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