R2023-289 2023-12-18RESOLUTION NO. R2023-289
A Resolution of The City Council of the City of Pearland, Texas,
authorizing the City Manager or his designee to participate in an interlocal
cooperative pricing arrangement with the Texas Department of Information
Resources (DIR), for the purchase of Project Management Software
Services from Procore Technologies, in the estimated amount of
$171,846.04, for the period of December 22, 2023 through December 21,
2024.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That contract pricing has been obtained through interlocal cooperative partner
DIR for the purchase of Project Management Software Services.
Section 2. That the City Manager or his designee is hereby authorized to participate in an
interlocal cooperative pricing arrangement with the DIR for the purchase of Project Management
Software Services, in the estimated amount of $171,846.04.
PASSED, APPROVED and ADOPTED this the 18th day of December, A.D., 2023.
________________________________
J. KEVIN COLE
MAYOR
ATTEST:
________________________________
FRANCES AGUILAR, TRMC, MMC
CITY SECRETARY
APPROVED AS TO FORM:
________________________________
DARRIN M. COKER
CITY ATTORNEY
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PROCORE SUBSCRIPTION AND SERVICES AGREEMENT
This Subscription and Services Agreement, including any Orders and SOWs, (“Agreement”) is entered into as of the date of the
last signature below (the “Effective Date”) between the applicable Procore contracting entity set forth in Section 11.5 (“Procore”)
and City of Pearland, with offices at 3519 Liberty Dr, Pearland, TX 77581 (“Customer”). Procore and Customer may also be
referred to herein individually as “Party” or together as the “Parties.” Capitalized terms used but not otherwise defined herein
have the respective meanings designated in Section 12. The Parties hereby agree as follows:
1. PROVISION OF SERVICES
1.1. Access to Subscription Services. Subject to Customer’s compliance with this Agreement, including timely payment of
applicable Fees, Procore shall make the Subscription Services available to Customer during the Subscription Term for
Customer’s internal business use in accordance with the Usage Metrics purchased by Customer. Customer
acknowledges that Procore or its Affiliates may review Customer’s use of the Subscription Services for the purpose
of providing Services and verifying Customer’s compliance with this Agreement. Customer agrees that its purchase
and use of the Subscription Services are not contingent on any future functionality or features, or dependent on any
oral or written statements made by Procore or any of its Affiliates regarding future functionality or features.
1.2. Evolving Procore Technology. Subject to Section 7.2(b), Procore may issue Updates for the Services during the
Subscription Term.
1.3. Protection of Customer Data. Procore shall maintain administrative, technical, and physical safeguards designed to
protect the security, confidentiality, and integrity of Customer Data as required by law. Where Customer’s use of the
Services includes the processing of Personal Data (as defined in the DPA) subject to applicable data protection laws,
such use will be governed by the DPA (as defined in the Order), which is incorporated into this Agreement by
reference. Customer shall only provide to Procore the minimum amount of personal data necessary to enable
Customer to use the Services in accordance with this Agreement.
1.4. Beta Services. From time to time, Procore may invite Customer and Authorized Users to participate in a program
regarding certain pre-release or beta services (collectively, “Beta Services”). Customer may accept or decline to
participate in any Beta Services. Any services designated by Procore as Beta Services (e.g., “beta,” “pilot,” “limited
release,” “developer preview,” “non-production evaluation,” or other similar designation) are solely for Customer’s
evaluation purposes. If Customer opts into a Beta Service, Customer agrees to participate in usage and other testing
and provide feedback about such Beta Service, as reasonably requested by Procore. Beta Services are not considered
Services under this Agreement, are not supported, and may be subject to additional program terms. Unless otherwise
stated, any Beta Service evaluation period will expire upon the earlier of one (1) year from the evaluation start date
and the date of such Beta Service’s commercial release, unless such Beta Service is earlier discontinued by Procore.
Procore may discontinue any Beta Service at any time and may never make such Beta Service generally available.
Beta Services are provided “as is,” without express or implied warranty, and without indemnity. Procore and its
Affiliates will have no liability for, and Customer hereby fully and irrevocably releas es Procore and its Affiliates
from, any liability or damage arising out of or in connection with any Beta Service.
2. USE OF SERVICES
2.1. Customer’s Responsibilities. Only Authorized Users are permitted to access and use the Services. Customer
acknowledges that Procore and its Affiliates may directly or indirectly contact Customer and Authorized Users in
connection with Procore’s and its Affiliates’ services. Customer shall be solely responsible for (a) Authorized Users’
compliance with this Agreement and any Order(s) issued hereunder; (b) the accuracy and quality of Customer Data,
the means by which Customer acquired Customer Data, and obtaining appropriate usage rights with respect to
Customer Data; (c) maintaining the confidentiality of usernames, passwords, and other account information or access
credentials (as applicable); (d) all activities that occur under its Authorized Users’ usernames, passwords, accounts
or access credentials as a result of Authorized Users’ access to the Services; and (e) ensuring Authorized Users’ use
the Services only in accordance with the Documentation. Customer shall follow all requirements under applicable
law, which may include providing notice and disclosures to Authorized Users and/or Data Subjects that Customer
Personal Data (as defined in the DPA) is subject to Customer’s own privacy policy and other terms regarding the use
or handling of Customer Personal Data as required by applicable Data Protection Law. Customer shall notify Procore
promptly upon learning of any unauthorized use of, or access to, the Services.
2.2. Restrictions. Customer shall not and shall not permit others to (a) make any Services available to any third party other
than Customer or Authorized Users; (b) sell, resell, license, sublicense, distribute, rent, or lease any Services, or
include any Services in a service bureau or outsourcing offering; (c) use the Services to store or transmit infringing,
tortious, libelous, or otherwise unlawful material, Harmful Code, or material that otherwise violates the rights of any
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third-party; (d) interfere with or disrupt the integrity or performance of the Services or any third-party data contained
therein; (e) use, or permit direct or indirect access to, the Services in a way that seeks to circumvent the Usage
Metrics, (f) use the Services to exploit any Procore Intellectual Property Rights except as otherwise expressly
permitted under this Agreement, an Order, or the Documentation; (g) frame or mirror any part of the Services, except
as permitted by and in accordance with the Documentation; (h) access the Services in order to develop a competitive
product or service or benchmark with a non-Procore product or service, or to otherwise exploit for competitive
purposes; (i) subject to applicable law, reverse engineer, copy, or modify any software included as part of the
Services; (j) use the Services for any improper, fraudulent, or other non-legitimate business purpose; (k) use the
Services in a way that could be considered harmful, malicious, threatening, offensive, pornographic, defamatory,
bigoted, hateful, indecent, or otherwise objectionable in Procore’s reasonable discretion; (l) use the Services to send
unsolicited communications, promotions, or advertisements in violation of the CAN-SPAM Act or any other applicable
anti-spam or e-privacy law, rule, or regulation; (m) use any automated device or process, such as a robot, spider,
datamining, web-scraping, or other means to circumvent, access, use, or integrate with the Services or its contents,
including but not limited to other user account information; or (n) use the Service in violation of applicable law.
2.3. Affiliates. Customer may designate its Affiliates as Authorized Users. Additionally, Customer’s Affiliates may purchase
Services by entering into a separate Order with Procore or Procore’s applicable Affiliate, in which case “Customer”
as is defined herein will mean that Affiliate. Each Affiliate’s Order(s), and the correspon ding Usage Metrics, are
separate and distinct from Customer’s and its other Affiliates’ respective Orders and Usage Metrics, unless otherwise
set forth on an applicable Order.
3. THIRD-PARTY APPLICATIONS
Products or services developed by third parties may be available to Customer, including via Procore’s API, for use with the
Services (“Third-Party Applications”). By using Third-Party Applications, Customer permits Procore to grant providers of
such Third-Party Applications access to Customer Data or other data as required for the use and support of such Third-Party
Applications in conjunction with the Subscription Services. Third-Party Applications are not Services under this Agreement,
may be subject to the third-party provider’s additional terms, and may require an additional fee to such providers in order
to use the Third-Party Applications. The Procore software may contain features designed to interoperate with Third-Party
Applications. Such features are not considered Services under this Agreement. Procore may cease providing such features
for any reason, including if the provider of a Third-Party Application ceases to make the Third-Party Application available for
interoperation with the Services, without entitling Customer to any refund, credit, or compensation. Notwithstanding any
obligations Procore may have under an applicable DPA, Procore is not responsible for the use or protection of Customer
Data in any Third-Party Applications.
4. FEES AND PAYMENT
4.1. Fees. Customer shall pay Procore all fees as set forth in the applicable Order or SOW, as well as any Overages (“Fees”).
Except as set forth herein, all payment obligations are non-cancelable and Fees paid are non-refundable.
4.2. Payment Terms. Except as otherwise set forth in the applicable Order, all Fees will be billed annually in advance. All
invoices for Fees, Taxes, and Overages are due and payable within the time frame and in the currency set forth in the
applicable Order, without deduction or setoff. Interest on unpaid amounts will accrue from the applicable invoice’s
due date at the higher of 1.5% per month and the highest rate allowed by applicable law. Customer is responsible
for providing complete and accurate billing and contact information to Procore and promptly notifying Procore of
any changes to such information. If Customer fails to pay any undisputed portion of a past due invoice, including
accrued interest, within ten (10) business days after receiving notice that its account is overdue, Pr ocore may,
without limiting its other rights and remedies, suspend the Services until such amounts are paid in full (“Non-
Payment Suspension”). Procore is not obligated to continue to provide Services without payment of applicable Fees.
4.3. Use of Purchase Orders. No terms of any purchase order or other form or agreement provided by Customer will
modify or supplement this Agreement, regardless of any failure of Procore to object to such terms, and any such
terms will have no force or effect.
4.4. Taxes. Fees and Overages do not include any taxes, tariffs, levies, duties, or similar governmental charges or
assessments of any nature, including, value-added, sales, use, or withholding taxes, assessable by any jurisdiction
(collectively, “Taxes”). Unless Customer provides Procore with a valid tax-exemption certificate, Customer is
responsible for paying all Taxes associated with its purchases under this Agreement. If Procore is legally required to
pay or collect Taxes for which Customer is responsible under this Section, Procore shall invoice Customer and
Customer shall pay such amounts, unless Customer provides Procore with a valid tax exemption certificate
authorized by the appropriate taxing authority. For clarity, Procore is solely responsible for taxes assessable against
it based on its own income, property, and employees. Unless prohibited by the applicable taxing jurisdiction, the tax
situs will be Customer’s ship-to address as set forth in the applicable Order.
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4.5. Usage Verification & Subscription Review. No more than once annually, Procore’s subscription management team
may initiate an offsite “Subscription Review” by requesting copies of records evidencing Customer’s Usage Metrics
(for example, invoice details, project budgets, contract values, and change orders) a nd other reasonable
substantiation. Customer shall provide such records within fifteen (15) business days, or such other mutually
agreeable time frame, of Procore’s written request. Customer shall reasonably cooperate with and assist Procore or
its Affiliates, as applicable, in such review and verification of Customer’s Usage Metrics. Procore may invoice
Customer, and Customer shall pay, for any usage of the Services that exceeds the Usage Metrics (“Overages”).
Overages will be invoiced at Procore’s standard rates (without discount) at the time of invoicing.
4.6. Purchases Through a Reseller. If Customer purchases Services through a Reseller, the pricing and payment terms for
such Services are between Customer and Reseller (“Reseller Terms”). Customer acknowledges that (a) all payments
for Services procured via a Reseller will be made directly to the Reseller and in accordance with the Reseller Terms;
and (b) if a Reseller notifies Procore of its right to terminate or suspend any Services, Procore may terminate or
suspend such Services. Procore will not be liable to Customer or any third party for any liabilities, claims, or expenses
arising from or relating to any applicable Reseller Terms.
5. PROPRIETARY RIGHTS AND LICENSES
5.1. Ownership; Reservation of Rights. All Procore Intellectual Property Rights, including Intellectual Property Rights in
the Services, Beta Services, Documentation, Statistical Usage Data, and Procore’s Confidential Information, are and
will remain owned exclusively by Procore and its Affiliates, as applicable. Ownership in all Updates, derivatives,
modifications, new functionalities, enhancements, and customization related to the Services created by or on behalf
of Procore, as well as recommendations, suggestions, proposals, ideas, improvements, or other feedback, will
immediately vest in Procore upon creation or communication to Procore, as applicable. Unless otherwise specified
in an applicable SOW, all deliverables provided in the performance of Professional Services are owned by Procore
and will be made available as part of the Subscription Services provided under this Agreement. Nothing in this
Agreement will preclude or limit Procore from using or exploiting any concepts, ideas, techniques, or know-how of
or related to the Services. Other than as expressly set forth in this Agreement, no license or other rights in or to the
Services or other Procore Intellectual Property Rights are granted to Customer, and all such rights are expressly
reserved to Procore and its Affiliates.
5.2. Use of Procore Logos. Use of Procore’s logos, and all other Procore trademarks, service marks, product names, and
trade names of Procore, is subject to the Procore trademark usage guidelines at www.procore.com/legal/trademark.
5.3. Customer Data. Customer Data and Customer’s Confidential Information are and will remain owned exclusively by
Customer or its Authorized Users, as applicable. Customer hereby grants Procore, its Affiliates, and its subprocessors
a worldwide right and license to access, host, display, process, analyze, transmit, reproduce, and otherwise utilize
Customer Data (subject to Sections 1.3 and 6.2) for the purposes of providing and improving the Services in
accordance with this Agreement.
5.4. Statistical Usage Data. Procore and its Affiliates may collect, use, and otherwise process Statistical Usage Data for
their own analysis, analytics, marketing, and other internal business purposes, including, without limitation, sharing
with subprocessors for the purpose of improving Procore’s products and services. Except where Customer has
expressly provided its written consent, Procore will otherwise only disclose Statistical Usage Data if such data is (a)
aggregated or anonymized; and (b) does not disclose the identity of Customer or its Authorized Users or any
Customer Confidential Information.
6. CONFIDENTIALITY
6.1. Definition of Confidential Information. “Confidential Information” means all information or data disclosed by a Party
or any of its Affiliates (as applicable, the “Disclosing Party”) that is confidential, proprietary, or otherwise not publicly
available, or that reasonably should be understood to be confidential given the nature of the information and the
circumstances of disclosure whether oral or in writing, and disclosed during the Term in connection with the Services.
Confidential Information includes, (a) with respect to Customer, Customer Data; (b) with respect to Procore, the
Services, pricing, and the Beta Services, including any discussions or information related to Beta Services; and (c) with
respect to a Party, any technical, financial, economic, marketing, strategic, business, product, design, or operational
information, including the terms of this Agreement and all Orders and SOWs, of such Party. Confidential Information
does not include any information that (w) is or becomes generally known to the public without breach of this
Agreement or any other agreement by the Party receiving information or any of its Affiliates (as applicable, the
“Receiving Party”); (x) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach
of any obligation owed to the Disclosing Party; (y) is received from a third party without restriction on disclosure and
without breach of any obligation owed to the Disclosing Party; or (z) was independently developed by the Receiving
Party without use of or reference to any Confidential Information.
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6.2. Protection of Confidential Information. The Receiving Party shall (a) use the same degree of care that it uses to
protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (b) not
use any Confidential Information for any purpose outside the scope of this Agreement; and (c) except as otherwise
expressly consented to by an authorized representative of the Disclosing Party, limit access to Confidential
Information to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent
with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections
no less restrictive than those herein (“Authorized Recipients”). Neither Party shall disclose the terms of this
Agreement or any Order to any third party other than its Affiliates, legal counsel, and accountants without the other
Party’s prior written consent, on condition that a Party that makes any such disclosure to its Affiliate, legal counsel,
or accountants shall remain responsible for such Affiliate’s, legal counsel’s, accountants’, and Authorized Recipients’
compliance with this “Confidentiality” Section.
6.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information to the extent compelled by law or
legal process to do so, on condition that the Receiving Party gives the Disclosing Party prior notice of the compelled
disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing
Party wishes to contest the compelled disclosure. If the Receiving Party is compelled by law to disclose Confidential
Information as part of a proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting
the disclosure, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost of compiling and
providing secure access to that Confidential Information.
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, DISCLAIMERS
7.1. General Warranty. Each Party represents and warrants that it has the necessary rights to enter into this Agreement
and has the legal power to do so.
7.2. Procore Limited Warranties. Procore warrants that (a) the Subscription Services will perform materially in accordance
with the applicable Documentation; (b) Procore will not materially reduce the core functionality of the Subscription
Services during the current Subscription Term; (c) Procore will use industry standard measures to deliver the
Subscription Services free of Harmful Code; and (d) Procore will perform the Professional Services in a diligent and
professional manner. Customer’s exclusive remedy and Procore’s entire liability for a breach of the above warranties
will be, at Procore’s option, (x) the correction of the deficient Service that caused the breach of warranty, or (y)
provision of comparable functionality. If Procore, as determined in its reasonable discretion, cannot accomplish (x)
or (y) Procore shall terminate the deficient service and refund to Customer any prepaid Fees for the terminated
Service, prorated to cover the remaining portion of the Subscription Term following notice of the breach of warranty.
7.3. Disclaimers. Except as expressly provided herein, neither Party or its licensors makes any warranty of any kind,
whether express, implied, statutory, or otherwise, and each Party and its licensors specifically disclaim all implied
warranties, including any implied warranty of merchantability, fitness for a particular purpose, title, or non-
infringement, to the maximum extent permitted by applicable law. Procore does not warrant that Services will be
error-free or uninterrupted, will meet Customer’s requirements or expectations, or that its security measures will
be sufficient to prevent third-party access to Customer Data.
8. INDEMNIFICATION
8.1. Indemnification by Procore.
(a) Procore shall defend any claim brought against Customer by a third-party to the extent such claim alleges that
Customer’s use of the Subscription Services (as authorized in this Agreement, and as provided by Procore to
Customer) (1) infringes any valid and enforceable third-party patent, copyright, or registered trademark, or (2)
misappropriates a third-party trade secret (a “Claim”). If a third party makes a Claim against Customer, Procore
shall pay all damages (including reasonable attorneys’ fees) finally awarded against Customer by a court of
competent jurisdiction, or the settlement agreed to by Procore with respect to such Claim.
(b) If any Claim is brought or threatened, or if Procore reasonably believes that the Subscription Services may
become the subject of a Claim, Procore may, at its sole option and expense (1) procure for Customer the right
to continue to use the applicable Subscription Service; (2) modify the Subscription Service to make it non -
infringing; (3) replace the affected aspect of the Subscription Service with non-infringing technology having
substantially similar capabilities; or (4) if Procore determines none of the foregoing is commercially practicable,
terminate this Agreement upon thirty (30) days’ notice and refund Customer any prepaid Fees related to the
applicable Subscription Services prorated for the remainder of the Subscription Term.
(c) Procore’s defense and indemnity obligations do not apply to, and Procore will have no liability with respect to,
any Claim arising in whole or part due to (1) any modification of the Subscription Services ma de by anyone other
than Procore, (2) any use of the Subscription Services in combination with software, products, or services not
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provided by Procore, (3) any Third-Party Applications; (4) Services under an Order for which there is no charge;
(5) Customer’s use of the Subscription Services not in compliance with this Agreement; or (6) Customer’s failure
to use any Update provided by Procore.
This indemnity states Procore’s entire liability, and Customer’s exclusive remedy, for any Claims as described in
Section 8.1.
8.2. Indemnification by Customer. To extent allowed by law, Customer shall defend any claim or regulatory action brought
against Procore by a third party to the extent such claim relates to the Customer Data (if used by Procore in
accordance with this Agreement) or Third-Party Applications built by or on behalf of Customer. If a third party makes
such a claim against Procore, Customer shall pay all damages (including reasonable attorneys’ fees) finally awarded
against Procore or the settlement agreed to by Customer with respect to such claim. This indemnity states
Customer’s entire liability, and Procore’s exclusive remedy, for any third-party claims as described in this Section
8.2.
8.3. Procedure. The defense and indemnity obligations above are conditioned upon the indemnified Party providing the
indemnifying Party with (a) prompt notice; (b) sole control over the defense and any settlement negotiations; and
(c) all information and assistance reasonably requested by the indemnifying Party in connection with the defense or
settlement of the indemnifiable claim. The indemnifying Party shall not agree to a settlement that imposes any
obligation or liability on the indemnified Party without the indemnified Party’s prior written consent, which will not
be unreasonably withheld, conditioned, or delayed. The indemnified Party may appear in connection with such
claims, at its own expense, through counsel reasonably acceptable to the indemnifying Party.
9. LIMITATION OF LIABILITY
9.1. Exclusion of Damages. To the extent arising out of or related to this Agreement, neither Party nor its respective
Affiliates will be liable for any loss of profits, revenues, goodwill, anticipated savings, or use, costs of substitute
goods or services, or business interruption, or work stoppage, or any indirect, special, incidental, exemplary,
punitive, or consequential damages, however caused, and based on any theory of liability, whether for breach of
contract, breach of warranty, tort (including negligence), product liability, or otherwise , even if such Party is
advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by law.
9.2. Limitation of Liability. A Party’s and its respective Affiliates’ aggregate cumulative liability for all damages arising
out of or related to this Agreement will not exceed the applicable Fees paid or payable to Procore in an Order or
SOW for the applicable Services and attributable to the twelve (12) month period immediately preceding the event
giving rise to the liability. The existence of more than one claim will not expand this limit. The liability limitations
under this Section 9.2 will not apply to (a) Customer’s obligations to pay Fees due under this Agreement; (b)
Customer’s breach of Sections 2.1 or 2.2; (c) amounts finally determined pursuant to either Party’s indemnity
obligations under Section 8; (d) either Party’s gross negligence, willful misconduct, or fraud; or (e) either Party’s
negligence on-site during the performance of Professional Services that results in death or personal injury. Nothing
in this Agreement excludes or limits any liability that cannot be excluded or limited under applicable law.
10. TERM AND TERMINATION
10.1. Term of Agreement. This Agreement will begin on the Effective Date and continue until terminated as permitted
herein (the “Term”). If there are no active Orders, this Agreement will automatically terminate after ninety (90) days.
10.2. Subscription Term. The initial Subscription Term and any applicable renewal Subscription Term will begin and end in
accordance with the start date and end date set forth in the Order. Unless otherwise specified in an Order, a
Subscription Term will automatically renew for one (1) year, unless either Party gives the other Party notice (email is
sufficient) of non-renewal at least ten (10) days before the end of the relevant Subscription Term. Notice of non-
renewal to Procore must be sent to autorenewals@procore.com. Any new Service subsequently added to an existing
subscription will be coterminous with the current Subscription Term.
10.3. Suspension. In the event of Customer’s or an Authorized User’s breach of this Agreement, including without
limitation for Non-Payment Suspension or violation of the restrictions in Section 2.2, Procore may, in its reasonable
discretion, suspend Customer’s or an Authorized User’s access to or use of the Subscription Services.
Notwithstanding the foregoing, Procore shall use good-faith, reasonable efforts, unless the circumstances dictate
otherwise, to reasonably notify Customer and the Authorized User via email before taking the foregoing actions.
10.4. Termination. Either Party may terminate this Agreement or any Order or SOW upon notice if the other Party is in
material breach of this Agreement, where such material breach is not cured (to the extent capable of being cured)
within thirty (30) days after receiving notice of breach from the non-breaching Party, or with immediate effect where
such material breach cannot be cured. For the avoidance of doubt and without limiting Procore’s rights, Customer’s
noncompliance with Section 2.2 or Section 4.2 will be deemed a material breach of this Agreement. This Agreement
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may be terminated by either Party with immediate effect if the other Party becomes the subject of a petition in
bankruptcy or other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of
creditors, and such petition or proceeding is not dismissed within forty-five (45) days.
10.5. Effect of Termination. Upon the termination of this Agreement for any reason (a) unless otherwise agreed by the
Parties in writing, all outstanding Orders and access to the Subscription Services will automatically terminate; (b)
Customer and its Authorized Users shall immediately cease access and use of the Subscription Services, other than
for retrieval purposes provided in (d); (c) all outstanding payment obligations of Customer will become due and
payable immediately; and (d) for thirty (30) days following the expiration of the final Subscription Term, Procore shall
make Customer Data available to Customer, at Customer’s request, via read-only access to the Subscription Service,
solely for purpose of allowing Customer to retrieve Customer Data. After thirty (30) days, Procore will have no
obligation to maintain or provide any Customer Data, and thereafter may delete or destroy all copies of Custome r
Data. If Procore is required to retain a copy of Customer Data for legal purposes, such copy remains subject to the
confidentiality provisions of this Agreement.
10.6. Refund or Payment upon Termination. If Customer terminates this Agreement due to Procore’s material breach,
Procore shall refund Customer the prorated portion of prepaid Fees for unused Services. If Procore terminates this
Agreement due to Customer’s material breach, Customer shall pay any unpaid Fees. Termination will not relieve
Customer of its obligation to pay any Fees for the period prior to the effective date of termination.
10.7. Surviving Provisions. The Sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,”
“Representation, Warranties, Exclusive Remedies, Disclaimers,” “Term and Termination,” “Indemnification,”
“Limitation of Liability,” and “General Provisions” (with the exception of 11.1(a)) will survive any termination of this
Agreement.
11. GENERAL PROVISIONS
11.1. Publicity & Searchability Options.
(a) Customer grants Procore the right to use Customer’s company name and logo as a reference for promotional
purposes, subject to Customer’s trademark usage guidelines that are provided to Procore. Customer may revoke
this grant at any time, in part or in whole, by sending an email stating its intent to logos@procore.com.
(b) The Services may contain functionality to allow Customer and third parties to search for one another for various
purposes, such as inviting a third party to collaborate on a project, soliciting and/or receiving a bid, etc. Where
Procore has made such functionality available, Customer will have the ability to control its visibility for such
searches within the Services.
11.2. Export Control. Each Party shall comply with all applicable Export Control and Sanctions Laws and Regulations in
connection with providing and using the Services. Without limiting the foregoing, (a) each Party represents that it is
not listed on any list of entities or individuals who are restricted from receiving U.S. services or items subject to
jurisdiction of U.S. Export Controls (including but not limited to the Specially Designated Nationals and Blocked
Persons List and the Entity List) nor is it owned or controlled by any such listed entity; (b) Customer shall not, and
shall ensure that Authorized Users do not, violate any Export Control and Sanctions Laws and Regulations, or cause
any such violation to occur; and (c) Customer shall not use or cause any person to use the Services to store, retrieve,
or transmit technical data controlled under the U.S. International Traffic in Arms Regulations.
11.3. Anti-Corruption. Neither Party has promised, made, or received any bribe, kickback, or other similar payment or
transfer of value from or to any director, officer, employee, agent, or other representative of the other Party in
connection with this Agreement. Reasonable gifts, entertainment, sponsorships, and donations do not violate the
above restriction.
11.4. U.S. Government Rights. If Customer, or any Authorized User, is a branch, agency, or instrumentality of the United
States Government, the following provision applies: The Services and Documentation comprise “commercial
computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212
and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy
in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the
policies in 48 C.F.R. 227.7202-1 and 22.7202-3. The rights of the U.S. Government to use, commercial computer
software, commercial computer software documentation, and technical data furnished in connection with this
Agreement are solely as provided in this Agreement. No additional rights are provided to the Government unless set
forth in a separate written addendum.
11.5. Contracting Entity, Governing Law & Venue. The Procore contracting entity, law that will apply to a dispute arising
out of or relating to this Agreement, and jurisdiction for dispute resolution depend on where Customer is domiciled,
in all cases without reference to conflict of law rules of any jurisdiction.
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If Customer is domiciled in: The Procore contracting
entity is:
Governing law is
that of:
The venue for dispute
resolution is:
California Procore Technologies, Inc.
6309 Carpinteria Ave.
Carpinteria, CA 93013 USA
California Los Angeles County,
California
Any U.S. state other than
California; Mexico; or a
country in Central America,
South America, or the
Caribbean
Procore Technologies, Inc.
6309 Carpinteria Ave.
Carpinteria, CA 93013 USA
Texas
Brazoria County, Texas
Canada Procore Technologies, Inc.
6309 Carpinteria Ave.
Carpinteria, CA 93013 USA
Ontario Ontario, Canada
The United Kingdom; or a
country in Europe, Africa, or
the Middle East
Procore UK Ltd
3rd Floor 1 Ashley Road
Altrincham, Cheshire
U.K. WA14 2DT
England London, England
Australia or New Zealand Procore Technologies, Inc.
6309 Carpinteria Ave.
Carpinteria, CA 93013 USA
New South Wales Sydney, New South Wales
A country in Asia or the
Pacific region other than
Australia or New Zealand
Procore Technologies, Inc.
6309 Carpinteria Ave.
Carpinteria, CA 93013 USA
Singapore Singapore
The provisions of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform
Computer Information Transactions Acts will not apply to this Agreement in any manner whatsoever.
11.6. Dispute Resolution. The Parties shall attempt in good faith to promptly resolve any disputes arising out of or relating
to this Agreement by negotiation between representatives of each Party with the authority to resolve such dispute.
11.7. Notices. Notices to Customer will be delivered via email or overnight delivery at the address associated with the
Order. Notices to Procore will be delivered via email to legalnotice@procore.com or by overnight delivery to Procore
Technologies, Inc., Attention Chief Legal Officer, 6309 Carpinteria Ave., Carpinteria, CA 93013 USA. All notices must
be in writing and will be effective when received.
11.8. Force Majeure. Neither Party will be responsible or liable for any failure or delay in its performance under this
Agreement (except for payment of Fees, which may be delayed but not excused) to the extent due to any cause
beyond its reasonable control (“Force Majeure Event”). The Party suffering a Force Majeure Event shall use
reasonable efforts to mitigate against the effects of such Force Majeure Event For the avoidance of doubt, issues
relating to COVID-19 will not be considered a Force Majeure Event.
11.9. Assignment. Each Party shall not assign this Agreement, in whole or part, or any right or interest herein, without the
other Party’s prior written consent, not to be unreasonably withheld, and any purported assignment will be void.
However, either Party may assign this Agreement without consent to an Affiliate, or in connection with a merger,
consolidation, or corporate reorganization, sale of all or substantially all of its assets or business, or other change of
control transaction. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the
Parties and their respective successors and permitted assigns. Assignment will not relieve Customer of its obligation
to pay Fees incurred before the assignment.
11.10. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership,
franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
11.11. Entire Agreement; Order of Precedence. This Agreement (together with any SOWs, Orders, and linked terms)
contains the entire understanding and agreement of the Parties concerning the subject matter hereof and
supersedes all prior or contemporaneous communications, representations, agreements, and understandings, either
oral or written, between the Parties with respect to its subject matter. This Agreement may only be amended or
waived by a writing signed by both Parties; however, the Parties may update and modify this Agreement upon
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renewal. In the event of any conflict or inconsistency between or among the following documents, the order of
precedence will be: (1) the DPA, (2) the Order, (3) SOW, (4) this Agreement, and (5) any links provided herein. Any
amendment will take precedence over the document it amends.
11.12. Miscellaneous. If a provision of this Agreement is unenforceable or invalid, the provision will be revised so as to best
accomplish the objectives of the Parties as evidenced by this Agreement, and the remainder of this Agreement will
continue in full force. The English language version of this Agreement will be the version used when interpreting or
construing this Agreement. Any notices in connection with this Agreement must be provided in English. Either Party’s
failure to enforce any right under this Agreement will not waive that right. There are no third-party beneficiaries to
this Agreement, and Customer acknowledges that Procore will have no obligations or liability whatsoever to any third
parties with which Customer does business.
12. DEFINITIONS
12.1. “Affiliate” means an entity that controls, is controlled by, or is under common control of a Party, where “control”
means ownership or control, directly or indirectly, of more than fifty percent (50%) of the voting interest of such
entity or party (but only for so long as such control exists) or the right to otherwise control the decision making of
the subject entity.
12.2. “Authorized User” means any individual or agent authorized by Customer to access or use the Services.
12.3. “Customer Data” means any content, data, information, Personal Data (as described in Section 1.3), and other
materials submitted by Customer or an Authorized User to the Services. Customer Data excludes Statistical Usage
Data, any content from publicly available sources, and any suggestion, enhancement request, recommendation,
correction, or other feedback relating to the operation of the Subscription Services pursuant to Section 5.4.
12.4. “Documentation” means the official Procore-provided user guides applicable to the Services, whether in electronic,
paper, or equivalent form, as updated from time to time, accessible at
https://support.procore.com/products/online/user-guide or other websites designated by Procore.
12.5. “Export Control and Sanctions Laws and Regulations” means all laws and regulations under applicable law
controlling or regulating the export, re-export, or (in-country) transfer of goods, technology, software, or services, or
those that impose other trade or financial sanctions against targeted countries, territories, individuals, or entities.
12.6. “Harmful Code” means code, files, scripts, agents, malware, or programs intended to do harm, including but not
limited to viruses, worms, time bombs, and Trojan horses.
12.7. "Intellectual Property Rights” means all rights, title, and interest in all intellectual property, including patents,
copyrights, trade secrets, mask works, trademarks, and other intellectual property rights of any sort throughout the
world.
12.8. “Order” means a written or electronic order form, executed by the Parties, identifying the Services, scope, quantity,
charges, and other information relevant to a specific transaction between Customer and Procore, herein
incorporated by reference.
12.9. “Professional Services” means the implementation, technical, consulting, training, and similar services provided by
or through Procore or its Affiliates, as described in the relevant Order or SOW.
12.10. “Reseller” means a third party authorized by Procore or its Affiliates to promote, distribute, and/or resell the
Services.
12.11. “Services” means collectively, as applicable, the Subscription Services, Suppo rt Services, and Professional Services
Customer has ordered, and Procore has agreed to provide, as indicated on the applicable Order or SOW.
12.12. “SOW” means a statement of work executed by the Parties describing Professional Services purchased by Customer
pursuant to an Order, herein incorporated by reference.
12.13. “Statistical Usage Data” means usage information or data related to the access or use of the Services. Examples of
Statistical Usage Data include information or data on user visits, user activity, project activity, and numbers and types
of clicks or impressions, as well as statistical, functional, behavioral, or other information or data based on or derived
from such access or use.
12.14. “Subscription Services” means the Procore software-as-a-service, and all associated Updates, offered on a
subscription basis by Procore via an Order that provides the functionality described in the Documentation.
12.15. “Subscription Term” means the entire period during which Customer is entitled to use the Subscription Services,
including the initial term and any applicable renewal terms.
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12.16. “Support Services” means the type of Procore’s customer support for the Subscription Services described in Exhibit
A, and as may be specified or purchased within an Order.
12.17. “Updates” means all updates, enhancements, and other modifications that Procore makes generally available, at no
additional charge, to its customers of the Subscription Services identified in an Order.
12.18. “Usage Metrics” means the metrics used to determine the scope of Customer’s access and use of the Subscription
Services and associated Fees, as set out in an Order.
// Signature Page Follows //
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PROCORE SUBSCRIPTION AND SERVICES AGREEMENT
Signature Page
Procore Customer:
By: By:
Authorized Signature Authorized Signature
Name: Name:
Title: Title:
Date: Date:
DocuSign Envelope ID: 38D9FD8A-DC1C-424C-A610-46CD117E3D56
Darin Solinsky
VP, Deal Desk
12/12/23
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Trent Epperson
City Manager
12/20/2023 | 8:04 AM CST
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PROCORE SUBSCRIPTION AND SERVICES AGREEMENT
Exhibit A – Support Services and Service-Level Agreement
1. OVERVIEW
This Support Services and Service-Level Agreement (“SLA”) is entered into by Procore and Customer and covers the Procore
Subscription Services defined in the Procore Subscription and Services Agreement (“Agreement”) to which this SLA is attached.
Except as otherwise modified or defined herein, all capitalized terms in this SLA have the meanings set forth in the Agreement.
2. DEFINITIONS
For purposes of this SLA “Scheduled Downtime” means the window during which scheduled maintenance of the Subscription
Services is performed. Procore shall use commercially reasonable efforts to not provide more than 6 hours of Scheduled
Downtime per calendar month.
3. SERVICE AVAILABILITY
Procore’s service-level objective for the Subscription Services is 99.9% of the time, 7 days a week, and 24 hours per day as
calculated over a calendar month excluding Scheduled Downtime. This does not include Force Majeure Events or other factors
outside of Procore’s reasonable control.
4. SUPPORT
4.1 Access to Support. Customer and Authorized Users have access to technical support via telephone, online chat, email,
or self-paced online tutorials. Support hours can be found at http://support.procore.com/references/contact-support.
Support does not include training sessions on the features and functionality of the Subscription Services (e.g.,
implementation) or training in relevant computer skills considered prerequisite to an individual’s ability to use personal
computers, the Internet/World Wide Web, and online software in accordance with the requirements of the Agreement.
Furthermore, only qualified, trained Customer support personnel or Authorized Users familiar with Subscription
Services are authorized to contact Procore to obtain support.
4.2 Reporting and Status Updates. Before requesting support from Procore, Customer shall use reasonable efforts to
comply with any applicable operating and troubleshooting procedures as set forth in the Documentation or as
otherwise provided by Procore. If such efforts are unsuccessful, Customer should promptly notify Procore support via
Procore’s Ticket Tracking System (“System”) of the issue including any supporting information Customer believes may
assist Procore in both its diagnostic determination as well as the Severity/Priority classification. Upon Procore’s receipt
of a support request via the System, Procore shall use commercially reasonable efforts to answer questions and provide
standard error corrections to known problems. In the event of any problems or errors involving the Subscription
Services that Procore cannot immediately resolve, Procore shall begin working on a resolution to the problem and shall
work diligently and in a commercially reasonable manner on the problem until it is resolved. Once Procore receives an
error ticket as reported from Customer, Procore shall provide Customer with timely status updates as reasonably
determined by Procore until a workaround or other resolution is established by Procore.
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