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8B Consent 2013 0318
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8B Consent 2013 0318
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3/27/2013 4:10:42 PM
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3/13/2013 2:10:26 PM
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CM City Clerk-City Council
CM City Clerk-City Council - Document Type
Staff Report
Document Date (6)
3/18/2013
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_CC Agenda 2013 0318 CS+RG
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\City Clerk\City Council\Agenda Packets\2013\Packet 2013 0318
Reso 2013-031
(Reference)
Path:
\City Clerk\City Council\Resolutions\2013
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<br />File: San Leandro Public Library GC#300521 <br /> <br /> <br /> <br />Customer Initial and Date: dl.initialhere.1 <br /> <br /> <br /> <br /> <br /> <br /> Confidential <br /> <br />Page 3 of 6 <br /> <br /> <br />3. FINANCIAL TERMS <br />3.1.1 Fees and Payment Terms. The Customer shall pay the <br />amounts set forth in the Quote. Invoices become past due 30 days <br />after the invoice date. Interest accrues on past due balances at the <br />higher of 1½% per month or the highest rate allowed by law. If <br />Customer fails to make payments of any amount due under the Master <br />Agreement, SirsiDynix will be entitled to suspend its performance upon <br />ten (10) days written notice to Customer. 3.1.2 Unless expressly <br />provided otherwise, amounts paid or payable for Software, <br />Subscriptions and Hardware are not contingent upon the performance <br />of any Services. <br />3.2 Taxes. Customer agrees to pay any sales tax arising out of <br />the Master Agreement, other than those based on SirsiDynix’s net <br />income. If Customer is tax-exempt, Customer agrees to send <br />SirsiDynix a copy of its tax-exempt certificate upon execution of the <br />Master Agreement. Customer agrees to indemnify SirsiDynix from any <br />liability or expense incurred by SirsiDynix as a result of Customer’s <br />failure or delay in paying such sales tax due. <br />4. CONFIDENTIALITY <br />4.1 Non-Disclosure. Each party will protect the other party’s <br />Confidential Information from unauthorized dissemination and use the <br />same degree of care that each such party uses to protect its own <br />confidential information, but in no event less than a reasonable amount <br />of care. Neither party will use Confidential Information of the other <br />party for purposes other than those necessary to directly further the <br />purposes of the Agreement. Neither party will disclose to third parties <br />Confidential Information without prior written consent of the other party. <br />4.2 Exceptions. Information shall not be considered <br />Confidential Information to the extent, but only to the extent, that the <br />disclosing party can establish that such information (i) is or becomes <br />generally known or available to the public through no fault of the <br />receiving party; (ii) was in the receiving party's possession before <br />receipt from the disclosing party; (iii) is lawfully obtained from a third <br />party who has the right to make such disclosure; (iv) has been <br />independently developed by one party without reference to any <br />Confidential Information of the other; (v) is information aggregated by <br />SirsiDynix that no longer contains any personally identifiable <br />information; or (vi) is required to be disclosed by law provided the <br />receiving Party has promptly notified the disclosing party of such <br />requirement and allowed the disclosing party a reasonable time to <br />oppose such requirement. The parties acknowledge that Customer <br />may be subject to freedom of information legislation and further <br />acknowledges that such legislation may take precedence over the <br />confidentiality provisions of this section as they apply to Customer. <br />5. PRIVACY <br />Customer represents and warrants that before providing personal ly <br />identifiable information to SirsiDynix or its agents, it will comply with <br />any laws applicable to the disclosure of personally identifiable <br />information, including providing notices to or obtaining permission from <br />third parties to allow sharing of their personally identifiable information <br />with SirsiDynix under the Agreement. Customer will indemnify <br />SirsiDynix for any breach of this representation and warranty. No <br />personally identifiable information will be disseminated by SirsiDynix to <br />any third parties, except as consented to by Customer or required by <br />law. <br />6. INDEMNIFICATION <br />6.1.1 By SirsiDynix. SirsiDynix will defend or settle, at its option and <br />expense, any action, suit or proceeding brought against Customer that <br />the SirsiDynix Software or SirsiDynix Subscriptions (excluding Content <br />and Third Party Software) infringe a third party’s USA patent, <br />registered copyright, or registered trademark (“Claim”). SirsiDynix will <br />indemnify Customer against all damages and costs finally awarded <br />which are attributable exclusively to such Claim, provided that <br />Customer: (i) promptly gives written notice of the claim to SirsiDynix; <br />(ii) gives SirsiDynix sole control of the defense and settlement of the <br />Claim; (iii) provides SirsiDynix, at SirsiDynix’s expense, with all <br />available information and assistance relating to the Claim and <br />cooperates with SirsiDynix and its counsel; (iv) does not compromise <br />or settle such Claim; and (v) is not in material breach of any agreement <br />with SirsiDynix. 6.1.2 SirsiDynix has no obligation to the extent any <br />Claim results from: (i) Customer having modified the SirsiDynix <br />Software or SirsiDynix Subscription or used a release other than a <br />current unaltered release of the SirsiDynix Software, if such an <br />infringement would have been avoided by the use of a current <br />unaltered release of the SirsiDynix Software, (ii) Third Party Software <br />and/or Content, or (iii) the combination, operation or use of the <br />SirsiDynix Software or SirsiDynix Subscriptions with software or data <br />not provided under the Master Agreement. 6.1.3 If it is adjudicated that <br />the use of the SirsiDynix Software or SirsiDynix Subscriptions in <br />accordance with the Master Agreement infringes any USA patent, <br />registered copyright, or registered trademark, SirsiDynix shall, at its <br />option: (i) procure for Customer the right to continue using the <br />infringing Product; (ii) replace or modify the same so it becomes non- <br />infringing; or (iii) Customer will be entitled to an equitable adjustment in <br />the fees paid for the affected Product. THIS SECTION STATES <br />SIRSIDYNIX’S ENTIRE OBLIGATION TO CUSTOMER AND <br />CUSTOMER’S SOLE REMEDY FOR ANY CLAIM OF <br />INFRINGEMENT. <br />6.2 By Customer. To the extent allowed by law, Customer shall <br />defend or settle, at its option and expense, any action, suit or <br />proceeding brought against SirsiDynix by a third party arising out of or <br />in connection with: (i) any claim that Customer Data infringes on the <br />intellectual property rights of a third party; or (ii) any claim <br />that Customer or a Customer’s user is using the Product in a manner <br />that violates the provisions of the Agreement. Customer’s obligations <br />under this section are contingent upon: (a) SirsiDynix providing <br />Customer with prompt written notice of such claim; (b) SirsiDynix <br />providing reasonable cooperation to Customer, at Customer’s <br />expense, in the defense and settlement of such claim; and (c) <br />Customer having sole authority to defend or settle such claim. <br />7. REMEDIES. <br />7.1 If a SirsiDynix Product does not perform as warranted, SirsiDynix <br />shall use commercially reasonable efforts to correct Errors. As <br />Customer's exclusive remedy for any claim under this warranty, <br />Customer shall promptly notify SirsiDynix in writing of its claim. <br />Provided that such claim is reasonably determined by SirsiDynix to be <br />SirsiDynix’s responsibility, SirsiDynix shall, within ninety (90) days of its <br />receipt of Customer's written notice, (i) correct such Error; (ii) provide <br />Customer with a plan reasonably acceptable to Customer for <br />correcting the Error; or (iii) if neither (i) nor (ii) can be accomplished <br />with reasonable commercial efforts from SirsiDynix, then SirsiDynix or <br />Customer may terminate the affected SirsiDynix Product and Customer <br />will be entitled to an equitable adjustment in the fees paid for the <br />affected Product at SirsiDynix’s discretion. The preceding warranty <br />cure shall constitute SirsiDynix’s entire liability and Customer's <br />exclusive remedy for cure of the warranty set forth herein. <br />7.2 Exclusions. SirsiDynix is not responsible for any claimed breach <br />of any warranty caused by: (i) modifications made to the Products by <br />anyone other than SirsiDynix; (ii) the combination, operation or use of <br />the Products with any items that are not part of the Operating <br />Environment; (iii) Customer’s failure to use any new or corrected <br />versions of the Products made available by SirsiDynix; (iv) SirsiDynix’s <br />adherence to Customer’s specifications or instructions; or (v) Customer <br />deviating from the SirsiDynix Product operating procedures described <br />in the Documentation. <br />8. LIMITATION OF LIABILITY <br /> 8.1 TO THE FULLEST EXTENT PERMITTED BY LAW, <br />SIRSIDYNIX’S TOTAL LIABILITY (INCLUDING ATTORNEYS FEES <br />AWARDED UNDER THE AGREEMENT) TO CUSTOMER FOR ANY <br />DocuSign Envelope ID: 308C5B23-59C2-4A51-BF38-025B9637F9FA <br />In Process
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