HomeMy WebLinkAboutP-24-117 Brightly Software Inc.pdf P-24-117
County of Fresno
$rightly
MASTER SUBSCRIPTION AGREEMENT A Siemens Company
This Master Subscription Agreement,together with any addenda, (this"Agreement")shall govern Subscriber's(as defined below)access
and use of the Cloud Services(as defined below)provided by Brightly Software("Company").This Agreement may be accepted by either clicking a
box indicating acceptance, by reseller purchase, by executing an Order that references this Agreement or by otherwise accessing or using an Offering.
Subscriber agrees to the terms of this Agreement by clicking the button or using any Offering and therefore indicates that Subscriber has read,
understood, and accepted this Agreement. If Subscriber does not accept, Subscriber must not use any Offering and must return any Offering to
Company or its authorized reseller or partner prior to use.
IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY,THE INDIVIDUAL
REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN
WHICH CASE THE TERMS "ACCOUNT" OR "SUBSCRIBER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS
AGREEMENT DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE WITH THE TERMS AND CONDITIONS SET FORTH HEREIN,THE INDIVIDUAL
MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE OFFERING.
Section 1.0 Ordering and Use of Offerings
1.1 Company Cloud Service:Subscriber-Hosted Software.
(a) Company Cloud Service. Unless otherwise specified on an applicable Order, an Offering of Cloud Service shall be provided as Company-
hosted, online cloud service. Company grants Subscriber a non-exclusive and non-transferable right to access and use the Offering for the
Subscription Term.
(b) Subscriber-Hosted Software.Where an applicable Order sets forth a Subscriber-Hosted Software Offering, subject to the provisions of this
Agreement,Company grants Subscriber a non-exclusive and non-transferable license(with no right to sublicense)to install and use the Offering for
the Subscription Term. In respect of such Subscriber-Hosted Software Offering:
(i) Subscriber is responsible for installing and implementing the Subscriber-Hosted Software and any updates, enhancements or
modifications, except for any Professional Services set forth on an applicable Order(i.e., implementation).
(ii) Subject to the terms of this Agreement, Subscriber may create copies of the Subscriber-Hosted Software to the extent strictly
necessary to install and operate the Subscriber-Hosted Software for use in accordance with this Agreement, and to create backup and
archival copies to the extent reasonably required in the normal operation of Subscriber systems. All such copies must include a
reproduction of all copyright,trademarks or other proprietary notices contained in the original copy of the Subscriber-Hosted Software.
(iii) Subscriber is responsible for providing the Environment and ensuring the Environment functions properly,and for implementing
appropriate data backup and security measures. "Environment"means the systems, networks, servers, equipment, hardware, software
and other material specified in Documentation or an Order on which, or in connection with which,the Subscriber—Hosted Service will be
used.
(c) Data Security. Where Company is processing data on behalf of Subscriber, other than as expressed under this Agreement,the data security
terms set forth in Exhibit A shall apply.
1.2 Orderina.
(a) Ordering.The parties may enter into one or more Orders under this Agreement. Each Order is binding on the parties and is governed by the
terms of this Agreement and all applicable addenda.Pursuant to an Order,Company shall grant Subscriber Account Users access or use of the Offerings
during their Subscription Term, including all Content contained in or made available through the Cloud Service(s).Affiliates of either party may
conduct business under this Agreement by executing an Order that references this Agreement's terms.
(b) Account Setup.To subscribe to the Cloud Service, Subscriber must establish its Account,which may only be accessed and used by its
Account Users in accordance with any number and categories of users as set forth on the Order.To setup an Account User, Subscriber agrees to
provide true and accurate information for such Account Users. Each Account User must establish and maintain personal, non-transferable Access
Credentials,which shall not be shared with,or used by,any other individual. Subscriber must not create Account User(s)in a manner that intends to
or has the effect of avoiding Fees, circumvents thresholds with the Account, or intends to violate the Agreement.
(c) Subscriber Responsibilities.Subscriber agrees that it shall use the Service(s)solely for internal business purposes,and access and use of the
Cloud Service(s)shall be limited to Account Users. Subscriber will ensure that its Account Users shall comply with Subscriber's obligations under this
Agreement whether they are accessing Cloud Services on Subscriber's behalf,at Subscriber's invitation or by invitation of a Subscriber Account User.
If Subscriber becomes aware of any violation of this Agreement by a user or any unauthorized access to any user account, Subscriber will immediately
notify Company and terminate the relevant Account User or user account's access to the Cloud Service. Subscriber is responsible for any act or failure
to act by any Account User or any person using or accessing the account of a user in connection with this Agreement. Subscriber acknowledges and
agrees that Account Users who submit declarations, notifications or orders to Company are acting on behalf of Subscriber's behalf. Further,
Subscriber shall:(i)be solely responsible for the accuracy,and appropriateness of all Subscriber Data and Content created by Account Users using
the Cloud Service; (ii)access and use the Cloud Service solely in compliance with the Documentation and all applicable laws, rules,directives and
regulations(including those relating to export, homeland security, anti-terrorism, data protection and privacy); (iii)allow e-mail notifications generated
by the Cloud Service on behalf of Subscriber's Account Users to be delivered to Subscriber's Account Users; and (vi)take responsibility for the security
of Subscribers' systems, including the software on Subscriber's systems, and take commercially reasonable steps to exclude malware, viruses,
spyware and trojans from Cloud Services.
Usage Restrictions.Subscriber agrees that it shall not, and shall not permit any Account User or Third Party accessing by,through or at Subscriber
direction, or on its behalf to, directly or indirectly: (i)modify, copy, create derivative works or attempt to derive the source code of the Cloud Service; (ii)
assign,sublicense,distribute or otherwise make available the Cloud Service,to any Third Party, including on a timesharing, software-as-a-service or other
similar basis;(iii)share Access Credentials or otherwise allow access or use the Cloud Service to provide any service bureau services or any services on
a similar basis;(iv)use the Cloud Service in a way not authorized in writing by Company or for any unlawful purpose;(v)use the Cloud Service to store
or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of Third Party privacy rights; (vi)
attempt to tamper with, alter, disable, override, or circumvent any security, reliability, integrity, accounting or other mechanism, restriction or
requirement of the Cloud Service; (vii)remove, obscure or alter any copyright,trademark, patent or proprietary notice affixed or displayed by or in the
Cloud Service; (viii)perform load tests,network scans,penetration tests,ethical hacks or any other security auditing procedures on the Cloud Service;
(ix)interfere with or disrupt the integrity or performance of the Cloud Service or the data contained therein;(x)access or use the Cloud Service in order
to replicate applications,products or services offered by Company and/or otherwise build a competitive product or service,copy any features,functions
or graphics of the Cloud Service or monitor the availability and/or functionality of the Cloud Service for any benchmarking or competitive purposes; (xi)
under any circumstances,through a Third Party application,a Subscriber application or otherwise,repackage or resell the Cloud Service,or any Company
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Content; (xii)store,manipulate,analyze,reformat,print,and display Company Content for personal use;and(xiii)upload or insert code,scripts,batch
files or any other form of scripting or coding into the Cloud Service. Notwithstanding the foregoing restrictions, in the event Subscriber has purchased a
Subscription for Commercial Use(as such term is defined below),Subscriber shall be permitted to use the Cloud Service to provide Third Party services
in cases where such Third Parties access the Subscriber provided applications or services, but where such Third Parties do not have the ability to
install, configure, manage or have direct access to the Cloud Services.Company hereby agrees,subject to payment of the applicable fees,to permit
such use and the terms of this Agreement, including references to"internal use" and/or"internal business operations"shall be deemed to include and
permit such use(hereafter referred to as"Commercial Use").
(d) Additional Guidelines.Company reserves the right to establish or modify its Cloud Service offerings,general practices and limits concerning
use of the Cloud Service,and if applicable provide alternative Cloud Service offerings and practices,with approximately thirty(30)days'prior notice.
Company also reserves the right to block IP addresses originating a Denial of Service(DoS)attack. Company shall notify Subscriber should this
condition exist and inform Subscriber of its action.Once blocked,an IP address shall not be able to access the Cloud Service and the block may be
removed once Company is satisfied corrective action has taken place to resolve the issue.
(e) Links to Third Party Websites.To the extent that the Cloud Service links to any Third Party website,application or service,the terms and
conditions thereof shall govern Subscriber's rights with respect to such website, application or service, unless otherwise expressly provided by
Company.Company shall have no obligations or liability arising from Subscriber's access and use of such linked Third Party websites,applications
and services.
(f) Previews, No-Charge Offerings. From time to time,Company may make Offerings available to Subscribers at no charge or allow features
or services at no extra charge as part of Cloud Services prior to their general release that are labeled or communicated as Previews.Subscriber may
choose to try such Previews or not in its sole discretion. Use of Previews is at Subscriber's sole risk and may contain bugs or errors.Subscriber may
discontinue use of the Previews at any time, in its sole discretion. Further,Company may discontinue all Previews availability at any time in its sole
discretion without notice. Previews and No-Charge Offerings are provided on an"as-is"basis and"as available"basis,without any warranties of any
kind.
1.3 Proprietary Rights.
(a) Subscriber acknowledges and agrees that Company retains all ownership right,title,and interest in and to Brightly IP,including the Cloud
Service, its Documentation and Content, and all corrections, enhancements, improvements to, or derivative works thereof without limitation
(collectively, "Derivative Works"),and in all Brightly IP therein or thereto.To the extent any Derivative Work is developed by Company based upon
ideas or suggestions submitted by Subscriber to Company, Subscriber hereby irrevocably assigns all rights to use and incorporate Subscriber's
feedback, including but not limited to suggestions,enhancement requests,recommendations and corrections(the"Feedback")relating to the Cloud
Service,together with all Brightly IP related to such Derivative Works. Nothing contained in this Agreement shall be construed to convey to Subscriber
(or to any party claiming through Subscriber)any Brightly IP rights other than the rights expressly set forth in this Agreement.
(b) Company acknowledges and agrees that Subscriber retains all ownership right,title,and interest in and to the Subscriber Data and Content,
including all intellectual property rights therein or thereto. Notwithstanding the foregoing,Subscriber hereby grants Company and its Affiliates a non-
exclusive, royalty-free license to access,display,copy,distribute,transmit,publish,disclose and otherwise use all or any portion of Subscriber Data
and Content to fulfill its obligations under this Agreement. In addition, Subscriber hereby grants Company a non-exclusive, royalty-free right to use
aggregated and de-identified data generated and/or derived by Company from the Subscriber Data(the"De-Identified Data")in order to improve the
Cloud Service and Company's performance hereunder, including without limitation, submitting and sublicensing such De-Identified Data to Third
Parties for analytical purposes,provided that Company shall take commercially reasonable efforts to conduct such de-identification in a manner that
ensures that such De-Identification cannot be traced back to Subscriber or natural persons. Company recommends Subscriber confirm the
geographic area in which Subscriber Data will be stored,which may be outside the country in which Subscriber is located.Subscriber will ensure that
Subscriber Data can be processed and used as contemplated by this Agreement without violating any rights of others or any laws or regulations.
M Subscriber acknowledges the Cloud Services may utilize, embed or incorporate Third Party software and/or tools(each, a"Third-Party Tool")
under a license granted to Company by one or more applicable Third Parties (each, a "Third-Party Licensor'), which licenses Company the right to
sublicense the use of the Third-Party Tool solely as part of the Cloud Services. Each such sublicense is nonexclusive and solely for Subscriber's internal
use and Subscriber shall not further resell, re-license,or grant any other rights to use such sublicense to any Third Party.Subscriber further
acknowledges that each Third-Party Licensor retains all right, title, and interest to its applicable Third-Party Tool and all documentation related to
such Third-Party Tool. All confidential or proprietary information of each Third-Party Licensor is Confidential Information of Company under the terms
of this Agreement and shall be protected in accordance with the terms of Section 7.
Section 2.0 Company Responsibilities
2.1 Professional Services.To the extent Professional Services are included in the applicable Order and/or described in one or more statements
of work,Subscriber agrees to abide by Company's Professional Services Addendum. Each statement of work shall be effective, incorporated into and
form a part of this Agreement when duly executed by an authorized representative of each of the parties. Each statement of work shall(i)describe
the fees and payment terms with respect to the Professional Services being provided pursuant to such statement of work,(ii)identify any work product
that will be developed pursuant to such statement of work,and(iii)if applicable, sets forth each party's respective ownership and proprietary rights
with respect to any work product developed pursuant to such statement of work.
2.2 Service Levels. Company shall use commercially reasonable efforts to make the Cloud Service available 99.9%of the time for each full
calendar month during the Subscription Term,determined on twenty-four(24)hours a day,seven(7)days a week basis(the"Service Standard").The
Service Standard availability for access and use by Subscriber(s)excludes unavailability when due to:(a)any access to or use of the Cloud Service by
Subscriber or any Account User that does not strictly comply with the terms of the Agreement or the Documentation; (b)any failure of performance
caused in whole or in part by Subscriber's delay in performing,or failure to perform,any of its obligations under the Agreement; (c)Subscriber's or its
Account User's Internet connectivity; (d)any Force Majeure Event; I any failure, interruption, outage, or other problem with internet service or non-
Cloud Service;(f)Scheduled Downtime;or(g)any disabling,suspension,or termination of the Cloud Service by Company pursuant to the terms of the
Agreement."Scheduled Downtime"means,with respect to any applicable Cloud Service,the total amount of time(measured in minutes)during an
applicable calendar month when such Cloud Service is unavailable for the majority of Subscribers'Account Users due to planned Cloud Service
maintenance.To the extent reasonably practicable,Company shall use reasonable efforts to provide eight(8)hours prior electronic notice of Cloud
Service maintenance events and schedule such Cloud Service maintenance events outside the applicable business hours.
2.3 Security and Data Privacy.Each party shall comply with applicable data privacy laws governing the protection of personal data in relation
to their respective obligations under this Agreement. Where Company acts as Subscriber's processor of personal data provided by Subscriber,the
data is subject to Company's Privacy Policy,which can be viewed by clicking the"Privacy"hypertext link located within the Cloud Service. By using
the Cloud Service,Subscriber accepts and agrees to be bound and abide by such Privacy Policy.At all times during the Subscription term and upon
written request of Subscriber within thirty(30)days after the effective date of termination or expiration of this Agreement,Subscriber Content shall be
available for Subscriber's export and download. In accordance with applicable data privacy laws following that initial period, Company shall not be
obligated to maintain Subscriber Data nor Subscriber Content and may delete or destroy what remains in its possession or control.
(a) If applicable in the United States, if Subscriber is a"Covered Entity" under the Health Insurance Portability and Accountability Act of 1996(as
amended from time to time,"HIPAA"),and if Subscriber must reasonably provide protected health information as defined by HIPAA in order to use the
Cloud Services,Company shall be Subscriber's"Business Associate"under HIPAA,and Company and Subscriber shall enter into a Business Associate
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Agreement(the form of which shall be reasonably satisfactory to Company).
(b) If applicable in the United Kingdom, Switzerland or European Economic Area (EEA),both parties will comply with the applicable requirements
of Data Protection Legislation. "Data Protection Legislation" means (i)the United Kingdom's Data Protection Act 2018, and (ii)the General Data
Protection Regulation ("GDPR") and any national implementing laws, regulations or secondary legislation. Company and Subscriber agree that
Company will not be processing any personal data on behalf of the Subscriber as"Data Controller"(defined in accordance with the Data Protection
Legislation). Company will collect, use, disclose, transfer and store personal information when needed to administer this Agreement and for its
operational and business purposes,in accordance with Data Protection Legislation.To the extent personal data from the UK,Switzerland or the EEA
are processed by Company, the terms of a data processing addendum ("DPA")must be signed by the parties.To the extent Company processes
personal data, its binding corporate rules and the standard contract clauses shall apply, as set forth in the DPA. For standard contract clauses,
Subscriber and Company agree that Subscriber is the data exporter and Subscriber's acceptance of this Agreement or applicable Order shall be
treated as its execution of the standard contract clauses.
2.4 Insurance.Company shall comply with insurance requirements as set for in Exhibit C to this Agreement.
Section 3.0 Third Party Interactions
3.1 Relationship to Third Parties. In connection with Subscriber's use of the Cloud Service, at Subscriber's discretion, Subscriber may: (i)
participate in Third Party promotions through the Cloud Service; (ii) purchase Third Party goods and/or services, including implementation,
customization, content,forms, schedules, integration and other services; (iii)exchange data, integrate, or interact between Subscriber's Account,the
Cloud Service, its application programming interface("API")and a Third Party provider; (iv)receive additional functionality within the user interface
of the Cloud Service through use of the API; and/or(v) receive content, knowledge, subject matter expertise in the creation of forms, content and
schedules.Any such activity, and any terms, conditions,warranties or representations associated with such Third Party activity,shall be solely between
Subscriber and the applicable Third Party. Company shall have no liability, obligation or responsibility for any such Third Party correspondence,
purchase, promotion, data exchange, integration or interaction. Company does not warrant any Third Party providers or any of their products or
services,whether or not such products or services are designated by Company as"certified,""validated,""premier"and/or any other designation.
Company does not endorse any sites on the Internet that are linked through the Cloud Service.
3.2 Ownership.As between Subscriber and Company, Subscriber is the owner of all Third Party Content loaded into the Subscriber Account.As
the owner, it is Subscriber's responsibility to make sure it meets its particular needs. Company shall not comment, edit or advise Subscriber with
respect to such Third Party Content in any manner.
Section 4.0 Fees and Payment.
4.1 Fees.Subscriber shall pay to Company all fees specified in Orders. Except as otherwise stated on the Order: (i)Subscription Fees are based
on Cloud Services subscriptions purchased,(ii)all Subscription Fee payment obligations are non-refundable and non-cancelable,and(iii)quantities
purchased cannot be decreased during the relevant Subscription Term.The Subscription Fee for such Cloud Service subscription shall be invoiced
upon commencement of the Term.Thereafter, Company shall make reasonable efforts to invoice Subscriber for each applicable Subscription Fee
sixty(60) days prior to its commencement. Unless Subscriber provides written notice of termination in accordance with Section 5.1, Subscriber agrees
to pay all fees. Subscriber is responsible for providing complete and accurate billing and contact information to Company and notifying Company
promptly of any changes to such information.
4.2 Automatic Payments. If Subscriber is paying by credit card or Automated Clearing House("ACH"), Subscriber shall establish and maintain
valid and updated credit card information or a valid ACH auto debit account(in each case,the"Automatic Payment Method"). Upon establishment of
such Automatic Payment Method,Company is hereby authorized to charge any applicable Subscription Fee using such Automatic Payment Method.
4.3 Overdue Charges. If any invoiced amount is not received by Company by the due date,without limiting Company's rights or remedies,those
overdue charges may accrue late interest at the rate of 1.5%of the outstanding balance per month, or the maximum amount permitted by law,whichever
is lower. Company reserves the right to condition an overdue Account's future subscription renewals and Order on shorter payment terms than those
stated herein.
4.4 Taxes.Company's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including,for example,
value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever(collectively, "Taxes"). Subscriber is responsible for paying all
Taxes associated with its purchases hereunder.If Company has the legal obligation to pay or collect Taxes for which Subscriber is responsible under
this Section 4.5, Company shall invoice Subscriber and Subscriber shall pay that amount unless Subscriber provides Company with a valid tax
exemption certificate authorized by the appropriate taxing authority. To the extent permitted by law, Subscriber agrees to indemnify and hold
Company harmless from any encumbrance,fine, penalty or other expense which Company may incur as a result of Subscriber's failure to pay any
Taxes required hereunder. For clarity, Company is solely responsible for taxes assessable against Company based on its income, property and
employees.
4.5 Purchases through Resellers. In the event Subscriber purchases the Cloud Services(including any renewals thereof)through an authorized
reseller of Company,the terms and conditions of this Agreement shall apply and supersede any other agreement except for any terms and conditions
related to fees,payment or Taxes.Such terms and conditions shall be negotiated solely by and between Subscriber and such authorized reseller.In
the event Subscriber ceases to pay the reseller,or terminates its agreement with the reseller,Company shall have the right to terminate Subscriber's
access to the Cloud Services at any time upon thirty (30) days' prior written notice to Subscriber unless Subscriber and Company have agreed
otherwise in writing.
Section 5.0 Term and Termination
5.1 Subscription Term.This Agreement will commence on the Effective Date set forth on the Order and continues until the Offerings hereunder
have expired or have been terminated(the"Subscription Term").Thereafter,except as stated on an applicable Order,the Subscription Term shall
automatically renew for additional periods equal to the expiring Subscription Term or one year,whichever is longer, unless either party has provided
written notice of its intent to terminate the Cloud Service subscription not less than forty-five(45)days prior to the expiration of the then-current
Subscription Term applicable to the Cloud Service subscription.
5.2 Termination.Neither party will terminate an Order for convenience during the applicable Subscription Term. Either party may terminate
this Agreement(in whole or with respect to an Order or purchased from a reseller)by notice to the other party if(i)the other party commits a material
breach of this Agreement and fails to cure such breach within thirty (30) days(except in the case of a breach of Section 7 in which case no cure
period will apply)or(ii)the other party becomes the subject of a petition in bankruptcy or other similar proceeding.Company may,at its option, and
without limiting its other remedies,suspend(rather than terminate)any Cloud Services if Subscriber breaches the Agreement(including with respect
to payment of Fees)until the breach is remedied.
5.3 Effect of Termination. Upon expiration of the applicable Subscription Term, or termination of any Order for one or more Offerings or this
Agreement for any reason,Subscriber's right to access, use or receive the affected Order or Order items automatically terminate. Subscriber shall
immediately cease using the Order or Offering, remove and destroy all Offerings and other Company Confidential Information relating to the Order
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in its possession or control, and certify such removal and destruction in writing to Company. Termination or suspension of an individual Order or
reseller purchase will not terminate or suspend any other Order,reseller purchase or the remainder of the Agreement unless specified in the notice of
termination or suspension.If the Agreement is terminated in whole,all outstanding Order(s)and reseller purchases will terminate.If this Agreement,
any Order or reseller purchase is terminated,Subscriber agrees to pay all Fees owed up to the effective date of termination.
5.4 Survival.The following portions of this Agreement shall survive termination of this Agreement and continue in full force and effect: Sections
1,2.3, 5.3,6,7,8 and 9.
Section 6.0 Representations,Warranties and Disclaimers
6.1 Representations. Each party represents that: (i) it has full right, title and authority to enter into this Agreement; and (ii)this Agreement
constitutes a legal, valid and binding obligation of Subscriber, enforceable against it in accordance with its terms.
6.2 Warranties.
(a) Company warrants that Cloud Service will perform substantially in accordance with the features and functions described in the applicable
Documentation. To the extent permitted by law,Subscriber's exclusive remedy and Company's entire liability for a breach of this warranty in Section
6.2(a),at its option:(i)will use commercially reasonable efforts to restore the non-conforming Cloud Services so that they comply with this warranty,
or(ii)if such restoration would not be commercially reasonable, Company may terminate the Order for the non-conforming Offering and refund any
prepaid fees paid for such Offering. The warranty excludes: (a)no charge Offerings or Previews, and (b) issues, problems or defects arising from Third
Party Content, Subscriber Data or Content, or use of Cloud Service not in accordance with this Agreement.
(b) Company represents and warrants that all such Professional Services shall be performed in a professional and workmanlike manner in
accordance with generally accepted industry standards. For any breach of this warranty in Section 6.2(b), Subscriber's exclusive remedy and
Company's entire liability shall be the re-performance of the applicable Professional Services.
(0 Company makes only the limited warranties expressly stated in this Agreement, and disclaims all other warranties, including without
limitation,the implied warranties of merchantability and fitness for a particular purpose. Company does not warrant or otherwise guarantee that: (i)
reported errors will be corrected or support requests will be resolved to meet Subscribers' needs, (ii) any Order or Third Party Content will be
uninterrupted, error free,fail-safe,fault-tolerant, or free of harmful components, or(iii)any Content, including Subscriber and Third Party Content,will
be secure or not otherwise lost or damaged. Representations about Orders or features or functionality in any communication with Subscriber
constitutes technical information, not a warranty or guarantee.
(d) Company's Cloud Services have not been tested in all situations under which they may be used. Subscriber is solely responsible for
determining the appropriate uses for the Cloud Services and the results of such use; Company will not be liable for the results obtained through
Subscriber's use of the Cloud Services. Company's Cloud Services are not specifically designed or intended for use in (i)storage of sensitive, personal
information,(ii)direct life support systems,(iii)nuclear facility operations,or(iv)any other similar hazardous environment.
6.3 Intellectual Property Indemnification.
(a) Indemnity by Company. Company shall defend and indemnify Subscriber from any loss, damage or expense (including reasonable
attorneys'fees)awarded by a court of competent jurisdiction,or paid in accordance with a settlement agreement signed by Subscriber,in connection
with any Third Party claim(each,a"Claim")alleging that Subscriber's use of the Cloud Service as expressly permitted hereunder infringes upon any
intellectual property rights,patent,copyright or trademark of such Third Party,or misappropriates the trade secret of such Third Party;provided that
Subscriber:(x)promptly gives Company written notice of the Claim; (y)gives Company sole control of the defense and settlement of the Claim;and
(z) provides to Company all reasonable assistance, at Company's expense. If Company receives information about an infringement or
misappropriation claim related to the Cloud Service,Company may in its sole discretion and at no cost to Subscriber:(i)modify the Cloud Service so
that it no longer infringes or misappropriates, (ii)obtain a license for Subscriber's continued use of the Cloud Service, or(iii)terminate this Agreement
(including Subscriber's Cloud Service subscriptions and Account) upon prior written notice and refund to Subscriber any prepaid Subscription Fee
covering the remainder of the Term of the terminated Cloud Service subscriptions. Notwithstanding the foregoing,Company shall have no liability or
obligation with respect to any Claim that is based upon or arises out of(A)use of the Cloud Service in combination with any software or hardware not
expressly authorized by Company,(B)any modifications or configurations made to the Cloud Service by Subscriber without the prior written consent
of Company, and/or(C)any action taken by Subscriber relating to use of the Cloud Service that is not permitted under the terms of this Agreement.
This Section 6.3(a) states Subscriber's exclusive remedy against Company for any Claim of infringement or misappropriation of a Third Party's
intellectual property rights related to or arising from Subscriber's use of the Cloud Service.
(b) To the extent permitted by law,Subscriber shall defend and indemnify Company from any loss,damage or expense(including reasonable
attorneys'fees)awarded by a court of competent jurisdiction, or paid in accordance with a settlement agreement signed by Company, in connection
with any Claim alleging that the Subscriber Data or Content,or Subscriber's use of the Cloud Service in breach of this Agreement,infringes upon any
intellectual property rights, patent, copyright or trademark of such Third Party, or misappropriates the trade secret of such Third Party; unless
applicable laws prohibit public entities from such indemnification and provided that Company (x) promptly gives Subscriber written notice of the
Claim; (y) gives Subscriber sole control of the defense and settlement of the Claim; and (z) provides to Subscriber all reasonable assistance, at
Subscriber's expense. This Section 6.3(b)states Company's exclusive remedy against Subscriber for any Claim of infringement of misappropriation of
a Third Party's intellectual property rights related to or arising from the Subscriber Data or Subscriber's use of the Cloud Service.
6.4 Limitation of Liability.
(a) The entire,aggregate liability of Company is limited to the amount of Subscription Fees paid by Subscriber to Company pursuant to this
applicable Order during the twelve(12)months prior to the first act or omission giving rise to the liability. This does not apply to the Company's
intellectual property indemnification obligations in Section 6.3.
(b) Under no circumstances will Company be liable for (1) any indirect, incidental, consequential, exemplary or punitive damages, loss of
production or data, interruption of operations or lost revenue or profits,even if such damages were foreseeable,or(ii)any Previews or No-Charge
Offerings.
(c) Company will not be liable for any claim in connection with this Agreement if such claim is brought more than two(2)years after the first
event giving rise to such claim is or should have been discovered by Subscriber.
(d) The limitations and exclusions of this Section 6.4 apply to:(1)benefit of Company and its affiliates,and their respective officers,directors,
licensors,subcontractors and representatives,and(ii)regardless of the form of action,whether based in contract,statute,tort(including negligence),
or otherwise.
(e) The foregoing limitations and exclusions will not apply to the extent that liability cannot be limited or excluded in accordance with
applicable law. Nothing in this Section shall limit Subscriber's payment obligations under Section 4.
Section 7.0 Confidentiality
7.1 Definition of Confidential Information. "Confidential Information" means any non-public information and/or materials maintained in
confidence and disclosed in any form or medium by a party under this Agreement(the"Disclosing Party")to the other party(the"Receiving Party"),
that is identified as confidential,proprietary or that a reasonable person should have known,was the Confidential Information of the other party given
the nature of the circumstances or disclosure, or as otherwise defined as Confidential Information,trade secrets, and proprietary business information
as provided under applicable state law and exempted from disclosure by the applicable statute. Confidential Information may include without
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County of Fresno
limitation: information about clients,services,products,software,data,technologies,formulas,processes, know-how, plans,operations, research,
personnel, suppliers,finances, pricing, marketing,strategies, opportunities and all other aspects of business operations and any copies or derivatives
thereof. Confidential Information includes information belonging to a Third Party that may be disclosed only under obligations of confidentiality.
Notwithstanding the foregoing, Confidential Information shall not include information that Receiving Party can demonstrate: (a) is or becomes
generally known to the public without breach of any obligation by Receiving Party; (b)is received from a Third Party without breach of any obligation
owed to Disclosing Party;or(c)is or has been independently developed by Receiving Party without the benefit of Confidential Information.
7.2 Protection of Confidential Information.The Receiving Party agrees that it shall: (i)use the Confidential Information solely for a purpose
permitted by this Agreement, (ii)use the same degree of care as Receiving Party uses with its own Confidential Information, but no less than reasonable
care,to protect Confidential Information and to prevent any unauthorized access,reproduction,disclosure,or use of any of Confidential Information;
and(iii)restrict access to the Confidential Information of the Disclosing Party to those of its Affiliates and its and their employees, contractors and
agents who need such access for purposes consistent with this Agreement and who are prohibited from disclosing the information by a contractual,
legal or fiduciary obligation no less restrictive than this Agreement. Receiving Party shall not use, reproduce, or directly or indirectly allow access to
the Confidential Information except as herein provided or export Confidential Information to any country prohibited from obtaining such information
under any applicable laws or regulations.
7.3 Compelled Disclosure. If Receiving Party is required to disclose any Confidential Information to comply with law, to the extent legally
permitted,Receiving Party shall:(a)give the Disclosing Party reasonable prior written notice to permit Disclosing Party to challenge or limit any such
legally required disclosure;(b)disclose only that portion of the Confidential Information as legally required to disclose;and(c)reasonably cooperate
with Disclosing Party,at Disclosing Party's request and expense,to prevent or limit such disclosure.
7.4 Public Records Act Request. If Subscriber receives a written or oral request under the CPRA to publicly disclose any record that is in
Company's possession or control,and which Subscriber has a right, under any provision of this Agreement or applicable law,to possess or control,
then Subscriber may demand, in writing,that Company deliver to Subscriber,for purposes of public disclosure,the requested records that may be
in the possession or control of Company.Within five business days after Subscriber's demand, Company shall (a)deliver to Subscriber all of the
requested records that are in Company's possession or control,together with a written statement that Company, after conducting a diligent search,
has produced all requested records that are in Company's possession or control, or(b) provide to Subscriber a written statement that Company,
after conducting a diligent search,does not possess or control any of the requested records. Company shall cooperate with Subscriber with respect
to any County demand for such records. If Company wishes to assert that any specific record or data is exempt from disclosure under the CPRA
or other applicable law, it must deliver the record or data to Subscriber and assert the exemption by citation to specific legal authority within the
written statement that it provides to Subscriber under this section. Company's assertion of any exemption from disclosure is not binding on
Subscriber, but Subscriber will give at least 10 days' advance written notice to Company before disclosing any record subject to Company's
assertion of exemption from disclosure. Company shall indemnify Subscriber for any court-ordered award of costs or attorney's fees under the
CPRA that results from Company's delay, claim of exemption, failure to produce any such records, or failure to cooperate with Subscriber with
respect to any County demand for any such records.
7.5 Remedies.Receiving Party shall promptly notify Disclosing Party if it becomes aware of any unauthorized use or disclosure of Disclosing
Party's Confidential Information and agrees to reasonably cooperate with Disclosing Party in its efforts to mitigate any resulting harm. Receiving Party
acknowledges that Disclosing Party would have no adequate remedy at law should Receiving Party breach its obligations relating to Confidential
Information and agrees that Disclosing Party shall be entitled to enforce its rights by obtaining appropriate equitable relief,including without limitation
a temporary restraining order and an injunction.
Section 8.0 Export Control Compliance
8.1 General.Subscriber shall comply with all applicable sanctions, embargoes and (re-)export control regulations, and, in any event, with those of
the European Union,the United States of America and any locally applicable jurisdiction(s)(collectively"Export Regulations").
8.2 Checks. Prior to any transfer of Offerings(including all kinds of technical support and/or technology)to a Third Party,Subscriber shall check
and ensure by appropriate measures that(i)there will be no infringement of an embargo imposed by the European Union,the United States of America
and/or by the United Nations by such transfer,by brokering of contracts concerning Offerings or by provision of other economic resources in connection
with Offerings, also taking into account any prohibitions to circumvent these embargos(e.g., by undue diversion); (ii)such Offerings are not intended
for use in connection with armaments, nuclear technology or weapons, if and to the extent such use is subject to prohibition or authorization, unless
required authorization has been obtained; (iii)the regulations of all applicable sanctioned party lists of the European Union and the United States of
America concerning the trading with entities, persons and organizations listed therein are considered and (iv) Offerings within the scope of the
respective Annexes to EU Regulations Nos. 833/2014 and 765/2006 as well as of Annex I to EU Regulation No. 2021/821 (in their current versions,
respectively),will not,unless permitted by EU law,be(a)exported,directly or indirectly(e.g.,via Eurasian Economic Union(EAEU)countries),to Russia or
Belarus, or(b)resold to any third party business partner that does not take a prior commitment not to export such Goods and Services to Russia or
Belarus.
8.3 Non-Acceptable Use of Offerings and Cloud Services. Subscriber shall not, unless permitted by the Export Regulations or respective
governmental licenses or approvals, (i)download, install, access or use the Cloud Services, Content and/or Documentation from or in any location
prohibited by or subject to comprehensive sanctions(currently Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk and Luhansk regions of Ukraine)
or to license requirements according to the Export Regulations; (ii) grant access to, transfer, (re- )export(including any 'deemed (re-)exports'), or
otherwise make available the Cloud Services, Content and/or Documentation to any individual or entity designated on a sanctioned party list of the
Export Regulations; (iii) use the Cloud Services, Content and/or Documentation for any purpose prohibited by the Export Regulations (e.g. use in
connection with armaments, nuclear technology or weapons); (iv)upload to the Cloud Services platform any Subscriber Data or Content unless it is
non-controlled(e.g.in the EU:AL=N;in the U.S.:ECCN=N or EAR99);(v)facilitate any of the aforementioned activities by any user.Subscriber shall
provide any user(s)with all information necessary to ensure compliance with the Export Regulations.
8.4 Information. Upon request by Company, Subscriber shall promptly provide Company with all information pertaining to user(s),the intended use
and the location of use of the Offerings.
8.5 Export Control Indemnification. Subscriber shall indemnify and hold harmless Company from and against any claim, proceeding, action, fine,
loss,cost and damages arising out of or relating to any noncompliance with(re)Export Regulations by Subscriber and/or user(s)and/or Subscriber's
Third Parties business partner re-exporting Offerings in violation of embargoes or sanctions referred to in 8.2 above,and Subscriber shall compensate
Company for all losses and expenses resulting thereof.
8.6 Reservation.Company shall not be obligated to fulfill this Agreement if such fulfillment is prevented by any impediments arising out of national
or international foreign trade or customs requirements or any embargoes or other sanctions.Subscriber acknowledges that Company may be obliged
under the Export Regulations to limit or suspend access by Subscriber and/or user(s)to the Offerings.
Section 9.0 Miscellaneous
9.1 Compliance with Laws. Each party will comply with all laws and applicable government rules and regulations insofar as they apply to such
party in its performance of this Agreement's rights and obligations.
9.2 Publicity. Company is permitted to: (i) include Subscriber's name and logo in accordance with Subscriber's trademark guidelines; and (ii)list
the Cloud Services and Professional Services selected by Subscriber, in public statements and client lists.Subscriber agrees to participate in press
Page 5 of Rev.Jan.2023
P-24-117
County of Fresno
releases,case studies and other collateral using quotes or requiring active participation,the specific details of which shall be subject to mutual consent.
9.3 Relationship of the Parties.Company is performing pursuant to this Agreement only as an independent contractor. Company has the sole
obligation to supervise, manage, contract, direct, procure, perform or cause to be performed its obligations set forth in this Agreement, except as
otherwise agreed upon by the parties.Nothing set forth in this Agreement shall be construed to create the relationship of principal and agent between
Company and Subscriber. Company shall not act or attempt to act or represent itself, directly or by implication, as an agent of Subscriber or its
affiliates or in any manner assume or create,or attempt to assume or create,any obligation on behalf of,or in the name of,Subscriber or its affiliates.
9.4 Waiver. No failure or delay by either party in enforcing any of its rights under this Agreement shall be construed as a waiver of the right to
subsequently enforce any of its rights,whether relating to the same or a subsequent matter.
9.5 Assignment.This Agreement will extend and be binding upon the successors, legal representatives, and permitted assignees of the parties.
Both parties shall have no right to transfer, assign, or sublicense this Agreement or any of its rights, interests, or obligations under this Agreement,
except that Company shall have the full ability to transfer or assign this Agreement to the surviving entity in a merger or consolidation or to a
purchaser of all or substantially all of its assets without the written consent of the Subscriber. Neither Subscriber nor Company shall have the right
to transfer,assign or sublicense this Agreement or any of its rights, interests or obligations under this Agreement to any Third Party and any attempt
to do so shall be null and void.
9.6 Force Maieure.Subject to the limitations set forth below and except for fees due for Orders rendered, neither party shall be held responsible
for any delay or default, including any damages arising therefrom, due to any act of God, act of governmental entity or military authority, explosion,
epidemic casualty,flood, riot or civil disturbance, war, sabotage, unavailability of or interruption or delay in telecommunications or Third Party services,
failure of Third Party software, insurrections,any general slowdown or inoperability of the Internet(whether from a virus or other cause),or any other
similar event that is beyond the reasonable control of such party(each,a"Force Maieure Event").The occurrence of a Force Maieure Event shall not
excuse the performance by a party unless that party promptly notifies the other party of the Force Majeure Event and promptly uses its best efforts to
provide substitute performance or otherwise mitigate the force majeure condition.
9.7 Entity,Governing Law.Notices and Venue.All notices, instructions, requests, authorizations,consents,demands and other communications
hereunder shall be in writing and shall be delivered by one of the following means, with notice deemed given as indicated in parentheses: (a) by
personal delivery(when actually delivered); (b)by overnight courier(upon written verification of receipt); (c)by business mail(upon written verification
of receipt); or(d)except for notice of indemnification claims,via electronic mail to Subscriber at the e-mail address maintained on Subscriber's Account
and to Company at notice(aabrightlysoftware.com. Any dispute arising out of or in connection with this Agreement will be resolved as set forth in the
table below: The Company entity entering into this Agreement, the address to which notices shall be directed under this Agreement and the law
that will apply in any dispute or lawsuit arising out of or in connection with this Agreement shall depend upon where Subscriber is domiciled:
(a) In the United States and all other domiciles not otherwise mentioned,the Company entity is Brightly Software, Inc., a Delaware corporation,
and the notice address shall be Corporate Trust Center, 1209 Orange Street, Wilmington, DE 19801 USA,Attn: Brightly Software. The applicable law
will be the laws of the state of California,USA;any dispute arising out of or in connection with this Agreement will be subject to the jurisdiction of the
courts of California,USA unless Subscriber is a public entity in which case this Agreement shall be governed by the state law where it is domiciled.
Each party hereby irrevocably submits itself to the personal jurisdiction of the relevant court for any such disputes.
(b) For Subscriber,the persons and their addresses having authority to give and receive notices provided for or permitted under this Agreement
include the Director of Internal Services/Chief Information Officer, and the notice address shall be 333 W. Pontiac Way, Clovis, CA 93612, and
email address isdcontracts@fresnocountyca.gov.
If a dispute is subject to arbitration as described in this Section 9.7,arbitrators will be appointed in accordance with the ICC Rules,the language used
for proceedings will be English,and orders for the production of documents will be limited to the documents on which each party specifically relies in
its submission. Nothing in this Section 9.7 will restrict the right of the parties to seek interim relief intended to preserve the status quo or interim
measures in any court of competent jurisdiction. Notwithstanding the foregoing,to the extent permissible under applicable law and to the extent it
would not result in the invalidity or inapplicability of this Section 9.7,the parties agree that Company,at its sole discretion,may bring an action in the
courts of the jurisdiction(s)where the Offering is being used or Subscriber has its place of business,to:(i)enforce Brightly IP rights, or(ii)for the payment
of amounts due for any Offering.
9.8 Company Affiliates and Subcontractors. Company or its Affiliates may exercise Company's s rights and fulfill Company's obligations under
this Agreement. Company may use resources in various countries to provide Offerings, including unaffiliated subcontractors. Company remains
responsible for its obligations under this Agreement.
9.9 Interpretation of Agreement.The Section headings contained in this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties,and shall not affect in any way the meaning or interpretation of this Agreement.Any reference to any federal,state,local or
foreign statute or law shall be deemed to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.
9.10 No Third Party Beneficiaries. No person or entity not a party to the Agreement shall be deemed to be a Third Party beneficiary of this
Agreement or any provision hereof.
9.11 Severability.The invalidity of any portion of this Agreement shall not invalidate any other portion of this Agreement and, except for such
invalid portion,this Agreement shall remain in full force and effect.
9.12 Entire Agreement.This Agreement,including any applicable Order, is the entire agreement between Subscriber and Company regarding
Subscriber's use of the Cloud Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral,
concerning its subject matter.No modifications,amendment or waiver of any provision of this Agreement shall be effective unless executed in writing
by means of manual signatures or electronic signatures or via an online mechanism. The parties agree that any term or condition stated in any
purchase order or in any other order documentation is void. In the event of any conflict or inconsistency between the documents, the order of
precedence shall be (1) the applicable Order#391215 (2) the applicable Sourcewell agreement#090320-SDI terms and (3) the content of this
Agreement including Exhibits A through D.
9.13 Anti-Corruption.Neither party has received or been offered any illegal or improper bribe,kickback,payment,gift,or thing of value from an
employee or agent of the other party in connection with this Agreement. If Subscriber learns of any violation of the above restriction,Subscriber shall
immediately notify Company.
9.14 Cooperative Use. With Subscriber's approval, the market research conducted by Subscriber during its selection process for the Cloud
Services may be extended for use by other jurisdictions, municipalities, and government agencies of Subscriber's state.Any such usage by other
entities must be in accordance with ordinance, charter, and/or procurement rules and regulations of the respective political entity.
9.15 Modifications. Company may revise the terms of this Agreement from time-to-time and shall post the most current version of this Agreement
on its website.If a revision meaningfully reduces Subscriber's rights,Company shall notify Subscriber.
9.16 USA Government Subscribers.The Cloud Service and its Documentation and Content are"Commercial Items,""Commercial computer
software" and "Computer software documentation" as defined in the Federal Acquisition Regulations ("FAR") and Defense Federal Acquisition
Regulations Supplement("DFARS").Pursuant to FAR 12.211,FAR 12.212,DFARS 227.7202,as revised,the U.S.Government acquires the Cloud Service
and its Documentation and Content subject to the terms of this Agreement.Company will not be required to obtain a security clearance or otherwise
be involved in accessing U.S. Government classified information.
9.17 Disclosure of Self-Dealing Transactions.If any member of Company's board of directors is party to a self-dealing transaction,he or she shall
disclose the transaction by completing and signing a Self-Dealing Transaction Disclosure form,Exhibit D to this Agreement,and submitting it to Subscriber
before commending the transaction or immediate after.
Page 6 of Rev.Jan.2023
P-24-117
County of Fresno
9.18 Inspection of Documents. Company shall make available to Subscriber, and Subscriber may examine, with a written request of notice, at
any time during business hours and as of as the Subscriber deems necessary no more than once a year, Company's relevant financial records and data
with respect to the matters covered by this Agreement,excluding attorney-client privileged communications.Company shall, upon request of Subscriber,
permit Subscriber to audit and inspect all of such relevant financial records and data to ensure the Contractor's compliance with the terms of this Agreement.
9.19 State Audit Requirements. If the compensation to be paid by Subscriber under this Agreement exceeds$10,000,Company is subject to the
examination and audit of the California State Auditor,as provided in Government Code section 8546.7,for a period of three years after final payment under
this Agreement.This section survives termination of this Agreement.
9.20 Electronic Signatures.The parties agree that this Agreement may be executed by electronic signature as provided in this section. (a)
(a) An"electronic signature"means any symbol or process intended by an individual signing this Agreement to represent their signature,
including but not limited to (1) a digital signature; (2) a faxed version of an original handwritten signature; or (3) an electronically
scanned and transmitted(for example by PDF document)version of an original handwritten signature.
(b) Each electronic signature affixed or attached to this Agreement(1) is deemed equivalent to a valid original handwritten signature of
the person signing this Agreement for all purposes, including but not limited to evidentiary proof in any administrative or judicial
proceeding, and(2)has the same force and effect as the valid original handwritten signature of that person.
(c) The provisions of this section satisfy the requirements of Civil Code section 1633.5, subdivision (b), in the Uniform Electronic
Transaction Act(Civil Code, Division 3, Part 2,Title 2.5, beginning with section 1633.1).
(d) Each party using a digital signature represents that it has undertaken and satisfied the requirements of Government Code section
16.5, subdivision(a), paragraphs(1)through(5), and agrees that each other party may rely upon that representation.
(e) This Agreement is not conditioned upon the parties conducting the transactions under it by electronic means and either party may
sign this Agreement with an original handwritten signature.
Section 10.0 Definitions
As used in this Agreement,the following terms shall have the meanings set forth below:
10.1 "Access Credentials"means any user's name, identification number, password, license or security key,security token, PIN or other security code,
method,technology or device used, alone or in combination,to verify an individual's identity and authorization to access and use the Cloud Service.
10.2 "Account"means Subscriber's specific account where Subscriber subscribes to access and use Cloud Service(s).
10.3 "Account User" means each person or entity that access an Offering under this Agreement, whether such access is given by Subscriber, by
Company at Subscriber's request, or by a third party authorized by Subscriber.
10.4 "Affiliate"means,with respect to any legal entity, any other legal entity that(i)controls, (ii) is controlled by or(iii)is under common control of such
legal entity.A legal entity shall be deemed to"control"another legal entity if it has the power to direct or cause the direction of the management or
policies of such legal entity,whether through the ownership of voting securities, by contract, or otherwise.
10.5 "Brightly IP"means all patents,patent applications, copyrights,trade secrets and other intellectual property rights in, related to,or used in the
provision or delivery of any Order or technical solution underlying an Order, and any improvement, modification, or derivative work of any of the
foregoing.
10.6 "Cloud Service" or"Cloud Services" means Company's branded offerings of cloud-based online services and associated cloud-based API
(application programming interfaces)made available by Company, as updated, enhanced or otherwise modified from time-to-time. Cloud Service
excludes Subscriber Data and Third Party Content.
10.7 "Content"means audio and visual information,documents,content,materials, products and/or software.
10.8 "Documentation" means the user instructions, learning material, functional or technical documentation, and API information relating to the Cloud
Service made available to Subscriber by Company in print, online or embedded as part of help functions, which may be updated from time to time.
10.9 "Brightly Software" or"Company" means Brightly Software, Inc., Brightly Software Canada Inc., Brightly Software Australia Pty Ltd, Brightly
Software Limited,Facility Health,Inc.and Energy Profiles Limited together with their affiliates,successors and assigns.
10.10 "Order" means Company's ordering document, online purchasing form, statement of work, or end user license agreement (EULA) used to order
Company Cloud Services and/or Professional Services. By entering into an Order, Affiliate(s) agree to be bound by the terms of this Agreement as if
an original party.
10.11 "Offering'means an individual offering made available by Company and identified on an Order,which consists of Cloud Services,Professional
Services or a combination of any of the foregoing, and any associated maintenance and support services and Documentation.
10.12 "Previews"means Cloud Service or functionality that may be made available to Subscriber to try at its option at no additional charge that is
clearly designated as beta,preview,pre-release,pilot,limited release,early adoption,non-production,sandbox,evaluation or a similar description.
10.13 "Professional Service"means the training,technical,consulting and/or other services,excluding Cloud Services,to be performed by Company
that are ordered by Subscriber on an Order or provided without charge(if applicable).
10.14 "Subscriber"means the legal entity identified on the Account, on behalf of itself and its Affiliates and its and their employees, consultants, and
(sub)contractors.
10.15 "Subscriber Data"means all data, information and other content provided by or on behalf of Subscriber, including that which the Account Users
input or upload to the Cloud Service.
10.16 "Subscriber-Hosted Software"means Company's suite of cloud software applications, as updated,enhanced or otherwise modified from time-
to-time that are: (i)ordered by Subscriber on an Order or provided without charge(if applicable)and made available by Company, including mobile
components,and(ii)granted a non-exclusive and non-transferable license(with no right to sublicense)to install and use software for the Term.
10.17 "Subscription Fee"means the fee invoiced to Subscriber by Company prior to the Subscription Term,which is required to be paid in order for
Subscriber to be permitted to access and use the Cloud Service.
10.18 "Third Party"means a party other than Subscriber or Company.
10.19 "Third Party Content"means Content, applications and services owned or controlled by a Third Party and made available to Subscriber by the
Third Party through or in connection with Cloud Services.
Page 7 of Rev.Jan.2023
P-24-117
County of Fresno
The parties are signing this Agreement on the date stated on the Order# 391215.
BRIGHTLY SOFTWARE, INC. COUNTY OF FRESNO
sakah simmsm Manuel M. Digitally signed by ManuelM.
Vilanova
sarah Swanson(Mar 14,202412:42 MDT) Vilanova Date:2024.03.19 13:36:10-07'00'
Sarah Swanson, Vice President Manuel Villanova, Purchasing Manager of the
County of Fresno
11000 Regency Parkway, Suite 300
Cary, NC 27518
Michelle Will(Mar 14,202414:39 EDT)
Michelle Will, Manager
11000 Regency Parkway, Suite 300
Cary, NC 27518
For accounting use only:
Org No.: 8935
Account No.: 7205
Fund No.: 1045
Subclass No.: 10000
Page 8 of Rev.Jan.2023
Exhibit A- Data Security P-24-117
County of Fresno
A.Definitions.
Capitalized terms used in this Exhibit A have the meanings set forth in this section A.
"Authorized Employees"means the Contractor's employees who have access to Personal Information.
"Authorized Persons" means: (i) any and all Authorized Employees; and (ii) any and all of the Contractor's subcontractors, representatives, agents,
outsourcers, and consultants, and providers of professional services to the Contractor,who have access to Personal Information and are bound by law or
in writing by confidentiality obligations sufficient to protect Personal Information in accordance with the terms of this Exhibit B.
"Director"means the County's Director of Internal Services/Chief Information Officer or his or her designee.
"Disclose" or any derivative of that word means to disclose, release,transfer, disseminate, or otherwise provide access to or communicate all or any part
of any Personal Information orally, in writing, or by electronic or any other means to any person.
"Person"means any natural person, corporation, partnership,limited liability company,firm,or association.
"Personal Information" means any and all information, including any data provided, or to which access is provided, to the Contractor by or upon the
authorization of the County, including but not limited to vital records,that: (i)identifies,describes, or relates to, or is associated with, or is capable of being
used to identify, describe, or relate to, or associate with, a person (including, without limitation, names, physical descriptions, signatures, addresses,
telephone numbers, e-mail addresses, education, financial matters, employment history, and other unique identifiers, as well as statements made by or
attributable to the person); (ii)is used or is capable of being used to authenticate a person (including,without limitation, employee identification numbers,
government-issued identification numbers, passwords or personal identification numbers (PINs), financial account numbers, credit report information,
answers to security questions, and other personal identifiers); or is personal information within the meaning of California Civil Code section 1798.3,
subdivision(a),or 1798.80,subdivision(e).Personal Information does not include publicly available information that is lawfully made available to the general
public from federal,state,or local government records.
"Privacy Practices Complaint" means a complaint received by the County relating to the Contractor's(or any Authorized Person's)privacy practices,or
alleging a Security Breach.Such complaint shall have sufficient detail to enable the Contractor to promptly investigate and take remedial action under this
Exhibit A.
"Security Safeguards"means physical,technical,administrative or organizational security procedures and practices put in place by the Contractor(or any
Authorized Persons)that relate to the protection of the security,confidentiality,value,or integrity of Personal Information.Security Safeguards shall satisfy
the minimal requirements set forth in subsection C.(5)of this Exhibit A.
"Security Breach"means(i)any act or omission that compromises either the security,confidentiality,value,or integrity of any Personal Information or the
Security Safeguards, or (ii) any unauthorized Use, Disclosure, or modification of, or any loss or destruction of, or any corruption of or damage to, any
Personal Information.
"Use" or any derivative thereof means to receive, acquire, collect, apply, manipulate, employ, process,transmit, disseminate, access, store, disclose, or
dispose of Personal Information.
B.Standard of Care.
(1)The Contractor acknowledges that, in the course of its engagement by the County under this Agreement,the Contractor, or any Authorized Persons,
may Use Personal Information only as permitted in this Agreement.
(2)The Contractor acknowledges that Personal Information is deemed to be confidential information of, or owned by,the County(or persons from whom
the County receives or has received Personal Information)and is not confidential information of,or owned or by,the Contractor,or any Authorized Persons.
The Contractor further acknowledges that all right, title, and interest in or to the Personal Information remains in the County (or persons from whom the
County receives or has received Personal Information)regardless of the Contractor's,or any Authorized Person's, Use of that Personal Information.
(3)The Contractor agrees and covenants in favor of the County that the Contractor shall: (i)keep and maintain all Personal Information in strict confidence,
using such degree of care under this Subsection B as is reasonable and appropriate to avoid a Security Breach; (ii) Use Personal Information exclusively
for the purposes for which the Personal Information is made accessible to the Contractor pursuant to the terms of this Exhibit A;(iii)not Use, Disclose,sell,
rent,license,or otherwise make available Personal Information for the Contractor's own purposes or for the benefit of anyone other than the County,without
the County's express prior written consent, which the County may give or withhold in its sole and absolute discretion; and (iv) not, directly or indirectly,
Disclose Personal Information to any person (an "Unauthorized Third Party") other than Authorized Persons pursuant to this Agreement, without the
Director's express prior written consent.
Notwithstanding the foregoing paragraph, in any case in which the Contractor believes it, or any Authorized Person, is required to disclose Personal
Information to government regulatory authorities,or pursuant to a legal proceeding,or otherwise as may be required by applicable law,the Contractor shall
(a)immediately notify the County of the specific demand for,and legal authority for the disclosure, including providing the County with a copy of any notice,
discovery demand, subpoena, or order, as applicable, received by the Contractor, or any Authorized Person,from any government regulatory authorities,
or in relation to any legal proceeding, and (b)promptly notify the County before such Personal Information is offered by the Contractor for such disclosure
so that the County may have sufficient time to obtain a court order or take any other action the County may deem necessary to protect the Personal
Information from such disclosure,and the Contractor shall cooperate with the County to minimize the scope of such disclosure of such Personal Information.
The Contractor shall remain liable to the County for the actions and omissions of any Unauthorized Third Party concerning its Use of such Personal
Information as if they were the Contractor's own actions and omissions.
C.Survival.
The respective rights and obligations of the Contractor and the County as stated in this Exhibit A shall survive the termination of this Agreement.
D.No Third Party Beneficiary.
Nothing express or implied in the provisions of in this Exhibit A is intended to confer,nor shall anything herein confer,upon any person other than the County
or the Contractor and their respective successors or assignees, any rights, remedies,obligations or liabilities whatsoever.
E.No County Warranty.
The County does not make any warranty or representation whether any Personal Information in the Contractor's(or any Authorized Person's)possession
A-1
Exhibit A- Data Security P-24-117
County of Fresno
or control, or Use by the Contractor(or any Authorized Person), pursuant to the terms of this Agreement is or will be secure from unauthorized Use, or a
Security Breach or Privacy Practices Complaint
A-2
P-24-117
County of Fresno
Exhibit B-Order Q-391215
Q-391215
Fresno County
Thank you for your continued support of our market leading solutions for improving efficiency in operations.We are excited about
providing you with online tools that will help you save money, increase efficiency and improve services. Brightly Software, Inc. is
dedicated to providing best in class solutions,including the following for Fresno County.
Subscription Term:24 months(2/01/2024—1/31/2025)
Cloud Services
Item Start Date End Date Investment
Energy Manager Public 2/1/2024 1/31/2025 $1,909.64
Dashboards
Energy Manager 2/1/2024 1/31/2025 $17,839.80
Annual Renewal: $19,749.44 USD
Managed Services
Item Start Date End Date Investment
Utility Bill Population 2/1/2024 1/3/2025 $21,493.42
Annual Renewal: $21,493.42 USD
TOTAL: $41,242.86 USD
'Your Sourcewell discount has been applied.
Cloud Services
Item Investment Year 2 (Start date
2/01/2025
Energy Manager Public Dashboards $1.961.78
Energy Manager $18,277.05
Sub-Total: $20,238.83 USD
Managed Services
Item Investment Year 2 (Start date
2/01/2025
Utility Bill Population $21,590.72
Sub-Total: $21,590.72 USD
TOTAL: $41,829.55 USD
Maximum Compensation.The potential two-year subtotal is$83,072.41.An additional$16,927.59 is included to add additional modules,
under a new Order, if Subscriber has need for additional services. The maximum compensation payable to Company by Subscriber
under this Agreement is$100,000. Company acknowledges that Subscriber is a local government entity, and does so with notice that
Subscriber's powers are limited by the California Constitution and by State law,and with notice that Company may receive compensation
under this Agreement only for services performed according to the terms of this Agreement and while this Agreement is in effect, and
subject to the maximum amount payable under this section.Company further acknowledges that Subscriber's employes have no authority
to pay Company except as expressly provided in this Agreement.
Invoicing. Company shall submit annual invoices via electronic mail to the County of Fresno, Internal Services Department—Facility
Services,at isdbusinessoffice aC..fresnocountvca.00v.
B-1
Exhibit B-Order Q-391215 P-24-117
County of Fresno
Order terms
By accepting this Order,and notwithstanding anything to the contrary in any other purchasing agreement,Subscriber agrees to pay
all relevant Subscription Fees for the full Subscription Term defined above.
Payment terms:Net 45
The"Effective Date"of the Agreement between Subscriber and Company is the date of Subscription Term.
This Order and its Offerings are governed by the terms of the Brightly Software,Inc.Master Subscription Agreement found at
http:Hbrightlysoftware.com/terms(http:Hbrightlysoftware.com/terms)("Agreement"),unless Subscriber has a separate written
agreement executed by Brightly Software,Inc.("Company")for the Offerings,in which case the separate written agreement will
govern.Acceptance is expressly limited to the terms of the Agreement.No other terms and conditions will apply.The terms of any
purchase order or similar Subscriber document are excluded and such terms will not apply to the Order and will not supplement or
modify the Agreement irrespective of any language to the contrary in such document.
To the extent professional services are included in the Professional Services section of this Order,the Professional Services
Addendum found at http://brightlysoftware.com/terms(http://brightlysoftware.com/terms)is expressly incorporated into the
Agreement by reference.
During the Subscription Term,Company shall,as part of Subscriber's Subscription Fees,provide telephone and email support
("Support Services")during the hours of 8:00 AM and 6:00 PM EST,(8:00 am—8:00 pm ESTfor Community Development
Services)Monday through Friday('Business Hours"),excluding Company Holidays.
Acceptance of this Order on behalf of a company or legal entity represents that you have authority to bind such entity and its
affiliates to the order,terms and conditions herein.If you do not have such authority,or you do not agree with the terms set forth
herein,you must not accept this Order and may not use the Offerings.
Proposal expires in sixty(60)days.
Subscriber shall use reasonable efforts to obtain appropriation in the full amount required under this Order annually.If the Subscriber
fails to appropriate funds sufficient to maintain the Offerings described in this Order,then the Subscriber may terminate the Offerings
at no additional cost or penalty by giving prior written notice documenting such non-appropriation.Subscriber shall use reasonable
efforts to provide at least thirty(30)days prior written notice of non-appropriation.Subscriber agrees non-appropriation is not a
substitute for termination for convenience,and further agrees Offerings terminated for non-appropriation may not be replaced with
functionally similar products or services prior to the expiration of the Services Term set forth in this Order.Subscriber will not be
entitled to a refund or offset of previously paid,but unused Fees.
Special Terms
Subscriber hereby authorizes Company and its service provider to use Subscriber's credentials to access Subscriber utility account
information and use the utility information in connection with the Offerings and to utilize the information for any purpose permitted by
law.
Additional Information
Prices shown above do not include any taxes that may apply.Any such taxes are the responsibility of Subscriber.This is not an
invoice.For customers based in the United States,any applicable taxes will be determined based on the laws and regulations of the
taxing authority(ies)governing the"Ship To"location provided by Subscriber.Tax exemption certifications can be sent to
accountsreceivableCc)brig htivsoftware.com(ma i Ito:accountsreceivableC�brig htivsoftwa re.com).
Billing frequency other than annual is subject to additional processing fees.
Please reference Q-391215 on any applicable purchase order and email to
Purchaseorders(a)Briahtivsoftware.com(mailto:Purchaseorders(a),Brightivsoftware.com)
Brightly Software,Inc.can provide evidence of insurance upon request.
B-2
P-24-117
Exhibit C-Insurance Requirements County of Fresno
1.Required Policies
Without limiting the County's right to obtain indemnification from the 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 this Agreement.
(A)Commercial General Liability. Commercial general liability insurance with limits of not less than One Million Dollars
($1,000,000)per occurrence and an annual aggregate of Two Million Dollars($2,000,000).This policy must be issued on
a per occurrence basis.Coverage must include products,completed operations,property damage,bodily injury,personal
injury, and advertising injury.The Contractor shall obtain an endorsement to this policy naming the County of Fresno, its
officers, agents, employees, and volunteers, individually and collectively, as additional insureds, but only insofar as the
operations under this Agreement are concerned. Such coverage for additional insureds will apply as primary insurance
and any other insurance, or self-insurance, maintained by the County is excess only and not contributing with insurance
provided under the Contractor's policy.
(B)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.
(C)Workers Compensation.Workers compensation insurance as required by the laws of the State of California with statutory
limits.
(D)Employer's Liability. Employer's liability insurance with limits of not less than One Million Dollars ($1,000,000) per
occurrence for bodily injury and for disease.
(E)Technology Professional Liability (Errors and Omissions). Technology professional liability (errors and omissions)
insurance with limits of not less than Two Million Dollars ($2,000,000) per occurrence and in the aggregate. Coverage
must encompass all of the Contractor's obligations under this Agreement, including but not limited to claims involving
Cyber Risks.
(F)Cyber Liability. Cyber liability insurance with limits of not less than Two Million Dollars ($2,000,000) per occurrence.
Coverage must include 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 the Contractor.
Definition of Cyber Risks. "Cyber Risks" include but are not limited to (i) Security Breach, which may include Disclosure of
Personal Information to an Unauthorized Third Party; (ii) data breach; (iii) breach of any of the Contractor's obligations under
Exhibit A of this Agreement;(iv)system failure;(v)data recovery;(vi)failure to timely disclose data breach or Security Breach;(vii)
failure to comply with privacy policy; (viii) payment card liabilities and costs; (ix) invasion of privacy, including release of private
information; (x) information theft; (xi) damage to or destruction or alteration of electronic information; (xii) cyber extortion; (xiii)
extortion related to the Contractor's obligations under this Agreement regarding electronic information, including Personal
Information; (xiv) network security; (xv) data breach response costs, including Security Breach response costs; (xvi) regulatory
fines and penalties related to the Contractor's obligations under this Agreement regarding electronic information, including
Personal Information;and(xvii)credit monitoring expenses.
2.Additional Requirements
(A)Verification of Coverage.Within 30 days after the Contractor signs this Agreement,and at any time during the term of this
Agreement as requested by the County's Risk Manager or the County Administrative Office,the Contractor shall deliver,
or cause its broker or producer to deliver,to the County Risk Manager,at 2220 Tulare Street,16th Floor,Fresno,California
93721,or HRRiskManagement@fresnocountyca.gov,and by mail or email to the person identified to receive notices under
this Agreement,certificates of insurance and endorsements for all of the coverages required under this Agreement.
(i) Each insurance certificate must state that: (1)the insurance coverage has been obtained and is in full force;(2)
the County, its officers,agents,employees,and volunteers are not responsible for any premiums on the policy;
and (3) the Contractor has waived its right to recover from the County, its officers, agents, employees, and
volunteers any amounts paid under any insurance policy required by this Agreement and that waiver does not
invalidate the insurance policy.
(ii) The commercial general liability insurance certificate must also state, and include an endorsement, that 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. The commercial general liability
insurance certificate must also state that the coverage shall apply as primary insurance and any other insurance,
or self-insurance, maintained by the County shall be excess only and not contributing with insurance provided
under the Contractor's policy.
(iii) The automobile liability insurance certificate must state that the policy covers any auto used in connection with
this Agreement.
C-1
P-24-117
Exhibit C-Insurance Requirements County of Fresno
(B)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 no less than A:VII.
(C)Notice of Cancellation or Change.For each insurance policy required under this Agreement,the Contractor shall provide
to the County, or ensure that the policy requires the insurer to provide to the 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,the Contractor
shall, or shall cause the insurer to, provide written notice to the 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,the Contractor shall, or shall
cause the insurer to,provide written notice to the County not less than 30 days in advance of cancellation or change.The
County in its sole discretion may determine that the failure of the Contractor or its insurer to timely provide a written notice
required by this paragraph is a breach of this Agreement.
(D)County's Entitlement to Greater Coverage.If the Contractor has or obtains insurance with broader coverage,higher limits,
or both, than what is required under this Agreement,then the County requires and is entitled to the broader coverage,
higher limits,or both,subject to the indemnification limits in the Agreement.
(E)Waiver of Subrogation.The Contractor waives any right to recover from the County, its officers, agents, employees, and
volunteers any amounts paid under the policy of worker's compensation insurance required by this Agreement. The
Contractor is solely responsible to obtain any policy endorsement that may be necessary to accomplish that waiver, but
the Contractor's waiver of subrogation under this paragraph is effective whether or not the Contractor obtains such an
endorsement.
(F)County's Remedy for Contractor's Failure to Maintain.If the Contractor fails to keep in effect at all times any insurance
coverage required under this Agreement, the 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 the Contractor.The County may offset such charges against any amounts owed by the County to the
Contractor under this Agreement.
(G) Subcontractors. The Contractor shall require and verify that subcontractors used by the Contractor to directly deliver
services under this Agreement maintain insurance meeting all insurance requirements provided in this Agreement.This
paragraph does not authorize the Contractor to provide services under this Agreement using subcontractors.
C-2
P-24-117
County of Fresno
Exhibit D-Self-Dealing Transaction Disclosure Form
In order to conduct business with the County of Fresno ("County"), members of a
contractor's board of directors ("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 used 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.
The form must be signed by the board member that is involved in the self-dealing
transaction described in Sections (3) and (4).
D-1
P-24-117
County of Fresno
Exhibit D-Self-Dealing Transaction Disclosure Form
(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:
D-2