to Custom er's location, reasonable
hotel accomm cdations, ground transportation and meals.
3. RESTRICTIO N5 AND RESPO NSIBILITIES
3.1 Restrictions. Customer may not use the Software Services in any m airier or for any purpose other than
as expressly perm tted by the Agreem ent. Custom if shall not, and shall not perm t or enable any third party to:
(a) use or access any of the Software Services to build a com petitive product or service; (b) m alify, disassem He,
decom pile, 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 com m ecially exploit the Software Services; (d) perform or disclose any
benchm arking or perform aice testing of the Software Services; (e) rem ore 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 0 penG or or the Software Services platform.
3.2 Responsibilities. Custom a- shall be responsible for obtaining and m antaining corn puters and third party
software system s of record (such as Custom er's ERP system s) needed to connect to, access or otherwise use
the Software Services. Custom er also shall be responsible for: (a) ensuring that such equipm ent is compatible
with the Software Services, (b) m antaining the security of such equipm ent, user accounts, passwords and files,
and (c) all uses of Custom if user accounts by any party other than 0 penG a.
4. INTELLECTUAL PRO PERTY RIG HTS; LICENSE G RANTS; ACCESS TO CUSTO M E2 DATA
4.1 Software Services. 0 penG or 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 0 penG or and Custom er m ay not copy, imitate, or
use them,in whole or in part, without 0 penG or's prior written consent. Subject to Custom er's obligations under
this Agreement, 0 penG a hereby grants to Custom a'a non-exclusive, royalty-free license during the Term to use
to the Software Services.
4.2 Custom er Data. Custom a- retains all right, title, and interest in the Custom er Data and all Intellectual
Property Rights therein. Custom er hereby grants to 0 penG or a non-exclusive, royalty-free license to, and perm I
its partners (which include, without lim Cation the hosting providers of the Software Services) to, use, store, edit
and reformat the Custom er Data, and to use Custom er Data for purposes of sales, marketing, business
developm ent, product enhancement, custom a- service, or for analyzing such data and publicly disclosing such
analysis ("Insights"), provided that in all such uses Custom a- Data is rendered anonym cus such that Custom a-is
no longer identifiable.
4.3 Access to Custom er Data. Custom er m ay download the Custom a- Data from the Software Services at
any time during the Term,other than during routine software m antenance periods. 0 penG or has no obligation to
return Custom er Data to Customer.
4.4 Feedback. Custom e' hereby grants to 0 penG or a non-exclusive, royalty-free, irrevocable, perpetual,
worldwide license to use and incorporate into the Software Services and Docum citation Custom Er's Feedback.
0 penG or will exclusively own any im provem tints or m cdifications to the Software Services and Documentation
based on or derived from any of Custom a-'s Feedback including all Intellectual Property Rights in and to the
im provem tints and m cdifications.
5. CONFIDENTIALITY
5.1 Each party (the "Receiving Party") agrees not to disclose any Confidential Inform ation 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 Inform ation only in connection with this
Agreem tint; and (b) to protect such Confidential Inform ation using the m ensures that Receiving Party em ploys
with respect to its own Confidential Inform ation of a sim iar nature, but in no event with less than reasonable care.
Notwithstanding the above, the Receiving Party m ay disclose Confidential Inform ation to the extent required by
law or court order, provided that prior written notice of such required disclosure and an opportunity to oppose or
lim I disclosure is given to the Disclosing Party.
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5.2 "Confidential Information" means all confidential business, technical, and financial inform ation 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 inform ation and/or the circum dances surrounding the
disclosure (including the term s of the applicable Software Agreem Ent). 0 penG or's Confidential Inform ation
includes, without lim Cation, the software underlying the Software Services and all Docum altation.
5.3 Notwithstanding the foregoing, "Confidential Inform ation" does not include: (a) "Public Data," which is
data that the Custom if 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 Custom if requests 0 penGov make
available to the public in conjunction with the Software Services. Confidential Information does not include (b)
information that has becom e publicly known through no breach by the receiving party; (c) inform ation 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
Inform ation.
6. PAYMJTOFFEES
6.1 Fees; Invoicing; Paym sit; Expenses.
(a) Fees. The fees for the Software Services for the Initial Term and any Renewal Term ("Softw ae
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". Except to the extent otherwise expressly stated in this Agreem ent or in an 0 der Form,(i) all obligations to
pay Fees are non-cancelable and all paym sits are non-refundable, (ii) Custom er m ust pay all Fees due under all
O der Forms and SO W within thirty (30) days after Custom er receives each invoice (invoices are deem ed
received when 0 penG a em als them to Custom a-'s designated billing contact); (iii) the Software Service Fee
shall be due annually in advance, and (iv) Custom er m ust make all paym sits without setoffs, withholdings or
to deductions of any kind.
(b) Annual Software M antenance Price Adjustor sit. 0 penG or shall increase the Fees payable for the
Software Services during any Renewal Term by 5% each year of the Renewal Term.
(c) Invoicing and Paym alt. 0 penG cv will invoice the Custom if according to the Billing Frequency listed
on the 0 der Form.Custom er shall pay all invoices according to the Paym sit Term s listed on the 0 der Form.
(d) Travel Expenses. Unless the SO W provides otherwise, 0 penG a will invoice Custom er for travel
expenses, pre-approved by the Custom er, incurred in connection with each SO Was they are incurred. Custom a-
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.
(e) Custom a-Delays; O n Hold Fee.
I. 0 n Hold Notice. Excluding delays caused by Force M geure as described in Section 10.5, if
0 penGov determ hes that Custom a-'s personnel or contractors are not completing Custom er's
responsibilities described in the applicable SO W tim dy or accurately, 0 penG or shall prom ptly, but in no
event m cre than thirty (30) days from the date of such determ hation deliver to Custom er a notice (an "0 n
Hold Notice") that (A) designates the Professional Services to be provided to the Custom er as "On Hold",
(B) detail Custom er's obligations and responsibilities necessary for 0 penG or to continue perform hg the
Professional Services, and (C) specify the Custom er shall be invoiced for lost tim e in production (e.g.
delayed or lost revenue resulting from rescheduling work on other projects, delay in receiving milestone
paym sits from Custom if, equipm alt, hosting providers and hum an resources idle)for a fee equal to 10% of
the first year Software Service Fee (the "0 nHold Fee").
II. Effects of 0 n Hold Notice. Upon issuing an 0 n Hold Notice, 0 penG a shall be entitled,
without penalty, to (A) reallocate resources otherwise reserved for the perform ance of the Professional
Services, and (B) stop or caused to be stopped the Professional Services to be provided to the Custom a-
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O FENG 0\SO FTWARE SERVICES AG ITEM ENT
until the Custom er has fulfilled its obligations as set forth in the 0 nHold Notice. 0 penG or shall rem ore the
"O n Hold" status, only upon Custom e''s fulfillm Ent of its obligations set out in the 0 nHold Notice, including
paym ait of the 0 n Hold Fee. Upon Custom e-'s fulfillm Ent of its obligations in the 0 nHold Notice, OpenG or
m ay, in its sole discretion, extend the tim dine to com plete certain Professional Services up to six (6)weeks,
depending on the availability of qualified team resources (0 penG cv cannot guarantee that these team
resources will be the same as those who were working on the project prior to it being placed On Hold).
0 penGov shall bear no liability or otherwise be responsible for delays in the provision of the Professional
Services occasioned by Custom Er's failure to corn plete Customer's responsibilities or adhere to a Custom if
schedule which were brought to the attention of the Custom a' on a tim dy basis, unless such delays result,
directly or indirectly from the failure of 0 penG a or its authorized independent contractors to perform the
Professional Services in accordance with this Agreem ant or applicable SO W.
6.2 Consequences of Non-Paym art. If Custom e•fails to m ace any paym ents required under any 0 der Form
or SO W,then in addition to any other rights 0 penG or may have under this Agreem ent or applicable law, (a)
Custom e' will owe late interest penalty of 1.5% of the outstanding balance per m cnth, or the maximum rate
perm tted by law, whichever is lower and (b) If Custom Er's account rem ens delinquent (with respect to paym Ent of
a valid invoice) for thirty (30)days after receipt of a delinquency notice from 0 penG cv, which m ay be provided via
em al to Custom e-'s designated billing contact, 0 penG a m ay tem porarily suspend Custom e-'s access to the
Software Service for up to ninety (90) days to pursue good faith negotiations before pursuing term hation in
accordance with Section 7. Custom Er will continue to incur and owe all applicable Fees irrespective of any such
Service suspension based on such Custom e'delinquency.
6.3 Taxes. All Fees under this Agreem ait are exclusive of any applicable sales, value-added, use or other
taxes ("Sales Taxes"). Custom a' is solely responsible for any and all Sales Taxes, not including taxes based
solely on OpenG or's net incom e If any Sales Taxes related to the Fees under this Agreem ait are found at any
time to be payable, the am cunt may be billed by 0 penG or to, and shall be paid by, Customer. If Customer fails to
to pay any Sales Taxes, then Custom e- will be liable for any related penalties or interest, and will indem rify
0 penG or for any liability or expense incurred in connection with such Sales Taxes. In the event Customer or the
transactions contem plated by the Agreem ait are exem pt from Sales Taxes, Custom if agrees to provide
O penG cv, as evidence of such tax exem pt status, proper exem ption certificates or other documentation
acceptable to 0 penG cv.
7. TERM &TERM NATIO N
7.1 Term. Subject to compliance with all term sand conditions, the term of this Agreem ait shall com rrlence on
the Effective Date and shall continue until the Subscription End Date specified on the 0 der Form (the "Initial
Term") unless sooner term hated pursuant to Section 7.3 below.
7.2 Renewal. This Agreement shall automatically renew for another period of the sam eduration as the Initial
Term (the "Renew d Term" and together with the Initial Term,the "Term"), unless either party notifies the other
party of its intent not to renew this Agreem ant in writing no less than thirty (30) days before the end of the Initial
Term.
7.3 Termination. Neither party shall have the right to term hate this Agreem Ent without a legally valid cause. If
either party materially breaches any term of this Agreem ent 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-paym ent), the non-breaching party m ay
term hate this Agreem ant.
7.4 Effect of Term hation.
(a) In G eieral. Upon term hation pursuant to Section 7.3 or expiration of this Agreem ent pursuant to
Section 7.1: (a) Custom er shall pay in full for all Software Services and Professional Services performed up to
and including the effective date of term hation or expiration, (b) all Software Services provided to Custom a-
hereunder shall inn m eiiately term hate; and (c) each party shall return to the other party or, at the other party's
option, destroy all Confidential Inform dion of the other party in its possession.
(b) Deletion of Custom e- Data. Unless otherwise requested pursuant to this Section 7.4(b), upon the
expiration or term hation of this Agreem art the Custom a- Data, excluding any Insights, shall be deleted pursuant
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to 0 penG o✓'s standard data deletion and retention practices. Upon written request, Custom er m ay request
deletion of Custom a- Data, excluding any Insights, prior to the date of term hation or expiration of this Agreem ait.
Such request m ust be addressed to "0 penG of Vice President, Custom a- Success" at 0 penG o/s address for
notice described at Section 10.
7.5 Survival. The following sections of this Agreem at shall survive term hation: Section 5 (Confidentiality),
Section 6 (Paym ait of Fees), Section 7.4(b) (Deletion of Custom a- Data), Section 8.3 (Warranty Disclaim a-),
Section 9 (Lim Cation of Liability) and Section 10 (M scellaneous).
8. REPRESENTATIO h6 AND WARRANTIES; DISCLAIMER
8.1 By OpenG oi.
(a) G aieral Warranty. 0 penG o✓ represents and warrants that: (i) it has all right and authority necessary to
enter into and perform this Agreem ait; and (ii) the Professional Services, if any, will be performed in a
professional and workm anlike m amer in accordance with the related statem apt of work and generally prevailing
industry standards. For any breach of the Professional Services warranty, Custom a-'s exclusive remedy and
0 penG ois entire liability will be the re-perform aice of the applicable services. If 0 penG a is unable to
re-perform all such work as warranted, Custom a- will be entitled to recover all fees paid to 0 penG a for the
deficient work. Custom a- m i.st make any claim under the foregoing warranty to 0 penG GI in writing within ninety
(90) days of perform aice of such work in order to receive such warranty rem edies.
(b) Software Services Warranty. 0 penG o✓ 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 Docum citation. The
foregoing warranty does not apply to any Software Services that have been used in a m anner other than as set
forth in the Docum amtation and authorized under this Agreem ait. 0 penG o✓ does not warrant that the Software
Services will be uninterrupted or error-free. Any claim subm Red under this Section 8.1(b) m w.st be subm tted in
writing to OpenG 01 during the Term.0 penG o✓'s entire liability for any breach of the foregoing warranty is to repair
to or replace any nonconform hg Software Services so that the affected portion of the Software Services operates as
warranted or, if 0 penG o✓ is unable to do so, term hate the license for such Software Services and refund the
pre-paid, unused portion of the Fee for such Software Services.
8.2 By Custom a-. Custom a- represents and warrants that (i) it has all right and authority necessary to enter
into and perform this Agreem ait; and (ii) 0 penG o✓'s use of the Custom a- Data pursuant to this Agreem ait will
not infringe, violate or m appropriate the Intellectual Property Rights of any third party.
8.3 Disclaim a-. 0 FENG 0 V DO ES NOT WARRANT THAT THE SO FTWARE SERVICES WILL BE
UNINTERRUPTED 0 R ERROR FREE; NO R DO ES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT
MAY BE OBTAINED FROM USE O F THE SO FTWARE SERVICES. EXCEPT AS SET FO RTH IN THIS
SECTIO N 8, THE SO FTWARE SERVICES ARE PRO MDED "AS IS" AND 0 FENG 0 VDISCLAIM SALL 0 1HER
WARRANTIES, EXPRESS 0 R IM PLIED, INCLUDING , BUT NOT LIM RED TO , IM PLIED WARRANTIES 0 F
M ERCHANTABILITY, TITLE, FITNESS FO RA PARTICULAR PURPO SE, AND NO NINFRING BVl ENT.
9. LIMITATIO NO FLIABILITY
9.1 By Type. NEITHER PARTY, NO R ITS SUPPLIERS, 0 FFICERS, AFFILIATES, REPRESENTATIVES,
CO NTRACTO RS O R EM FLO PEES, SHALL BE RESPONSIBLE O R LIABLE WITH RESPECT TO ANY
SUBJECT MATTER 0 FTHIS AG FEEM ENT UNDER ANY CO NTRACT, NEG IJG BVCE, STRICT LIABILITY, 0 R
O 1HER THEO R{: (A) FO RERRO RO R INTERRUPTIO N O FUSE O RFO RLO SS O RINACCURACY OF DATA
O RCO ST OF PRO OJREM ENT 0 F SUBSTITUTE GO O B OR SERVICES 0 RLO SS 0 FBUSINESS; (B) FO R
ANY INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL, O RCO NSEQ LENTIAL DAM AG ES; O R(C)
FO RANY MATTER BEYO ND SUCH PARTY'S REASO NABLE CO NTRO I, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE PO SSIBILITY 0 FSUCH LO SS 0 RDAM AG E
9.2 By Am cunt. IN NO EVENT SHALL EITHER PARTY'S AG G FEG ATE, CUM ULATIVE LIABILITY FO RANY
CLAIM S ARISING 0 UT 0 FO R IN ANY WAY RELATED TO THIS AG FEEM ENT EXCEED THE FEES PAID BY
CUSTO M ER TO 0 FENG 0 V(O FS IN THE CASE 0 FCUSTO M ER, PAYABLE) FO RTHE SO FTWARE SERVICES
UNDER THIS AG FEEM ENT IN THE 12 M O NIHS PRIO RTO THE ACT THAT G NE RISE TO THE LIABILITY.
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9.3 Lim Cation of Liability Exclusions. The lim tations 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) claim s based on either party's intentional breach of its
obligations set forth in Section 5 (Confidentiality), (b) claims arising out of fraud or willful m'sconduct by either
party and (c) either party's unauthorized use, distribution, or disclosure of the other party's intellectual property.
9.4 No Lim Cation of Liability by Law. Because some jurisdictions do not allow liability or dam ages to be
lim ted to the extent set forth above, som eof the above lim Cations m ay not apply to Custom if.
10. M ISCELLANEO US
10.1 Logo Use. O penG a shall have the right to use and display Customer's logos and trade nam ES for
m aketing and prom ctional purposes in connection with 0 penG a's website and m aketing materials, subject to
Custom e-'s tradem ak usage guidelines provided to 0 penG a.
10.2 Notice. O dinary day-to-day operational communications may be conducted by em al, live chat or
telephone corn m unications. However, for notices, including legal notices, required by the Agreem ent(in Sections
where the word "notice" appears) the parties m tst communicate m cre form ally in a writing given by personal
delivery, by pre-paid first-class m al or by overnight courier to the address specified in the m cst recent 0 der Form
(or such other address as m ay be specified in writing in accordance with this Section).
10.3 Anti-corruption. 0 penG or has not offered or provided any bribe, kickback, illegal or inn proper paym ent,
gift, or thing of value to any Custom a- personnel in connection with the Agreem ait, other than reasonable gifts
and entertainm ent provided Custom a- in the ordinary course of business. If 0 penG a become aware of any
violation of the above restriction then 0 penG or shall prom ptly notify Custom if.
10.4 Injunctive Relief. The parties acknowledge that any breach of the confidentiality provisions or the
unauthorized use of a party's intellectual property m ay result in serious and irreparable injury to the aggrieved
party for which dam ages m ay not adequately corn pensate the aggrieved party. The parties agree, therefore, that,
in addition to any other rem edy that the aggrieved party m ay have, it shall be entitled to seek equitable injunctive
to relief without being required to post a bond or other surety or to prove either actual dam ages or that dam ages
would be an inadequate rem edy.
10.5 Force M ajeure. Neither party shall be held responsible or liable for any losses arising out of any delay or
failure in perform aice of any part of this Agreem ent, other than paym ait obligations, due to any act of god, act of
governor aital authority, or due to war, riot, labor difficulty, failure of perform aice by any third-party service,
utilities, or equipm ait provider, or any other cause beyond the reasonable control of the party delayed or
prevented from perform hg.
10.6 Severability; Waiver. If any provision of this Agreem alt is found to be unenforceable or invalid, that
provision will be lim ted or elim hated to the m him ur extent necessary so that this Agreem ent will otherwise
rem an in full force and effect and enforceable. Any express waiver or failure to exercise prom ptly 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 Agreem ent.
10.7 Assignm ait. 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 Agreem ait 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 Agreem ait, through
purchase, merger, consolidation, or otherwise. Any other attem pted assignm ait shall be void. This Agreem ait
shall inure to the benefit of and bind each party's perm tted assigns and successors.
10.8 Independent Contractors. No agency, partnership, joint venture, or em ploym ent 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 Agreem art, the prevailing party
will be entitled to recover costs and attorneys'fees.
10.10 G aerning Law and Jurisdiction. This Agreement shall be governed by the laws of the State of California
without regard to its conflict of laws provisions. Exclusive jurisdiction for litigation of any dispute, controversy or
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O FENG 0\SO FTWARE SERVICES AG TEEM ENT
claim arising out of or in connection with this Agreem eit shall be only in the Federal or State court with competent
jurisdiction located in San M deo County, California, and the parties hereby subm I to the personal jurisdiction and
venue therein.
10.11 Complete Agreem art. This Agreem eat is the com plete and exclusive statement of the m Ltual
understanding of the parties and supersedes and cancels all previous written and oral agreements,
corn m unications, and other understandings relating to the subject m titer of this Agreem eit. No m cdification of
this Agreement will be binding, unless in writing and signed by an authorized representative of each party.
to
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DocuSign Envelope ID:71AD63B4-7DE6-49FD-BCCE-466C4665A335
CLAY COUNTY UTILITY AUTHORITY
STANDARD ADDENDUM TO ALL CONTRACTS
AND AGREEMENTS
Any other provisions of the contract or agreement to which this Standard Addendum (herein so
called) is attached to the contrary notwithstanding, the parties specifically agree that the provisions
hereinafter set forth will apply exclusively with respect to the matters addressed,whether addressed in said
contract or agreement or not, and shall be deemed an integral part of said contract or agreement as if duly
set out therein, having a force and effect of equal or superior dignity, as applicable, with the provisions
thereof; provided, that if the provisions of the contract or agreement address a particular matter in a
manner which results in a lower cost to the Authority than this Standard Addendum, then such provisions
of the contract or agreement shall control and supersede the applicable provisions hereof(as used herein,
the term"Contractor"means the vendor or other party in the contract or agreement providing construction,
labor, materials, professional services, and/or equipment to the Authority thereunder; the term "Utility",
"Authority", "CCUA", "Customer", "Client", or any variation thereof means Clay County Utility
Authority, a political subdivision of the State of Florida, or any other name or label set forth in the contract
or agreement identifying such entity).
1. All payments for services rendered, or supplies, materials, equipment and the like
constructed, delivered or installed under the contract or agreement (the "Work") shall be made by the
Authority in accordance with the Local Government Prompt Payment Act (the "Act"). Upon receipt of a
proper statement, invoice or draw request the Authority shall have the number of days provided in the Act
in which to make payment.
i 2. Any work or professional services subcontracted for by the Contractor for which the
Authority has agreed to reimburse the Contractor shall not be marked-up, but shall be payable by the
Authority only in the exact amount reasonably incurred by the Contractor. No other such subcontracted
services shall be reimbursed.
3. In the event the contract or agreement is for professional services, charged on a time basis,
the Authority shall not be billed or invoiced for time spent traveling to and from the Contractor's offices or
other points of dispatch of its subcontractors, employees, officers or agents in connection with the services
being rendered, other than as provided for in the agreement.
4. The Authority shall not be liable to reimburse the Contractor for any courier service,
telephone, facsimile or postage charges incurred by the Contractor, except as follows, and then only in the
exact amount incurred by the Contractor [if the space below is left blank then "NONE" is deemed to have
been inserted therein]:NONE
5. The Authority shall not be liable to reimburse the Contractor for any copying expenses
incurred by the Contractor except as follows, and then only at $0.05 per page [if the space below is left
blank then"NONE" is deemed to have been inserted therein]: NONE
6. If and only if travel and per diem expenses are addressed in the contract or agreement in a
manner which expressly provides for the Authority to reimburse the Contractor for the same, then the
Authority shall reimburse the Contractor only for those travel and per diem expenses reasonably incurred
and only in accordance with the provisions of Section 112.061, Florida Statutes. In the event the
Contractor has need to utilize hotel accommodations or common carrier services, the Authority shall
reimburse the Contractor for his,her or its reasonable expense incurred thereby provided prior approval of
the Executive Director of the Authority, or his or her designee, is obtained.
Standard Addendum to All Contracts and Agreements (Rev.2020) -CCUA Page 1
DocuSign Envelope ID:71AD63B4-7DE6-49FD-BCCE-466C4665A335
7. With respect to drawings and/or plans prepared on behalf of the Authority by the
Contractor under the contract or agreement, unless specifically provided otherwise therein, complete sets
of such drawings and/or plans shall be reproduced by the Contractor without cost to the Authority for all
bidders requesting the same, and five complete sets of such drawings and/or plans shall be reproduced and
delivered to the Authority without cost.
8. With respect to any indemnification by the Authority provided under the contract or
agreement, any such indemnification shall be subject to and within the limitations set forth in Section
768.28, Florida Statutes, and to any other limitations,restrictions and prohibitions that may be provided by
law, and shall not be deemed to operate as a waiver of the Authority's sovereign immunity.
9. In that the Authority is a governmental agency exempt from sales tax, the Authority shall
pay no such taxes, any other provisions of the contract or agreement to the contrary notwithstanding. The
Authority shall provide proof of its exempt status upon reasonable request.
10. Any pre-printed provisions of the contract or agreement to the contrary notwithstanding,
the same shall not automatically renew but shall be renewed only upon subsequent written agreement of
the parties.
11. Any pre-printed provisions of the contract or agreement to the contrary notwithstanding,
no transportation surcharges shall apply, and no policies of the Contractor available on the Contractor's
website or retained in the Contractor's office are incorporated by reference nor shall be deemed to be part
of the contract or agreement, unless the same is attached to the contract or agreement, and separately
signed by the duly authorized signor for the Authority.
i12. Any pre-printed provisions of the contract or agreement to the contrary notwithstanding,
the Authority's entry into the contract or agreement with Contractor does not give Contractor any
preferential status, "most favored nations" status, nor right of first refusal to any renewal or for any other
contract or agreement to provide other goods and/or services to the Authority.
13. Any pre-printed provisions of the contract or agreement to the contrary notwithstanding,
the Authority, by written notice to Contractor, may terminate the contract or agreement in whole or in part
when the Authority determines in the Authority's sole discretion that it is in the Authority's interest to do
so. Contractor shall not furnish any product, goods, or services after it receives the notice of termination
from the Authority, except as necessary to complete the continued portion of the contract or agreement, if
any. Contractor shall not be entitled to recover any cancellation charges or lost profits in the event of such
termination by the Authority. Contractor shall be entitled to reimbursement for Contractor's costs, charges
or fees incurred or expended pursuant to the contract or agreement,but not yet reimbursed or compensated
by the Authority,up until the date of termination.
14. Any pre-printed provisions of the contract or agreement to the contrary notwithstanding,
the contract or agreement will be governed and construed in accordance with the laws of the State of
Florida without giving effect to principles of conflict of laws. Both parties agree to submit to jurisdiction in
Florida and further agree that any cause of action arising under this Agreement shall be required to be
brought in state court in Clay County,Florida, or in Federal Court in and for the Middle District of Florida,
Jacksonville Division.
15. Any pre-printed provisions of the contract or agreement to the contrary notwithstanding,
The Florida Public Records Act and Article I, Section 24 of the Florida Constitution ("Florida Public
Records Laws"), are broadly interpreted, construed, and applied to the Authority and, as may be required
by statutory and case law, the Contractor. The Authority's timely lawful compliance with the Florida
Standard Addendum to All Contracts and Agreements (Rev.2020) -CCUA Page 2
DocuSign Envelope ID:71AD63B4-7DE6-49FD-BCCE-466C4665A335
Public Records Laws is required at all times, and any such compliance with the provisions thereof shall not
constitute any default or failure of performance, nor excuse any covenant made or performance due from,
the Contractor under the contract or agreement. Under no circumstances shall the Authority be required to
provide notice to the Contractor, nor be required to consult with the Contractor, prior to the Authority's
acting in lawful compliance with the Florida Public Records Laws.
16. The Authority's performance of this contract or agreement shall be contingent upon and
subject to the existence of lawfully appropriated public funds for each fiscal year(i.e., October 1 through
and including the next following September 30) of the Authority.
Dated Effective ,202 .
Clay County Utility Authority:
By:
Jeremy Johnston,P.E.,M.B.A.
Executive Director
Contractor:
Organization openGov
Signature Doo sI9 by:
il A3A7C ..
Printed Name saFFF m 1811Kra415.mer
Position/Title vice Presi dent, Finance
Standard Addendum to All Contracts and Agreements (Rev.2020) -CCUA Page 3
Angelia Wilson
From: Grady Williams <grady@floridaelder.com>
Sent: Wednesday, May 24, 2023 8:58 AM
To: Angelia Wilson
Cc: Darrin Parker
Subject: Re: FW: OpenGov
This Message Is From an External Sender
This message came from outside your organization.
Yes,you may proceed.They withdrew their strikeout of paragraph 13, so the CCUA standard addendum that they sign
should include that and all other paragraphs.
Regards,
/s/Grady H. Williams, Jr.
authorized digital signature
Grady H Williams, Jr., LL.M., Attorney
to Florida Joint Public Policy Task Force for the Elderly and Disabled
Past President& Board of Directors, Academy of Florida Elder Attorneys
Officer& Board of Directors, ElderSource (NE FL AAA&DRC)
Past President, Clay County Bar Association
Martindale-Hubbell Rated AV° Preeminent"
Grady H. Williams, Jr., LL.M.
Attorneys at Law, P.A.
Kingsley Village Professional Center
1543 Kingsley Ave., Bldg. 5
Orange Park, FL 32073
Office: 904-264-8800 Mobile/Text: 904-813-9785 Fax: 904-264-0155
Designated eService Addresses: grady@floridaelder.com (primary);
Paula@floridaelder.com and renee@floridaelder.com (both secondary)
Firm Website: http://www.floridaelder.com/
Saint Augustine Office:
Near the Intersection of U.S. 1 and King Street
179 King Street
Saint Augustine, FL 32084
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