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Software as a Service Agreement
This Software as a Service Agreement (this “Agreement”) is entered into by and between ____________
(“Customer”) and GovernmentJobs.com, Inc. (D/B/A/ NEOGOV), parent company of PowerDMS, Inc., CueHit, Inc.,
Ragnasoft LLC (D/B/A/ PlanIT Schedule), and Design PD, LLC (D/B/A Agency360) (collectively, “NEOGOV”), effective
as of the latest date shown on the signature page of this Agreement (the “Effective Date”). In consideration of the
parties’ mutual promises contained in this Agreement, the parties, intending to be legally bound, agree as follows:
1.
Definitions; Construction
1.1. Definitions.
“Agreement” means this Software as a Service
Agreement.
“Customer Data” means electronic data and
information submitted by or for Customer to
NEOGOV in connection with the Services.
“Government Customer” means a Customer which is
a (a) U.S. Federal agency, (b) state government,
agency,
department,
or political
subdivision
(including a city, county or municipal corporation), or
(c) instrumentality of any of the foregoing (including
a municipal hospital or municipal hospital district,
police or fire department, public library, park district,
state college or university, Indian tribal economic
development organization, or port authority).
“Intellectual Property Rights” means all trade
secrets,
United
States
patents
and
patent
applications, trademarks (whether registered or
unregistered and including any goodwill acquired in
such trade marks), service marks, trade names,
copyrights, moral rights, database rights, design
rights, rights in know-how, rights in Confidential
Information, rights in inventions (whether patentable
or not) and all other intellectual property and
proprietary
rights
(whether
registered
or
unregistered, any application for the foregoing, and
all rights to enforce the foregoing), and all other
equivalent or similar rights which may subsist
anywhere in the United States.
“Malicious Code” means code, files, scripts, agents or
programs intended to do harm, including, for
example, viruses, worms, time bombs and Trojan
horses.
“NEOGOV
Technology”
means
the
software
applications,
tools,
application
programming
interfaces (APIs), connectors, programs, networks
and equipment that NEOGOV uses to make its
software as a service subscription products and
related services available to its customers.
“Service Order” means an ordering document issued
by NEOGOV and executed by Customer, whether or
not designated a "Service Order", specifying the
Services the Customer is purchasing from NEOGOV,
as such Service Order may be amended from time to
time as mutually agreed by the Customer and
NEOGOV. Service Orders shall not include Customer’s
purchase order forms.
“Services” means the NEOGOV software as a service
(SaaS) subscription products and/or professional
services described in one or more Service Orders
executed by the Customer.
“Subscription Term” means the period of time
identified on each Service Order, for which NEOGOV
has committed to provide, and Customer has
committed to pay for, the Services.
“Users” means an individual who is an employee or
independent contractor of Customer who has been
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authorized by Customer to use the Services, for
whom Customer has purchased a subscription, and to
whom Customer (or, when applicable, NEOGOV at
Customer's request) has supplied a user identification
and password.
“Volunteered Data” shall include any and all
suggestions,
enhancement
requests,
recommendations, corrections or other feedback
provided by Customer or its Users relating to the
Services or the NEOGOV Technology as well as any
portion of the Customer Data that the Customer
submits into the NEOGOV Services or otherwise
unambiguously identifies through the Services as
being made freely available to NEOGOV or other
NEOGOV customers. Volunteered Data shall not
include Protected Health Information (PHI), data
applicable to or regulated by the Payment Card
Industry–Data
Security
Standards
(PCI-DSS),
Personally Identifiable Information (PII), or personal
data of data subjects within the European Union (EU),
European Economic Area (EEA), or Switzerland.
1.2. Construction. This Agreement applies to the provision of all Services. The parties will enter into one or more
Service Orders that contain additional terms and conditions applicable to the provision of certain Services. Upon
execution by the Customer (or upon becoming effective under Section 7.3), each Service Order will be incorporated
into this Agreement. In the event of any conflict between the provisions of this Agreement and any Service Order,
the provisions of the Service Order will prevail, but only to the extent of such conflict.
2.
Services
2.1. Services. NEOGOV will (a) make the Services available to Customer and Customer's Users pursuant to this
Agreement and any applicable Service Orders, (b) provide applicable standard support for the Services at no
additional charge (or such other level of support specified in a Service Order), (c) use commercially reasonable
efforts, using applicable current industry practices, to ensure the Services do not contain or transmit any Malicious
Code, and (d) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week,
except for planned downtime (of which NEOGOV will give advance notice).
2.2. Subscriptions. Unless otherwise provided in the applicable Service Order, Services are purchased as
subscriptions. If Customer elects to increase the number of Users permitted to use the Services pursuant to a
subscription, fees for the additional Users will be calculated at the same per User pricing as the underlying
subscription and will be prorated for the portion of that subscription term remaining at the time the additional Users
are added. Any such modification to a subscription will be confirmed in writing by Customer, and both NEOGOV and
Customer shall be subject to the terms of this Agreement with respect to the additional Users and any new Services
purchased in connection with such modification.
2.3. Customer Responsibilities. Customer will be responsible for (a) ensuring Customer and its Users comply
with terms and conditions of this Agreement and each Service Order, (b) the accuracy, quality and legality of the
Customer Data, the means by which the Customer obtained the Customer Data and Customer's use of the Customer
Data in connection with the Services, (c) using reasonable efforts to prevent unauthorized access to or use of
Services, and provide prompt notice to NEOGOV of any unauthorized access or use, (d) using the Services only in
accordance with this Agreement, any applicable Service Orders and applicable laws and government regulations,
and (e) allocating the necessary resources and personnel to cooperate with NEOGOV staff in a timely manner to
allow the Services to perform.
2.4. Restrictions. Customer acknowledges that NEOGOV does not pre-screen, verify, or endorse the content of
the Customer Data that Customer or its Users stores or transmits via the Services. Customer will not, and will ensure
its Users do not (a) make any of the Services available to anyone other than Users or use any Services for the benefit
of anyone other than Customer and its Users, unless otherwise agreed in writing by the parties, (b) sell, resell, license,
sublicense, distribute, make available, rent or lease any of the Services, or include any of the Services in a service
bureau or outsourcing offering, unless otherwise agreed in writing by the parties, (c) use the Services to store or
transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation
of the privacy rights, publicity rights, copyright rights, or other rights of any person or entity, (d) use the Services to
store or transmit Protected Health Information (PHI), unless otherwise agreed in writing by the parties, (e) use the
Services to store, transmit or process the personal data of data subjects within the European Union (EU), European
Economic Area (EEA), Switzerland or the United Kingdom unless otherwise agreed in writing by the parties, (f) use
the Services to store or transmit data applicable to or regulated by the Payment Card Industry – Data Security
Standards (PCI-DSS), (g) use the Services to store or transmit Malicious Code, (h) interfere with or disrupt the
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integrity or performance of the Services (including, without limitation, activities such as security penetration tests,
stress tests, and spamming activity), (i) attempt to gain unauthorized access to the Services or its related systems or
networks, (j) modify, copy, or create derivative works based on the Services or any part, feature, function or user
interface thereof, (k) frame or mirror any part of the Services, other than framing on Customer’s own intranets or
otherwise for Customer’s own internal purposes, (l) access the Services for the purpose of building, selling or
marketing a competitive product or service or copying any NEOGOV Technology, (m) remove the copyright,
trademark, or any other proprietary rights or notices included within NEOGOV Technology and on and in any
documentation or training materials, (n) disassemble, reverse engineer, or decompile the Services, including
NEOGOV Technology or otherwise attempt to obtain or perceive the source code of NEOGOV Technology, or (o) use
the Services in a manner which violates any applicable laws.
2.5. Infringing or Restricted Content. NEOGOV reserves the right to delete or disable content stored, transmitted
or published by Customer using the Services upon receipt of a bona fide notification that such content infringes upon
the Intellectual Property Rights of others, or if NEOGOV otherwise reasonably believes any such content is in
violation of Section 2.4.
2.6. Modifications to Services. The Services may be modified by NEOGOV from time to time as it deems
necessary to address changes in technology and the needs of its customers, provided that any such modification will
not degrade the functionality of the Services in any material manner, unless required by applicable law. NEOGOV
will notify Customer in advance of any material modifications.
2.7. Third Party Services. The Services may permit Customer and its Users to access services or content provided
by third parties through the Services (“Third Party Services”). Customer agrees that NEOGOV is not the original
source and shall not be liable for any inaccuracies contained in any content provided in any of the Third Party
Services. NEOGOV makes no representations, warranties or guarantees with respect to the Third Party Services or
any content contained therein. NEOGOV may discontinue access to any Third Party Services through the Services if
the relevant agreement with the applicable third party no longer permits NEOGOV to provide such access. If loss of
access to any Third Party Services (to which Customer has a subscription under this Agreement) occurs during a
Subscription Term, NEOGOV will refund to Customer any prepaid fees for such Third Party Services covering the
remainder of the Subscription Term.
3. Proprietary Rights and Licenses
3.1. Limited License to Use Services. Subject to the terms and conditions of this Agreement, NEOGOV hereby
grants to Customer a non-exclusive, non-transferable, limited, royalty-free license, without right to sub-license, for
the term of each Service Order, to access and use, and to permit its Users to access and use, the Services, solely for
Customer’s operations in its ordinary course of business.
3.2. Limited License to Use Customer Data. Customer hereby grants to NEOGOV a non-exclusive, non-
transferable, limited, royalty-free license, without right to sub-license (except to its sub-processors, as required for
the provision of the Services), to aggregate, compile, transmit, and otherwise use the Customer Data, as necessary
to perform the Services, to create Statistical Data and Anonymized Data for the purposes described in 3.3 below and
as otherwise may be agreed in writing by Customer.
3.3. Statistical Data and Anonymized Data. NEOGOV tracks and collects certain information about how Users
use the Services and uses the information collected to obtain general statistics regarding the use of the Services and
to evaluate how Users use and navigate the Services (collectively, “Statistical Data”). NEOGOV may use Statistical
Data for NEOGOV’s internal analytical purposes, including the improvement and enhancement of the Services and
NEOGOV's other offerings. At times, NEOGOV may review the Statistical Data of multiple customers and may
combine, in a non-personally-identifiable format, the Statistical Data with Statistical Data derived from other
customers and users to create aggregate, anonymized data regarding usage history and statistics (collectively,
“Anonymized Data”). Anonymized Data will not contain information that identifies or could be used to identify
Customer or its Users. Customer agrees that Anonymized Data is not Confidential Information of Customer.
NEOGOV may use Anonymized Data to create reports that it may use and disclose for NEOGOV’s commercial or
other purposes.
3.4. Reservation of Rights. No rights or licenses are granted except as expressly set forth herein. Without limiting
the foregoing, subject to the limited rights expressly granted in this Section 3, all right, title and interest (including
all related Intellectual Property Rights) in and to (a) the Services and the NEOGOV Technology is retained by
NEOGOV, and (b) the Customer Data is retained by Customer.
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3.5. Feedback and Volunteered Data. Customer grants NEOGOV a worldwide, perpetual, irrevocable, royalty-
free license to use, disclose, reproduce, license or otherwise distribute and incorporate into the Services and the
NEOGOV Technology any “Volunteered Data”.
3.6. Federal Government Use. If the Services or the NEOGOV Technology are made available to a federal
government end user, for ultimate federal government end use, technical data and software rights related to the
Services include only those rights customarily provided to the public as specified in this Agreement.
4.
Fees
4.1. Fees. Customer will pay NEOGOV all fees specified in a Service Order. Except as otherwise specified in this
Agreement or in a Service Order, payment obligations are non-cancelable, and fees paid are non-refundable, and
quantities purchased cannot be decreased during the relevant Subscription Term.
4.2. Payment Terms. Each Service Order shall specify the fees applicable to the Subscription Term. Except as
otherwise specified in a Service Order, fees are billed annually in advance of each year of the Subscription Term, but
regardless of the billing cycle, Customer is responsible for the fees for the entire Subscription Term. Fees are due
within thirty (30) days from the date of the invoice referencing such Service Order.
4.3. Customer Purchase Orders. Except as otherwise specified in a Service Order, Customer will not require any
purchase order to pay fees due or otherwise to perform its obligations with respect to any Service Order. Any
reference to a purchase order in a Service Order or any associated invoice is solely for Customer's convenience in
record keeping, and no such reference or any delivery of services to Customer following receipt of any purchase
order shall be deemed an acknowledgement of or an agreement to any terms or conditions referenced or included
in any such purchase order or in any way be deemed to modify, alter, supersede or supplement any Service Order
or this Agreement.
4.4. Taxes. The fees set forth in each Service Order do not reflect 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”). Customer is responsible for paying all Taxes
associated with Customer's purchase and use of Services, excluding any taxes based upon NEOGOV’s personal
property ownership or net income. If NEOGOV has the legal obligation to pay or collect Taxes for which Customer is
responsible under this Section 4.4, NEOGOV will invoice Customer for, and Customer will promptly pay, the amount
of such Taxes unless Customer provides NEOGOV with a valid tax exemption certificate authorized by the
appropriate taxing authority.
4.5. Overdue Charges. Any invoiced amount that is not received by NEOGOV when due as set forth in a Service
Order will be subject to a late payment fee of 1.5% per month or the maximum rate permitted by law, whichever is
lower.
4.6. Suspension of Services. If any amount owing by Customer is more than 30 days overdue, NEOGOV may,
without limiting its other rights and remedies, suspend the Services until such amounts are paid in full.
4.7. Payment Disputes. NEOGOV will not exercise its rights under Section 4.5 or 4.6 so long as Customer is
disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
5.
Confidentiality
5.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a
party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as
confidential or that reasonably should be understood to be confidential given the nature of the information and the
circumstances of disclosure. Customer's Confidential Information includes its Customer Data. NEOGOV Confidential
Information includes the NEOGOV Technology and the Services. The Confidential Information of each party includes
the terms and conditions of this Agreement and all Service Orders (including pricing), as well as business and
marketing plans, technology and technical information, product plans and designs, and business processes disclosed
by such party. However, Confidential Information does not include any information that (a) is or becomes generally
known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving
Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c)
is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently
developed by the Receiving Party.
5.2. Obligations. The Receiving Party will use the same degree of care it uses to protect the confidentiality of its
own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential
Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise
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authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to
those of its employees and contractors who need access for purposes consistent with this Agreement and who have
signed confidentiality agreements with the Receiving Party containing protections not less protective of the
Confidential Information than those herein.
5.3. Exceptions. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent
compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled
disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing
Party wishes to contest the disclosure.
5.4. Equitable Relief. The parties recognize and agree there is no adequate remedy at law for breach of the
provisions of the confidentiality obligations set forth in this Section 5, that such a breach would irreparably harm the
Disclosing Party and the Disclosing Party is entitled to seek equitable relief (including, without limitation, an
injunction) with respect to any such breach or potential breach in addition to any other remedies available to it at
law or in equity.
6.
Customer Data
6.1. Data Protection. NEOGOV will maintain administrative, physical, and technical safeguards for protection of
the security, confidentiality and integrity of the Customer Data. Those safeguards will include, but will not be limited
to, measures for preventing access, use, modification or disclosure of Customer Data by NEOGOV personnel except
(a) to provide the Services and prevent or address service or technical problems, (b) as compelled by applicable law,
or (c) as Customer expressly permits in writing. Customer acknowledges and agrees that it is commercially
reasonable for NEOGOV to rely upon the security processes and measures utilized by NEOGOV's cloud infrastructure
providers.
6.2. Data Breach Notification. NEOGOV will notify Customer of unauthorized access to, or unauthorized use,
loss or disclosure of Customer Data within custody and control (a “Security Breach”) within 72 hours of NEOGOV’s
confirmation of the nature and extent of the same or when required by applicable law, whichever is earlier. Each
party will reasonably cooperate with the other with respect to the investigation and resolution of any Security
Breach. Except to the extent required otherwise by applicable law, Customer will have approval rights on notifying
any third-party regulatory authority of the Security Breach. If applicable law or Customer’s policies require
notification of its Users or others of the Security Breach, Customer shall be responsible for such notification.
6.3. Data Export, Retention and Destruction. Customer may export or delete Customer Data from the Services
at any time during a Subscription Term, using the existing features and functionality of the Services. Customer is
solely responsible for its data retention obligations with respect to Customer Data. If and to the extent Customer
cannot export or delete Customer Data stored on NEOGOV's systems using the then existing features and
functionality of the Services, NEOGOV will, upon Customer's written request, make the Customer Data available for
export by Customer or destroy the Customer Data. If Customer requires the Customer Data to be exported in a
different format than provided by NEOGOV, such additional services will be subject to a separate agreement on a
time and materials basis. Except as otherwise required by applicable law, NEOGOV will have no obligation to
maintain or provide any Customer Data more than ninety (90) days after the expiration or termination of this
Agreement.
7.
Term; Termination
7.1. Term of Agreement. Subject to earlier termination as provided below, this Agreement begins on the
Effective Date and continues for as long as any Subscription Terms are in effect.
7.2. Termination for Breach. A party may terminate this Agreement or any Service Order (a) upon 30 days
written notice to the other party of a material breach if such breach remains uncured at the expiration of such
period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to
insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.3. Subscription Term and Renewal. The length of the Subscription Term will be as specified in the applicable
Service Order. At least 30 days prior to the expiration of a Subscription Term, NEOGOV will send a new Service Order
notifying Customer of the pricing applicable to a renewal subscription for a period equal to the expiring Subscription
Term. NEOGOV reserves the right to increase the subscription fees applicable to the renewal subscription. The new
Service Order shall be deemed to be effective if Customer (a) returns the executed Service Order to NEOGOV, (b)
remits payment to NEOGOV of the fees set forth in the invoice referencing the Service Order, or (c) the Customer or
any of its Users access or use the Services after the expiration of the previous Subscription Term.
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7.4. Effect of Termination. Upon termination of this Agreement for any reason, Customer and its Users will cease
all use of the Services and, except for NEOGOV's right to receive accrued but unpaid fees and as provided in Section
11.12 (Survival), all rights and obligations of the parties hereunder will automatically cease. Notwithstanding the
foregoing, termination will not affect or prejudice any right or remedy that a party possesses with respect to any
breach of this Agreement occurring on or before the date of termination. If this Agreement is terminated by
Customer in accordance with Section 7.2 (Termination for Breach), NEOGOV will refund to Customer any prepaid
fees covering the remainder of the Subscription Term after the effective date of termination.
7.5. Suspension. NEOGOV may suspend Customer’s or any User’s right to access or use any portion of the
Services if NEOGOV determines that Customer’s or Users’ use of the Services (i) poses a security risk to the Services,
NEOGOV or any third party, (ii) may adversely impact the Services, or the networks or data of any other NEOGOV
customer, business partner or service provider, (iii) does not comply with this Agreement, a Service Order or
applicable law, or (iv) may subject NEOGOV or any third party to liability. NEOGOV will endeavor to provide as much
notice as is reasonably practicable under the circumstances, and to reinstate the Services as soon as reasonably
practicable following resolution of the issue.
8.
Representation and Warranties; Disclaimers
8.1. NEOGOV. NEOGOV represents and warrants that (a) it has the full power and authority to enter into this
Agreement, to perform its obligations under this Agreement, and to grant the licenses and rights granted to
Customer in this Agreement; (b) this Agreement is the legal, valid, and binding obligation of NEOGOV, enforceable
against it in accordance with the terms hereof, except to the extent such enforceability may be limited by
bankruptcy, reorganization, insolvency or similar laws of general applicability governing the enforcement of the
rights of creditors or by the general principles of equity (regardless of whether considered in a proceeding at law or
in equity) (c) it will comply with all applicable laws relating to its performance and/or obligations under this
Agreement; (d) this Agreement does not conflict with any other contract or obligation to which it is a party or by
which it is bound, and (e) it will perform the Services in accordance with this Agreement in a timely, professional and
workmanlike manner.
8.2. Customer. Customer represents and warrants that (a) it has the full power and authority to enter into this
Agreement, to perform its obligations under this Agreement, and to grant the licenses and rights granted to
NEOGOV; (b) this Agreement is the legal, valid, and binding obligation of Customer, enforceable against it in
accordance with the terms hereof, except to the extent such enforceability may be limited by bankruptcy,
reorganization, insolvency or similar laws of general applicability governing the enforcement of the rights of creditors
or by the general principles of equity (regardless of whether considered in a proceeding at law or in equity); (c) this
Agreement does not conflict with any other contract or obligation to which it is a party or by which it is bound; and
(d) it will comply with all applicable laws relating to its performance and/or obligations under this Agreement.
8.3. Disclaimer of Implied Warranties. THE WARRANTIES SET FORTH IN SECTION 8.1 AND 8.2 ARE LIMITED
WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY NEOGOV AND CUSTOMER, HEREUNDER, RESPECTIVELY.
EACH OF NEOGOV AND CUSTOMER EXPRESSLY DISCLAIMS, AND THE OTHER PARTY HEREBY EXPRESSLY WAIVES, ALL
OTHER WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT,
INCLUDING THE SERVICES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-
INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OPERATION, UNINTERRUPTED ACCESS, THAT
THE SERVICES ARE SECURE, OR THAT THE SERVICES WILL BE AVAILABLE CONSTANTLY AND IN AN UNINTERRUPTED
MANNER AND ANY OTHER IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR COURSE OF
PERFORMANCE. IN ADDITION, ALL THIRD-PARTY OFFERINGS ARE PROVIDED “AS-IS” AND ANY REPRESENTATION OR
WARANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER.
NEOGOV MAKES NO WARRANTY THAT THE SERVICES WILL COMPLY WITH THE LAWS (INCLUDING WITHOUT
LIMITATION ANY LAWS RESPECTING DATA PRIVACY) OF ANY JURISDICTION OUTSIDE OF THE UNITED STATES OF
AMERICA.
9.
Indemnification
9.1. By NEOGOV. NEOGOV will defend Customer from and against any claim, demand, suit or proceeding made
or brought against Customer by a third party alleging that the Services infringe or misappropriate such third party’s
Intellectual Property Rights, provided NEOGOV is promptly notified of any and all such claims, demands, suits or
proceedings and given reasonable assistance and the opportunity to assume sole control over defense and
settlement. The foregoing obligations do not apply with respect to any infringement resulting from the modification
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of the Services or combination of the Services with software, hardware, data, or processes not provided by NEOGOV,
the continued use of the Services by Customer after being notified of the alleged infringement or after being
informed of modifications that would have avoided the infringement, or Customer’s use of the Services in violation
of this Agreement or the applicable Service Order.
9.2. By Customer. To the extent permitted by applicable law, Customer will defend NEOGOV from and against
claim, demand, suit or proceeding made or brought against NEOGOV (a) by a third party alleging that any Customer
Data infringes or misappropriates such third party's Intellectual Property Rights, (b) in connection with Customer’s
violation of any applicable laws, or (c) in connection with a dispute between a User and Customer, in each case
provided that Customer is promptly notified of any and all such claims, demands, suits or proceedings and given
reasonable assistance and the opportunity to assume sole control over defense and settlement.
9.3. Mitigation. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to
be or are believed by NEOGOV to be infringing, NEOGOV may, at its option and expense (a) replace or modify the
Services to be non-infringing provided that such modification or replacement contains substantially similar features
and functionality, (b) obtain for Customer a license to continue using the Services, or (c) if neither of the foregoing
is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a
refund of any prepaid, unused fees for the Services.
9.4. Exclusive Remedy. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s
exclusive remedy against, the other party for any type of claim described in this Section 9.
10. Limitation of Liability.
10.1.
Exclusion of Certain Claims. REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS
AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL EITHER PARTY HAVE ANY
LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, COST OF COVER OR SUBSTITUTE SERVICES,
PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS
AGREEMENT, INCLUDING LOSS OF BUSINESS, REVENUE OR ANTICIPATED PROFITS, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, NEOGOV SHALL NOT BE LIABLE FOR THE CRIMINAL
ACTS OF THIRD PARTIES.
10.2.
Limitation of Liability. EXCEPT WITH REGARD TO LIABILITY FOR THE INDEMNITY OBLIGATIONS
UNDER SECTION 9 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS
AGREEMENT WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE SUM OF ALL
AMOUNTS REQUIRED TO BE PAID BY CUSTOMER TO NEOGOV IN CONNECTION WITH THIS AGREEMENT IN THE 12
MONTH PERIOD PRECEDING THE DATE OF THE EVENT INITIALLY GIVING RISE TO SUCH LIABILITY. THE PARTIES
ACKNOWLEDGE THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN
THE PARTIES AND THAT IN THE ABSENCE OF SUCH LIMITATIONS, THE PRICING AND OTHER TERMS SET FORTH IN
THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
11.
General Provisions
11.1.
Entire Agreement. This Agreement, Exhibit A (if applicable), Exhibit B (if applicable) and any Service
Orders executed by Customer (or deemed effective under Section 7.3) constitute the entire agreement and
understanding between the parties with respect to the subject matter hereof and supersede all prior or
contemporaneous written, electronic or oral communications, representations, agreements or understandings
between the parties with respect thereto. Any Service Order executed or amended, or any Subscription Term
specified in any Service Order which is renewed or otherwise extended, shall be subject to the terms and conditions
of this Agreement. Except for the terms of any Service Order executed by Customer, any additional, supplementary
or conflicting terms supplied by either party (whether in hard copy or electronic form), including those contained or
referenced in any invoice, purchase order or policies, are expressly rejected by each party and shall serve only the
purpose of identifying the products or services ordered.
11.2.
Government Entity Addendum. If Customer is a Government Customer, the Government Customer
Addendum (attached hereto as Exhibit A) is hereby incorporated into the Agreement.
11.3.
PowerEngage Platform Addendum. If Customer is purchasing the PowerEngage Platform pursuant
to a Service Order, the PowerEngage Platform Addendum (attached hereto as Exhibit B) is hereby incorporated into
the Agreement.
11.4.
No Waiver. The failure of a party to enforce any right or provision in this Agreement will not
constitute a waiver of such right or provision.
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11.5.
Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except
with NEOGOV’s prior written consent. NEOGOV may assign this Agreement without Customer’s consent to a parent,
subsidiary, an acquirer of all or substantially all of the assets of NEOGOV or a successor by merger or other business
combination. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
11.6.
Severability. If any provision of this Agreement is held invalid or unenforceable by any court of
competent jurisdiction, such provision will be deemed stricken from the Agreement and the remaining provisions of
this Agreement will remain in full force and effect.
11.7.
Relationship of Parties. No agency, partnership, joint venture, or employment is created as a result
of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever.
11.8.
Publicity. Unless otherwise provided in the applicable Sales Order, NEOGOV may identify Customer
as one of its customers and use Customer’s logo for such purposes, subject to any trademark usage requirements
specified by Customer.
11.9.
No Third Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
11.10.
Resolution of Disputes. In the event of a dispute between the parties regarding this Agreement,
the parties agree to select a mutually agreeable, neutral third party to help them mediate any dispute that arises
under the terms of this Agreement. The parties agree that they shall share equally the cost of the mediation filing
and hearing fees and the cost of the mediator; however, each party shall bear its own attorney's fees and associated
costs and expenses. If the mediation fails to resolve the dispute, the parties agree that the dispute shall be settled
by a single arbiter by binding arbitration in accordance with the commercial arbitration rules of the American
Arbitration Association. Any arbitration award shall be final, binding and conclusive upon the parties and a judgment
rendered thereon may be entered in any court having jurisdiction thereof. Except as may be prohibited by law, the
arbitrator may, in his or her discretion, award reasonable attorneys’ fees and other costs of arbitration to the
prevailing party. The provisions of the United Nations Convention on the International Sale of Goods shall not apply
to this Agreement.
11.11.
Notices. All notices under this Agreement will be in writing and will be deemed to have been duly
given (a) when received, if personally delivered; (b) when receipt is electronically confirmed, if transmitted by
facsimile or e-mail; (c) the day after it is sent, if sent for next day delivery by recognized overnight delivery service;
and (d) upon receipt, if sent by certified or registered mail, return receipt requested. All notices will be given using
the contact information with respect to each party set forth in the applicable Service Order or such other contact
information as may be designated by a party by giving written notice to the other party pursuant to this Section
11.10.
11.12.
Force Majeure. Neither party will be liable for failure to perform its obligations hereunder, except
the obligation to make payment due, to the extent that its performance is prevented, hindered or delayed as a result
of strikes, riots, fires, explosions, acts of God, epidemics, pandemics, acts of terrorism, war, governmental action,
labor conditions, internet service interruptions or slowdowns, vandalism or cyber-attacks, or any other cause beyond
the reasonable control of such party.
11.13.
Electronic Signatures; Counterparts. Signatures and other express indications of agreement sent
by electronic means (facsimile or scanned and sent via e-mail or signed by electronic signature service where legally
permitted) will be deemed original signatures. This Agreement may be signed in multiple counterparts, each of which
will be deemed an original and which will together constitute one agreement.
11.14.
Survival. All sections of this Agreement which by their nature should survive termination will
survive termination, including, without limitation, accrued rights to payment, acknowledgements and reservations
of proprietary rights, confidentiality obligations, warranty disclaimers, and limitations of liability.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates indicated below.
Customer
GovermentJobs,.com, Inc. (D/B/A/ NEOGOV), parent
company of PowerDMS, Inc., Cuehit, Inc., Ragnasoft LLC
(D/B/A/ PlanIT Schedule), and Design PD, LLC (D/B/A
Agency360).
_____________________________
Page | 9
Feb.2022
BY:
BY:
PRINT NAME:
PRINT NAME:
PRINT TITLE:
PRINT TITLE:
DATE SIGNED:
DATE SIGNED:
Page | 10
Feb.2022
Exhibit A
Government Customer Addendum
This Government Customer Addendum (“Addendum”) forms part of the Agreement, and in the case of any conflict
or inconsistency between the terms and provisions of this Addendum and the Agreement, the terms of this
Addendum shall control.
1. Applicability. The provisions of this Addendum shall apply only if Customer is a Government Customer
under the Agreement.
2. Termination for Non-Appropriation of Funds. If Customer is subject to federal, state or local law which
makes Customer’s financial obligations under this Agreement contingent upon sufficient appropriation of
funds by the applicable legislature (or other appropriate governmental body), and if such funds are not
forthcoming or are insufficient due to failure of such appropriation, then Customer will have the right to
terminate the Agreement at no additional cost and with no penalty by giving prior written notice
documenting the lack of funding. Customer will provide at least thirty (30) days advance written notice of
such termination. Customer will use reasonable efforts to ensure appropriated funds are available. If
Customer terminates the Agreement under this Section 2, Customer agrees not to replace the Services
with functionally similar products or services for a period of one year after the termination of the
Agreement.
3. Indemnification. If Customer is prohibited by federal, state or local law from agreeing to hold harmless or
indemnify third parties, Section 9.2 of the Agreement shall not apply to Customer, to the extent
disallowed by applicable law.
4. Open Records. If the Customer is subject to federal or state public records laws, including laws styled as
open records, freedom of information, or sunshine laws (“Open Records Laws”) the confidentiality
requirements of Section 5 of the Agreement apply only to the extent permitted by Open Records Laws
applicable to the Customer. This Section is not intended to be a waiver of any of the provisions of the
applicable Open Records Laws, including, without limitation, the requirement for the Customer to provide
notice and opportunity for NEOGOV to assert an exception to disclosure requirements in accordance with
the applicable Open Records laws.
5. Resolution of Disputes. If Customer is prevented from arbitrating a dispute as provided for in Section 11.9
of the Agreement because Customer is subject to federal, state or local law prohibiting agreeing to
binding arbitration, the arbitration provisions of Section 11.9 shall not apply, and instead, if mediation
fails to resolve the dispute, either party may initiate a legal proceeding in a court of competent
jurisdiction.
6. Cooperative Purchasing. If Customer is a Government Customer, but is not a U.S. Federal Agency or
subdivision thereof, NEOGOV agrees to allow any other state agency, department, political subdivision or
instrumentality of the state but in all cases located in the same state as the Customer (“Related Agency”)
to purchase Services under the terms of the Agreement, at the Related Agency’s discretion with the
following requirements, exceptions and limitations: (a) any purchases made by a Related Agency shall be
transactions between the Related Agency and NEOGOV; for clarity, Customer shall not be responsible for
any transactions between the Related Agency and NEOGOV, (b) the terms (including pricing) specified in
the Service Orders entered into between NEOGOV and Customer shall not be incorporated into the
transactions between the Related Agency and NEOGOV, and (c) the Related Agency will confirm in writing
it has the authority to use the Agreement for the purchase and that the use of the Agreement for the
purchase is not prohibited by law or procurement regulations or standards applicable to the Related
Agency.
Page | 11
Feb.2022
Exhibit B
PowerEngage Platform Addendum
This PowerEngage Platform Addendum (“PowerEngage Addendum”) forms part of the Agreement, and in
the case of any conflict or inconsistency between the terms and provisions of this PowerEngage
Addendum and the Agreement, the terms of this PowerEngage Addendum shall control.
1. Applicability. The provisions of this PowerEngage Addendum shall apply only if Customer has
purchased the PowerEngage Platform pursuant to a Service Order.
2. SOW. PowerDMS agrees to provide the training, configuration and support services with respect to the
PowerEngage Platform in accordance with the Statement of Work (“SOW”) available
at https://www.powerdms.com/cuehit-sow. Customer agrees to become familiar with the provisions of
the SOW and acknowledges that Customer’s cooperation is required for efficient and timely
implementation of the PowerEngage Platform.
3. CAD/RMS Assumptions. The parties agree that the fees specified with respect to the PowerEngage
Platform on the applicable Service Order do not include any additional fees that the Customer’s CAD or
RMS vendor may charge, if any. The Agreement and this Exhibit B is entered into with the mutual
assumption that the PowerEngage Platform will be able to make a connection to Customer’s CAD or RMS
replicated or reporting database directly or will be able to read from a file produced for such a purpose.
4. CAD/RMS Provisions. The definition of Confidential Information in Section 5.1 of the Agreement shall
also include any Customer CAD and/or RMS data made available to PowerDMS in connection with the
provision of the PowerEngage Hit Platform.