HomeMy WebLinkAboutContracts & Agreements_122-2024brightly
A Siemens Company
MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement, together with any addenda, (this "Agreement') shall govern Subscriber's (as defined below) access and use of the
Cloud Services (as defined below) provided by Brightly Software ("Company"). This Agreement may be accepted by either clicking a box indicating acceptance, by
reseller purchase, by executing an Order that references this Agreement or by otherwise accessing or using an Offering. In the electronic service or Offering, Subscriber
will be prompted to accept these terms by clicking a button. Clicking the button or using any Offering indicates that Subscriber has read, understood, and accepted
this Agreement. If Subscriber does not accept, Subscriber must not use any Offering and must return any Offering to Company or its authorized reseller or partner
prior to use.
IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE INDIVIDUAL REPRESENTS
THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERMS
"ACCOUNT" OR "SUBSCRIBER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY
OR DOES NOT AGREE WITH THE TERMS AND CONDITIONS SET FORTH HEREIN, THE INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE OFFERING.
Section 1.0 Ordering and Use of Offerings
1.1 Company Cloud Service; Subscriber -Hosted Software.
(a) Company Cloud Service. Unless otherwise specified on an applicable Order, an Offering of Cloud Service shall be provided as Company -hosted, online cloud
service. Company grants Subscriber a non-exclusive and non -transferable right to access and use the Offering for Subscriber's internal business purposes during the
Subscription Term solely in accordance with this Agreement.
(b) Subscriber -Hosted Software. Where an applicable Order sets forth a Subscriber -Hosted Software Offering, subject to the provisions of this Agreement,
Company grants Subscriber a non-exclusive and non -transferable license (with no right to sublicense) to install and use the Offering for the Subscription Term. In
respect of such Subscriber -Hosted Software Offering:
(i) Subscriber is responsible for installing and implementing the Subscriber -Hosted Software and any updates, enhancements or modifications,
except for any Professional Services set forth on an applicable Order (i.e., implementation).
(ii) Subject to the terms of this Agreement, Subscriber may create copies of the Subscriber -Hosted Software to the extent strictly necessary to install
and operate the Subscriber -Hosted Software for use in accordance with this Agreement, and to create backup and archival copies to the extent reasonably
required in the normal operation of Subscriber systems. All such copies must include a reproduction of all copyright, trademarks or other proprietary
notices contained in the original copy of the Subscriber -Hosted Software.
(iii) Subscriber is responsible for providing the Environment and ensuring the Environment functions properly, and for implementing appropriate
data backup and security measures. "Environment" means the systems, networks, servers, equipment, hardware, software and other material specified in
Documentation or an Order an which, or in connection with which, the Subscriber —Hosted Service will be used.
1.2 Ordering.
(a} Ordering. The parties may enter into one or more Orders under this Agreement. Each Order is binding on the parties and is governed by the terms of this
Agreement and all applicable addenda. Pursuant to an Order, Company shall grant Subscriber Account Users access or use of the Offerings during the applicable
Subscription Term, including all Content contained in or made available through the Cloud Service(s). Affiliates of either party may conduct business under this
Agreement by executing an Order that references this Agreement's terms.
(b) Account Setup. To subscribe to the Cloud Service, Subscriber must establish its Account, which may only be accessed and used by its Account Users in
accordance with any number and categories of users as set forth on the Order. To setup an Account User, Subscriber agrees to provide true and accurate information
for such Account Users. Each Account User must establish and maintain personal, non -transferable Access Credentials, which shall not be shared with, or used by, any
other individual. Subscriber must not create Account User(s) in a manner that intends to or has the effect of avoiding Fees, circumvents thresholds with the Account,
or intends to violate the Agreement. Subscriber acknowledges that Account Users that submit declarations, notifications or orders to Company are acting on
Subscriber's behalf.
(c) Subscriber Responsibilities. Subscriber agrees that it shall use the Offering(s) solely for internal business purposes, and access and use of the Cloud Service(s)
shall be limited to Account Users. Subscriber will ensure that its Account Users shall comply with Subscriber's obligations under this Agreement whether they are
accessing Cloud Services on Subscriber's behalf, at Subscriber's invitation or by invitation of a Subscriber Account User. If Subscriber becomes aware of any violation
of this Agreement by a user or any unauthorized access to any user account, Subscriber will immediately notify Company and terminate the relevant Account User or
user account's access to the Cloud Service. Subscriber is responsible for any act or failure to act by any Account User or any person using or accessing the account of a
user in connection with this Agreement. Subscriber acknowledges and agrees that Account Users who submit declarations, notifications or orders to Company are
acting on behalf of Subscriber's behalf. Further, Subscriber shall: (i)be solely responsible for the accuracy, and appropriateness of all Subscriber Data and Subscriber
Content created by Account Users using the Cloud Service; (ii) access and use the Cloud Service solely in compliance with any applicable Documentation and all
applicable laws, rules, directives and regulations (including those relating to export, homeland security, anti -terrorism, data protection and privacy); (iii) allow e-mail
notifications generated by the Cloud Service on behalf of Subscriber's Account Users to be delivered to Subscriber's Account Users; and (vi) take responsibility for the
security of Subscribers' systems, including the software on Subscriber's systems, and take commercially reasonable steps to exclude malware, viruses, spyware and
trojans from Cloud Services.
(d) Usage Restrictions. Subscriber agrees that it shall not, and shall not permit any Account User or Third Party accessing by, through or at Subscriber direction,
or on its behalf to, directly or indirectly: (i) modify, copy, create derivative works or attempt to derive the source code of the Cloud Service; (ii) assign, sublicense,
distribute or otherwise make available the Cloud Service, to any Third Party, including on a timesharing, software -as -a -service or other similar basis; (iii) share Access
Credentials or otherwise allow access or use the Cloud Service to provide any service bureau services or any services on a similar basis; (iv) use the Cloud Service in a
way not authorized in writing by Company or for any unlawful purpose; (v) use the Cloud Service to store or transmit infringing, libelous, or otherwise unlawful or
tortious material, or to store or transmit material in violation of Third Party privacy rights; (vi) attempt to tamper with, alter, disable, override, or circumvent any
security, reliability, integrity, accounting or other mechanism, restriction or requirement of the Cloud Service; (vii) remove, obscure or alter any copyright, trademark,
patentor proprietary notice affixed or displayed by or in the Cloud Service; (viii) perform Toad tests, network scans, penetration tests, ethical hacks or any other security
auditing procedures on the Cloud Service; (ix) interfere with or disrupt the integrity or performance of the Cloud Service or the data contained therein; (x) access or
use the Cloud Service in order to replicate applications, products or services offered by Company and/or otherwise build a competitive product or service, copy any
features, functions or graphics of the Cloud Service or monitor the availability and/or functionality of the Cloud Service for any benchmarking or competitive purposes;
(xi) under any circumstances, through a Third Party application, a Subscriber application or otherwise, repackage or resell the Cloud Service, or any Company Content;
(xii) store, manipulate, analyze, reformat, print, and display Company Content for personal use; and {)tiii) upload or insert code, scripts, batch files or any other form of
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scripting or coding into the Cloud Service. Notwithstanding the foregoing restrictions, in the event Subscriber has purchased a Cloud Service for Commercial Use (as
such term is defined below), Subscriber shall be permitted to use the Cloud Service to provide Third Party services in cases where such Third Parties access the Subscriber
provided applications or services, but where such Third Parties do not have the ability to install, configure, manage or have direct access to the Cloud Services. Company
hereby agrees, subject to payment of the applicable fees, to permit such use and the terms of this Agreement, including references to "Internal use" and/or "internal
business operations" shall be deemed to include and permit such use (hereafter referred to as "Commercial Use").
(e) Additional Guidelines. Company reserves the right to establish, modify, discontinue or substitute its Cloud Service offerings, general practices and limits
concerning use of the Cloud Service from time to time. Company also reserves the right to block IP addresses originating a Denial of Service (DoS) attack. Company shall
notify Subscriber should this condition exist and inform Subscriber of its action. Once blocked, an IP address shall not be able to access the Cloud Service and the block
may be removed once Company is satisfied corrective action has taken place to resolve the Issue.
(f) Use of Messaging Services. Subscriber may use Cloud Service to send emails and messages to users and third parties. Subscriber is solely responsible for
any such message and their content. Messages may be blocked, delayed, or prevented from being delivered by destination servers and other reasons outside
Company's control, and there is no warranty that messages will reach their intended destination in a given timeframe.
(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 Cloud Services prior to their general release that are labeled or communicated as "Previews". Subscriber may choose to try such Previews or not
in its sole discretion. Use of Previews is at Subscriber's sole risk and may contain bugs or errors. Subscriber may discontinue use of the Previews at any time, in its sole
discretion. Further, Company may discontinue all Previews availability at any time in its sole discretion without notice. Previews and No -Charge Offerings are provided
on an "as -is" basis and "as available" basis, without any warranties of any kind.
1.3 Proprietary Rights.
(a) All Cloud Service, non-public Documentation and Company Content are trade secrets of Company and its licensors. Company or its licensors retains all
ownership right, title, and interest in and to Brightly IP, including the Cloud Service, its Documentation and Company Content, and all corrections, enhancements,
improvements to, or derivative works thereof without limitation (collectively "Derivative Works"), and in all Brightly IP therein or thereto. To the extent any Derivative
Work is developed by Company based upon ideas or suggestions submitted by Subscriber to Company, Subscriber hereby irrevocably assigns all rights to use and
incorporate Subscriber's feedback, including but not limited to suggestions, enhancement requests, recommendations and corrections (the "Feedback") relating to the
Cloud Service, together with all Brightly IP related to such Derivative Works. Nothing contained in this Agreement shall be construed to convey to Subscriber (or to any
party claiming through Subscriber) any Brightly IP rights other than the rights expressly set forth in this Agreement. Company reserves all rights In the Offerings and
Brightly IP not expressly granted in this Agreement.
(b) Company acknowledges and agrees that Subscriber retains all ownership right, title, and interest in and to the Subscriber Data and Subscriber Content,
Including all intellectual property rights therein or thereto. Notwithstanding the foregoing, Subscriber hereby grants Company and its Affiliates a non- exclusive, royalty -
free license to access, display, copy, distribute, transmit, publish, disclose and otherwise use all or any portion of Subscriber Data and Subscriber Content to fulfill its
obligations under this Agreement. Company recommends Subscriber confirm the geographic area in which Subscriber Data will be stored, which may be outside the
country in which Subscriber is located. Subscriber will ensure that Subscriber Data can be processed and used as contemplated by this Agreement without violating any
rights of others or any laws or regulations.
(c) Subscriber acknowledges the Cloud Services may utilize, embed or incorporate Third Party software and/or tools (each, a "Third Party Tool") under a license
granted to Company by one or more applicable Third Parties (each, a "Third Party Licensor"), which licenses Company the right to sublicense the use of the Third Party
Tool solely as part of the Cloud Services. Third Party Tools shall be specified in any applicable Documentation, Offering or statement of work. In the event of a conflict
between the Third Party terms and conditions and this Agreement, the Third Party terms and conditions control with regard to the relevant Third Party Tool. Each such
sublicense is nonexclusive and solely for Subscriber's internal use and Subscriber shall not further resell, re -license, or grant any other rights to use such sublicense to
any Third Party. Subscriber further acknowledges that each Third Party Licensor retains all right, title, and interest to its applicable Third Party Tool and all
documentation related to such Third Party Tool. All confidential or proprietary information of each Third Party Licensor is Confidential Information of Company under
the terms of this Agreement and shall be protected in accordance with the terms of Section 7.
Section 2.0 Company Responsibilities
2.1 Professional Services. To the extent Professional Services are included in the applicable Order and/or described in one or more statements of work,
Subscriber agrees to abide by Company's Professional Services Addendum. Each statement of work shall be effective, incorporated into and form a part of this
Agreement when duly executed by an authorized representative of each of the parties. Each statement of work shall (i) describe the fees and payment terms with
respect to the Professional Services being provided pursuant to such statement of work, (ii) identify any work product that will be developed pursuant to such statement
of work, and (iii) if applicable, set forth each party's respective ownership and proprietary rights with respect to any work product developed pursuant to such statement
of work.
2.2 Service Levels. Company shall use commercially reasonable efforts to make the Cloud Service available 99.9% of the time for each full calendar month during
the Subscription Term, determined on twenty-four (24) hours a day, seven (7) days a week basis (the "Service Standard"). The Service Standard availability for access
and use by Subscriber(s) excludes unavailability when due to: (a) any access to or use of the Cloud Service by Subscriber or any Account User that does not strictly
comply with the terms of the Agreement or the Documentation; (b) any failure of performance caused in whole or in part by Subscriber's delay in performing, or failure
to perform, any of its obligations under the Agreement; (c) Subscriber's or its Account User's Internet connectivity; (d) any Force Majeure Event; (e) any failure,
interruption, outage, or other problem with internet service or non -Cloud Service; (f) Scheduled Downtime; or (g) any disabling,suspension, or termination of the Cloud
Service by Company pursuant to the terms of the Agreement. "Scheduled Downtime" means, with respect to any applicable Cloud Service, the total amount of time
(measured in minutes) during an applicable calendar month when such Cloud Service is unavailable for the majority of Subscribers' Account Users due to planned Cloud
Service maintenance. To the extent reasonably practicable, Company shall use reasonable efforts to provide eight (8) hours prior electronic notice of Cloud Service
maintenance events and schedule such Cloud Service maintenance events outside the applicable business hours.
2.3 Security and Data Privacy. Each party shall comply with applicable data privacy laws governing the protection of personal data in relation to their respective
obligations under thls Agreement. Where Company acts as Subscriber's processor of personal data provided by Subscriber, the data is subject to Company's Privacy
Policy, which can be viewed by clicking the "Privacy" hypertext link located within the Cloud Service. By using the Cloud Service, Subscriber accepts and agrees to be
bound and abide by such Privacy Policy. At all times during the Subscription term and upon written request of Subscriber within thirty (30) days after the effective date
of termination or expiration of this Agreement, Subscriber Content shall be available for Subscriber's export and download. In accordance with applicable data privacy
laws following that Initial period, Company shall not be obligated to maintain Subscriber Data nor Subscriber Content and may delete or destroy what remains in its
possession or control.
(a) If applicable in the United States, If Subscriber Is a "Covered Entity" under the Health Insurance Portability and Accountability Act of 1996 (as amended from
time to time, "HIPAA"), and If Subscriber must reasonably provide protected health information as defined by HIPAA in order to use the Cloud Services, Company shall
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be Subscriber's "Business Associate" under HIPAA, and Company and Subscriber shall enter into a Business Associate Agreement (the form of which shall be reasonably
satisfactory to Company).
(b) If applicable in the United Kingdom, Switzerland or European Economic Area (EEA), both parties will comply with the applicable requirements of Data
Protection Legislation. "Data Protection Legislation" means (i) the United Kingdom's Data Protection Act 2018, and (ii) the General Data Protection Regulation ("GDPR")
and any national implementing laws, regulations or secondary legislation. Company and Subscriber agree that Company will not be processing any personal data on
behalf of the Subscriber as "Data Controller" (defined in accordance with the Data Protection Legislation). Company will collect, use, disclose, transfer and store personal
information when needed to administer this Agreement and for its operational and business purposes, in accordance with Data Protection Legislation. To the extent
personal data from the UK, Switzerland or the EEA are processed by Company, the terms of a data processing addendum ("DPA") must be signed by the parties. To the
extent Company processes personal data, its binding corporate rules and the standard contract clauses shall apply, as set forth in the DPA. For standard contract clauses,
Subscriber and Company agree that Subscriber is the data exporter and Subscriber's acceptance of this Agreement or applicable Order shall be treated as its execution
of the standard contract clauses.
Section 3.0 Third Party Interactions
3.1 Relationship toThird Parties. In connection with Subscriber's use of the Cloud Service, at Subscriber's discretion, Subscriber may: (i) participate in Third Party
promotions through the Cloud Service; (ii) purchase Third Party goods and/or services, including implementation, customization, content, forms, schedules, integration
and other services; (iii) exchange data, integrate, or interact between Subscriber's Account, the Cloud Service, its application programming interface ("API") and a Third
Party provider; (iv) receive additional functionality within the user interface of the Cloud Service through use of the API; and/or (v) receive content, knowledge, subject
matter expertise in the creation of forms, content and schedules. Any such activity, and any terms, conditions, warranties or representations associated with such Third
Party activity, shall be solely between Subscriber and the applicable Third Party. Company shall have no liability, obligation or responsibility for any such Third Party
correspondence, purchase, promotion, data exchange, integration or interaction. Company does not warrant any Third Party providers or any of their products or
services, whether or not such products or services are designated by Company as "certified," "validated," "premier' and/or any other designation. Company does not
endorse any sites on the Internet that are linked through the Cloud Service.
3,2 Ownership. As between Subscriber and Company, Subscriber is the owner of all Third Party Content loaded into the Subscriber Account. As the owner, It is
Subscriber's responsibility to make sure it meets its particular needs. Company shall not comment, edit or advise Subscriber with respect to such Third Party Content
in any manner.
Section 4.0 Fees and Payment.
4.1 Fees. Subscriber shall pay to Company all fees specified in Orders. Except as otherwise stated on the Order: (i) Subscription Fees are based on Cloud Services
subscriptions purchased, (ii) all Subscription Fee payment obligations are non-refundable and non -cancelable, and (iii) quantities purchased cannot be decreased during
the relevant Subscription Term. The Subscription Fee for such Cloud Service subscription shall be invoiced upon commencement of the Term. Thereafter, Company
shall make reasonable efforts to invoice Subscriber for each applicable Subscription Fee sixty (60) days prior to its commencement. Unless Subscriber provides written
notice of termination in accordance with Section 5.1, Subscriber agrees to pay all fees. Subscriber Is responsible for providing complete and accurate billing and contact
information to Company and notifying Company promptly of any changes to such information.
4.2 Automatic Payments. If Subscriber Is paying by credit card or Automated Clearing House ("ACH"), Subscriber shall establish and maintain valid and updated
credit card information or a valid ACH auto debit account (in each case, the "Automatic Payment Method"). Upon establishment of such Automatic Payment Method,
Company is hereby authorized to charge any applicable Subscription Fee using such Automatic Payment Method.
4.3 Overdue Charges. If any invoiced amount is not received by Company by the due date, without limiting Company's rights or remedies, those overdue charges
may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum amount permitted by law, whichever is lower. Company reserves
the right to condition an overdue Account's future subscription renewals and Orders 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 4.4, Company shall invoice Subscriber and Subscriber shall pay that amount unless Subscriber provides Company with a valid tax exemption certificate,
direct pay permit, or other government -approved documentation. Notwithstanding the foregoing, Customer is responsible for, and, to the extent permitted by law,
will indemnify Company for: 1) any encumbrance, fine, penalty or other expense which Company may incur as a result of Subscriber's failure to pay any Taxes required
hereunder, and 2) any Taxes, including withholding taxes, resulting from making an Offering available to Users in geographic locations outside the country in which
Subscriber is located as per the Order. For clarity, Company is solely responsible for taxes assessable against Company based on its Income, property and employees.
4.5 Purchases through Resellers. In the event Subscriber purchases the Cloud Services (including any renewals thereof) through an authorized reseller of
Company, the terms and conditions of this Agreement shall apply and supersede any other agreement except for any terms and conditions related to fees, payment or
Taxes, Such terms and conditions shall be negotiated solely by and between Subscriber and such authorized reseller. In the event Subscriber ceases to pay the reseller,
or terminates its agreement with the reseller, Company shall have the right to terminate Subscriber's access to the Cloud Services at any time upon thirty (30) days'
prior written notice to Subscriber unless Subscriber and Company have agreed otherwise in writing.
Section 5.0 Term and Termination
5.1 Subscription Term. This Agreement will commence on the Effective Date set forth on the Order and continues until the Offerings hereunder have expired
or have been terminated (the "Subscription Term"). Thereafter, except as stated on an applicable Order, the Subscription Term shall automatically renew for
additional periods equal to the expiring Subscription Term or one year, whichever is longer, unless either party has provided written notice of its intent to terminate
the Cloud Service subscription not less than forty-five (45) days prior to the expiration of the then -current Subscription Term applicable to the Cloud Service
subscription.
5.2 Termination. Neither party will terminate an Order for convenience during the applicable Subscription Term. Either party may terminate this Agreement
(in whole or with respect to an Order or purchased from a reseller) by notice to the other party if (i) the other party commits a material breach of this Agreement and
fails to cure such breach within thirty (30) days (except in the case of a breach of Section 7 in which case no cure period will apply) or (li) the other party becomes the
subject of a petition in bankruptcy or other similar proceeding. Company may, at its option, and without limiting its other remedies, suspend (rather than terminate)
any Cloud Services if Subscriber breaches the Agreement (Including with respect to payment of Fees) until the breach Is remedied.
5.3 Effect of Termination. Upon expiration of the applicable Subscription Term, or termination of any Order for one or more offerings or this Agreement for
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any reason, Subscriber's right to access, use or receive the affected Order or Offering automatically terminates. Subscriber shall immediately cease using the Order or
Offering, remove and destroy all Offerings and other Company Confidential Information relating to the Order in its possession or control, and certify such removal
and destruction in writing to Company, Termination or suspension of an individual Order or reseller purchase will not terminate or suspend any other Order, reseller
purchase or the remainder of the Agreement unless specified In the notice of termination or suspension. If the Agreement is terminated In whole, all outstanding
Order(s) and reseller purchases will terminate. If this Agreement, any Order or reseller purchase is terminated, Subscriber agrees to pay all Fees owed up to the
effective date of termination.
5.4 Survival. The following portions of this Agreement shall survive termination of this Agreement and continue in full force and effect: Sections 1, 2.3, 5.3, 6,7,
8 and 9.
Section 6.0 Representations, Warranties and Disclaimers
6.1 Representations. Each party represents that (i) it has full right, title and authority to enter into this Agreement and (ii) this Agreement constitutes a legal,
valid and binding obligation of Subscriber, enforceable against it in accordance with its terms.
6.2 Warranties.
(a) Company warrants that Cloud Service will perform in accordance with the features and functions described in the applicable Documentation. To the extent
permitted by law, Subscriber's exclusive remedy and Company's entire liability for a breach of this warranty in Section 6.2(a), at its option: (I) will use commercially
reasonable efforts to restore the non -conforming Cloud Services so that they comply with this warranty, or (ii) if such restoration would not be commercially reasonable,
Company may terminate the Order for the non -conforming Offering and refund any prepaid fees paid for such Offering. The warranty excludes: (a) no charge Offerings
or Previews, and (b) issues, problems or defects arising from Third Party Content, Subscriber Data or Content, or use of Cloud Service not in accordance with this
Agreement.
(b) Company represents and warrants that all such Professional Services shall be performed in a professional and workmanlike manner in accordance with
generally accepted industry standards. For any breach of this warranty in Section 6.2(b), Subscriber's exclusive remedy and Company's entire liability shall be the re -
performance of the applicable Professional Services.
(c) Company makes only the limited warranties expressly stated in this Agreement, and disclaims all other warranties, including without limitation, the implied
warranties of merchantability and fitness for a particular purpose. Company does not warrant or otherwise guarantee that: (I) reported errors will be corrected or
support requests will be resolved to meet Subscribers' needs, (ii) any Order or Third Party Content will be uninterrupted, error free, fail-safe, fault -tolerant, or free of
harmful components, or (Hi) any Content, including Subscriber and Third Party Content, will be secure or not otherwise lost or damaged, Representations about Orders
or features or functionality in any communication with Subscriber constitutes technical information, not a warranty or guarantee.
(d) Company's Cloud Services have not been tested In all situations under which they may be used. Subscriber is solely responsible for determining the
appropriate uses for the Cloud Services and the results of such use; Company will not be liable for the results obtained through Subscriber's use of the Cloud Services.
Company's Cloud Services are not specifically designed or intended for use in (I) storage of sensitive, personal information, (II) direct life support systems, (iii) nuclear
facility operations, or (iv) any other similar hazardous environment.
6.3 Intellectual Property Indemnification.
(a) Indemnity by Company. Company shall defend and indemnify Subscriber from any loss, damage or expense (including reasonable attorneys' fees) awarded
by a court of competent jurisdiction, or paid in accordance with a settlement agreement signed by Subscriber, in connection with any Third Party claim (each, a "Claim")
alleging that Subscriber's use of the Cloud Service as expressly permitted hereunder infringes upon any intellectual property rights, patent, copyright or trademark of
such Third Party, or misappropriates the trade secret of such Third Party; provided that Subscriber: (x) promptly gives Company written notice of the Claim; (y) gives
Company sole control of the defense and settlement of the Claim; and (z) provides to Company all reasonable assistance, at Company's expense, If Company receives
Information about an Infringement or misappropriation claim related to the Cloud Service, Company may in its sole discretion and at no cost to Subscriber: (i) modify
the Cloud Service so that It no longer infringes or misappropriates, (ill obtain a license for Subscriber's continued use of the Cloud Service, or (iii) terminate this
Agreement (including Subscriber's Cloud Service subscriptions and Account) upon prior written notice and refund to Subscriber any prepaid Subscription Fee covering
the remainder of the Term of the terminated Cloud Service subscriptions. Notwithstanding the foregoing, Company shall have no liability or obligation with respect to
any Claim that Is based upon or arises out of (A) use of the Cloud Service in combination with any software or hardware not expressly authorized by Company, (8) any
modifications or configurations made to the Cloud Service by Subscriber without the prior written consent of Company, and/or (C) any action taken by Subscriber
relating to use of the Cloud Service that is not permitted under the terms of this Agreement. This Section 6.3(a) states Subscriber's exclusive remedy against Company
for any Claim of infringement or misappropriation of a Third Party's Intellectual property rights related to or arising from Subscriber's use of the Cloud Service,
(b) To the extent permitted by law, Subscriber shall defend and indemnify Company from any loss, damage or expense (including reasonable attorneys' fees)
awarded by a court of competent jurisdiction, or paid in accordance with a settlement agreement signed by Company, in connection with any Claim alleging that the
Subscriber Data or Content, or Subscriber's use of the Cloud Service in breach of this Agreement, infringes upon any intellectual property rights, patent, copyright or
trademark of such Third Party, or misappropriates the trade secret of such Third Party; unless applicable laws prohibit public entities from such indemnification and
provided that Company (x) promptly gives Subscriber written notice of the Claim; (y) gives Subscriber sole control of the defense and settlement of the Claim; and (z)
provides to Subscriber all reasonable assistance, at Subscriber's expense. This Section 6.3(b) states Company's exclusive remedy against Subscriber for any Claim of
infringement of misappropriation of a Third Party's intellectual property rights related to or arising from the Subscriber Data or Subscriber's use of the Cloud Service.
6.4 Limitation of Liability.
(a) The entire, aggregate (lability of Company is limited to the amount of Subscription Fees paid by Subscriber to Company pursuant to this applicable Order
during the twelve (12) months prior to the first act or omission giving rise to the liability. This does not applyto the Company's Intellectual property indemnification
obligations in Section 6.3.
(b) Under no circumstances will Company be liable for (i) any indirect, Incidental, consequential, special exemplary or punitive damages, loss of production
or data, interruption of operations or lost revenue or profits, even if such damages were foreseeable, or (II) any Previews or No -Charge Offerings.
(c) Company will not be liable for any claim In connection with this Agreement if such claim is brought more than two (2) years after the first event giving
rise to such claim is or should have been discovered by Subscriber.
(d) The limitations and exclusions of this Section 6.4 apply to; (i) benefit of Company and its affiliates, and their respective officers, directors, licensors,
subcontractors and representatives, and (ii) regardless of the form of action, whether based in contract, statute, tort (including negligence), or otherwise.
(e) The foregoing limitations and exclusions will not apply to the extent that liability cannot be limited or excluded in accordance with applicable law.
Nothing In this Section shall limit Subscriber's payment obligations under Section 4.
Section 7.0 Confidentiality
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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 expressly marked and
identified as confidential, proprietary, trade secrets, proprietary business information as provided under applicable state law and any Information expressly marked
and identified by a party as 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, security audits, penetration tests, opportunities and all other aspects of business operations and any copies or derivatives thereof. Confidential Information
that is expressly marked and identified as confidential Includes information belonging to a Third Party that may be disclosed only under obligations of confidentiality.
Notwithstanding the foregoing, Confidential Information shall not include information that Receiving Party can demonstrate: (a) is or becomes generally known to the
public without breach of any obligation by Receiving Party; (b) is received from a Third Party without breach of any obligation owed to Disclosing Party; or (c) is or has
been independently developed by Receiving Party without the benefit of Confidential Information.
7.2 Protection of Confidential Information. The Receiving Party agrees that it shall: (i) use the Confidential Information solely for a purpose permitted by this
Agreement, (ii) use the same degree of care as Receiving Party uses with its own Confidential Information, but no less than reasonable care, to protect Confidential
Information and to prevent any unauthorized access, reproduction, disclosure, or use of any of Confidential Information; and (iii) restrict access to the Confidential
Information of the Disclosing Party to those of Its Affiliates and its and their employees, contractors and agents who need such access for purposes consistent with this
Agreement. 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, a court order or subpoena, 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. Except as prohibited by law, court order or subpoena, 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, court order or subpoena, 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.
7.5 Remedies. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any unauthorized use or disclosure of Disclosing Party's Confidential
Information and agrees to reasonably cooperate with Disclosing Party in its efforts to mitigate any resulting harm. Receiving Party acknowledges that Disclosing Party
would have no adequate remedy at law should Receiving Party breach its obligations relating to Confidential Information and agrees that Disclosing Party shall be
entitled to enforce its rights by obtaining appropriate equitable relief, including without limitation a temporary restraining order and an injunction.
Section 8.0 Export Control Compliance
8.1 General. Subscriber shall comply with all applicable sanctions, embargoes and (re -)export control regulations, and, in any event, with those of the European
Union, the United States of America and any locally applicable jurisdiction(s) (collectively "Export Regulations").
8.2 Checks. Prior to any transfer of Offerings (including all kinds of technical support and/or technology) to a Third Party, Subscriber shall check and ensure by
appropriate measures that (i) there will be no infringement of an embargo imposed by the European Union, the United States of America and/or by the United Nations
by such transfer, by brokering of contracts concerning Offerings or by provision of other economic resources in connection with Offerings, also taking into account any
prohibitions to circumvent these embargos (e.g., by undue diversion); (ii) such Offerings are not Intended for use in connection with armaments, nuclear technology or
weapons, if and to the extent such use is subject to prohibition or authorization, unless required authorization has been obtained; (iii) the regulations of all applicable
sanctioned party lists of the European Union and the United States of America concerning the trading with entities, persons and organizations listed therein are considered
and (iv) Offerings within the scope of the respective Annexes to EU Regulations Nos. 833/2014 and 765/2006 as well as of Annex I to EU Regulation No. 2021/821 (in
their current versions, respectively), will not, unless permitted by EU law, be (a) exported, directly or indirectly (e.g., via Eurasian Economic Union (EAEU) countries), to
Russia or Belarus, or (b) resold to any third party business partner that does not take a prior commitment not to export such Offerings to Russia or Belarus.
8.3 Non -Acceptable Use of Offerings and Cloud Services. Subscriber shall not, unless permitted by the Export Regulations or respective governmental licenses or
approvals, (i) download, install, access or use the Cloud Services, Content and/or Documentation from or in any location prohibited by or subject to comprehensive
sanctions (currently Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk and Luhansk regions of Ukraine) or to license requirements according to the Export
Regulations; (ii) grant access to, transfer, (re- )export (Including any 'deemed (re -)exports'), or otherwise make available the Cloud Services, Content and/or
Documentation to any individual or entity designated on a sanctioned party list of the Export Regulations; (iii) use the Cloud Services, Content and/or Documentation for
any purpose prohibited by the Export Regulations (e.g. use in connection with armaments, nuclear technology or weapons); (iv) upload to the Cloud Services platform
any Subscriber Data or Content unless it is non -controlled (e.g. in the EU: AL = N; In the U.S.: ECCN = N or EAR99); (v) facilitate any of the aforementioned activities by
any user. Subscriber shall provide any user(s) with all information necessary to ensure compliance with the Export Regulations.
8.4 Information. Upon request by Company, Subscriber shall promptly provide Company with all information pertaining to user(s), the intended use and the location
of use of the Offerings.
8.5 Export Control Indemnification. To the extent permitted by law, Subscriber shall indemnify and hold harmless Company from and against any claim, proceeding,
action, fine, loss, cost and damages arising out of or relating to any noncompliance with (re) Export Regulations by Subscriber and/or user(s) and/or Subscriber's Third
Parties business partner re-exporting Offerings in violation of embargoes or sanctions referred to in 8.2 above, and Subscriber shall compensate Company for all losses
and expenses resulting thereof.
8.6 Reservation. Company shall not be obligated to fulfill this Agreement if such fulfillment is prevented by any impediments arising out of national or international
foreign trade or customs requirements or any embargoes or other sanctions. Subscriber acknowledges that Company may be obliged under the Export Regulations to
limit or suspend access by Subscriber and/or user(s) to the Offerings.
Section 9.0 Miscellaneous
9.1 Compliance with Laws. Each party will comply with all laws and applicable government rules and regulations insofar as they apply to such party in its
performance of this Agreements rights and obligations.
9.2 Publicity. Only with written permission from Subscriber, Company is permitted to: (i) include Subscriber's name and logo in accordance with Subscriber's
trademark guidelines; and (ii) list the Cloud Services and Professional Services selected by Subscriber, in public statements and client lists.
9.3 Relationship of the Parties. Company is performing pursuant to this Agreement only as an independent contractor. Company has the sole obligation to
supervise, manage, contract, direct, procure, perform or cause to be performed its obligations set forth in this Agreement, except as otherwise agreed upon by the
Page 5 of 11 Rev. Oct. 2023
parties. Nothing set forth in this Agreement shall be construed to create the relationship of principal and agent between
Company and Subscriber. Company shall not act or attempt to act or represent itself, directly or by implication, as an agent of Subscriber or its affiliates or in any manner
assume or create, or attempt to assume or create, any obligation on behalf of, or in the name of, Subscriber or its affiliates.
9.4 Waiver. No failure or delay by either party in enforcing any of its rights under this Agreement shall be construed as a waiver of the right to subsequently
enforce any of its rights, whether relating to the same or a subsequent matter.
9.5 Assignment. This Agreement will extend and be binding upon the successors, legal representatives, and permitted assignees of the parties. However, this
Agreement and the rights granted under this Agreement may not be assigned, sublicensed or otherwise transferred (by operation of law or otherwise) by Subscriber
without the prior written consent of Company. Any attempted assignment in violation of this Section will be void.
9.6 Force Majeure. Subject to the limitations set forth below and except for fees due for Orders rendered, neither party shall be held responsible for any delay,
default, or failure to perform any obligations under this Agreement due to any cause beyond its reasonable control. The delayed party will promptly notify the other
party of any such event.
9.7 Entity, Governing Law, Notices and Venue. All notices, instructions, requests, authorizations, consents, demands and other communications hereunder
shall be in writing and shall be delivered by one of the following means, with notice deemed given as indicated in parentheses: (a) by personal delivery {when actually
delivered); (b) by overnight courier {upon written verification of receipt); (c) by business mail (upon written verification of receipt); or (d) except for notice of
indemnification claims, via electronic mail to Subscriber at the e-mail address maintained on Subscriber's Account and to Company at notice@hrightlysoftware.com.
Any dispute arising out of or in connection with this Agreement will be resolved as set forth in the table below: The Company entity entering into this Agreement, the
address to which notices shall be directed under this Agreement and the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement
shall depend upon where Subscriber is domiciled:
(a) In the United States and all other domiciles not otherwise mentioned, the Company entity is Brightly Software, Inc., a Delaware corporation, and the notice
address shall be Corporate Trust Center, 1209 Orange Street, Wilmington, DE 19801 USA, Attn: Brightly Software. The applicable law will be the laws of the state of
Delaware, USA; any dispute arising out of or in connection with this Agreement will be subject to the jurisdiction of the courts of Delaware, USA unless Subscriber is
a public entity in which case the applicable law will be the state law where it is domiciled and any dispute will be subject to the jurisdiction of the applicable courts
where it is domiciled. Each party hereby irrevocably submits itself to the personal jurisdiction of the relevant court for any such disputes.
(b) In Canada, the Company entity is Brightly Software Canada, Inc., an Ontario corporation, and the notice address shall be 1577 North Service Road East, Oakville,
Ontario, Canada L6H OH6 Canada, Attn: Brightly Software. The applicable law will be the laws of Ontario; any dispute arising out of or in connection with this
Agreement will be subject to the jurisdiction of the courts of Ontario, Canada, without regard to the principles of conflicts of law.
(c) In the United Kingdom or a country in Europe, the Company entity is Brightly Software Limited, a limited company in England, the notice address shall be
Pinehurst 2, Pinehurst Road, Farnborough, Hampshire, GU14 7BF Attn: Brightly Software. The applicable law will be the laws of England; any dispute arising out of
or in connection with this Agreement will be finally resolved by binding arbitration in accordance with the ICC Rules. The seat of arbitration will be London, England.
(d) In Australia, New Zealand, a country in Asia/Oceania, the Company entity is Brightly Software Australia Pty Ltd, a proprietary limited company in Australia, and
the notice address shall be Level 9, 257 Collins Street, Melbourne, VIC 3000 Australia, Attn: General Counsel. The applicable law will be the laws of Victoria, Australia;
any dispute arising out of or in connection with this Agreement will be finally resolved by binding arbitration in accordance with the ICC Rules. The seat of arbitration
will be Melbourne, Victoria, Australia.
If a dispute is subject to arbitration as described in this Section 9.7, arbitrators will be appointed in accordance with the ICC Rules, the language used for proceedings
will be English, and orders for the production of documents will be limited to the documents on which each party specifically relies in its submission. Nothing in this
Section 9.7 will restrict the right of the parties to seek interim relief intended to preserve the status quo or interim measures in any court of competent jurisdiction.
Notwithstanding the foregoing, to the extent permissible under applicable law and to the extent it would not result in the invalidity or inapplicability of this Section 9.7,
the parties agree that Company, at its sole discretion, may bring an action in the courts of the jurisdiction(s) where the Offering is being used or Subscriber has its place
of business, to: (i) enforce Brightly IP rights, or (ii) for the payment of amounts due for any Offering.
9.8 Company Affiliates and Subcontractors. Company or its Affiliates may exercise Company's s rights and fulfil] Company's obligations under this Agreement.
Company may use resources in various countries to provide Offerings, including unaffiliated subcontractors. Company remains responsible for its obligations under this
Agreement.
9.9 Interpretation of Agreement. The Section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of
the parties, and shall not affect in any way the meaning or interpretation of this Agreement. Any reference to any federal, state, local or foreign statute or law shall he
deemed to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.
9.10 No Third Party Beneficiaries. No person or entity not a party to the Agreement shall be deemed to be a Third Party beneficiary of this Agreement or any
provision hereof.
9.11 Severability. The invalidity of any portion of this Agreement shall not invalidate any other portion of this Agreement and, except for such invalid portion,
this Agreement shall remain in full farce and effect.
9.12 Entire Agreement. This Agreement, including any applicable Order, constitutes the full and complete agreement between Subscriber and Company with
respect to the subject matter thereof and supersedes any previous or contemporaneous agreements or communications, whether written or verbal, relating to such
subject matter. The reference to a document that refers to another document will be deemed to also include such other document, unless otherwise stated therein.
This Agreement may not be varied except as set out in an Order or otherwise executed in writing by manual signatures or electronic signatures of authorized
representatives of both parties or via an online mechanism, if so provided explicitly for such purposes by Company. No other terms and conditions will apply. The terms
of any purchase order or similar Subscriber document are excluded and such terms will not apply to any order, and will not supplement or modify this Agreement
irrespective of any language to the contrary in such document. In the event of any conflict or inconsistency between the documents, the order of precedence shall be
(1) the applicable Order, (2) any schedule or addendum to this Agreement, and (3) the content of this Agreement.
9.13 Anti -Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or
agent of the other party in connection with this Agreement. If Subscriber learns of any violation of the above restriction, Subscriber shall immediately notify Company.
9.14 Cooperative Use. With Subscriber's approval, the market research conducted by Subscriber during its selection process for the Cloud Services may be
extended for use by other jurisdictions, municipalities, and government agencies of Subscriber's state. Any such usage by other entities must be in accordance with
ordinance, charter, and/or procurement rules and regulations of the respective political entity.
9.15 Modifications. Company may revise the terms of this Agreement from time -to -time and shall post the most current version of this Agreement on its website.
If a revision meaningfully reduces Subscriber's rights, Company shall notify Subscriber.
9.16 USA Government Subscribers. The Cloud Service and its Documentation and Content are "Commercial Items," "Commercial Computer Software" and
"Computer Software Documentation" as defined 48 C.F.R. §. 2.101 and 48 C.F.R. §. 252.227-7014(a){1) and (a)(5), as applicable. Pursuant to 48 C.F.R. §. 12.212, and
48 C.F.R. §. 227.7202, as revised, the U.S. Government acquires the Cloud Service and its Documentation and Company Content subject to the terms of this Agreement.
Page 6 of 11 Rev. Oct, 2023
Company will not be required to obtain a security clearance or otherwise be Involved In accessing U.S. Government classified information.
Section 10.0 Definitions
As used in this Agreement, the following terms shall have the meanings set forth below:
10.1 "Access Credentials" means any user's name, identification number, password, license or security key, security token, PIN or other security code, method,
technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Cloud Service.
10.2 "Account" means Subscriber's specific account where Subscriber subscribes to access and use Cloud Service(s).
10.3 "Account User" means each person or entity that access an Offering under this Agreement, whether such access is given by Subscriber, by Company at Subscriber's
request, or by a third party authorized by Subscriber.
10.4 "Affiliate" means, with respect to any legal entity, any other legal entity that (i) controls, (ii) is controlled by or (Ili) is under common control of such legal entity.
A legal entity shall be deemed to "control" another legal entity if it has the power to direct or cause the direction of the management or policies of such legal entity,
whether through the ownership of voting securities, by contract, or otherwise.
10.5 "Brightly IP" means all patents, patent applications, copyrights, trade secrets and other intellectual property rights in, related to, or used in the provision or
delivery of any Order or technical solution underlying an Order, and any improvement, modification, or derivative work of any of the foregoing.
10.6 "Cloud Service" or "Cloud Services" means Company's branded offerings of cloud -based online services and associated cloud -based API (application programming
Interfaces) made available by Company, as updated, enhanced or otherwise modified from time -to -time. Cloud Service excludes Subscriber Data and Third Party
Content.
10.7 "Content" means audio and visual information, documents, content, materials, products and/or software.
10.8 "Documentation" means the user instructions, learning material, functional or technical documentation, and API information relating to the Cloud Service made
available to Subscriber by Company in print, online or embedded as part of help functions, which may be updated from time to time.
10.9 "Brightly Software" or "Company' means Brightly Software, Inc., Brightly Software Canada Inc., Brightly Software Australia Pty Ltd, and Brightly Software Limited,
together with their affiliates, successors and assigns.
10.10 "Order" means Company's ordering document, online purchasing form, statement of work, or end user license agreement (EULA) used to order Company Cloud
Services and/or Professional Services. By entering into an Order, Affiliate(s) agree to be bound by the terms of this Agreement as if an original party.
10.11 "Offering" means an individual offering made available by Company and identified on an Order, which consists of Cloud Services, Professional Services or a
combination of any of the foregoing, and any associated maintenance and support services and Documentation.
10.12 "Previews" means Cloud Service or functionality that may be made available to Subscriber to try at its option at no additional charge that is clearly designated
as beta, preview, pre-release, pilot, limited release, early adoption, non -production, sandbox, evaluation or a similar description.
10,13 "Professional Service" means the training, technical, consulting and/or other services, excluding Cloud Services, to be performed by Company that are ordered
by Subscriber on an Order or provided without charge (if applicable).
10,14 "Subscriber" means the legal entity identified on the Account, on behalf of itself and its Affiliates and its and their employees, consultants, and (sub)contractors.
10.15 "Subscriber Data" means all data, Information and other content provided by or on behalf of Subscriber, Including that which the Account Users input or upload
to the Cloud Service.
10.16 "Subscriber -Hosted Software" means Company's suite of software applications, as updated, enhanced or otherwise modified from time -to -time that are: (I)
ordered by Subscriber on an Order or provided without charge (if applicable) and made available by Company, including mobile components, and (ii) granted a non-
exclusive and non -transferable license (with no right to sublicense) to install and use software for the Term.
10.17 "Subscription Fee" means the fee Invoiced to Subscriber by Company prior to the Subscription Term, which Is required to he paid in order for Subscriber to be
permitted to access and use the Cloud Service.
10.18 "Third Party" means a party other than Subscriber or Company.
10.19 "Third Party Content" means Content, applications and services owned or controlled by a Third Party and made available to Subscriber by the Third Party through
or in connection with Cloud Services.
Page 7 of 11 Rev. Oct 2023
[Remainder of page intentionally left blank; signature page to follow]
Page 8 of 11 Bev. Oct 2023
IN WITNESS WHEREOF, te- r dersigned have executed this Agreement as of the date first appearing above.
Brightly S
By:
Name:
Title: C C,
iginature]
�ti4\.(.Aewa11-eS
[printed or typed]
Date:
By:
Name: MIV-e- 11U�
[printed or typed]
Title: N.) Ova 5.1.1PS 1 OO\vc. (G'4-61-5
Date: 04 oa4
City of Redlan•s''
[signature]
Name: Eddie Teleda
[printed or typed]
Title: Mayor
Date: 6/18/24
ATTEST:
Jeanne Dson, City Clerk
Page 9 of 11 Rev. Oct. 2023
PROFESSIONAL SERVICES ADDENDUM
THIS PROFESSIONAL SERVICES ADDENDUM ("Addendum") is an addendum to the Master Subscription Agreement (the "Agreement") between Brightly
Software ("Company") and Subscriber, as defined in the Agreement. This Addendum applies to the extent that Subscriber and Company execute an
Order that includes Professional Services to be provided by Company for Subscriber.
1. PROFESSIONAL SERVICES.
1.1 Scope. Company will provide such Professional Services and supply Deliverables to Subscriber in accordance with the terms of this Addendum, the
Agreement, and all applicable Orders, including any statement of work contained therein. Unless otherwise specified in an applicable Order: (i) Company
will perform the Professional Services during workdays, Monday through Friday, up to 8 hours a day; (ii) any estimate of hours or costs are reasonable,
good faith estimates only; and (iii) each task is performed as firm fixed price work or time and materials as described in the Order. Company is only
obliged to supply Professional Services and/or Deliverables as expressly stated in the Order. Company shall not be obliged to supply any Professional
Services and/or Deliverables without a valid Order.
1.2 Scheduling. Company requires at least 6 weeks advanced notice from the acceptance of an Order to schedule Professional Services delivery dates
when travel is required. Onsite Professional Services shall be delivered consecutively in a single onsite visit unless the applicable Order includes the
additional fees and incidental expenses associated with multiple visits.
1.3 Unused Professional Services. Unless otherwise specified in the Order, Company reserves the right to expire any unused Professional Services 6
months from the Effective Date set forth on the Order, and Subscriber will not be entitled to receive a refund for any fees prepaid for such expired
Professional Services.
1.4 Relationship to Other Offerings. The Addendum is limited to Professional Services and does not convey any right to use any other Company
Offerings. Except for Deliverables set forth in an Order, Subscriber agrees that Professional Services are not contingent on the delivery of any future
Cloud Service functionality, or on any oral or written public comments by Company regarding future Cloud Service functionality or features.
1.5 Subscriber Cooperation. Subscriber will cooperate reasonably and in good faith with Company in its performance of Professional Services by: (i)
providing access to any necessary Subscriber Data, (ii) allocating sufficient resources and timely performing any tasks reasonably necessary to enable
Company to perform Its obligations under the Order, and (iii) actively participate in scheduled project meetings. Any delays In the performance of
Professional Services or delivery of Deliverables caused by Subscriber may result in additional applicable charges for resource time.
1.6 Acceptance. Any Deliverables are stated in the Order. Unless otherwise specified In the applicable Order, Deliverables will be considered accepted
upon the sooner of Subscriber's written acceptance notice (e-mail is sufficient) or five (5) business days from delivery. In the event Subscriber rejects
the Deliverables, Subscriber' shall provide a written rejection notice within five (5) business days from delivery which must specifically disclose the
material failure to conform to the specifications set forth in the Order. In response to rejection notice, Company may revise and redeliver the
Deliverable(s), and thereafter the procedures of this Section will repeat.
1.7 Change Order. Changes to Professional Service defined in an Order shall require a written Change Order signed by the parties prior to
implementation of such change(s). Changes may include, for example, alterations to the Professional Service scope of work, Deliverables or changes to
fees or schedule.
2. FEES & PAYMENT TERMS.
2.1 Payment. Subscriber will pay Company the fees specified in the Order. Unless the Order provides otherwise, Subscriber will pay Company within
thirty (30) calendar days from the date of invoice.
2.2 Incidental Expenses. Subscriber will reimburse Company for travel and related business expenses incurred in connection with Professional Services.
If an estimate of incidental expenses is included in the Order, Company will not exceed a 5% inflation of such estimate without the written consent of
Subscriber.
3. TERM AND TERMINATION.
3.1 Term. Each Order term shall begin on the effective date specified in the applicable Order and end on the date that the Professional Services are
completed or Subscriber is notified of expiration of the Order pursuant to Section 1.3 of this Addendum. Unless earlier terminated as set forth below,
the terms of this Addendum will continue until termination or expiration of the applicable Order.
3.2 Termination. Either party may terminate an Order for the other's material breach on thirty (30) days' written notice, provided that if the other party
cures the breach before expiration of such notice period, the Order will not terminate. Additionally, all Orders will immediately terminate upon
termination or expiration of the Agreement.
3.3 Effect of Termination. Upon termination of an Order: (1) if such Order provides for an hourly or per unit fee, Subscriber will pay Company such fee
for the work performed up to the date of termination; and (2) if the Order provides for a fixed fee, Subscriber will pay Company the reasonable value of
the Professional Services rendered by Company up to the termination date, Termination of an Order for any reason, including without limitation for
Page 10 of 11 Rev. Oct. 2023
cause, will not terminate any other Order.
4. LICENSE FOR DELIVERABLES.
License for Deliverables. Upon payment of fees due under an applicable Order, Company grants Subscriber a worldwide, perpetual, non-exclusive, non-
transferable, royalty -free license to copy, maintain, and use any Deliverables created by Company solely for Subscriber as described in the Order.
Company and Subscriber each retain all right, title and interest in their respective Intellectual Property and Company retains all ownership rights in the
Deliverables.
5. NON -EXCLUSIVITY OF PROFESSIONAL SERVICES.
Notwithstanding the Confidentiality obligations set forth in Section 7 of the Agreement, Subscriber acknowledges and agrees that (i) multiple Subscribers
may require similar Professional Services or Deliverables and that Company may be developing similar Professional Services and Deliverables for other
third parties, (ii) Company may currently or in the future be developing Information Internally, or receiving information from other parties, that is similar
to the Confidential Information of Subscriber, (iii) nothing will prohibit Company from developing or having developed for It customizations,
configurations, feature, concepts, systems or techniques that are similar to the Deliverables, and (iv) nothing will prohibit Company from re -using with
another Subscriber or making generally available as part of Cloud Services all or part of any customization, configuration, feature, concept, system or
technique developed hereunder.
6. MISCELLANEOUS
6.1 Independent Contractor. The parties are independent contractors and nothing in this Agreement should be construed to create a partnership,
agency,joint venture, fiduciary or employment relationship between the parties. Neither party is authorized to make any representation or commitment
on behalf of the other party. Each party assumes hill responsibility for the actions of its personnel while performing Professional Services and such party
will be solely responsible for the supervision, daily direction, control of Its personnel and for the payment of all compensation.
6.2Non-Solicitation. Except where prohibited by law, during the Term and for twelve (12) months thereafter, Subscriber will not solicit for employment,
nor knowingly employ (either as an employee, contractor or agent), any of Company's employees or subcontractors without Company's prior written
consent. For the purposes herein, "solicit" does not include broad -based recruiting efforts, including without limitation help wanted advertising and
general posting open positions.
7. DEFINITIONS.
7.1 "Change Order" means a Company change order that changes the Professional Services as set forth on an Order or defined in a reseller
purchase. Change Orders executed by both parties shall be incorporated by reference into the applicable Order. A Change Order cannot change Cloud
Services, as defined in the Agreement to include SaaS applications.
7.2 "Deliverable" means a deliverable described in an Order.
All other capitalized terms used but not defined herein shall have the respective meanings set forth in the Agreement.
Page 11 of 11 Rev. Oct. 2023
PREPARED FOR
City Of Redlands ("Subscriber")
P.O. Box 3005
Redlands, CA 92373
PREPARED BY
Brightly Software Inc ("Company")
11000 Regency Parkway, Suite 300
Cary, NC 27518
PUBLISHED ON
June 07, 2024
1
Q-389990
Sourcewell/NJPA purchasing contract
• https.//www.sourcewell-mn.gov/cooperative-purchasing/090320-sdi#tab-contract-
documents (https.//www.sourcewell-mn.gov/cooperative-purchasing/090320-sdi#tab-
contract-documents).
• Contract #090320-SDI
Subscription Term: 12 months (06/18/2024 - 06/30/2025)
Cloud Services
Item
Asset Essentials
Enterprise
- Facilities/Physical
Plant Module
- Asset Essentials
Inventory
- AE Safety
- Dude Analytics
- GIS Asset
Management
4.0 Month(s) included at no additional cost on the first term 06/18/
2024 - 10/17/2024
Start Date
6/18/2024
6/18/2024
6/18/2024
6/18/2024
End Date
6/30/2025
6/30/2025
6/30/2025
6/30/2025
Pricing Based
On
Investment
S67,593.00 Sq.
Ft. 27,857.07 USD
Included
Included
Included
6/18/2024 6/30/2025 Included
6/18/2024 6/30/2025 Included
-8,990.91 USD
Subtotal: 18,866.16 USD
2
.43
Professional Services
Item
Asset Essentials Enterprise
Implementation with
Consulting
Consulting Service
On -site incidental expenses
PM Schedule Creation
Pricing Based On
567,593.00 Sq. Ft.
1.00 Day(s)
567,593.00 Sq. Ft.
Equipment Barcode
Tagging
Facility Condition
Assessment
567,593.00 Sq. Ft.
567,593.00 Sq. Ft.
Investment
12,455.45 USD
1,795.50 USD
*See Note Below
9,030,40 USD
9,030.40 USD
66,726.23 USD
Subtotal: 99,037.98 USD
Total Initial Investment
117,904.14 USD
*Incidental travel related expenses will be invoiced to Client at cost but are not anticipated to exceed $3,000
per week, per resource for on -site services.
3
Asset Essentials Implementation with
Consulting
GIS Rider Statement of Work
Summary:
Company will provide specified professional consulting services to Subscriber to implement Asset Essentials, an
on-line Computerized Maintenance Management System - Geographic Information System (GIS) functionality.
These professional services include meeting with key stakeholders to ensure the set-up and configuration of
the system will meet the client's operational 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.
In Scope: The Deliverables below will be considered in scope of this SOW
1. Asset Essentials GIS Implementation
2. Asset Essentials GIS Training
Deliverables:
Project initiation and discovery
• Available GIS data loaded
• GIS configuration
• User acceptance testing (UAT)
• End User training for Administrator and Full User roles
Acceptance Process:
As each deliverable is completed, the Project Coordinator will confirm with the Subscriber and document
acceptance in the Project Community Portal.
• Project initiation and discovery
• Kickoff call complete.
• Discovery call complete
• Data, configuration, and training requirements documented.
• Available Data Loaded
• Available GIS data is loaded in AE to meet documented data requirements.
• Account Configuration
• GIS features have been setup and configured to meet documented configuration requirements.
4
• User Acceptance Testing
• Consultant -led end -to -end walkthrough and client UAT has demonstrated functionality satisfying
configuration requirements.
• End User Training
• Administrator and Full User roles have been received training on their role.
Assumptions:
Subscriber Assumptions:
• There will be a single point of contact/project manager for the duration of the project.
• IT department is responsible for ensuring access to mobile devices, Internet connections, email access,
and web link access to the software such as white listing IP addresses.
• The appropriate resources will be available for all scheduled activities. Canceling or rescheduling
consulting activities within 2 weeks of the scheduled activity may result in a rescheduling fee being
assessed.
• For on -site activities, Subscriber will provide a dedicated space with adequate technology, including but
not limited to monitor/projector, computers, mobile devices, quality phone and internet connections.
• Will provide relevant data to be loaded in a timely manner and in Excel or CSV format. Each record type
will be provided in one file with one sheet with column headings and one record with corresponding
attributes per row.
• If unable to provide data in an acceptable format for import, Consultant will guide Subscriber an how to
manually create records.
• Subscriber has up to five business days to confirm deliverable acceptance. No response will be
interpreted as acceptance.
Company Assumptions:
• Consultant will not access any 3rd party systems for the purpose of exporting data.
• For on -site activities, Company will bill Subscriber for actual travel and associated expenses incurred.
• Any services not explicitly included in this SOW are assumed to be out of scope.
Project Schedule:
• Kick-off Call with Project Coordinator
• Confirm software and services purchased
• Identify key stakeholders
• Assign resources
• Schedule key milestone dates, including anticipated projected completion date
• Access to Company's on-line Learning Management System
• Access to an interactive project plan
• Discovery with Consultant
Interview key stakeholders to understand specific maintenance & operations objectives
Overview of AE with key stakeholders, including data import requirements
• Determine optimal GIS configuration to meet objectives and drive KPIs
5
• Document data, configuration, and training requirements
• Schedule required consulting activities and confirm projected completion date
• Data loaded by Consultant
• Review, cleanse, and load available GIS data
• Account configuration by Consultant
• Work Order creation from Map
• Citizen Portal
• Mobile Profiles
• Configure GIS Map settings
• Configure GIS Layer configuration
• Asset syncing
User Acceptance Testing
• Configuration demo to walk through the end -to -end workflow from request to completion
• Demonstrate key functionality meets configuration requirements
Consultant conducts End User Training for Administrator and Full User roles
• End -to -end walkthrough for their role
• Desktop and mobile training
• Project Close
Change Management:
Subscriber may request that the Company add services not in the specifications by submitting a written
proposed change order to the Company. Submitted change requests will be reviewed for approval, Approved
change orders will become part of the applicable SOW when executed by both Parties, and the services
described therein will become part of the services,
Invoicing:
At the conclusion of Go Live Support, the main consulting milestone will be completed to trigger billing for the
full consulting service.
Asset Essentials Implementation with
Consulting Statement of Work
Summary:
6
Company will provide specffied professional consulting services to Subscriber to implement Asset Essentials
(AE), an on-line Computerized Maintenance Management System. These professional services include meeting
with key stakeholders to ensure the set-up and configuration of the system will meet the client's operational
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.
In Scope: The Deliverables below will be considered in scope of this SOW:
1. Asset Essentials Implementation with Consulting
2. Asset Essentials Training
3. Post Consulting Go -Live Support
Deliverables:
• Project initiation and discovery
• Available location, asset, user, PM schedule Data Loaded
• Account configuration
• User acceptance testing (UAT)
• End User training for Administrator and Full User roles
• Go -Live support
Acceptance Process:
As each deliverable is completed, the Project Coordinator will confirm with the Subscriber and document
acceptance in the Project Community Portal.
Project initiation and discovery
• Kickoff call complete
• Discovery call complete
• Data, configuration, and training requirements documented
• Available data loaded
• Available location, asset, user, PM schedule data is loaded in AE to meet documented data
requirements.
• Account Configuration
• Account has been setup and configured to meet documented configuration requirements.
User Acceptance Testing
• Consultant -led end -to -end walkthrough and client UAT has demonstrated to Subscriber
functionality meets configuration requirements.
End User Training
• Administrator and Full User roles have received training on their role.
• Go -Live Support
7
• 30-day Go -Live Support period has been concluded.
Assumptions:
Subscriber Assumptions:
There will be a single point of contact/project manager for the duration of the project.
• ET department is responsible for ensuring access to mobile devices, internet connections, email access,
and web link access to the software such as white listing IP addresses.
• The appropriate resources will be available for all scheduled activities. Canceling or rescheduling
consulting activities within 2 weeks of the scheduled activity may result in a rescheduling fee being
assessed.
For onsite activities, Subscriber will provide a dedicated space with adequate technology, including but
not limited to monitor/projector, computers, mobile devices, quality phone and Internet connections.
Will provide relevant data to be loaded in a timely manner and in Excel or CSV format. Each record type
will be provided in one file with one sheet with column headings and one record with corresponding
attributes per row.
If Subscriber is unable to provide data in an acceptable format for import, Consultant will guide
Subscriber on how to manually create records.
Subscriber has up to (5) business days to confirm deliverable acceptance. No response will be
interpreted as acceptance.
Company Assumptions:
• Consultant will not access any 3rd party systems for the purpose of exporting data.
• Once End User Training has been completed, 30-day Go -Live Support period begins, consisting of up to 4
weekly 30-minute check -ins with the Implementation Specialist. if client does not attend a scheduled
check -in, it will be assumed no assistance was needed.
• For on -site activities, Company will bill Subscriber for actual travel and associated expenses incurred.
• Any services not explicitly included in this SOW are assumed to be out of scope.
Project schedule and approach:
• Kick-off Call with Project Coordinator
• Confirm software and services purchased
• Identify key stakeholders
• Assign resources
• Schedule key milestone dates, including anticipated project completion date
• Access to Company's on-line Learning Management System
• Access to an interactive project plan
Discovery with Consultant
• Interview key stakeholders to understand specific maintenance & operations objectives
• Overview of AE with key stakeholders, including data import requirements
• Determine optimal AE configuration to meet objectives and drive KPIs
Document data and configuration requirer-nents
Schedule required consulting activities and confirm projected completion date
8
Data loaded by Consultant
• Review, cleanse, and load available user, location, asset, and scheduled PM data
• Account configuration by Consultant
• Populate key drop -down menus
• Review/modify request and work order templates
Configure workflow for request/approval/assignment of work orders
User Acceptance Testing
• Configuration demo to walk through the end -to -end workflow from request to completion
• Demonstrate key functionality meets configuration requirements
Consultant conducts End User Training for Administrator and Full User roles
• End -to -end walkthrough for their role
• Desktop and mobile training
• Go -Live Support
• Company provides (4) weekly check -in calls with Implementation Specialist and Subscriber
• Company Implementation specialist addresses any issues identified. Where issues require
product support, Implementation Specialist will submit to Company Support
• Implementation Specialist adjusts configurations as needed prior to project close
Project Close
Sample Project Timeline (project timelines may vary):
T101.. Day1
Project Kick Off Cali
Week
Week
Week3
Week
Week Week
Week
Week
i.i. - ?
Week10
Week11 _.
Week13
LMS (Learning Management
System) Review one O&A
IllirilliM—.
. ,
i
Discovery Coll
Dom Review
Doto Loading
Account Configuration
-
UAT (User Acceptance Testing)
User Training
Post -Consulting Call
GLS (Go Live Support)
...
Project Close
Change Management:
Subscriber may request that the Company add services not in the specifications by submitting a written
proposed change order to the Company. Submitted change requests will be reviewed for approval. Approved
change orders will become part of the applicable SOW when executed by both Parties, and the services
described therein will become part of the services.
Invoicing
9
43
At the conclusion of Go Live Support, the main consulting milestone will be completed to trigger billing for the
full consulting service.
10
Special Terms for Asset Essentials:
Asset Essentials pricing is based on a maximum storage limit of 200GB of data. Data storage that exceeds
200GB may subject to an additional fee.
Consulting Services Statement of Work
Summary:
Company will provide certain professional consulting services to Subscriber. These professional services include
providing Subscriber with focused guidance by an experienced Company consultant to aid the utilization of
Subscribers application effectively and efficiently. Services are tailored to Subscribers needs but may include
meeting with key stakeholders to ensure the set-up and configuration of the system will meet Subscriber's
current and future needs; workflows meet the needs of the business; available data is cleaned, aligned, and
imported; and end users are trained.
In Scope: The items below will be considered in scope of this SOW
Consulting Service
Deliverables:
1.00 Day(s)
The following list of deliverables are example categories, the specific deliverables included in Subscriber's
service will be documented and presented by the Company Project Coordinator during the project kick off call.
If additional services are requested, a new Consulting Services SOW may be required. Virtual services are
delivered in 4-hour increments, or until a maximum of the days In Scope have been consumed.
• Project initiation and discovery: Virtual interviews between Company and Subscriber to review
desired outcomes, current processes, account configuration, data, and reporting needs, and change
management process.
• Data Import: Data loading of pick list values or primary record data types (e.g. work orders, events, PM
schedules) in Subscriber's application.
• Account configuration: Reviewing, removing duplicates, making recommendations for best alignment
of data categories, and aligning with Company Import templates for inclusion in Subscriber's solution.
Data loading and account configurations are tailored to Subscriber needs.
• Application Training: Administrator and/or role -based user training to include functions associated to
specific role permissions. Desktop and/or mobile training topics include maintaining current data, basic
or advanced workflows, creation and processing of records, and general navigation. Training is tailored
to Subscriber needs.
• consulting: Focused guidance by experienced Company consultants to aid the utilization of Subscribers
application effectively and efficiently.
12
Acceptance Process:
All the days In Scope have been consumed or desired outcome has been met, not to exceed the days in Scope.
Assumptions:
Subscriber Assumptions:
• If applicable (data import), data should be provided in an Excel or CSV format in one sheet or workbook
with unique records in each row. Multi -tab spreadsheets or multiple rows of data per record will not
import successfully and will require additional services. Company cannot access or extract data from
other systems or locations.
• If applicable (data import), not all data from a legacy system or database will have a one -for -one match
in your Company solutions. Company will work with Subscriber to determine the best approach to
capture and map this data.
• Subscriber is responsible for providing login information ahead of time to users, as well as provide
devices where the mobile app (if applicable) or web browser is downloaded and up to date.
• Subscriber is responsible for troubleshooting any issues related to their IT infrastructure including
network and device management.
• Subscriber will schedule time for the appropriate resources to be available to the consultant for the
duration of any confirmed virtual meeting(s). The success of this process is dependent on the
attendance and responsiveness of the key stakeholders.
• Subscriber will verify with their Company Project Coordinator that they have the correct versions of
applications to allow for requested changes to their data or account configuration.
• For onsite activities, Subscriber will provide a dedicated space with adequate technology, including but
not limited to monitor/projector, computers, mobile devices, quality phone and internet connections
• Subscriber acknowledges rescheduling or cancelling services within 2 weeks of the confirmed date will
require rescheduling based on current availability which may result in delays to the larger
implementation project and a rescheduling fee.
Company Assumptions:
• Consultant will not access any 3rd party systems for the purpose of exporting data.
• For on -site activities, Company will bill Subscriber for actual travel and associated expenses incurred.
• Any services not explicitly included in this SOW are assumed to be out of scope.
Project Schedule:
Project schedule is dependent on the services purchased by Subscriber and will be determined during the
project kick-off call, not to exceed the days In Scope.
Change Management:
13
Subscriber may request that the Company add services not in the specifications by submitting a written
proposed change order to the Company. Submitted change requests will be reviewed for approval. Approved
change orders will become part of the applicable SOW when executed by both Parties, and the services
described therein will become part of the services.
Invoicing:
At the conclusion of services outlined in this SOW, the consulting service will be completed to trigger billing for
the full service.
14
Facility Condition Assessment Scope of Work
Purpose
Brightly's ("Company") facility condition assessment ("FCA") is a visual assessment evaluating the facility systems
based on the following Standard Scope of Work ("SOW"). This FCA service will collect data on major facility
assets, as well as provide narratives that summarize assessment observations and comments. An inventory
of Equipment Items as well as a forecast model of upcoming System/Sub-System replacements will be imported
into Company's work & asset management, capital forecasting and capital prediction software solutions as set
forth on the applicable Order Form.
value
By partnering with Company you not only gain the engineering expertise of Company's Service Providers; you
also are provided with assurance that the data collected as a result of the facility condition assessment is
properly integrated into your Company software applications. Company has successfully completed more than
800 projects ranging from Facility Condition Assessments, Asset Inventory Collection (including barcoding) and
preventive maintenance schedule creation. Our methodology provides you with confidence to make better
data, decision -making on both short-term and long-term capital investment needs of your organization.
Deliverables
All FCA's will include a deliverable containing the following items:
• Narrative report with descriptions of major systems and corresponding conditions
• Primary digital photos of key components and deficiencies are included in the narrative
• 20-year capital Reserve table with System/Sub-System replacement costs and dates
• Import of Systems -level detail into client's Company capital forecasting/prediction solution
• Import major Equipment Items into client's Company work & asset management solution.
Methodology and Approach
A Certified Company Service Provider will collect, document, and analyze
the facilities assessment data to achieve the following:
• At the start of each building or facility assessment we will interview client's staff to understand what
improvements have been made in the last three years, what improvements are planned in the next
three years and known problems that may exist.
• Inventory all major building equipment including quantity, size, asset tag number, manufacturer, model
and serial number.
• Identify deficient conditions in terms of deferred maintenance and building condition.
• Provide a reasonable cost analysis for the above -mentioned efforts.
• For single building projects, provide a report for the property that details the assessment data.
• For multi -building projects, data will be collected from every building in the portfolio. The narrative
report will include an executive role up for all sites included with the service.
The field data collection will be performed at an individual and system level as described below:
15
1. Detailed data collection of individual equipment items will be captured to build an equipment inventory
which will be imported into Company's work & asset management solution as defined in the Asset
Inventory and System/Component table below.
2. A condition assessment of major building systems, including HVAC, Electrical, Plumbing, Roofing, Site
Paving, Vertical Transportation, Structural and Building Envelope to be imported into Company's capital
forecasting/prediction solution as defined in the Asset Inventory and System/Component table below.
1. HVAC equipment items only will also be tracked in the capital forecast or prediction solution as specific
Sub -Systems. For these items, Make/Model/Serial Number will be captured and tracked in the
Equipment Inventory, and the item will also be included as a Sub -System.
2. All other major Systems will be collected at the Systems Level in Company's capital forecasting solution
as a general Sub -Systems.
Asset Inventory and Systems/Component Table
The following table defines the standard SOW that will be followed to capture the equipment data used to build
the Equipment Inventory, which will be imported into the Work & Asset Management Solution as well as
the System -Sub -System data used to build the Capital Reserve Table that will be imported into the capital
forecasting or prediction solution.
Table Column Header Descriptions
Individual or System Level Capture
• Individual = Item will be collected individually
• System = Item will be grouped by system or sub -system, location will correspond to the associated
building structure
Item Represented in Capital Forecasting or Prediction solution? YIN
• No = Cost information related to individually captured items will be provided at a system or sub -system
level only in capital forecasting or prediction solution
Included in Equipment Inventory?YIN
• No = Item will not be setup in the work & asset management solution
*items captured as a system will be setup as a single equipment inventory item so that work can be
tracked against it.
Sub -System
Individual
or System
Level
Capture
Item Represented
in Capital
Forecasting? (YIN)
Included in
Equipment
Inventory? (YI
N)
Comments
Exterior Systems
16
Sub -System
individual
or System
Level
Capture
Item Represented
in Capital
Forecasting? (Y/N)
Included in
Equipment
Inventory? (Y/
N)
Comments
Exterior Doors
Exterior Walls
(Finish)
System Level
System Level
Exterior Windows System Level
Roofing System Level
Electrical
Automatic Transfer
Individual
Switch
Electric Door
Systems
Emergency
Generators
Main Distribution
Panels
Motor Control
Centers
Switchgear
Transformers
Individual
Individual
Individual
Individual
Individual
Individual
Yes
Yes
Yes
Yes
No
No
No
No
No
No
No
Breakers, switches
Not Included in Service
or starters
Individual light
fixtures (emergency, Not Included in Service
exterior, etc.)
Motors
Portable
Generators
Not Included in Service
Not included in Service
No
No
No
No
Make/Model/Serial number will be
Yes
captured when available
Yes Exterior Doors Only
Must be Permanently Installed, does
Yes
not include mobile units
Primary panel bringing utility into
Yes
building only
Yes
Yes
Primary Service to Building (Must be
Yes
Client Owned)
17
Sub -System
Individual
or System
Level
Capture
Item Represented
in Capital
Forecasting?(YIN)
Included in
Equipment
Inventory? (Y/
N)
Comments
Secondary Electrical
Not Included in Service
Panels
VFDs
Not Included in Service
Emergency Back -
System Level Yes
Up Lights
Lighted Exit Signs System Level Yes
Equipment
Yes
Yes
Commercial
Laundry (washers, Individual No Yes
dryers)
Commercial Trash
Compactors Individual
No
Cost model based upon building SQ
FT cost
Client -Owned, Permanently -
Yes installed facility infrastructure units
only
Residential Type
Residential Washer/Dryers,
Appliances, Shop
Tools and
Not Included in Service Refrigerators, Microwaves and
Ranges Not Included
Equipment
Exterior Enclosure
Garage Door & Commercial Type Garage Openers
Garage Door Individual No Yes Only (Excludes Residential single
Opener care garage doors)
Fire Protection
Eyewash / Safety
Individual No Yes Permanently Installed Items
Showers
Fire Pump individual No Yes Main Fire Pump and Jockey Pumps
greater than 1 HP
Main Fire Panel Individual No Yes
Fire valves,
Not Included in Service Included in Alarm System SF Cost
hydrants
18
Sub -System
Individual
or System
Level
Capture
Item Represented
in Capital
Forecasting? (YIN)
included in
Equipment
Inventory?(YI
N)
Comments
Smoke detectors,
horn strobes Not Included in Service
Included in Alarm System SF Cost
AEDs System Level Yes Yes
Fire Alarm System System Level Yes Yes Barcode applied to Main Fire Panel
Fire Extinguishers System Level Yes Yes
Specialty Fire
Suppression System Level Yes Yes Kitchen -Style Suppression System
System
Sprinkler System System Level Yes Yes
HVAC
Air Handling Units Individual Yes Yes Includes Rooftop and Ground
Boilers Individual Yes Yes
Building Automation Individual Yes Yes
System
Chilled Water
Individual Yes Yes
pumps
Chillers Individual Yes Yes
Cooling Tower
Individual Yes Yes
pumps
Cooling Towers individual Yes Yes
Deaerators Individual Yes Yes
Energy Recovery
Individual Yes Yes
Units
Exhaust Fans Individual Yes Yes Rooftop Only
Exhaust hoods Individual Yes Yes
Furnaces Individual Yes Yes Non -Residential
19
Sub -System
Individual
or System
Level
Capture
Item Represented
in Capital
Forecasting? (Y/N)
Included in
Equipment
Inventory? (Y/
N)
Comments
Heat Pumps Individual
Yes
Make/Model/Serial number will be
captured for both interior and
Yes exterior when accessible; otherwise
it will be captured as one single cost
and item
Hot Water pumps Individual Yes Yes
Make Up Air Units Individual Yes Yes
Package AC Units Individual Yes Yes includes Rooftop and Ground
Split Systems Individual Yes Yes
Unit Heaters Individual Yes Yes
Fan Coil Units* Individual Yes Yes
Unit Ventilators* Individual
Yes Yes
VAV Boxes* Individual Yes Yes
Window Units Not Included in Service
Radiators Not included in Service
Thermostatic
Not Included in Service
Controls
Interior Systems
Ductless Split Systems wili be
captured as one single item. The
barcode will be located on the
exterior unit
Included in the service and
quantified based on client supplied
data and/or drawings only. *No
visual capture.
Included in the service and
quantified based on client supplied
data and/or drawings only. *No
visual capture.
Included in the service and
quantified based on client supplied
data and/or drawings only. *No
visual capture.
20
Sub -System
Individual
or System
Level
Capture
Item Represented
in Capital
Forecasting? (Y/N)
Included in
Equipment
Inventory? (Y/
N)
Comments
Interior Ceiling
Interior Doors
Interior Floor
Interior Walls
Kitchen
Dishwashers
Freezer (Walk In,
Reach In)
Grease Traps
Large Kitchen
Equipment
Oven, Stoves
Refrigerator (Walk
In, Reach In)
Broilers, Grills,
Fryers
Counter Top
Appliances
Cutlery
Tables, Racks
Plumbing
System Level
System Level
System Level
System Level
Individual
Individual
Individual
Individual
Individual
Individual
Individual
Yes
Yes
Yes
Yes
No
No
No
No
No
No
Not Included in Service
Not Included in Service
Not Included in Service
Domestic Hot Water
Individual
Heaters
Domestic Water
Booster Pumps
Individual
No
No
No
No
No
No
Yes Commercial -Style, non-residential
Yes
Will not receive a barcode if
Yes
barcoding services is included
Yes Valued above $2,000
Yes
Yes Commercial -Style, non-residential
No Yes Valued above $2,000
Yes
Yes
80 Gallons and Above. Does not
include Instant Hot Water Heaters
1 HP and above
21
Su b-System
Individual
or System
Level
Capture
Item Represented
in Capital
Forecasting? (Y/N)
included in
Equipment
Inventory? (Y/
N)
Comments
Hot Water Storage
Tank Individual
No
Main Backflow
Individual No
Preventer
Sump Pumps Individual No
Fixtures System Level
Filters Not Included in Service
Strainers Not Included in Service
Valves Not Included in Service
Site
Improvements
Drainage Systems
Parking, Paving ,
Sidewalks
Utilities
System Level
System Level
Yes
Yes
Yes
Yes
Yes
Yes
No
No
No
Includes Domestic and Fire
Suppression
Under the floor, behind the wall
related items - electrical
distribution,
System Level Yes No Domestic water/sewer &
HVAC Ductwork. Cost
per sq. ft. estimation for
replacement/rehab.
Vertical
Transportation
Dumb Waiter Individual No Yes
Elevators Individual No Yes
Escalators Individual No Yes
22
For the Equipment items and Systems/Sub-Systems listed in the Asset Inventory and Systems/Component
Table above, the following attributes will be captured as follows depending on whether the item is included in
the Equipment Inventory and/or as a General or Specific System Component of the Capital Forecast or Capital
Prediction solution:
Field Name
Work & Asset Management Data
Population (Y/N)
Equipment Items
Capital Forecasting Data Population
(YIN)
General Sub -
System
Specific Sub -System
Equipment Item Number
System -Component ID
Y
Y*
Corresponding
N Equipment Item
Number will replace
N Y
Sub -System ID
N*
Corresponding
Equipment Item
Number will replace
Sub -System ID
Site/Location/Building
Name Y Y Y
Description Y Y Y
System/Sub-System N Y Y
Classification/Type Y N N
Unit of Measure N Y Y
Quantity N Y Y
Unit Cost N Y Y
N*
Manu/Model/Serial
Numbers
N Will be included on
Individual Equipment
Record
23
Field Name
Tag
(if available)
Date In Service
(if available)
Condition
Estimated Replacement
Cost
Estimated Next
Replacement Date
Life Cycle
Included in 20-year Capital
Forecast?
Evaluation
Work & Asset Management Data
Population (Y/N)
Equipment Items
Y
Y
Y
Y
Y
N
At the conclusion of the assessment(s), the Company Service
Provider will prepare reports as described above that include:
Capital Forecasting Data Population
(YIN)
General Sub -
System
Y
Y
Y
Y
Y
Y
Specific Sub -System
Y
Y
Y
Y
Y
Y
• A general description of the property and improvements and
comment generally on observed conditions.
• Comments for components that are exhibiting deferred maintenance issues and provide estimates for
"immediate" and "capital repair" costs based on observed conditions, available maintenance history and
industry -standard useful life estimates. If applicable, this analysis will include the review of any available
documents pertaining to capital improvements completed within the last three years, or currently under
contract. The Company Service Provider shall also inquire about available maintenance records and
procedures and interview current available on -site maintenance staff.
• A schedule for recommended replacement or repairs (schedule of priorities).
• Address critical repairs separately from repairs anticipated over the term of the analysis.
• A FCI index number for each building.
• A twenty year capital plan with an Executive Summary with graphic presentation of results to provide a quick, "user-
friendly" summary of the property's observed condition and estimated costs assigned by category.
Cost Estimating
24
Each single building report will include an estimated cost for each System/Sub-System repair or replacement
anticipated during the evaluation term. The capital needs analysis will be presented as an Excel -based cost
table that includes a summary of the description of each component, the age and estimated remaining useful
life, the anticipated year of repair or replacement, quantity, unit cost and total cost for the repair of each line
item. A consolidated Capital Needs Analysis will be presented that includes all anticipated capital needs for ail
buildings.
In addition to the detailed description of the deficiencies, we will provide cost estimates for the deficiencies
noted. The cost estimate for capital deficiencies will be based on the estimate for maintenance and repair.
Project management costs, construction fees, and design fees will be derived using actual costs from previous
projects, if available.
Company Service Providers use the ASTM Uniformat Il system for categorization and a proprietary blend of
national prevailing industry -standard cost models for cost estimating. Company also maintains and updates
our cost estimating system with information received from the field. Through our construction monitoring
work, we have current cost data from hundreds of in -progress construction and rehabilitation projects. This
allows us to project costs based on local conditions and to maintain a cost database that in most cases is more
current than published models.
Assumptions
Average building square footage is greater than 10,000 sq. feet. If average square footage
of all buildings to be included to receive the service is less than 10,000 sq. feet, custom pricing is
needed.
• All buildings are located within one primary geographic zone/region (Example - School District, Higher
Education, Main Campus, and Town). If multiple or scattered locations across the state are to receive
the service a custom quote must be obtained. (Example - Multiple Higher Education Satellite Campuses
locations, State Department Agencies)
• Residence Halls -A sampling would be based upon visits to approx. 20% of the moms. When calculating
the projected replacement cost of the in -residence items, these items will be treated as a system. A cost
based upon the sampling will be generated for the system. individual in -room collection of assets would
not be provided, if desired a custom quote would be needed.
• Reconciliation of existing equipment in Company work & asset management solutions and updating of
historical records will not be performed. If reconciliation is required this is subject to additional costs
depending upon the amount of changes requested.
• Capture of Data plate information is subject to readily accessible, legible information plate.
• Company team members make final determination of whether areas housing assets are safely
accessible for data collection.
• Company team members will not move assets or interfere with asset functionality to collect nameplate
information.
All Data on SOW is captured at the asset level - subcomponents of assets listed on the SOW will not be
captured.
• Equipment not in service or identified as "Run -to -Fail" are excluded from data gathering service unless
inventory is required for compliance purposes.
Client Responsibility
25
Client will provide the needed input, resources, and documentation to support the tasks of the service
and associated timelines for delivery of the service.
2. Any data to be migrated from client drawings or spreadsheets has to be provided to the Company
Service Provider within 15 business days of completion of onsite activity.
3. Client will review and provide any feedback related to data sent to them for review by Company Service
Provider or Company within 15 business days or unless otherwise determined.
4. If Data is not reviewed within the 15 business day time period Company will assume that the Data
provided by the Company Service Provider is approved and will load into the client's software.
5. Client will be responsible for scheduling and coordinating all meetings and interviews involving other
teams, departments, management teams or other necessary resources required for the success of this
project.
6. Client will provide adequate access to working facilities (i.e., access badge, parking pass), if specific
authorization or clearance is required client will notify Company and/or Company Service Provider in
advance of onsite.
7. Client will ensure that the Company Service Provider is granted accessibility to the facilities andlor
systems required to conduct the necessary work defined in this SOW. If Company Service Provider is not
granted access to all areas, this could result in missed information gathering and/or delays in
implementation timelines. For Flat Roofs, this means providing the Company Service Providers with
access to a ladder so that they are able to conduct a visual assessment.
8. Client will ensure that the Company Service Provider is granted accessibility to Company Software, for
Clients with Connect Authenticate/Single Sign On this may require your Technology Team to setup the
Company Service Provider in your organizations Identity Provider service.
9. Client will provide a knowledgeable escort for work defined in this SOW and access to personnel as
necessary.
10. Reconciliation of existing equipment in Company work & asset management solutions and cleanup of
historical records and/or data within the software is subject to additional costs depending upon the
amount of changes requested.
11. Company is not responsible for reconciliation of portable or moveable assets after onsite collection is
performed.
12. Addition of Equipment Barcode Tagging services must be purchased prior to onsite activity by the
Company Service Provider and is not included in the Standard FCA SOW.
Milestone Billing - Invoice Schedule
Invoicing for the Facility Condition Assessment service will be provided as delivery milestones are completed for
projects equal or greater than 154,000 square feet. Below is the schedule far the billing milestones and the
related percentage.
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Facility Condition
Assessment
Milestones
Description
Percentage
Mobilization
On -Site Field Data
Capture
Data Management
Report
Project acquisition template set up, Vendor kickoff call with client, Travel
arrangement costs; other miscellaneous pre -visit preparation
Project launch meeting with client first day of onsite, acquisition of data to
Scope of Work at all locations included in project, and closing meeting at
end of onsite activity to confirm completion and review next step actions.
Data activity, including quality assurance and control that occurs after field
work is completed to produce the data file.
Creation and delivery of final narrative reports (FCA), and data files (FCA/
Data Gathering) to client.
*If project is greater than 1.5M Square feet additional milestones will be leveraged.
Equipment Inventory Barcoding Service
Purpose
15%
35%
35%
1 5%
The Equipment Inventory Barcoding Service works with your Brightly Work & Asset Management solution in
conjunction with an "Equipment Inventory" (Data Gathering) or a Facility Condition Assessment (FCA) service
offering.
Value
Barcoding identifies equipment by assigning a unique number to that equipment item which will then serve as
an identifier in your Brightly Work & Asset Management system database allowing for easier identification and
tracking of the item. The barcoding of equipment inventory occurs during the onsite equipment data gathering/
collection process.
Deliverables by Brightly to the Client include the following:
• Commercially produced weather resistant barcodes will be applied to the major pieces of equipment
covered in the scope of work provided in the Data Gathering or Facility Condition Assessment services.
Barcode numbers will be available for use at the time equipment inventory data is imported into your
Brightly Work & Asset Management solution.
The Brightly Service Provider will make an effort to apply barcodes in a convenient location so the facility's
maintenance staff can easily identify them. Based upon our professional expertise, we recommend the
following -
• Application of the barcode shall be placed next to the Data Plate of an Asset. Placing barcodes in this
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location ensures that the barcode can be easily identified and associated to the asset in a CMMS
software.
If data plate is not present, or is inaccessible, the barcode will be placed in an accessible area that is
easily seen by maintenance technicians, does not detract from the appearance of the equipment, isn't in
danger of being tampered with, or will be otherwise destroyed through normal use and cleaning of the
asset.
Assumptions
• Purchase of service is made prior to onsite activity. If onsite activity has been completed, custom pricing
would be required as a revisit would be needed for the placement of the barcodes.
• For Asset Essentials Clients, determination of 1 D (Standard) vs 2D (QR Codes) is required prior to onsite
activity. URL creation along with QR code purchase and encoding is needed prior to onsite activity. If
determination is not provided prior to onsite activity, 1 D (Standard) barcodes will be used.
Invoice Schedule
Invoicing for the Barcoding Service will be provided upon completion of onsite activity at 100%.
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:
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• 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 Client
• Setup baseline PM schedules for the equipment inventory collected
• Work with the Client 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 Client 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
will be loaded into the Client's Work & Asset Management solution as "Inactive".
Assumptions
Client will provide feedbacklreview 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 far the PM Schedule Creation Service will be provided upon receipt of PM Schedule drafts at 100%
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Order terms
• By accepting this Order, and notwithstanding anything to the contrary in any other purchasing
agreement, Subscriber agrees to pay all relevant Subscription Fees for the full Subscription Term defined
above.
• Payment terms: Net 90
• Billing frequency for Cloud Services will be Annual.
The "Effective Date" of the Agreement between Subscriber and Company is the date Subscriber accepts
this Order.
This Order and its Offerings are governed by the terms of the Brightly Software, Inc. Master Subscription
Agreement found at http://brightlysoftware.eom/terms (htt :Ip /brigbtlys�f ware.com/
terms) ("Agreement"), unless Subscriber has a separate written agreement executed by Brightly
Software, Inc. ("Company") for the Offerings, in which case the separate written agreement will govern.
Acceptance is expressly limited to the terms of the Agreement. No other terms and conditions will apply.
The terms of any purchase order or similar Subscriber document are excluded and such terms will not
apply to the Order and will not supplement or modify the Agreement irrespective of any language to the
contrary in such document.
• To the extent professional services are included in the Professional Services section of this Order, the
Professional Services Addendum found at http://brightlysoftware.com/terms
(http://brightlysoftware com/terms) is expressly incorporated into the Agreement by reference.
During the Subscription Term, Company shall, as part of Subscriber's Subscription Fees, provide
telephone and email support ("Support Services") during the hours of 8:00 AM and 6:00 PM EST, (8:00
am — 8:00 pm EST for Community Development Services) Monday through Friday ("Business Hours"),
excluding Company Holidays.
• Company maintains the right to increase Subscription Fees within the Subscription Term by an amount
not to exceed the greater of prices shown in the investment table or the applicable CPI and other
applicable fees and charges every 12 months. Any additional or renewal Subscription Terms will be
charged at the then -current rate.
• Acceptance of this Order on behalf of a company or legal entity represents that you have authority to
bind such entity and its affiliates to the order, terms and conditions herein. If you do not have such
authority, or you do not agree with the terms set forth herein, you must not accept this Order and may
not use the Offerings.
• Proposal expires in sixty (60) days.
• Subscriber shall use reasonable efforts to obtain appropriation in the full amount required under this
Order annually. If the Subscriber fails to appropriate funds sufficient to maintain the Offerings described
in this Order, then the Subscriber may terminate the Offerings at no additional cost or penalty by giving
prior written notice documenting such non -appropriation. Subscriber shall use reasonable efforts to
provide at least thirty (30) days prior written notice of non -appropriation. Subscriber agrees non -
appropriation is not a substitute for termination for convenience, and further agrees Offerings
terminated for non -appropriation may not be replaced with functionally similar products or services
prior to the expiration of the Services Term set forth in this Order. Subscriber will not be entitled
to a refund or offset of previously paid, but unused Fees.
Special Terms
30
• Section 5.1 of the MSA is revised to reflect:
5.1 Subscription Term. This Order and its Offerings will commence on the Effective Date set forth on the
Order and continues until the Offerings hereunder have expired or have been terminated (the
"Subscription Term"). Thereafter, the Subscription Term may renew for additional periods equal to the
expiring Subscription Term or one year, whichever is longer, by written notice of Subscriber's intent to
renew the subscription not less than forty-five (45) days prior to the expiration of the then -current
Subscription Term applicable to the Subscription Term."
Additton.al info.rniatian
Prices shown above do not include any taxes that may apply. Any such taxes are the responsibility of
Subscriber. This is not an invoice. For customers based in the United States, any applicable taxes will be
determined based on the laws and regulations of the taxing authority(ies) governing the "Ship To"
location provided by Subscriber. Tax exemption certifications can be sent to
accountsreceivable@brightlys.oftware.com (ma ilto:accountsre.ce.ivabl.e tbrightlysoftwaro,co.rn).
• Billing frequency other than annual is subject to additional processing fees.
• Please reference Q-389990 on any applicable purchase order and email to
Rur haseordersca Brightlysoftware.com (mailto:Purchaseorders(Brightlysoftware,com)
Brightly Software, Inc. can provide evidence of insurance upon request.
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Q-389990
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the day and year last written
below.
City Of Redlands
[Signature]
Name: m S Name: ��DDu{r.
1U'1�tc'1 �,.eti gala-�
[printed or typed] [printed or typed]
Title: C-Title: 1 nt1AV
Date:
By:
cJ- . acaa{
it/
/6.2
[Signature]
Name: miif--e-,
[printed or typed]
Title: 11t A SA,,) j\Anrk�t
Date: b l6 a� {
Date:
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