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Resolution - 2016-R0285 - Long Term Professional Service Agreement - Sirsidynix - Library Support/Software - 08/25/2016
Resolution No. 2016-RO285 Item No. 6.18 August 25, 2016 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Long Term Professional Service Agreement, Contract No. 13019, with SirsiDynix for Annual Support and Software Maintenance for the Lubbock Public Library System, attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on August 25 , 2016. 4Aee� DANIEL M. POPE, MAYOR ATTEST: P1 e. JX Re e cca Garza, City Secretary APPROVED AS TO CONTENT: Mark Ye wood, A sistant ty Manager APPROVED AS TO FORM: John C/G �'e, YgAtant ViVAttorney S:IcAyaft\CCDOC$IRES.SirsiDynixAnnualMaintenance 2017 doc File: Lubbock Public Library Resolution No. 2016-RO285 LONG TERM AGREEMENT BETWEEN LUBBOCK PUBLIC LIBRARY AND SIRSIDYNIX PURPOSE AND SCOPE 1.1 Parties and Effective Date. This Long Term Agreement (the "Master Agreement) is entered into between Sirsi Corporation dba SirsiDynix ("SirsiDynix") and the customer identified in the signature block below ("Customer"), with effect on the date of the last signature below ("Effective Date"). 1.2 Purpose. This Master Agreement establishes the general terms and conditions to which the parties have agreed with respect to the provision of Products by SirsiDynix to Customer. Additional terms for the purchase of a specific Product are set forth in the Quote(s). By signing below, the parties acknowledge receipt of and agree to be bound by the terms and conditions of this Master Agreement and the Quote(s) for Products purchased by Customer. All pre-printed or standard terms of any Customer purchase order or other business processing document shall have no effect. 1.3 Incorporation of Quotes. "Quote" means the document(s), regardless of actual name, executed by the parties which is incorporated by reference into the terms of this Master Agreement, and describes order -specific information, such as description of Product ordered, License Metrics, fees, statements of work, exhibits and milestones. At any time after execution of the Master Agreement and the initial Quote, Customer may purchase additional Products or otherwise expand the scope of existing licenses or Subscriptions granted under a Quote, upon SirsiDynix receipt and acceptance of a new Quote specifying the foregoing. 1.4 Incorporation of EULAs. Customer's use of any Third Party Products licensed hereunder or incorporated in the Products may be subject to, and Customer shall sign and comply with, any applicable EULAs. 1.5 Order of Precedence. To the extent any terms and conditions of this Master Agreement conflict with the terms and conditions of a Quote, the terms and conditions of the Master Agreement shall control, except where the Quote expressly states the intent to supersede a specific portion of the Master Agreement. To the extent any terms and conditions of this Master Agreement conflict with the terms and conditions of an EULA, the terms and conditions of the EULA shall control. PRODUCTS USE RIGHTS; TITLE 2.1 Generally. Customer's purchase of Products under this Master Agreement may include from time -to -time Software, Subscriptions, Services, and/or Hardware. The following provisions under this Section 2 apply if relevant to the type of Product purchased pursuant to a Quote. 2.2.1 Software License. Subject to the terms and conditions of this Master Agreement including without limitation the restrictions set forth in Section 2.7 and Section 2.9 and timely payment of the applicable fees, SirsiDynix hereby grants to Customer a limited, non-exclusive, non -transferable and perpetual (subject to SirsiDynix termination rights pursuant to this Master Agreement) license to (i) install, run and use the Software identified in the Quote in the Operating Environment solely for Internal Business Purposes, and (ii) use the Documentation in connection with such use of the Software. Customer may not make copies of the Software except a reasonable number of machine-readable copies solely for internal backup or archival purposes. All Intellectual Property rights notices must be reproduced and included on such copies. Customer shall maintain accurate and up-to-date records of the number and location of all copies of the Software and inform SirsiDynix in writing of such upon request. 2.2.2 Unless otherwise set forth in a Quote, the Software shall not be simultaneously loaded and operated Customer Initial and Date: Page 1 of 7 GC#331339 on more than one hardware platform, except temporarily during the process of platform migration. 2.2.3 Customer shall use the Third Party Products solely in conjunction with the SirsiDynix Software and Customer shall have no broader rights with respect to the Third Party Products than it has to the SirsiDynix Software. SirsiDynix may add and/or substitute functionally equivalent products for any third party items in the event of product unavailability, end -of -life, or changes to software requirements. 2.3.1 Subscriptions. For Subscriptions purchased by Customer, and subject to the terms and conditions of this Master Agreement including without limitation the restrictions set forth in Sections 2.7 and 2.9 and timely payment of the applicable fees, SirsiDynix grants to Customer the right to access and use the Subscription identified in the Quote solely for Internal Business Purposes and to use the Documentation in connection with such access and use for the Term. SirsiDynix shall use commercially reasonable efforts to make the Subscription Services available 24x7, except for scheduled downtime events, or emergency downtime events, or Internet service provider failures or delays. SirsiDynix will use commercially reasonable efforts to perform scheduled downtime events outside of normal business hours. Customer acknowledges that the Subscription Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. SirsiDynix is not responsible for any delays, delivery failures, or other damage resulting from such problems. 2.3.2 Customer is solely responsible for obtaining and maintaining at its own expense, all equipment that may be needed to access Subscriptions, including without limitation, Internet connections. Customer understands that Subscription communications may traverse an unencrypted public Internet connection and that use of the Internet provides the opportunity for unauthorized third parties to illegally gain access to Customer Data. Accordingly, SirsiDynix does not guaranty the privacy, security or authenticity of any information transmitted over or stored in any system connected to the Internet. Customer shall not encrypt Subscription traffic except as may be available through the SirsiDynix VPN solution. 2.3.3 Customer is responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the authorized user. Customer is responsible for all activities that occur under Customer's account. Customer agrees to immediately notify SirsiDynix of any unauthorized use of Customer's account or any other breach of security known to Customer. SirsiDynix shall have no liability for any loss or damage arising from Customer's failure to comply with these requirements. 2.3.4 Customer shall be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquired Customer Data. Customer acknowledges and agrees that SirsiDynix does not monitor or police the content of communications or data of Customer or its users transmitted through the Subscriptions, and that SirsiDynix shall not be responsible for the content of any such communications or transmissions. Customer shall use the Subscriptions exclusively for authorized and legal purposes, consistent with all applicable laws and regulations. Customer agrees not to post or upload any content or data which (a) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening; (b) contains viruses or other contaminating or destructive features; (c) violates the rights of others, such as data which infringes on any intellectual property rights or violates any right of privacy or publicity; (d) constitutes sensitive personal information such as social security numbers, credit card information, or drivers license numbers; or (e) otherwise violates any applicable law. Customer further agrees not to interfere or disrupt networks Confidential SirsiDynix File: Lubbock Public Library connected to the Subscriptions, not to interfere with another customer's use and enjoyment of similar services and to comply with all regulations, policies and procedures of networks connected to the Subscriptions. SirsiDynix may remove any violating content posted or transmitted on or through the Subscriptions, without notice to Customer. SirsiDynix may suspend or terminate any user's access to the Subscriptions upon notice in the event that SirsiDynix reasonably determines that such user has violated these terms and conditions. 2.3.5 The provision of third party Subscriptions is subject to availability from third party providers and SirsiDynix shall have no liability should such Subscription become unavailable for any reason or is no longer available under reasonable commercial terms. 2.3.6 In the event that Customer is locally hosting Subscription Software, SirsiDynix hereby grants to Customer, subject to the terms and conditions of this Master Agreement including without limitation the restrictions set forth in Section 2.7 and Section 2.9 and timely payment of the applicable fees, a limited, non-exclusive, non -transferable grant of use to locally install and use the Subscription Software solely for Customer's internal business purposes. The grant of use for Subscription Software is not a license and remains in effect only while Customer is timely paying its Subscription fees to SirsiDynix. If Customer fails to timely pay Subscription fees, Customer must immediately discontinue use of and certify to SirsiDynix the removal of Subscription Software. 2.4.1 Services. Services are described in the Quote. SirsiDynix shall be responsible for securing, managing, scheduling, coordinating and supervising SirsiDynix personnel, including its subcontractors, in performing any Services. Any change to the scope of Services must be in writing signed by both parties. Once executed by both parties, a change shall become a part of the Quote. 2.4.2 Customer acknowledges and agrees that SirsiDynix performance is dependent upon the timely and effective satisfaction of Customer's responsibilities hereunder and timely decisions and approvals of Customer in connection with the Services. SirsiDynix shall be entitled to rely on all decisions and approvals of Customer. Customer's data must be provided to SirsiDynix in a format reasonably approved by SirsiDynix or additional charges will apply. Customer shall be responsible for providing secured access to Customer's systems to SirsiDynix. SirsiDynix alone shall decide whether such access is sufficient for the performance of Services. 2.5. Software Maintenance. 2.5.1 Subject to Customer's timely payment of applicable fees, SirsiDynix will provide during the Term Maintenance services for the Software in accordance with the maintenance plan indicated in the Quote, provided however that with respect to Third Party Products, SirsiDynix's obligation to offer Maintenance is limited to using commercially reasonable efforts to obtain Maintenance from the third party owner of such Software. All licenses in Customer's possession must be supported under the same maintenance plan. 2.5.2 Updates are provided if and when available, and SirsiDynix is under no obligation to develop any future programs or functionality. 2.5.3 SirsiDynix is under no obligation to provide Maintenance with respect to: (i) a Product that has been altered or modified by anyone other than SirsiDynix or its licensors; (ii) a release for which Maintenance has been discontinued; (iii) a Product used other than in accordance with the Documentation or other than on the Operating Environment; (iv) discrepancies that do not significantly impair or affect the operation of the Product; or (v) any systems or programs not supplied by SirsiDynix. 2.5.4 For the avoidance of doubt, Updates provided under Maintenance services are subsequent minor or maintenance releases to the standard Products, excluding custom development or customizations whether such customizations are performed by SirsiDynix or by Customer or a third party. SirsiDynix reserves the right to charge Client for any reintegration work required to make customizations compatible with future releases. 2.5.51f ordered, Maintenance must be ordered for all Software and all associated License Metrics licensed by Customer. Customer may not purchase or renew Maintenance for a subset of its licenses only. 2.5.6 If an Error was corrected or is not present in a more current release of the Product, SirsiDynix shall have no obligation to correct such Errors in prior releases of the Software. 2.5.7 Fees for Maintenance Services do not include implementation, training and other Professional Services. 2.5.8 It is Customer's responsibility to ensure that all appropriate users receive initial training services sufficient to enable Customer to effectively use the Customer Initial and Date: Page 2 of 7 GC#331339 Software. Failure to do so could result in additional Maintenance fees if service requests are deemed excessive as a result of insufficient training, at SirsiDynix's discretion.2.5.9 In the event Customer does not renew Maintenance and subsequently desires to reinstate Maintenance, a reinstatement fee shall be assessed equal to 120% of the aggregate Maintenance fee that would have been payable during the period of lapse. 2.5.10 For Software licenses and Subscription Software, Customer is solely responsible for the installation of Updates and agrees to (i) meet the Update standard set forth in the SirsiDynix Support Policies referenced in the definition of Maintenance and (ii) maintain the Operating Environment. With respect to Subscriptions, SirsiDynix is responsible for the implementation of Updates and shall no longer provide access to any previous release upon the date SirsiDynix migrates to a new Update for production use in SirsiDynix's hosted environment. 2.6.1 Hardware and Hardware Maintenance. Title to the Hardware identified in the Quote, if any, shall pass to Customer on SirsiDynix's placement of the Hardware with a common carrier or licensed trucker, 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. 2.6.2 SirsiDynix does not provide support for Hardware unless Customer purchases any available maintenance associated with such Hardware. Such Hardware maintenance may be provided through a third party and is subject to that third party's standard terms, conditions and warranties, if any. 2.7 License Metrics. Customer may not use the Products in excess of the License Metrics specified in the Quote. Additional License Metrics and associated Maintenance must be purchased at the pricing in effect at the time the additional License Metrics are added in the event actual usage exceeds the licensed quantity, prorated for the remainder of the then -current Term. The additional License Metrics purchased shall terminate on the same date as the pre-existing Products. Prices are based on License Metrics purchased and not actual usage. The number of License Metrics provided in the initial Quote is a minimum amount that Customer has committed to for the Term and there shall be no fee adjustments or refunds for any decreases in usage. 2.8 Reservation of Rights. All rights not expressly granted in the Master Agreement are reserved by SirsiDynix and its third party providers. Customer acknowledges that: (i) all Software is licensed and not sold and all Subscriptions and Content are subscribed to and not sold; (ii) Customer acquires only the right to use the Protected Materials. SirsiDynix and its third party providers retain sole and exclusive ownership and all rights, title, and interest in, including Intellectual Property embodied or associated with, the Protected Materials and all copies and derivative works thereof (whether developed by SirsiDynix, Customer or a third party); and (iii) the Protected Materials, including the source and object codes, logic and structure, constitute valuable trade secrets of SirsiDynix and its third party providers. Customer agrees to secure and protect the Products consistent with the maintenance of SirsiDynix's and its third party providers' rights in the Products, as set forth in this Master Agreement. 2.9 Restrictions. Unless specifically permitted or licensed by SirsiDynix, 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 Protected 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 Protected Materials, 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 (except the Customer may grant access to public access catalogs to library users, other libraries, and third party entities); (iv) write or develop any derivative works based upon the Protected Materials; (v) modify, adapt, translate or otherwise make any changes to the Protected Materials or any part thereof; Confidential SirsiDynix File: Lubbock Public Library (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. 2.10 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. Notwithstanding Customer's ownership of Customer Data, at the end of the Term SirsiDynix shall only be obligated to provide to Customer extractable Customer Data at no additional charge in a supported MARC and/or ASCII delimited format. SirsiDynix shall have the right to aggregate and retain non -personally identifiable data. 2.11 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 SirsiDynix's obligations under the Master Agreement. 2.12 Enforcement. Customer shall (i) ensure that all users of the Products comply with the terms and conditions of the Master 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 Master Agreement. FINANCIAL TERMS 3.1.1 Fees and Payment Terms. The Customer shall pay the amounts set forth in the Quote. Subject to the provisions of the Quote, SirsiDynix may annually increase the fees of Subscription, Subscription Software and/or Maintenance upon 30 days written notice in advance. Invoices become past due 30 days after the invoice date. Interest accrues on past due balances at the higher of 1'/s% 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, Subscription Software 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. 3.3 No Contingencies. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by SirsiDynix regarding future functionality or features. 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 Master 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 receiving 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 on a non -confidential basis; (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 Customer Initial and Date: Page 3 of 7 GC#331339 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 personally 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 Master 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 (excluding Content and Third Party Products) 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 used a release other than the most current unaltered release of the SirsiDynix Software, if such an infringement would have been avoided by the use of such current unaltered release, (ii) Third Party Products and/or Content, or (iii) the combination, operation or use of the SirsiDynix Software with software or data not provided by SirsiDynix. 6.1.3 If it is adjudicated that the use of the SirsiDynix Software 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 SirsiDynix Software; (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 SirsiDynix Software. 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; (ii) any claim by a Customer user or (iii) any claim that Customer or a Customer's user is using the Product in a manner that violates the provisions of the Master 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. WARRANTIES; REMEDIES; DISCLAIMERS 7.1 SirsiDynix Software. SirsiDynix warrants that, for a period of 90 days from the Go Live Date, the SirsiDynix Software, as updated by SirsiDynix and used in accordance with the Documentation and in the Operating Environment, will operate in all material respects in conformity with the Documentation. If SirsiDynix Software does not perform as warranted, SirsiDynix shall use commercially reasonable efforts to correct Errors. As Customer's exclusive Confidential \irk S1rS1DyII1X File: Lubbock Public Library 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 Software license and Customer will be entitled to an equitable adjustment in the fees paid for the affected SirsiDynix Software 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 SirsiDynix Subscriptions. SirsiDynix warrants that Subscriptions, as used in accordance with the Documentation, will operate in all material respects in conformity with the Documentation. 7.3 Exclusions. SirsiDynix is not responsible for any claimed breach of any warranty caused by: (i) modifications made to the SirsiDynix Software by anyone other than SirsiDynix; (ii) the combination, operation or use of the SirsiDynix Software with any items that are not part of the Operating Environment; (iii) Customer's failure to use any new or corrected releases of the SirsiDynix Software made available by SirsiDynix; (iv) SirsiDynix's adherence to Customer's specifications or instructions; or (v) Customer deviating from the operating procedures described in the Documentation. 7.4 Third Party Products. SirsiDynix warrants that it is an authorized distributor of the Third Party Product and that with the execution of this Master Agreement and the applicable EULA, Customer will have the right to use such Product in accordance with the terms and conditions of the terms of this Master Agreement and the applicable EULA. SIRSIDYNIX MAKES NO OTHER WARRANTY WITH RESPECT TO ANY THIRD PARTY PRODUCTS. CUSTOMER'S SOLE REMEDY WITH RESPECT TO SUCH THIRD PARTY PRODUCTS SHALL BE PURSUANT TO THE ORIGINAL LICENSOR'S WARRANTY, IF ANY, TO SIRSIDYNIX, TO THE EXTENT PERMITTED BY THE ORIGINAL LICENSOR. THIRD PARTY PRODUCTS ARE MADE AVAILABLE BY SIRSIDYNIX ON AN "AS IS, AS AVAILABLE" BASIS. 7.5 Hardware. SirsiDynix warrants that it is an authorized distributor of the Hardware. Hardware warranties shall be governed by the manufacturer's warranty. SIRSIDYNIX MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO HARDWARE OR HARDWARE MAINTENANCE. CUSTOMER'S SOLE REMEDY WITH RESPECT TO SUCH HARDWARE OR HARDWARE MAINTENANCE SHALL BE PURSUANT TO THE MANUFACTURER'S WARRANTY, IF ANY. 7.6 Disclaimers. THE WARRANTIES SET FORTH IN THIS MASTER AGREEMENT ARE IN LIEU OF, AND SIRSIDYNIX, ITS LICENSORS AND 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 PRODUCT IS ERROR -FREE OR WILL OPERATE WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE CORRECTED; (ii) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON -INFRINGEMENT, (iii) ANY WARRANTY THAT CONTENT OR THIRD PARTY PRODUCTS WILL BE ACCURATE, RELIABLE AND ERROR - FREE AND (iv) ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ADVICE, STATEMENT OR INFORMATION GIVEN BY SIRSIDYNIX, ITS AFFILIATES, CONTRACTORS OR EMPLOYEES SHALL CREATE OR CHANGE ANY WARRANTY PROVIDED HEREIN. CUSTOMER ACKNOWLEDGES THAT USE OF OR CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY PRECAUTIONS AND ILLEGALLY GAIN ACCESS TO THE SERVICES AND CUSTOMER DATA AND THAT NO FORM OF ENCRYPTION IS FOOL PROOF. ACCORDINGLY, SIRSIDYNIX CANNOT AND DOES NOT GUARANTEE THE PRIVACY, SECURITY OR AUTHENTICITY OF ANY Customer Initial and Date: Page 4 of 7 GC#331339 INFORMATION SO TRANSMITTED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET. 8. EXCLUSION AND LIMITATION OF LIABILITY 8.1 TO THE FULLEST EXTENT PERMITTED BY LAW, SIRSIDYNIX'S TOTAL LIABILITY (INCLUDING ATTORNEYS FEES AWARDED UNDER THE MASTER AGREEMENT) TO CUSTOMER FOR ANY CLAIM BY CUSTOMER OR ANY THIRD PARTIES UNDER THE MASTER AGREEMENT, EXCLUDING LIABILITY PURSUANT TO SECTION 6 (Indemnification), WILL BE LIMITED TO THE FEES PAID BY CUSTOMER DURING THE PREVIOUS 12 MONTHS FOR THE PRODUCT WHICH IS THE SUBJECT MATTER OF THE CLAIM. 8.2 IN NO EVENT WILL SIRSIDYNIX BE LIABLE TO CUSTOMER 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 SIRSIDYNIX HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 8.3 NO CLAIM ARISING OUT OF THE MASTER AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT BY CUSTOMER MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION ARISES. 9. TERM AND TERMINATION 9.1 Term of Master Agreement. Subject to Section 10.12 below, the term of this Master Agreement shall commence on the Effective Date and shall continue in full force and effect until the expiration or termination of all Quotes, unless otherwise terminated earlier as provided hereunder. 9.2 Product and Services Term. The respective initial term of Software Maintenance, Hardware Maintenance, Subscriptions, and Subscription Software as applicable, is specified in the Quote ("Initial Term"). The Initial Term shall automatically renew for the same length as the Initial Term unless either party gives written notice 60 days prior to the end of any previous Term of its intention to terminate the Subscription or Maintenance service. The Initial Term and renewal terms are referred to as the "Term". 9.3.1 Termination. Either party may terminate the Master Agreement immediately upon written notice if the other party commits a non -remediable material breach of the Master Agreement, or if the other party fails to cure any remediable material 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. Where the non -breaching party has a right to terminate the Master Agreement, the non -breaching party may at its discretion terminate the Master Agreement or the applicable Quote. Quotes that are not terminated shall continue in full force and effect under the terms of this Master Agreement 9.3.2 Following termination of the Master Agreement, Customer agrees to certify that it has returned or destroyed all copies of the applicable Product and Confidential Information and acknowledges that its rights to use the same are relinquished. 9.3.3 Fees. Customer acknowledges that, based on Customer's willingness to purchase Products for the Term, SirsiDynix has provided Customer with Products and Services at rates that represent a substantial discount from the rates that SirsiDynix would otherwise charge, along with certain other free or substantially discounted products or services. Customer therefore agrees that it is reasonable for Customer to pay a fee to SirsiDynix in the event of early termination for any reason, which becomes effective upon any date prior to the end of the last year of the Initial Term or prior to the end of any renewal term. Such fee shall be equal to 50% of the remaining value of the then -current Term of the Products or Services, as applicable. Customer agrees that damages suffered by SirsiDynix in the event of such early termination are difficult or impossible to determine and that the above amount is intended to be a reasonable approximation of such damages and not a penalty. Customer agrees that it will pay such amounts within thirty (30) days of any such early termination. Customer shall notify SirsiDynix in writing of its intent to terminate not less than sixty (60) days prior to the date of termination and Customer shall not be eligible for any pro -rata credit or refund for unused partial year fees paid. Confidential \ill SirsiDynix File: Lubbock Public Library 9.4. Suspension. SirsiDynix will be entitled to suspend any or all performance upon 10 days written notice to Customer in the event Customer is in breach of the Master Agreement. Further, SirsiDynix may suspend Customer's use of and access to all or a portion of the Subscriptions if, and so long as, in SirsiDynix's sole judgment, there is a security risk created by Customer that may interfere with the proper continued provision of services or the operation of SirsiDynix's network or systems. SirsiDynix may impose an additional charge to reinstate service following such suspension. 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 Master 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. Neither party may otherwise assign or transfer the Master Agreement without the prior written consent of the other party, which shall not be unreasonably withheld. Notwithstanding the above, SirsiDynix may fulfill its obligations hereunder through its affiliated companies. 10.3 Cooperation. Customer agrees to provide cooperation, which means 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 its obligations hereunder including but not limited to ensuring SirsiDynix has remote access. Failure to grant such cooperation shall allow SirsiDynix to deem the Product purchased by Customer to be fully accepted and delivered. In the event any delay in implementing Products is caused by Customer resulting in SirsiDynix incurring additional expenses, the Customer shall pay to SirsiDynix the amount of such additional expenses. 10.4 Delegation. SirsiDynix may subcontract or delegate any work under any Quote to any third party without Customer's prior written consent, provided however that SirsiDynix shall remain responsible for the performance of any such subcontractors. 10.5 Notice of U.S. Government Restricted Rights. If the Customer hereunder is the U.S. Government, or if the Software is acquired hereunder on behalf of the US Government with U.S. Government federal funding, notice is hereby given that the Software is commercial computer software and documentation developed exclusively at private expense and is 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 Master Agreement and the restrictions contained in subsection (c) of FAR 52.227-19, Commercial Computer Software - Restricted Rights (June 1987)". 10.6 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. 10.7 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. 10.8 Compliance. During the term of this Master Agreement and for a period of one year following its termination, SirsiDynix shall have the right to verify Customer's full compliance with the terms and requirements of the Master Agreement. If such verification process reveals any noncompliance by Customer. Customer shall reimburse SirsiDynix for the reasonable costs Customer Initial and Date: Page 5 of 7 GC#331339 and expenses of such verification process incurred by SirsiDynix (including but not limited to reasonable attorneys' fees) , and 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 and do not affect SirsiDynix's right to payment for Products and interest fees related to usage in excess of the License Metrics. 10.9 Notices. Any notice required or permitted to be sent under the Master Agreement shall be delivered by hand, by overnight courier, by email to SirsiDynix at Ieoal(EDsirsidvnix.com, or by email to Customer at any current Customer email address routinely used by SirsiDynix, or by registered mail, return receipt requested, to the address of the parties set forth in the Master Agreement or to such other address of the parties designated in writing in accordance with this subsection. 10.10 Relationship. The Master 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. 10.11 Invalidity. If any provision of the Master 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. 10.12 Survival. The following provisions will survive any termination or expiration of the Master Agreement: sections 1, 2.7, 2.8, 2.10, 2.12, 3, 4, 5, 6, 7, 8, 9. and 10. 10.13 No Waiver. Any waiver of the provisions of the Master Agreement or of a party's rights or remedies under the Master 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 Master 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 Master 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 Master Agreement and shall not in any way affect the validity of the whole or any part of the Master Agreement or prejudice such party's right to take subsequent action. 10.14 Entire Agreement. The Master Agreement 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. Notwithstanding the precedence of this Master Agreement, any existing Customer License Metrics shall continue unless new License Metrics are identified in a Quote. No modification to the Master Agreement will be binding unless in writing and signed by an authorized representative of each party. 10.15 Third Party Beneficiaries. All rights and benefits afforded to SirsiDynix under the Master Agreement shall apply equally to the owner of the Third Party Products with respect to the Third Party Products, and such third party is an intended third party beneficiary of the Master Agreement, with respect to the Third Party Products. 10.16 Governing Law and Venue. The Master Agreement shall be governed by and construed in accordance with the laws of the State of Utah without giving effect to its principles of conflict of laws. Any dispute shall be litigated in the state or federal courts located in Utah 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". Confidential SirsiDynix N File: Lubbock Public Library Exhibit A - DEFINITIONS "Circulation" means the checkout of a Library Item to a patron, the checkout of a Library Item for the purpose of tracking in -library usage, the renewal of a Library Item, or an action functionally identical to any of the preceding acts. "Confidential Information" means information of SirsiDynix and/or its licensors includes but is not limited to the terms and conditions (but not the existence) of the Master Agreement, 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, 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. SirsiDynix's placement of a copyright notice on any portion of any Software 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. Confidential Information does not include that the Customer uses SirsiDynix Products. "Content" means any information, data, text, software, music, sound, photographs, graphics, video messages or other material which Customer receives through a Subscription. "Customer Data" means any electronic data, information or material provided or submitted by Customer (including the Customer's patrons and users) to SirsiDynix through a Subscription or Services, or which Customer (including the Customer's patrons and users) enters into the Subscription or Services or has entered on its behalf, or which SirsiDynix is otherwise given access to under the Master Agreement. Customer Data does not include non -personally identifiable information aggregated by SirsiDynix. "Documentation" means the user instructions, release notes, manuals and on-line help files made available by SirsiDynix regarding the use of the applicable Product. "Effective Date" is defined in section 1.1. "Error" means a material failure of a Product to conform to its functional specifications described in the Documentation. "EULA" means the end user license agreement that accompanies the Third Party Product, which governs the use of or access by Customer to the applicable Third Party Product. "Go Live Date" means the date on which the Products are substantially ready for operational use for normal daily business. "Hardware" means the physical hardware and equipment manufactured by third party providers and sold to Customers by SirsiDynix. "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 obligations hereunder, create, employ, provide, modify, create, acquire or otherwise obtain rights in. "Internal Business Purposes" means Customer's internal use but does not include (1) sharing Confidential Information or Intellectual Property with third parties without SirsiDynix written consent or (2) integration of third party Customer Initial and Date: Page 7 of 7 GC#331339 products by any means into Software, Subscriptions or Subscription Software without additional SirsiDynix license. "License Metrics" means limits on Product usage as set forth in the Quote such as Titles, Circulation, Users, students, seats, and reports. "Maintenance" means the technical support and, with respect to Software, the provision of Updates for the level of support services purchased from SirsiDynix, all of which are provided under SirsiDynix's support policies in effect at the time the Services are provided, which may be modified from time -to -time by SirsiDynix in its sole discretion. A current version of such Support Policies can be found under "SirsiDynix Support Policies" (Document ID 125773) at http://support.sirsidynix.com. "Operating Environment" means SirsiDynix-recommended hardware, operating system, middleware, database products and other software on which the Software will operate. "Professional Services" means data conversion, implementation, site planning, configuration, integration and deployment of the Software or Subscriptions, training, project management and other consulting services. "Products" means Software, Subscriptions, Subscription Software, Services and Hardware. "Protected Materials" means Software and work product provided by SirsiDynix under Services, Subscriptions, Subscription Software and SirsiDynix's or its licensors' Intellectual Property and Confidential Information. "Quote" is defined in Section 1.3. "Services" means those services provided or arranged by SirsiDynix including but not limited to specific SirsiDynix Products such as (i) Professional Services; and (ii) that part of Maintenance that is technical support, excluding the provision of Updates. "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. "Software" means the SirsiDynix Software and Third Party Software. "Subscriptions" means the provision of access by SirsiDynix or its hosting providers to Software and/or Content from a server farm that is comprised of application, data and remote access servers, including associated offline components including but not limited to cloud services and web access to Content. "Subscription Software" means Subscriptions hosted by Customer. Customer does not have a license in Subscription Software. "Term" is defined in section 9.2. "Titles" means the number of unique records for an electronic, virtual, and/or physical item which may be used by a library patron, such as a bibliographic, MARC, visual material, serial or Dublin Core record, created on the Software or Subscription. Multiple items, representing either identical items or volumes in a set, may be included in a single Title. "Third Party Products" means software or content including documentation and updates if any, owned by an entity other than SirsiDynix and provided by SirsiDynix in connection with Products. "Updates" means the error corrections, releases, updates, modifications or enhancements subsequently developed that SirsiDynix makes generally available to its customers as part of Maintenance on a when and if available basis. Updates exclude new products, modules, platform or functionality for which SirsiDynix charges a separate fee. "Users" means Customer's employees or agents who have been issued user names and passwords by Customer to use the Products. Each such User shall be one person, and user names and passwords cannot be shared or used by more than one person. Confidential @) sll Soym File: Lubbock Public Library GC#331339 10.17 Application of Laws. The parties agree that this contract is not a and/or .pdf scanned copies of signatures shall be as effective and binding contract for the sale of goods; therefore, the Master Agreement shall not be as original signatures. governed by any codification of Article 2 or 2A of the Uniform Commercial 10.19 Headings and Drafting The headings in the Master Agreement Code, or any codification of the Uniform Computer Information Technology shall not be used to construe or interpret the Master Agreement. The Master Act ("UCITA"), or any references to the United National Convention on Agreement shall not be construed in favor of or against a party based on the Contracts for the International Sale of Goods originator of the document. 10.18 Counterparts. The Master Agreement and each Schedule may be 10.20 Attorney's Fees. In the event a party seeks and obtains a remedy executed in one or more counterparts. each of which shall constitute an in the courts for its rights under this Master Agreement, the prevailing party enforceable original of the Master Agreement, and that facsimile, electronic In such litigation shall be entitled to its reasonable attorney's fees and cost. END OF MASTER AGREEMENT Lub ck Public Library 1306 Ni St. Lubbock, as 79401 Sirsi Corporation SirsiDynix Technology Centre 3300 N. Ashton Blvd. — Suite 500 Lehi, UT 84043 Sign: Sign: Print Name: Print Name: Title: Title: dz� Date: Date: ' .. FO THE TY OF LUBBOCK, TEXAS: DANIEL M. P PE, Mayor Date: Au uA 25, 2016 ATTEST: GA* -e--40 Rebe t Garza, City Secre ary APPROVED AS TO FORM: r Mark Ye rwood, st. City nager, CIO Customer Initial Od Date: Page 6 of 7 Confidential @ SirSiDyIllX Attachment "A" THE AGREEMENT(S) TO WHICH THIS AMENDMENT IS ATTACHED IS/ARE HEREBY AMENDED TO INCORPORATE THE FOLLOWING TERMS, CONDITIONS AND PROVISIONS AND ANY CONFLICTING TERMS, CONDITIONS OR PROVISIONS IN THE FORGOING ATTACHED AGREEMENT ARE NULL AND VOID AND OF NO EFFECT, IN FAVOR OF THE FOLLOWING: Parties / Notices The contracting party is the City of Lubbock, Texas, 1625 13`h Street, PO Box 2000, Lubbock, Texas 79457-2000 and any and all legal notices to the City of Lubbock shall be sent to the City Secretary at that address. The parties acknowledge and affirm that no department of the City of Lubbock has the legal authority to enter into any contract of any type or nature in the name of the department or to accept any legal notice on behalf of the City of Lubbock. Funding All funds for payment by the City under this contract are subject to the availability of an annual appropriation for this purpose by the City. In the event of nonappropriation of funds by the City Council of the City of Lubbock for the goods or services provided under the contract, the City will terminate the contract, without termination charge or other liability, on the last day of the then -current fiscal year or when the appropriation made for the then -current year for goods or services covered by this contract is spent, whichever event occurs first. If at any time funds are not appropriated for the continuance of this contract, cancellation shall be accepted by the Seller on thirty (30) days prior written notice, but failure to give such notice shall be of no effect and the City shall not be obligated under this contract beyond the date of termination. Venue and Applicable Law This Agreement is subject to all present and future valid laws, orders, rules and ordinances an&or regulations of the United States of America, the State of Texas and the Parties, and any other regulatory body having jurisdiction. This Agreement shall be construed and govemed according to the laws of the State of Texas. The sole venue for any action, controversy, dispute or claim arising under this Agreement shall be in a court of appropriate jurisdiction in Lubbock County, Texas exclusively. Rights and Remedies Reserved / Non -arbitration The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. Limitation on Indemnification by City of Lubbock Nothing in this agreement shall require the City of Lubbock to provide for the levy and collection of tares sufficient to pay the interest and create a sinking fund for any debt or other obligation arising as a result of indemnification. S 1eityattlCITYATiUGHNTr DeptlSirsiDynix 2016 -Attachment A doc Contract 13019 - AttachmentllBii INSURANCE (Copies or Endorsements will be Required) T'P OF INSURANCE COMBINED SINGLE LIMIT ERAL LIABILITY Ca General Liability ��3 �jj� General Aggregate l E3* Mad Madc Occurrence Products-Comp/Op AGO E3 W/Heavy Equipment ElU Personal fi Adv. Injury 0 To Include Products ofComillcte Operalan •ndjomcmcntsrl t I' j�.'/t Contractual Liability Fuc Damage (Any one Fuc) h "`jj) Med Exp (Any one Person) Each Accident Genrnal Aggregate ❑Any Auto Aggregate EXCESS LIABILITY ❑ Umbrella Form Each Occurrence Aggregate GARAGE LIABILITY ❑ Any Auto Auto Only - Each Accident ❑ Other than Auto Only Each Accident Aggregate ©BUILDER'S RISK ❑ Iw;oflheTotal contract Price [3INS1•ALLATIONFLOATER ❑ 100'.oftheTatalMotcrialCosts []POLLUTION 0 CARGO E31VORKERS COMPENSATION or 0 OCCUPATIONAL MEDICAL AND DISABILITY 0 EMPLOYERS' LIABILIT O Ok. COPIES OF E`DOSL•MENTS ARE REQUIRED of I bock named as additional Insured on Aulo/Gencml Liability on a primary and non-contributory buts i ude Products or niplcted Operations emlorsement an r of subrogati in av the city of Lubbock on all coverages O A.a nts D IST be reviewed by Risk Management for dctcrmmation of ruts ncc uiremcnis, irony, pnor to subnussion or Ihls fu o • Pureh g mcn1. t ❑ .„ In .w ;ui J 6,rpin,gid,, 0 dquipn,cnl !, tator — - Date v rnRlTDArr imcnDUATtnu ', D......:....1 r... t ..... _..... a.. .. _.,� (Type or Print all information with the erreption of ftnaturet and Signature Dater) City Council Agenda Dale: August 25, 2016 `` Check all that apply ❑ Revenue Generating ❑ Grant Funds (Suhmn lc;efdnyt', i 1 • harry ,,.a rtd rbc Ri ; �t rrar�r m l'r rdin,li r ,mu�n w nn t nqn r•:0 Risk Manager (/`/��6 / f Date. Director of Fiscal Policy � Date City Managcr Dirccl Rcport: __J,� Date. Orieinntine Itcnnrtmenl and'Indhiduai Responsible for F.nsarine Cnntrarl Ternisand Contract Cumnlhmcr• I F.%muIed conrracl+rill he arails hie nn Laterrche. Contact ITfur %ccns.J Department: Information Technology 'Name' David hlcGaughcy Phone Number 806.775-2372 Title DtrcctaroflnfannallonTcchnology, Information for Vendor/Contnelor/Agency or Other Entity City of Lubbock is contracting with: NamcofEnbty SirslCarporation Addicts SlrsiDymx Technology Centre -3300 North Ashton Boulevard -Suite 500 (This address will be used to mail Contract) City Lehi Slate* UT ZIP 34043 Contact Name Matthew Jadw•tsiak Phone No 800.288.8020 cit 5123 Notice to Proceed + ❑ Working ❑ Calendar Days Original Contract Amount: S 354,074 00 ❑Amendment No of AmauntS No of Amount S No of Amount.S New Contract Amount: S Fax No Email Matthcw.ladwlsiakustrsidynutcom 15n..rd Ca.rnel will be reined) Not to Exceed Amount: $ ❑ Change Order No of Amounl.S No of Amount S No • of Amount:S New Contract Amount, S Part 2 rcyuires One copy of the origin:d contract or amendnien0ch,ulee order Contract Checklist (Not applicable to Change Orders ordmendmerurr) I Is the individual or owner of this business an officer or employee of the City of Lubbock. Note, If Yes, City policy may not allow us to write a contract for this individuallvendor If unsure, check with Legal. 2 If federal or state funded, does the contract include all clauses required by federal or state statutes, and executive orders and their implementing regulations' 3 Mile purchasdtransaciion involves the purchase, lease, or acceptance as a gin orrcal estate, has an environmental silt assessment (ESA) been performed on Clic propenyl If No, contact Environmental Compliance at (806) 775-2989 PUR 12 (REV 2016) iszh Vp SirsiDynix Quote 85874 for: Lubbock Public Library Symphony SaaS Prepared by: Matthew Jadwisiak Executive Account Manager, Texas SirsiDynix Quote Date July 19, 2016 Quote Valid Until. October 17, 2016 Quote for Lubbock Public Library Quote Information The customer also has other assets not disclosed in this contract listed below and they are in addition to the maintenance on page 3 of this quote. Year 1 Year 2 Year 3 Year 4 Year 5 BookeMyne+ $4,182 $4,182 $4,303 $4,428 $4,556 el -earning $2,774 $2,774 $2,854 $2,937 $3,022 (self paced sub) (hands on sub) 3M Hardware S379 $379 $390 $401 $413 TOTAL $7,335 Page 2 of 11 $7,335 $7,547 $7,766 $7,991 Reference number 85874 fib SirsiDynix Quote for Lubbock Public Library Reference number 85874 Purchase Details All prices are in U.S. dollars ($) and are exclusive of taxes unless otherwise noted. SirsiDynix SaaS subscription 83,890 55,520 57,150 58,770 60,490 Services 14,910 - - - Enriched Content 3,990 3,990 4,110 4,220 4,350 Discount ( 35,290 ) - - - - Initial Term: Five (5) Years Initial Term Annual Price Increase Cap for SirsiDynix 0% in year 2 followed by 2.9% annual price increase cap Products/Services: until Term renewal Customer's usage is subject to limitations that can be found in the Terms and Conditions section at the end of the Quote The above price increase cap covers all Customer's active Products However, SirsiDynix reserves the right to adjust Initial Term pricing for Third Partylintegrated products/services if a Third Party vendor increases pricing for Third Party/integrated products/services by more than 10% in a given calendar year. Any applicable discount shall be applied on final payment. Any and all pre-printed terms and conditions on Customer's Purchase Ordegs) submitted to SirsiDynix are hereby rejected and shall be superseded by the current Master Agreement, unless such additional terms are statutorily required of the Customer. This Purchase Details section may not include pre-existing obligations for ongoing Products not listed in the Quote. Page 3 of 11 Ah W,V SirsiDynix Quote for Lubbock Public Library Reference number 85874 Detailed Pricing All prices are in U.S. dollars ($) and are exclusive of taxes unless otherwise noted SirsiDynix Symphony SaaS subscription SirsiDynix SaaS Cataloging Circulation Public Access Z39.50 server Authority control Backup circulation Inventory Reports Referencel-IBRARIAN SaaS Acquisitions SaaS 9xx SaaS Electronic Data Interchange (EDI) SaaS Serials SaaS Universal SIP2 NCIP Interface SaaS User Level - 100 Staff seats SaaS Debt Collection Agency Interface Total SirsiDynix Saas subscription Services Data Migration Installation Total Services Enriched Content Enriched Content Basic Package (per 1,000 circ) Total Enriched Content Discount Services Discount Contract and Loyalty discount Page 4 of11 Qty Total Price 1 42,430 1 Included 1 Included 1 Included 1 Included 1 Included 1 Included 1 Included 1 Included 1 Included 1 10,610 1 1,550 1 2,550 1 10,610 1 10,610 1 2,130 1 Included 1 3,400 83,890 1 3,610 1 11,300 14,910 1,400 3,990 3,990 (6,920) (28,370) (36,290) SirsiDynix Quote for Lubbock Public Library Reference number 85874 Detailed Pricing All prices are in U.S. dollars ($) and are exclusive of taxes unless otherwise noted. Page 5 of 11 Ah r,y SirsiDynix Quote for Lubbock Public Library Component Descriptions SirsiDynix SaaS subscription SirsiDynix Symphony SaaS Reference number 85874 SirsiDynix Symphony's Core Package includes Cataloging, Circulation, and Public Access modules. Additional functions include: utilization of an Oracle database, a Z39.50 server, Authority Control, Backup Circulation, and Reports. Authority Control: Links authority -controlled bibliographic headings with corresponding authority records through an ANSI -standard thesaurus. SirsiDynix Symphony complies with Bath Profile release 1.0 and most of release 2.0 Functional Area A. We comply with Release 1.0 of Functional Area B. SirsiDynix Symphony complies with Z39.50 Level Three (client and server), provides broadcast searching as a standard, and complies with Bath Profile Level One. ReferenceLIBRARIAN SirsiDynix Symphony Reference LIBRAR IAN: Enhances the Public Access Catalog with Kids' Library, Find -it -Fast, and Have -You -Read pre -defined searches. SaaS Acquisitions SirsiDynix Symphony Acquisitions provides efficient online tracking of materials from ordering through claiming, receiving, invoicing, and processing. Firm orders, gifts, subscriptions, approval, and standing orders are all easily accommodated and can be tracked separately or together. Saas 9xx 9XX Order Interface automatically loads bibliographic and order information from online acquisitions systems. SaaS Electronic Data Interchange (EDI) EDI X-12: SirsiDynix supports all transactions formats currently adopted by SISAC (Claims/Claim Response /Invoice /Dispatch Information/Functional Acknowledgment). SirsiDynix Symphony can electronically transmit and receive information in these formats using X12. EDI (Electronic Data Interchange) allows libraries to communicate with vendors to transfer ordering, invoicing, or subscription information between computers. SirsiDynix Symphony Serials manages the prediction, receipt, and routing of all serial subscriptions, generating and maintaining a separate MARC holdings record for each subscription. Managing orders and renewals are fully integrated with SirsiDynix Symphony Acquisitions. As the library receives individual issues, Serials automatically predicts the next expected issue based on the serials publication pattern. Combined issues, special issues, missing issues, or other irregularities are handled easily and efficiently. Basic Serials Binding functionality is included in this package. SaaS Universal SIP2 Page 6 of 11 SirsiDyiux' Quote for Lubbock Public Library Reference number 85874 Component Descriptions SirsiDynix Certified Solutions Providers offer SIP2-certified products to our customers. We certify that their products are compliant. This interface price encompasses all SirsiDynix Certified SIP2 vendors. NCIP Interface SirsiDynix Certified Solutions Providers offer NCIP-certified products to our customers. We certify that their products are compliant. This interface is priced per vendor. SaaS User Level - 100 Staff seats SaaS Debt Collection Agency Interface SirsiDynix Symphony Debt Collection Agency Interface includes debt collection reports that output information on overdue fines, bills, and referral fees. This interfaces directly with Unique Management. Services Data Migration: Oracle Migration Data Services SirsiDynix will export a library's Informix databases and import them into Oracle for any Unicorn or SirsiDynix Symphony client. All modules currently in use will be migrated to the new database application. Installation: Product Delivery Product Delivery - Enriched Content Element Installation Product Delivery - Enriched Content Code Installation Informix to Oracle Platform Migration (remote Migration includes installation of Oracle and migration of existing ILS software, configuration and data as exists on current system. Non embedded Oracle installations must meet SirsiDynix Oracle requirements Project Management Core Module Add On (Tier 2J Tier 2 Project Management Services for the implementation of new/additional modules either during an ILS Page 7 of 11 JAM SirsiDynix Quote for Lubbock Public Library Component Descriptions Reference number 85874 Migration or as a standalone add on order for a current customer, including: Acquisitions, Homebound, Inventory, Media Scheduling, Reserves, Serials, SIP/NCIP, Classified Accountability, Language Pack, Materials Booking, 9xx Interface, SmartPort, EDI, Reference Librarian, Languages, PocketCirc, Outreach, VIP, SchoolRooms Add'I Licenses, Web Reporter Add'I Licenses. Unicorn/Symphony Platform Migration Project Management Service for a Unicorn/Symphony Different OS and/Or Different Database Platform Migration. Project Management Service includes a project management resource who will do the following during the standard, active implementation period of the project: act as the primary SirsiDynix Contact; hold weekly progress calls (as needed) with the customer; coordinate SirsiDynix resources; and transition the customer to client care once the new platform has been implemented. Core Module Add On (Tier 3) Tier 3 Project Management Services for the implementation of new/additional modules either during an ILS Migration or as a standalone add on order for an existing installation: Debt Collect, StaffWeb, Library's Favorites, iBistro/iLink/eLibrary Enriched Content Enriched Content Basic Package (per 1.000 circ) Enrichment Elements include: Tables of Contents, Summaries, First Chapters/Excerpts, Cover Images, Author Notes, and reviews from Publisher's Weekly, Library Journal, School Library Journal, Booklist, Choice. Page 8 of 11 SirsiDynix Quote for Lubbock Public Library Terms and Conditions Other Terms Current Contract License Limits: Reference number 85874 SirsiDynix SaaS Services are based upon annual circulation and Staff Users You may use the SaaS Services for up to 1,530,000 annually circulated items and up to 100 Staff Users; an increase in either circulation or Staff Users requires additional licensing fees. NCIP is based upon certified vendors. You are authorized for 1 certified vendors- an increase in the number of certified vendors requires additional fees. Enriched Content is based upon annual circulation. You are licensed for up to 1,400,000 annually circulated items - an increase requires additional licenses. SirsiDynix may add and/or substitute equivalent products for any third party items in the event of product unavailability, Software requirements and/or model number changes. Customer's data must be provided to SirsiDynix in a format approved by SirsiDynix or additional data conversion/migration charges will apply. De -duping is the Customer's responsibility, unless stated otherwise in writing. "Go Live Date" means, with respect to the SirsiDynix Software license orders, the date on which the SirsiDynix Software is available for operational use for normal daily business, including searching the public access catalog and circulating materials. Maintenance must be ordered for all copies of the Software and for all elements of the Software which are used conjunctively by Customer. Customer's System shall remain within two (2) previously released software versions of the most recent version of the software at all times or an additional maintenance surcharge service charge will be added to the maintenance renewal. Customer shall not integrate products offered by third parties into Software, Subscriptions or Subscription Software without additional license from SirsiDynix SirsiDynix shall have the right to aggregate and retain non -personally identifiable data Payment Terms The term of any quoted products is for no less than five (5) years and shall automatically renekN for the length of the Initial Term. Subsequent years' Maintenance and Subscription fees are to be paid annually in advance. Following the first year of System operation, Maintenance and Subscription fees will be subject to annual increases. Any discounts that may be listed on this quote will be applied to the final invoice. Unless otherwise specifically stated in writing, products and/or services purchased at promotional prices or with promotional discounts do not qualify for such discounts or limitations on price increases for subsequent years. Third Party Products/Software license fees • 100% due upon installation of third party products/software on Customer's system SirsiDynix Software license fees • 100% due upon installation of client SirsiDynix Software on Customer's system Subscriptions fees • 100% of first year's Subscription(s) due at installation Services/Training • 50% due upon completion of first data test load, where a test load is part of the services Page 9 of 11 @ SirsiDynix Quote for Lubbock Public Library Terms and Conditions 100% of the remainder due upon completion of services/training Reference number 85874 SaaS Migration • 100% of total for Services and first year Subscription fees due on date of initial live use of SaaS Services. Payment/lnvoices while Migrating to the Cloud/SaaS - During the transition from a locally hosted system to a Cloud/SaaS services, annual Maintenance for the locally hosted system must be timely paid for the entire invoiced period to avoid interruption in receiving support and updates. Once your Cloud/SaaS services "Go Live," SirsiDynix will issue a pro rata credit for the unused portion of the previously paid Maintenance to be used against future billings. Any reference to license metrics and/or licensed amounts included in this quote shall be applicable only to the Products and/or services mentioned in this quote. This document and any software or professional services associated with this document are hereby fully incorporated into the current Agreement executed between SirsiDynix and Customer. If there is no current agreement between the parties, the terms and conditions of the current SirsiDynix Master Software License and Services Agreement shall be deemed the controlling Agreement between the parties, a copy of which shall be furnished upon Customer's request. Any and all pre-printed terms and conditions on Customer's Purchase Order(s) submitted to SirsiDynix are hereby rejected and shall be superseded by the current Agreement, unless such additional terms are statutorily required of the Customer. In the event of a conflict, the terms, payment terms, discounts, product lists and/or statement of work contained within this document shall take precedence over the current Agreement between the parties. In the event Customer desires or requires updated terms and conditions for the continuing business relationship with SirsiDynix, please contact your regional Sales Representative. Page 10 of 11 SirsiDynix Quote for Lubbock Public Library Reference number 85874 Terms and Conditions The parties agree to the terms of Attachment "A," and `B" attached hereto and incorporated by reference. CITY OF BOCK SirsiDynix DANIEL M. PE, MAYOR Authorized ATTEST: Reb cca Garza, City Secretary APPROVED AS TO CONTENT: I Mark Ye vood, A istant Cit Manager Billing Address: Lubbock Public Library 1306 Ninth Street Lubbock Texas 79401 United States Page 11 of 11 % SirsiDynix CERTIFICATE OF INTERESTED PARTIES FORM 1295 lull Complete Nos. 1 - 4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. CERTIFICATION OF FILING Certificate Number: 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. 2016-91614 SirsiDynix Lehi, UT United States Date Filed: 07/2812016 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. Lubbock Public Library Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. 00001484 Library Software Maintenance and Support 4 Name of Interested Party City, State, Count ry (place of business) Nature of interest (check applicable) Controlling I Intermediary 5 Check only if there is NO Interested Party. ❑ X 6 AFFIDAVIT I swear, or affirm, under penalty of perjury, that the above disclosure is true and correct. j JANICA ORMOND 7 +•4 3 = NOTARY PUBLIC - STATE OF UTAH �. My Comm. Exp. 04/22/2019 Commission # 682826 Sign 'ture of out razed agent of co Mracting business entity AFFIX NOTARY STAMP / SEAL ABOVE Sworn to and subscribed before me, by the saidAVI this the �i day of 20, to certify which, witness my hand and seal of office. 16v1 Signature oath Printed name of effieer administering oath Title of oak-ef -adinfnisteiing oath Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.277 CERTIFICATE OF INTERESTED PARTIES FORM 129rJ 1 of 1 Complete Nos. 1- 4 and 6 if there are interested parties. Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. OFFICE USE ONLY CERTIFICATION OF FILING Certificate Number: 2016-91614 Date Filed: 07/28/2016 Date Acknowledged: 07/29/2016 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. SirsiDynix Lehi, UT United States 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. Lubbock Public Library 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. 00001484 Library Software Maintenance and Support 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling I Intermediary 5 Check only if there is NO Interested Party. X 6 AFFIDAVIT I swear, or affirm, under penalty of perjury, that the above disclosure is true and correct. Signature of authorized agent of contracting business entity AFFIX NOTARY STAMP / SEAL ABOVE Sworn to and subscribed before me, by the said this the day of 20 , to certify which, witness my hand and seal of office. Signature of officer administering oath Printed name of officer administering oath Title of officer administering oath Forms provided by Texas Ethics Commission www. ethics. state.tx. us Version V1.0.277