HomeMy WebLinkAboutC-9274-1 - PSA for Facilities Maintenance Software, Amendment No. 1AMENDMENT NO. ONE TO
PROFESSIONAL SERVICES AGREEMENT
WITH BRIGHTLY SOFTWARE, INC. FOR
FACILITIES MAINTENANCE SOFTWARE
THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT
("Amendment No. One") is made and entered into as of this 29th day of June, 2025
Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal
corporation and charter city ("City"), and BRIGHTLY SOFTWARE, INC., a Delaware
corporation ("Consultant"), whose address is 4242 Six Forks Road, Suite 1400, Raleigh
NC, 27609, and is made with reference to the following:
RECITALS
A. On April 1, 2023, City and Consultant entered into a Professional Services
Agreement (Contract No. C-9274-1) to provide Facilities Maintenance Planning
and Tracking Software ("Agreement").
B. The parties desire to enter into this Amendment No. One to extend the term of the
Agreement to June 30, 2028, to update the address for legal .notices, and to
increase the total compensation.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
Section 1 of the Agreement is amended in its entirety and replaced with the
following: "The term of this Agreement shall commence on the Effective Date, and shall
terminate on June 30, 2028, unless terminated earlier as set forth herein."
2. NOTICES
Section 25.2 of the Agreement shall be amended in its entirety and replaced with
the following:
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: General Counsel
Brightly Software, Inc.
4242 Six Forks Road, Suite 1400
Raleigh NC, 27609
3. COMPENSATION TO CONSULTANT
Exhibit B to the Agreement shall be supplemented to include the Schedule of
Billing Rates, attached hereto as Exhibit B and incorporated herein by reference. Exhibit
B to the Agreement, and Exhibit B to this Amendment No. One shall collectively be known
as "Exhibit B."
Section 4.1 of the Agreement is amended in its entirety and replaced with the
following: "City shall pay Consultant for the Professional Services and the Services in
accordance with the provisions of this Section and the Schedule of Billing Rates attached
hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for
all Professional Servies and the Services performed in accordance with this Agreement,
including all reimbursable items and subconsultant fees, shall not exceed One Hundred
Eighty Seven Thousand Three Hundred Fifty One Dollars and 80/100 ($187,351.80)
without prior written authorization from City. No billing rate changes shall be made during
the term of this Agreement without the prior written approval of City."
The total amended compensation reflects Consultant's additional compensation
for additional Services to be performed in accordance with this Amendment No. One,
including all reimbursable items and subconsultant fees, in an amount not to exceed Sixty
Eight Thousand Six Hundred Thirteen Dollars and 21/100 ($68,613.21).
4. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
Brightly Software, Inc. Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:/15'/ZS
By:
(�
on C. Harp
Ci y Attorney
ATTEST:
Date:
Interim City Clerk
CITY OF NEWPORT BEACH,
a California mun/cipal corporation
Date: d 2 r
By: 4
Joe aple on
May r
CONSULTANT: BRIGHTLY SOFTWARE,
�' NC., a Delaware corporation
ate:
Signed in Counterpart
By:
Alexander Schuhbauer
Vice President, Finance
Date:
Signed in Counterpart
By:
Michael Knox
Vice President of Sales, Public Markets
[END OF SIGNATURES]
Attachments: Exhibit B — Schedule of Billing Rates
Brightly Software, Inc. Page 3
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By: l _
/Aa on C. Harp
Gi y Attorney
ATTEST:
Date:
Molly Perry
Interim City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Joe Stapleton
Mayor
CONSULTANT: BRIGHTLY SOFTWARE,
INC., a Delaware corporation
Date:
By:
A exander Schuhbauer
Vice President, Finance
Date:cam
By:
Michae Knox
Vice President of Sales, Public Markets
[END OF SIGNATURES]
Attachments: Exhibit B — Schedule of Billing Rates
Brightly Software, Inc. Page 3
EXHIBIT B
SCHEDULE OF BILLING RATES
Brightly Software, Inc. Page B-1
No
Service Term: 36 months (07/01/2025 - 06/30/2028)
Asset Essentials Core 7/1/2025 6/30/2026 $22,871.07
Plus
Facilities/Physical 7/1/2025 6/30/2026
$0.00
Plant Module
Dude Analytics 7/1/2025 6/30/2026 $0.00
Asset Essentials 7/1/2025 6/30/2026
$ 0.00
Inventory
Annual Renewal: $22,871.07 USD
*Your Sourcewell discount has been applied.
r
Investment Year 2 Start Investment Year 3 Start
Item Date: 07/01 /2026 Date: 07/01 /2027
------]---
Asset Essentials Core Plus 22,871.07 USD ; 22,871.07 USD
- Facilities/Physical Plant Module ! Included i— Included
- Dude Analytics I Included + Included
- Asset Essentials Inventory Included Included
Total: _...22,871.07 USb_22,871.07 USD
I
r
N
PROFESSIONAL SERVICES AGREEMENT
WITH BRIGHTLY SOFTWARE, INC. FOR
FACILITIES MAINTENANCE SOFTWARE
THIS PROFESSIONAL SERVICES AGREEMENT (herein, "Agreement") is made
and entered into as of this 1st day of April, 2023 ("Effective Date"), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"
or "Subscriber"), and BRIGHTLY SOFTWARE, INC., a Delaware corporation
("Consultant" or "Company"), whose address currently on file with the California Secretary
of State is 11000 Regency Parkway, Suite 400, Cary, NC, 27518, with its actual principal
place of business at 11000 Regency Parkway, Suite 300, Cary, NC, 27518, and is made
with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to provide Facilities Maintenance Planning and
Tracking Software ("Project").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on June 30, 2025, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the Professional Services identified as such
in the Scope of Services attached hereto as Exhibit A and incorporated herein by
reference ("Professional Services" or "Work"). Consultant shall also provide subscription -
based access to Consultant's software -as -a -service ("Services") identified as Services in
Exhibit A under the terms set forth in the Master Subscription Agreement, attached hereto
as Exhibit D and incorporated herein by reference.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Professional Services under
this Agreement and Consultant shall perform the Professional Services in accordance
with the schedule included in Exhibit A. In the absence of a specific schedule, the
Professional Services shall be performed to completion in a diligent and timely manner.
The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or
perform the Professional Services in a diligent and timely manner may result in
termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Professional Services to be provided for the Project, each party
hereby agrees to provide notice within five (5) calendar days of the occurrence causing
the delay to the other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Professional Services and the Services in
accordance with the provisions of this Section and the Schedule of Billing Rates attached
hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for
all Professional Services and the Services performed in accordance with this Agreement,
including all reimbursable items and subconsultant fees, shall not exceed One Hundred
Eighteen Thousand Seven Hundred Thirty Eight Dollars and 59/100 ($118,738.59),
without prior written authorization from City. No billing rate changes shall be made during
the term of this Agreement without the prior written approval of City.
4.2 Consultant shall submit invoices to City describing the Work performed in
accordance with the Scope of Services. Consultant's bills shall include a brief description
of the Services performed and/or the specific task in the Scope of Services to which it
relates, the date the Services were performed, and a description of any reimbursable
expenditures. City shall pay Consultant no later than thirty (30) calendar days after
approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses specifically
identified in Exhibit B to this Agreement or specifically approved in writing in advance by
City.
Brightly Software, Inc. Page 2
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
5.1 As part of the Project kickoff, Consultant shall designate in writing a Project
Coordinator, who shall coordinate all phases of the Project. This Project Coordinator shall
be available to City at all reasonable times during the Agreement term. Consultant shall
not remove or reassign the Project Coordinator or assign any new or replacement Project
Coordinator to the Project without the prior written consent of City. City's approval shall
not be unreasonably withheld with respect to the removal or assignment of non -key
personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Professional Services upon written
request of City. Consultant agrees that it will continuously furnish the necessary
personnel to complete the Project on a timely basis as contemplated by this Agreement.
5.3 RESERVED.
6. ADMINISTRATION
This Agreement will be administered by the Public Works Department. City's
Director of Public Works or designee shall be the Project Administrator and shall have the
authority to act for City under this Agreement. The Project Administrator shall represent
City in all matters pertaining to the Professional Services to be rendered pursuant to this
Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Professional Services shall be performed by Consultant or under
Consultant's supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the Professional Services required by this
Agreement, and that it will perform all Professional Services in a manner commensurate
with community professional standards and with the ordinary degree of skill and care that
would be used by other reasonably competent practitioners of the same discipline under
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similar circumstances. All Professional Services shall be performed by qualified and
experienced personnel who are not employed by City. By delivery of completed Work,
Consultant certifies that the Work conforms to the requirements of this Agreement,
applicable federal, state and local laws, and legally recognized professional standards.
8.2 Consultant has, shall obtain, and shall keep in full force and effect during
the term hereof, at its sole cost and expense, all licenses, permits, qualifications,
insurance and approvals of whatsoever nature that is legally required of Consultant to
practice its profession. Consultant shall maintain a City of Newport Beach business
license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. INDEMNIFICATION
9.1 To the fullest extent permitted by law, Consultant shall indemnify and
defend City, its City Council, boards and commissions, officers, agents, volunteers and
employees (collectively, the "Indemnified Parties") from and against third -party claims
(including, without limitation, claims for bodily injury, death or damage to property),
demands, obligations, damages, actions, causes of action, suits, losses, judgments,
fines, penalties, liabilities, costs and expenses (including, without limitation, reasonable
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim, collectively, "Claims"), to the extent arising from negligent, reckless,
and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents,
employees, and subcontractors for whose acts they may be liable, during the
performance of the Professional Services under this Agreement.
9.2 Provided that Consultant obtains and maintains insurance coverage in
compliance with the terms of this Agreement, then Consultant's duties set forth in this
Section shall only be coextensive with Consultant's insurance coverage. In the event that
Consultant's insurance carrier(s) denies coverage or fails to provide defense or indemnity,
then Consultant shall cooperate in good faith with the City to request review, appeal, or
commence an action or other proceeding of any nature whatsoever to enforce any policy
or recover relief under law or in equity.
9.3 Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' fees in any action on or to enforce
the terms of this Agreement.
Brightly Software, Inc. Page 4
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Consultant or its employees.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
shall have the responsibility for and control over the means of performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
of the performance of the Work or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except (1) as specifically authorized under this Agreement, or (2) that Consultant
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 City, the Professional Services to be provided under this Agreement
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shall not be assigned, transferred contracted or subcontracted out without the prior written
approval of City. In the event of option (1) or (2) set forth herein, Consultant shall provide
prompt written notice to the City of any such event which shall identify the surviving entity
or purchaser and provide its legal name, legal address, and contact information for the
receipt of legal notices under this Agreement, and the City shall have the option to
terminate this Agreement without cause upon thirty (30) days prior written notice to the
surviving entity or purchaser. This Agreement will extend to and be binding upon the
successors, legal representatives, and permitted assignees of the parties.
16. SUBCONTRACTING
Consultant's ultimate parent company or companies directly or indirectly owned or
controlled by Consultant's ultimate parent company may exercise Consultant's rights and
fulfill Consultant's obligations under this Agreement. Consultant remains responsible for
its obligations under this Agreement and shall be fully responsible to City for all acts and
omissions of any such company. Any other subcontractors, if any, shall be authorized by
City, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully
responsible to City for all acts and omissions of any subcontractor. Nothing in this
Agreement shall create any contractual relationship between City and any subcontractor
nor shall it create any obligation on the part of City to pay or to see to the payment of any
monies due to any such subcontractor other than as otherwise required by law. Except
as specifically authorized herein, the Professional Services to be provided under this
Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out
without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Upon payment of fees due under this Agreement, Consultant grants City a
worldwide, perpetual, non-exclusive, non -transferable, royalty -free license to copy,
maintain, use and run (as applicable), solely for its internal business purposes associated
with its use of Consultant's Services, any Deliverables created by Consultant solely for
City under this Agreement. Consultant and City each retain all right, title and interest in
their respective intellectual property and Consultant retains all ownership rights in the
Deliverables. "Deliverables" means a deliverable identified under a statement of work.
Deliverables shall not be construed to include the Consultant's Intellectual Property as
defined in Exhibit D or any derivative work thereof.
17.2 Deliverables, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for reuse by
City or others on any other project. Any use of completed Deliverables for other projects
and any use of incomplete Deliverables without specific written authorization from
Consultant will be at City's sole risk and without liability to Consultant. Further, any and
all liability arising out of changes made to Consultant's deliverables under this Agreement
by City or persons other than Consultant is waived against Consultant, and City assumes
full responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such changes.
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17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
18. CONFIDENTIALITY
All Deliverables, including drafts, preliminary drawings or plans, notes and
communications that result from the Professional Services in this Agreement, shall be
kept confidential unless City expressly authorizes in writing the release of information.
19. INTELLECTUAL PROPERTY INDEMNITY
Consultant will (i) defend, or at its option settle, any claim, demand, action or legal
proceeding ("Claim") made or brought against City by a third party alleging that the use
of the Deliverable(s) as contemplated hereunder directly infringes the intellectual property
rights of such third party, and (ii) pay (a) any final judgment or award directly resulting
from such Claim to the extent such judgment or award is based upon such alleged
infringement or (b) those damages agreed to by Consultant in a monetary settlement of
such Claim provided that such settlement includes a full and complete release of the City
from any and all Claims of the third party. Consultant's obligations to defend or indemnify
will not apply to the extent that a Claim is based on (1) Subscriber Data (as defined in
Exhibit D), the City's or a third party's technology, software, materials, data or business
processes; (II) a combination of the Deliverable(s) with non -Consultant products or
services; or (III) any use of the Deliverable(s) not in compliance with this Agreement. In
the event of a Claim, Consultant may, in its discretion and at no cost to the City (A) modify
the Deliverable(s) so that they are no longer the subject of an infringement claim provided
that such modification is done in a commercially reasonable manner and does not deprive
the City the benefit of its bargain or deprive the City of the purpose for which the City has
contracted for the Professional Services to be provided under this Agreement, (B) obtain
a license for the City's continued use of the Deliverable(s) in accordance with this
Agreement, or (C) suspend use of the Deliverable in question and refund to the City a pro
rata portion of the fees paid for every month during which the City is prevented from using
the infringing Deliverable as a result of such infringement, during the first three years after
delivery of such Deliverable.
20. RECORDS
Consultant shall keep records and invoices in connection with the Professional
Services to be performed under this Agreement. Consultant shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and any
Professional Services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date of final
payment to Consultant under this Agreement. All such records and invoices shall be
clearly identifiable. Consultant shall allow a representative of City to examine, audit and
make transcripts or copies of such records and invoices during regular business hours.
Consultant shall allow inspection of all Work, data, Deliverables, proceedings and
activities related to the Agreement for a period of three (3) years from the date of final
payment to Consultant under this Agreement.
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21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall not
discontinue Work as a result of such withholding. Consultant shall have an immediate
right to appeal to the City Manager or designee with respect to such disputed sums.
Consultant shall be entitled to receive interest on any withheld sums at the rate of return
that City earned on its investments during the time period, from the date of withholding of
any amounts found to have been improperly withheld.
22. LIMITATION OF LIABILITY
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN
SECTION 9 AND SECTION 19 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER
PARTY, IN THE AGGREGATE, BE LIABLE FOR DAMAGES TO THE OTHER PARTY
IN EXCESS OF THE TOTAL AMOUNT PAID BY CITY UNDER THE APPLICABLE SOW
TO WHICH THE CLAIM RELATES. THE ABOVE LIMITATIONS WILL APPLY
WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE
THEORY OF LIABILITY. THE FOREGOING LIMITATION WILL NOT APPLY TO THE
EXTENT PROHIBITED BY LAW. UNDER NO CIRCUMSTANCES SHALL EITHER
PARTY HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS
AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS, OR CONSEQUENTIAL,
EXEMPLARY, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF THAT
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT,
STRICT LIABILITY OR PRODUCTS LIABILITY.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant
shall conform to all requirements therein. Failure to do so constitutes a material breach
and is grounds for immediate termination of this Agreement by City. Consultant shall
indemnify and hold harmless City for any and all claims for damages resulting from
Consultant's violation of this Section.
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25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Director of Public Works
Public Works
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: General Counsel
Brightly Software, Inc.
11000 Regency Pkwy., Suite 300
Cary, NC 27518
26. CLAIMS
RESERVED.
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of twenty (20) calendar days, or if more than twenty (20) calendar days are reasonably
required to cure the default and the defaulting party fails to give adequate assurance of
due performance within twenty (20) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than thirty (30) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for (1) Professional
Services satisfactorily performed and costs incurred up to the effective date of termination
for which Consultant has not been previously paid, and (2) the outstanding balance of
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any Services subscription fees set forth in Exhibit A. On the effective date of termination,
Consultant shall deliver to City all reports, Deliverables and other information developed
or accumulated in the performance of this Agreement, whether in draft or final form.
28. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with applicable statutes, ordinances, regulations and requirements of
governmental entities, including federal, state, county or municipal, whether now in force
or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to
applicable City, county, state and federal laws, rules, regulations and permit requirements
and be subject to approval of the Project Administrator and City.
28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
28.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
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28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
Brightly Software, Inc. Page 11
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a California mu icipal corporation
Date: gli� / Z.3 , Date: 119
By: 0 By:
ron C. Ha tib Gr c . Leung
ity Attorney p3M� Manager
ATTEST: CONSULTANT:
Date: �, BRIGHTLY SOFTWARE, INC., a
Delaware corporation
Date:
Signed in Counterpart
By: By:
Leilani I. Brown Kevin Kemmerer
City Clerk Chief Executive Officer
Date:
By: Signed in Counterpart
Kelly Caputo
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Exhibit D — Brightly Master Subscription Agreement
Brightly Software, Inc. Page 12
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: /1 7_9
By: Q'
on C. Harp
Attorney �c�a
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
Em
Grace K. Leung
City Manager
CONSULTANT:
BRIGHTLY SOFTWARE, INC., a
Delaware corporation
Date:_ f ay(N, 2a ,
By:
Kevin Kemmerer
Chief Executive Officer
Date: f�k �� ► a�
By:
Kell aputo
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A —
Scope of Services
Exhibit B —
Schedule of Billing Rates
Exhibit C
— Insurance Requirements
Exhibit D
— Brightly Master Subscription Agreement
Brightly Software, Inc. Page 12
EXHIBIT A
SCOPE OF SERVICES
Brightly Software, Inc. Page A-1
t
Asset Essentials - Assets, GIS, and PM Schedules
Implementation Consulting Package
Statement of Work
Consultant shall provide facilities maintenance and tracking software. In addition to providing data import, GIS
integration, preventative maintenance schedules, and user training and support.
Purpose
Brightly (identified in the Professional Services Agreement as "Consultant," herein and in the Master Services Agreement
identified as "Company") Asset Essentials is designed to provide our clients with focused guidance by experienced
consultants to ensure an effective and efficient implementation and a faster Return on Investment. This
includes - meeting with key stakeholders to ensure the set-up and configuration of the system will meet the
City's current and future needs; location and category hierarchies are configured
appropriately; workflows meet the needs of the business; available data is cleaned, aligned and imported; and
end users are trained and ready for go -live.
Value
By contracting with Brightly, you are provided expert guidance in the best practice configuration and usage of
Asset Essentials. The following are ways in which this value is realized:
Faster time to value: clients who leverage our focused consulting services see implementation time
frames that are up to four times faster than clients who do not utilize our services.
Expert data management: we work with client data every day and provide guidance on creating good
data for reporting. In partnership, we will help clean up and import data for you, allowing you more
time to focus on your daily operations, and not the one-time activities necessary to get your account
configured effectively.
Dedicated professional services: the partnership between City and Company will align Asset Essentials
best practices, configuration and workflows to best meet your business needs. Our team will bring their
thousands of hours of expertise to the table, helping ensure a smooth transition to your new CMMS
system.
Deliverables
• Project kick-off call with a Company Project Coordinator
• Determine specific maintenance related goals and objectives to drive the most effective Asset Essentials
configuration to meet the client's current and future needs
• Determine and set-up appropriate workflows and drop -down lists
• Review, cleanse and import available user, location, asset, and scheduled PM data
• Establish integration with client GIS system, configure up to 10 client GIS layer syncs
• Assets, PMs and Corrective Work Order Processes
Training for Admins, Leads and Full Users
• Go -Live Support for additional assistance during roll -out
• Unlimited access to Help Site, Virtual Classroom Trainings, and Best Practice webinars - during and after
implementation
Methodology and Approach
[Jt�ol
Brightly or a qualified affiliate or subcontractors of Brightly (Company Service Provider) will interview your key
maintenance stakeholders to determine account configurations and settings. With over 12,000 clients
successfully using our software, we understand the importance of understanding your goals, objectives, and
current workflows, as well as the importance of getting to know your users. Your professional services
implementation will begin with an Orientation Call with a dedicated Project Coordinator. Additional resources
will help prepare you for your consulting time through access to a project collaboration tool (Financial Force
Community) where a team of implementation specialists will help answer questions and provide access and
recommendations for Virtual Classroom Training sessions. Once your data has been collected you will be ready
to work with your assigned consultant to understand your workflow, cleanse and import your data, configure
your account and offer user -role based software training sessions. Below are topics that will be discussed with
your Company Service Provider:
• The primary reasons your organization began a Computerized Maintenance Management System
search
• The ideal timeline for completion
• Business deadlines that drive this timeline
• Project team members who will be participating in the implementation, and their roles
• Internal champions for this project
• Sceptics that may require additional change management support
• Issues, barriers, or roadblocks that your organization experienced
with previous software implementations
• Resolution of those issues for this implementation/conversion
• Aspects of Asset Essentials planned for immediate use
• Aspects of Asset Essentials planned for future use
• Aspects of Asset Essentials planned not to be used
Mobile App
Cost Centers/Budgets
Connector Tool
Integration
Projects
Parts and POs
Capital Forecast/Predictor
Core
Citizen Portal
Mobile profiles
Map -based Work Orders
GIS Asset Management
PM scheduling and best
practices
AE Reporting
Goals and Reporting
Reports/information needed from Asset Essentials for who and how often
• Key maintenance metrics
• Overall goals of your maintenance department
• Goals/needs from Asset Essentials CMMS
• Measures of success for this implementation
Users
• Users who will use Asset Essentials
• Roles for each user
• Responsibilities of each role including unique responsibilities within common roles
• Permissions per role
• Requester access, usage and approval
• Specialized user needs
• Departments
Public Works Departments
• Multiple site(s)
• Facility layout -
• Parent -child Locations for Buildings and Rooms
• Identifying Building -type Locations
• Management/supervisory responsibilities by functional area
• Similarities/differences between facilities
Mapping:
GIS:
• WO creation from Map
• Citizen Portal (requires OIDC in Gov, not available in Edu)
• Mobile Profiles (available to all clients in Gov, requires GIS in Edu)
Configure GIS Map Settings
• Review Map Layers
• GIS Layer Configuration and Syncing Assets
Assets
0
• Asset life cycle process within your operation
• Major types/categories of equipment
• Asset Parent -child relationships
• Meters used
Key reporting needed to drive effective asset management
Maintenance Operations
• Maintenance department org chart/hierarchy
• Techs specialized or general or both
• Tech service areas (if applicable)
• Departments other than maintenance involved in Asset Essentials -
• What departments
• Type of involvement
• Contractors
Workflow
• WO workflow processes -
• Requests/Corrective WO's
• Determining factors for who gets assigned each corrective or PM WO
• Examples include Location, Work Category, Type, Status, Priority, etc.
• Steps in the process -
• Requester process
• Approval process, if required
• Assignment Process
• Completion requirements
• Mobile app usage
• PM's
• Assigned from PM to an individual or flow through a planner/supervisor
• Asset Essentials creates Location or Asset -based PMs
• Tasks Library
• Scheduling cycles and stacking groups
• Overall WO management
• Prioritization
• Daily/Weekly needs
• Cost Tracking
• Building Views
• WO Reporting
Go Live Support
• Begin using Asset Essentals as your primary Computerized Maintenance Management System
• Provide internal support for basic usability questions
• Up to 4 weekly follow up sessions with your Implementation Specialist to review progress with rollout
and user adoption,
Implementation Complete!
7
• Project Close
• Begin working with Company's Legendary Support Team (LST) for ongoing user questions
Sample consulting engagement
Our primary goal is to assist the City in their transition to a new solution. Through our interviews with key
staff, we will identify your objectives to focus on during our stay. Below you'll find an example schedule of a
typical consulting engagement. Time invested into each phase varies based on city need.
Discovery Phase
The discovery phase is typically a phone or web interview that typically lasts a couple of hours
• Interview maintenance and operations managers/supervisors, technicians, operators
• Overview of application with key stakeholders
• Define workflow and use -cases within the applications
• Discuss change management and strategy
Data Loading and Configuration
Preparing Data is a key component of the service and requires client input but the consultant will take care of the
rest!
• Data review of existing data from previous CMMS system or data sets
• Map current data into AE setup and format
• Configure GIS Map Settings
• Review Map Layers
• GIS Layer Configuration and Syncing Assets
• Determine priority of data load to meet use -cases
• Review data in AE and discuss data management
Use -case setup and PM training
Setup workflow to meet use -cases and begin PM training
• Refinements to configuration, workflow and data as needed
• Build workflow to meet agreed use -cases
• Refine Request/Work Order templates to capture required data
• Training on creating and maintaining PMs with application Admins and Supervisors
Hands-on User Training
User training sessions by user role or function and typically last up to 90 minutes for up to 10-15 users
• Train end users - supervisors, technicians and requestors
• Hands on training of reactive workflow with Supervisors
Mobile or Desktop training available for most user roles
Evaluation
N �J
W
At the conclusion of the consulting service, the consultant will forward notes to your project coordinator
capturing what was accomplished and any recommended next steps. The project coordinator will schedule a
follow-up call within 2 weeks of the consulting service. Ongoing communication until the project is complete will
be through your Financial Force Community project.
Post Enablement Support
After data is loaded, the account configured, and users are trained the system is ready to roll -out
• Support go -live - adjust configuration, provide additional training and data entry support
• Review aspects of AE planned for future use
• Define follow-up tasks and next steps
• Define Post Launch Support point of contact
Project Assumptions
Company has made the following general assumptions in this SOW to derive the estimated cost for this project.
It is the responsibility of city to validate these assumptions and responsibilities before signing the Acceptance.
Deviations from these assumptions may impact Company's ability to successfully complete the project. Any
changes in scope, schedule, or costs will be documented by the Project Coordinator, whether there is a cost
impact or not.
Company is not responsible for delays caused by missing data or other configuration information that is
required to be available prior to the consulting service. Having the requested data and configuration
information available prior to the consulting service may minimize delays so progress can be made
quickly.
Company is not responsible for updating or making configuration changes to the client GIS data
CityAssumptions
• Configuration and data options may vary based on the version of Asset Essentials and the
corresponding service level that was purchased.
• City will have access to GIS system. ArcGIS online Viewer licenses may be required.
• City will have access to personnel on their side to make changes to GIS.
• GIS layers should all have unique names and Global IDs for Asset -syncing to be successful.
• CitylT department is responsible for ensuring access to mobile devices, internet connections, email
access and web link access to the application(s)
• City will schedule time for the appropriate resources to be available to the consultant for all scheduled
consulting activity. The success of this process is dependent on the attendance and full engagement of
the key stakeholders. The City will also provide a dedicated room or area with adequate technology for
a successful consulting service, including but not limited to monitor/projector, computers/tablets,
quality phone connection, and wireless internet access.
• All key stakeholders who will take part in the goals and objectives and data portions of the consulting
service have attended the recommended virtual classroom trainings prior to the service.
• Prior to the consulting service, the City will provide data for each record type in Excel or CSV format in
one file and one sheet with one record and its associated information per row.
• If there is no existing Asset data, the consultant will guide the City to focus on safety and location -based
PMs and inspections.
V
Rescheduling or cancellation of the service within 2 weeks of the scheduled delivery date will result in a
$500 rescheduling fee.
Special Terms for Asset Essentials:
Asset Essentials pricing is based on a maximum storage limit of 20OGB of data. Data storage that exceeds
20OGB may subject to an additional fee of $200 per year per additional 20OGB of storage.
NO
Custom Asset Data Conversion and Formatting Services
Scope of Work:
Perform a virtual asset inventory data conversion in order to do assign a condition rating and life cycle
analysis on assets include in the scope of work. This work effort is based on information provided by
client.
Section 1 — Project Planning and Initiation
Our approach to managing this project includes the following key factors to assure we exceed your
expectations:
• Mutual understanding of the assessment scope and objectives
• Thorough planning to allow for efficient use of both of our collective time and efforts
• Clear and timely communication
Key elements of our management plan include:
• Project definition
• Project goals and objectives for schedule
• Final deliverables
• Successful submittal of data sets for consumption into the Asset Essentials solution.
Section 2 — Asset Data Conversion and Formatting
An ALPHA asset management expert will meet via teleconference to discuss and confirm the
documents provided to be used as a basis for developing the condition ratings. Condition ratings will
be generated as a function of where assets currently sit within their overall life cycle. ALPHA will work
to format the provided asset files so that the data can be mapped to the appropriate fields within the
Asset Essentials solution.
Section 3 — Deliverables
A summary of the deliverables is outlined below:
Asset Excel File — An excel file containing all formatted assets including condition
information will be provided to the client for import into the Asset Essential solution.
Asset importation activities will not be included by ALPHA and will be the responsibility
of the client to work with Brightly to complete these requirements.
11
AIP Facilities Solutions
Building perspective.
Custom FCA Data Conversion Services
Scope of Work:
Perform a virtual Facility Condition Assessment data conversion in order to do life cycle analysis on
buildings include in the scope of work. Life Cycle Analysis based on information provided by client.
Section 1 — Project Planning and Initiation
Our approach to managing this project includes the following key factors to assure we exceed your
expectations:
• Mutual understanding of the assessment scope and objectives
• Thorough planning to allow for efficient use of both of our collective time and efforts
• Clear and timely communication
Key elements of our management plan include:
• Project definition
• Project goals and objectives for schedule
• Final deliverables
• Successful submittal of data sets for consumption into the Asset Essentials solution.
Section 2 — FCA Data Conversion
An ALPHA asset management expert will meet via teleconference to discuss and confirm the
documents provided to be used as a basis for developing the cost models to generate the capital
renewal schedules. ALPHA will work with you to confirm cost and life cycle information so that the
capital renewal schedules reflect appropriate budgets for reinvesting in facilities included in the scope
of work. The life cycle analysis report is intended to support facility -planning activities associated with
developing fiscal year budget. .
The scope of work for this project consists of the following activities to support the development of the
next fiscal year budget:
1. Off -site work activities;
2.1 Off -Site Activities
Our asset management professionals will review the documents provided and create parametric cost
models based off of the building type, number of stories and square footage.
We will calculate the condition and estimate the remaining service life for the purposes of renewal
forecasting for the building systems shown below.
Aipha� 12
,,r;esso��f;ons
Building perspective.
1. Exterior systems: roof systems, wall systems, window systems, and exterior door systems.
2. Interior systems: wall systems, door systems, floor systems and ceiling systems.
3. Heating, ventilation and air conditioning.
4. Electrical branch wiring and electrical distribution systems.
5. Plumbing systems.
6. Fire protection systems.
7. Elevator systems.
Section 3 - Deliverables
A summary of the deliverables is outlined below:
Data Conversion — Building cost models will be generated utilizing building components
to asset conversion tool for the purposes of loading building components into Asset
Essentials so that future predictive modeling can be performed using a capital planning
tool.
Building Asset Excel File — An excel file containing all converted building components
will be formatted and provided to the client for import into the Asset Essential solution.
Asset importation activities will not be included by ALPHA and will be the responsibility
of the client to work with Brightly to complete these requirements.
A/PF11
13
i,ities Solutions
Building perspective.
Er
Preventive Maintenance Schedule Creation
Purpose
Preventive Maintenance (PM) Schedule creation is a service offering provided in conjunction with an
"Equipment Inventory" (Data Gathering) service or Facility Condition Assessment (FCA). PM Schedules will be
generated off the equipment inventory collected by the Company Service Provider during either the Data
Gathering or FCA service. The intent of this service is to identify needed procedures and inspections required
to maintain facilities systems in safe, reliable and efficient condition.
Value
By leveraging Company's PM Schedule Creation service, Company clients are able to leverage and
incorporate regular preventive maintenance best practices of their equipment. By performing regular or
routine maintenance best practices, you ensure that your equipment is operating under safe and optimal
conditions thus preventing the potential for downtime and shorter life expectancy.
Deliverables
All Preventive Maintenance Schedule Creation services include the following deliverables
Creation of PM Schedules for populating your Brightly Work & Asset Management solution
Data population within Company Software. No report will be provided.
Methodology and Approach
Company Service Providers leverage multiple libraries of PM standards to create PM schedules. These
standards are based upon prevailing national codes and standards such as ASTM, ASHRAE, NFPA and
BOMA. Procedures related to performing the tasks within the schedule will include:
Safety Points
Tools Required
Estimated Time to Complete Maintenance
Step-by-step procedure to complete maintenance work order
Prior to the import or population within the Company Software, the Company Service Provider will:
Review of PM Task Check -off Lists with City
Setup baseline PM schedules for the equipment inventory collected
Work with the City to determine PM Schedule assignment. Assignment includes setting up the
appropriate Technician or contractor who will be performing the related PM tasks into the master
import template to ensure that the routing of work flows accordingly in the Work & Asset Management
Solution. Assignment will be made at the location or craft level. Anything above and beyond this level of
assignment will be managed and maintained by the client within the software or require a custom scope
of work for the Company Service Provider to deliver. For assignment to occur, the client must have the
Technician or contractor created in the software prior to onsite activity.
Work with the City to determine the start date, frequency and load balancing based upon client staffing.
If start dates cannot be determined or agreed upon within a timely manner, the PM Schedules
15
1r
will be loaded into the City's Work & Asset Management solution as "Inactive".
Assumptions
• City will provide feedback/review of PM Schedules within 15 business days of delivery from the Company
Service Provider. If feedback/review of PM Schedules exceeds 30 business days, Company will provide a
Deliveriable Acceptance Form to the client to complete review within 30 days. If feedback is not
provided during this time period, Company will assume delivery of the service and import
the PM schedules as "inactive" in the system. Company will provide training on how updates can be
made within the software or perform mass updates if needed for a fee.
• Once PM Schedules are imported into the Company Work and Asset Management applications, any
updates and/or alterations of those schedules need to be communicated to Company within 30
days. Company will only make updates related to the below items:
• Discontinuation of PM Schedules created with the service
• Alteration of frequency on existing schedules created with the service
• Alteration of start dates for the schedules created with the service
Otherwise, any revisions beyond this 30 day period will be the responsibility of the client to perform within the
software or Company to perform at an additional fee.
• Reconciliation of existing PM Schedules in the client's account is subject to additional costs depending
upon the number of active PM's and is not a part of the standard SOW.
Invoice Schedule
Invoicing for the PM Schedule Creation Service will be provided upon receipt of PM Schedule drafts at 100%
EXHIBIT B
SCHEDULE OF BILLING RATES
Brightly Software, Inc. Page B-1
Q-324204
Term: 27 months (04/01/2023 - 06/30/2025)
Item
Start Date
End Date
Investment
Asset Essentials
4/1 /2023
6/30/2023
6,742.65 USD
Core Plus
- Facilities/Physical
4/1/2023
6/30/2023
Included
Plant Module
- Dude Analytics
4/1 /2023
6/30/2023
Included
-Asset Essentials
4/1/2023
6/30/2023
Included
Inventory
Item
Asset Essentials Core Implementation with Consulting
Custom Professional Services
Custom Professional Services
PM Schedule Creation
Subtotal: 6,742.65 USD
Investment
17,229.63 USD
14,908.12 USD
12,423.43 USD
11,875.32 USD
Subtotal: 56,436.50 USD
2
Item
Asset Essentials Core Plus
- Facilities/Physical Plant
Module
- Dude Analytics
- Asset Essentials Inventory
Total:
Investment Year 2 Start
Date: 07/01 /2023
26,970.60 USD
Included
Included
Included
26,970.60 USD
N
Investment Year 3 Start
Date: 07/01 /2024
28,588.84 USD
Included
Included
Included
28,588.84 USD
3
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract.
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
Brightly Software, Inc. Page C-1
D. Professional Liability (Errors & Omissions) Insurance. Consultant shall
maintain professional liability insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of
one million dollars ($1,000,000) per claim and two million dollars
($2,000,000) in the aggregate. Any policy inception date, continuity date, or
retroactive date must be before the Effective Date of this Agreement and
Consultant agrees to maintain continuous coverage through a period no
less than three years after completion of the Services required by this
Agreement.
E. Cyber Liability. Contractor shall maintain cyber liability insurance with limits
of not less than one million dollars ($1,000,000) per occurrence and two
million dollars ($2,000,000) annual aggregate covering (1) all acts, errors,
omissions, negligence, infringement of intellectual property, (2) network
security and privacy risks, including but not limited to unauthorized access,
failure of security, breach of privacy perils, wrongful disclosure, collection,
or negligence in the handling of confidential information, privacy perils,
including coverage for related regulatory defense and penalties, and (3)
data breach expenses payable whether incurred by City or Contractor,
including but not limited to consumer notification, whether or not required
by law, computer forensic investigations, public relations and crisis
management firm fees, credit file or identity monitoring or remediation
services, in the performance of services for City or on behalf of City
hereunder.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but not
including professional liability and cyber liability„ shall provide or be
endorsed to provide that City, its City Council, boards and commissions,
officers, agents, volunteers and employees shall be included as insureds
under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
Brightly Software, Inc. Page C-2
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. Upon
renewal or extension of any such policy, evidence of insurance showing that
such insurance coverage has been renewed or extended shall be filed with
the City. If such coverage is cancelled or reduced, Consultant shall, within
ten (10) days after receipt of written notice of such cancellation or reduction
of coverage, file with the City evidence of insurance showing that the
required insurance has been reinstated or has been provided through
another insurance company or companies. City reserves the right to require
complete, certified copies of all required insurance policies, at any time.
B. RESERVED.
C. Right to Review Subcontracts. Consultant agrees that upon request, all
agreements with subcontractors or others with whom Consultant enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. For CGL coverage, subcontractors shall provide
coverage with a format at least as broad as CG 20 38 04 13.
D. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type.
Brightly Software, Inc. Page C-3
F. Self -insured Retentions. Any self -insured retentions must be declared to
and approved by City. City reserves the right to require that self -insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
G. City Remedies for Non -Compliance. If Consultant or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to terminate this Agreement or to suspend
Consultant's right to proceed until proper evidence of insurance is provided.
H. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies. City assumes no
obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve
City.
Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
Brightly Software, Inc. Page C-4
brightly
EXHIBIT D
MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement (for the purpose of this document, this "Agreement") shall govern Subscriber's (as defined below) access
and use of the Services (as defined below) provided by Brightly Software (for the purpose of this document, "Company"). This Agreement is incorporated
into the Professional Services Agreement executed between Subscriber and Company (for the purpose of this document, the "PSA"). BY ACCEPTING THIS
AGREEMENT, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE, BY RESELLER PURCHASE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS
AGREEMENT OR BY OTHERWISE ACCESSING AND USING THE SERVICES, SUBSCRIBER AGREES TO THE TERMS OF THIS AGREEMENT. AS A RESULT, PLEASE
READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY.
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 ACCEPTTHIS AGREEMENT AND MAY NOT USE THE SERVICES.
Section 1.0 Ordering and Use of the Service
1.1 Company Cloud Service; Subscriber -Hosted Software.
(a) Company Cloud Service. Unless otherwise specified on an applicable Order Form, Company Service shall be provided as Company -
hosted, cloud Service. Company grants Subscriber a non-exclusive and non -transferable right to access and use the Service for the Term.
(b) Subscriber -Hosted Software. Where an applicable Order Form sets forth Subscriber -Hosted Software, 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 software
for the Term. In respect of such Subscriber -Hosted Software:
1. . 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 Form (i.e., implementation).
2. . 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.
3. . 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 Form on which, or in connection with which, the Subscriber —Hosted Service will be used.
1.2 Ordering.
(a) Ordering. For the Company Services purchased, Company shall grant Subscriber Account Users access or use of the Service(s) and
Professional Service(s) during their associated Term, including access and use of all of the Content contained in or made available through the Service(s),
Subscriber agrees that its purchase is not contingent on the delivery of any future functionality orfeatures, or dependent upon any oral or written public
comments regarding future functionality or features. Subscriber agrees that it shall use the Service(s) solely for internal business purposes, and access
and use of the Service(s) shall be limited to Account Users. Affiliates of either party may conduct business under this Agreement by executing an Order
Form or other document that references this Agreement's terms.
(b) Account Setup. To subscribe to the Service, Subscriber must establish its Account, which may only be accessed and used by its
Account Users. 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. With full responsibility for its Account Users, Subscriber shall: (i) take appropriate action to ensure that
non -Account Users do not access or use the Service; (ii) ensure that all Account Users comply with all of the terms and conditions of this Agreement;
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(iii) be solely responsible for the accuracy, and appropriateness of all Subscriber Data created by Account Users using the Service; (iv) access and use
the 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); (v) allow e-mail notifications generated by the Service on behalf of Subscriber's Account
Users to be delivered to Subscriber's Account Users; and (vi) promptly notify Company if Subscriber becomes aware of any unauthorized use of its
Account.
(d) Usage Restrictions. Subscriber agrees that it shall not, and shall not permit any Third Party to, directly or indirectly: (i) modify, copy,
create derivative works or attempt to derive the source code of the Service; (ii) assign, sublicense, distribute or otherwise make available the 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 Service to provide any service bureau services or any services on a similar basis; (iv) use the Service in a way not authorized in writing by Company
or for any unlawful purpose; (v) use the 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 Service; (vii) remove, obscure or alter any copyright, trademark, patent or proprietary
notice affixed or displayed by or in the Service; (viii) perform load tests, network scans, penetration tests, ethical hacks or any other security auditing
procedures on the Service; (ix) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (x) access or use the
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 Service or monitor the availability and/or functionality of the 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 Service, or any
Company data; (xii) store, manipulate, analyze, reformat, print, and display the Content for personal use; and (xiii) upload or insert code, scripts, batch
files or any other form of scripting or coding into the 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 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 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").
(e) Additional Guidelines. Company reserves the right to establish or modify its Service offerings, general practices and limits
concerning use of the Service, and if applicable provide alternative 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 Service and the block may be removed once
Company is satisfied corrective action has taken place to resolve the issue. In the event any Service changes made pursuant to this paragraph degrade
the performance, functioning or operation of the Service or cause the performance, functioning or operation of the Service to fail to meet the
requirements of this Agreement as of the Effective Date, the City may terminate the non -conforming Service(s) upon thirty (30) days advance written
notice to Company and Company shall refund any prepaid fees paid for such Service(s).
(f) -Links to Third Party Websites. To the extent that the Service, at the request of the Subscriber, 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 Company. Company shall have no obligations or liability arising from Subscriber's access and use of such linked Third
Party websites, applications and services.
(g) _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 the Services prior to their general release that are labeled or communicated as Previews. Subscriber
may choose to try such 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 the Service, the
Documentation and the Content, including without limitation all corrections, enhancements, improvements to, or derivative works thereof (collectively,
"Derivative Works"), and in all Intellectual Property Rights 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 Service, together
with all Intellectual Property Rights 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 Intellectual Property Rights in or to the Service, the Documentation and the Content, 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,
including all Intellectual Property Rights therein or thereto. Notwithstanding the foregoing, Subscriber hereby grants Company and its Affiliates a non-
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exclusive, royalty -free license to: (i) access, display, copy, distribute, transmit, publish, disclose and otherwise use all or any portion of the Subscriber
Data to the limited extent necessary for Company 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 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 shall defend and
indemnify City from any and all third -party claims resulting from Company's de -Identification and/or De -Identified Data.
(c) _Subscriber acknowledges the 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 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 underthe terms of this Agreement
and shall be protected in accordance with the terms of Section 7.
Section 2.0 Company Responsibilities
2.1 RESERVED.
2.2 Service Levels. Company shall use commercially reasonable efforts to make the Service available 99.9% of the time for each full
calendar month during the Term, determined on a twenty-four (24) hours a day, seven (7) days a week basis (the "Service Standard"). Service availability
for access and use by Subscriber(s) excludes unavailability when due to: (a) any access to or use of the 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; (e) any failure, interruption, outage, or other problem with Internet service or Non -Company Service; (f) Scheduled Downtime; or
(g) any disabling, suspension, or termination of the Service by Company pursuant to the terms of the Agreement. "Scheduled Downtime" means, with
respect to any applicable Service, the total amount of time (measured in minutes) during an applicable calendar month when such Service is unavailable
for the majority of Subscribers' Account Users due to planned Service maintenance. To the extent reasonably practicable, Company shall use reasonable
efforts to provide eight (8) hours prior electronic notice of Service maintenance events and schedule such Service maintenance events outside the
applicable business hours.
2.3 Protection of Subscriber Data. Company shall maintain commercially reasonable administrative, physical, and technical safeguards
for protection of the security, unauthorized access or disclosure of Subscriber Data. All data and information provided by Subscriber through its use of the
Service is subject to Company's Privacy Policy attached at the end of this Agreement. By using the 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 data shall be available for Subscriber's export and download. Following the thirty (30)
days after termination or expiration, Company shall not be obligated to maintain Subscriber Data, and may delete or destroy what remains in its possession
or control unless prohibited by law.
Section 3.0 Third Party Interactions
3.1 Relationship to Third Parties. In connection with Subscriber's use of the Service, at Subscriber's discretion, Subscriber may: (i)
participate in Third Party promotions through the 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 Service, its
application programming interface ("API") and a Third Party provider; (iv) receive additional functionality within the user interface of the 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 Service.
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C]
3.2 Ownership. Subscriber is the owner of all Third Party content and data 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 and data in any manner.
Section 4.0 Fees and Payment
4.1 Fees. Except as otherwise provided in the PSA, Subscriber shall pay to Company all fees specified in Order Forms attached to the PSA,
or that may be later incorporated into the PSA via a duly executed amendment to the PSA. Except as otherwise stated on the Order Form: (i) Subscription
Fees are based on Services and subscriptions purchased, (ii) all Subscription Fee payment obligations are non-refundable and non -cancelable, and (iii)
quantities purchased cannot be decreased during the relevant Services Term. The Subscription Fee for such Service subscription shall be invoiced upon
commencement of the Services 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 no later than thirty (30) days after the receipt of Company's applicable invoice. 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 Forms 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 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 between Subscriber and such authorized
reseller 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 Service at any time upon thirty (30) days' prior written notice to Subscriber unless Subscriber and
Company have agreed otherwise in writing. In the even that Company terminates Subscriber's access to the Service, Subscriber shall have the right to
terminate the PSA upon thirty (30) days' prior written notice to Company.
Section 5.0 Services Term and Termination
5.1 Services Term. This Agreement will commence on the effective date of the PSA and its term shall be coextensive with the term of the
PSA. Services shall commence on the Effective Date set forth on the applicable Order Form for each Service, and each Service continues until the Service
subscription has expired or has been terminated, but in any event, shall not exceed the duration of the PSA (the "Services Term").
5.2 Termination for Cause. Either party may terminate this Agreement (in whole or with respect to an Order Form 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 Services if
Subscriber breaches the Agreement (including with respect to payment of Fees) until the breach is remedied. No payment shall be due from Subscriber
during the period that any Services are suspended unless such suspension is the result of nonpayment of Fees due under this Agreement.
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5.3 Effect of Termination. Termination or suspension of an individual Order Form or reseller purchase, will not terminate or suspend any
other Order Form, 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 Form(s) and reseller purchases will terminate. If this Agreement, any Order Form 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 and 8.
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 represents and warrants that during the applicable Subscription Term that Service will perform materially in accordance
with the applicable Documentation. For any breach of this warranty in Section 6.2(a), Subscriber's exclusive remedy and Company's entire liability shall
be as described in Section 5.2, i.e., that Subscriber may treat such breach of warranty as a material breach of the Agreement under Section 5.2(i).
(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 in a manner that meets or exceeds this warranty.
(c) SERVICE, CONTENT, DOCUMENTATION, AND STORED DATA ARE PROVIDED "AS -IS" AND AS AVAILABLE EXCLUSIVE OF ANY
WARRANTY. EXCEPT AS EXPRESSLY STATED HEREIN, THE PARTIES MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY,
TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT, DOCUMENTATION, OR
STORED DATA. PARTIES SPECIFICALLY DISCLAIM ALL REPRESENTATIONS OR WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON -INFRINGEMENT
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NOTWITHSTANDING THE FOREGOING, COMPANY REPRESENTS THAT THE SERVICES, ALL
CONTENT, DOCUMENTATION, AND STORED DATA PROVIDED UNDER THIS AGREEMENT SHALL BE AT LEAST FIT FOR THE ORDINARY PURPOSES FOR
WHICH THEY ARE CUSTOMARILY USED, ARE OF AT LEAST FAIR AND AVERAGE QUALITY, AND PASS WITHOUT REASONABLE OBJECTION IN THE INDUSTRY.
(d) Company's 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 Services and the results of such use; Company will not be liable for the results obtained through Subscriber's
use of the Services. Company's 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 Indemnification for Third Party Claims in Connection with Service.
(a) Indemnity by Company for Third Party Claims in Connection with Service. 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 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 provided that such settlement includes a full and complete release of the City from any and all Claims of the third
party; 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 Service, Company may in its sole discretion and at no cost to Subscriber: (i) modify the Service so that it no longer
infringes or misappropriates provided that such modification is done in a commercially reasonable manner and does not deprive the City of the purpose
for which the City has contracted for the Professional Services to be provided under this Agreement, (ii) obtain a license for Subscriber's continued use
of the Service, or (iii) terminate this Agreement (including Subscriber's 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 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 Service in combination with any
software or hardware not expressly authorized by Company, (B) any modifications or configurations made to the Service by Subscriber without the prior
written consent of Company, and/or (C) any action taken by Subscriber relating to use of the Service that is not permitted under the terms of this
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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 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 Subscriber's use of the Service in breach of this Agreement, infringes upon any 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 Service.
6.4 Limitation of Liability. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6.3, IN NO EVENT SHALL COMPANY
OR SUBSCRIBER, IN THE AGGREGATE, BE LIABLE FOR DAMAGES TO THE OTHER PARTY IN EXCESS OF THE AMOUNT OF SUBSCRIPTION FEES PAID BY
SUBSCRIBER TO COMPANY PURSUANT TO THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE FIRST ACT OR OMISSION GIVING RISE TO THE
LIABILITY. UNDER NO CIRCUMSTANCES SHALL COMPANY OR SUBSCRIBER HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS
AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS, OR CONSEQUENTIAL, EXEMPLARY, INDIRECT, INCIDENTALOR PUNITIVE DAMAGES, EVEN IF COMPANY
OR SUBSCRIBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT,
STRICT LIABILITY OR PRODUCTS LIABILITY. 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 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 theforegoing, Confidential Information shall not include information that: (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; (c) is or has been
independently developed by Receiving Party without the benefit of Confidential Information; and (d) the PSA, this Agreement, Order Forms, invoices, or
any other contract documents between the parties.
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 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 Records Requests. To the extent permitted by law, Subscriber shall treat as exempt from treatment as a public record, and shall not
unlawfully disclose in response to a request made pursuant to any applicable public records law, any of Company's Confidential Information. Upon
receiving a request to produce records under any applicable public records or similar law, Subscriber shall immediately notify Company and provide such
reasonable cooperation as requested by Company and permitted by law to oppose production or release of such Company Confidential Information.
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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 Miscellaneous
8.1 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.
8.2 Publicity. Company is permitted to: (i) include Subscriber's name and logo in accordance with Subscriber's trademark guidelines; and
(ii) list the Services selected by Subscriber, in public statements and client lists. Subscriber agrees to participate, in Subscriber's sole discretion, in press
releases, case studies and other collateral using quotes or requiring active participation, the specific details of which shall be subject to prior written
mutual consent. Company shall not use Subscriber's name, logo, or trademark in any manner that is disparaging to Subscriber, or in any manner that
would suggest that Company is a partner, agent, affiliate, department, or subdivision of Subscriber, or is officially endorsed by Subscriber.
8.3 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.
8.4 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.
8.5 Assignment. Subscriber shall have no 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. Company shall have the full ability to transfer, assignor sublicense
this Agreement or any of its rights, interests or obligations under this Agreement. In the event Company exercises its right under this Section, Consultant
shall provide prompt written notice to the City of any such event, and such notice shall identify the assignee or sublicensee by legal name, legal address,
and contact information for the receipt of legal notices, and the City shall have the option to terminate this Agreement without cause upon thirty (30)
days prior written notice to same.
8.6 Force Maieure. Subject to the limitations set forth below and except for fees due for Service 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 Majeure 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.
8.7 EntitV, 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@brightlysoftware.com. 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, notices shall be addressed to 11000 Regency Parkway, Suite 300, Cary, NC 27518, Attn: General Counsel, governing law shall be California
and the courts with exclusive jurisdiction shall be California without regard to the principles of conflicts of laws.
(b) RESERVED.
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(c) RESERVED.
(d) RESERVED.
8.8 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.
8.9 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.
8.10 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.
8.11 Entire Agreement. The parties agree that any term or condition stated in any purchase order or in any other order documentation,
excluding the PSA, its exhibits, and amendments, is void. In the event of any conflict or inconsistency between the documents, the order of precedence,
from highest authority to lowest authority, shall be (1) any duly executed amendments to the PSA, (2) the PSA, and its exhibits, (3) the applicable Order
Form, (4) any schedule or addendum to this Agreement, (5) the content of this Agreement, and last, (6) purchase orders.
8.12 Export Compliance. The Service, Professional Service, Content or other technology Company may make available, and derivatives
thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S.
government denied -party list. Subscriber shall not permit any Account User to access or use any Service, Content or other Company technology in a U.S.-
embargoed country or region or in violation of any U.S. export law or regulation.
8.13 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. Reasonable gifts and entertainment provided in the ordinary course of
business do not violate the above restriction. If Subscriber learns of any violation of the above restriction, Subscriber shall immediately notify Company.
8.14 Cooperative Use. With Subscriber's approval, the market research conducted by Subscriber during its selection process for the
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.
8.15 RESERVED.
8.16 Exclusions/Suspensions. Company confirms that it has not been excluded, debarred or suspended from participation in any
governmental program, including but not limited to Medicare, Medicaid, or Medi-Cal payor programs, and is not the subject of any investigation regarding
participation in such programs, and has not been convicted of any crime relating to any governmental program. Company agrees to notify Subscriber
immediately if Company becomes aware of any adverse action related to Company's eligibility to participate in a governmental program.
8.17 USA Government Subscribers. The 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 Service and its
Documentation and Content subject to the terms of this Agreement.
Section 9.0 Definitions
As used in this Agreement, the following terms shall have the meanings set forth below:
9.1 "Access Credentials" means any user 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 Service.
9.2 "Account" means Subscriber's specific account where Subscriber subscribes to access and use Service(s).
9.3 "Account User" means each employee, consultant and contractor of Subscriber that has been granted Access Credentials.
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9.4 "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.
9.5 "Beta Service" means Company 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, pilot, limited release, early adoption, non -production, sandbox, evaluation or a similar description.
9.6 "Content" means all of the Company audio and visual information, documents, content, materials, products and/or software contained in, or
made available through, the Service.
9.7 "Documentation" means the user documentation relating to the Service provided to Subscriber by Company, including but not limited to
descriptions of the functional, operational and design characteristics of the Service.
9.8 "Brightly Software" or "Company" means Brightly Software, Inc., Brightly Software Canada, Inc., Assetic Australia Pty Ltd, Confirm Solutions
Limited, Facility Health, Inc. and Energy Profiles Limited together with their affiliates, successors and assigns.
9.9 "Company Data" means all data, information, Documentation and other Content provided by or on behalf of Company to any of the Company
Services.
9.10 "Intellectual Property Rights" means all ideas, concepts, designs, drawings, packages, works of authorship, processes, methodologies,
information, developments, materials, inventions, improvements, software, and all intellectual property rights worldwide arising under statutory or
common law, including without limitation, all (i) patents and patent applications owned or licensable by a party hereto; (ii) rights associated with works
of authorship, including copyrights, copyright applications, copyright registrations, mask work rights, mask work applications and mask work
registrations; (iii) rights related to protection of trade secrets and Confidential Information; (iv) trademarks, trade names, service marks and logos; (v)
any right analogous to those set forth in clauses (i) through (iv); and (vi) divisions, continuations, renewals, reissues and extensions of the foregoing (as
and to the extent applicable) now existing, hereafter filed, issued or acquired.
9.11 "Offering" means an individual offering made available by Company and identified on an Order, which consists of Services, Professional
Services or a combination of any of the foregoing, and any associated maintenance and support services and Documentation.
9.12 "Order Form" means Company's ordering document or online purchasing form used to order Company Services. By entering into an Order
Form, Affiliate(s) agree to be bound by the terms of this Agreement as if an original party.
Company
9.13 "Previews" means 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, on -production, sandbox, evaluation or a similar description.
"Professional Service" means the professional, technical, consulting and/or other services, excluding support services, to be performed by Company that
are ordered by Subscriber on an Order Form or provided without charge (if applicable).
9.13 "Service" or "Services" means Company's branded offerings of Software -as -a -Service (SaaS) applications, products and services made available
by Company, as updated, enhanced or otherwise modified from time -to -time.
9.14 "Subscriber" means the legal entity identified on the Account, on behalf of itself and its Affiliates, employees and subcontractors.
9.15 "Subscriber Data" means all data, information and other content provided by or on behalf of Subscriber to the Service, including that which the
Account Users input or upload to the Service.
9.16 "Subscriber -Hosted Software" means Company's suite of Software -as -a -Service (SaaS) software applications, as updated, enhanced or
otherwise modified from time -to -time that are: (i) ordered by Subscriber on an Order Form 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.
9.17 "Subscription Fee" means the fee invoiced to Subscriber by Company prior to the Services Term, which is required to be paid in order for
Subscriber to be permitted to access and use the Service.
9.18 "Third Party" means a party other than Subscriber or Company.
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Appendix 1— Brightly Privacy Policy
Introduction
This Privacy Policy ("Policy") explains how Brightly Software, Inc. and its affiliates and subsidiaries ("Company," "we," "our" or "us") collect, store, use,
disclose and otherwise process the information about you in the course of our business. Our business (collectively, our "Services") includes when you visit
our websites that link to this Policy, use our software -as -a -service ("SaaS") services, application and programs as a Subscriber and through other means
including partner programs, sales and marketing activities.
We provide our Services to our Subscribers under an Agreement located on our "Terms of Use" webpage; it governs use by a Subscriber's Authorized
Users only and allows those Authorized Users to enter data into the Service. Because the Service is SaaS-based, the Authorized Users may access and use
the Service from anywhere in the world, subject to Company's Terms of Use and any applicable laws.
Additionally, our Code of Conduct and Ethics (the "Code") establishes the basic principles to guide all Company employees, officers and directors of
the Company, its contractors, partners and vendors. All of these parties must conduct themselves in the most ethical manner possible, avoiding even the
appearance of improper behavior. The Code provides the guidelines for meeting the ethical and legal obligations when working for or with the Company.
This Policy does not apply to any content entered into the Service by Authorized Users and defined as Subscriber Data. Where Subscriber Data is described,
1) Company is processing Subscriber Data as a processor and Subscriber is in control of and responsible for collection and use of Subscriber Data.
We recommend you read and understand this Policy completely, including the additional documents included at the links provided.
Information You Provide
The personal information we collect when you use the Services, including when you sign up to the Service and the reasons why you are asked to provide
it are explained when we ask you to provide your personal information. Our Company will tell you prior to collection whether providing personal
information is necessary or voluntary.
When using the Services, we may collect your name, email, postal address, phone number and other information you provide via the Services when, for
example, you submit inquiries, request more information about our services, complete surveys or download Company documents, provide feedback about
our Services or register for sales events or marketing activities.
When you register to use our Service, we may collect your personal information (like your full name and contact information). We may share some of this
information if you have asked us to work with a Third Party of your choosing. We do not sell any personal information.
Information We Automatically Collect
When using the Services, we automatically collect certain information when you visit or use the Service, including your use of this website. This information
may reveal your identity and may include information about the specific computer or device you are using, such as your computer's operating system and
Internet Protocol (IP) address. We also automatically collect and store information about your activities on our websites, such as information about how
you came to and used our Services, event information (like access times and browser type and language) and data collected through cookies and other
similar technologies that uniquely identify your browser, computer and/or other device. For more information on the use of cookies and other tracking
technologies please see our Cookie Statement.
We may share information about your computer or other device with our third -party service providers for information and network security, including
fraud detection.
When using the Service, we automatically collect certain data relating to the performance and configuration of our Service and our Subscribers' and
Authorized Users' consumption, use of, and interaction with the Service (collectively, "Service Data"). While Service Data usually does not involve personal
information, it may include such data in the following instances:
Technical information or data from either application programming interfaces ("APIs"), hosting services, Internet of Things ("loT") sensors or devices, or
other products, services or devices that access our Service, including relevant log files;
Data and metadata about an Authorized User (user ID, email, IP address, device information, browser information or operating system; and
Data and metadata about an Authorized User's activities and behavior within our Service, such as click patterns and feature use.
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Service Data is used by Company for (a) providing, supporting and operating our products and services, (b) network and information security and (c) to
analyze, develop and improve our products and services.
Information We Receive from Third Parties
From time to time, we may obtain information about you from third party sources, such as public databases and websites, resellers and distributors, joint
marketing or business partners, security and fraud detection firms and social media platforms. Examples of the information we may receive from other
sources include: account information; page -view information; contact information from business partners with whom we operate co -branded events,
services and marketing campaigns or joint offerings; search results and links, including paid listings (like sponsored links); and if relevant, credit history
information from credit bureaus.
Links to Third Party Websites
If you log onto or link to our Services through a social media site, certain information about you will be transferred from the social media site to our
Services. In addition, the fact that you have linked onto our Services and some of that transferred information may be available to other users via the
social media site. That information is subject to the privacy policies of any such social media site and you should review those policies before using a social
media site to log onto or link to the Services. Any transferred information received in our Services will otherwise be subject to the terms of this Policy.
You may be able to use social media widgets such as the Facebook 'Like' button on our Platform. These widgets will collect your IP address and identify
which page you are visiting on our Platform, and make your preference information available to third parties. The information collected by such widgets
is controlled by third party privacy policies.
Target Online Advertisements
We use one or more third party service providers to serve ads on the Service and/or other websites. These third parties may automatically collect and use
certain information about your online activities, either in our Services or other websites, such as your IP address, your ISP and the browser you are using.
They do this using cookies, clear gifs and similar tracking technologies. Information collected may be used, alone or in combination with information about
you that we obtain from other sources (like our data partners and offline customer data). This information is used mainly to deliver advertising targeted
to your interests, including serving ads related to our products or services when you access and use other websites and to better understand the usage of
the Service tracked by these third parties.
This Policy does not apply to, and we are not responsible for, cookies or clear gifs in third party ads, and we encourage you to check the privacy policies
of advertisers and/or ad services to learn about their use of cookies and other technology. If you would like more information about the practice used by
these companies, please visit www.aboutads.info/choices.
Use of Information We Collect
We use personal information collected via the Services and through other means (e.g., in person) for purposes described in this Policy, including using
your information to:
• Operate, audit and improve our Services;
• Provide customer service and support;
• Provide and to facilitate the delivery of products and services you request;
• Send you related information, including confirmations, invoices, technical notices, updates, security alerts, training and support and
administrative messages;
• Maintain your Account;
• Enhance security, monitor and verify identity or service access, combat fraud, spam, malware or other network and/or information security
risks;
• Detect bugs, report errors and perform activities to maintain the quality or safety of our services;
• Conduct research and development;
• Understand you and your preferences to enhance and personalize your experience and enjoyment when using our Services;
• Develop and send you marketing, sales and promotional communications (where this is in accordance with your marketing preferences);
• Communicate with you about one of our events or our partner events, including webinars and demos;
• Respond to your comments or questions or provide information requested by you;
• Link or combine it with other personal information we get from third parties, to help understand your needs, provide you with better service
and to prevent fraud;
• Process and deliver contest entries and rewards;
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• Display and measure engagement with advertisements across different devices and websites;
• Maintain legal and regulatory compliance; and
• Process your information for other legitimate business purposes, such as customer surveys, data analysis, audits, collecting and assessing
feedback, identifying usage trends, determining the effectiveness of our marketing campaigns and to evaluate and improve our products,
services, marketing and customer relationships.
We may store and process personal information in the United States and other countries.
Sharing of Personal Information
We do not share your personal information with third parties other than as follows:
• Where it has been de -identified, including through aggregation or anonymization;
• When you instruct us to do so;
• With your consent, for example, when you agree to our sharing your information with other third parties for their own marketing purposes
subject to their separate privacy policies;
• With Company affiliates, in such case the information will be processed as otherwise described in this Policy;
• With third party vendors, consultants and other service providers who work for us and need access to your information to do that work.
Examples include vendors and service providers who provide assistance with marketing, billing, processing credit card payments, data analysis,
fraud prevention, network and information security, technical support and customer service;
• With third party business partners, such as delivery and/or referral partners, who are involved in providing services to our prospects and/or
customers, to fulfill product and information requests and to provide customers and prospective customers with information about our
Company and its Services. From time to time, we may engage in joint sales or product promotions with select business partners. If you purchase
or specifically express an interest in a partner promotion or service, we may share relevant personal information with those partner(s). Where
you have given your consent to do so, these business partners may send you marketing communications about their own products and services.
In those circumstances, our partners are responsible for managing their own use of the personal information collected in these circumstances.
We recommend you review the partner's privacy notices to find out more about their handling of your personal information.
• To comply with laws or to respond to lawful requests and legal process, to protect our rights and property and that of our agents, customers,
members and others including to enforce our agreements, policies and terms of use or in an emergency to protect the personal safety of any
person;
• In order to protect any individual's vital interests, but only where we believe it necessary in order to protect the vital interests of any person;
and
• In connection with or during negotiation of any business transfer, merger, financing, acquisition, or dissolution transaction or proceeding
involving sale, transfer, divestiture or disclosure of all or a portion of our business or assets to another company.
Security of Personal Information
We take all reasonable steps to protect your personal information to prevent loss, misuse, unauthorized access, disclosure, alteration or destruction. We
use appropriate technical and organizational measures to protect your personal information, including: physical access controls, encryption, firewalls,
intrusion detection and network monitoring appropriate to the type and scope of data processing. This information is held in confidence.
The safety and security of your personal information also depends on you. When we have given you (or when you have chosen) a password for access to
certain parts of our Service, you are responsible for keeping that password confidential. We ask you not to share your password with anyone. You are
responsible for compliance with our privacy and security recommendations.
International Data Transfers
Your personal information may be transferred to, and processed in, countries other than the country in which you are resident. These countries may have
data protection laws that are different to the laws of your country, and in some cases, may not be as protective. Specifically, our website servers are
located in the U.S. and we may process your information in jurisdictions where our affiliates/partners and third -party service providers are located. Our
affiliate locations are set forth in the Subprocessor document.
We have taken appropriate safeguards to require that your personal information remain protected in accordance with this Policy. These safeguards include
the protections under the European Commission's Standard Contractual Clauses for transfers of personal information between us and others where the
personal information the European Economic Area (EEA), United Kingdom or Switzerland personal information is covered by applicable data protection
laws.
Take note, we have also certified to comply with the Privacy Shield Principles for limited international data transfers from the EEA, United Kingdom and
Switzerland, where: 1) we act as a processor on behalf of business customers based in the EEA, United Kingdom and Switzerland, and 2) where we act as
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a controller regarding Company human resources and internal business operations data from the EEA, United Kingdom and Switzerland. For more
information, please see our Privacy Shield Statement.
Your Choices and Correcting Your Information
As a Subscriber or Authorized User, you can review and change your personal information by logging into our Service and visiting your account profile
page.
For use of the Services other than our SaaS Services, you may opt out of receiving promotional emails from us by following the instructions in those emails.
If you opt out, we may still send you non -promotional emails, such as emails about your accounts or our ongoing business relations.
If you are looking to exercise your consumer rights under the California Consumer Privacy Act (CCPA), please refer to the California Residents: CCPA
Consumer Rights statement for more information.
If you are looking to exercise your data subject rights under the General Data Protection Regulation (GDPR), please use the corresponding form(s) found
in the EEA, UK and Switzerland Users: Your Privacy Rights statement.
Schools Receiving Funds from the U.S. Department of Education
In the United States, the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy
of student education records. FERPA gives parents certain rights with respect to their children's education records, which transfer to the student when
he/she reaches the age of 18 or attends a school beyond the high school level. Any United States academic institution that is subject to FERPA must assess
for themselves whether and how its use of a cloud service affects its ability to comply with FERPA requirements. Company commits to 1) using Subscriber
Data only to provide organizations with our cloud services and does not mine Subscriber Data for advertising, 2) not disclose Subscriber Data except as
the educational institution directs, as described in the Agreement, or as required by law and 3) not require sensitive student information or student
educational records to support any application functionality or feature. Company advises educational institutions against sharing education record
information in our Services, including first and last names, because inclusion has no relevance. Further, an assigned student identification numbers shall
afford the same usability of our Services.
Children Under the Age of 13
In the United States, websites and/or online applications and services that are collecting information from children under the age of 13 are required to
comply with U.S. Federal Trade Commission (FTC) Children's Online Privacy Protection Act (COPPA). Our Services are not intended for children under 13
years of age, and no one under age 13 may provide any information to the Services. We do not knowingly collect personal information from children
under 13. If you are under 13, do not use or provide any information into our Services, make any purchases through the Service, use any of the interactive
or public comment features of the Service or provide any personal information about yourself to us, including any screen name or user name you may
use. If we learn we have collected or received personal information from a child under 13 without verification of parental consent, we will delete that
information. If you believe, we might have any information from or about a child under 13, please contact us.
US Private Health Information for Healthcare Providers
The use of our Services do not require the use of Private Health Information ("PHI") under applicable US laws. In fact, we recommend that our healthcare
Subscribers keep all PHI out of the services when they are entering their own data. The United States Health and Human Services has
issued guldellneS for healthcare providers that define a Business Associate; our company is not within the definition of a Business Associate because
our software does not involve the use or disclosure of protected health information on behalf of, or provide services to, a covered entity. Despite this,
sometimes our Subscribers have operational practices that require deems the use of a business associate agreement ("BAA"). In this limited cases, we
are able to use our standard business associate's agreement, as drafted.
Data Retention
We retain personal information we collect from you where we have an ongoing legitimate business need to do so (for example, to comply with applicable
legal, tax or accounting requirements, to enforce our agreements or comply with our legal obligations).
When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it or, if this is not possible
(for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate
it from any further processing, until deletion is possible.
When processing Subscriber Data on behalf of our Subscribers, we will retain Subscriber Data for as long as the Subscriber instructs us to and/or as
required by applicable law.
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Changes to Our Privacy Policy
We post all changes we make to our privacy policy on our Company webpage. The date the privacy policy was last revised is identified at the top of the
page. You are responsible for periodically visiting our Services and this privacy policy to check for any changes. In the event you do not accept any material
changes to our privacy policy, you may terminate this Agreement in accordance with Section 5.2. We are committed to security and the protection of
your personal information and we will not materially change our policies and practices to make them less protective of your personal information collected
in the past without your consent.
How to Contact Us
To ask questions or comment about this privacy policy and our privacy practices, contact us at: privacy@brightlysoftware.com or Brightly Software, Inc.,
11000 Regency Parkway, Suite 300, Cary, North Carolina 27518 USA.
The following Additional Information about our privacy policy is available at the following addresses:
Privacy Shield Statement: https://www.brightlysoftware.com/sites/default/files/file/2022-05/Brightly Privacy Shield - May 5 2022.pdf
California Residence Privacy Rights: https://www.brightlysoftware.com/sites/default/files/file/2022-03/Brightly Privacy_CCPA_revMar2022.pdf
AntiSlavery and Human Trafficking Policy: https://www.brightlysoftware.com/sites/default/files/file/2022-03/Brightly
Privacy_AntiSlavery_revMar2022.pdf
Subprocessor Listing: https://www.brightlysoftware.com/sites/default/files/file/2022-09/Brightly Privacy_SubProcessors_revSep2O22.pdf
Cookie Policy: https://www.brightlysoftware.com/sites/default/files/file/2022-03/Brightly Privacy Cookie Statement_revMar2022.pdf
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