|
OPENGOV SOFTWARE SERVICES AGREEMENT
<br />
<br />REV: 08-30-2022 MI
<br />Rev. 2018.01_210428
<br />9.2 By Amount. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE, CUMULATIVE LIABILITY FOR ANY
<br />CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY
<br />CUSTOMER TO OPENGOV (OR, IN THE CASE OF CUSTOMER, PAYABLE) FOR THE SOFTWARE SERVICES
<br />UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
<br />9.3 Limitation of Liability Exclusions. The limitations of liability set forth in Sections 9.1 and 9.2 above do not apply
<br />to, and each party accepts liability to the other for: (a) claims based on either party’s intentional breach of its
<br />obligations set forth in Section 5 (Confidentiality), (b) claims arising out of fraud or willful misconduct by either party
<br />and (c) either party’s unauthorized use, distribution, or disclosure of the other party’s intellectual property.
<br />9.4 No Limitation of Liability by Law. Because some jurisdictions do not allow liability or damages to be limited to
<br />the extent set forth above, some of the above limitations may not apply to Customer.
<br />10. INDEMNIFICATION OpenGov will defend, indemnify and hold harmless City and its officers, agents,
<br />employees, and volunteers, (the "Indemnified Parties") from and against all claims, damages, losses and
<br />expenses including attorney fees (each a "Claim") arising out of the performance of the Professional Services
<br />or Software Services (collectively, “Services”), caused in whole or in part by the willful misconduct or any
<br />negligent act or omission of the OpenGov, any subcontractor, anyone directly or indirectly employed by any of
<br />them or anyone for whose acts any of them may be liable, except where caused by the sole negligence or
<br />willful misconduct of City. For the sake of clarity, OpenGov's obligations under this paragraph apply, without
<br />limitation, to Claims relating to data breaches and security incidents and to any other disclosure of personal or
<br />non-public data without prior written authorization of the City.
<br />The Parties expressly agree that any reasonable payment, attorney's fee, cost or expense City incurs or makes
<br />to or on behalf of an injured employee under the City's self-administered workers' compensation is included
<br />as a loss, expense or cost for the purposes of this section.
<br />Without limiting the generality of the forgoing, OpenGov shall defend the Indemnified Parties from and against
<br />any claim, suit, or action (an "Infringement Claim") by a third party that is based upon an allegation that any
<br />part of the services, including, without limitation, any technology or any other content made available to the
<br />Indemnified Parties by OpenGov as part of the services, infringes or otherwise violates the intellectual property
<br />(provided that with respect to patents it shall be limited to US patents) rights of such third party. OpenGov shall
<br />also indemnify and hold harmless the Indemnified Parties from and against any final award of damages or
<br />settlement amounts for release of liability from any such Infringement Claim. In addition, If an Infringement
<br />Claim is made, or if OpenGov has reason to believe such a claim may be made, OpenGov may replace or
<br />modify the relevant services to make them non-infringing, or procure a license for City under the rights allegedly
<br />infringed. If none of the options described in the preceding sentence is available to OpenGov using
<br />commercially reasonable efforts, then OpenGov may terminate this Agreement and refund to City a pro rata
<br />portion of the fees paid in advance for the Software Services for the terminated portion of the Term. OpenGov
<br />shall have no liability under this subsection with respect to any use or other exploitation of the Services not in
<br />compliance with this Agreement or applicable law. This subsection states OpenGov's sole liability to, and City's
<br />exclusive remedy, under this Agreement with respect to infringement or other violation of third party intellectual
<br />property rights. Notwithstanding the foregoing, OpenGov will have no obligation under this Section or otherwise
<br />with respect to any infringement claim based upon (i) any use of the Software Services not in accordance with
<br />this Agreement or for purposes not intended by OpenGov, (ii) any use of the Software Services in combination
<br />with other products, equipment, software, or data not supplied or specified by OpenGov, (iii) any use of any
<br />release of the Software Services other than the most current release made available to Customer, or (iv) any
<br />modification of the Software Services by any person other than OpenGov or its authorized agents or
<br />subcontractors.
<br />OpenGov shall not settle any Claim or Infringement Claim without the prior written approval of City, which
<br />approval may be unreasonably withheld or delayed.
<br />11. MISCELLANEOUS
<br />11.1 Logo Use. Upon written approval of Customer, OpenGov shall have the right to use and display Customer’s
<br />logos and trade names for marketing and promotional purposes in connection with OpenGov’s website and
<br />marketing materials, subject to Customer’s trademark usage guidelines provided to OpenGov.
<br />ATTY/AGR.2022 - Amend No. 1/Opengov, Inc. (Page 10 of 11)
|