HomeMy WebLinkAboutContract 43711 (2)MASTER AGREEMENT
SirsiDynix
This Master Agreement is entered into between Sirsi Corporation dba SirsiDynix ("SirsiDynix") and the customer listed in the signature
block below ("Customer").
The effective date of this Master Agreement is the last date signed by both parties ("Effective Date").
City of Fort Worth
Fort Worth Public Library
500 West 3rd Street
Fort Worth, Texas 76102
Sign:
ereg
Print Name: Charles W. Dart
Title: 5 • sort" Manager
Date: lO. OS. /2
Table of Contents
SirsiDynix
SirsiDynix Technology Centre
3300 N. Ashton Blvd. — Ste 500
Lehi, UT 84043
Sign:
Print Name: eMtr.► G ardlt. t r
Title: CFO
Date: Ra,_ '1.1) �Z
1. PURPOSE AND SCOPE
2. DEFINITIONS
3. FINANCIAL TERMS.
4. CONFIDENTIALITY.
5. PRIVACY.
6. LIMITED RIGHTS AND OWNERSHIP.
7. INDEMNIFICATION.
8. LIMITATION OF LIABILITY.
9. TERM AND TERMINATION!,,L;;7-CY
10. GENERAL PROVISIONS
lir
2
2
2
3
3
3
3
4
4
4
A Note on Section Summaries: Some sections of this Master Agreement have a summary at the beginning. These
summaries are intended for ease of reference, and are not part of this Master Agreement. If any summary coSIMe
section it is summarizing, the section of the agreement, and not the summary, controls. ,9�' O %T rgsC
ni4, pocvw' ��Qp9
paa
O 414
Y01
oo p° fig
. orooc4coooo spy
AJJP O -ED o AND MF' ,X'Y
IAbki �r
As s is tat City Atto nee
********************************************************
File:
rioritf act
Attested by:
*.*********7V
Author az
row*************************************
�a
kyttgi
Page�'o���
Gil .I J aLic 1��
1. PURPOSE AND SCOPE
1.1 Master Agreement. This Master Agreement establishes the
general terms and conditions to which the parties have agreed in order to
facilitate the licensing of software, content, other products and/or the
provision of services. Additional product or service -specific terms and
conditions are set forth in one or more Schedules (as further defined in
section 1.2 herein).
All references to the "Master Agreement" shall mean this document,
exclusive of Schedules. All references to the "Agreement" wherever
found shall include this Master Agreement, and all Schedules, and
attachments incorporated in the Schedules. To the extent any terms and
conditions of this Master Agreement conflict with the terms and conditions
of a Schedule, the terms and conditions of this Master Agreement shall
control unless expressly stated otherwise.
1.2 Incorporation of Schedules. This Master Agreement shall fully
incorporate by reference the terms and conditions found in each of the
following Schedules marked below.
[Mark the documents being included and signed with the Master]
Perpetual Software License and Maintenance Schedule
❑ SaaS Services Schedule
❑ P ofessional Services Schedule
Hardware Schedule
❑ Authorization for Release of Data Information Schedule
❑ Platinum Services Addendum
The parties may execute, from time to time, additional Schedules under
the terms of this Master Agreement.
1.3 EULAs. Customer's use of any Third Party Software licensed
hereunder or incorporated in the SaaS Services shall be subject to, and
Customer shall comply with, the Master Agreement and any applicable
EULAs. To the extent any terms and conditions of this Master Agreement
or a Schedule conflict with the terms and conditions of an EULA, the
terms and conditions of the EULA shall control.
1.4 Headings and Drafting. The headings in the Agreement shall not
be used to construe or interpret the Agreement. The Agreement shall not
be construed in favor of or against a party based on the author of the
document.
2. DEFINITIONS
"Confidential Information" is defined in section 4.
"Content" means any SirsiDynix or SirsiDynix-provided information,
data, text, software, music, sound, photographs, graphics, video
messages or other material to which Customer is provided on-line access
through SirsiDynix on a subscription basis.
"Customer Data" means any electronic data, information or material
provided or submitted by Customer (including the Customer's patrons
and users) to SirsiDynix through the Services, or which Customer
(including the Customer's patrons and users) enters into the Services or
has entered on its behalf, or which SirsiDynix is otherwise given access
to under the Agreement.
"Equitable Adjustment" means a reduction in future fees.
"Documentation" means the user instructions, release notes, manuals
and on-line help files in the form generally made available by SirsiDynix,
regarding the use of the applicable Software.
"SaaS Services" means the provision of (i) Software as a service (SaaS)
hosted by SirsiDynix from a server farm that is comprised of application,
data and remote access servers used to store and run the Software and
Customer Data, and/or (ii) web access to Content and (iii) associated
Maintenance.
"Intellectual Property" means any and all intellectual property rights,
recognized in any country or jurisdiction in the world, now or hereafter
existing, and whether or not perfected, filed or recorded, including
without limitation inventions, technology, patents rights (including patent
applications and disclosures), copyrights, trade secrets, trademarks,
service marks, trade dress, methodologies, procedures, processes,
know-how, tools, utilities, techniques, various concepts, ideas, methods,
models, templates, software, source code, algorithms, the generalized
features of the structure, sequence and organization of software, user
interfaces and screen designs, general purpose consulting and software
tools, utilities and routines, and logic, coherence and methods of
operation of Systems, training methodology and materials, which
SirsiDynix has created, acquired or otherwise has rights in, and may, in
connection with the performance of services hereunder, create, employ,
provide, modify, create, acquire or otherwise obtain rights in.
"Maintenance means the technical support and provision of Updates for
the level of support services ordered, all of which are provided under
SirsiDynix's Support Policies in effect at the time the Services are
provided. A current version of such Support Policies can be found at
htto://clientcare.sirsidvnix.com/index.oho?aoto=Knowleda_ e&docs&aid=1 &
kcat id=59&hilite=946.
"Professional Services" means data conversion, implementation, site
planning, configuration, integration and deployment of the Software or SaaS
Services, training, project management and other consulting services.
SirsiDynix Software" means each SirsiDynix-developed and/or
SirsiDynix-owned software product in machine readable object code (not
source code), the Documentation for such product, and any Updates
thereto.
"Services" means collectively (i) the Professional Services; (ii)
Maintenance, and (iii) SaaS Services.
`Software" means the SirsiDynix Software and Third Party Software.
"System" means the total complement of hardware and Software
furnished and maintained by SirsiDynix.
"Third Party EULA" or "EULA means the end user license agreement
that accompanies the Third Party Software, is appended to a Schedule or
is otherwise published by the third party supplier, and which governs the
use of or access by Customer to the applicable Third Party Software.
"Third Party Software" means content and software including
Documentation and Updates, owned by an entity other than SirsiDynix
which are to be provided to Customer by SirsiDynix on a pass -through or
OEM basis pursuant to the terms of the EULA.
"Updates" means the error corrections, modifications or enhancements
to Software or SaaS Services developed after the effective date of the
Schedule which SirsiDynix makes generally available to its customers as
part of the Maintenance. Updates exclude new products for which
SirsiDynix generally charges a separate fee.
3. FINANCIAL TERMS
Fees and charges due by Customer are payable within 30 days of
invoice. Fees exclude taxes or other government charges or
expenses. SirsiDynix may assess a finance charge for past due
amounts. SirsiDynix may also suspend performance if payments
are past due, after SirsiDynix has provided notice to Customer.
3.1 Fees and Payment Terms. The Customer is responsible for the
payment of the fees and other charges as specified in the Agreement.
Fees are exclusive of, and Customer is responsible for, shipping costs.
Invoices become past due 30 days after the invoice date. Interest
accrues on past due balances at the lesser of a 11/2% per month or the
highest rate allowed by law.
If Customer fails to make payments of any fees due under the
Agreement, SirsiDynix will be entitled to suspend its performance upon
thirty (30) days written notice to Customer.
Unless expressly provided otherwise, fees paid or payable for Software
licenses, Content, SaaS Services or Maintenance are not contingent
under any circumstances upon the performance of any Professional
Services.
3.2 Taxes. Customer is a tax exempt entity and shall not be liable for
any taxes under this Agreement.
3.3 Travel Expenses. Unless otherwise noted within the quote,
travel expenses will be billed separately at actual cost.
**********************************************************************************************************************************************************
File:
Customer Initial and Date:
Page 2 of 5
CONFIDENTIALITY
Each party agrees not to use or disclose the other's Confidential
Information except as necessary to further the purposes of the
Agreement. Each party agrees to take reasonable steps to protect
that information, to return it or destroy it upon request, and to
cooperate with one another if a disclosure is compelled by law.
SirsiDynix acknowledges 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.
4.1 Defined. By virtue of the Agreement, the Parties may be
exposed to or be provided with certain confidential and proprietary
information of the other party or third parties, including but not limited to
information designated as confidential in writing or information which
ought to be in good faith considered confidential and proprietary to the
disclosing party ("Confidential Information"). Confidential Information of
S irsiDynix and/or its licensors includes but is not limited to all trade
secrets, software, source code, object code, specifications, as well as
results of testing and benchmarking of the Software or other services,
product roadmap, data and other information of SirsiDynix and its
licensors relating to or embodied in the Software or Documentation.
S irsiDynix's placement of a copyright notice on any portion of any
S oftware will not be construed to mean that such portion has been
published and will not derogate from any claim that such portion contains
proprietary and confidential information of SirsiDynix.
4.2 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, or as required
by law. If disclosure is required by law, then the Receiving party will
promptly notify the disclosing party and allow the disclosing party a
reasonable time to oppose such requirement.
4.3 Exceptions. Information shall not be considered Confidential
Information to the extent, but only to the extent, 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; or (v) is required to be disclosed by law.
5. PRIVACY
Customer represents and warrants that before providing personal
information to SirsiDynix or its agents, it will comply with any laws
applicable to the disclosure of personal information, including providing
notices to or obtaining permission from third parties to allow sharing of
their personal information with SirsiDynix under the Agreement. No
personal information will be disseminated by SirsiDynix to any third
parties, except as consented to by Customer or required by law.
6. LIMITED RIGHTS AND OWNERSHIP
Software is licensed to Customer, not sold. This section
describes restrictions that apply to Customer's use of any
software or service SirsiDynix provides to Customer (e.g.,
prohibitions on renting, or hosting, or reverse engineering).
6.1 Reservation of Rights. All rights not expressly granted in the
Agreement are reserved by SirsiDynix and its licensors. Customer
acknowledges that: (i) all Software is licensed and not sold and all
Content is subscribed to and not sold; (ii) Customer acquires only the
right to use the Software, Content, or SaaS Services and SirsiDynix, its
licensors and Content providers shall retain sole and exclusive
ownership and all rights, title, and interest in, including Intellectual
Property embodied or associated with, the Software, Content, Services
and all copies and derivative works thereof (whether developed by
S irsiDynix, Customer or a third party); and (iii) the Software, including the
source and object codes, logic and structure, constitute valuable trade
secrets of SirsiDynix and its licensors. Customer agrees to secure and
protect the Software consistent with the maintenance of SirsiDynix's and
its licensors' rights in the Software, as set forth in this Master Agreement.
6.2 Restrictions. "Protected Materials" as used herein means
S oftware, Services or SirsiDynix's or its licensors' Intellectual Property or
Confidential Information. Customer shall not itself, or through any affiliate,
employee, consultant, contractor, agent or other third party: (i) sell, resell,
distribute, host, lease, rent, license or sublicense, in whole or in part, the
P rotected Materials; (ii) decipher, decompile, disassemble, reverse
assemble, modify, translate, reverse engineer or otherwise attempt to
derive source code, algorithms, tags, specifications, architecture,
structure or other elements of the Software, including the license keys, in
whole or in part, for competitive purposes or otherwise; (iii) allow access
to, provide, divulge or make available the Protected Materials to any user
other than Customer's employees and independent contractors who have
a need to such access and who shall be bound by a nondisclosure
agreement with provisions that are at least as restrictive as the terms of
this Master Agreement. SirsiDynix will allow access to the Software
module for online data inquiries (i.e. public access catalog) where the
Customer would like to grant such access, and then this access is only to
be granted to library users, other libraries, and third party entities. (iv)
write or develop any derivative works based upon the Protected
Materials access to Application Programming Interface ("API") is
specifically exempt from this clause; (v) modify, adapt, translate or
otherwise make any changes to the Software or Content or any part
thereof; (vi) use the Protected Materials to provide processing services to
third parties, or otherwise use the same on a 'service bureau' basis; (vii)
disclose or publish, without SirsiDynix's prior written consent,
performance or capacity statistics or the results of any benchmark test
performed on the Protected Materials; or (viii) otherwise use or copy the
Protected Materials except as expressly permitted herein.
6.3 Customer Data. SirsiDynix disclaims ownership of any and all
Customer Data, all bibliographic, authority, item, fine, patron, and other
data loaded to, created and/or entered into Customer's database or
supplied to SirsiDynix by Customer.
6.4 License Grant by Customer. Customer grants to SirsiDynix a
non-exclusive, royalty free license, to use equipment, software, Customer
Data or other material of Customer solely for the purpose of performing
its obligations under the Agreement.
6.5 Enforcement. Customer shall (i) ensure that all users of
Software or SaaS Services comply with the terms and conditions of the
Agreement, (ii) promptly notify SirsiDynix of any actual or suspected
violation thereof and (iii) cooperate with SirsiDynix with respect to
investigation and enforcement of the Agreement.
7. INDEMNIFICATION
S irsiDynix will defend Customer against claims that a SirsiDynix
S oftware or SaaS Service (excluding Content and Third Party
S oftware) infringes certain third parties intellectual property
rights, and pay any damages awarded by a court or in a
settlement. There are several exceptions, which limit SirsiDynix's
obligations in cases where Customer has contributed in some
way to the claim.
If an infringement is adjudicated, SirsiDynix may, at its option,
replace the infringing material, modify it to make it non -
infringing, obtain the rights Customer needs to keep using it, or
an equitable adjustment will to the fees paid by Customer.
7.1 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 SaaS Services (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
**********************************************************************************************************************************************************
File:
Customer Initial and Date:
Page 3 of 5
written notice of the claim to SirsiDynix; (ii) gives SirsiDynix sole control of
the defense and settlement of the Claim (iii) provides SirsiDynix, at
S irsiDynix's expense, with all available information and assistance
relating to the Claim and cooperates with SirsiDynix and its counsel; and
(iv) does not compromise or settle such Claim.
S irsiDynix has no obligation to the extent any Claim results from: (i)
Customer having modified the SirsiDynix Software or SaaS Services or
used a release other than a current unaltered release of the SirsiDynix
S oftware, if such an infringement would have been avoided by the use of
a current unaltered release of the SirsiDynix Software, (ii) Third Party
S oftware and/or Content, or (iii) the combination, operation or use of the
S irsiDynix Software or SaaS Services with software or data not provided
under the Agreement.
If it is adjudicated that an infringement of the SirsiDynix Software or SaaS
S ervice by itself and used in accordance with the 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
S irsiDynix Software or Service; (ii) replace or modify the same so it
becomes non -infringing; or (iii) Customer will be entitled to an equitable
adjustment of the fees paid for the affected Software or Service. THIS
S ECTION STATES SIRSIDYNIX'S ENTIRE OBLIGATION TO
CUSTOMER AND CUSTOMER'S SOLE REMEDY FOR ANY CLAIM OF
INFRINGEMENT.
7.2 By Customer. Intentionally deleted.
8. LIMITATION OF LIABILITY.
SirsiDynix limits its liability to Customer to the total amount of
fees paid by Customer for the previous 12 months. This limit
does not apply, however, to SirsiDynix's obligations under the
section entitled "INDEMNIFICATION". In no event will SirsiDynix
be liable for consequential, indirect, punitive, or special
damages.
8.1 EXCEPT FOR DAMAGE TO PROPERTY OR PERSONAL INJURY
CAUSED BY SIRSIDYNIX, TO THE FULLEST EXTENT PERMITTED BY
LAW, SIRSIDYNIX'S TOTAL LIABILITY (INCLUDING ATTORNEYS
FEES AWARDED UNDER THE AGREEMENT) TO CUSTOMER FOR
ANY CLAIM BY CUSTOMER OR ANY THIRD PARTIES UNDER THE
AGREEMENT, EXCLUDING LIABILITY PURSUANT TO SECTION 7
(Indemnification), WILL BE LIMITED TO THE TOTAL FEES PAID BY
CUSTOMER DURING THE PREVIOUS 12 MONTHS.
8.2 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER
FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY PUNITIVE,
TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT
LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, STAFF
TIME, GOODWILL, USE, DATA, OR OTHER ECONOMIC
ADVANTAGE), WHETHER BASED ON BREACH OF CONTRACT,
BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE),
PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT THAT
PARTY HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
8.3 NO CLAIM ARISING OUT OF THE AGREEMENT, REGARDLESS
OF FORM, MAY BE BROUGHT MORE THAN FOUR YEARS AFTER
THE CAUSE OF ACTION HAS OCCURRED.
8.4 THIS SECTION SHALL SURVIVE FAILURE OF ANY EXCLUSIVE
REMEDY.
9. TERM AND TERMINATION
The Master Agreement remains in effect until all Schedules have
expired, or the Master Agreement and all Schedules are
terminated by a party for a breach by the other party. The non -
breaching party may, at its option, terminate the affected
Schedule without terminating the entire Agreement.
9.1 Term. The term of this Master Agreement shall commence on
the Effective Date set forth above and shall continue in full force and
effect until the expiration or termination of all Schedules, unless otherwise
terminated earlier as provided hereunder.
9.2 Termination. Either party may terminate the Agreement including
any or all Schedules, or any EULAs, (i) upon sixty (60) days written notice
if the other party commits a non -remedial material breach of the
Agreement, including any or all Schedules, or any EULAs, and that party
fails to cure such breach or provide a written plan of cure acceptable to
the non -breaching party within 30 days of being notified in writing of such
breach; or (ii) in the event the Customer does not appropriate sufficient
funds during the initial term or any renewal term in any fiscal period for
any payments due hereunder. In the event Customer terminates this
Agreement pursuant to this Section 9 2(ii), Customer will notify SirsiDynix
of such occurrence, and Customer shall have the right to terminate this
Agreement, or any and all Schedules or EULAs on the last day of the
fiscal period for which appropriations were received without any penalty
or additional expense to the Customer of any kind whatsoever, except
Customer shall be responsible for paying the portions of the payments
herein agreed upon for which funds have been appropriated.
Where the non -breaching party has a right to terminate the Agreement,
the non -breaching party may at its discretion either terminate the
Agreement or the applicable Schedule. Schedules that are not terminated
shall continue in full force and effect under the terms of this Master
Agreement.
Following termination of the Agreement or a Schedule (for whatever
reason), Customer agrees to certify that it has returned or destroyed all
copies of the applicable Software, Content and Confidential Information
and acknowledges that its rights to use the same are relinquished.
10. GENERAL PROVISIONS
10.1 Force Majeure, The parties will exercise every reasonable effort
to meet their respective obligations hereunder but shall not be liable for
delays resulting from force majeure or other causes beyond their
reasonable control, including but not limited to power outages or failure of
third party service providers. This provision does not relieve Customer of
its obligation to make payments then owing.
10.2 Assignment. SirsiDynix may assign the Agreement and all of its
rights and obligations herein without Customer's approval to its parent
company or other affiliated company, to a successor by operation of law,
or by reason of the sale or transfer of all or substantially all of its stock or
assets to another entity. SirsiDynix shall notify Customer in writing within
thirty (30) days of any such assignment. Neither party may otherwise
assign or transfer the Agreement without the prior written consent of the
other party, which shall not be unreasonably withheld.
10.3 Cooperation. Customer agrees to provide Cooperation, which is
defined to mean: acceptance, assistance, information, equipment, data, a
suitable work environment, timely access, and resources reasonably
necessary to enable SirsiDynix to perform any and all installation,
implementation, and services required to fulfill this Agreement. If
Customer has purchased post Go Live modules, Customer shall continue
Cooperation after the Go Live date to provide for installation of post Go
Live modules within four (4) weeks of the Go Live date. Customer shall
indicate acceptance of products or services from SirsiDynix in writing to
the project manager by confirming receipt of hardware or completion of
installation, implementation, or other services Customer's failure to
accept such products or services within ten (10) business days of such
request or date of delivery or Customer's failure to grant such
Cooperation shall allow SirsiDynix to deem the System and Professional
Services purchased by Customer to be fully accepted and delivered.
10.4 Notice of U.S. Government Restricted Rights. If the Customer
hereunder is the U.S. Government, or if the Software are acquired
hereunder on behalf of the US Government with U.S. Government federal
funding, notice is hereby given that the Software are commercial
computer software and documentation developed exclusively at private
expense and are furnished as follows: "U.S. GOVERNMENT
RESTRICTED RIGHTS. Software delivered subject to the FAR 52.227-
19. All use, duplication and disclosure of the Software by or on behalf of
the U.S. Government shall be subject to this Agreement and the
restrictions contained in subsection (c) of FAR 52.227-19, Commercial
Computer Software - Restricted Rights (June 1987)".
**********************************************************************************************************************************************************
File:
Customer Initial and Date:
Page 4 of 5
10.5 Export. Customer shall comply fully with all relevant export laws
and regulations of the United States to ensure that the Software is not
exported, directly or indirectly, in violation of United States law.
10.6 Non -solicitation. During the term of this Master Agreement and
for a period of one year following its termination, neither party will solicit
for employment directly or through other parties, without the other party's
written permission, any individual employed by the other party, provided
however that the hiring of individuals responding to general public
marketing and recruiting advertisements and events shall not be a
violation of this provision; only active, targeted solicitation is prohibited.
10.7 Compliance. During the term of this Master Agreement for a
period of one year following its termination, Customer shall maintain and
make available to SirsiDynix records sufficient to permit SirsiDynix or an
independent auditor retained by SirsiDynix to verify, upon ten business
days' written notice, Customer's full compliance with the terms and
requirements of the Agreement. Such audit shall be performed during
regular business hours. If such verification process reveals any
noncompliance by Customer with the Agreement, Customer shall
promptly cure any such noncompliance; provided, however, that the
obligations under this section do not constitute a waiver of SirsiDynix's
termination rights. Customer will certify its license compliance in writing
at any time on SirsiDynix's request.
10.8 Notices. Any notice required or permitted to be sent under the
Agreement shall be delivered by hand, by overnight courier, by pdf via
email to legal C sirsidvnix.com, for SirsiDynix's email or
for Customer's email, or
by registered mail, return receipt requested, to the address of the parties
first set forth in the Agreement or to such other address of the parties
designated in writing in accordance with this subsection.
10.9 Relationship. The Agreement is not intended to create a
partnership, franchise, joint venture, agency, or a fiduciary or employment
relationship. Neither party may bind the other party or act in a manner
which expresses or implies a relationship other than that of independent
contractor.
10.10 Invalidity. If any provision of the Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired.
10.11 Survival. The following provisions will survive any termination or
expiration of the Agreement or a Schedule: sections 1, 2, 3, 4, 6.1, 6.2,
6.3, 6.5, 7, 8, 9, and 10.
10.12 No Waiver. Any waiver of the provisions of the Agreement or of a
party's rights or remedies under the Agreement must be in writing to be
effective. Any such waiver shall constitute a waiver only with respect to
the specific matter described in such writing and shall in no way impair
the rights of the party granting such waiver in any other respect or at any
other time. The waiver by either of the parties hereto of a breach or of a
default under any of the provisions of the Agreement shall not be
construed as a waiver of any other breach or default of a similar nature,
or as a waiver of any of such provisions, rights or privileges hereunder.
The rights and remedies herein provided are cumulative and none is
exclusive of any other, or of any rights or remedies that any party may
otherwise have at law or in equity. Failure, neglect, or delay by a party to
enforce the provisions of the Agreement or its rights or remedies at any
time, shall not be construed and shall not be deemed to be a waiver of
such party's rights under the Agreement and shall not in any way affect
the validity of the whole or any part of the Agreement or prejudice such
party's right to take subsequent action.
10.13 Entire Agreement; The Master Agreement and Schedules
constitutes the parties' entire agreement relating to its subject matter. It
cancels and supersedes all prior or contemporaneous oral or written
communications, requests for proposals, proposals, conditions,
representations, and warranties, or other communication between the
parties relating to its subject matter as well as any prior contractual
agreements between the parties. No modification to the Agreement will
be binding unless in writing and signed by an authorized representative of
each party.
10.14 Third Party Beneficiaries. All rights and benefits afforded to
SirsiDynix under the Agreement shall apply equally to the owner of the
Third Party Software with respect to the Third Party Software, and such
third party is an intended third party beneficiary of the Agreement, with
respect to the Third Party Software.
10.15 Governing Law and Venue. The Agreement shall be governed
by and construed in accordance with the laws of the State of Texas -
without giving effect to its principles of conflict of laws. Any dispute shall
be litigated in the state or federal courts located in the State of Texas,
Tarrant County to whose exclusive jurisdiction the parties hereby
consent. In addition, the Customer hereby waives any objection the
customer may have based upon lack of personal jurisdiction, improper
venue and/or"forum non conveniens"..The parties agree that this contract
is not a contract for the sale of goods; therefore, the Agreement shall not
be governed by any codification of Article 2 or 2A of the Uniform
Commercial Code, or any codification of the Uniform Computer
Information Technology Act ("UCITA"), or any references to the United
National Convention on Contracts for the International Sale of Goods.
10.16 Counterparts. The Master Agreement and each Schedule may
be executed in one or more counterparts, each of which shall constitute
an enforceable original of the Agreement, and that facsimile and/or pdf
scanned copies of signatures shall be as effective and binding as original
signatures.
10.17 Right to Audit. SirsiDynix agrees that the Customer shall, until the
expiration of three (3) years after final payment under this contract, have
access to and the right to examine at reasonable times any directly
pertinent books, documents, papers and records of SirsiDynix involving
transactions relating to this Agreement at no additional cost to the
Customer. SirsiDynix agrees that the Customer shall have access during
normal working hours to all necessary SirsiDynix facilities and shall be
provided adequate and appropriate work space in order to conduct audits
in compliance with the provisions of this section. Customer shall give
SirsiDynix reasonable advance notice of intended audits. SirsiDynix
further agrees to include in all its subcontractor agreements hereunder a
provision to the effect that the subcontractor agrees that the Customer
shall, until expiration of three (3) years after final payment of the
subcontract, have access to and the right to examine at reasonable times
any directly pertinent books, documents, papers and records of such
subcontractor involving transactions related to the Agreement, and further
that Customer shall have access during normal working hours to all
subcontractor facilities and shall be provided adequate and appropriate
work space in order to conduct audits in compliance with the provisions of
this paragraph. Customer shall give subcontractor reasonable notice of
intended audits.
**************************************************************************************************************************,**************************************************
END OF MASTER AGREEMENT
**********************************************************************************************************************************************************
File:
Customer Initial and Date:
Page 5 of 5
HARDWARE SCHLDULE
Si rsi Dyn ix
This Schedule is entered into between Sirsi Corporation dba SirsiDynix ("SirsiDynix") and the customer listed in the signature block below
("Customer"). The provisions of the Master Agreement ("Master Agreement") dated between the parties are hereby
fully incorporated herein by reference. Capitalized terms that are not otherwise defined in this Schedule shall have the meanings set forth in the Master
Agreement. The above parties agree to the following:
1. RISK OF LOSS
Risk of Toss on all hardware passes to Customer upon Customer's
receipt of such hardware, which shall constitute delivery to Customer.
Thereafter Customer will be responsible for risks of loss or damage,
except for loss or damage caused by SirsiDynix in the process of
installation. Title to the hardware shall pass to Customer upon delivery
to Customer.
2. MAINTENANCE
Unless otherwise noted in the Quote, SirsiDynix will provide first line
support for hardware listed on the Quote in accordance with SirsiDynix's
then -current Support Policies.
3. WARRANTIES AND DISCLAIMERS
3.1 SirsiDynix warrants that it is an authorized distributor of the
Hardware.
3.2 Hardware warranties shall be governed by the manufacturer's
warranty. Such warranties begin on shipment of the third party products
from the manufacturer, whether shipment is to SirsiDynix or to Customer.
SirsiDynix makes no warranties of any kind with respect to the
Hardware. Customer's sole remedy with respect to such Hardware shall
be pursuant to the manufacturer's warranty, if any.
3.3 Disclaimers. THE WARRANTIES SET FORTH IN THIS
SECTION ARE IN LIEU OF, AND SIRSIDYNIX, ITS SUPPLIERS
EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY
LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR
WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY
THAT ANY HARDWARE WILL OPERATE WITHOUT INTERRUPTION
OR THAT ALL ERRORS WILL BE CORRECTED; AND (ii) ANY AND
ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE
This Schedule shall have the same Term (effective and expiration date) as the Master Agreement indicated above which is incorporated herein.
IN WITNESS WHEREOF, the parties have caused this Hardware Schedule to be executed by their duly authorized representatives as identified below.
City of Fort Worth
Fort Worth Public Library SirsiDynix
Authonzing
Signature
Name
Address
Title
Date
afr,ze-seez,"
rles Daniels
1000 Throckmorton Street
Fort Worth, Texas 76102
Assistant City Manager
10.05. /2L
- I.C.rt. - tCTiel12Ufl 'Swill, 7_i..- n r=s Melt -
APPROVED AS 'ID FORM AND LEGALITY:
f
Assistant CR) Atw €licy
Authorizing
Signature
Name
Address
Title
Date
ko\vv
SNAN C__curdettQfar
3300 N. Ashton Blvd. — Ste 500
Lehi, UT 84043 USA
CFt
ZuL3Ik3 kLet V2 -�.-
TP
',t oo ate o 9
lit
0�4
o
00
Oo
0
0
0
0
oo° f
Zg000000.°4
tkiyalf21.-e
***********************************************************************************************************************
File:
Page 1 of 1
M&C Review Page 1 of 2
Official site of the City of Fort Worth, Texas
CITY COUNCIL AGENDA FORTx
COUNCIL ACTION: Approved on 10/2/2012
REFERENCE84SIRSIDYNIX
DATE: 10/2/2012 **C-25901 LOG NARIIE: MAINTENANCE AND 3RD
NO.: PARTY SUPPORT
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJFC T : Authorize Execution of a Sole Source Annual Maintenance Agreement with the SirsiDynix
Corporation in the Amount Up to $70,900.00 Annually to Provide Integrated Library
System Maintenance and Third Party Peripheral Support for the Library Department (ALL
COUNCIL DISTRICTS)
RF,C01111 M Fi N DATION:
It is recommended that the City Council authorize the execution of a Sole Source Annual
Maintenance Agreement with the SirsiDynix Corporation in the amount up to $70,900.00 annually for
the provision of maintenance and third party support for the Library Department's Integrated Library
S ystem.
DISCUSSION:
S irsiDynix Corporation (SirsiDynix) has been the service provider for the Library Department's
(Library) Integrated Library System (ILS) public library catalog access since December 2004.
S irsiDynix is the sole source provider of these services through its support center and third party
partners Staff recommends this annual contract for upgrades and support of the ILS systems and
addition of automation peripherals which include: Session Initiation Protocol (SIP), Remote Patron
Authentication (RPA), Web reporter, Self -check Machines, Patron Telemessaging Notification and
Radio Frequency Identification (RFID) security for materials.
The term of the initial Agreement will be from October 2, 2012 through September 30, 2013 at an
annual cost in an amount up to $70,900.00, with two additional one-year options to renew. The City
Manager will be authorized to renew the maintenance Agreement annually provided that the City
Council has appropriated sufficient funds to satisfy the City's obligations during the term of the new
Agreement. The annual amount will not exceed the amount of $70,900.00.
PRICE ANALYSIS - Third party support costs are based on the number of peripherals within the
Library system and are consistent with similar automation support services Staff determined the
prices are fair and reasonable.
M/WBE - A waiver of the goal for M/WBE subcontracting requirements was requested by the
Purchasing Division and approved by the M/WBE Office because the purchase of goods or services
is from sources where subcontracting or supplier opportunities are negligible.
AGREEMENT TERMS - Upon City Council approval, the Agreement will begin October 2, 2012 and
expire September 30, 2013.
ADMINISTRATIVE INCREASE - An Administrative increase or change order for this Agreement may
be made by the City Manager or his designee in the amount up to $17,725.00 and does not require
specific City Council approval so long as sufficient funds have been appropriated.
RENEWAL OPTIONS - This Agreement may be renewed for up to two additional one-year terms at
http://apps.cfwnet.org/council packet/mc_review.asp?ID=1603 5&councildate=10/2/2012 10/3/2012
M&C Review Page 2 of 2
the City's option This action does not require specific City Council approval provided that the City
Council has appropriated sufficient funds to satisfy the City's obligations during the renewal term.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that funds are available in the Fiscal Year 2013
operating budget, as appropriated, of the General Fund.
TO Fund/Account/Centers FROM Fund/Account/Centers
0001 539120 0841020 $70,900.00
Submitted for City Manager's Office bv: Charles Daniels (6199)
Originating Department Head: Gleniece A. Robinson (7706)
Additional Information Contact: Sheila Scullock (7706)
ATTACHMENTS
http://apps.cfwnet.org/council_packet/mc review.asp?ID=1 603 5 &councildate=1 0/2/20 1 2 10/3/2012