HomeMy WebLinkAboutOpenGov, Inc.OPENGOV, INC. SOFTWARE AGREEMENT
0 OpenGov, Inc.
Aff
in
M W. 955 CharterStreet
IL AF
Redwood City, CA 94M
U
ned it -tates
S
Quote Nu mi,ber
OG -000,030819
Created Date
3123/2017
Quote Expiration
101112017
Contraot Dates
EffectIve Date: 911122017
End Date
W�31/2'020
-P,us On -fp ma:fi:o,h
Contact Name Pak Lin
Phone 650-9472512
Email plin@losaltoshills.,ca,.gov
Prepared By SteweZelezny
Phone (650) 422-3795
r
Email szelezirly@opengov, con, i
Contraot Term 36 Months
Bill To Name Town of Los Altos Hills, CA
Bill To 26379 Fremont Road
Los Altos Miffs Tawn., Callifornia 94022
United States
Open Gov ERPI Integrations - GA - Under $10 Million 191112017
Open'Oov Intelligence 1mplementationfdr Tier I Accounfing
9t,1 12017
Systems
04pen Gov Trans,parency andintelligence - Under $10 M101on: 9/1120 -1.7
Annual Fee
Billing reque .0'.
;F , n, v
USD 1OP788,00
Annual
813112:020
USD
USD
3P720-00
USD 0.00
USO 3,240.00
8/3112020
USD
.ASL)
70068-00
21,204.00
First Term
U,SD 14702;8,00
Grand Tel
USD 35,604.00
Weloome to OpenGavl Ilianks for using our softare. This Software, Agreement ('Agreement') isenteredinto be *Wean OpenGov, Inc., with its
principal place of business at .955 Charter Street,
I Redwood Oity,�,54063 ("Open Gov"),and you, the entity identified above ("Gustomee'),:as of
the Effective Date. This, Agreement Includiss and incorporates the OpenGov Terms and Condiflons aftached as Appendix A. By signing this
Agreement, Customer acknoWedges that it has reviewed, and sigrees -to be legally bound by, the OpenGovTerms and Conditions, Each
party's acceWtanoe of this Agreemert is, conditional upon the ether acceptancecif the. terms in -the Agreement to the exaJusion of all other
terms.
Signature -
Customer OpenGov, Inc.
Signature,
Si
Name: CAV-L_,_CAV)% Name:
Tftle:MTitle: ,t.i K go
Date: D a "LL %e
OPENGOV, INC. SOFTWARE AGREEMENT
Terms and Conditions
Appendix A
OpenGov Terms and Conditions
SOFTWARE SERVICES
1.1 Subject to the terms and conditions of these OpenGov Terms and Conditions (the "Agreement"), OpenGov will use commercially
reasonable efforts to perform the software services (the "Software Services") identified in the applicable Software Agreement entered into by
OpenGov and Customer ("Software Agreement").
1.2 Customer understands that OpenGov's performance depends on Customer timely providing OpenGov with a copy of the Customer's
chart of accounts in csv or xis format. In addition, Customer agrees to provide OpenGov with five or more years of general ledger data, also in
.csv or xis format, including budget data for the current year and actual expense and revenue data for past years. Any dates or time periods
relevant to OpenGov's performance will be extended appropriately and equitably to reflect any delays caused by Customer's failure to timely
deliver any such materials. OpenGov shall not be liable for any delays in performance under this Agreement resulting from Customer's failure
to meet these obligations.
RESTRICTIONS AND RESPONSIBILITIES
2.1 This is a contract for access to the Software Services and Customer agrees not to, directly or indirectly: reverse engineer, decompile,
disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software
Services, documentation or data related to the Software Services, except to the extent such a restriction is limited by applicable law; modify,
translate, or create derivative works based on the Software Services; or copy, rent, lease, distribute, assign, sell, or otherwise commercially
exploit, transfer, or encumber rights to the Software Services; or remove any proprietary notices.
2.2 Customer will use the Software Services only in compliance with all applicable laws and regulations (including, but not limited to, any
export restrictions).
2.3 Customer shall be responsible for obtaining and maintaining any equipment and other services needed to connect to, access or
otherwise use the Software Services and Customer shall also be responsible for (a) ensuring that such equipment is compatible with the
Software Services, (b) maintaining the security of such equipment, user accounts, passwords and files, and (c) for all uses of Customer user
accounts with or without Customer's knowledge or consent.
3. OWNERSHIP. OpenGov retains all right, title, and interest in the Software Services and all intellectual property rights (including all past,
present, and future rights associated with works of authorship, including exclusive exploitation rights, copyrights, and moral rights, trademark
and trade name rights and similar rights, trade secret rights, patent rights, and any other proprietary rights in intellectual property of every kind
and nature) therein.
4. CONFIDENTIALITY. Each party (the "Receiving Party") agrees not to disclose (except as Permitted herein) any Confidential Information
of the other party (the "Disclosing Party") without the Disclosing Party's prior written consent. "Confidential Information" means all confidential
business, technical, and financial information of the disclosing party that is marked as "Confidential" or an equivalent designation or that should
reasonably be understood to be confidential given the nature of the information and/or the circumstances surrounding the disclosure (including
the terms of the applicable Software Agreement). OpenGov's Confidential Information includes, without limitation, the software underlying the
6. DATA LICENSE. Customer grants OpenGov a non --exclusive, transferable, perpetual, worldwide, and royalty -free license to use any data
or information submitted by Customer to OpenGov for the development of new software or the provision of the Software Services.
S. PAYMENT OF FEES. The fees for the Software Services ("Fees") are set forth in the applicable Software Agreement. In no event shall the
total payment on the contract exceed Thirty -Five Thousand Six Hundred and Four dollars ($35,604). Customer shall pay all Fees within thirty (30)
days after the date of OpenGov's invoice, which shall be billed as of the Effective Date. Taxes. All Fees under this Agreement are exclusive of
any applicable sales, value-added, use or other taxes ("Sales Taxes"). Customer is solely responsible for any and all Sales Taxes, not including
taxes based solely on OpenGov's net income. If any Sales Taxes related to the Fees under this Agreement are found at any time to be payable,
the amount may be billed by OpenGov to, and shall be paid by, Customer. If Customer fails to pay any Sales Taxes, then Customer will be liable
for any related penalties or interest, and will indemnify OpenGov for any liability or expense incurred in connection with such Sales Taxes.
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 page one (1) of the Agreement. The Customer will be billed according to the Billing Frequency as specified above. The
Customer will be billed on an annual basis for each twelve (12) month term. If either party materially breaches any term of this Agreement and
fails to cure such breach within thirty (30) days after notice by the non -breaching party (ten (10) days in the case of non-payment), the non -
breaching party may terminate this Agreement immediately upon notice.
7.2 Upon termination, Customer will pay in full for all Software Services performed up to and including the effective date of termination. Upon
any termination of this Agreement: (a) all Software Services provided to Customer hereunder shall immediately terminate; and (b) each party
shall return to the other party or, at the other party's option, destroy all Confidential Information of the other party in its possession.
7.3 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation,
accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
WARRANTY AND DISCLAIMER
8.1 OpenGov represents and warrants that: (i) it has all right and authority necessary to enter into and perform this Agreement; and (ii) the
Software Services shall be performed in a professional and workmanlike manner in accordance with generally prevailing industry standards.
8.2 Customer represents and warrants that (i) it has all right and authority necessary to enter into and perform this Agreement; (ii) it owns all
right, title, and interest in and to all data provided to OpenGov for use in and in connection with this Agreement, or possesses the necessary
authorization thereto; (iii) OpenGov's use- of such materials in connection with the Software Services will not violate the rights of any third party
and (iv) it will not transfer any Personally Identifiable Information ("Pil") to the Software Services platform.
8.3 OPENGOV DOES NOT WARRANT THAT THE SOFTWARE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES
IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE SERVICES. EXCEPT AS
SET FORTH IN THIS SECTION 8, THE SOFTWARE SERVICES ARE PROVIDED "AS IS" AND OPENGOV DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A
PARTICULAR PURPOSE, AND NON -INFRINGEMENT.
9. LIMITATION OF LIABILITY. NEITHER PARTY, NOR ITS'SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES,
CONTRACTORS AND EMPLOYEES, SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT OR RELATED TERMS AND CONDITIONS UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER
THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL,
SPECIAL, OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY MATTER BEYOND SUCH PARTY'S REASONABLE CONTROL, EVEN IF
OPENGOV, INC. SOFTWARE AGREEMENT
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT SHALL EITHER PARTY'S
AGGREGATE, CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT
EXCEED THE FEES PAID BY CUSTOMER TO OPENGOV (OR, IN THE CASE OF CUSTOMER, PAYABLE) FOR THE SOFTWARE
SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
11. INSURANCE. OpenGov shall file with the TOWN a certificate of insurance before commencing any services under this Agreement as
follows:
• WORKERS COMPENSATION INSURANCE: Minimum statutory limits.
• COMMERCIAL GENERAL LIABILITY AND PROPERTY DAMAGE INSURANCE: General Liability and Property Damage
Combined. $1,000,000.00 per occurrence including comprehensive form, personal injury, broad form personal damage, contractual
and premises/operation, all on an occurrence basis. If an aggregate limit exists, it shall apply separately or be no less than two (2)
times the occurrence limit.
• ERRORS AND OMISSIONS INSURANCE: $1,000,000.00 aggregate.
• NOTICE OF CANCELLATION: The City requires 30 days written notice of cancellation. Additionally, the notice statement on the
certificate should not include the wording "endeavor to" or "but failure to mail such notice shall impose no obligation or liability of any
kind upon the company, its agents or representatives."
• CERTIFICATE OF INSURANCE: Prior to commencement of services, evidence of insurance coverage must be shown by a properly
executed certificate of insurance and it shall name "The Town of Los Altos Hills, its elective and appointed officers, employees, and
volunteers" as additional insureds.
• To prevent delay and ensure compliance with this Agreement, the insurance certificates and endorsements must be submitted to:
Town of Los Altos Hills
26379 Fremont Road
Los Altos Hills, CA 94022
Appendix
OpenGov Service Level Metrics
1. SCHEDULED DOWNTIME. When needed, OpenGov will schedule downtime for routine maintenance or system upgrades
("Scheduled Downtime") for its Services. OpenGov shall exercise commercially reasonable efforts to schedule Scheduled Downtime outside of
peak traffic periods. OpenGov will notify Customer's designated contact at least twenty-four (24) hours prior to the occurrence of Scheduled
Downtime.
SYSTEMS ACCESSIBILITY WARRANTY.
A. The Services will be accessible 99.9% of the time, 7 days of the week, and 24 hours per day, as calculated over a calendar month
("Systems Accessibility Warranty„). Such System Accessibility Warranty shall not apply to, and OpenGov will not be responsible -For, any
inaccessibility which: 1) results from Scheduled Downtime, including a maintenance period every Tuesday from 6:00pm Pacific Time to
11:00pm Pacific Time ; 2) results from a Failure of equipment, software or services not under the direct control of OpenGov; 3) results from the
failure of communication or telephone access service or other outside service or equipment not the fault of OpenGov; 4) is caused by a third
party not under OpenGov' control; or 5) is a result of causes beyond the reasonable control of OpenGov, including any force majeure event.
To the extent solely under OpenGov' control, OpenGov shall be responsible for monitoring and maintaining adequate controls over Customer
Data transmissions and storage. OpenGov shall be solely responsible for setting applicable data processing and transmission parameters.
B. If the Services experience Downtime, then as Customer's sole and exclusive remedy, and OpenGov' sole and exclusive financial
liability and obligation, Customer is entitled to a Service Level Credit equal as follows:
OPENGOV, INC. SOFTWARE AGREEMENT
99.00% - < 99.9%
1 101%
95.00% - < 99.00% 25%
< 95.00%
50%
• "Downtime" means that for a valid request by our external verification service, made on no less than a minutely basis, results in a
server error (HTTP status 5XX or the server response takes 3 or more minutes).
• "Downtime Period" means a period of fifteen consecutive minutes of Downtime. Intermittent Downtime for a period of less than fifteen
minutes will not be counted towards any Downtime Periods.
• "Monthly Uptime Percentage" means total number of minutes in a month, minus the number of minutes of Downtime suffered from all
Downtime Periods in a month, divided by the total number of minutes in a month.
C. To receive a Service Level Credit, Customer must submit a written request for Service Level Credits to Customer's designated
account manager or the OpenGov support team. To be eligible, the request must (i) include the dates and times of each incident of Downtime
experienced by Customer in the preceding month; and (ii) be received by OpenGov within thirty days after the end of the current monthly
period in which the Downtime occurred.
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
Accessibility Warranty. as alleged in such a request, then OpenGov will apply such Service Level Credits to Customer's next billing period.
Customer's failure to comply with the provisions of Section 2.C. above will disqualify it from receiving a Service Level Credit.
E. Customers whose accounts are past due, delinquent, and/or not in good standing at any time during the service month of a given
service outage are not eligible for a credit.
OpenGov Support Services
1. Support. Customer support is available via email 12 hours per day, Monday through Friday, excluding OpenGov' corporate
designated holidays. See below for a list of holidays observed by OpenGov. Problems may be reported any time, however, OpenGov
will not be obligated to assign work after business hours (9 a.m. to 5 p.m. Pacific Time).
2. Liaisons. On or before the Activation Date, Customer and OpenGov shall each designate a liaison as a respective point of contact for
technical issues. Each party may change such liaison upon written notice from time to time at reasonable intervals. OpenGov will not
be obligated to provide support to any person other than the Customer's designated liaison.
3. Holidays. OpenGov observes the following holidays: New Year's Day, Presidents Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Day after Thanksgiving Day, Christmas Eve Day, Christmas Day, and New Year's Eve.
E%JV_J SOLU"TION 46-17
A RESOLUTION OF THE CITY COUNCIL OF THE TOWN OF LOS ALTOS HILLS
AUTHORIZING THE CITY MANAGER TO AWARD A THREE-YEAR CONTRACT
WITH OPENGOV, INC FOR A WEB -BASED FINANCIAL INTELLIGENCE AND
TRANSPARENCY SOFTWARE, IN THE AMOUNT OF $35,604; AND AMENDING
THE 2017-18 BUDGET BY INCREASING APPROPRIATION BY $18,604 AND NOT
BUDGET FOR SUBSCRIPTION COST IN 2018-19 AND 2019-200
WHEREAS, financial transparency is one of the main objectives of Finance; and
WHEREAS, the most important aspect of financial transparency is the ability to present
comparable data that are understandable and timely; and
WHEREAS, of the Open Government services available, OpenGov, Inc has the more superior
data visualization when it comes to budget to actual data comparisons and multi-year financial
data comparison; and
WHEREAS, the Town budgeted $5,000 for one-time setup and $12,000 for annual subscription
in the 2017-18 Budget; and
WHEREAS, the contract from OpenGov is for $3,720 one-time setup and $32,364 for three years
annual subscription; and
WHEREAS, the total three-year cost will still be less than the three-year budget.
NOW, THEREFORE, the City Council of the Town of Los Altos Hills does hereby resolve
to:
1. authorize the City Manager to award a three-year contract with OpenGov, Inc for a web -
based financial intelligence and transparency software, in the amount of $35,604; and
2. amend the 2017-18 budget by increasing appropriation by $18,604 and not budget for
subscription cost in 2018-19 and 2019-20.
The above and foregoing Resolution was passed and adopted by the City Council of the Town of
Los Altos Hills at a regular meeting held on the 171h day of August 2017 by the following vote:
I
AYES: Waldeck, Radford, Corrigan, Spreen, Wu
NOES: None
ABSTAIN: None
ABSENT: None
ATTEST:
lipborah. Padovan City Clerk
BY: moe.-__�Izrylaa
Gary Waldeck, Mayor
Resolution 46-17
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