End User License Agreement

Purpose:

The purpose of this Agreement is to outline the terms and conditions under which Company shall provide the HeyGov software (“HeyGov”) to the City, as further described in the scope of services below.

Scope of Services:

HeyGov agrees to provide the following Services to the City:

1. Onboarding Service, which includes the delivery of any subscription license to the City for its internal use and provide access to HeyGov;
2. Ongoing support and maintenance, including bug fixes, software updates, and technical support, in accordance with HeyGov's Support Policy (see Annex A).
3. Training for City personnel on the use and administration of the HeyGov platform (see Annex B).
4. HeyGov Modules as listed in the Service Order.

Access and Use:

Subject to and conditioned on City’s and its employees (“Authorized Personnel”)’s compliance with the terms and conditions of this Agreement, Company hereby grants City a non-exclusive, non-transferable right to access and use HeyGov during the Term, in accordance with the terms and conditions herein. Such use is limited to City’s use in providing its municipal functions and duties. Company shall provide to City and its authorized personnel access to HeyGov after such persons have completed training in accordance with Annex B.

Restrictions:

​City shall not, and shall not permit any other person to, access or use HeyGov except as expressly permitted by this Agreement.  For purposes of clarity and without limiting the generality of the foregoing, City shall not, except as this Agreement expressly permits:

(a) copy, modify, or create derivative works or improvements of HeyGov (e.g. for a competitive purpose);

(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any portions of HeyGov to any person, including on or in connection with the internet, software as a service, cloud, or other technology or service;

(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code HeyGov in whole or in part;

(d) bypass or breach any security device or protection used by HeyGov;

(e) input, upload, transmit, or otherwise provide to or through HeyGov, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code;

(f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner HeyGov;

(g) remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from HeyGov;

(h) access or use HeyGov in any manner or for any purpose that infringes, misappropriates, or otherwise violates any rights (of the Company or a third party) and laws.

Service and System Control:

Company has will retain sole control over the operation, provision, maintenance, and management of HeyGov.  Company reserves the right, in its sole discretion, to make any changes to HeyGov that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of HeyGov to its customers; (ii) the competitive strength of or market for HeyGov; or (iii) the cost efficiency or performance of HeyGov; or (b) to comply with applicable law, rule, regulation, or administrative proceeding.

City has and will retain sole control over the operation, maintenance, and management of, and all access to and use of its hardware that operate HeyGov.  Furthermore, City has the sole responsibility to (i) limit access to and use of the HeyGov to only authorized personnel and (ii) maintain, store, and process all City Data (as defined below) that it collects through HeyGov in accordance with applicable laws, rules, and regulations.

Constituent Data:

As between City and Company, City owns all data that is entered by a third party (including City’s constituents, visitors, and guests) through HeyGov for the City’s ordinary course of business (“Constituent Data”). City hereby grants to Company a license to use all Constituent Data to provide and improve HeyGov. City represents and warrants that: (a) it owns the Constituent Data or otherwise has and will have the rights necessary to grant the license set forth herein; and (b) the uploading or transmitting of Constituent Data to HeyGov does not and will not violate any third party rights, including, without limitation, any intellectual property, data privacy, or confidentiality rights.​

Intellectual Property:

Except for the limited right to access, operate, and use HeyGov, nothing in this Agreement grants any right, title, or interest in or to any registered or unregistered intellectual property rights in or relating to, HeyGov, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to HeyGov will remain with Company.

As between City and HeyGov, City is and will remain the sole and exclusive owner of all right, title, and interest in and to all information, data, and other content, in any form or medium, that is collected or otherwise received, directly or indirectly, from any City by or through HeyGov concerning the City’s ordinary duties, (“City Data”).  City hereby irrevocably grants all rights and permissions in or relating to City Data as is necessary or useful to the Company to operate HeyGov, fulfill the purpose for which it was provided, or to enforce this Agreement.

Protection of City Data; Back-Up and Loss of City Data:​

Company will maintain appropriate administrative, physical, and technical safeguards for protection of City Data that is held by Company. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of City Data. During the Term of this Agreement, Company shall not use City Data except to provide the Services, or to prevent or address service or technical problems, verify Service improvements, in accordance with this Agreement; and (iii) not disclose City Data to anyone other than Authorized Personnel in accordance with this Agreement.

Company provides regular data backups and uses industry standard best practices.  Upon request by City made within 30 days after the effective date of termination or expiration of this Agreement, Company will make City Data available to City for export or download. After such 30-day period, Company will have no obligation to maintain or provide any City Data and will thereafter delete or destroy all copies of City Data in its systems or otherwise in its possession or control, unless legally prohibited.

Payment:

City shall pay all fees within 30 days after the invoice hereof.  City shall make all payments hereunder in US dollars by check or ACH.  Credit cards are acceptable if the total invoice amount is $5,000 or less.

If City fails to make any payment when due then, in additional to all other remedies that may be available: (a) HeyGov may charge interest on the past due amount at the rate of 1% per month, if lower, the highest rate permitted under applicable law; (b) City shall reimburse HeyGov for all costs incurred by HeyGov in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (c)  if such failure continues for 30 days following written notice thereof, HeyGov may suspend performance of HeyGov until all past due amounts and interest thereon have been paid.

If City disputes in good faith any charge on an invoice, City shall pay the undisputed portions of such invoice when due and may withhold the disputed amount pending resolution of the dispute. Upon resolution of such dispute, the agreed-upon portion of the disputed amount is due 30 days from the date upon which the dispute was resolved. If City withholds any payment, City shall notify Company of the basis for such withholding prior to the date payment is due. If the parties are following the process set forth herein, failure to pay the disputed amount during resolution of the dispute shall not be considered a breach of contract.  Company will not exercise its rights to charge an interest rate and/or suspend performance of HeyGov if City is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.​

Fees invoiced pursuant to this Agreement do not include, and may not be reduced to account for, any taxes, which may include local, state, provincial, federal or foreign taxes, withholding taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to, value-added taxes, excise, use, goods and services taxes, consumption taxes or similar taxes (collectively “Taxes”).  City is responsible for paying all Taxes imposed under this Agreement.  

Confidentiality:

In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). "Confidential Information" shall mean, with respect to both parties, the financial terms of this Agreement and, with respect to City, Constituent Data as it is entered or processed through HeyGov, provided that Constituent Data shall not be deemed Confidential Information (i) if it was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement (ii) if qualifies as personal information or personal data under applicable privacy law, in which case, solely the applicable privacy law(s) govern the breach of such information.

For the term of this Agreement, the Receiving Party shall (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;  (b) not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this confidentiality provision; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth herein.

If the Receiving Party or any of its Representatives is compelled by applicable law, rule or regulation to disclose any Confidential Information, then the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.

​Security Breach:​

If either party believes that there has been an incident that results in unauthorized access to Constituent Data, computer data, applications, networks or devices (“Security Breach”), such party must promptly notify the other party, unless legally prohibited from doing so, and in the case of Company, within 48 hours or any shorter period as may be required by applicable law. Additionally, each party will reasonably assist the other party in mitigating any potential damage. Each party shall bear the costs of such remediation or mitigation to the extent the breach or security incident was caused by it.

In the event that any unauthorized access to or acquisition of Constituent Data that contains personal information is caused by a breach of City’s security, City shall fully indemnify, hold harmless and defend Company against all claims, allegations, charges, suits, and otherwise made against Company.  In the event that any unauthorized access to or acquisition of Constituent Data that contains personal information is caused by a breach of Company’s security of HeyGov, Company shall pay the reasonable and documented costs incurred by City in connection with providing notification of the Security Breach to applicable government and to individuals whose personal information may have been accessed or acquired. NOTWITHSTANDING THE FOREGOING, OR ANYTHING IN THE AGREEMENT TO THE CONTRARY, COMPANY SHALL HAVE NO RESPONSIBILITY TO PAY COSTS OF REMEDIATION THAT ARE DUE TO RECKLESS MISCONDUCT, GROSS NEGLIGENCE, WILLFUL MISCONDUCT AND/OR FRAUD BY CITY OR ITS EMPLOYEES, AGENTS OR CONTRACTORS.  

Limited Warranty:

Company represents and warrants that HeyGov shall perform in a manner consistent with generally recognized industry standards for similar software, and any material defects in workmanship shall be remedied by HeyGov in accordance with the procedures set forth in Annex A.  

DISCLAIMER:​

EXCEPT AS STATED IN THE LIMITED WARRANTY PROVISION, HEYGOV IS PROVIDED "AS IS." COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT HEYGOV OR ITS USE THEREOF, WILL MEET CITY’S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CITY AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

Company’s Indemnification to City:​

Company shall indemnify, defend, and hold harmless City from and against any damages by City from any lawsuit by a third party that City’s use of HeyGov in accordance with this Agreement infringes or misappropriates such third party's United States intellectual property rights within the United States.

City’s Indemnification to Company:​

City shall indemnify, defend, and hold harmless Company and its directors, officers, and employees (collectively, “Company Indemnitees”) from and against any damages incurred by Company Indemnitees that arise out of or result from any claims or lawsuit from (i) misuse or unauthorized use of Constituent Data in violation of applicable privacy law, or (ii) misuse or unauthorized use of HeyGov.

Indemnification Procedure​

Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified pursuant to this Agreement. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice/reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent.

If HeyGov is claimed to infringe, misappropriate, or otherwise violate any third-party intellectual property rights, Company may, at its sole option, cost and expense (a) obtain the right for City to continue to use HeyGov as contemplated by this Agreement; (b) modify or replace HeyGov to seek to make HeyGov non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacement will constitute HeyGov under this Agreement; or (c) by written notice to City to terminate this Agreement and require City to immediately cease any use of HeyGov and City will be entitled to a pro-rater refund based on my much time is remaining is the subscription period.  THE FOREGOING ARE CITY’S SOLE REMEDIES AND COMPANY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

Limitations of Liability

IN NO EVENT WILL COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OR MISAPPROPRIATION OF PERSONAL DATA/PRIVACY LAW AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

Governing Law:

This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware.  Any legal suit, action, or proceeding arising out of (or related to) this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware in each case located in Wilmington, Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

Force Majeure:​

In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a "Force Majeure Event"), including (i) acts of God; (ii) flood, fire, earthquake, or explosion; (iii) government order, law, or actions; (iv) national or regional emergency; and (v) shortage of adequate power. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 90 days or more.

Assignment​

Neither Party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the other Party’s prior written consent.

Amendment and Modification​

No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each party.

Waiver​

No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege

Relation of the Parties

The Parties are independent contractors.  This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.  There are no third-party beneficiaries to the Agreement.  With respect to applicable privacy laws, City acknowledges that Company is solely a service provider for the City and only collects, processes, discloses, or stores personal information at City’s request.

Term:​

The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement's express provisions, will continue in effect until 3 years from such date (the "Initial Term").

This Agreement will automatically renew at one year intervals unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party written notice of non-renewal at least 30 days prior to the expiration of the then-current term (each a "Renewal Term" and, collectively, together with the Initial Term, the "Term").

Termination:​

Company may terminate this Agreement effective on written notice to City, if City fails to pay any amount when due hereunder, and such failure continues more than 30 days after Company’s delivery of written notice thereof.

Either Party may terminate this Agreement effective on written notice to the other party if the other party materially breaches this Agreement and such breach remains uncured for 30 days after the non-breaching party provides the breaching party with written notice of such breach.

Upon any expiration or termination of this Agreement, (i) all rights, licenses, consents and authorizations granted by either Party to the other hereunder will immediately terminate, (ii) City shall immediately cease all use of HeyGov and permanently erase HeyGov from all systems within City’s control; and (iii) certify to Company that it has compiled with this requirement.

Annex A – HeyGov Support Services

INTRODUCTION​

This Support Policy forms part of the Master Subscription Agreement to which it is attached (the “Agreement”) and sets forth certain supplemental terms and conditions applicable to Company’s provision of maintenance and support services with respect to HeyGov. Capitalized terms defined in the Agreement and used herein will have the same meaning specified in the Agreement.

SUPPORT SERVICES

During the Subscription Period, Company shall make available to City, at no additional charge, standard support as specified in this Section with respect to the Subscription Services. Customer may purchase premium support (“Premium Support”) for an additional fee.  Such premium support may include custom development or configuration services.  Please contact the Company for more information.

Standard Support:

Company will use commercially reasonable efforts to resolve any bugs, errors or functional or technical issues that prevents HeyGov from functioning in accordance with normal functions (“Errors”) upon fully documented and reproducible examples of the reported problem.  It is recommended that a screenshot/photographic image of the error/code be provided where possible.  Standard Support also includes on-going software updates.

Notwithstanding anything to the contrary contained herein, the following shall be excluded from the scope of the Standard Support: any issue which, following investigation by Company, is determined not to be an Error in the Subscription Services, including issues related to third party software products.

When providing support, City shall cooperate fully with Company, including by providing Company, access to such Customer premises, systems, personnel and information, as reasonably required for the performance by Company of the Support Services.

The specific hours during which City is entitled to Support Services (“Support Hours”) are as follows:

 Monday – Friday 8:00 AM CST – 5:00 PM CST, except if such day is a holiday observed by the Company.

When submitting a Support Request, City and its authorized personnel must furnish Company with all information and assistance needed by Company to address the reported issue.  To request support:

1. Email: support@heygov.com

2. Telephone: 888-439-4681 (888-HEYGOV1)

3. Customer Support Portal: https://app.heygov.com​

Standard Support also includes free maintenance and upgrades to HeyGov.  These upgrades will be conducted as necessary.  Company endeavors to provide reasonable prior notice of any anticipated upgrades.  However, there may be occasions where prior notice is  not feasible.  Company endeavors to keep such incidents as infrequent as possible. .

Annex B – HeyGov Training Services.

INTRODUCTION​

This Training Policy forms part of the Master Subscription Agreement to which it is attached (the “Agreement”) and sets forth certain supplemental terms and conditions applicable to Company’s provision of providing training with respect to HeyGov. Capitalized terms defined in the Agreement and used herein will have the same meaning specified in the Agreement.

Initial Training

All HeyGov subscribers will receive initial training services at no cost.  Such training can be done live onsite or virtually, upon City’s request.  HeyGov will also provide initial training for new Modules at no cost if City opts to add such new Modules to their existing subscription.

At least 5 days prior to training, City shall provide a list to Company (via email acceptable) of all authorized personnel who shall have access to HeyGov.  Each authorized personnel is obligated to attend.  If an authorized personnel is unable to attend, City may request to reschedule training, although a maximum of two rescheduling are permissible.  If after two rescheduling City has not been provided training, City may reschedule upon payment of $1,000.  This fee shall double for each subsequent reschedule.  

Subject matter of the Initial Training include the following topics:

• initial set-up of HeyGov;
• Use of HeyGov and each Module included in City’s subscription;
• Troubleshooting.

Additional Training​

Company is happy to provide additional training upon request.  Such training can be for additional or new authorized personnel or refresher courses.  ​

Additional Training can be done for an additional fee if live onsite or web-based training is requested.  Alternatively, the Company may provide archived videos (available in a non-downloadable format) at no additional cost.