HomeMy WebLinkAboutAgreement - TrueComp - Signed: 2024-09-19
SOFTWARE SERVICE GENERAL TERMS AND CONDITIONS
These Software Service General Terms and Conditions are entered into by and between GovInvest, Inc. ("Company"), and
City of Gilroy, CA, the entity executing the applicable Order Form ("Customer"), and governs Customer's use of the
Software Service, and if applicable Professional Services. The terms and conditions of this Agreement will be binding on the
parties by mutual execution of the applicable Order Form which includes reference to this Agreement and as of the effective
date of such Order Form.
1. DEFINITIONS
a. "Agreement" means collectively, this Software Service General Terms and Conditions, any Exhibits, and each
Order Form.
b. "Authorized User" means an employee or contractor of Customer that Customer has registered to access and
use the Software Service.
c. "Confidential Information" means any business or technical information disclosed by one party to the other
party, provided that it is identified as confidential at the time of disclosure or that under the circumstances, a
person exercising reasonable business judgment would understand it to be confidential or proprietary.
d. "Customer Data" means the data and information input or uploaded into the Software Service by the
Customer or its Authorized Users.
e. "Fees" means the fee Company charges to Customer for the Software Service or Professional Services as
detailed in each Order Form or SOW.
f. "Order Form" means the document that is signed by both parties, and that identifies the Software Service that
Customer has contracted to use.
g. "Professional Services" means any consulting, development, customization, configuration, training or other
professional services that Company agrees to provide or have provided to Customer pursuant to an agreed
SOW.
h. "Intellectual Property Rights" means patent rights (including, without limitation, patent applications and
disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights
recognized in any country or jurisdiction.
i. "Software Service" means the Internet based software-as-a-service offering from Company that Customer
contracts with Company to access and use pursuant to an Order Form.
j. "SOW" a statement of work document that is signed by both parties and describes Professional Services to be
provided by Company to the Customer and the fees to be paid for such services.
2. SERVICES
a. Services. Subject to the terms of this Agreement, GovInvest grans Customer a limited, non-exclusive, non-
transferrable right to access and use the Software Service set forth in the Order Form during the Subscription
Term solely for Customer's own business purposes. Subject to a fully executed SOW, GovInvest will provide
Professional Services.
b. Support. Subject to the terms of this Agreement, Company will provide Customer with reasonable technical
support services in accordance with the terms set forth in Exhibit A.
3. RESTRICTIONS AND RESPONSIBILITIES
a. Restrictions. Customer will not, directly or indirectly; reverse engineer, decompile, disassemble or otherwise
attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms
relevant to the Software Service or any software, documentation or data related to or used to provide the
Software Service, and modify, translate, or create derivative works based on the Software Service or any
Software Service nor use the Software Service for timesharing or service bureau purposes or otherwise for the
benefit of a third party or remove any proprietary notices or labels. Further, Customer shall not export or re-
export, either directly or indirectly, the Software Service or any copies thereof in such manner as to violate the
export laws and regulations of the United States or any other applicable jurisdiction in effect from time to time
(including, without limitation, when such export or re-export requires an export license or other governmental
approval without first obtaining such license or approval). Without limiting the foregoing, Customer shall not
permit any third parties to access or use the Software Service in violation of any United States export embargo,
prohibition, or restriction. Customer shall be responsible for obtaining and maintaining any equipment and
ancillary services needed to connect to, access or otherwise use the
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Software Service (collectively, "Equipment"). Customer shall also be responsible for maintaining the security
of the Equipment, Customer account, passwords (including but not limited to administrative and Authorized
User passwords) and files, and for all uses of Customer account or the Equipment with or without Customer's
knowledge or consent.
b. Suspension and Disablement. Company may suspend the use of a Software Service, or remove or disable any
Authorized User's account, if Company reasonably and in good faith believes that a violation of the Agreement
has occurred or as may be reasonably necessary to address any material and imminent security vulnerability
that Company discovers or reasonably suspects. Company will use reasonable efforts to notify Customer prior
to any such suspension or disablement, unless Company reasonably believes that (i) it is prohibited from doing
so under applicable law or legal process; or (ii) it is necessary to delay notice in order to prevent imminent harm
to a Software Service or a third party, in which case Company will promptly notify Customer when these
restrictions no longer apply.
c. Usage Data. Company may collect, use and disclose quantitative data and information related to the
performance of a Software Service, for industry analysis, benchmarking, analytics, research and development,
marketing and other business purposes ("Usage Data"). If Company discloses Usage Data, such will be de-
identified and aggregated.
4. CONFIDENTIALITY
a. Use and Nondisclosure. A receiving party will not use the disclosing party's Confidential Information except
as necessary under this Agreement and will not disclose Confidential Information to any third party except to
those of its employees and contractors who have a business need to know such Confidential Information;
provided that each such employee and contractor is bound to confidentiality restrictions at least as restrictive as
the terms set forth in this Agreement. Each receiving party will protect the disclosing party's Confidential
Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party
uses with respect to its own confidential information and in no event less than a reasonable standard of care.
The obligations and restrictions set forth in Section 3(a) will not apply to any information that: (i) is or becomes
generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is
rightfully known by the receiving party at the time of disclosure; (iii) is independently developed. The
provisions of this Section 4(a) will remain in effect during the Term and for a period of five (5) years after the
expiration or termination thereof, except with regard to trade secrets of the disclosing party, which will be held
in confidence for as long as such information remains a trade secret.
b. Required Disclosure. The provisions of this Section 4 will not restrict either party from disclosing the other
party's Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or
other governmental body; provided that to the extent legally permitted, the party required to make such a
disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the
scope of such request; (ii) on a confidential basis to its legal or professional financial advisors; (iii) as required
under applicable securities regulations.
c. Injunctive Relief. The receiving party acknowledges that disclosure of Confidential Information could cause
substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such
disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in
addition to whatever other remedies it might have at law.
5. PROPRIETARY RIGHTS
a. Customer owns and retains: (i) the Customer Data; (ii) Customer's name, logo and other trademarks; and (iii)
all Intellectual Property Rights in and to any of the foregoing.
b. Company owns and retains: (i) the Software Service, and all improvements, enhancements or modifications
made by any party; (ii) the Usage Data, and any feedback or suggestions provided by Customer or Authorized
Users regarding the Software Service; (iii) any software, applications, inventions or other technology
developed by Company in connection with providing the Software Service; (iv) Company's name, logo, and
other trademarks; and (v) all Intellectual Property Rights in and to any of the foregoing.
6. PAYMENT OF FEES
a. Fees. Customer will pay Company the Fees in accordance with the terms set forth in the applicable Order
Form or SOW. Company will invoice Customer annually in advance for
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the Software Service. All payment obligations are noncancellable, and other than as provided in the
Agreement, all amounts paid are non-refundable. If any amounts payable by Customer are still outstanding
more than thirty (30) days after Customer receives notice of non-payment, Company will be entitled, in its sole
discretion, to withhold performance and discontinue Customer's access to the Software Service until all
undisputed amounts past due are paid in full.
b. Taxes. All Fees and other amounts stated or referred to in this Agreement are exclusive of all taxes, duties,
levies, tariffs, and other governmental charges (collectively, "Taxes"). Customer will be responsible for
payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder,
other than any taxes based on Company's net income.
c. If Company incurs other fees mandated by Customer, Customer agrees to reimburse Company for said costs.
7. TERM AND TERMINATION
a. Term. This Agreement will commence on the Effective Date and continue for the period specified in the Order
Form (the "Term"), unless terminated earlier as provided in this Agreement.
b. Termination for Cause. Either party may terminate this Agreement upon written notice if the other party
breaches any material terms of this Agreement and fails to correct the breach within thirty (30) days following
written notice from the non-breaching party specifying the breach.
c. Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement,
Customer's and Authorized Users' right to access and use the Software Service will immediately terminate and
each will immediately cease all use of the Software Service.
d. Survival. The rights and obligations of Company and Customer contained in Sections 3(c) (Usage Data), 4
(Confidentiality), 5 (Proprietary Rights), 5 (Confidentiality), 7(c) (Rights and Obligations Upon Expiration or
Termination), 7(d) (Survival), 8 (Indemnification), 10 (Limitation of Liability), 11 (General), and any
provisions which by their terms extend beyond expiration or termination or which are necessary to interpret the
respective rights and obligations of the parties hereunder will survive any expiration or termination of this
Agreement.
8. REPRESENTATIONS AND WARRANTIES
a. Representations. Each party represents that it has validly entered into the Agreement and has the legal power to do
so.
b. Software Service Warranties. Company warrants during the Term (i) that the Software Service will materially
conform to the description set forth in this Agreement and the applicable Order Form, and (ii) Company will not
materially decrease the overall functionality of a Software Service except to the extent functions become obsolete.
These warranties will not apply to the extent any non-conformity results from a modification of a Software Service
that is not made by Company or its subcontractor, or to the extent arising from the interoperation of a Software
Service with software or other technology not provided by Company.
c. Remedies. Customer must report a non-conformance with the foregoing warranty to Company in writing within
10 business days after the last day of the month in which the non-conformance occurred. If Customer reports the
non-conformance, Company will exercise reasonable efforts to correct it. If Company is unable to correct a non-
conformance within 60 days after receiving Customer's written warranty claim, upon receiving a written
termination and refund request from Customer, Company will terminate Customer's the affected Software Service
and, refund any prepaid subscription Fees covering that part of the applicable Term remaining after the effective
date of termination. This Section 8(c) states Customer's exclusive warranties and remedies (and Company's
sole liability) in connection with the performance of a Software Service.
d. Professional Service Warranty. Company warrants for a period of 90 days following the completion of a
Professional Service that the Professional Service was performed with a reasonable level of care and skill and the
requirements of the Agreement, including the applicable SOW.
e. Remedies. Customer must report a non-conformance with the foregoing warranty to Company in writing within
90 days after completion of the non-conforming Professional Service. If Customer reports the non-conformance,
Company will exercise reasonable efforts to re-perform the Professional Service in conformance with the
warranty. If Company is unable to re-perform the Professional Service in conformance with the warranty within
60 days after receiving Customer's written warranty claim, upon receiving a written termination and refund
request from Customer, Company will terminate the applicable SOW and refund any Fees Customer paid for the
non-conforming Professional Services. This Section 8(e) states Customer's exclusive warranties and remedies
(and Company's sole liability) in connection with the performance of a Professional Service.
f. Third-Party Items. Certain commercial third-party software products,
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hardware products, and services ("Third-Party Items") are contained in or used to deliver the Software Service.
Customer accepts these Third-Party Supplier Terms by using the Software Service. Third-Party Items are
provided to Customer "AS IS" and Company makes no warranties and will have no liability for Third-Party Items
whatsoever.
g. Disclaimers. Except as expressly provided in this Section 8, neither party makes any warranty of any kind, whether
express, implied, statutory or otherwise, and to the maximum extent permitted by applicable law each party
specifically disclaims all implied warranties, including any implied warranties of merchantability, accuracy, fitness
for a particular purpose, title or non-infringement. Without limiting the generality of the foregoing, Company does
not warrant that any Software Service will meet your requirements or operate without interruption or error. Each
party disclaims all liability and indemnification obligations for any harm or damages caused by any third-party
hosting providers.
9. INDEMNITY
a. Indemnification by Company. Company shall hold Customer harmless from liability to third parties resulting
from infringement by the Software Service of any United States patent or any copyright or misappropriation of any
trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto
and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company
will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply
with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in
accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with
other products, processes or materials where the alleged infringement relates to such combination, (v) where
Customer continues allegedly infringing activity after being notified thereof or after being informed of
modifications that would have avoided the alleged infringement, or (vi) where Customer's use of the Service is not
strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of
competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense
(a) replace or modify the Service to be non-infringing provided that such modification or replacement contains
substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or
(c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer's rights
hereunder and provide Customer a refund of any prepaid, unused fees for the Service. THE FOREGOING STATES
COMPANY'S AND ITS LICENSORS' SOLE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE
REMEDY WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION
OF INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE SERVICE.
b. Indemnification by Customer. Customer will defend Company, its officers, directors and employees, from and
against any action or suit brought against Company by a third party based on a claim that the Customer Data
infringes or violates the rights of a third party. Customer will indemnify and hold harmless Company from and
against any damages and costs awarded against Company or agreed in settlement by Customer (including
reasonable attorneys' fees) resulting from such claim, provided that (i) Company provides Customer with prompt
written notice of such claim; (ii) Company provides reasonable cooperation to Customer, at Customer's expense, in
the defense and settlement of such claim; and (iii) Customer has sole authority to defend or settle such claim,
provided that it may not settle any claim in a manner that imposes any material liability upon Company or requires
Company to admit wrongdoing.
10. LIMITATION OF LIABILITY
a. EXCLUSION OF DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR
EXCLUDED CLAIMS (AS DEFINED BELOW IN SECTION 10(C) AND FOR WHICH THERE WILL BE
NO CAP ON LIABILITY), NEITHER CUSTOMER NOR COMPANY, AND ITS AFFILIATES AND
SUPPLIERS, WILL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES; OR (II) LOSS OF USE,
DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT),
EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE
POSSIBLE, EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE, AND REGARDLESS OF THE
TYPE OF ACTION OR THEORY OF LIABILITY.
b. TOTAL LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR EXCLUDED
CLAIMS (FOR WHICH THERE SHALL BE NO CAP ON LIABILITY), NEITHER PARTY'S
AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY
CUSTOMER TO COMPANY DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING
RISE TO LIABILITY.
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c. EXCLUDED CLAIMS. "EXCLUDED CLAIMS" MEANS: (I) ANY INTENTIONAL MISCONDUCT OR
GROSS NEGLIGENCE BY EITHER PARTY; (II) ANY AMOUNTS PAYABLE TO THIRD PARTIES
PURSUANT TO EACH PARTY'S INDEMNITY OBLIGATIONS UNDER SECTION 7; OR (III) ANY
SUMS PAYABLE OR REIMBURSABLE UNDER THE AGREEMENT.
11. MISCELLANEOUS
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.
This Agreement is not assignable, transferable or sublicensable by Customer except with Company's prior written
consent. Company may not transfer or assign any of its rights and obligations under this Agreement without Customer's
prior written consent. The provisions of the Agreement are only for reliance upon and the benefit of Customer and
Company and its licensors and confer no rights or remedies on any other person or entity. This Agreement is the
complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous
written and oral agreements, communications and other understandings relating to the subject matter of this Agreement,
and all waivers and modifications in this Agreement must be in a writing signed by both parties, except as otherwise
provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and
Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or
proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys'
fees. Notices will be sent to the addresses set forth in the Order Form. All notices under this Agreement will be in
writing and will be deemed to have been duly given when received, if personally delivered; when receipt is
electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by
recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days, and
Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.
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Exhibit A
Service Terms
The Software Service will be available 99% of the time, measured monthly, excluding holidays and weekends and scheduled
maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude
periods affected by such maintenance. Further, any downtime resulting from outages of third-party connections or utilities or
other reasons beyond Company's control will also be excluded from any such calculation. Customer's sole and exclusive
remedy, and Company's entire liability, in connection with Service availability shall be that for each period of downtime
lasting longer than 12 hours, Company will credit Customer 1% of the Software Service Fees for each period of 30 or more
consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime will begin to
accrue as soon as Customer (with notice to Company) recognizes and reports that downtime is taking place, and continues
until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in
writing within 12 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive
downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1)
week of Software Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in
which the incident occurred.
Company will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours
of 9:00 a.m. through 5:00 p.m. Pacific Standard Time, with the exclusion of Federal Holidays ("Support Hours").
Customer may initiate a help desk ticket during Support Hours by calling 310-371-7106 or any time by emailing
support@govinvest.com.
Company will use commercially reasonable efforts to respond to all help desk tickets within one (1) business day.
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Exhibit B
Order Form
Customer Name: City of Gilroy, CA Subscription Start Date:
10/01/2024
Billing Address: 7351 Rosanna St, Gilroy, CA 95020 Subscription End Date: 09/30/2026
Billing Email: harjot.sangha@cityofgilroy.org Initial Term: 24 months
PO Required: No Account Executive: Brady Duncan brady.duncan@govinvest.com
Payment Terms: Net 45 Offer Valid Until: 09/30/2024
Invoice Schedule:
Total Contract Value will be invoiced upon execution of this
Order Form.
Software Service License Metric #1 License Metric #2 Annual Software Total
Labor Costing Module # Employees: 200 # Bargaining Units: 12 $5,000*
Recurring Consulting # Annual Hours: 20 Hourly Rate: $250 $5,000
OPEB Module $5,000
GASB 75 Report $3,000**
Pension Module $9,495
*1-Year Extension on Labor Costing without fee due to significant delay in delivery
**Report fee due upon delivery
Payment
First Year Price $22,495
Second Year Price $27,495
Total Contract Value $49,990
Additional Terms
Prices shown above do not include any taxes that may apply. Any such taxes are the responsibility of Customer. Any
applicable taxes will be determined based on the laws and regulations of the taxing authority(ies) governing the Billing
Address provided by Customer on this Order Form.
Upon the first renewal of this Order Form, the Fees will increase by the greater of the US CPI or 5% each consecutive year,
and payable in advance. The Software Service in this Order Form shall automatically renew for subsequent one-year periods
following the initial term, unless either party notifies the other in writing of its intent not to renew at least thirty (30) days
prior to the end of the then-current term. If a party provides timely notice of its intent not to renew the Agreement, the
Agreement shall expire at the end of the then-current Term.
This Order Form is entered into as of the date of last signature below (the "Effective Date") by and between Company and
Customer. The Order Form is governed to and incorporates by reference the Software Service General Terms and
Conditions found at https://legal.govinvest.com/#esa on the date hereof (the "Agreement"). Capitalized terms not defined
herein will have the meaning ascribed to them under the Agreement. The parties have caused this Order Form to be signed
as of the Effective Date by their duly authorized representatives.
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Company will use compensation information, comparator data, census data, union plan provisions, and/or other information
sources accessed via public records and/or provided directly by government agencies to develop the data set for Customer.
Company will rely on this information without audit.
While the pension Software Service is tested against actuarial valuation results, the software results will not match, nor are
intended to match actuarial valuation results.
GOVINVEST INC.: City of Gilroy, CA:
By: ______________________________ By: _____________________________
Name: Nick Martin Name: Harjot Sangha
Title: Director of Finance & Operations Title: Finance Director
Date: Date:
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9/19/20249/19/2024