2023/06/01 OpenGov OpenGov End User License AgreementOpenGov End User License
Agreement
Last Modified: 6/01/2023
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This End User License Agreement (this “Agreement”) is made between
OpenGov, Inc., a Delaware corporation (“OpenGov”), and a party
procuring OpenGov’s services (“Customer”) through an authorized reseller
(“Reseller”). This Agreement sets forth the terms under which Customer
may use OpenGov’s hosted software 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 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 used between the Reseller and the Customer to
purchase specified OpenGov services.
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1.5 “Party” (or “Parties”) refers to OpenGov and/or Customer. For the avoidance of
doubt, Reseller is not a Party to 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 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. If OpenGov or its authorized independent contractors
provides professional services to Customer through Reseller, such as implementation
services, then OpenGov will specify 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
start of the Subscription Term.
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)
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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) 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 t o
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. Cus tomer 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
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Customer Data for the purpose of providing the Software Services. Customer further
agrees that 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 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 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 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
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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 (f) 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
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 befor e
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 until the 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 will renew if Customer enters another Order Form for
the Software Services and/or additional Professional Services before the end of the
Subscription Term.
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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 the non-breaching Party may terminate this Agreement. Neither Party
shall have the right to terminate this Agreement early without a legally valid 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
Fees for Software Services are due at the beginning of each year of the
Subscription Term, and Customer must timely pay all applicable 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.
8.1.1 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 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
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any claim under this warranty to OpenGov within 90 days of performance of such
work to receive such warranty remedies.
8.1.3 Software Services Warranty. OpenGov further represents and warrants that for a
period of 90 days after 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 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 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 to do so, terminate the license
for such Software Services and refund the pre-paid, unused portion of the fee for such
Software Services to the Reseller.
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,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT.
9. Limitation of Liability
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9.1 By Type. NEITHER OPENGOV NOR CUSTOMER, NOR THEIR 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 FOR THE
SOFTWARE SERVICES UNDER THE APPLICABLE ORDER FORM 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 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 no t 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
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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.
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, tha t, 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 re medy.
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 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
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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. (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. 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 contained in this Agreement. Any modification to this
Agreement must be in writing and signed by an authorized representative of each
party.
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________________________________________________________________
DateRebekah Kramer, Acting City Manager
1/18/2024