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2023-095A
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2023-095A
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Last modified
6/9/2023 10:23:36 AM
Creation date
6/9/2023 10:22:31 AM
Metadata
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Template:
Official Documents
Official Document Type
Agreement
Approved Date
05/16/2023
Control Number
2023-095A
Agenda Item Number
8.S.
Entity Name
OpenGov, Inc.
Subject
Agreement for Purchase of Asset Management Software
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DocuSign Envelope ID: 7D5B427A-5ABE-4FE3-95F2-8BF26A5A9F27 <br />8.1 By OpenGov <br />I General Warranty. OpenGov represents and warrants that: (i) it has all right and authority necessary to <br />enter into and perform this Agreement; and (ii) the Professional Services, if any, will be performed in a <br />professional and workmanlike manner in accordance with the related statement of work and generally prevailing <br />industry standards. For any breach of the Professional Services warranty, Customer's exclusive remedy and <br />OpenGov's entire liability will be the re -performance of the applicable services. If OpenGov is unable to re- <br />perform all such work as warranted, Customer will be entitled to recover all fees paid to OpenGov for the deficient <br />work. Customer must make any claim under the foregoing warranty to OpenGov in writing within ninety (90) <br />days of performance of such work in order to receive such warranty remedies. <br />(b) Software Services Warranty. OpenGov further represents and warrants that for a period of ninety (90) <br />days, the Software Services will perform in all material respects in accordance with the Documentation. The <br />foregoing warranty does not apply to any Software Services that have been used in a manner other than as set <br />forth in the Documentation and authorized under this Agreement. OpenGov does not warrant that the Software <br />Services will be uninterrupted or error -free. Any claim submitted under this Section 8.1(b) must be submitted in <br />writing to OpenGov during the Term. OpenGov's entire liability for any breach of the foregoing warranty is to repair <br />or replace any nonconforming Software Services so that the affected portion of the Software Services operates <br />as warranted or, if OpenGov is unable to do so, terminate the license for such Software Services and refund the <br />pre -paid, unused portion of the Fee for such Software Services. <br />8.2 By Customer. Customer represents and warrants that (i) it has all right and authority necessary to enter <br />into and perform this Agreement; and (ii) OpenGov's use of the Customer Data pursuant to this Agreement will <br />not infringe, violate or misappropriate the Intellectual Property Rights of any third party. <br />8.3 Disclaimer. OPENGOV DOES NOT WARRANT THAT THE SOFTWARE SERVICES WILL BE <br />UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT <br />MAY BE OBTAINED FROM USE OF THE SOFTWARE SERVICES. EXCEPT AS SET FORTH IN THIS SECTION <br />8, THE SOFTWARE SERVICES ARE PROVIDED "AS IS" AND OPENGOV DISCLAIMS ALL OTHER <br />WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF <br />MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON -INFRINGEMENT. <br />LIMITATION OF LIABILITY <br />9.1 By Type. NEITHER PARTY, NOR ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, <br />CONTRACTORS OR EMPLOYEES, SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY <br />SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, <br />OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OF <br />DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR LOSS OF BUSINESS; <br />(B) FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL <br />DAMAGES; OR (C) FOR ANY MATTER BEYOND SUCH PARTY'S REASONABLE CONTROL, EVEN IF SUCH <br />PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. <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 />OPENGOV SOFTWARE SERVICES AGREEMENT <br />9.3 Limitation of Liability Exclusions. The limitations of liability set forth in Sections 9.1 and 9.2 above do not <br />apply 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 <br />party 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 <br />limited to the extent set forth above, some of the above limitations may not apply to Customer. <br />10. MISCELLANEOUS <br />Indian River, FL 5/5 dp <br />
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