|
File:San Leandro Public Library GC#300521
<br /> CLAIM BY CUSTOMER OR ANY THIRD PARTIES UNDER THE parent company or other affiliated company, to a successor by
<br /> MASTER AGREEMENT, EXCLUDING LIABILITY PURSUANT TO operation of law, or by reason of the sale or transfer of all or
<br /> SECTION 6(Indemnification),WILL BE LIMITED TO THE FEES PAID substantially all of its stock or assets to another entity. Neither party
<br /> BY CUSTOMER DURING THE PREVIOUS 12 MONTHS FOR THE may otherwise assign or transfer the Agreement without the prior
<br /> PRODUCT WHICH IS THE SUBJECT MATTER OF THE CLAIM. written consent of the other party, which shall not be unreasonably
<br /> 8.2 IN NO EVENT WILL SIRSIDYNIX BE LIABLE TO CUSTOMER withheld. Notwithstanding the above, SirsiDynix may fulfill its
<br /> FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY obligations hereunder through its affiliated companies.
<br /> PUNITIVE,TREBLE OR CONSEQUENTIAL DAMAGES(INCLUDING, 10.3 Cooperation. Customer agrees to provide cooperation,which
<br /> WITHOUT LIMITATION,LOSS OF BUSINESS,REVENUE,PROFITS, means assistance, information, equipment, data, a suitable work
<br /> STAFF TIME, GOODWILL, USE, DATA, OR OTHER ECONOMIC environment, timely access, and resources reasonably necessary to
<br /> ADVANTAGE), WHETHER BASED ON BREACH OF CONTRACT, enable SirsiDynix to perform any and all installation, implementation,
<br /> BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), and services required to fulfill this Master Agreement including but not
<br /> PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT limited to ensuring SirsiDynix has remote access. Failure to grant such
<br /> SIRSIDYNIX HAS PREVIOUSLY BEEN ADVISED OF THE cooperation shall allow SirsiDynix to deem the Product purchased by
<br /> POSSIBILITY OF SUCH DAMAGES. Customer to be fully accepted and delivered. In the event any delay in
<br /> 8.3 NO CLAIM ARISING OUT OF THE MASTER AGREEMENT, implementing Products is caused by Customer resulting in SirsiDynix
<br /> REGARDLESS OF FORM, MAY BE BROUGHT BY CUSTOMER incurring additional expenses,the Customer shall pay to SirsiDynix the
<br /> MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION amount of such additional expenses.
<br /> ARISES. 10.4 Notice of U.S. Government Restricted Rights. If the
<br /> 8.4 THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN Customer hereunder is the U.S. Government, or if the Software is
<br /> LIEU OF, AND SIRSIDYNIX, ITS LICENSORS AND SUPPLIERS acquired hereunder on behalf of the US Government with U.S.
<br /> EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED Government federal funding,notice is hereby given that the Software is
<br /> BY LAW,ALL OTHER WARRANTIES,EXPRESS OR IMPLIED,ORAL commercial computer software and documentation developed
<br /> OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY exclusively at private expense and is furnished as follows: "U.S.
<br /> WARRANTY THAT ANY PRODUCT IS ERROR-FREE OR WILL GOVERNMENT RESTRICTED RIGHTS.Software delivered subject to
<br /> OPERATE WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL the FAR 52.227-19. All use,duplication and disclosure of the Software
<br /> BE CORRECTED; (ii) ANY AND ALL IMPLIED WARRANTIES OF by or on behalf of the U.S. Government shall be subject to this
<br /> MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, Agreement and the restrictions contained in subsection (c) of FAR
<br /> AND NON-INFRINGEMENT, (iii)ANY WARRANTY THAT CONTENT 52.227-19, Commercial Computer Software - Restricted Rights (June
<br /> OR THIRD PARTY SOFTWARE WILL BE ACCURATE, RELIABLE 1987)".
<br /> AND ERROR-FREE AND(iv)ANY AND ALL IMPLIED WARRANTIES 10.5 Export. Customer shall comply fully with all relevant export
<br /> ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF laws and regulations of the United States to ensure that the Software is
<br /> PERFORMANCE OR USAGE OF TRADE. NO ADVICE,STATEMENT not exported,directly or indirectly,in violation of United States law.
<br /> OR INFORMATION GIVEN BY SIRSIDYNIX, ITS AFFILIATES, 10.6 Non-solicitation. During the term of this Master Agreement
<br /> CONTRACTORS OR EMPLOYEES SHALL CREATE OR CHANGE and for a period of one year following its termination,neither party will
<br /> ANY WARRANTY PROVIDED HEREIN. solicit for employment directly or through other parties, without the
<br /> 9. TERM AND TERMINATION other party's written permission, any individual employed by the other
<br /> 9.1 Term. Subject to Section 10.11 below,the term of this Master party, provided however that the hiring of individuals responding to
<br /> Agreement shall commence on the Effective Date and shall continue in general public marketing and recruiting advertisements and events
<br /> full force and effect until the termination of all obligations of either party shall not be a violation of this provision; only active, targeted
<br /> for all Products purchased, unless otherwise terminated earlier as solicitation is prohibited.
<br /> provided hereunder. 10.7 Compliance. During the term of this Master Agreement for a
<br /> 9.2.1 Termination. Either party may terminate the Master period of one year following its termination, SirsiDynix shall have the
<br /> •
<br /> Agreement immediately upon written notice if the other party commits right to verify Customer's full compliance with the terms and
<br /> a non-remediable material breach of the Master Agreement or any requirements of the Master Agreement. If such verification process
<br /> EULAs, or if the other party fails to cure any remediable material reveals any noncompliance by Customer with the Master Agreement,
<br /> breach or provide a written plan of cure acceptable to the non- Customer shall reimburse SirsiDynix for the reasonable costs and
<br /> breaching party within 30 days of being notified in writing of such expenses of such verification process incurred by SirsiDynix(including
<br /> breach. Where the non-breaching party has a right to terminate the but not limited to reasonable attorneys' fees) , and Customer shall
<br /> Agreement,the non-breaching party may at its discretion terminate the promptly cure any such noncompliance; provided, however, that the
<br /> Agreement in whole or part. 9.2.2 Following termination of the Master obligations under this section do not constitute a waiver of SirsiDynix's
<br /> Agreement, Customer agrees to certify that it has returned or termination rights and do not affect SirsiDynix's right to payment for
<br /> destroyed all copies of the applicable Software, Documentation and Software,Maintenance,Subscription and interest fees related to usage
<br /> Confidential Information and acknowledges that its rights to use the in excess of the License Metrics.
<br /> same are relinquished. 10.8 Notices. Any notice required or permitted to be sent under the
<br /> 10. GENERAL PROVISIONS Agreement shall be delivered by hand, by overnight courier, by email
<br /> to SirsiDynix at legal @sirsidynix.com, or by email to Customer at any
<br /> 10.1 Force Majeure. The parties will exercise every reasonable current Customer email address routinely used by SirsiDynix, or by
<br /> effort to meet their respective obligations hereunder but shall not be registered mail,return receipt requested,to the address of the parties
<br /> liable for delays resulting from force majeure or other causes beyond set forth in the Agreement or to such other address of the parties
<br /> their reasonable control, including but not limited to power outages or designated in writing in accordance with this subsection.
<br /> failure of third party service providers. This provision does not relieve
<br /> Customer of its obligation to make payments then owing. 10.9 Relationship, The Agreement is not intended to create a
<br /> partnership, franchise, joint venture, agency, or a fiduciary or
<br /> 10.2 Assignment. SirsiDynix may assign the Agreement and all of employment relationship. Neither party may bind the other party or act
<br /> its rights and obligations herein without Customer's approval to its
<br /> Customer Initial and Date: C! // /-3 Confidential
<br /> Page 4 of 6
<br />
|