Attachment 3 - Opencities-Subscription-Services-AgreementOPENCITIES SERVICES AGREEMENT
1. DEFINITIONS. The following capitalized terms will have the following meanings whenever
used in this Agreement.
1.1. “Acceptable Use Policy” (“AUP”) means, as of any date, the version of OpenCities’
acceptable use policy posted at http://help.OpenCities.com as of such date.
1.2. “Business Day” means a day other than a Saturday or a Sunday on which banks in the State
of California are open for business.
1.3. “Core Module” means the individual modules that are included within the Services. From
time to time, new Core Modules will be introduced to the Services via Version Updates which
are included in the Fees paid by Customer.
1.4. “Customer Data” means any and all data and information, including text, graphics,
photographs, audio-visual elements, music, illustrations, video or other content, domain
names, email, chat room content, bulletin board postings, or any other items or materials of
Customer, any user or any other third party provided or permitted by Customer to be made
available by or to reside within the Services or Customer’s Website.
1.5. “Customer’s Website” means the website(s) created by or on behalf of Customer through use
of the Services for Customer’s internal business purposes.
1.6. “Customizations” has the meaning ascribed to it in Section 2.2(f).
1.7. “Documentation” means OpenCities' standard user documentation and any other operating,
training and reference manuals related to the Services, all of which are contained in the
OpenCities Help Center.
1.8. “Integrations” means optional enhancements to the Services involving third party products
or services, which are offered separately by OpenCities and are available for purchase by
Customer via the OpenCities Help Center.
1.9. “Intellectual Property Rights” means all intellectual or industrial property, including without
limitation any copyright, trade or service mark, patent, moral right, trade secret, logo, know
how, rights in relation to inventions, drawings, discoveries, improvements, technical data,
formulae, computer programs, know-how, logos, designs, circuit layouts, domain names,
business names, software, whether or not now existing, and whether or not registered or
unregistered rights, and rights in respect of Confidential Information.
1.10. “Malicious Code” means code, files scripts, agents or programs intended to do harm,
including, for example, viruses, worms, time bombs and Trojan horses.
1.11. “Order” means an OpenCities, or an OpenCities’ authorized reseller, order form or other
mutually acceptable document that expressly incorporates this Agreement and is duly
executed by Customer and, as applicable, OpenCities or an OpenCities authorized reseller.
1.12. “OpenCities Help Center” means the Documentation and the specifications for the Services
(the “Specifications”) currently posted at http://help.OpenCities.com.
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1.13. “Privacy Policy” means, as of any date, OpenCities’ privacy policy posted at
http://help.OpenCities.com as of such date.
1.14. “Scheduled Maintenance Window” means the date and time slot identified by OpenCities in
a written notice given to Customer via the OpenCities Help Center no later than 5 Business
Days prior to the proposed Scheduled Maintenance Window to enable maintenance work and
Version Updates to be performed. The Scheduled Maintenance Window will be outside of
Customer’s normal business hours and periods of peak demand, whenever reasonably
possible.
1.15. “Services” means the components of OpenCities’ proprietary content management system
set forth in the Order, including, as applicable, data traffic management, website publishing
and web hosting services, and any Version Updates and Core Modules released by
OpenCities, and all related Specifications and Documentation.
1.16. “SLA” or “Service Level Agreement” means, as of any date, OpenCities’ service level
agreement, the current version of which is set forth in Schedule A.
1.17. “Support Services” means the support and maintenance services provided by OpenCities in
accordance with Article 3.
1.18. “Term” is defined in Section 12.1 below.
1.19. “Version Updates” means updated versions of the Services (indicated by a higher numerical
version number) developed by OpenCities with enhancements or additions to the
functionality, and/or performance improvements and bug fixes.
2. SCOPE AND USAGE OF SERVICES.
2.1. Use of Services. During the Term and upon payment of the applicable Fees set out in the
applicable Order, OpenCities shall make the Services available to Customer in accordance with
the terms of this Agreement solely for Customer’s internal business purposes. Customer may
permit an unlimited number of its employees and its contractors to use the Services provided their
use is solely for Customer’s internal business purposes and at all times in compliance with the
terms of this Agreement. Customer agrees to be responsible for any breach of this Agreement by
its contractors.
2.2. Provision of Services. Upon payment of the applicable Fees and subject to the terms of the
applicable Order and the other terms and conditions hereof, OpenCities will use commercially
reasonable efforts to provide the Services to Customer during the Term and to ensure the Services
are available in accordance with the then applicable Service Level Agreement.
2.3. Professional Services. Upon payment of the applicable Fees and subject to the terms of
the applicable Order and the other terms and conditions hereof, OpenCities may provide certain
professional services to Customer, including developer training and custom development services
("Professional Services"). Any Professional Services to be supplied by OpenCities will be
provided pursuant to a separate statement of work executed by Customer and OpenCities. Except
as otherwise provided in an Order, all such Professional Services will be charged on a time and
materials basis at OpenCities then-current rates for the applicable Professional Services.
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OpenCities agrees that any custom software developed by OpenCities (“Custom Software”) will
be compatible with the then-current version of the Services in accordance with the terms set forth
in the applicable statement of work. Customer acknowledges that the support and maintenance
services set out in Article 3 will not be provided for any Custom Software and that Custom
Software is not covered by the Service Level Agreement. If Customer desires to obtain support for
any Custom Software, any support offered by OpenCities will be charged on a time and materials
basis at OpenCities’ then-current rates for such support. Any Custom Software developed by
OpenCities shall be the property of OpenCities. Effective upon delivery of any such Custom
Software to Customer, OpenCities grants Customer a nonexclusive, non-transferable, fully paid
license to copy, modify, create derivative works of and use such Custom Software solely as part
of Customer’s Website during the Term. All modifications and derivative works of the Services
by whomever produced shall be the property of OpenCities.
2.4. Use of Third-Party Service Providers. Customer acknowledges that OpenCities has, and
in the future may, retain one or more third party service providers to supply certain aspects of the
Services, including certain of the facilities, equipment, products, services and connectivity
necessary to offer the Services. Customer acknowledges that OpenCities currently obtains web
hosting services from a third party, and that OpenCities has no responsibility or liability for any
third-party services.
2.5. Documentation: Customer may reproduce and use the Documentation solely as necessary
to support its use of the Services during the Term.
2.6. Users of Customer’s Website. Customer may authorize an unlimited number of users to
access and use Customer’s Website. Customer agrees that it is not authorized to, and agrees not
to, make any representations or warranties regarding the Services or OpenCities to any user or
third party, and further agrees not to otherwise create or purport to create any obligations or
liabilities on the part of OpenCities. Customer agrees to indemnify OpenCities for its and any
user’s acts and omissions related to Customer’s Website and/or the Services. OpenCities has no
obligation to provide support or any other services, or any SLA or other remedies, to such users.
3. MAINTENANCE AND SUPPORT SERVICES.
3.1. Maintenance and Support; SLA. Subject to the other provisions of the Order, this Article
3 and Customer’s payment of all applicable Fees, during the Term:
(a)OpenCities will provide the remedies listed in the SLA for any defect, error, or failure
of the Services or in the Documentation in accordance with the SLA. Such remedies are
Customer’s sole remedy for any failure of or defect in the Services or the Documentation,
and Customer recognizes and agrees that if the SLA does not list a remedy for a given
failure, it has no remedy. Any credits issued pursuant to the SLA for failure to meet the
uptime guarantee specified in the SLA will apply to outstanding or future invoices only
and are forfeited upon termination of this Agreement. OpenCities is not required to issue
refunds or to make payments against such credits under any circumstances, including
without limitation after termination of this Agreement.
(b)OpenCities may revise the SLA or the features and functions of the Services at any time,
provided no such revision materially reduces the features or functionality provided to
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Customer as set forth herein.
(c) OpenCities will provide Customer with Version Updates. Customer acknowledges that
Version Updates are mandatory and necessary for the proper function and security of the
Services. Customer agrees to the implementation of all Version Updates by OpenCities.
Implementation will occur during a Scheduled Maintenance Window. Any SaaS
downtime or functionality issues arising during a Scheduled Maintenance Window will
not be subject to the Service Level Agreement.
(d) OpenCities grants Customer personnel unlimited access to the OpenCities Help Center
to review the Documentation and Specifications. Customer acknowledges and agrees
that it does not have an unlimited right to request maintenance and support services
through the OpenCities Help Center; requests for maintenance and support must be made
in compliance with paragraph (e) hereof.
(e) OpenCities will make available to Customer an online and telephone help desk service,
which will allow 2 designated support representatives of Customer who have received
training in the Services to request maintenance and support services in accordance with
the Service Level Agreement. Requests from other personnel will not be accepted. The
contact details for the online and telephone help desk support services are set out in
Schedule A.
(f) Notwithstanding the provisions of paragraphs (d) and (e) above, where Customer’s
Website is experiencing a Severity 1 problem, any Customer personnel may contact
OpenCities via the telephone help desk to report the Severity 1 problem.
3.2. Scheduled and Emergency Maintenance. OpenCities agrees to use commercially reasonable
efforts to conduct all SaaS maintenance within a Scheduled Maintenance Window. However,
Customer acknowledges that an unplanned event may occur that will require the need for
OpenCities to perform maintenance on the Services on an emergency basis outside of a
Scheduled Maintenance Window. OpenCities will use reasonable efforts to give Customer
advance notice of emergency maintenance, but it is possible that advance notification of
emergency maintenance will not occur. Any SaaS downtime or functionality issues during
the Scheduled Maintenance Window or during emergency maintenance will not be subject
to the Service Level Agreement.
3.3 Conditions. OpenCities provision of the maintenance and support services set forth in this
Article 3 is subject to the following conditions: (a) Customer must document and promptly report
all errors or malfunctions of the Services to OpenCities or its assigned agents and representatives;
(b) Customer must carry out procedures to rectify errors or malfunctions within a reasonable period
after receiving instructions from OpenCities on such procedures; and (c) Customer must provide
OpenCities with reasonable access to Customer's personnel, its assigned agents and representatives
as required by OpenCities to meet its obligations under this Agreement.
3.4 Exclusions. OpenCities is under no obligation to provide the maintenance and support
services specified in this Article 3 if they are requested as a result of or related to: (a) operation of
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the Services with other media and hardware, or services or interfaces not authorized or maintained
in accordance with this Agreement or the Documentation; (b) use of the Services that is not in
accordance with the Documentation; (c) any modification, alteration or addition or attempted
modification, alteration or addition to the Services (unless such modifications were developed by
OpenCities or authorised by OpenCities in writing); (d) failure of any data service, internet service,
hosting service or any other third-party service, or failure of a telecommunications connection,
hardware, software, web services, or third party content, software, or equipment; or (e) any non-
reproducible error or defect reported by Customer.
3.5 Abuse of Maintenance Services. In the event Customer abuses the maintenance and support
services offered by OpenCities (e.g. by declaring a problem Severity Level 1 when it is only
Severity Level 2, 3 or 4, unless such distinction could not reasonably have been determined, or by
reporting problems which are not Severity 1 during non-business hours) an "Abuse Incident" will
be noted, and OpenCities will inform Customer of such.
4. FEES AND PAYMENT TERMS.
4.1 Subscription Fees. Except as otherwise provided in the Order, Customer will pay
OpenCities the annual subscription and other fees set forth in the Order(the “Fees”) during the
Initial Term and the applicable Fees for each Renewal Term, which Fees are based on the resident
population of Customer. Except as otherwise expressly provided in this Agreement, all Fees are
non-cancelable and non-refundable. Except as otherwise provided in the Order, the Fees for the
first year of the Initial Term are payable within 30 days of execution of this Agreement, and the
Fees for each successive year during the Initial Term and each Renewal Term shall be payable net
30 days from the date of OpenCities’ invoice.
4.2 Fee Adjustments. Upon expiration of the Initial Term, Fees may be adjusted for each
Renewal Term to take into account any increases in the Consumer Price Index for all Items as
published by the US Bureau of Labor Statistics. OpenCities shall notify Customer of any Fees
adjustments made pursuant to this Section 4.2 at least seventy (70) days prior to the
commencement of the applicable Renewal Term.
4.3 Overdue Charges. Except as otherwise provided in the Order, if any invoiced amount is
not received by OpenCities by the due date, then without limiting OpenCities’ rights or remedies,
(a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month,
or the maximum rate permitted by law, whichever is lower, and/or (b) OpenCities may condition
future subscription renewals on payment terms shorter than those specified herein. Customer will
be liable for all costs of collection of any undisputed, overdue amounts including, without
limitation, all court costs, legal fees and other costs incurred by OpenCities.
4.4 Taxes. The Fees charged by OpenCities do not include any taxes, levies, duties or similar
governmental assessments of any nature, including, value-added, sales, use or withholding taxes,
assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for
paying all Taxes associated Customer’s purchase of the Services. If OpenCities has the legal
obligation to pay or collect any Taxes for which Customer is responsible under this Section 4(e),
then Customer agrees that OpenCities will invoice Customer that amount unless Customer
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provides OpenCities with a valid tax exemption certificate authorized by the appropriate taxing
authority. For clarity, OpenCities is responsible for taxes assessable against it based on its income,
property and employees.
4.5 Purchases from Authorized Resellers. Notwithstanding the foregoing, in the event that
Customer has purchased Services through an authorized OpenCities reseller pursuant to an Order
that incorporates these terms, the payment arrangements and related terms set forth in the Order
shall control, such terms shall be exclusively by and between such reseller and Customer, and
OpenCities’ sole obligation will be to provide the Services set forth in the Order to Customer on
the other terms and conditions, and subject to the limitations, set forth in this Agreement.
4.6 Future Functionality. Customer agrees that its purchase is not contingent on the delivery
of any future functionality or features, or dependent on any oral or written public comments made
by OpenCities, or any authorized reseller or other third party regarding future functionality or
features.
5. CUSTOMER DATA & SECURITY.
5.1. Customer Rights to Data. Customer retains all right, title and interest (including any
Intellectual Property Rights) in and to all data and content supplied by or on behalf of Customer
in connection with the Services and Customer’s Website, including data uploaded by users thereof
(collectively, the “Customer Data”). Customer hereby grants OpenCities a limited, non-exclusive,
royalty-free, non-transferable license to host, reproduce, transmit, cache, store, exhibit, publish,
display, distribute, perform, and otherwise use the Customer Data solely as necessary to provide
the Services for Customer.
5.2. Responsibility for Customer Data. Customer is solely responsible for Customer Data,
including the accuracy, quality, appropriateness and legality of all Customer Data and the means
by which the Customer Data is acquired, and OpenCities shall have no responsibility or liability
therefor. Customer represents and warrants to OpenCities that Customer owns or has the right to
use Customer Data, and has the rights necessary to grant OpenCities the licence set forth in Section
5.1, all Customer Data will be "server ready" and otherwise remain fully compatible with
OpenCities’ SaaS (including all software and operating systems); and Customer has obtained all
necessary rights, releases and consents to allow the Customer Data to be collected, used and
disclosed in the manner contemplated by this Agreement and to grant OpenCities the rights herein.
5.3. OpenCities’ Use of Customer Data. Unless it receives Customer’s prior written consent,
OpenCities: (a) will not access, process, or otherwise use Customer Data other than as necessary
to facilitate the Services; and (b) will not intentionally grant any third party access to Customer
Data, except subcontractors that are subject to a reasonable nondisclosure agreement.
Notwithstanding the foregoing, OpenCities may disclose Customer Data, including, without
limitation, user profile information (i.e. name, e-mail address, etc.), IP addressing and traffic
information, and usage history, as required by applicable law or by proper legal or governmental
authority. OpenCities will give Customer prompt notice of any such legal or governmental demand
and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to
contest such required disclosure, at Customer’s expense.
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5.4. Protection of Customer Data. OpenCities will use commercially reasonable, industry
standard administrative, physical and technical safeguards for the protection of the security,
confidentiality and integrity of the Customer Data, including implementation of measures designed
to prevent unauthorized access, use, modification, disclosure and loss of the Customer Data.
OpenCities will archive Customer Data on a regular basis during the Term by performing 6 daily
and 8 weekly backups for the purposes of disaster recovery. In the event of equipment failure or
data corruption, OpenCities will restore from the most recent uncorrupted archive. In the event of
corruption of all of OpenCities’ archives, or in the event that an old archive is used to restore data,
Customer will have the responsibility of uploading new Customer Data to Customer’s Website.
OpenCities will not be liable for incomplete, out-of-date, corrupt or otherwise deficient Customer
Data recovered from OpenCities’ backups.
5.5. No Obligation to Monitor; Right to Remove. OpenCities may, but has no obligation to,
monitor, review or edit Customer Data. In all cases, OpenCities reserves the right to remove, delete
or disable access to any Customer Data that OpenCities determines, in the exercise of its sole
discretion, violates this Agreement (including the Acceptable Use Policy) or is illegal, damaging,
problematic, objectionable or otherwise inappropriate. OpenCities may take such action without
prior notification of Customer.
5.6. Privacy Policy. The Privacy Policy applies only to the Services and does not apply to any
third-party website or service linked to the Services or recommended or referred to through the
Services or by OpenCities staff.
5.7. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks
of unauthorized disclosure or exposure and that Customer, by accessing and using the Services,
assumes such risks. OpenCities offers no representation, warranty, or guarantee that Customer
Data will not be exposed or disclosed through errors or the actions of third parties.
5.8. Aggregate Data. Notwithstanding the provisions of this Article 5, OpenCities may use,
reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion.
(“Aggregate Data” refers to Customer Data with the following removed: personally identifiable
information and the names and addresses of Customer and any of its users.)
6. CUSTOMER’S OBLIGATIONS & RESTRICTIONS.
6.1 Acceptable Use. Customer will comply with OpenCities’ AUP as in effect from time to
time. Customer will not: (a) sell, resell, license, sublicense, distribute, make available, rent or
lease the Services or use the Services for service bureau or time-sharing purposes or in any other
way allow third parties to exploit or access the Services, except users accessing Customer’s
Website as specifically authorized by this Agreement; (b) use the Services to store or transmit
infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in
violation of third-party privacy rights; (c) use the Services to store or transmit Malicious Code; (d)
share non-public SaaS features or content with any third party; (e) frame or mirror any part of the
Services other than framing on Customer’s own intranets or otherwise for Customer’s internal
business purposes; (f) reverse engineer any portion of the Services, or (g) access the Services in
order to build a competitive product or service, to build a product using similar ideas, features,
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functions or graphics of the Services, or to copy any ideas, parts, features, functions or graphics of
the Services. In the event that it suspects any breach of the requirements of this Section 6.1,
including without limitation by Customer’s users, OpenCities may suspend or terminate
Customer’s access to the Services without advance notice, in addition to such other remedies as
OpenCities may have. Neither this Agreement nor the AUP requires that OpenCities take any
action against Customer or any user or other third party for violating the AUP, this Section 6.1, or
this Agreement, but OpenCities is free to take any such action it sees fit. Any breach of the AUP
or any of the provisions of this Article 6 will entitle OpenCities to elect to terminate this Agreement
immediately upon written notice to Customer.
6.2 Unauthorized Access; Security. Customer will take reasonable steps to prevent
unauthorized access to the Services and the network, including without limitation by protecting its
passwords and other log-in information. Customer will notify OpenCities immediately of any
known or suspected unauthorized access to or use of the Services or breach of its security and will
use best efforts to stop said breach. Customer shall not:
(a)interfere with or disrupt the integrity or performance of the Services or attempt to gain
unauthorized access to the Services, or OpenCities’ or its suppliers’ related systems and
networks;
(b)commit, cause or allow any breach (or do anything which might put us in breach) of any
applicable law, regulation, government direction or industry standard or code;
(c)attempt to or actually access the Services by any means other than through the portals or
interfaces provided by OpenCities;
(d)attempt to or actually override any security component included in or underlying the
Services; or
(e)attempt or engage in any action that directly or indirectly interferes with the proper
working of or place an unreasonable load on OpenCities' infrastructure.
6.3 Customer Data. Customer agrees that (a) the Customer Data and its use will not violate,
misappropriate or infringe any Intellectual Property Rights or any other personal, privacy or moral
right arising under the laws of any jurisdiction, nor will same constitute a libel or defamation of
any person or entity; and (b) the Customer Data will not contain any harmful components,
including, but not limited to, viruses, trap doors, hidden sequences, hot keys, or time bombs.
6.4 Compliance with Laws. In its use of the Services, Customer will comply with all applicable
laws, including without limitation export control, decency, privacy and intellectual property laws,
laws governing the protection of personally identifiable information and other laws applicable to
the protection of Customer Data.
6.5 Responsibility for Users; Access to Services. Customer is responsible and liable for: (a) its
own and its users use of the Services, including without limitation for any unauthorized user
conduct and any user conduct that would violate the AUP or the requirements of this Agreement
applicable to Customer; and (b) any use of the Services through Customer’s account, whether
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authorized or unauthorized. Customer agrees to indemnify OpenCities against any loss or damage
that OpenCities suffers as a result of any unauthorized access to OpenCities’ SaaS or network or
those of OpenCities’ suppliers.
6.6 Required Third Party Services.
(a) Customer will establish and maintain, at its own expense, all telecommunications
equipment and access lines necessary to gain access to the Services.
(b) In order for OpenCities to provide some of the Services under this Agreement,
Customer may at times, be required to give OpenCities access to or provide login
information and password information for accounts or services Customer may have
with third party providers. When Customer provides OpenCities with this information
or provides OpenCities with access to these third-party accounts, Customer warrants
that it has all the necessary contractual and legal rights to give OpenCities such access,
login information and passwords.
(c) Customer acknowledges that OpenCities will not have any responsibility or liability
with regard to any third party services used by the Customer on or through the Services,
as part of Customer’s Website or otherwise, such as payment and e-commerce services,
and any use of such third party services will be at Customer’s own risk. Customer
further acknowledges that the technical ability to link to such third-party services (such
as the possibility of a 'PayPal' button), is provided only as part of the Services but will
not be deemed to create any liability or responsibility on behalf of OpenCities.
(d) Where any third-party software or services integration to the Services is found to cause
performance, stability or security issues, OpenCities reserves the right to disable or
remove such software or services in order to restore the Services to acceptable levels.
6.7 Customer Representative. Customer will appoint a designated representative who will be
authorized to act as the primary point of contact for Customer in dealing with OpenCities with
respect to each party's obligations under this Agreement and on a timely basis.
7. OPENCITIES IP & FEEDBACK.
7.1 IP Rights in the Services. OpenCities retains all Intellectual Property Rights and all other
right title and interest in the Services, the Documentation, the Support Services, the Professional
Services, the Custom Software and the Aggregate Data, including without limitation all software
used to provide the Services, all graphics, user interfaces, logos, and trademarks reproduced
through the Services, and all work product and derivative works thereof by whomever produced.
This Agreement does not grant Customer any intellectual property license or rights in or to the
Services or any of its components or any Documentation. Customer recognizes that the Services
and its components and the Documentation are protected by copyright and other laws.
7.2 Feedback. OpenCities has not agreed to and does not agree to treat as confidential any
Feedback (as defined below) that Customer or other users provide, and nothing in this Agreement
or in the parties’ dealings arising out of or related to this Agreement will restrict OpenCities’s right
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to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without
compensating or crediting Customer or the user in question. Customer hereby grants OpenCities a
perpetual, irrevocable right and license to exploit Feedback in any and every way. (“Feedback”
refers to any suggestion or idea for improving or otherwise modifying any of OpenCities’s
products or services.)
8.CONFIDENTIAL INFORMATION.
8.1 “Confidential Information” refers to the following items: (a) any document either party
marks “Confidential”; (b) any information either party orally designates as “Confidential” at the
time of disclosure, provided the disclosing party confirms such designation in writing within ten
(10) Business Days; (c) any OpenCities software and all Documentation and other information in
the OpenCities Help Center, whether or not marked or designated confidential; and (d) any other
nonpublic, sensitive information the receiving party should reasonably consider a trade secret or
otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include
information that: (i) is in the receiving party’s possession at the time of disclosure; (ii) is
independently developed by the receiving party without use of or reference to Confidential
Information; (iii) becomes known publicly, before or after disclosure, other than as a result of the
receiving party’s improper action or inaction; or (iv) is approved for release in writing by the
disclosing party.
8.2 Nondisclosure. Neither OpenCities nor Customer will use Confidential Information for any
purpose other than in performance of this Agreement (the “Purpose”). Each of OpenCities and
Customer agrees that it: (a) will not disclose Confidential Information to any of its employees or
contractors unless such persons need access in order to facilitate the Purpose and, in the case of a
contractor, such contractor executes a nondisclosure agreement with the appropriate party with
terms no less restrictive than those of this Article 8; and (b) will not disclose Confidential
Information to any other third party without the disclosing party’s prior written consent. Without
limiting the generality of the foregoing, each party will protect Confidential Information with the
same degree of care it uses to protect its own confidential information of similar nature and
importance, but with no less than reasonable care. Each party agrees that it will promptly notify
the other party of any misuse or misappropriation of the other party’s Confidential Information
that comes to its attention. Notwithstanding the foregoing, each party may disclose Confidential
Information as required by applicable law or by proper legal or governmental authority, provided
such party gives the other party prompt notice of any such legal or governmental demand and
reasonably cooperates with the other party in any effort to seek a protective order or otherwise to
contest such required disclosure, at the other party’s expense.
8.3 Injunction. The parties agree that breach of this Article 8 would cause the disclosing party
irreparable injury, for which monetary damages would not provide adequate compensation, and
that in addition to any other remedy, and that the disclosing party will be entitled to injunctive
relief against such breach or threatened breach, without proving actual damage or posting a bond
or other security.
8.4 Termination & Return. With respect to each item of Confidential Information, the
obligations of Section 8.1 above will terminate five (5) years after the date of disclosure; provided
that such obligations related to Confidential Information of a party constituting trade secrets will
continue so long as such information remains subject to trade secret protection pursuant to
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applicable law. Upon termination of this Agreement, each party will return all copies of the other
party’s Confidential Information to the other party or certify, in writing, the destruction thereof.
8.5 Retention of Rights. This Agreement does not transfer ownership of Confidential
Information or grant a license thereto. Each party will retain all right, title, and interest in and to
all of its Confidential Information.
9. WARRANTY DISCLAIMER.
9.1 Warranty Disclaimers. THE SERVICES ARE PROVIDED “AS IS” AND AS
AVAILABLE, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND,
WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT AND QUIET ENJOYMENT, AND ANY IMPLIED WARRANTY
ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR
USAGE OF TRADE, AND OPENCITIES DISCLAIMS SUCH WARRANTIES TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING: (a) OPENCITIES DOES NOT REPRESENT OR
WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR
ERROR OR IN A TIMELY FASHION; AND (b) OPENCITIES DOES NOT REPRESENT OR
WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER
UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE
OR SECURE. OPENCITIES DISCLAIMS ALL LIABILITY AND INDEMNIFICATION
OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY
HOSTING PROVIDERS.
10. INDEMNIFICATION.
10.1 Indemnification of Customer. Subject to the other provisions of this Section 10.1,
OpenCities will defend Customer and Customer’s Associates (as defined below in Section 10.3)
against any third party claim, suit, or proceeding alleging that the Services or the permitted use
thereof infringes any U.S. trademark, patent, copyright, or trade secret right of a third party
(collectively, “Customer Indemnified Claims”) and will indemnify Customer and Customer’s
Associates from any damages, attorney’s fees and costs finally awarded against Customer and
Customer’s Associates for any Customer Indemnified Claim, or, as applicable, for amounts paid
by Customer and Customer’s Associates in a settlement approved by OpenCities in writing of a
Customer Indemnified Claim.
(a) If in OpenCities reasonable judgment any Customer Indemnified Claim, or threat of
any such Claim, materially interferes with Customer’s use of the Services, OpenCities
will, after consultation with Customer, at OpenCities’ option and in its sole discretion,
either (i) substitute functionally equivalent non-infringing Services or Documentation;
(ii) modify the Services to make them non-infringing, (iii) obtain for Customer at
OpenCities’ expense the right to continue using the infringing Services; or, (iv) if
OpenCities determines that it cannot achieve any of the foregoing on a reasonable
commercial basis, it may, by written notice, require Customer to cease using the
Services, in which case OpenCities, or, as applicable, its authorized reseller, shall
refund Customer a pro-rata portion of the Fees paid for the Services for such period of
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time for which Customer was unable to use the Services.
(b) OpenCities’ obligations set forth in this Section 10.1 do not apply to the extent that a
Customer Indemnified Claim arises out of: (a) Customer’s breach of this Agreement;
(b) revisions or modifications to the Services or any components thereof made by a
party other than OpenCities if such infringement would not have occurred but for such
revisions or modifications; (c) Customer’s failure to incorporate or use any Version
Updates, or any other updates or upgrades that would have avoided the alleged
infringement; (d) inclusion of the Customer Data; (e) the use of the Services other than
for its intended purposes or contrary to OpenCities’ Specifications; or (f) the
combination, operation or use of the Services with equipment, programs, hardware or
software not provided by OpenCities if in OpenCities reasonable judgment such
infringement is caused thereby.
(c) The provisions of this Section 10.1 state OpenCities entire liability and Customer’s sole
and exclusive remedy in the event of any Customer Indemnified Claim.
10.2 Indemnification of OpenCities. Customer will indemnify and defend OpenCities and
OpenCities’ Associates (as defined below in Section 10.3) against any and all claims, liabilities,
losses, damages, costs and expenses (including attorneys fees and costs) (a) arising out of or related
to Customer's or its users’ alleged or actual use or misuse of, or failure to use the Services,
including without limitation: (b) claims by Customer’s users or by Customer’s employees or
agents; (c) claims related to unauthorized disclosure or exposure of personally identifiable
information or other private Confidential Information, including Customer Data; (d) claims related
to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality
right by any Customer Data; and (e) claims that use of the Services harasses, defames, or defrauds
a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic
advertising (collectively, “OpenCities Indemnified Claims,”.
10.3 Litigation & Additional Terms. The obligations of the indemnifying party (“Indemnitor”)
pursuant to Section 10.1or 0 above will be excused to the extent that the indemnified parties (the
“Indemnified Parties”) or any Indemnified Party’s Associates fails to provide prompt written
notice to the Indemnitor of the applicable claim or to reasonably cooperate with the Indemnitor if
such failure or lack or cooperation materially prejudices the defense. Indemnitor will control the
defense of any Indemnified Claim, including appeals, negotiations, and any settlement or
compromise thereof; provided that the Indemnified Party will have the right, not to be exercised
unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or
liability or subjects it to any ongoing affirmative obligations. (A party’s “Associates” are its
officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
11. LIMITATION OF LIABILITY.
11.1 LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF OPENCITIES AND ITS
AFFILIATES FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT
WILL NOT EXCEED THE ACTUAL FEES RECEIVED BY OPENCITIES DIRECTLY OR
INDIRECTLY FROM CUSTOMER DURING THE TWELVE-MONTH PERIOD LEADING
UP TO THE APPLICABLE CLAIM.
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11.2 Exclusion of Consequential Damages. IN NO EVENT WILL OPENCITIES OR ITS
AFFILIATES BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT,
SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR
LOSS OF REVENUES OR GOODWILL, BUSINESS INTERRUPTION, LOSS OR
INACCURACY OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS,
SERVICES OR TECHNOLOGY, OR LOST PROFITS, ARISING OUT OF OR RELATED TO
THIS AGREEMENT.
11.3 Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 11
APPLY (a) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT,
STRICT PRODUCT LIABILITY, OR OTHERWISE, (b) EVEN IF OPENCITIES IS ADVISED
IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF
SUCH DAMAGES WERE FORESEEABLE; AND (c) EVEN IF CUSTOMER’S REMEDIES
FAIL OF THEIR ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING, THE
LIABILITIES LIMITED BY THIS ARTICLE 11 SHALL NOT INCLUDE LIABILITY (i)
UNDER THE INDEMNITY PROVIDED IN SECTION 10.1, (ii) FOR DEATH OR PERSONAL
INJURY RESULTING FROM NEGLIGENCE, (iii) FOR DAMAGE TO TANGIBLE
PERSONAL PROPERTY, OR (iv) FOR FRAUD OR WILLFUL MISCONDUCT. If applicable
law limits the application of the provisions of this Article 11, OpenCities’ liability will be limited
to the maximum extent permissible. For the avoidance of doubt, OpenCities’ liability limits and
other rights set forth in this Article 11 apply likewise to OpenCities’ affiliates, licensors, suppliers,
advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
12. TERM & TERMINATION.
12.1 Term. The initial term of this Agreement (the “Initial Term”) will commence on the
Effective Date and continue for the period set forth in the Order. Thereafter, the Agreement will
automatically renew for successive one-year periods (each such period, a “Renewal Term”), unless
either party notifies the other party in writing of its decision not to renew the Agreement at least
60 or more days before the applicable renewal date. The Initial Term and all Renewal Terms are
herein referred to as the “Term”.
12.2 Termination for Cause. Either party may terminate this Agreement for the other’s material
breach by written notice, effective in 30 days unless the other party first cures such breach, or
immediately upon written notice if the other party becomes subject to any insolvency, bankruptcy
or similar proceeding, whether voluntary or involuntary. Without limiting OpenCities’ other rights
and remedies, OpenCities may suspend or terminate any user’s access to the Services at any time,
without advance notice, if OpenCities reasonably concludes such user has conducted him, her or
itself in a way that is not consistent with the requirements of the AUP or the other requirements of
this Agreement or in a way that subjects OpenCities to potential liability.
12.3 Effects of Termination. Upon termination of this Agreement, Customer will cease all use
of the Services and delete, destroy, or return all copies of the Documentation in its possession or
control, and Customer will have the right to access the Services for 30 days following termination
of this Agreement to download Customer Data. If requested by Customer in writing, at the
Customer's expense on a time-and-materials basis, OpenCities will provide Customer an export of
the Customer Data in an industry standard format. Upon the expiration of the thirty-day period
following termination of this Agreement, all Customer Data in the Services will no longer be
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available, and OpenCities shall have the right to delete and/or destroy all such Customer Data
(including all data supplied by third parties), unless otherwise agreed by the parties in writing.
12.4 The following provisions will survive termination or expiration of this Agreement: (a) any
obligation of Customer to pay Fees incurred before termination; (b) Article 1, Sections 2.3 and
6.5, and Articles 7, 8, 9, 10, 11 and 12; and (c) any other provision of this Agreement that must
survive to fulfill its essential purpose.
13. MISCELLANEOUS.
13.1 Independent Contractors. The parties are independent contractors and will so represent
themselves in all regards. Neither party is the agent of the other, and neither may make
commitments on the other’s behalf. The parties agree that no OpenCities employee or contractor
is or will be considered an employee of Customer.
13.2 Notices. OpenCities may send notices pursuant to this Agreement to Customer’s email
address provided by Customer, and such notices will be deemed received 24 hours after they are
sent. Customer may send notices pursuant to this Agreement to the person identified in the Order
at the email address provided for such person, and such notices will be deemed received 72 hours
after they are sent.
13.3 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will
constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes,
earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of
civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
13.4 Assignment & Successors. Customer may not assign this Agreement or any of its rights or
obligations hereunder without OpenCities’ express written consent. Except to the extent forbidden
in this Section 13.4, this Agreement will be binding upon and inure to the benefit of the parties’
respective successors and assigns.
13.5 Severability. To the extent permitted by applicable law, the parties hereby waive any
provision of law that would render any clause of this Agreement invalid or otherwise
unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid
or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the
maximum extent permitted by applicable law, and the remaining provisions of this Agreement will
continue in full force and effect.
13.6 No Waiver. Neither party will be deemed to have waived any of its rights under this
Agreement by lapse of time or by any statement or representation other than by an authorized
representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute
a waiver of any other breach of this Agreement.
13.7 Choice of Law; Venue. This Agreement will be governed by laws of the State of California.
The parties consent to the personal and exclusive jurisdiction of the federal and state courts of San
Francisco, California. This Section 13.7 governs all claims arising out of or related to this
Agreement, including without limitation tort claims. The United Nations Convention for the
International Sale of Goods does not apply to this Agreement.
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13.8 Dispute Resolution. If at any time a dispute arises out of or in connection with this
Agreement, the parties will have their respective designated representatives meet in good faith
with a view to resolving the dispute within a period of 15 Business Days from the issue of a written
notice of dispute by one party to the other party. Should the parties not be able to resolve the
dispute within the 15 Business Days, then both parties will refer the matter to their own appropriate
level of senior executive management respectively for resolution. If the relevant senior executive
management are unable to resolve the dispute within a further 10 Business Days, then the parties
agree that the dispute must then be referred to mediation. The parties will agree on a suitable person
to act as mediator having industry knowledge and expertise to facilitate resolution. Failing
agreement on such appointment, either party may apply to JAMS to appoint a mediator. The
dispute for mediation must be heard within 20 Business Days of a mediator being appointed.
Nothing in this clause is intended to preclude a party from seeking equitable or injunctive relief.
Neither party shall have the right to initiate litigation until 30 Business Days after the second
mediation conference held by the parties, unless the other party has materially breached its
obligation to mediate.
13.9 Construction. The parties agree that the terms of this Agreement result from negotiations
between them. This Agreement will not be construed in favor of or against either party by reason
of authorship.
13.10 Technology Export. Customer will not: (a) permit any third party to access or use the
Services in violation of any U.S. or foreign law or regulation; or (b) export any software provided
by OpenCities or otherwise remove it from the United States or Canada except in compliance with
all applicable laws and regulations. Without limiting the generality of the foregoing, Customer will
not permit any third party to access or use the Services in, or export such software to, a country
subject to an applicable embargo.
13.11 Entire Agreement. This Agreement sets forth the entire agreement of the parties and
supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its
subject matter. Neither party has relied upon any such prior or contemporaneous communications.
13.12 Modifications. OpenCities may modify the terms of this Agreement, the Privacy Policy,
AUP and SLA at any time and from time to time by posting a revised version on OpenCities’
website. The modified terms will become effective upon posting. By continuing to use the Services
after the effective date of any modification to the terms of this Agreement, Customer agrees to be
bound by the modified terms. It is Customer’s responsibility to check OpenCities’ website
regularly for such modifications. OpenCities last modified the terms of this Agreement and the
applicable Policies and SLA on the dates listed at the tops of the applicable documents on
OpenCities’ website.
13.13 Marketing. Customer agrees to permit OpenCities to make reasonable reference to the
Customer's status as a user of the Services, including captioned quotations in product literature or
advertisements, websites, articles, press releases, marketing literature, presentations and the like,
and occasional use as a reference for potential new users.
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SCHEDULE A – SERVICE LEVEL AGREEMENT
Subject to the terms and conditions of the Agreement, OpenCities provides a guarantee of 99.9%
uptime availability, calculated monthly. In a typical 30 day/730 hour month, this equates to no
more than 1 hour of downtime per month (not inclusive of Scheduled and emergency
Maintenance).
For confirmed downtime during any month during the Term, Open Cities will credit Customer
1% of Customer’s pro-rata monthly Base Subscription Fee for every hour of Customer’s public
facing website downtime over and above the 99.9% uptime guarantee, up to a maximum of
100% of the pro rata monthly Base Subscription Fee for that month.
Issue Severity Level and
Measure/Guide
Resolution Process and Contact
Information
Resolution Target
Priority 1 – Downtime
(Your public facing
website or critical intranet
is experiencing
Downtime)
Reportable 24 x 7 via Telephone –
(877-466-7756 – Extension 3)
Acknowledgement and assignment of
the problem for resolution within an
hour.
Within 4 hours.
Priority 2 – Urgent
(Important publishing
functionality fails to work
as intended, and there is no
work-around available -
you cannot publish content
to the site).
Reportable 24 x 7 via Online
helpdesk, or
Telephone during business hours
(7x6 PT). (877-466-7756 –
Extension 2)
Acknowledgement and assignment of
the problem for resolution within one
business day.
Provide a workaround to
the problem or release a
Version Update to fix the
problem by close of next
business day.
Priority 3 – High
(Important publishing
functionality fails to work
as intended, but
workarounds are
available)
Reportable 24 x 7 via Online
helpdesk.
Acknowledgement and assignment of
the problem for resolution within one
business day.
Scheduled or next
Version Update.
Priority 4 – Normal
(Functionality is not
working as intended)
Reportable 24 x 7 via Online
helpdesk.
Acknowledgement and assignment of
the problem for resolution within 3
business days
Within specified Version
Update.
IN WITNESS WHEREOF, the Town and Consultant have executed this Agreement.
Town of Los Gatos by: Consultant By:
_________________________________ __________________________________
Laurel Prevetti Town Manager Aaton Haggarty, Chief Legal Officer Accela, Inc.
Recommended by:
_________________________________ Joel Paulson, Community Development
Director
Approved as to Form:
_________________________________ Robert Schultz, Town Attorney
Attest:
_________________________________ Shelley Neis, MMC, CPMC, Town Clerk
__________________________________ Luke Norris, Sr Vice President, Government Relations & GrowthOpenCities
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