Govinity Master Services Agreement

1.1. “Customer Data” means the data that is transmitted by Customer or third parties through the Platform.

1.2. “Documentation” means any user guides or similar materials made available by Govinity to Customer that detail the features, functionality, and specifications of the Platform.

1.3. “Intellectual Property Rights” means all past, present, and future intellectual property rights including those associated with works of authorship, copyrights, moral rights, trademarks, trade names, trade secrets, patent rights, and any other proprietary rights in intellectual property of every kind and nature.

1.4. “Order Form” means the document(s) separately executed by the Parties, that specifies the Platform and any Professional Services that Govinity will provide to Customer. All such Order Form(s) are incorporated into, and governed by, this Agreement by reference. The Order Form will identify the purchased modules and any usage limitations imposed on Customer’s use of the Platform.

1.5. “Platform” means the proprietary software-as-a-service platform provided by Govinity and identified in the applicable Order Form, including the applicable modules.

1.6. “Professional Services” means the implementation, configuration, training, consulting, or other professional services provided by Govinity or its authorized contractors, identified in the applicable Order Form.

1.7. “Services” means collectively, the Platform and Professional Services.

2.1. Services. Subject to Customer’s compliance with the terms of this Agreement, Govinity will make the Platform available to Customer as further detailed in the applicable Order Form, and provide any Professional Services purchased thereunder. Customer support is available by email to [email protected] or by other mechanisms that may be made available by Govinity to Customer from time to time. Issues with Customer’s use of the Platform will be prioritized based on severity level and will be addressed within Govinity’s normal business hours.

2.2. Customer Responsibilities. Customer shall be responsible for obtaining and maintaining computers, third-party software systems of record, and application programming interfaces needed to connect to, access, or otherwise use the Platform. Customer shall also be responsible for: (a) ensuring that such equipment is compatible with the Platform, (b) maintaining the security of such equipment, user accounts, passwords and files, in accordance with industry standards, and (c) all uses of Customer user accounts by any party other than Govinity. Govinity is not responsible for the operation, support, or security of any third-party software, systems, or services not provided by Govinity, even where Govinity permits Customer to integrate such third-party software, systems, or services with the Platform.

2.3. Data Processing Addendum. To the extent Govinity processes any Customer Data that contains Personal Data on behalf of Customer in the course of providing the Platform and Professional Services under this Agreement, the Parties agree to comply with the terms of the Govinity Data Processing Addendum attached as Exhibit A.

3.1. Govinity’s Intellectual Property Rights. As between the Parties, Govinity owns and retains all right, title, and interest in and to the Platform, Professional Services, and Documentation, including all Intellectual Property Rights therein. This includes, without limitation, all underlying technology, software, user interfaces, visual design elements (such as the “look and feel”), custom fonts, graphics, workflows, button icons, and any derivative works (e.g., enhancements, updates, improvements, modifications, or corrections), including but not limited to those that are created in connection with or through the use of the Platform, Professional Services, or Documentation. Customer may not reproduce, modify, distribute, or create derivative works based on any part of the Platform, in whole or in part, without Govinity’s prior written consent. Govinity grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, license to access and use the Services and Documentation during the term of the applicable Order Form for its business purposes.

3.2. Customer’s Intellectual Property Rights. As between the Parties, Customer retains all right, title, and interest, including all Intellectual Property Rights, in and to Customer Data. Customer grants Govinity and its authorized contractors a limited, worldwide, non-exclusive license to access, use, display, store, modify, and otherwise process Customer Data to provide, improve, maintain, and monitor the Services. Notwithstanding the foregoing, Govinity shall have a perpetual, irrevocable, worldwide license to use aggregated and anonymized Customer Data (that is incapable of identifying Customer or any individual) to develop and improve Govinity’s products and services, generally, and for all lawful purposes, including without limitation benchmarking and analytics.

3.3. Feedback. “Feedback” means any suggestions, comments, ideas, recommendations, usage, or other input provided by Customer to Govinity regarding the Services. Customer grants Govinity a non-exclusive, royalty-free, irrevocable, perpetual, worldwide sublicensable, transferable, license to use such Feedback for any purposes without any remuneration to Customer. Govinity acknowledges and agrees that Feedback is provided on an “AS IS” basis by Customer. External use by Govinity of Feedback will not identify Customer or any individual.

3.4. Restrictions. Customer shall not, and shall not permit any third parties to: (a) use the Platform in any manner or for any purpose other than as expressly permitted by the Agreement; (b) use or access the Platform for the purposes of creating or developing any product or service that is competitive with the Platform; (c) modify, disassemble, decompile, disable, reverse engineer, or otherwise make any derivative use of the Platform (except to the extent applicable laws specifically prohibit such restriction), or attempt to discover the source code or object code of the Platform; (d) sell, license, rent, lease, or otherwise provide the Platform, in whole or in part, to any third parties without Govinity’s prior written consent in each instance; (e) perform or disclose any benchmarking or performance testing of the Platform, including but not limited to load testing or stress testing; (f) remove any proprietary notices included within the Platform or on any Documentation; (g) use the Platform in violation of applicable law; or (h) use the Platform to transfer any malicious code.

4.1. Definition. “Confidential Information” means all confidential or proprietary business, technical, and financial information of the disclosing Party (“Disclosing Party”) that are made available to the other Party (“Receiving Party”) and is either marked as “confidential” or “proprietary” or where given the nature of the information and the circumstances of the disclosure the Receiving Party should reasonably understand the information to be confidential and/or proprietary. Govinity’s Confidential Information includes, without limitation, the Platform. Confidential Information does not include information that: (a) was or becomes publicly known through no fault of the Receiving Party; (b) was lawfully known to the Receiving Party without restriction on disclosure before receipt from the Disclosing Party; (c) is disclosed to the Receiving Party by a third party not subject to confidentiality obligations to the Disclosing Party; or (d) is independently developed by the Receiving Party without the use of Confidential Information.

4.2. Maintenance of Confidential Information. Receiving Party agrees to: (a) use Disclosing Party’s Confidential Information only as necessary to perform its obligations and exercise its rights under this Agreement, (b) protect Disclosing Party’s Confidential Information using the same degree of care it uses to protect its own similar information, but in no event less than a reasonable degree of care; and (c) only give access to Confidential Information to those of its employees, representatives, and contractors who have a need to know such information, who are bound by confidentiality obligations at least as stringent as those contained herein, and for whose acts and omissions with respect to the Disclosing Party’s Confidential Information the Receiving Party shall at all times be liable.

4.3. Compelled Disclosure; Breach. Where Receiving Party is legally obligated to disclose Disclosing Party’s Confidential Information in connection with a valid court order, Receiving Party shall, to the extent legally permitted, first notify the Disclosing Party, giving the Disclosing Party an opportunity to contest the compelled disclosure. Receiving Party shall reasonably cooperate with the Disclosing Party, at the Disclosing Party’s request and expense, in contesting such compelled disclosure. In any event, Receiving Party shall only disclose that portion of Disclosing Party’s Confidential Information that is minimally necessary to comply with the compelled disclosure. In the event of a breach or threatened breach of this Section 4, Receiving Party acknowledges that Disclosing Party may suffer substantial harm the extent of which may be difficult to quantify. Therefore, in addition to any and all other remedies available to the Disclosing Party at law and in equity, the Disclosing Party shall be permitted to seek and obtain injunctive relief without the requirement of proving actual damages or posting a bond.

5.1. Term. This Agreement begins on the Effective Date and will remain in effect until the termination or expiration of all active Order Forms entered into under this Agreement (“Term”), unless earlier terminated pursuant to this Section 5. Each Order Form will have its own term length and will be subject to renewal options as described therein.

5.2. Termination for Cause. If either Party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice by the non-breaching Party, the non-breaching Party may terminate this Agreement.

5.3. Termination for Non-Appropriation. If required by applicable law, Customer may terminate this Agreement if it does not appropriate funds for a future fiscal year. In order to terminate for non-appropriation, Customer must provide at least thirty (30) days’ prior written notice, provided it is after the first full year of the Agreement. Obligations to pay fees are non-cancelable, and payments are non-refundable. This section may not be used as a substitute for termination for convenience.

5.4. Effect of Termination. Upon termination of this Agreement pursuant to Section 5: (a) Customer shall pay in full for all of the Services for the then-current annual term; (b) Govinity shall cease providing the Services to Customer; and (c) subject to Section 5.4.1, each Party shall, upon request of the other Party, return or delete any of the other Party’s Confidential Information and upon request, certify such return or destruction in writing.

5.4.1. Customer may download Customer Data from the Platform at any time during the Term. For a period of thirty (30) days after expiration of the Term, Customer may request that Govinity complete a one-time transfer of Customer Data in an industry-standard format. Thereafter, Customer Data shall be deleted pursuant to Govinity’s standard data deletion and retention practices. Upon written request, Customer may request deletion of Customer Data prior to the date of termination of this Agreement.

5.5. Survival. Any provision of this Agreement which by its nature should reasonably be understood to survive termination or expiration, shall so survive.

6.1. Fees and Invoicing. Fees for the Services are set forth in the applicable Order Form (the “Fees”), and Govinity will invoice Customer as described therein. Unless otherwise stated in the applicable Order Form or elsewhere in this Agreement, all Fees are (a) in United States Dollars, (b) invoiced annually in advance beginning on the effective date of the applicable Order Form, (c) due within thirty (30) days of invoice date, and (d) non-cancelable and non-refundable. Customer may notify Govinity of a good faith dispute within thirty (30) days of the invoice date for the invoice giving rise to such dispute, provided that Customer shall pay all undisputed amounts when due and promptly pay any remaining amounts upon resolution of the dispute.

6.2. Taxes. Each Party is responsible for the tax effects this Agreement imposes upon it. If Customer is tax-exempt, it will provide Govinity its valid tax exemption certificate. Fees listed in the Order Form are exclusive of any applicable taxes, and no Fees shall be withheld by Customer such that Govinity does not receive the full amount listed in an applicable invoice for the Services.

6.3. Expenses. Govinity will invoice Customer for pre-approved travel and out-of-pocket expenses as they are incurred, which are payable within thirty (30) days of invoice date. Such expenses will be passed on to Customer without any markup. Receipt will be provided by Govinity to Customer upon request.

6.4. Non-Payment. If Customer fails to make any payments required under any Order Form where such amounts are not the subject of a good faith dispute, then in addition to any other rights and remedies Govinity may have under this Agreement or applicable law: (a) Customer will owe a late interest penalty of the maximum rate permitted by law; and (b) if Customer’s account remains delinquent (with respect to payment of an undisputed invoice) for ten (10) days after receipt of a delinquency notice from Govinity, which may be provided via email to Customer’s designated billing contact, Govinity may temporarily suspend Customer’s access to the Platform. Customer will continue to incur and owe all applicable fees irrespective of any such Platform suspension based on such Customer’s delinquency. Govinity will promptly reinstate access to the Platform upon payment of outstanding amounts.

7.1. Mutual. Each Party represents and warrants to the other Party that: (a) it has all necessary right and authority to enter into, and perform its obligations pursuant to, this Agreement; and (b) it is not a party to any other agreements which conflict with, or prohibit it from entering into, this Agreement; and (c) its performance of its obligations hereunder will at all times comply with all applicable laws.

7.2. Govinity. Govinity further represents and warrants to Customer that: (a) the Professional Services, if any, will be performed in a professional and workmanlike manner in accordance with generally prevailing industry standards; and (b) the Platform will perform materially in accordance with the Documentation and the functionality of the Platform will not be materially degraded during the applicable Order term. In the event of any breach of the foregoing representations and warranties, Customer’s sole and exclusive remedy is to have Govinity reperform the Professional Services and/or repair the Platform, or if neither of the foregoing occurs within thirty (30) days of notice by Customer to Govinity, Customer may terminate the Agreement in accordance with Section 5.2 and receive a prorated refund of any prepaid unused Fees as of the termination date.

7.3. By Customer. Customer further represents and warrants that Govinity’s use of Customer Data pursuant to this Agreement will not infringe, violate, or misappropriate Intellectual Property Rights of any third party.

7.4. Disclaimer. EXCEPT AS SET FORTH IN THIS AGREEMENT OR THE APPLICABLE ORDER FORM, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, OR THAT THE PLATFORM WILL BE TIMELY, UNINTERRUPTED, OR ERROR FREE.

8.1. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS AND EXCEPT WITH RESPECT TO THE EXCLUSIONS IN SECTION 8.3, NEITHER PARTY, NOR ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS OR EMPLOYEES, SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR LOSS OF BUSINESS, REVENUE, OR PROFIT; (B) FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

8.2. Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS AND EXCEPT WITH RESPECT TO THE EXCLUSIONS IN SECTION 8.3, IN NO EVENT SHALL EITHER PARTY’S ENTIRE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO GOVINITY DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM(S) INITIALLY AROSE. THE FOREGOING LIMITATION SHALL NOT APPLY TO UNDISPUTED FEES DUE BY CUSTOMER HEREUNDER.

8.3. Exclusions. The disclaimers in Section 8.1 and liability cap in Section 8.2 above do not apply to, and each Party accepts liability to the other Party for: (a) its gross negligence, fraud, or willful misconduct; (b) its misappropriation of the other Party’s Intellectual Property Rights; and (c) its indemnification obligations in Section 8.4.

8.4. Indemnification.

8.4.1. Govinity Indemnification. Govinity will indemnify, defend, and hold Customer harmless from and against any demands, suits, causes of action, claims, or proceedings (collectively, “Claims”) brought by a third party, and resulting damages, liabilities, losses, penalties, fines, costs and expenses (including reasonable attorneys’ fees) (collectively “Losses”) arising out of or relating to allegations that the Platform, when used as permitted hereunder, infringes, misappropriates or otherwise violates any US Intellectual Property Rights. The foregoing shall not apply where the Claim is caused, in whole or in part, by: (a) unauthorized use of the Platform, (b) modifications made to the Platform by anyone other than Govinity or without Govinity’s prior written approval, or (c) Customer Data. In the event the Platform is, or in Govinity’s reasonable opinion is likely to be, enjoined, Govinity shall do one of the following in its discretion: (i) procure for Customer the right to continue using the Platform, (ii) modify or replace the Platform such that it is non-infringing but functionally equivalent, or (iii) terminate the applicable Order Form and provide Customer a prorated refund of any prepaid unused Fees as of the termination date. THE FOREGOING STATES GOVINITY’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO AN INTELLECTUAL PROPERTY RIGHTS CLAIM RELATING TO THE PLATFORM.

8.4.2. Customer Indemnification. To the extent permitted by applicable laws, Customer will indemnify, defend, and hold Govinity harmless from and against any Claims brought by a third party and all Losses arising out of or relating to allegations the Customer Data, when used by Govinity as permitted hereunder, infringes, misappropriates, or otherwise violates any US Intellectual Property Rights, or that such Customer Data was collected by Customer in violation of applicable laws.

8.4.3. Procedure. The Party seeking indemnification pursuant to this Section 8.4. (“Indemnitee”) must: (a) promptly notify the Party from whom indemnification is sought (“Indemnitor”), (b) give the Indemnitor sole control of the defense and settlement of the Claim using its own counsel, provided that Indemnitor shall not settle any Claim that imposes liability upon, or constitutes an admission by, Indemnitee without Indemnitee’s prior written consent, and (c) provide Indemnitor with reasonable cooperation at the Indemnitor’s request and expense. The Indemnitee may participate in the defense and settlement of the Claim using its own counsel at its own expense.

9.1. Publicity Rights. Govinity may identify Customer as a Govinity customer and use Customer’s name and/or logo in its customer lists and marketing materials, including on its website. Any other uses of Customer’s name and/or logo shall be subject to Customer’s prior written consent. Govinity will comply with any trademark usage guidelines provided by Customer.

9.2. Notices. Legal notices required to be sent under this Agreement may be sent via certified mail, return receipt requested, to the physical address listed in the signature block, or by email to the Notices Email in the signature block. Either Party may amend its notices email address and/or physical address at any time in writing to the other Party.

9.3. Anti-corruption. Neither Govinity nor any of its employees or agents has offered or provided any illegal or improper payment, gift, or transfer of value in connection with this Agreement. The Parties will promptly notify each other if they become aware of any violation of any applicable anti-corruption laws in connection with this Agreement.

9.4. Force Majeure. Neither Party will be liable for any delay or failure to perform its obligations under this Agreement, due to any events beyond its reasonable control, including without limitation to acts of god, acts of governmental authority, war, riot, labor disputes, failures of performance by any third-party services, utilities, or equipment failures, or any other events beyond the Party’s reasonable control. In the event a Party experiences the foregoing, and such event lasts for ten (10) or more days, the other Party may terminate this Agreement upon notice and without penalty.

9.5. Severability; Waiver. 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. Any express waiver or failure to exercise promptly any right under this Agreement will not create a continuing waiver or any expectation of non-enforcement.

9.6. Assignment. There are no third-party beneficiaries to this Agreement. Neither Party may assign or otherwise transfer this Agreement without the other Party’s written consent, which consent may not be unreasonably withheld, conditioned, or delayed; provided however, that either Party may assign, without such consent but upon written notice, its rights and obligations under this Agreement to an Affiliate or in connection with a merger or sale involving all or substantially all of such Party’s assets. Any other attempted assignment shall be void. This Agreement will bind and inure to the benefit of each Party and their respective heirs, successors, and permitted assigns. For purposes of this Section 9.6, “Affiliate” means any entity controlled by, controlling, or under common control with, a Party.

9.7. Independent Contractors. This Agreement does not create an agency, partnership, joint venture, or employment relationship, and neither Party has any authority to bind the other Party.

9.8. Governing Law and Jurisdiction. This Agreement will be governed by the laws of the state in which Customer is located, without regard to any of its conflict of laws principles. Any claim, suit, or cause of action arising out of or relating to this Agreement shall be brought in the state or federal courts located in such state, and the Parties irrevocably agree to the exclusive personal jurisdiction of such courts.

9.9. Complete Agreement. This Agreement represents the entire understanding of the Parties with respect to the subject matter of this Agreement, and supersedes any prior agreements, whether oral or in writing. Any additional or different terms in a purchase order or click-through agreement are expressly rejected by the Parties and are void. Any modification to this Agreement must be in writing and signed by an authorized representative of each Party. No third Parties are authorized to modify this Agreement. If there is a conflict between this Agreement and any other attached or incorporated document, the terms of this Agreement will control unless expressly stated otherwise. This Agreement may be signed in multiple counterparts, each of which shall be deemed an original and together shall be deemed a single agreement.