HomeMy WebLinkAbout5.4 Renewal of the License Subscription to Oomnitza, Inc. for Information Technology Asset Management Softwarer
DUBLIN
CALIFORNIA
STAFF REPORT
CITY COUNCIL
DATE: May 7, 2024
TO: Honorable Mayor and City Councilmembers
FROM: Linda Smith, City Manager
Agenda Item 5.4
SU B.ECT : Renewal of the License Subscription to Oomnitza, Inc. for Information
Technology Asset Management Software
Prepared by: Steve Windsor, CISO
EXECUTIVE SUMMARY:
The City Council will consider the license subscription to Oomnitza, Inc. for information
technology asset management software, and authorize the City Manager to execute the annual
renewals.
STAFF RECOMMENDATION:
Adopt the Resolution Approving the License Subscription to Oomnitza, Inc. for Information
Technology Asset Management Software and Authorizing the City Manager to Execute Annual
Renewals.
FINANCIAL IMPACT:
Funding for computer -related software and services is included in the Information Systems
Operational Budget. Sufficient funding for this licensing cost will be included in the Fiscal Year
2024-25 Budget and in future budget cycles.
DESCRIPTION:
For the past year, the City has used the Oomnitza, Inc. suite of asset management products to
maintain an accurate accounting of the City's information technology (IT) assets. This software
has allowed Staff to receive, document, deploy, and report on the location and ownership of its
technology hardware. During this time, the Oomnitza product has been well regarded by IT Staff.
In Fiscal Year 2023-24 the cost of the subscription to this software was under the City Manager's
purchasing threshold outlined in the Municipal Code and therefore did not require City Council
approval. Staff desires to continue to use the Oomnitza software and is therefore requesting City
Council approval to execute the annual licensing agreement on an annual basis. The proposed
Page 1 of 2
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license fee for Fiscal Year 2024-25 is $46,500, an increase of $2,000 (4.5%) over the current year
fee. Staff anticipates future increases to be similar.
Section 2.36.050(A) and (B) of the Dublin Municipal Code allow for exceptions to the typical
public bidding process when a purchase involves goods of a technical nature, where it would be
difficult for a vendor to bid on a standard set of specifications. Software licensing falls into this
category.
The original license subscription to the Oomnitza, Inc. IT Asset Management Software, expiring
June 30, 2024, is included as Attachment 3. Approval of the Resolution (Attachment 1) will
authorize the City Manager to renew the subscription in excess of $45,000 on an annual basis as
long as the City utilizes the software and has included the appropriate funding in the annual
budget.
STRATEGIC PLAN INITIATIVE:
Objective A: Reduce/eliminate the need for paper transactions where feasible.
Objective B: Provide on -going condition assessments of aging city facilities and assets.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
The City Council Agenda was posted.
ATTACHMENTS:
1) Resolution Approving the License Subscription to Oomnitza, Inc. for Information Technology
Asset Management Software and Authorizing the City Manager to Execute Annual Renewals
2) Exhibit A to the Resolution - License Subscription to Oomnitza, Inc. IT Asset Management
Software Agreement Renewal
3) License Subscription to Oomnitza, Inc. IT Asset Management Software Agreement
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Attachment I
RESOLUTION NO. XX — 24
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING THE LICENSE SUBSCRIPTION WITH OOMNITZA, INC. FOR INFORMATION
TECHNOLOGY ASSET MANAGEMENT SOFTWARE AND AUTHORIZING THE CITY
MANAGER TO EXECUTE ANNUAL RENEWALS
WHEREAS, the City currently subscribes to Oomnitza, Inc.'s suite of information
technology asset management software to deploy and track the citywide hardware; and
WHEREAS, the current license subscription to Oomnitza, Inc. software expires June 30,
2024; and
WHEREAS, Staff desires to continue to utilize the Oomitza software on an ongoing basis,
requiring annual renewal of the license subscription; and the proposed license subscription fee is
in excess of the City Manager's authority; and
WHEREAS, Sections 2.36.050(A) and (B) of the Dublin Municipal Code allow for
exceptions to the typical public bidding process when a purchase involves goods of a technical
nature, where it would be difficult for a vendor to bid on a standard set of specifications, provided
that the City Council shall award purchases in excess of $45,000.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
hereby approve the renewal of the license subscription to Oomnitza, Inc., attached hereto as
Exhibit A.
BE IT FURTHER RESOLVED that the City Manager is authorized to execute annual
license subscription renewals for this product, subject to budget availability, and is further
authorized to make any changes to the license agreement to carry out the intent of this resolution.
PASSED, APPROVED AND ADOPTED this 7th day of May 2024, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
Reso. No. XX-24, Item X.X, Adopted XX/XX/2024 Page 1 of 1 3
DocuSign Envelope ID: 8EDD4801-7913-43FE-9DCE-CD6A91F994AD
Attachment 2
oomnitza
By:
Name:
Title:
Order Form
Contacts
Customer: Oomnitza Inc.
City of Dublin 548 Market St
Suite 18912
San Francisco, California 94104-5401
Steve Windsor
Email: steve.windsor@dublin.ca.gov Amanda Groppetti
Email: Amanda.Groppetti( oomnitza.com
Services:
License subscription to Oomnitza suite of products included below.
Fees:
Platform/Connector Subscription
Subscription Sale Price
Platform Fee (Production Environment, Dev $10,000
Environment, Workflow Capabilities, Support
and Dedicated CSM)
Assets Module — Up to 2,000 Assets $20,000
Accessories Module $5,000
Software Module - Up to 100 Employees $1,500
Integration Bundle - Up to 5 Integrations $10,000
Total Annual Subscription $46,500
Term: Term of one (1) year (subject to renewal as set forth in the Agreement).
Agreement
This agreement ("Agreement") is entered into as of June 30, 2024 (the "Effective Date") between Oomnitza Inc.
("Oomnitza"), and the customer listed above ("Customer"). This Agreement includes and incorporates (i) the above Order
Form, and (ii) Oomnitza's Enterprise terms entered on June 30, 2023, which have been previously provided and agreed to by
Customer in connection with a previous order form; and all of which are in each case hereby incorporated by reference.
There shall be no force or effect to any different terms of any related purchase order or similar form after the date hereof
unless the related purchase order or similar form is signed by an authorized officer of Oomnitza and the related purchase
order or similar form specifically mentions the provision of this Agreement to be superseded.
Oomnitza Inc.: (-DocuSigned by:
VCtbr (�wt
-404C8BEF33484F0..
Victor Hwei
CFO
4/23/2024
Customer:
By:
Name:
Title:
4
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Attachment 3
City of Dublin, California
Contact: Steve
Windsor Email:
Billing
steve.windsor@dublin.ca.gov
Quote Created: 3/22/23
Email:
oomnitza
Order Form
Contacts
Oomnitza Inc.
548 Market St,
Suite 18912
San Francisco, CA 94104
Contact Name: Lorin
Email: lorin.bartlett@oomnitza.com
Quote Expires: 6/30/23
Services:
License subscription to Oomnitza suite of products included below.
Product
Quantity
List Price
Sales Price
Software Module (# of
users)
Integration Bundle
Endpoints Module
Accessories Module (# of
Accessories)
Platform Fee - (Production
Environment, Sandbox
Environment, Configuration
Migration, CSM, Advanced
Reporting)
Implementation
300
1
2000
5000
1
1
$4,500
$15,000
$24,000
$5,000
$15,000
$15,000
Grand Total
$4,500
$10,000
$22,000
$5,000
$15,000
$10,000
$44,500
1
.5
DocuSign Envelope ID: 835B4BB8-FFA5-497C-9EDF-5AEE0A35274B
Quote Total Price: $44,500
Term: 1-year
PO Required? Yes
PO Number: 237374
*The Advanced Reporting Module is a third -party product provided under license from
EazyBl SIA ("EazyBl"). Customer's signature of the Agreement constitutes Customer's
consent to Oomnitza's authorization of EazyBl as a sub -processor under applicable data
protection laws and data protection addendum or agreement between Customer and
Oomnitza.
Agreement
This agreement ("Agreement") is entered into as of (the "Effective Date") between
Oomnitza Inc. ("Oomnitza"), and the customer listed above ("Customer"). This Agreement
includes and incorporates (i) the above Order Form, and (ii) Oomnitza's standard Enterprise
Terms, which are attached hereto. This Agreement contains, among other things, warranty
disclaimers, liability limitations and use limitations. There shall be no force or effect to any different
terms of any related purchase order or similar form after the date hereof unless the related
purchase order or similar form is signed by an authorized officer of Oomnitza, and the related
purchase order or similar form specifically mentions the provision of this Agreement to be
superseded.
Oomnitza: Customer:
By:
DocuSigned by:
Pahnth_ blnatu
'-8A81CA6E7D1 F490...
By:
p-DocuS ned by:
'-E33836CFFC044E0...
Name: Patrick Zanoni Name: Linda Smith
Title: CFO Title: City Manager
Date Signed: 7/17/2023 Date Signed: 7/17/2023
Enterprise Terms
PLEASE READ THESE ENTERPRISE TERMS ("TERMS") CAREFULLY BEFORE USING THE
SERVICES OFFERED BY OOMNITZA INC. ("OOMNITZA"). BY MUTUALLY EXECUTING ONE
OR MORE ORDER FORMS WITH OOMNITZA WHICH REFERENCE THESE TERMS (EACH,
AN "ORDER FORM"), YOU (City of Dublin) AGREE TO BE BOUND BY THESE TERMS
(TOGETHER WITH ALL ORDER FORMS, THE "AGREEMENT") TO THE EXCLUSION OF ALL
OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER,
ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
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1. Order Forms; Access to the Service
Upon mutual execution, each Order Form shall be incorporated into and form a part of the
Agreement. Subject to Customer's compliance with the terms and conditions of this Agreement
(including any limitations and restrictions set forth on the applicable Order Form) Oomnitza grants
Customer a non-exclusive, non -transferable (except in compliance with permitted assignments
under Section 16) right to access and use the services specified in each Order Form (collectively,
the "Service," or "Services") during the applicable Order Form Term (as defined below) for the
internal business purposes of Customer, only as provided herein and only in accordance with
Oomnitza's applicable official user documentation (the "Documentation"). Customer is
responsible for the use of the Service by any person to whom Customer has given access to the
Service, even if Customer did not authorize such use.
2. Implementation
Upon payment of any applicable fees set forth in each Order Form, Oomnitza agrees to use
reasonable commercial efforts to provide standard implementation assistance for the Service only
if and to the extent such assistance is set forth on such Order Form (such assistance,
"Implementation Assistance"). If Oomnitza provides Implementation Assistance in excess of
any agreed -upon hours estimate, or if Oomnitza otherwise provides additional services beyond
those agreed in an Order Form, Customer will pay Oomnitza at its then -current hourly rates for
consultation.
3. Support; Service Levels
Subject to the terms and conditions of this Agreement, Oomnitza will provide support and
uptime for the Service in accordance with Oomnitza's standard Support and Availability Policy,
attached hereto as Exhibit A.
4. Service Updates
From time to time, Oomnitza may provide upgrades, patches, enhancements, or fixes for the
Services without additional charge ("Updates"), and such Updates will become part of the
Services and subject to this Agreement; provided that Oomnitza shall have no obligation under
this Agreement or otherwise to provide any such Updates.
5. Ownership; Feedback
As between the parties, Oomnitza retains all right, title, and interest in and to the Services, all
software, products, works, and other intellectual property and moral rights related thereto or
created, used, or provided by Oomnitza for the purposes of this Agreement, including any copies
and derivative works of the foregoing, and the Aggregated and/or De -Identified Data. Any
software which is distributed or otherwise provided to Customer hereunder (including without
limitation any software identified on an Order Form) shall be deemed a part of the Services and
subject to all of the terms and conditions of this Agreement. No rights or licenses are granted
except as expressly set forth in this Agreement. Customer may from time to time provide
suggestions, comments or other feedback to Oomnitza with respect to the Service ("Feedback").
Feedback, even if designated as confidential by Customer, shall not create any confidentiality
obligation for Oomnitza notwithstanding anything else. Customer shall, and hereby does, grant
to Oomnitza a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable,
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royalty -free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this
Agreement will impair Oomnitza's right to develop, acquire, license, market, promote or distribute
products, software or technologies that perform the same or similar functions as, or otherwise
compete with any products, software or technologies that Customer may develop, produce,
market, or distribute.
6. Fees; Payment
Customer shall pay Oomnitza fees for the Service as set forth in each Order Form ("Fees").
Unless otherwise specified in an Order Form, all Fees shall be invoiced annually in advance and
all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from
date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser
of 1.5% per month or the maximum amount permitted by law. Customer will reimburse Oomnitza
for all reasonable costs and expenses incurred (including reasonable attorneys' fees) in collecting
any late payments or interest. Customer shall be responsible for all taxes associated with Service
(excluding taxes based on Oomnitza's net income). All Fees under each Order Form will be
subject to an annual increase of 5°/0 over the rates applicable during the prior year, except to the
extent otherwise expressly set forth in such Order Form. All Fees paid are non-refundable and
are not subject to set-off.
7. Restrictions
Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third
party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt
to discover the source code, object code, or underlying structure, ideas, or algorithms of the
Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify,
translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge,
assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit
of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or
any portion thereof; (vi) use the Service to build an application or product that is competitive with
any Oomnitza product or service; (vii) interfere or attempt to interfere with the proper working of
the Service or any activities conducted on the Service; or (viii) bypass any measures Oomnitza
may use to prevent or restrict access to the Service (or other accounts, computer systems or
networks connected to the Service). Customer is responsible for all of Customer's activity in
connection with the Service, including but not limited to uploading Customer Data (as defined
below) onto the Service. Customer (i) shall use the Service in compliance with all applicable local,
state, national and foreign laws, treaties and regulations in connection with Customer's use of the
Service (including those related to data privacy, international communications, export laws and
the transmission of technical or personal data laws), and (ii) shall not use the Service in a manner
that violates any third party intellectual property, contractual or other proprietary rights.
8. Customer Data
For purposes of this Agreement, "Customer Data" shall mean any data, information or other
material provided, uploaded, or submitted by Customer to the Service in the course of using the
Service or to Oomnitza in connection with Customer's use of the Services. For clarity, Customer
Data shall include Personal Data (as defined below), if any, provided by Customer to Oomnitza
hereunder, but exclude Aggregated and/or De -Identified Data (as defined below). Customer shall
retain all right, title and interest in and to the Customer Data, including all intellectual property
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rights therein. Customer, not Oomnitza, shall have sole responsibility for the accuracy, quality,
integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of
all Customer Data. Customer agrees and acknowledges that Customer Data may be irretrievably
deleted if Customer's account is ninety (90) days or more delinquent. Customer hereby grants
Oomnitza a non-exclusive, worldwide, royalty -free right and license to use, host, reproduce,
display, perform, modify and make derivative works of the Customer Data solely for the purposes
of providing the Service to Customer. Notwithstanding the foregoing, Customer acknowledges
and agrees that Oomnitza may generate and/or collect Aggregated and/or De -Identified Data in
connection with providing the Services to Customer. Customer hereby grants Oomnitza a
nonexclusive, worldwide, royalty -free, perpetual, irrevocable license to incorporate Customer
Data in Aggregated and/or De -Identified Data (as defined below) for any lawful purpose (including
without limitation, for purposes of improving, testing, operating, promoting and marketing
Oomnitza's products and services). "Aggregated and/or De -Identified Data" means any data
collected, derived, or generated by Oomnitza in connection with Customer's use of the Service
that has been aggregated or de -identified such that it cannot reasonably be used to identify
Customer or any individual to whom Personal Data relates.
9. Third Party Products
The Service may provide Customer with access to, be integrated with, or contain links or
references to, products, services, data, integrations, information, sites, APIs, components or other
materials which are provided or operated by third parties, including Oomnitza's third party
suppliers, partners and licensors (collectively, "Third Party Products"). Customer's use of the
Third Party Products shall be subject to (and Customer agrees it is bound by) the third party terms
and conditions set forth at httDs://oomnitza.com/thirdpartvterms (the "Third Party Terms Site"),
as they may be modified from time to time by Oomnitza and/or its third party licensors, partners
and vendors by posting new terms at the Third Party Terms Site (collectively, the "Third Party
Terms"). The Third Party Terms are hereby incorporated into this Agreement by this reference.
Customer is responsible for checking the Third Party Terms Site for updates, and any use by
Customer of the Service following a change to the Third Party Terms shall constitute acceptance
of such change. Customer shall comply with all Third Party Terms, and shall indemnify and hold
Oomnitza harmless from all damages, costs, settlements, attorneys' fees and expenses arising
from or related to Customer's breach of any Third Party Terms.
10. Confidentiality; Personal Data; Data Security
From time to time during the Term of this Agreement, either party (as the "Disclosing Party")
may disclose or make available to the other party (as the "Receiving Party") information about
its business affairs, products, services, confidential intellectual property, trade secrets, third -party
confidential information and other sensitive or proprietary information, whether orally or in written,
electronic or other form or media, and whether or not marked, designated or otherwise identified
as "confidential" (collectively, "Confidential Information"). Customer Data is deemed
Confidential Information of Customer. Confidential Information shall not include information that,
at the time of disclosure: (i) is or becomes generally available to and known by the public other
than as a result of, directly or indirectly, any breach of this Section 10 by the Receiving Party or
any of its Representatives; (ii) is or becomes available to the Receiving Party on a non -confidential
basis from a third -party source, provided that such third party is not and was not prohibited from
disclosing such Confidential Information; (iii) was rightfully known by or in the possession of the
Receiving Party before being disclosed by or on behalf of the Disclosing Party; (iv) was or is
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independently developed by the Receiving Party without reference to or use, in whole or in part,
of any of the Disclosing Party's Confidential Information; or (v) is required to be disclosed under
applicable federal, state or local law, regulation or a valid order issued by a court or governmental
agency of competent jurisdiction.
The Receiving Party shall: (A) protect and safeguard the confidentiality of the Disclosing Party's
Confidential Information with at least the same degree of care as the Receiving Party would
protect its own Confidential Information, but in no event with less than a commercially reasonable
degree of care; (B) not use the Disclosing Party's Confidential Information, or permit it to be
accessed or used, for any purpose other than to exercise its rights or perform its obligations under
this Agreement; and (C) not disclose any such Confidential Information to any person or entity,
except to the Receiving Party's directors, officers, employees, contractors, contractors, or agents
(collectively, "Representatives") who need to know the Confidential Information to assist the
Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the
Agreement, provided that such Representatives are bound by written agreements with use and
nondisclosure restrictions at least as protective as those set forth in this Section 10. The Receiving
Party shall be responsible for any breach of this Section 10 caused by any of its Representatives.
At any time during or after the term of this Agreement, at the Disclosing Party's written request,
the Receiving Party shall promptly return, and shall require its Representatives to return to the
Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing
Party's Confidential Information, or destroy all such copies and certify in writing to the Disclosing
Party that such Confidential Information has been destroyed. In addition to all other remedies
available at law, the Disclosing Party may seek equitable relief (including injunctive relief) against
the Receiving Party to prevent the breach or threatened breach of this Section 10 and to secure
its enforcement.
"Personal Data" means Customer Data that is "personal data" or "personal information" under
applicable data protection laws.. Customer acknowledges and agrees that Customer, not
Oomnitza, controls the provision of Personal Data supplied to Oomnitza under this Agreement,
and Customer may elect to not supply any Personal Data to Oomnitza hereunder.
Oomnitza will use commercially reasonable efforts to implement and maintain reasonable
technical, administrative and physical security measures designed to protect Customer Data that
(a) consistent with industry standards taking into consideration the sensitivity of the relevant
Customer Data, and the nature and scope of the Service to be provided, and (b) comply with all
applicable international, foreign, federal, and state laws, statutes, rules, orders and regulations.
Without limiting the generality of the foregoing, Oomnitza will periodically test its systems for
potential areas where security could be breached. Oomnitza will notify Customer without undue
delay upon becoming aware of any unauthorized access, use or disclosure of Customer Data
("Security Incident"). Oomnitza will use reasonable efforts to remedy the risk of any further
Security Incident in a timely manner and deliver to Customer a root cause assessment and future
incident mitigation plan with regard to the Security Incident.
11. Term; Termination
This Agreement shall commence upon the effective date set forth in the first Order Form, and,
unless earlier terminated in accordance herewith, shall last until the expiration of all Order Forms
(the "Term"). For each Order Form, the "Order Form Term" shall begin as of the effective date
set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue
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for the initial term specified on the Order Form (the "Initial Order Form Term"), and (y) following
the Initial Order Form Term, shall automatically renew for additional successive periods of one
year each (each, a "Renewal Order Form Term") unless either party notifies the other party of
such party's intention not to renew no later than thirty (30) days prior to the expiration of the Initial
Order Form Term or then -current Renewal Order Form Term, as applicable.
In the event of a material breach of this Agreement by either party, the non -breaching party may
terminate this Agreement by providing written notice to the breaching party, provided that the
breaching party does not materially cure such breach within thirty (30) days of receipt of such
notice. Without limiting the foregoing, Oomnitza may suspend or limit Customer's access to or
use of the Service if (i) Customer's account is more than sixty (60) days past due, or (ii) Customer's
use of the Service results in (or is reasonably likely to result in) damage to or material degradation
of the Service which interferes with Oomnitza's ability to provide access to the Service to other
customers; provided that in the case of subsection (ii): (a) Oomnitza shall use reasonable good
faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to
resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or
limitation, Oomnitza shall use commercially reasonable efforts to provide notice to Customer
describing the nature of the damage or degradation; and (c) Oomnitza shall reinstate Customer's
use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30)
days of receipt of such notice.
Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 1 will
terminate; (ii) Customer will return to Oomnitza its Confidential Information in its possession or
will destroy such items and, upon Oomnitza's request, certify their destruction; (iii) Oomnitza will
deliver to Customer a copy of the Customer Data within sixty (60) days of the date of expiration
or termination, and (iv) after return to Customer, Oomnitza will delete all Customer Data in its
possession or control. Oomnitza will have the right to retain, and nothing in this Agreement will
be deemed to require Oomnitza to destroy, any Aggregated Anonymous Data in Oomnitza
possession or control following the expiration or termination of this Agreement. All provisions of
this Agreement which by their nature should survive termination shall survive termination,
including, without limitation, accrued payment obligations, ownership provisions, warranty
disclaimers, indemnity and limitations of liability.
12. Indemnification
Each party ("Indemnitor") shall defend, indemnify, and hold harmless the other party , and their
respective affiliates, employees, contractors, directors, suppliers and representatives (collectively,
the "Indemnitees") from and against any claims, losses, damages, or expenses paid or payable
to an unaffiliated third party (including reasonable attorneys' fees) ("Losses") incurred by
Indemnitees to the extent resulting from any liabilities, claims, lawsuits, and proceedings
("Claims") brought by a third party against Indemnitees that arise from or relate to (i) Indemnitor's
gross negligence or intentional misconduct, (ii) Indemnitor's violation of law, and (iii) any act or
omission of the Indemnitor or any Indemnitor personnel that results in personal injury (or death)
or tangible or intangible property damage (including loss of use).
Customer shall defend, indemnify, and hold harmless Oomnitza and its affiliates, their respective
employees, contractors, directors, suppliers and representatives from and against any Losses
incurred by Oomnitza to the extent resulting from any third -party Claims against Oomnitza that
arise from or relate to (i) the Customer Data, including without limitation any claim that the
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Customer Data infringes, misappropriates or otherwise violates any third party's proprietary,
privacy, or other rights, and (ii) use of the Services by Customer in a manner that is not in
accordance with this Agreement.
Oomnitza shall defend, indemnify, and hold harmless Customer and its affiliates, their respective
employees, contractors, directors, suppliers and representatives from and against any Losses
incurred by Customer to the extent resulting from any third -party Claims against Customer (i) that
Customer's use of the Services in accordance with this Agreement infringes, violates, or
misappropriates any third party intellectual property or proprietary right, and (ii) arising from a data
breach attributable to the acts or omissions of Oomnitza, provided that Oomnitza shall have no
such indemnification obligations for data breaches not attributable to Oomntiza.
Each Indemnitor's indemnification obligations hereunder shall be conditioned upon the Indemnitee
providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to
provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor
is materially prejudiced by such failure); (ii) the option to assume sole control over the defense
and settlement of any claim, provided that (A) the Indemnitee may participate in such defense and
settlement at its own expense, and (B) that the Indemnitor may not settle any claim without the
Indemnitee's prior written approval unless the settlement is for a monetary amount,
unconditionally releases the Indemnitee from all liability without prejudice, does not require any
admission by the Indemnitee, and does not place restrictions upon the Indemnitee's business,
products or services; and (iii) reasonable information and assistance in connection with such
defense and settlement (at the Indemnitor's expense). The foregoing obligations of Oomnitza do
not apply with respect to the Service or any information, technology, materials or data (or any
portions or components of the foregoing) to the extent (i) not created or provided by Oomnitza
(including without limitation any Customer Data), (ii) made in whole or in part in accordance to
Customer specifications, (iii) modified after delivery by Oomnitza, (iv) combined with other
products, processes or materials not provided by Oomnitza (where the alleged Losses arise from
or relate to such combination), (v) where Customer continues allegedly infringing activity after
being notified thereof or after being informed of modifications that would have avoided the alleged
infringement, or (vi) Customer's use of the Service is not strictly in accordance herewith.
13. Representations and Warranties
Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly
existing and in good standing under its jurisdiction of organization and has the right to enter into
this Agreement and (ii) the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby are within the corporate powers of such
Party and have been duly authorized by all necessary corporate action on the part of such Party,
and constitute a valid and binding agreement of such Party.
Customer hereby represents and warrants to Oomnitza that (i) it has obtained and will obtain and
continue to have, during the Term, all necessary rights, authority and licenses for the access to
and use of the Customer Data as contemplated by this Agreement and (ii) Oomnitza's use of the
Customer Data in accordance with this Agreement will not violate any applicable laws or
regulations or cause a breach of any agreement or obligations between Customer and any third
party.
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14. Disclaimer
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE AND IMPLEMENTATION
ASSISTANCE IS PROVIDED "AS IS" AND "AS AVAILABLE" AND ARE WITHOUT WARRANTY
OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF TITLE, NON -INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF
PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE
EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, OOMNITZA HEREBY
DISCLAIMS ANY WARRANTY THAT USE OF THE SERVICES WILL BE ERROR -FREE,
BUGFREE OR UNINTERRUPTED.
15. Limitation of Liability
EXCEPT FOR (i) THE PARTIES' RESPECTIVE INDEMNIFICATION OBLIGATIONS
HEREUNDER, (ii) EITHER PARTY'S BREACH OF CONFIDENTIALITY OBLIGATIONS
HEREUNDER, (iii) BREACH OF OOMNITZA'S DATA SECURITY OBLIGATIONS HEREUNDER,
(iv) BREACH OF CUSTOMER'S PAYMENT OBLIGATIONS, OR (v) FRAUD OR WILFUL
MISCONDUCT BY EITHER PARTY, IN NO EVENT SHALL EITHER PARTY, NOR ITS
DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS,
BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER
LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS
AGREEMENT (A) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR
SERVICES (HOWEVER ARISING), OR (B) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR
THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION)
EXCEPT FOR (i) THE PARTIES' RESPECTIVE INDEMNIFICATION OBLIGATIONS
HEREUNDER OR (ii) EITHER PARTY'S BREACH OF CONFIDENTIALITY OBLIGATIONS
HEREUNDER, IN NO EVENT WILL EITHER PARTY'S TOTAL LIABILITY TO THE OTHER
PARTY IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF THE SERVICES
OR IMPLEMENTATION ASSISTANCE EXCEED THE FEES PAID (OR PAYABLE) BY
CUSTOMER TO OOMNITZA HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE
EVENT GIVING RISE TO A CLAIM HEREUNDER, REGARDLESS OF THE LEGAL OR
EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR
NOT OOMNITZA WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
16. Miscellaneous
This Agreement represents the entire agreement between Customer and Oomnitza with respect
to the subject matter hereof, and supersedes all prior or contemporaneous communications and
proposals (whether oral, written or electronic) between Customer and Oomnitza with respect
thereto. The Agreement shall be governed by and construed in accordance with the laws of the
State of California, excluding its conflicts of law rules, and the parties consent to exclusive
jurisdiction and venue in the state and federal courts located in San Francisco, California. All
notices under this Agreement shall be in writing and shall be deemed to have been duly given
when received, if personally delivered or sent by certified or registered mail, return receipt
requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the
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day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices
must be sent to the contacts for each party set forth on the Order Form. Either party may update
its address set forth above by giving notice in accordance with this section. Except as otherwise
provided herein, this Agreement may be amended only by a writing executed by both parties.
Except for payment obligations, neither party shall be liable for any failure to perform its obligations
hereunder where such failure results from any cause beyond such party's reasonable control,
including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism;
accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure;
acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances;
strikes lock -outs or labor disruptions; pandemic; any laws, orders, rules, regulations, acts or
restraints of any government or governmental body or authority, civil or military, including the
orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder
without the other party's consent; provided that (i) either party may assign all of its rights and
obligations hereunder without such consent to a successor -in -interest in connection with a sale of
substantially all of such party's business relating to this Agreement, and (ii) Oomnitza may utilize
subcontractors in the performance of its obligations hereunder, provided that Oomnitza shall be
and remain responsible to Customer for the acts and omissions of Oomnitza's subcontractors in
connection with the performance or provision of any of the Services. No agency, partnership, joint
venture, or employment relationship is created as a result of this Agreement and neither party has
any authority of any kind to bind the other in any respect. Customer agrees to allow Oomnitza to
use Customer's name and logo on Oomnitza's website and other marketing materials to identify
Customer as an Oomnitza customer. In any action or proceeding to enforce rights under this
Agreement, the prevailing party shall be entitled to recover costs and attorneys' fees. If any
provision of this Agreement is held to be unenforceable for any reason, such provision shall be
reformed only to the extent necessary to make it enforceable. The failure of either party to act
with respect to a breach of this Agreement by the other party shall not constitute a waiver and
shall not limit such party's rights with respect to such breach or any subsequent breaches.
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EXHIBIT A
Oomnitza Support and Availability Policy
This Support, Security and Availability Policy (the "Policy") sets forth the policies and procedures
with respect to services (the "Service") provided by Oomnitza to a customer ("Customer")
pursuant to a separate Order Form and Enterprise Terms between Oomnitza and Customer (the
"Agreement").
Summary:
As further described below, Oomnitza will use commercially reasonable efforts to: (i) provide
Customer with [99.9%] availability to the Service (the "Service Availability"); and (ii) provide
standard support to Customer.
Availability:
If the Service becomes substantially unavailable to Customer due to defects with the Service,
Oomnitza will respond to Customer (i) within eight (8) hours from Customer's notification to
Oomnitza of such unavailability, if during normal business hours (Monday -Friday, 8:OOam —
6:OOpm Pacific), or (ii) within eight (8) hours of the start of the next business day, if outside of
normal business hours. Service Availability measurement will exclude reasonable scheduled
downtime for system maintenance as well as any downtime or performance issues resulting from
third party connections, services or utilities or other reason beyond Oomnitza's control (including
without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of
terror, strikes or other labor problems (other than those involving Oomnitza employees), computer,
telecommunications, Internet service provider or hosting facility failures or delays involving
hardware, software or power systems not within Oomnitza's possession or reasonable control,
and denial of service attacks).
Failure to meet Service Availability:
If for any single calendar month the Services fail to meet the Service Availability, Oomnitza, at
Oomnitza's sole discretion, may provide Customer one month's service credit for the month the
Service Availability was not met. Customer acknowledges and agrees that service credits shall
constitute Customer's sole and exclusive remedy for any failure by Oomnitza to maintain its
Service Availability or breach by Oomnitza of its obligations under this Support and Availability
Policy. In no event shall the total service credits owed by Company to Customer exceed the total
Fees paid by Customer under this Agreement.
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