HomeMy WebLinkAboutAgreement A-21-034 with Accruent LLC.pdf-1-
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A G R E E M E N T
THIS AGREEMENT (“Agreement”) is made and entered into this day of
, 2021 (“Effective Date”), by and between the County of Fresno, a political subdivision of the state of
California ("COUNTY"), and Accruent, LLC., a Delaware limited liability company, whose address is
11500Alterra Parkway, Suite 110, Austin, Texas, 78758 ("CONTRACTOR").
W I T N E S S E T H:
WHEREAS, the COUNTY and CONTRACTOR entered into Agreement 16-494 to provide a new
Computerized Maintenance Management System (CMMS) for work order management, inventory control,
mobile functionality, and capital planning tools, which was amended on December 12, 2017 to include
additional services;
WHEREAS, in order to continue maintaining COUNTY buildings, the COUNTY desires to continue
utilizing the CMMS and other tools provided by CONTRACTOR;
WHEREAS, COUNTY desires to change the available services to better reflect current usage and
provide more flexibility of the services provided by CONTRACTOR; and
WHEREAS, COUNTY and CONTRACTOR desire to execute this Agreement for software
maintenance, support, and related services.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein
contained, the parties hereto agree as follows:
1.DEFINITIONS:
The following terms are defined as follows for purposes of this Agreement:
Change Control Process means the process used by the Information Services Division of
COUNTY’s Internal Services Department (“ISD”) to inform COUNTY staff of new or updated production
use systems.
County System Hardware means the central processing units owned or leased by COUNTY on
which COUNTY is licensed to use the System Software, any back-up equipment for such central
processing units, and any peripheral hardware such as terminals, printers, and personal computers.
Agreement No. 21-034
9th February
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COUNTY System Software means the operating system and database software, excluding
CONTRACTOR’S System Software, installed on the County System Hardware.
ISD is the COUNTY’s Internal Services Department.
License is the license granted under Section 2(A) of this Agreement, and the rights and
obligations that it creates under the laws of the United States of America and the State of California,
including without limitation, copyright and intellectual property law.
System refers to the System Software and System Documentation, collectively, including all
modifications and updates and Third -Party Software.
System Documentation means the documentation relating to the use of the System Software,
including all instructions, release notes, manuals, and online help files in the form generally made
available by CONTRACTOR.
System Software is the computer software provided and hosted by CONTRACTOR, including
VFA Facility (VFA), AppTree, FAMIS Cloud Maintenance, and Accruent Analytics. VFA provides capital
planning assessment and budgeting tools for COUNTY buildings. FAMIS is a CMMS that provides
digital tools for maintaining and operating COUNTY facilities. Accruent Analytics is an analytics and
business intelligence platform that allows for more in-depth reporting on the data contained within the
other software platforms. All systems are web applications that will be accessed via internet browsers on
personal computers, and via applications on mobile devices. System Software does not include
operating system software, or any other third-party software.
System Software Maintenance and Support means software hosting for System Software,
regular software updates to System Software, and support provided for System Software in case of
errors, mistakes, or other technical difficulties.
Third-Party Software is software in object code form, including documentation and updates,
owned by an entity other than CONTRACTOR, which is to be provided to COUNTY by CONTRACTOR
on a pass-through, reseller, or OEM basis.
2.OBLIGATIONS OF THE CONTRACTOR
A.SOFTWARE LICENSE
1)GRANT OF LICENSE
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CONTRACTOR grants to COUNTY, and COUNTY accepts a non-exclusive, non-transferable,
perpetual License to use the System Software, subject to the terms and conditions set forth in this
Agreement. This License shall not survive termination or expiration of this Agreement unless COUNTY
renews such License and/or continues to purchase System Software Maintenance and Support. If
County does not renew such License and/or continues to purchase System Software Maintenance and
Support, this License shall terminate.
2)SCOPE OF LICENSE
The License granted under this Agreement consists solely of the non-exclusive, non-transferable
right of COUNTY to operate the System Software.
3)OWNERSHIP
The parties acknowledge and agree that, as between CONTRACTOR and COUNTY, title and
full ownership of all rights in and to the System Software, System Documentation, and all other materials
provided to COUNTY by CONTRACTOR under the terms of this Agreement shall remain with
CONTRACTOR. COUNTY will take reasonable steps to protect trade secrets of the System Software
and System Documentation. COUNTY may not disclose or make available to third parties the System
Software or System Documentation or any portion of either. CONTRACTOR owns all right, title and
interest in and to all CONTRACTOR’s corrections, modifications, or enhancements to the System that
are conceived, created or developed, alone or with COUNTY or others, as a result of or related to the
performance of this Agreement, including all proprietary rights therein and based thereon. For purposes
of this Agreement, “enhancement” means new software that is an interface between the System
Software and other software. Except and to the extent expressly provided herein, CONTRACTOR does
not grant to COUNTY any right or license, express or implied, in or to the System. The parties
acknowledge and agree that, as between CONTRACTOR and COUNTY, full ownership of all rights in
and to all COUNTY data, whether in magnetic or paper form, including without limitation printed output
from the System, are the exclusive property of COUNTY.
4)POSSESSION, USE, AND UPDATE OF SOFTWARE
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COUNTY agrees that COUNTY will only use the System Software for COUNTY purposes, as
provided in this Agreement. CONTRACTOR may, at reasonable times, inspect the COUNTY’s premises
and equipment to verify that all of the terms and conditions of the License are being observed.
CONTRACTOR may create, from time to time, updated versions of the System Software and System
Documentation , and CONTRACTOR shall make such System updates available to COUNTY. All
System updates shall be licensed under the terms of this Agreement. COUNTY agrees to follow the
prescribed instructions for updating System Software and System Documentation provided to COUNTY
by CONTRACTOR.
5) POSSESSION AND USE OF SOURCE CODE
Source code and other material that results from custom programming by CONTRACTOR
released to COUNTY under the License are deemed CONTRACTOR software, subject to all of the
terms and conditions of the License. The scope of COUNTY’s permitted use of the custom source code
under the License is limited to maintenance and support of the System Software. For purposes of this
Section, the term “maintenance and support” means correction of System Software errors and
preparation of System Software modifications and updates. If COUNTY creates computer code in the
process of developing an enhancement for the System Software, that specific new code shall be
considered a derivative work from the System Software and shall be owned by CONTRACTOR, , the
right of which to use shall be limited to those granted to COUNTY in this Agreement. However, if both
parties agree in writing that COUNTY’s enhancement does not result in the creation of a derivative work
from the System Software, the copyright to such derivative work shall be owned by COUNTY, and may
be used by COUNTY’s employees, officers, or agents for COUNTY’s own internal business operations
to carry out public functions that benefit the public, including individual members of the public.
6) RESTRICTIONS ON USE
COUNTY shall not itself, or through any affiliate, employee, consultant, contractor, agent, or
other third party: (i) license, sublicense, sell, resell, transfer, assign, distribute, host, lease, rent or
otherwise commercially exploit or make available to any third party the System Software, its content,
Services, the System Documentation, or CONTRACTOR’S or its licensors’ Intellectual Property or
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Confidential Information (collectively “Protected Materials”) in any way; (ii) modify, decipher, decompile,
disassemble, reverse assemble, translate, reverse engineer or otherwise attempt to derive source code,
algorithms, tags, specifications, architecture, structure or other elements of the System Software ,
including the license keys, in whole or in part, for any purpose, or make derivative works based upon the
System Software, the System Documentation, or the Protected Materials; (iii) create Internet “links” to
the System Software or “frame” or “mirror” any System Documentation on any other server or wireless
or Internet-based device; (iv) use the System to send spam or otherwise duplicative or unsolicited
messages in violation of applicable law; (v) use the System to send or store infringing, obscene,
threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or
violative of third party privacy rights; (iv) use the System to send or store material containing software
viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (vii)
interfere with or disrupt the integrity or performance of the System Software or the data contained
therein, including but not limited to COUNTY data; (viii) attempt to gain unauthorized access to the
System Software or its related systems or networks; (ix) reverse-engineer or access the System
Software in order to (a) build a competitive product or service, (b) build a product using similar ideas,
features, functions or graphics of the System Software, or (c) copy any ideas, features, functions or
graphics of the System Software; (x) allow access to, provide, divulge or make available the Protected
Materials to any user other than Client’s employees and individual contractors who have a need to such
access and who are bound by confidentiality obligations as least as restrictive as the terms of this
Agreement. .
No right or license is granted under this Agreement for the use of the System, directly or
indirectly, for the benefit of any other person or entity, except as provided in this Agreement.
7)INTELLECTUAL PROPERTY, TRADEMARK, AND COPYRIGHT
CONTRACTOR retains ownership of and all rights in the System Software, any portions or
copies thereof. CONTRACTOR reserves all rights not expressly granted to COUNTY. This License does
not grant COUNTY any rights in connection with any trademarks or service marks of CONTRACTOR, its
suppliers, or licensors. All right, title, interest and copyrights in and to the System, and any copies of the
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System Software are owned by CONTRACTOR, its suppliers or its licensors. All title and intellectual
property rights in and to the content which may be accessed through use of the System Software are
the property of the respective content owner, and may be protected by applicable copyright or other
intellectual property laws and treaties. This License grants COUNTY no rights to use such content.
B.SERVICES TO BE PROVIDED BY CONTRACTOR TO COUNTY
1)Managed Services
CONTRACTOR will make available managed services (“Managed Services”) for COUNTY. This
service provides the COUNTY with supplemental support for the System Software and additional
service hours for requested non -maintenance projects. This includes, but is not limited to, regular and
in-depth updates of the new released features with a staff member familiar with COUNTY’s instance of
the software, and a specific number of development hours. These services are described fully in Exhibit
A, which is incorporated by this reference.
2)Building Assessments
CONTRACTOR will provide building assessment services to input building condition data into
the System Software on an as-needed basis. CONTRACTOR shall prepare a Statement of Work
(SOW) and invoice for each building or group of buildings to be approved by the Contract Administrator,
as defined in Section 3 below.
3)System Maintenance and Support By Contractor
CONTRACTOR shall provide System Software Maintenance and Support. System maintenance
and support includes, but is not limited to, hosting of the System Software, and updates to the System
Software as they are released by CONTRACTOR, including updates required because of federal
regulatory changes. CONTRACTOR will support day-to-day operation of the System as follows:
a.SUPPORT HOURS/SCOPE:
Provide unlimited technical assistance by phone during normal coverage hours
(8:00 a.m. to 5:00 p.m. Pacific Standard Time (PST), Monday through Friday, except for
days that are holidays for either CONTRACTOR or COUNTY ), toll-free telephone
assistance to keep the System in, or restored to, normal operating condition in
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conformance with the specifications set forth in this Agreement. The object of this support
will be to answer questions related to the System Software and the application thereof.
Support provided under this Agreement does not include training of new COUNTY
personnel after initial staff is trained, operation of hardware, or solving hardware or
software problems unrelated to the System Software.
b.SUPPORT RESPONSE:
During the term of this Agreement, CONTRACTOR will (a) correct any error or
malfunctions in the System that prevent the System from operating in conformance with
the specifications set forth in Section 1 and Section 2.C of this Agreement, or (b) provide
a commercially reasonable alternative that will conform to the specifications set forth in in
Section 1 of this Agreement.
If analysis by CONTRACTOR indicates a reported problem is caused by a
reproducible error or malfunction in the then-current release of the System Software,
which significantly impedes effective use of the System by COUNTY for the COUNTY’s
purposes described in the recitals and in Section 2 above, CONTRACTOR will, if the
System is inoperable, as reported by COUNTY, provide continuous effort to correct the
error or to resolve the problem by providing a circumvention.
In such cases, CONTRACTOR will provide COUNTY with corrective information,
such as corrective documentation, corrective program code in the form of an update to
the System Software, or both. CONTRACTOR shall respond to COUNTY's service
request no later than four (4) business hours from the time a call is received by
CONTRACTOR. If a person with the necessary expertise is not available when the call is
received, CONTRACTOR will promptly notify COUNTY of that fact, and then endeavor to
respond to the service request no later than within one (1) business day.
c.ERROR CORRECTION PROCESS
If, during the term of this Agreement, COUNTY determines that a System Software error exists,
COUNTY will first follow the error procedures specified in the System Documentation. If following the
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error procedures does not correct the software error, COUNTY shall immediately notify CONTRACTOR
via phone or email, setting forth the defects noted with specificity.
4)ADDITIONAL SYSTEM MAINTENANCE SERVICES AND OTHER
SERVICES BY CONTRACTOR
CONTRACTOR may provide additional maintenance services (“Additional Maintenance and
Support Services” or “Additional Maintenance Services”) or other services at an additional charge.
Charges will be as identified in Section 6 of this Agreement; or, if the Additional Maintenance and
Support Services or other services are not specifically listed in this Agreement, charges will be at current
prices in effect at the time goods or services are provided. Any Additional Maintenance and Support
Services or other services requested by COUNTY and determined by CONTRACTOR not to be
specifically listed in this Agreement must be identified as a chargeable service prior to the service being
performed, and must be approved in writing in advance by COUNTY’s Contract Administrator, as
defined in Section 3, below. Additional Maintenance Services include, but are not limited to, the
following:
a.TRAINING
Training is available upon written request by COUNTY at an additional charge under the terms of
this Agreement. Requests for training will be reviewed by CONTRACTOR, and must be requested in
writing in advance by COUNTY’s Contract Administrator.
b.DATA AND SYSTEM CORRECTIONS
Unauthorized data access is defined as any COUNTY editing of data through other than normal
System Software usage , as defined in System Documentation. Unauthorized source code access is
defined as any COUNTY access to System Software source code. COUNTY will not pay any
compensation to CONTRACTOR for services that result from errors caused by the System Software or
instruction provided by CONTRACTOR.
5)SYSTEM UPDATES
From time to time, CONTRACTOR will develop and provide updates to the System Software.
CONTRACTOR shall provide updates to the System Software at no additional charge to COUNTY
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during the term of this Agreement. Updates to the System Software are subject to the terms and
conditions of this Agreement, and shall be deemed licensed System Software under this Agreement.
6)OPERATING SYSTEM UPDATES
The System Software must run on an operating system (O/S) that is consistently and currently
supported by the O/S vendor. The System Software version is expected to always be no more than one
year older than the current released O/S version. For the avoidance of doubt, CONTRACTOR’S periodic
software updates are sufficient to allow CONTRACTOR to be in compliance with the foregoing.
COUNTY will notify CONTRACTOR when a critical security patch is released for the supported
O/S or related subsystems. CONTRACTOR will have thirty (30) days to ensure the System Software
can perform in the updated environment. With approval from CONTRACTOR, COUNTY will apply
patches to both the O/S and non-critical subsystems as releases are available from vendors. The
System Software must continue to perform as the O/S and other subsystems are updated .
c.ANTI-VIRUS MANAGEMENT
COUNTY will actively run anti-virus management, where appropriate, on all application servers
and PCs. The System Software is expected to perform adequately while anti-virus management is
active.
7)ADHERE TO CHANGE CONTROL PROCESS
COUNTY employs a procedure to implement updates, upgrades, and version releases to a
system that is in production use. CONTRACTOR must inform ISD a minimum of 1 week prior to any
planned, non-emergency changes, so that the Change Control Process may be followed.
8)OTHER
Unless otherwise specified, for Third-Party Software that is required for COUNTY to use the
System Software, CONTRACTOR shall provide standard documentation in electronic form (via the
Internet or File Transfer Protocol (FTP)).
The System Software being provided runs in a Local Area Network and Web environment. As
such, the performance of the System Software is directly related to, among other things: available
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network bandwidth, and the performance of other applications. For this reason, CONTRACTOR makes
no guarantees as to System Software response time.
Unless provided herein or otherwise in a written mutual agreement, COUNTY will not allow
CONTRACTOR to access to COUNTY’s intranet, internal data, or email system, and CONTRACTOR
shall not require such access in order to provide the System.
C.CONTRACTOR shall comply with all obligations in Exhibit C, “Master Agreement,”
attached and incorporated by this reference. In the event of a conflict between any of the terms of the
Master Agreement and this Agreement, the terms of this Agreement shall control.
3.OBLIGATIONS OF COUNTY
A.COUNTY CONTRACT ADMINISTRATOR
COUNTY hereby appoints its Director of Internal Services/Chief Information Officer, or his or her
designee, as COUNTY's Contract Administrator, with full authority to deal with CONTRACTOR in the
administration of this Agreement.
B. SYSTEM HARDWARE AND SYSTEM SOFTWARE
COUNTY will, at its own expense, provide and properly maintain and update on an ongoing
basis all necessary hardware required to operate the System Software. COUNTY’s hardware shall meet
or exceed CONTRACTOR’s recommendations, as provided in the System Documentation.
C.OTHER COUNTY OBLIGATIONS
1)COUNTY’s ISD staff will provide technical assistance to CONTRACTOR
during the installation of the System Software. In particular, COUNTY will
provide:
a.Network connectivity and troubleshooting assistance;
b.Ability for COUNTY staff to monitor network traffic and isolate
bottlenecks;
c.Technical assistance concerning the integration with existing COUNTY
systems (if applicable); and
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d.Expertise to handle issues with COUNTY PCs, printers, and cabling
before, during, and after First Production Use.
4.TERM
The term of this Agreement shall be for a period of three (3) years, commencing on the Effective
Date. This Agreement may be extended for two (2) additional consecutive twelve (12) month periods
automatically, unless notice of non-renewal is provided no later than thirty (30) days prior to the first day of
the next twelve (12) month extension period.
5.TERMINATION
A.Non-Allocation of Funds - The terms of this Agreement, and the services to be provided
hereunder, are contingent on the approval of funds by the appropriating government agency. Should
sufficient funds not be allocated, the services provided may be modified, or this Agreement terminated,
at any time without penalty by giving the CONTRACTOR thirty (30) days advance written notice.
B.Breach of Contract - The COUNTY may immediately suspend or terminate this
Agreement in whole or in part, where in the determination of the COUNTY there is:
1)An illegal or improper use of funds;
2)A failure to comply with any term of this Agreement;
3)A substantially incorrect or incomplete report submitted to the COUNTY;
4)Improperly performed service.
In no event shall any payment by the COUNTY constitute a waiver by the COUNTY of any breach
of this Agreement or any default which may then exist on the part of the CONTRACTOR. Neither shall such
payment impair or prejudice any remedy available to the COUNTY with respect to the breach or default.
The COUNTY shall have the right to demand of the CONTRACTOR the repayment to the COUNTY of any
funds disbursed to the CONTRACTOR under this Agreement, which in the judgment of the COUNTY were
not expended in accordance with the terms of this Agreement. The CONTRACTOR shall promptly refund
any such funds upon demand.
C.Without Cause - Under circumstances other than those set forth above, this Agreement
may be terminated by COUNTY by giving thirty (30) days advance written notice of an intention to
terminate to CONTRACTOR.
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6.COMPENSATION/INVOICING: COUNTY agrees to pay CONTRACTOR, and
CONTRACTOR agrees to receive compensation, as follows:
A.Software Support and Maintenance/Subscription Fees:
COUNTY agrees to compensate CONTRACTOR for support, maintenance and subscription fees as
described below:
Year 1 Year 2 Year 3 Year 4 Year 5
FAMIS Cloud
Maintenance $39,097.80 $41,052.69 $43,105.32 $46,122.70 $49,351.29
* Advanced
Inventory $15,639.12 $16,421.08 $17,242.13 $18,449.08 $19,740.51
* FAMIS Cloud APIs
$3,090.00 $3,244.50 $3,406.73 $3,645.20 $3,900.36
VFA Facility $39,097.80 $41,052.69 $43,105.32 $46,122.70 $49,351.29
* Asset Connect
$7,819.56 $8,210.54 $8,621.06 $9,224.54 $9,870.26
AppTree $16,421.08 $17,242.13 $18,104.24 $19,371.53 $20,727.54
Accruent Analytics $10,300.00 $10,815.00 $11,355.75 $12,150.65 $13,001.20
Subtotal $131,465.36 $138,038.62 $144,940.55 $155,086.39 $165,942.44
Total
$735,473.37
+The maximum annual increase to fees during the initial 3-year term shall not exceed 5%. Thereafter, the
maximum annual increase to fees shall not exceed 7%.
Additional modules may be added to the System Software as determined necessary by the Contract
Administrator. The total cost for these additional modules shall not exceed $286,960.87 for the term of
the Agreement. The maximum total compensation payable for software support and maintenance and
annual subscription fees is $950,000.00 for the term of the Agreement.
B.Building Assessments
COUNTY agrees to compensate CONTRACTOR for requested Building Assessment services.
CONTRACTOR will provide a written quotation for the required services for approval by the COUNTY’s
Contract Administrator. The maximum total compensation payable for Building Assessment is
$80,000.00.
C.Managed Services:
COUNTY agrees to compensate CONTRACTOR for Managed Services. The maximum total
compensation payable for Managed Services is $130,000.00 .
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D.Additional Services:
COUNTY may request additional services, including training, implementation services, or other
services that are not otherwise included under this Agreement, and that COUNTY, in consultation with
CONTRACTOR, deems necessary for additional fees. CONTRACTOR will provide a written quotation for
the required services for approval by the COUNTY’s Contract Administrator. The maximum total
compensation payable for these additional services is $70,000.
CONTRACTOR shall submit monthly invoices referencing the provided contract number via email,
to the Internal Services Business Office (ISDBusinessOffice@FresnoCountyCA.gov) or via mail to County
of Fresno, Department of Internal Services, Attention: Business Office, 333 W. Pontiac Way, Clovis, CA
93612. COUNTY shall pay CONTRACTOR within forty-five (45) days of receipt of an approved invoice.
COUNTY shall remit payment to CONTRACTOR’s address specified in the approved invoice.
The total maximum compensation payable to CONTRACTOR during the first three years of this
Agreement is $797,000.00. If this Agreement is extended for the first additional year as provided in Section
4, above, the total maximum compensation payable to CONTRACTOR will increase to $997,000. The
maximum total compensation payable for all goods and services under this Agreement for all five years, if
the Agreement is extended for both additional years as provided in Section 4, above, is $1,230,000. It is
understood that all expenses incidental to CONTRACTOR's performance of services under this Agreement
shall be borne solely by CONTRACTOR.
7.INDEPENDENT CONTRACTOR: In performance of the work, duties and obligations
assumed by CONTRACTOR under this Agreement, it is mutually understood and agreed that
CONTRACTOR, including any and all of the CONTRACTOR'S officers, agents, and employees will at all
times be acting and performing as an independent contractor, and shall act in an independent capacity
and not as an officer, agent, servant, employee, joint venturer, partner, or associate of the COUNTY.
Furthermore, COUNTY shall have no right to control or supervise or direct the manner or method by
which CONTRACTOR shall perform its work and function. However, COUNTY shall retain the right to
administer this Agreement so as to verify that CONTRACTOR is performing its obligations in
accordance with the terms and conditions thereof.
CONTRACTOR and COUNTY shall comply with all applicable provisions of law and the rules and
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regulations, if any, of governmental authorities having jurisdiction over matters the subject thereof.
Because of its status as an independent contractor, CONTRACTOR shall have absolutely no right
to employment rights and benefits available to COUNTY employees. CONTRACTOR shall be solely liable
and responsible for providing to, or on behalf of, its employees all legally-required employee benefits. In
addition, CONTRACTOR shall be solely responsible and save COUNTY harmless from all matters relating
to payment of CONTRACTOR'S employees, including compliance with Social Security withholding and all
other regulations governing such matters. It is acknowledged that during the term of this Agreement,
CONTRACTOR may be providing services to others unrelated to the COUNTY or to this Agreement.
8.MODIFICATION: Any matters of this Agreement may be modified from time to time by
the written consent of all the parties without, in any way, affecting the remainder.
9.NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract this Agreement
nor their rights or duties under this Agreement without the prior written consent of the other party.
10.HOLD HARMLESS: CONTRACTOR agrees to indemnify, save, hold harmless, and at
COUNTY's request, defend the COUNTY, its officers, agents, and employees from any and all costs
and expenses (including attorney’s fees and costs), damages, liabilities, claims, and losses occurring or
resulting to COUNTY in connection with the performance, or failure to perform, by CONTRACTOR, its
officers, agents, or employees under this Agreement, and from any and all costs and expenses
(including attorney’s fees and costs), damages, liabilities, claims, and losses occurring or resulting to
any person, firm, or corporation who may be injured or damaged by the performance, or failure to
perform, of CONTRACTOR, its officers, agents, or employees under this Agreement.
11.INSURANCE
A.Required Policies
Without limiting the COUNTY’s right to obtain indemnification from CONTRACTOR or any third
parties, CONTRACTOR, at its sole expense, shall maintain in full force and effect the following insurance
policies throughout the term of the Agreement:
1.Commercial General Liability. Commercial general liability insurance with limits of not less
than Two Million Dollars ($2,000,000) per occurrence and an annual aggregate of Four Million
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Dollars ($4,000,000). This policy must be issued on a per occurrence basis. CONTRACTOR will
provide evidence via certificate of insurance additional insured status for County of Fresno, its
officer, agents, employees, and volunteers, individually and collectively, but only insofar as the
operations under the agreement are concerned. Such coverage for additional insureds will apply as
primary insurance and any other insurance, or self-insurance, maintained by COUNTY is excess
only and not contributing with insurance provided under CONTRACTOR’s policy.
2. Automobile Liability. Automobile liability insurance with limits of not less than One Million
Dollars ($1,000,000) per occurrence for bodily injury and for property damages. Coverage must
include any auto used in connection with this Agreement.
3. Workers Compensation. Workers compensation insurance as required by the California
Labor Code.
4. Technology Professional Liability. Technology professional liability (errors and omissions)
insurance with limits of not less than Two Million Dollars ($2,000,000) per occurrence. Coverage
must encompass all of CONTRACTOR’s obligations under this Agreement, including but not limited
to claims involving Cyber Risks.
5. Cyber Liability. Cyber liability insurance with limits of not less than Two Million Dollars
($2,000,000) per occurrence. Coverage must include, but not be limited to, claims involving Cyber
Risks. The cyber liability policy must be endorsed to cover the full replacement value of damage to,
alteration of, loss of, or destruction of intangible property (including but not limited to information or
data) that is in the care, custody, or control of CONTRACTOR.
6. Definition of Cyber Risks. “Cyber Risks” include but are not limited to (i) Security Breaches,
which may include Disclosure of Personal Information to an Unauthorized Third Party; (ii) breach of
any of CONTRACTOR’s obligations under Exhibit B to this Agreement, “Data Security”; (iii)
infringement of intellectual property, including but not limited to infringement of copyright, trademark,
and trade dress; (iv) invasion of privacy, including release of private information; (v) information
theft; (vi) damage to or destruction or alteration of electronic information; (vii) extortion related to
CONTRACTOR’s obligations under this Agreement regarding electronic information, including
Personal Information; (viii) network security; (ix) data breach response costs, including Security
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Breach response costs; (x) regulatory fines and penalties related to CONTRACTOR’s obligations
under this Agreement regarding electronic information, including Personal Information; and (xi)
credit monitoring expenses. Capitalized terms in this paragraph have the meaning given to them in
Exhibit B, “Data Security.”
B.Additional Requirements Relating to Insurance
1.Verification of Coverage. Within 30 days after CONTRACTOR signs this Agreement,
CONTRACTOR shall deliver, or cause its broker or producer to deliver, to the ISD Business Office
at 333 W. Pontiac Way, Clovis, CA 93612, or at ISDBusinessOffice@fresnocountyca.gov
certificates of insurance for all of the coverages required under this Agreement.
a.All insurance certificates must state that: (1) the insurance coverage has been
obtained and is in full force; and (2) COUNTY, its officers, agents, employees, and
volunteers are not responsible for any premiums on the policy .
b.The commercial general liability insurance certificate must also state that: (1) the
County of Fresno, its officers, agents, employees, and volunteers, individually and
collectively, are additional insureds insofar as the operations under this Agreement
are concerned; (2) the coverage shall apply as primary insurance and any other
insurance, or self-insurance, maintained by COUNTY shall be excess only and not
contributing with insurance provided under CONTRACTOR’s policy.
c.The automobile liability insurance certificate must state that the policy covers any
auto used in connection with this Agreement.
d.The technology professional liability insurance certificate must also state that
coverage encompasses all of CONTRACTOR’s obligations under this Agreement,
including but not limited to claims involving Cyber Risks, as that term is defined in
this Agreement.
e.The cyber liability insurance certificate must also state that it is endorsed to cover
the full replacement value of damage to, alteration of, loss of, or destruction of
intangible property (including but not limited to information or data) that is in the care,
custody, or control of CONTRACTOR.
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2.Acceptability of Insurers. All insurance policies required under this Agreement must
be issued by admitted insurers licensed to do business in the State of California and possessing
at all times during the term of this Agreement an A.M. Best, Inc. rating of A:VII or greater.
3.Notice of Cancellation of Coverage. For each insurance policy required under this
Agreement, CONTRACTOR shall provide to COUNTY, or ensure that the policy requires the
insurer to provide to COUNTY, written notice of any cancellation or change in the policy as
required in this paragraph. For cancellation of the policy for nonpayment of premium,
CONTRACTOR shall provide written notice to COUNTY not less than 10 days in advance of
cancellation. For cancellation of the policy for any other reason, and for any other change to the
policy, CONTRACTOR shall provide written notice to COUNTY not less than 30 days in
advance of cancellation or change. COUNTY in its sole discretion may determine that the failure
of CONTRACTOR to timely provide a written notice required by this paragraph is a breach of
this Agreement.
4.County’s Remedy for Contractor’s Failure to Maintain. If CONTRACTOR fails to keep in
effect at all times any insurance coverage required under this Agreement, COUNTY may, in addition
to any other remedies it may have, suspend or terminate this Agreement upon the occurrence of that
failure, or purchase such insurance coverage, and charge the cost of that coverage to
CONTRACTOR . COUNTY may offset such charges against any amounts owed by COUNTY to
CONTRACTOR under this Agreement.
12.AUDITS AND INSPECTIONS: The CONTRACTOR shall at any time during business
hours, and as often as the COUNTY may deem necessary, make available to the COUNTY for
examination all of its records and data with respect to the matters covered by this Agreement. The
CONTRACTOR shall, upon request by the COUNTY, permit the COUNTY to audit and inspect all of
such records and data necessary to ensure CONTRACTOR'S compliance with the terms of this
Agreement.
If this Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR shall be subject to
the examination and audit of the California State Auditor for a period of three (3) years after final payment
under contract (Government Code Section 8546.7).
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13.NOTICES: The persons and their addresses having authority to give and receive notices
under this Agreement include the following:
COUNTY CONTRACTOR
COUNTY OF FRESNO Accruent, LLC. Director of Internal Services/CIO 11500 Alterra Pkwy333 W. Pontiac Way Suite 110 Clovis, CA 93612 Austin, Texas, 78758
All notices between the COUNTY and CONTRACTOR provided for or permitted under this
Agreement must be in writing and delivered either by personal service, by first -class United States mail, by
an overnight commercial courier service, or by telephonic facsimile transmission. A notice delivered by
personal service is effective upon service to the recipient. A notice delivered by first-class United States
mail is effective three COUNTY business days after deposit in the United States mail, postage prepaid,
addressed to the recipient. A notice delivered by an overnight commercial courier service is effective one
COUNTY business day after deposit with the overnight commercial courier service, delivery fees prepaid,
with delivery instructions given for next day delivery, addressed to the recipient. A notice delivered by
telephonic facsimile is effective when transmission to the recipient is completed (but, if such transmission is
completed outside of COUNTY business hours, then such delivery shall be deemed to be effective at the
next beginning of a COUNTY business day), provided that the sender maintains a machine record of the
completed transmission. For all claims arising out of or related to this Agreement, nothing in this section
establishes, waives, or modifies any claims presentation requirements or procedures provided by law,
including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code,
beginning with section 810).
14.VENUE AND GOVERNING LAW: Venue for any action arising out of or related to this
Agreement shall only be in Fresno County, California.
The rights and obligations of the parties and all interpretation and performance of this Agreement
shall be governed in all respects by the laws of the State of California.
15.DISCLOSURE OF SELF-DEALING TRANSACTIONS
This provision is only applicable if the CONTRACTOR is operating as a corporation (a for-profit
or non-profit corporation) or if during the term of the agreement, the CONTRACTOR changes its status
to operate as a corporation.
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agreement. A self-dealing transaction shall mean a transaction to which the CONTRACTOR is a party
and in which one or more of its directors has a material financial interest. Members of the Board of
Directors shall disclose any self-dealing transactions that they are a party to by completing and signing a
Self-Dealing Transaction Disclosure Form, attached hereto as Exhibit C and incorporated herein by
reference, and submitting it to the COUNTY prior to commencing with the self-dealing transaction or
immediately thereafter.
16. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the
CONTRACTOR and COUNTY with respect to the subject matter hereof, and supersedes all previous
Agreement negotiations, proposals, commitments, writings, advertisements, publications, and
understanding of any nature whatsoever unless expressly included in this Agreement. In the event of
any inconsistency in interpreting the documents which constitute this Agreement, the inconsistency shall
be resolved by giving precedence in the following order of priority: (1) the text of this Agreement; (2) any
attached Statement of Work (SOW); and (3) any other attachment, including CONTRACTOR’s Master
Agreement, dated April 2020.
17. PRIOR AGREEMENT SUPERSEDED: It is the intent of the parties that this Agreement
shall replace and supersede the current agreement between the parties, dated August 9, 2016. After
the Effective Date of this Agreement, the prior agreement between the parties shall be of no further
force and effect.
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Exhibit A
Managed Services consists of additional support provided to COUNTY by CONTRACTOR
Task Type Task Description
Program
Management
Accruent will provide a Resource Manager to coordinate resources and services to be provided from Accruent to
the Client. Client will coordinate the scheduling of any requested services with its Resource Manager and the
parties shall mutually agree on an agreeable time frame for completion. The Resource Manager will provide
Level of Effort (“LOE”) for any requested tasks and assist in scheduling services. LOEs are strictly an estimate but
Resource Manager will communicate proactively if a deliverable will require more hours than the LOE.
Upon receipt of a request for Service, the Accruent Resource Manager will contact the Client to make
arrangements to provide the Service.
Services outlined herein will be delivered remotely. Client may request onsite services but will subject to the
Change Management process.
Semi-Annual
Business Reviews
Accruent will provide Remote Semi-Annual Business Reviews two (2) time per year that includes the following:
1.Compilation of data into charts and tables to visually indicate several key performance
indicators
2.A summary document and/or presentation deck including graphs, analysis, and
recommendations based on Client data
3.A meeting with Client stakeholders to review the summary document and/or presentation
Accruent will provide recommended metrics and analysis but will collaborate with the Client to modify metrics
as needed to meet Client’s specific needs. Accruent does not guarantee any specific metric and/or analysis will
be provided and reserves the right to reject requests for analyses or data points if data is not readily available.
On-premise Clients must provide VPN access or a back-up of their database at least 30 days in advance of the
scheduled business review to allow sufficient time to compile data.
The parties shall mutually agree on an acceptable date for the Business Review.
Flexible
Professional
Services Hours
Client may utilize up to, but not to exceed, twenty-five (25) hours of Accruent resources for a period of one (1)
year from the Order Document Effective Date. This Not to Exceed hourly total will be renewed each year during
the Committed Term, but there will be no carryover of hours from one year to the next. Additional hours
requested by Client shall be handled in accordance with the “Change Management” section below.
Accruent does not guarantee any specific deliverable will be provided within the allotted hours or that any
specific resource will be available. Accruent shall be responsible for securing, managing, scheduling,
coordinating and supervising Accruent personnel, including its subcontractors, in performing the Professional
Services.
Accruent shall have prior approval of the Services to be provided for the hours listed herein. Examples of items
that are and are not included are:
•Hours can be applied to the following activities:
o Remote training
o Consulting services (to be mutually agreed)
o Configuration or data manipulation through the user interface
o Data Uploads or Inactivation
•Hours are not to be applied to the following:
o Conversions from other databases or software tools
o Custom integrations
o Configuration or functionality changes requiring a change to the code base
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Task Type Task Description
o Custom Development Work
Upon receipt of a request for Service, the Accruent Resource Manager will contact the Client to make
arrangements to provide the Service.
Release Review
Training
Accruent will provide a monthly Remote Release Review Training where we will deliver an overview of the latest
release and enhancements made to the application.
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Exhibit B
Self-Dealing Disclosure Form
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Exhibit B
SELF-DEALING TRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno (hereinafter referred to as “County”),
members of a contractor’s board of directors (hereinafter referred to as “County Contractor”), must
disclose any self-dealing transactions that they are a party to while providing goods, performing
services, or both for the County. A self-dealing transaction is defined below:
“A self-dealing transaction means a transaction to which the corporation is a party and in which one
or more of its directors has a material financial interest”
The definition above will be utilized for purposes of completing this disclosure form.
INSTRUCTIONS
(1) Enter board member’s name, job title (if applicable), and date this disclosure is being made.
(2) Enter the board member’s company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
County. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the transaction; and
b. The nature of the material financial interest in the Corporation’s transaction that the
board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Code.
(5) Form must be signed by the board member that is involved in the self-dealing transaction
described in Sections (3) and (4).
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Exhibit A
(1) Company Board Member Information:
Name: Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to):
(4) Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233 (a):
(5) Authorized Signature
Signature: Date:
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Exhibit C
Accruent Master Agreement
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11500 Alterra Parkway #110, Austin, TX, 78758
512.813.6163 | www. accruent.com
MASTER AGREEMENT
This MASTER AGREEMENT (this “Agreement”) is entered into between Accruent, LLC, a Delaware limited
liability company with its principal place of business at 11500 Alterra Parkway, Suite 110, Austin, TX 78758
(“Accruent”) and with its principal place of business at (“Client”).
The effective date of this Agreement is (“Effective Date”).
For good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. DEFINITIONS.
1.1. “Accruent Software” is each Accruent-developed and/or Accruent-owned software product in
machine readable object code (not source code) and any Updates, Upgrades, or revisions to such
software.
1.2. “Agreement” includes this Master Agreement its exhibits, as well as any documents, amendments,
order forms, statements of work (SOW), or other relevant documentation that is attached hereto
and/or included by reference
1.3. “Affiliate” is an entity that is a subsidiary of or under common control of the applicable entity.
1.4. “Authorized User(s)” are (i) Client’s employees, and (ii) Client’s consultants, contractors, or agents,
approved in writing by Accruent (which will not be unreasonably withheld, conditioned, or delayed) it
being understood that Accruent may reasonably withhold approval for competitors of Accruent.
1.5. “Change of Control” means (i) the sale of all or substantially all of its stock or assets of a party to
another entity; (ii) any merger, consolidation, or acquisition of a party with an entity that is not an
Affiliate; or (iii) any change in the ownership of more than 50% of the voting capital stock of a party in
one or more related transactions.
1.6. “Client Data” is data, excluding Resultant Data (defined below), that Client provides, generates,
transfers, or makes available to Accruent under this Agreement.
1.7. “Documentation” is paperwork, manuals, or other types of instruction regarding use of the Software
made available to Client by Accruent in electronic format (or in print upon request), including but not
limited to: user instructions, release notes, manuals, and help files.
1.8. “Fees” are any monetary amounts set forth in this Agreement to be paid to Accruent by Client.
1.9. “License Metrics” are the limitations on the license for SaaS Services, based on usage and set out in an
Order Document; License Metrics are measured by a certain term, including but not limited to number
of leases, square footage, number of locations, or reports.
1.10. “Malicious Code” includes computer viruses, worms, time bombs, Trojan horses, and other harmful or
malicious code, files, scripts, agents, or programs.
1.11. “Maintenance” is the collective support services for the Software, including but not limited to the
provision of Updates for the Services ordered. Maintenance is subject to Accruent’s Support and
Maintenance Policy (as may be amended by Accruent) in effect at the time the services are provided.
For the avoidance of doubt, Maintenance expressly excludes Professional Services.
1.12. “Order Document” is a document or set of documents executed by the parties which describes order-
specific information and incorporates by reference the terms of the Agreement. An Order Document
Apr 2020 CONFIDENTIAL Page 1 of 27
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may not be specifically called an Order Document; it can be referred to by another name, such as a
statement of work.
1.13. “Partner” is a third-party vendor or subcontractor under an agreement with Accruent to provide
services in support of Accruent’s SaaS Services and/or Software, as well as any other obligations under
this Agreement.
1.14. “Partner Software” is software (in object code form), and any of its Updates, upgrades, or revisions,
including Documentation, that is owned by a Partner and provided to Client by Accruent on a pass-
through, reseller, or original equipment manufacturer (OEM) basis.
1.15. “Professional Services” are services provided by Accruent, or an authorized Partner, as set forth in the
Agreement; these may include, but are not limited to data conversion, implementation, site planning,
configuration, integration and deployment of the SaaS Services, training, project management,
assessment services and other consulting services.
1.16. “Resultant Data” is aggregated and anonymized data and information, including Client Data and Usage
Data, relating to Client’s use of the Services. Resultant Data is aggregated and anonymized so that no
identifiable information is present and may be used by Accruent, in any form, for any lawful purpose.
1.17. “SaaS Services” is the provision of the Software, hosted by Accruent or its Partners and accessed via
the internet, as a service and as set forth on an applicable Order Document.
1.18. “Software” includes both the Accruent Software and any applicable Partner Software.
1.19. “Support” is a service in which Accruent provides technical support for the services and is provided
pursuant to Accruent’s Support and Maintenance Policy available in the support portal (as may be
amended by Accruent) in effect at the time the services are provided. For the avoidance of doubt,
Support expressly excludes Professional Services.
1.20. “Upgrades” are the new products or functionality for which Accruent generally charges a separate fee.
1.21. “Updates” are the error corrections, modifications, or security or product enhancements which
Accruent makes generally available to its customers as part of the Maintenance.
2. ENTIRE AGREEMENT.. No modification to the Agreement will be binding unless in writing and signed
by an authorized representative of each party.
3. INTELLECTUAL PROPERTY. Except for rights expressly granted under this Agreement, nothing in this
Agreement shall transfer any of either party’s Intellectual Property rights to the other, and each party
will retain an exclusive interest in and ownership of its Intellectual Property. “Intellectual Property”
includes, without limitation, inventions, technology, patent rights (including patent applications and
disclosures), copyrights, trade secrets, trademarks, service marks, trade dress, methodologies,
procedures, processes, know-how, tools, utilities, techniques, various concepts, ideas, methods,
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models, templates, software, source code, algorithms, the generalized features of the structure,
sequence and organization of software, user interfaces and screen designs, general purpose consulting
and software tools, utilities and routines, logic, coherence and methods of operation of systems, and
training methodology and materials. Accruent’s Intellectual Property includes, but is not limited to,
any work that Accruent creates, acquires, or otherwise has rights in, including any works created
pursuant to this Agreement, except for any portion of such works that consist of Client’s Intellectual
Property. Client Data will be considered Client’s Intellectual Property, except for Resultant Data, which
will not be considered a derivative of Client Data. Accruent may, in connection with the performance
of services hereunder, create, employ, provide, modify, acquire, or otherwise obtain rights in, and any
and all intellectual property rights, recognized in any country or jurisdiction in the world, now or
hereafter existing, whether or not perfected, filed, or recorded.
4. FINANCIAL TERMS.
4.1. Fees and Payment Terms. Fees shall be specified in the applicable Order Document and, unless stated
otherwise, are denominated and payable in United States Dollars (USD) and due within 45 days of the
date of invoice. Accruent is not responsible for any payment conditions that are not expressly stated
in this Agreement or any applicable Order Document.
4.2. Overdue Charges. In the event that any Fees due and owing to Accruent are not received by the due
date, then Accruent may: (i) charge interest on any past due balances at the lesser of: (a) 1½% per
month, or (b) the highest rate allowed by law, and (ii) be entitled to condition future purchases on
shorter payment terms. Client acknowledges that, if it fails to provide a purchase order number when
required for payment, or it delays payment by requesting payment conditions not set forth in the
Agreement, Accruent’s right to pursue overdue charges will not be waived.
4.3. Suspension of Services. In the event any Fees due and owing are 30 or more days overdue from the
last day of the initial 45-day payment period, Accruent may, after providing notice to Client, and
without limiting any of its other rights and remedies: (i) suspend, terminate, or otherwise deny Client
access to or use of, all or any part of the Services, and (ii) require full payment of the overdue amount,
and any other amount due and owing, prior to additional or continued performance by Accruent.
4.4. Taxes. Unless expressly provided otherwise in this Agreement or any applicable Order Document, the
prices in the Agreement do not include taxes. Client agrees to pay any taxes arising out of the
Agreement, other than those based on Accruent’s net income. If Client is tax-exempt, Client agrees to
provide Accruent a copy of its tax-exempt certificate prior to execution of an Order Document. Client
shall be responsible for any liability or expense incurred by Accruent as a result of Client’s failure or
delay in paying taxes due.
4.5. Out-of-Pocket Expenses. Unless otherwise noted within the Agreement, any reasonable direct out-of-
pocket expenses incurred by Accruent in its performance of Professional Services for Client will be
invoiced in addition to any applicable Fees due and owing. These expenses typically include but are
not limited to reasonable airfare, lodging, employee meals, and sales, use, or similar (VAT, GST) taxes
associated with those expenses.
4.6. Compliance/Audit. Accruent may audit Client’s use of the Services at any time during the Term and at
termination. Client (i) acknowledges that the Software includes a License Metric management
component that tracks Software usage, and (ii) agrees not to impede, disable, or otherwise undermine
operation of such management component. Upon written request, Client shall make available to
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Accruent any records that show Client’s compliance with the terms of this Agreement. If such audit
determines that Client’s use of the Services exceed the usage permitted by the Order Document
(“Overage”), Client shall pay to Accruent: (a) all amounts due for previous and continuing excess use,
and (b) the costs resulting from such audit. Any Overages will be assessed and invoiced by Accruent. If
Accruent fails to charge for Overages, such failure to charge is not a waiver of those Overages and
Accruent retains the right to charge for those Overages. Overages will continue to be invoiced until
such time the permitted usage amount is changed to reflect Overages.
4.7. Purchase Orders. In the event that Client requires a Purchase Order in order to process the license or
purchase of any Accruent-provided services, both parties agree that those services may be suspended
or delayed until Accruent’s receipt of the Purchase Order
5. CONFIDENTIALITY
5.1. Defined. One party (“Disclosing Party”) may expose or provide to the other party (“Receiving Party”)
Disclosing Party’s confidential and proprietary information, including but not limited to information
designated as confidential in writing, or information which the Receiving Party should know is
confidential and proprietary (“Confidential Information”). Confidential Information includes, but is not
limited to, to the extent permitted by law: the terms and conditions (but not the existence) of the
Agreement (subject to Client’s responsibilities under the Ralph M. Brown Act, Government Code
section 54950 et seq. and the California Public Records Act, Government Code section 6250 et.seq.),
all trade secrets, software, source code, object code, specifications, system documentation, business
plans, customer lists and customer-related information, confidential financial information, budgets as
well as results of testing and benchmarking of the Software or other services, product roadmap, data
and other information of Accruent and its licensors relating to or embodied in the Hardware,
Software, or Documentation. Placement of a copyright notice on any portion of the Software will not
be construed to mean that such portion has been published and will not diminish any claim that such
portion contains Accruent’s Confidential Information. For the avoidance of doubt, Accruent’s
Intellectual Property is Confidential Information.
5.2. Non-Disclosure. The Receiving Party will protect the Disclosing Party’s Confidential Information from
unauthorized dissemination and will use the same degree of care that it uses to protect its own
confidential information, but in no event less than a reasonable amount of care. Neither party will use
Confidential Information of the other party for purposes other than those necessary to directly further
the purposes of the Agreement. Except as otherwise expressly permitted herein, the Receiving Party
shall not disclose Disclosing Party’s Confidential Information to any person or entity other than the
Receiving Party’s officers, employees, and consultants who (i) need access to such Confidential
Information in order to effect the intent of this Agreement, and (ii) have entered into written
confidentiality agreements, or are bound by professional responsibility obligations, which protect the
Disclosing Party’s Confidential Information sufficient to enable the Receiving Party to comply with its
obligations of confidentiality under this Agreement.
5.3. Exceptions. Information shall not be considered Confidential Information to the extent, but only to the
extent, that the Receiving Party can establish that such information (i) is or becomes generally known
or available to the public through no fault of the Receiving Party; (ii) was in the Receiving Party's
possession before receipt from the Disclosing Party; (iii) is lawfully obtained from a third party who is
not under any confidentiality obligations and has the right to disclose; or (iv) has been independently
developed by the Receiving Party without reference to Disclosing Party’s Confidential Information.
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5.4. Compelled Disclosure. Receiving Party may disclose Disclosing Party’s Confidential Information if it is
compelled by law to do so, provided that the Receiving Party gives the Disclosing Party prior notice of
such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing
Party's cost, if the Disclosing Party wishes to contest such disclosure.
5.5. Other Permitted Disclosures. Notwithstanding the foregoing confidentiality obligations, a party may
provide a copy of this Agreement to the following persons and/or entities, who are under obligations
of confidentiality substantially similar to those set forth in this Agreement: potential acquirers, merger
partners, lenders, and investors and to their employees, agents, attorneys, investment bankers,
lenders, financial advisors, and auditors in connection with the due diligence review of such party. A
party may also provide a copy of this Agreement to the party’s outside accounting firm and legal
advisors and in connection with any litigation or proceeding relating to this Agreement.
6. LIMITED RIGHTS AND OWNERSHIP
6.1. Reservation of Rights. All rights not expressly granted in the Agreement are reserved by Accruent and
its Partners. Client acknowledges that: (i) all Software is licensed and not sold; (ii) Client acquires only
the right to use the Software, Professional Services, or SaaS Services, and Accruent and its Partners
shall retain sole and exclusive ownership of and all rights, title, and interest in the Protected Materials,
including (whether developed by Accruent, Client, or a third party): (a) intellectual property embodied
or associated therewith; (b) deliverables and work product associated therewith; (c) all copies and
derivative works thereof; and (d) the Protected Materials, including the source and object codes, logic
and structure, which constitute valuable trade secrets of Accruent and its Partners. “Protected
Materials” as used herein means Software, Professional Services, or Accruent’s or its Partners’
intellectual property or Confidential Information. Client agrees to secure and protect the Protected
Materials consistent with the maintenance of Accruent’s and its Partners’ rights set forth in this
Agreement.
6.2. Restrictions. Client shall not itself, or through any Affiliate, employee, consultant, contractor, agent,
or other third party: (i) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part,
the Protected Materials; (ii) decipher, decompile, disassemble, reverse assemble, modify, adapt,
translate, reverse engineer or otherwise attempt to make any changes to or derive source code,
algorithms, tags, specifications, architecture, structure or other elements from the Protected
Materials, in whole or in part, for any purpose; (iii) allow access to, provide, divulge or make available
the Protected Materials to any user other than Client’s employees who have a need to such access and
who shall be bound by a nondisclosure agreement with provisions that are at least as restrictive as the
terms of the Agreement; (iv) write or develop any derivative works based upon the Protected
Materials; (v) use the Protected Materials to provide processing services to third parties, or otherwise
use the same on a ‘service bureau’ basis; (vi) disclose or publish, without Accruent’s prior written
consent, performance or capacity statistics or the results of any benchmark test performed on the
Protected Materials; (vii) allow any access to or use of the Protected Materials by any third party
without Accruent’s prior written consent for any purpose, including but not limited to outsourcing,
installation, upgrade and customization services; or (viii) otherwise use or copy the Protected Materials
except as expressly permitted herein.
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6.3. Enforcement. Client shall (i) ensure that all users of the Software comply with the terms and conditions
of the Agreement, (ii) promptly notify Accruent of any actual or suspected violation thereof and (iii)
cooperate with Accruent with respect to investigation and enforcement of the Agreement.
7. PRIVACY. Client represents and warrants that, before providing personal information to Accruent or
its agents, it will comply with any laws applicable to the disclosure of personal information, including
providing notices to or obtaining consent from third parties to allow sharing of their personal
information with Accruent under the Agreement, as further set forth in Exhibit G. Accruent will take
reasonable measures to protect the security of such personal information transferred by Client to
Accruent. Accruent is not a creator, user, or recipient of individually identifiable health information or
of any other information that qualifies as "Protected Health Information" under the Health Insurance
Portability and Accountability Act of 1996 ("HIPAA") and therefore is not a “business associate” under
HIPAA. Neither party to this Agreement contemplates or intends that Accruent will be exposed to any
Protected Health Information in connection with any of the services or goods to be provided
hereunder.
8. CLIENT DATA.
8.1. Client Data. Client retains sole and exclusive ownership to any and all Client Data, and Client shall be
responsible for the accuracy, quality, integrity and legality of Client Data and of the means by which it
acquired Client Data.
8.2. Copy of Client Data. Upon termination of the applicable SaaS Service, Software, or applicable license
(as set forth in an Exhibit), and no longer than 30 days following termination of the Agreement, Client
may request in writing a copy of Client Data in a format mutually acceptable to the parties (“Exported
Copy”). Provided Client is not in breach of any of its obligations under the Agreement, and upon Client’s
written request and payment of the applicable Fees (of which a then-current fee schedule will be
provided upon request), Accruent will provide such Exported Copy. For the avoidance of doubt, Client
will have full access to its Client Data throughout the Term; the Exported Copy is applicable only when
Client requests that Accruent provide Client Data in a certain format. Client acknowledges and agrees
that Accruent shall have no obligation to maintain Client Data after 30 days from termination.
9. INDEMNIFICATION.
9.1. Accruent Indemnification. Accruent will indemnify, defend, or hold harmless the Client from any
action, suit or proceeding brought against Client by a third party alleging that the SaaS Services used
in accordance with this Agreement infringe a third party’s intellectual property right (“Claim”) and
Accruent will indemnify Client against all damages and costs finally awarded, or those costs and
damages agreed to in a monetary settlement of such action, which are attributable exclusively to such
Claim, provided that Client: (i) gives prompt written notice of the Claim to Accruent; (ii) gives Accruent
sole control of the defense and settlement of the Claim (provided that Accruent may not settle any
Claim against Client unless it unconditionally releases Client of all liability); and (iii) provides Accruent,
at Accruent’s expense, with all reasonable information and assistance relating to the Claim and
reasonably cooperates with Accruent and its counsel. Accruent has no obligation to the extent any
Claim results from: (1) Partner Software, (2) the combination, operation, or use of the SaaS Services
with software or data not provided or approved by Accruent, or (3) Client’s breach of this Agreement.
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If it is adjudicated that an infringement of the SaaS Services, by itself and used in accordance with the
Agreement, infringes upon any third party intellectual property right, Accruent shall, at its option: (i)
procure for Client the right to continue using the SaaS Service; (ii) replace or modify the same so it
becomes non-infringing; or (iii) terminate the affected SaaS Service and Client’s rights thereto and
provide Client a refund of the pre-paid but unused portion of the SaaS Service fees paid to Accruent
for the affected SaaS Service. THIS SECTION STATES ACCRUENT’S ENTIRE OBLIGATION TO CLIENT AND
CLIENT’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT.
9.2. Client Indemnification. Client will indemnify, defend, or hold harmless Accruent from any action, suit,
or proceeding brought against Accruent by a third party alleging that the Client Data, or Client’s use of
the SaaS Services in violation of this Agreement, infringes the intellectual property rights of, or has
otherwise harmed, a third party, and Client will indemnify Accruent against all damages and costs
finally awarded or those costs and damages agreed to in a monetary settlement of such action, which
are attributable exclusively to such claim, provided that Accruent: (i) provides prompt written notice
of the claim to Client; (ii) gives Client sole control of the defense and settlement of the claim (provided
that Client may not settle any claim unless it unconditionally releases Accruent of all liability); and (iii)
provides Client, at Client’s expense, with all reasonable information and assistance relating to the claim
and reasonably cooperates with Client and its counsel. THIS SECTION STATES CLIENT’S ENTIRE
OBLIGATION TO ACCRUENT AND ACCRUENT’S SOLE REMEDY FOR ANY CLAIM FOR INDEMNIFICATION.
10. WARRANTIES.
10.1. Warranties. For 90 days following the acceptance of Accruent Software, Accruent warrants that (i) the
Accruent Software will perform materially in conformance with the applicable Documentation and this
Agreement; and (ii) the functionality and security of the Accruent Software will not materially
decrease.
10.2. Remedies. If the services are not performed consistent with the warranty set out in Section 10.1(i)
above, Client shall promptly notify Accruent in writing of such claim. As Client's exclusive remedy for
any claim under this warranty and provided that such claim is determined by Accruent to be Accruent’s
responsibility, Accruent shall, within 30 days of its receipt of Client's written notice, (i) re-perform the
affected services so that they are conforming; (ii) provide Client with a plan reasonably acceptable to
Client for re-performing the affected services; or (iii) if neither (i) nor (ii) can be accomplished with
reasonable commercial efforts from Accruent, then Accruent or Client may terminate the affected
service, and Client will be entitled to a refund of the fees paid for the affected service. The preceding
warranty cure shall constitute Accruent’s entire liability and Client's exclusive remedy for breach of the
warranty set forth herein. If Client elects not to terminate the applicable service, Client waives all
rights for the applicable warranty cure set forth herein. If the SaaS Services are not performed
consistent with the warranty set out in Sections 10.1(ii) above, Client shall be entitled to the remedies
set out in Sections 12.2 (Termination) and 12.3 (Termination Refund or Payment Obligations).
10.3. Exclusions. Accruent is not responsible for any claimed breach of any warranty set forth in section 10.1
caused by: (i) modifications made to the services by anyone other than Accruent or its Partners; (ii) the
combination, operation, or use of the services with any items not certified or approved by Accruent;
(iii) Accruent’s adherence to Client’s specifications or instructions; (iv) errors caused by or related to
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internet connectivity, (v) Client deviating from the services operating procedures described in the
Documentation, or (vi) Partner Software, which is pursuant to the original licensor’s warranty, if any.
10.4. Partner Software. Client acknowledges that certain SaaS Services may contain Partner Software, and
Accruent may add and/or substitute functionally equivalent products for any Partner Software in the
event of product unavailability, end-of-life, or changes to software requirements. Accruent makes no
warranty with respect to any Partner Software.
10.5. Disclaimer. EXCEPT AS SET FORTH ABOVE, ACCRUENT, ITS LICENSORS, AND ITS SUPPLIERS MAKE NO
WARRANTIES OF ANY KIND, AND ACCRUENT, ITS LICENSORS, AND ITS SUPPLIERS EXPRESSLY DISCLAIM,
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL
OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT ANY SAAS SERVICES ARE
ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION, OR THAT ALL ERRORS WILL BE CORRECTED;
(ii) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND NON-INFRINGEMENT, (iii) ANY WARRANTY THAT CONTENT AND/OR PARTNER SOFTWARE WILL
BE ACCURATE, RELIABLE, AND ERROR -FREE, AND (iv) ANY AND ALL IMPLIED WARRANTIES ARISING
FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. NO ADVICE,
GUIDANCE, STATEMENT, OR INFORMATION GIVEN BY ACCRUENT, ITS AFFILIATES, CONTRACTORS, OR
EMPLOYEES SHALL CREATE OR CHANGE ANY WARRANTY PROVIDED HEREIN.
10.6. NOTHING CONTAINED IN THIS SECTION (WARRANTIES) SHALL AIM TO LIMIT ANY LIABILITY TO THE
EXTENT PROHIBITED BY LAW.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY’S TOTAL LIABILITY
(INCLUDING ATTORNEYS FEES AWARDED UNDER THE AGREEMENT) TO THE OTHER FOR ANY CLAIM
UNDER THIS AGREEMENT WILL BE LIMITED TO THE FEES PAID FOR THE PRIOR TWELVE (12) MONTHS
FOR THE PRODUCT OR SERVICE WHICH IS THE SUBJECT MATTER OF THE CLAIM. NOTWITHSTANDING
THE FOREGOING, THE ABOVE LIMITATIONS SHALL NOT APPLY TO CLIENT’S OBLIGATIONS TO PAY
ACCRUENT ANY AMOUNTS SET FORTH UNDER SECTION 4. FINANCIAL TERMS, OR EITHER PARTY’S
INDEMINIFICATION RESPONSIBLITIES SET FORTH IN SECTION 9.
11.2. Exclusion of Indirect and Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE, OR
CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE,
PROFITS, STAFF TIME, GOODWILL, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), COST OF
REPLACEMENT, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT
LIABILITY OR OTHERWISE, WHETHER OR NOT A PARTY HAS PREVIOUSLY BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
11.3. Time to Bring Action. EXCEPT FOR NON -PAYMENT OF ANY FEES DUE TO ACCRUENT, NO CLAIM
ARISING OUT OF THE AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT MORE THAN THE
SHORTER OF: (i) ONE YEAR, OR (ii) THE MINIMUM PERIOD ALLOWED BY LAW AFTER THE CAUSE OF
ACTION HAS OCCURRED.
11.4. Damages Prohibited by Law. NOTHING CONTAINED IN THIS SECTION SHALL AIM TO LIMIT ANY
LIABILITY TO THE EXTENT PROHIBITED BY LAW.
11.5. Survival. THIS SECTION SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDY.
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12. TERM AND TERMINATION
12.1. Agreement Term. The term of this Agreement shall commence on the Effective Date and shall
continue in full force and effect until the expiration or termination of all Order Documents, unless
otherwise terminated earlier as provided hereunder.
12.2. Termination. Either party may terminate the Agreement, including all Order Documents, immediately
upon written notice in the event: (i) that the other party commits a non-remediable, material breach
of the Agreement, or if the other party fails to cure any remediable material breach or provide a written
plan of cure acceptable to the noticing party within 30 days of being notified in writing of such breach;
or (ii) of institution of bankruptcy, receivership, legal insolvency, reorganization, or other similar
proceedings by or against the other party under any section or chapter of the United States Bankruptcy
Code, as amended, or under any similar laws or statutes of the United States or any state thereof, if
such proceedings have not been dismissed or discharged within 30 days after they are instituted; or
the legal insolvency of, making of an assignment for the benefit of creditors of, the admittance of any
involuntary debts as they mature by, or the institution of any reorganization arrangement or other
readjustment of debt plan of either party not involving the United States Bankruptcy Code. Where a
party has a right to terminate the Agreement, the terminating party may, at its discretion, either
terminate the Agreement in whole or terminate only the applicable Order Document. Order
Documents that are not terminated shall continue in full force and effect under the terms of this
Agreement. Upon expiration or termination of this Agreement by Accruent or Client, Client shall
promptly cease all use of the Software and shall either securely destroy or securely transfer, at
Accruent’s sole discretion, all Software, and securely delete existing copies (unless storage of any data
is required by applicable law, and if so Client shall notify Accruent of such requirement).
12.3. Termination Refund or Payment Obligations. In the event Client terminates this Agreement pursuant
to Section 12.2, Accruent shall refund all pre-paid but unused Software fees to Client. Termination of
this Agreement by Accruent pursuant to Section 12.2 shall not excuse Client’s obligation to pay in full
any and all amounts due and owing, nor shall such termination result in a refund of Fees paid.
12.4. Survival. The following provisions will survive any termination or expiration of the Agreement: Sections
1, 3, 4, 5, 6, 8.2, 9, 11, 12.3 12.4, and 13.
13. GENERAL PROVISIONS
13.1. Force Majeure. To the extent that a delay or failure to perform all or any part of this Agreement or
applicable Order Document is caused, in whole or in part, by events, occurrences, or causes beyond
the control and without any negligence on the part of the party seeking protection under this Section,
neither party shall have the right to terminate the Agreement or any Order Document, and neither
party shall incur any liability to the other party on account of any loss, claim, damage, or liability
resulting from such delay or failure to perform. Such events, occurrences, or causes shall include,
without limitation, acts of God, acts of government, flood, fire, explosions, earthquakes, civil unrest,
acts of war, acts of terrorism, strikes, lockouts, riots or other labor problems, computer,
telecommunications, Internet service provider or hosting facility failures or delays involving hardware,
software or power systems not within Accruent’s possession or reasonable control, and denial of
service attacks (“Force Majeure Events”). Dates by which performance obligations are scheduled to
be met will be extended for a period of time equal to the time lost due to any delay so caused, however,
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either party may terminate the Agreement or an Order Document due to a Force Majeure Event
extending beyond 90 days.
13.2. Assignment. In the event of a Change of Control, either party may assign this Agreement in its entirety
(including all Order Documents) to its parent company or other affiliated company. In the event such
assignment is not subject to the foregoing, neither party may assign the Agreement or any of its rights
and obligations herein without the other party’s prior written consent (which shall not be unreasonably
withheld). In the event of an assignment due to a Change of Control, Accruent will have the right to:
(i) adjust the costs set forth in the Agreement in order to reflect any change to the Software and/or
services; and (ii) invoice additional Fees for the transition of Software and/or services to the new Client
party.
13.3. Notice of U.S. Government Restricted Rights. If the Client hereunder is the U.S. Government, or if the
Software is acquired hereunder on behalf of the U.S. Government with U.S. Government federal
funding, notice is hereby given that the Software is commercial computer software and documentation
developed exclusively at private expense and are furnished as follows: “U.S. GOVERNMENT
RESTRICTED RIGHTS. Software and the Protected Rights delivered subject to the FAR 52.227-19. All
use, duplication and disclosure of the Software and/or the Protected Rights by or on behalf of the U.S.
Government shall be subject to this Agreement and the restrictions contained in FAR 52.227-19,
Commercial Computer Software License - (December 2007)”.
13.4. Export. Client shall fully comply with all relevant and applicable export laws and regulations of the
United States to ensure that (i) the Software and/or Protected Rights are not exported, directly or
indirectly, in violation of United States law, export embargo, prohibition, or restriction, and (ii) no
Software is accessed or used in violation of any United States law, export embargo, prohibition, or
restriction.
13.5. Non-Solicitation. During the term of this Agreement, and for a period of one year following its
termination, neither party will solicit for employment, directly or through other parties, without the
other party’s written permission, any individual employed by the other party that is involved in the
performance of this Agreement, provided however that the solicitation or hiring of individuals
responding to general public marketing and recruiting advertisements and events shall not be a
violation of this provision; only active, targeted solicitation is prohibited.
13.6. Equal Opportunity Employer. Accruent’s employment decisions are not based on an employee’s race,
color, religion or belief, national, social or ethnic origin, sex (including pregnancy), age, physical,
mental, or sensory disability, HIV status, sexual orientation, gender identity and/or marital, civil union,
or domestic partnership status, past or present military service, medical or genetic information, family
or parental status, or any other status protected by the laws or regulations in the locations where we
operate.
13.7. Notices. Any notice sent pursuant to this Agreement shall be delivered (i) by hand, overnight courier,
or registered mail, return receipt requested, to the address of the parties set forth in the Agreement,
or to such other address of the parties designated in writing in accordance with this subsection, (ii) by
e-mail to legal@accruent.com, or (iii) by facsimile.
13.8. Relationship. This Agreement does not and is not intended to create a partnership, franchise, joint
venture, agency, or a fiduciary or employment relationship. Neither party may bind the other party or
act in a manner which expresses or implies a relationship other than that of independent contractor.
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13.9. Marketing. Client agrees to allow Accruent to list Client’s name and logo on the Accruent website,
which will be listed no more prominently than any other client. Upon Client’s prior written consent,
Client agrees to allow Accruent to publish one press release announcing Client’s selection of
Accruent, which will not be published without Client’s prior consent (which consent shall not be
unreasonably withheld).
13.10. Invalidity. If any provision of the Agreement shall be held to be invalid, illegal, or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in any way be affected or
impaired.
13.11. No Waiver. Any waiver of the provisions of this Agreement, or of a party’s rights or remedies under
the Agreement, must be in writing to be effective. Any such waiver shall constitute a waiver only with
respect to the specific matter described in such writing and shall in no way impair the rights of the
party granting such waiver in any other respect or at any other time. The waiver by either of the parties
of a breach or of a default under any of the provisions of the Agreement shall not be construed as a
waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights,
or privileges hereunder. The rights and remedies provided under this Agreement are cumulative and
none is exclusive of any other, or of any rights or remedies that any party may otherwise have at law
or in equity. Failure, neglect, or delay by a party to enforce the provisions of the Agreement or its rights
or remedies at any time, shall not be construed and deemed to be a waiver of such party’s rights under
the Agreement and shall not in any way affect the validity of the whole or any part of the Agreement
or prejudice such party’s right to take subsequent action.
13.12. No Third-Party Beneficiaries. This Agreement is for the benefit of the parties and their successors,
permitted assigns, and does not confer any rights or benefits on any third party, including any
employee, client, or employee of a client or a party. Notwithstanding the above, the parties
acknowledge that all rights and benefits afforded to Accruent under the Agreement shall apply equally
to the owner of the Partner Software with respect to the Partner Software, and such third party is an
intended third party beneficiary of the Agreement, with respect to the Partner Software.
13.13. Governing Law and Venue. The Agreement shall be governed by and construed in accordance with
the laws of the State of California without giving effect to its principles of conflict of laws. Any dispute
shall be litigated in the state or federal courts located in the State of California to whose exclusive
jurisdiction the parties hereby consent. For purposes of establishing jurisdiction in California under
this Agreement, each party hereby waives, to the fullest extent permitted by applicable law, any
claim that: (i) it is not personally subject to the jurisdiction of such court; (ii) it is immune from any
legal process with respect to it or its property; and (iii) any such suit, action, or proceeding is brought
in an inconvenient forum. Venue for any action arising out of or related to this Agreement shall only
be in Fresno County, California. The parties agree that this contract is not a contract for the sale of
goods, and shall not be governed by any codification of Article 2 or 2A of the Uniform Commercial
Code or the Uniform Computer
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EXHIBIT A
SaaS-Specific Terms and Conditions
1. SaaS SERVICES LICENSE. Subject to the terms of this Agreement, Accruent grants to Client and its
Affiliates, for the Term of this Agreement, the non-exclusive, non-assignable, royalty-free, and
worldwide right to access and use the SaaS Services for Client’s internal business purposes. Purchased
SaaS Services may be accessed by Client and used to manage the License Metrics specified in the Order
Document. Client may purchase additional License Metrics, subject to an additional Order Document
at the then-current price in effect, prorated for the remainder of the then-current Term. The term of
the added License Metrics will be concurrent with the Agreement Term. Fees are based on SaaS
Services and License Metrics purchased, and not actual usage.
1.1. SaaS Environment. Client is responsible for obtaining and maintaining, at its own expense, all
equipment needed to access the SaaS Services, including but not limited to Client’s internet access.
1.2. Support Services. Subject to Client’s payment of applicable Fees, Accruent will provide to Client the
Support services applicable to each SaaS Service purchased.
1.3. Backups and Restoration Services. Provided Client is not otherwise in breach of the Agreement, and
upon written request and subject to Client’s payment of applicable Fees (for which a then-current fee
schedule will be provided upon request), Accruent will perform database restoration services.
1.4. Data Extract. Client may request a one-time extract of the data stored in the Accruent application.
Accruent will provide data, in a format defined by Accruent, at a fee not to exceed 50% of the annual
subscription fee. The provided data will be made available to Client for up to thirty (30) calendar days.
Specific filtering, formatting or alteration requests will be scoped as a billable service at then current
rates.
1.5. Passwords; Security. Client and its users are in control of the creation and dissemination of passwords.
As such, Client will be responsible for (i) maintaining the confidentiality of all passwords and for
ensuring that each password is used only by the authorized user, and (ii) any and all activities that
occur under Client's account. Client agrees to immediately notify Accruent of any unauthorized use of
Client's account or any other breach of security known to Client. Accruent shall have no liability for any
loss or damage arising from Client's failure to comply with these requirements. Accruent will maintain
Client passwords as confidential and will not disclose them to third parties.
2. SECURITY.
2.1. Data Location. Accruent will maintain the SaaS Services either at an Accruent location or through a
reputable Partner, where it is subject to commercially reasonable security precautions. Such
precautions shall comply with industry standards for the type of information maintained and shall
include, but not be limited to, procedures and measures to prevent unauthorized access to the SaaS
Services and unauthorized use of and/or modification of Client Data. Notwithstanding such security
precautions, and in no way diminishing or revoking Accruent’s security obligations herein, Client
acknowledges that use of or connection to the Internet provides the opportunity for unauthorized
third parties to circumvent such precautions and illegally gain access to the SaaS Services.
2.2. Disaster Recovery. Accruent’s disaster recovery service (“Disaster Recovery Plan”) is included in
Client’s Fees. In the event a disaster is declared, Accruent will initiate the Disaster Recovery Plan and
shall use commercially reasonable efforts to resume access to Client’s environment at Accruent’s
alternate data center facility in accordance with Accruent’s recovery time objectives.
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2.3. Data Breach. Upon becoming aware of or suspecting a breach or potential breach of Client Data,
including but not limited to unauthorized or unlawful processing of, disclosure of, access to,
destruction of, loss of, alteration to, or corruption of Client Data (“Data Breach”), Client must
immediately notify Accruent in writing. Client’s notification must include any relevant information
relating to the Data Breach. Such information may include, but is not limited to, the nature of the Data
Breach, the nature of the Client Data affected, the categories and number of users concerned, the
number of Client Data records concerned, measures taken to address the Data Breach and the possible
consequences and adverse effect of the Data Breach. To the extent possible, Client must maintain a
log of the Data Breach, including facts, effects, and remedial action taken. Upon becoming aware of a
Data Breach, Accruent must notify Client in writing within 72 hours following the discovery of the Data
Breach. In the event that such Data Breach is determined by Accruent to be Accruent’s responsibility,
it will, at its own cost, take all steps to restore, re-constitute, or reconstruct any Client Data which is
lost, damaged, destroyed, altered, or corrupted as a result of a Data Breach, with as much urgency as
Accruent would perform if it were its own data, and shall provide Client with all reasonable assistance
in respect of any such Data Breach.
3. ACCEPTABLE USE. Client acknowledges and agrees that Accruent does not monitor or police the
content of Client’s or its users’ communications or data transmitted through the SaaS Services, and
that Accruent shall not be responsible for the content of any such communications or transmissions.
Client shall use the SaaS Services exclusively as authorized in this Agreement and pursuant to all
applicable laws and regulations. Client agrees not to post or upload any content or data which (i)
contains Malicious Code; (ii) violates the rights of others, such as data which infringes on any
intellectual property rights, or violates any right of privacy or publicity; or (iv) otherwise violates any
applicable law or regulation. Client further agrees not to interfere or disrupt networks connected to
the SaaS Services, not to interfere with another entity's use and enjoyment of similar services and to
comply with all regulations, policies and procedures of networks connected to the SaaS Services.
Accruent may remove any violating content posted on the SaaS Services and/or training services or
transmitted through the SaaS Services, without notice to Client. Upon notice provided to Client,
Accruent may suspend or terminate any user’s access to the SaaS Services in the event that Accruent
reasonably determines that such user has violated the terms and conditions of this Agreement.
4. TERM. SaaS Services commence on the date specified in the Order Document and continue for the
term set forth therein (“Initial Term”). Following the end of the Initial Term, SaaS Services shall
automatically renew for 12 months (a “Renewal Term”) unless either Party gives written notice 60
days prior to the end of the Initial Term, or any Renewal Term, of its intention to terminate the SaaS
Service, or unless agreed to otherwise by the parties in writing. Any proposed change to pricing or
terms for a Renewal Term shall be provided by Accruent in writing no less than 90 days prior to the
end of the Initial Term or any Renewal Term. The Initial Term and Renewal Terms are collectively
referred to as the “Term.”
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EXHIBIT B
Perpetual License
1. LICENSE GRANT – PERPETUAL LICENSE. Subject to the terms and conditions of this Agreement and any
applicable Order Document, including without limitation the restrictions set forth in Section 6 of the
Agreement and timely payment of the applicable Fees, Accruent hereby grants to Client a limited, non-
exclusive, personal, non-transferable and perpetual (subject to Accruent’s termination rights as set
forth in the Agreement) license to (i) install, run and use the Software listed in the Order Document,
solely for Client’s own business operations and solely as enabled by the license keys, and (ii) use the
Documentation in connection with such use of the Software. The Software may be accessed by or used
to manage no more than the number of License Metrics specified in the Order Document. Additional
License Metrics may be purchased under an additional Order Document at the pricing in effect at the
time the additional License Metrics are purchased. Fees are based on License Metrics purchased and
not actual usage.
1.1. Copies. Client may make a reasonable number of machine-readable copies of the Software solely for
internal backup or archival purposes, and may retain such copies for the Term of this Exhibit. All
Intellectual Property rights notices must be reproduced and included on such copies. Client shall
maintain accurate and up-to-date records of the number and location of all copies of the Software and
inform Accruent in writing, upon request, of such number and locations.
2. MAINTENANCE
2.1. Subject to Client’s timely payment of Fees, Accruent will provide Maintenance services to Client during
the Term. Accruent is under no obligation to provide Support with respect to: (i) Software that has
been altered or modified (ii) software that has been implemented or installed by anyone other than
Accruent or its licensors; (iii) a release for which Maintenance has been discontinued; (iv) Software
used other than in accordance with the Documentation or the Agreement; (v) discrepancies that do
not significantly impair or affect the operation of the Software; or (vi) any systems or programs not
supplied by Accruent. If an error was corrected or is not present in a more current version of the
Software, Accruent shall have no obligation to correct such errors in prior versions of the Software.
2.2. Subject to Client’s timely payment of the applicable Fees, Maintenance is provided for all Software,
unless otherwise noted in the Order Document, provided however that with respect to Partner
Software, Accruent’s obligation is limited to using commercially reasonable efforts to obtain Support
from the applicable Partner.
2.3. If ordered, Maintenance must be ordered for all License Metrics utilized by Client.
2.4. Fees for Maintenance do not include implementation, training, and other Professional Services, such
as project management, conversion, report writing, and external systems interface development.
2.5. It is Client’s responsibility to ensure that all appropriate users receive initial training services sufficient
to enable Client to effectively use the Software. Failure to do so could result in (i) increased service call
fees, if such service calls are deemed by Accruent to be excessive as a result of insufficient training, at
Accruent’s discretion; (ii) extension of any launch dates or timelines; or (iii) delay in the performance
of Accruent’s obligations set forth herein.
2.6. Client shall ensure that Accruent’s assigned technical personnel are able to access the System
remotely. Client shall be responsible for providing access through any security measures it deems
necessary. Accruent alone shall decide whether access to the System is sufficient for Maintenance or
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Support purposes. “System” means the total complement of Software furnished and maintained by
Accruent.
2.7. Maintenance and Support starts on the date specified in the applicable Order Document and continues
through the expiration of the term set forth in the Order Document (“Initial Term”). Following the end
of the Initial Term, Maintenance and Support shall automatically renew for the same length as the
Initial Term (“Renewal Term”), unless either gives written notice 60 days prior to the end of the Initial
Term or any Renewal Term, of its intention to terminate Maintenance or Support. Any proposed
change to pricing or terms for a Renewal Term shall be provided in writing by Accruent no less than 90
days prior to the end of the Initial Term or any Renewal Term. In the event that the Agreement is
terminated in whole, any licenses in Client’s possession and control are thereby forfeited.
3. Hosting of Perpetual License. Should parties elect for Accruent to host the aforementioned license,
then Exhibit D applies, and the term of hosting will be the same as term described in 2.6. Any associated
costs with the implementation of hosting the licenses the parties will agree to in a SOW.
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EXHIBIT C
Term License
1. LICENSE GRANT – TERM LICENSE. Subject to the terms and conditions of this Agreement and any
applicable Order Document, including without limitation the restrictions set forth in Section 6 of the
Agreement and timely payment of the applicable Fees, Accruent hereby grants to Client a limited, non-
exclusive, personal, non-transferable license to, during the Term (i) install, run and use the Software
listed in the Order Document, solely for Client’s own business operations and solely as enabled by the
license keys, and (ii) use the Documentation in connection with such use of the Software. The Software
may be accessed by or used to manage no more than the number of License Metrics specified in the
Order Document. Additional License Metrics may be purchased under an additional Order Document
at the pricing in effect at the time the additional License Metrics are purchased. Fees are based on
License Metrics purchased and not actual usage.
1.1. Copies. Client may make a reasonable number of machine-readable copies of the Software solely for
internal backup or archival purposes and may retain such copies for the Term of this Exhibit. All
Intellectual Property rights notices must be reproduced and included on such copies. Client shall
maintain accurate and up-to-date records of the number and location of all copies of the Software and
inform Accruent in writing, upon request, of such number and locations.
2. MAINTENANCE
2.1. Subject to Client’s timely payment of Fees, Accruent will provide Maintenance services to Client during
the Term. Accruent is under no obligation to provide Maintenance with respect to: (i) Software that
has been altered or modified; (ii) Software that has been implemented or installed by anyone other
than Accruent or its licensors; (iii) a release for which Maintenance has been discontinued; (iv)
Software used other than in accordance with the Documentation or the Agreement; (v) discrepancies
that do not significantly impair or affect the operation of the Software; or (vi) any systems or programs
not supplied by Accruent. If an error was corrected or is not present in a more current version of the
Software, Accruent shall have no obligation to correct such errors in prior versions of the Software.
2.2. Subject to Client’s timely payment of the applicable Fees, Maintenance is provided for all Software,
unless otherwise noted in the Order Document, provided however that with respect to Partner
Software, Accruent’s obligation is limited to using commercially reasonable efforts to obtain
Maintenance from the applicable Partner.
2.3. If ordered, Maintenance must be ordered for all License Metrics utilized by Client.
2.4. Fees for Maintenance do not include implementation, training, and other Professional Services, such
as project management, conversion, report writing, and external systems interface development.
2.5. It is Client’s responsibility to ensure that all appropriate users receive initial training services sufficient
to enable Client to effectively use the Software. Failure to do so could result in (i) increased service call
fees, if such service calls are deemed by Accruent to be excessive as a result of insufficient training, at
Accruent’s discretion; (ii) extension of any launch dates or timelines; or (iii) delay in the performance
of Accruent’s obligations set forth herein.
2.6. Client shall ensure that Accruent’s assigned technical personnel are able to access the System
remotely. Client shall be responsible for providing access through any security measures it deems
necessary. Accruent alone shall decide whether access to the System is sufficient for Maintenance
purposes. “System” means the Software furnished and maintained by Accruent.
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2.7. Maintenance and Support starts on the date specified in the applicable Order Document and continues
through the expiration of the term set forth in the Order Document (“Initial Term”). Following the end
of the Initial Term, Maintenance and Support shall automatically renew for the same length as the
Initial Term (“Renewal Term”), unless either gives written notice 60 days prior to the end of the Initial
Term or any Renewal Term, of its intention to terminate Maintenance or Support. Any proposed
change to pricing or terms for a Renewal Term shall be provided in writing by Accruent no less than 90
days prior to the end of the Initial Term or any Renewal Term.
3. Hosting of Perpetual License. Should parties elect for Accruent to host the aforementioned license,
then Exhibit D applies, and the term of hosting will be the same as term described in 2.6. Any associated
costs with the implementation of hosting the licenses the parties will agree to in a SOW.
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EXHIBIT D
Service Level Attachment
Accruent Support (“Support”) remotely assists Client with issues during standard business hours and via
email, phone support, and its online ticketing system called Accruent Customer Communities. Support
is only provided in English. Designated Support Contacts (defined below) are provided support for
Incidents in the current and Supported Accruent Releases that run unaltered on designated supported
database products, office suite products, web browsers, and/or operating systems, as set forth in
Documentation. Accruent is only obligated to provide support for the software as it was delivered by
Accruent and will not provide support for any Software that has been altered or modified by any party
other than Accruent or its Partners.
1. DEFINITIONS
1.1. “After-Hours” processes ensure that, in the case of High Severity Incidents that occur outside of
Business Hours, Accruent is addressing critical system issues. For verified High Severity Incidents,
Support will begin Incident remediation.
1.2. “Business Hours” Accruent’s U.S. Support Hours are Monday through Friday, 7 AM – 7 PM (CST), except
for Holidays.
1.3. “Designated Support Contacts” are members of Client’s organization that are the primary liaisons
between the Client and Support, and that have been qualified by Accruent. The Designated Support
Contact is the Client’s users’ first level of support who logs Client’s internal support requests, and in
the event of a technical problem, acts as the sole point of contact for Support. Client understands and
acknowledges that if Designated Support Contacts are unavailable, this may adversely affect
Accruent’s ability to resolve Incidents. If an Incident case lacks the necessary product or technical
knowledge to assist Support in Incident resolution, Support may refer to another member of Client’s
organization who has a more detailed understanding of the Incident. Accruent provides direct support
for up to 5 Designated Support Contacts per Client, and additional Designated Support Contacts may
be purchased separately.
1.4. “Downtime” shall mean: (a) planned weekly downtime, for which Accruent will provide notice in
advance and will, to the extent reasonably practicable, schedule on Friday 9 PM - Saturday 2 AM (CST);
(b) emergency downtime (of which Accruent shall provide 24 hours advance notice, and which will not
last more than one hour), which will not last for more than one hour; (c) any unavailability caused by
circumstances beyond Accruent’s reasonable control and without any negligence on its part, including
without limitation, any Force Majeure Event; (d) any errors that result from Client’s improper use of
the Services, or (e) problems caused by Client Data, Client’s power supply, hardware, database,
network, web servers, operation, or other environmental factors of Client not within the direct control
of Accruent.
1.5. “High Severity” issues are verified by Support as Severity 1 or 2 Incidents, in accordance with
Accruent’s Severity Level classifications. In the case of a High Severity Incident, Client must call Support
immediately, in order for Support to confirm the impact and severity of the Incident, regardless of
Business Hours or Holidays. Incident Response Times do not begin until Support receives a phone call
from Client, which ensures immediate response and engagement of After-Hours processes. Non-High
Severity Incidents will be addressed during Business Hours.
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1.6. “Holidays” are days that the Accruent offices are not open for normal business operations. The
holidays which Accruent observes are as follows: New Year’s Day (January 1), President's Day (Third
Monday in February), Spring Holiday (Friday before Easter), Memorial Day (Last Monday in May),
Independence Day (July 4), Labor Day (First Monday in September), Thanksgiving (Fourth Thursday and
Friday in November), Christmas Eve (December 24), and Christmas Day (December 25).
1.7. “Incident” refers to an event requiring Client to contact Support. An Incident may describe an issue
which causes, or may cause, interruption to, or a reduction in, the quality of the SaaS Services, including
problems with or defects in the Software, data related to the SaaS Services, or troubleshooting
requests.
1.8. “Response Time” is the amount of time for Support to acknowledge requests, assuming there are no
issues with account standing. Response Times are not a resolution goal and should not be interpreted
as a guarantee of service.
1.9. “Service Credit” shall mean the average daily subscription fee, calculated by dividing the annual
subscription fee for the applicable SaaS Service by 365.
1.10. “Severity” is a level for each case that is assigned solely by Accruent and is based on the possible risk
or effect of an Incident on Client’s business operations. Severity shall be classified by Accruent in
accordance with Accruent’s Severity Level classifications noted herein.
1.11. “Supported Accruent Release” consists of the current Generally Available (GA) software product
offered by Accruent and includes up to 2 major releases from the current GA software product. Any
Incidents that occur on Software that is older than Supported Accruent Releases are subject to best
effort support when a Supported Accruent Release provides resolution, and Accruent is under no
obligation to provide extended support or further development for such Incidents. If Client requires
additional support for unsupported Accruent releases, Support may refer Client to Professional
Services, which are subject to additional fees.
2. CLIENT TRAINING. Client is responsible for ensuring that all of its appropriate users receive initial
training services sufficient to enable Client to effectively use the Software (i.e. attending all relevant
training sessions, etc.). Failure to do so could result in (i) at Accruent’s discretion, increased service call
fees, if such service calls are deemed excessive as a result of such insufficient training on the part of
Client or its users; (ii) extension of any launch dates or timelines; or (iii) delay in the performance of
Accruent’s obligations set forth herein.
3. ACCRUENT SEVERITY DEFINITIONS – INCIDENT RESPONSE TIMES. Clients must report Incidents to
Support for SaaS Services via either Accruent Customer Communities or email case creation. Once a
case is reported into Accruent Customer Communities, Accruent begins measuring Response Time. For
High Severity (Severity 1 or 2) Incidents, the Client must call Support immediately so that the process
of verifying the Incident can begin. Response Time for Severity 1 or 2 Incidents begins upon the call
made to Support.
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Severity
Level Description Target Response
Time
1
A critical Incident that results in a complete system outage or major application
failure and prevents Client from performing critical business functions that have
immediate impacts to finances or data integrity. There is no workaround available.
1 hour
2
A serious Incident that prevents the execution of a critical business function,
causing disruption of a major business function. It is causing serious impact on daily
functions or processing and there is no acceptable workaround.
4 hours
3
An Incident that does not prevent the execution of a critical business function and
does not impact data integrity. The problem may be reasonably circumvented
using an available workaround.
2 business days
4 An inquiry and/or low-impact process issue. Examples include cosmetic defects on
screens, errors in documentation, or an enhancement request. 3 business days
Number of Missed Severity 1 and 2 Target Response Times during a
Calendar Month
Number of Service
Credits
0-1† 0
2-4 5
5-7 8
Over 8 12
† A single miss of target SLA that occurs for two (2) consecutive months shall grant Client 3 service
credits.
4. SERVICE LEVELS – SERVICE AVAILABILITY (SPECIFIC TO HOSTED ENVIORNMENT). The SaaS Service is
expected to be available twenty-four (24) hours per day, seven (7) days per week (excluding
Downtime). In the event Accruent fails to meet an average of 98.5% availability during a particular
calendar month (excluding Downtime), Accruent will, as Client’s sole and exclusive remedy, credit to
Client’s account one Service Credit for each percentage point below 98.5% availability (excluding
Downtime) during such calendar month. Client acknowledges that Accruent does not control the
transfer of data over telecommunications facilities, including the Internet. Accruent does not warrant
secure operation of the SaaS Services or that it will be able to prevent third party disruptions of such
Services. Client acknowledges further that the SaaS Services may be subject to limitations, delays, and
other problems inherent in the use of the internet and electronic communications. Accruent is not
responsible for any delays, delivery failures, or other damage resulting from such problems.
5. GENERAL. Accruent will monitor the availability of the SaaS Service and Response Times for reported
Incidents, and any applicable Service Credits will be credited to Client on the following year’s invoice.
Client acknowledges and agrees that the allocation of Service Credits shall not result in any refund of
Fees, except at the end of the Term or the applicable Renewal Term.
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1. Defined Terms.
EXHIBIT E
PROFESSIONAL SERVICES
1.1. “Change Control” is defined as the process by which requests for changes in deliverables,
responsibilities, resources or project schedule are properly recorded, evaluated, distributed and
incorporated into the SOW. Change Control process will be defined by Client and Accruent as part of
project planning.
1.2. “Change Order” is defined as a document which captures any and all alterations to this SOW with
regard to changes in deliverables, responsibilities, resources, Term Information or Services Fees.
1.3. "Notification Period" is defined as the period of time in which the Client must notify Accruent of
material nonconformance with services provided herein.
2. Changes to Scope and/or Schedule. If at any time either party does not meet deadlines outlined within
the agreed upon project schedule, Client and Accruent both agree and acknowledge the following may
occur: (1)Project Schedule will be revised to accommodate any delays, and a new, mutually agreed
upon schedule will be drafted by the Accruent project manager and signed by appropriate Client and
Accruent representatives, (2) If delays are extensive, project resources will be reallocated to other
engagements. (3) Fees for additional work or extension of resources may be incurred.
2.1. During the course of the project, if Accruent determines or could reasonably determine any Client
actions or direction constitute a requirement to perform additional work, not otherwise specified
herein, Accruent shall notify Client within 30 days that Client has requested Accruent to perform
additional work. Accruent agrees and acknowledges that it waives the right to request reimbursement
for work already performed if Accruent fails to notify Client of the requirement to perform additional
work. Accruent will complete a Change Order containing the changes to the project, project schedule,
deliverables and/or Services and Fees contained in this SOW. Client may request up to 10 business
days to determine whether to execute the Change Order. After the 10 business days, the terms of the
Change Order may be subject to change depending upon availability of resources, impact to project
schedule or severity of impact on existing activities.
3. Costs. Unless otherwise expressly stated in the applicable SOW, Professional Services shall be provided
on a time and materials (“T&M”) basis. On a T&M engagement, the T&M rates will be the rates set
forth in the SOW, except that if the SOW does not state the applicable T&M rates, then Accruent’s
standard T&M rates in effect at the time the SOW is entered into will apply. Furthermore, if an
estimated total amount is stated in the applicable SOW, that amount is solely a good faith estimate for
Client's budgeting and Accruent’s resource scheduling purposes and not a guarantee that the work will
be completed for that amount. If Client wishes the Accruent personnel to perform on Client’s site,
Client agrees it shall give Accruent at least two (2) weeks’ prior notice so Accruent can make
appropriate travel arrangements.
4. Travel and Expense.
4.1. Accruent will provide notice of any requested travel that will occur on a non-business day (weekend
or holiday)
4.2. Accruent will provide services via phone, internet, and email or otherwise remotely from the Accruent
premises unless otherwise stated in the relevant SOW.
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4.3. In the event Client cancels or reschedules any travel with less than 30 business days of notice prior to
the scheduled travel date, Client is responsible for up to 50% of any additional fees associated with
rebooking or cancelling the arrangements.
4.4. In the event Client cancels or reschedules any travel with less than 7 business days of notice prior to
the scheduled travel date, Client is responsible for up to 100% of any additional fees associated with
rebooking or cancelling the arrangements.
4.5. If applicable, travel time is calculated as the time between departure from Accruent premises, local
airport or home office and arrival at destination address, as determined by both Parties prior to
departure, or destination airport.
5. Project Close. The Notification Period prior to the closure of the project is 10 business days from the
date that Accruent provides written notice to Client that states the delivery of services is complete. In
the event Client does not provide notice of material nonconformance or request for change during
Notification Period, the project will be closed, and no additional work will be performed by Accruent
pursuant to the services contained herein. In the event Client does provide notice of material
nonconformance or request for change after the expiration of Notification Period, such work shall only
be performed under a new contractual arrangement. In the event material non-conformance is
identified within the Notification Period, Accruent shall promptly correct such non-conformance,
which was due to fault or negligence of Accruent, at no additional cost to Client.
6. Cooperation. Client shall provide Accruent with commercially reasonable cooperation and access to
such information, facilities, personnel and equipment as may be reasonably required by Accruent in
order to provide the Professional Services, including, but not limited to, providing security access,
information, and software interfaces to Client’s applications, and Client personnel, as may be
reasonably requested by Accruent from time to time. Client acknowledges and agrees that Accruent
performance is dependent upon the timely and effective satisfaction of Client’s responsibilities
hereunder and timely decisions and approvals of Client in connection with the Professional Services.
Accruent shall be entitled to rely on all decisions and approvals of Client.
7. Client Data. Client’s data shall be provided to Accruent in a format approved by Accruent or additional
charges will apply. Client is responsible for the accuracy and completeness of its information and Client
Data. Accruent’s performance is dependent on Client’s timely provision of accurate and complete
resources and information, including but not limited to detailed, precise and clear specifications for
any deliverables.
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EXHIBIT F
Data Access and Rights
1. COLLECTION AND OWNERSHIP. Client acknowledges that data regarding its use of the Software (“Usage
Data”) may be collected from one or more sensors, Internet of Things (IoT) devices, or other data
gathering equipment installed or located on Client’s premises (collectively “Devices”), including
location(s) owned, occupied, or otherwise under control of Client. If Client has ownership rights to one
or more of the Devices, Client owns and retains full access and rights to the Usage Data, or if resold by a
field service provider the end user acquires full access and rights as a licensor (and be classified as
“Licensor” herein). If Accruent owns one or more of the Devices, notwithstanding the Devices being
located on Client’s premises, Accruent shall own and retain full access and rights to the Usage Data.
2. USE AND ACCESS. Each of the parties shall have access to the other party’s Usage Data. However, for
avoidance of doubt, Accruent may not, either directly or indirectly, sell or share Accruent-owned Usage
Data with any third parties without the prior express written consent of Client. Client may sell or share
Client-owned Usage Data to third parties without the consent of Accruent. Unless mutually agreed upon
by the parties, in no event may a party sell or share data owned by the other party to or with any third-
party. Accruent’s use of the Usage Data shall primarily be for purposes of improving the Services.
3. LICENSE GRANT. Client grants to Accruent a non-exclusive, royalty free license, to use any data and
information that Client provides, generates, transfers, or makes available to Accruent for purposes of
performing its obligations under the Agreement, as well as to generate Resultant Data for product
improvement, product development , and other business purposes. Any such data and information
provided, generated, transferred, or made available to Accruent by Client shall be anonymized and
aggregated by Accruent prior to use for any of its purposes described in this Section 3.
4. RESULTANT DATA. Client hereby agrees that Accruent and its successors and assigns may collect, use,
publish, disseminate, sell, transfer, and otherwise exploit the collected Usage Data only if such data (i)
has been anonymized by Accruent or its designee; or (ii) aggregated with Usage Data from other Clients.
For the avoidance of doubt, such anonymized and aggregated Usage Data will be considered a part of
Resultant Data as set forth in the Agreement. Resultant Data is used by Accruent to compile statistical,
performance information for creation and development of products, product improvements, product
creation, and product marketing. Accruent is the sole owner of all right, title, and interest in and to
Resultant Data and any conclusions, impressions, understandings, insights, process improvements, or
other information derived, extracted, or otherwise obtained by Accruent from Resultant Data, and the
Resultant Data shall be owned exclusively by Accruent with all rights thereto, which shall be deemed
Accruent’s Intellectual Property for purposes of this Agreement.
5. COMBINATION. Resultant Data and data obtained from other sources may be combined (“Combined
Data”) either by Accruent or by a third-party data analysis vendor and stored either at an Accruent-
controlled repository or a third-party repository in any form of structured, raw, or other data format.
Combined Data in any form may be used by Accruent for any lawful purpose. Accruent is the sole owner
of all right, title, and interest in and to the Combined Data and any analytics generated from the
Combined Data, including the right to collect, use, publish, disseminate, sell, transfer, and otherwise
exploit the Combined Data and analytics, which shall be deemed Accruent’s Intellectual Property for
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purposes of this Agreement.
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6. TRANSPORT, SECURITY, AND STORAGE. Except for data collected and transported directly from a
sensor, Combined Data may be transported by Accruent to a remote or third-party vendor site. Accruent
shall take steps to ensure transport of the data is secure, including the use of various encryption
technologies and other security measures. Further security shall include maintaining adequate physical
controls and password protections for any server or system on which data is stored, and any other
measures reasonably necessary to prevent any use or disclosure of data other than as allowed under this
Agreement.
7. AFFILIATION. Client hereby agrees that in the event Accruent is divested, sold, separated, or otherwise
no longer affiliated with, or under common control of, its parent company, a copy of all data including
Resultant Data shall remain with the parent company along with all the same rights, title and obligations
as Accruent set forth herein.
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EXHIBIT G
California Consumer Privacy Act Data Processing Provisions
These CCPA Data Processing Provisions (the “CCPA Provisions”) set forth the terms and conditions relating
to compliance with the California Consumer Privacy Act of 2018, Cal. Civil Code § 1798.100 et seq.,
(“CCPA”) and related regulations, as may be amended from time to time. The CCPA Provisions shall only
apply and bind the Parties if and to the extent Client is a Business under the CCPA. These CCPA Provisions
prevail over any conflicting terms of the Agreement, but does not otherwise modify the Agreement. All
capitalized terms used in these CCPA Provisions that are not otherwise defined herein or in the Agreement
shall have the meanings set forth in the CCPA.
1. Accruent shall process Personal Information only as necessary for the purposes of performing the
services under this Agreement on behalf of Client. Accruent shall not (i) sell any Personal Information
received from Client; or (ii) retain, use, or disclose the Personal Information provided by or collected on
behalf of Client for any purpose other than for the specific purpose of performing the services specified
in the Agreement, including retaining, using, or disclosing the Personal Information for a commercial
purpose other than providing the services specified in this Agreement.
2. Accruent shall not respond to any requests related to Personal Information processed on behalf of Client
other than to inform the requestor that Accruent is not authorized to directly respond to a request, and
recommend the requestor submit the request directly to Client.
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EXHIBIT H
GDPR Data Protection Provisions
RESERVED
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