of Santa Clara - Santa ClaraGlient
2635 Homestead Road
Santa Clara CA 95051
Address
cu0867lnnovative lnternal
Customer No.
J 1,2019Effective Date
I N NOVATIVE I NTERFAGES I NCORPO R-AI-E D
SUBSCRIPTION LICENSE AGREEMENT
This Subscription License Agreement ("License Agreement") is entered lnto by and between lnnovative lnterfaces lncorporated, a California clorporation'("lnnovative"), and the party identified as Client below ("Client"), as of the "Effective Date" also set forth below.
1. Definitions.
,'GTCs,, means the lnnovative lnterfaces lncorporated Subscription License Agreement General Terms and Conditions Attached hereto as Exhibit B'
,,Support Terms" means the lnnovative lnterfaces lncorporated Maintenance and Support Terms and Conditions, as may be amended from time to time by lnnovative, a copy of which can be found here (https://www.dropbox.com/s/rvel a70k5 a4O2Sxtinnovative%20interfaces%20inc.o/o20- i/o2Oonlineo/o20su pport%20term s%20% 2801 -24-17 o/o2 9.doc?dl =0). ,,Hos1ng Terms" means the lnnovative lnterfaces lncorporated Hosting Termg and Conditions, as may be amended from time to time by lnnovative, a copy of which can be found here (https://www.dropbox.com/s/1ns6x8e9j73cvry/lnnovatlve%20t1lgrfaces%20lnc.%20-- %zbontineyo20Hosting%2OTerms%20%2805-01 -17%29.doc?dl=0)'
2. General. lnnovative and Client agree that this License Agreement is a binding agreement between the parties and is governed by the GTCs, Sup-port Terms and, if the attached Pricing Exhibit indicates that Client has purchased nosling services, then the Hosiing Terms, all of which are made a part hereof. This License Agreement, in" ctcr, suppo-rt terms, Hosting Terms, iiapplicable, and all other exhibits, schedules and terms and conditions referenced by br in this License Agreement, t'e crcs, Support Terms or Hosting Terms together constitute _the ;'Agreement.'i client acknowledgei and agrees that it has had the opportunity to reliewthe Agreement, including wii-hout limitation, the GTCs, SuFport Terms and Hosting Terms, prior to the execution of this License Agreement. lnnovative recommends tnai ctibht print a copy of each iomponent of this Agreement for client's records. Unless otherwise specified, capltatized terms in this'[icense Agreement have the same meaning as those in the GTCs' This Agreement is governed by and interpreted in accordlnce with the internal substantive laws of the State of New yort<, ilitnout regaro to "ny
other laws that would require the application of the laws of another jurisdiction.
Application ot tnJu.trl. Convention on Contracts for the lnternational Sale of Goods is hereby excluded. ln consideration of lnnovative's grant to Client of a subscription license to the Software as described within Exhibit A, Client acknowledges, and thie parties agree, that contemporaneously with Client's first use of the Software identified in Exhibit A in'a production enviro-nment after the signing of this Agreement, all other existing software license agreements and associated purchase orders between tha parties for the software identified in Exhibit A Ceiioing-t""ment(s)',), (i) wilt be deemed to be immediatety terminated by the parties' mutual written agreement lnd (ii) Jucn soniire licenses under the prior Agreemenils; and associated purchase orders will be deemed Soft*jr" (as defined in the GTCs) licensed and sufported under the terms of this License Agreement' Page '1 of 14
EXHIBITS TO LICENSE AGREEMENT
ln witness whereof, the parties have executed this Agreement by their duly authorized representatives as of the Effective Date
APPROVED A$
SANTA CI.ARA
FORM:
OTtrICBATNORNBY'S
PRICING EXHIBITA
SUBSCRIPTION LICENSE AGREEMENT GENERAL TERMS AND CONDITIONSB Glient lnnovative
Gity of Santa Clara ln novative lnterfaces I ncorporated Name J. SANTANA Name: ih ttw,'-t NbNrflftN
Title: CITy MANAGER ritre: g ept\k VtLe Tn6tDEAF
Date
8-8- tq
Date:
8lr lzot?
Page2 of 14
1 Exhibit A
Pricing Exhibit
Fees. All Fees must be paid to lnnovative within 30 days following receipt of the invoice. lnnovative may prorate the Fees to align'the Client's products to a July 1 through June 30 billing cycle.
Term. Subject to the early termination provisions set forth in the GTCs, !1s{O19e.1nent will be effective for an'rliiarteir bid;a irl ieir running trom Juty 1,2019 through June 30, 2020 (the'lnitialTerm").,, This Aoreement wi1 be autbfiritiiitiv reneirved for adOiiional one (llyear terms (each, a "Renewal Term" and, ii"q'eth"r;ilh ine initiaifeim, tn'e "term"), unless either party gives the other'not less than ninety (90)days' i-rior *iitfii notrce oiits ihtent to termindt'e this Agreem6nt dffective as of the end of the then-current Term' innovative will have the right to increase rates hereunder by 5% over the previous year.
IAPPROVED SOFTWARE LICENSE QUOTE FOLLOWS THIS PAGEI
2
ta.
lnnovative lnterfaces lncorporated
1900 PowellSt.
Suite 400
Emeryville CA 94608
United States
BillTo
Santa Clara City LibrarY
2635 Homestead Road
Santa Clara CA 95051
United States
innovative
Renewal Quote
Page '1 of 4
Date
Quote #
Payment Terms
Overall Contract Term (Months)
contract Start Date
Contract End Date
Sales Rep
Site Code
Expires
6t24t2019
EST-tNCl 0126
Net 30
60 Tom McNamara
scpl
9t2212019
Ship To
Santa Clara City LibrarY
2635 Homestead Road
Santa Clara CA 95051
United States
Gurrency
US Dollar
SlP2 lnterface License - Term
Sierra Software SubscriPtion
License for additional Staff User
License. A separate staff user license
is reouired for each concurrent
connbction made from a staff client to
the Sierra ILS server, including via
alternative staff interfaces includi ng
Decision Center & Mobile Worklists.
License for additional SlP2 interface.
Enables library to integrate with 3rd
partv svstems using SlP2 Protocol,
inc[jding but not limited to self-check,
automated sorters, and more. Each
login requires a separate license.
Output accounting information to
another system
WebPAC Pro
File Transfer Software
Web Access Management
Circ Notices via E-Mail OPtion
OCLC lnteractive Via the Network
Reports
Acquisitions
Serials
Circulation
Cataloging
Advanced Keyword lndex Method ll
Sierra
Subscription
Staff User
Licenses
Output
accounting
information to
another system
WebPAC Pro
File Transfer
Software
Web Access
Management
Circ Notices via
E-MailOption
OCLC lnteractive
Via the Network
Reports
Acquisitions
Serials
Circulation
Cataloging
Advanced
Keyword lndex
Method ll
OPAC Export
License - Term
License - Term
License - Term
License - Term
License - Term
License - Term
License - Term
License - Term
License - Term
License - Term
License - Term
License - Term
License - Term
License - Term
90,779.14
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 90,779.1399...
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 18
60 1
1 I
1 I
License - Term OPAC Export
m innovative
{lae
I nnovative lnterfaces lncorporated
1900 Powell St.
Suite 400
Emeryville CA 94608
United States
Resequence
attached records
by location
Svnchronize
bibliographic
locations
Automatic
Authority Control
Processing
Sierra Additional
Review Files
Patron API (URL)
239.50 Client /
Client Broadcast /
Server
Offline Circulation
Unlimited Web
OPAC user
licenses
Unlimited Data
License
Sierra EDI /
EDIFACT
Ordering &
lnvoicing
SpellCheck
My Record Feeds
Sierra Classic
Collection AgencY
Subscription
With the optional Automatic Authority
Gontrol Processing product, Sierra can
automatically uPdate headings in
bibliooraohii records based on the
valid iorrh of the heading in an
authoritv record. For each SEE FROM
(MARC 4XX) heading in the authority
iecord, the system searches the
appropriate index for a matching entry
trbm d nintiographic record. lf it finds a
match, Sierra updates the
bibliooraphic headino based on the
valid irorh of the inddx heading (MARC
1XX) from the authoritY record.
Additional Review Files can be used
with Create Lists and related products
to suooort savinq lists of records for
reooitino or workflow purposes. Sold
in'sets o-f up to 40 review files for 625K
records, this product supports saving
of up to 20 additional search strategies
in Create Lists.
Patron API (URL)
239.50 Client / Client Broadcast /
Server
Date
Quote #
Resequence attached records bY
location
Synchronize bibliographic locations
Offline Circulation
Unlimited Web OPAC user licenses
Unlimited Data License
EDI/EDIFACT Ordering & lnvoicing
supports electronic ordering and
invoicing for both monograPhs and
serials via email or file transfer using
lnnovative supported EDI & EDIFACT
formats
SpellCheck
Sierra My Record Feeds
Classic Collection Agency I nterface
allows libraries to deliver a file of
information about patrons with
overdue items and/or money owed via
email to another system. The library
Renewal Quote
Language
s: English
6t2412019
EST-tNC1 0126
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
I
I
1 1
1 1
1 1
I
1 1
1 1
License - Term
License - Term
License - Term
License - Term
License - Term
License - Term
License - Term
License - Term
License - Term
License - Term
License - Term
License - Term
License - Term
111 innovative
ala
I n novative I nterfaces I ncorporated
1900 PowellSt.
Suite 400
Emeryville CA 94608
United States
must have a relationshiP with an
agency that can receive information in
lnnovative's format.
Online Patron Registration allows
patrons to register themselves as
iibrarv users over the lnternet. The
librarii offers the patron a form to enter
their bersonal daia, which is mapped
to fieids in the patron record as
determined by the library. The form is
also linked to a patron record template
of the library's choosing, to add
additional data to the newly created
patron record. Different forms may be
i-rsed for different patron types. This
could include home library location,
expiration date, ptype, Patron
m6ssages, manual patron blocks, etc.
Sierra Circa Wireless lnventory (RFID)
Renewal Quote
Date
Quote #
WebOPA
c
Ecommer
ce
Option:
Payflow
Pro
6t2412019
EST-1NC10126
Sierra Online
Patron
Registration
Circa Wireless
lnventory (RFID)
WebOPAC
Ecommerce
Sierra Quick Click
Ordering
Resource Sharing
- Returnables
(lNN-Reach)
Authority Control
Option
Classic Fines
Payment Web
Service API
License - Term
License - Term
License - Term
License - Term
License - Term
License - Term
Sierra WebOPAC Ecommerce
Quick Click streamlines the process of
creating bibliographic and order
records for orders placed with a
vendor. This requires that you have an
account and user profile set uP with
the vendor and that you follow their
instructions for using their shopping
cart feature. For use with select
vendors who suPport lnnovative
format for data interchange.
lnnovative Resource Sharing expands
the librarv's available collection for a
fraction of the cost of traditional
interlibrary loan. lntegrated with Sierra,
Millennium, & Polaris. Unmediated
reouest model saves staff time and
seives patrons faster. Key capabilities
includei sharing of physical materials
or digital resouices; union catalog with
real-time availability; same patron
exoerience and staff workflow as local
cirbulation; pickup anywhere; pass to
ILL; reports for shared Print
management.
Authority Control OPtion
Classic Fines PaymentAPl allows
third-party software to pay (and waive)
patron financial obligations by means
bf WeO Services connection to the
Sierra system. Applications using
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 I
1 1
License - Term 0.00
-)t)
ffi innovative
Renewal Quote
Date
Quote #
6t2412019
EST-tNC10126
Total Fees US$90,779.14
I n novative I nterfaces I ncorporated
1900 PowellSt.
Suite 400
Emeryville CA 94608
United States
Fines PavmentWeb Services request
data throirgh XML over HTTP or
SOAP and-the service returns data as
an XML-formatted stream of text.
Requires SSL.
1 July 2019 - 30 June 2020
Item Item Catagory Aty DeacriPtion Options Unit Price Amount ln novative lnterfaces lncorporated
Subscription License Agreement
General Terms and Gonditions
The parties agree that their contractual relationship with respect to the Software will be governed by the terms and conditions of ltl tf is Subscription License Agreement General Terms and Conditions ("GTCs"), (2)the applicable lnnovative lnterfaces lncorporated Subscription License Agreement(s) (each, a "License Agreement"), (i) tne lnnovative lnterfaces lncorporated Maintenance and Support Terms ("Support Terms"), (4) the lnnovative in{erfaces lncorporated Hosting Terms ("Hosting Terms"), if applicable, and (5) all other applicable exhibits, schedules and terms and condltions referenced by or in the GTCs, License Agreement(s), Support Terms and Hosting Terms. Each License Agreement, together with the terms and conditions of this GTC, Support Terms and Hostin! Terms and all applicable exhibits or schedules incorporated by reference or referenced therein will constitute and be construed as a separate agreement. Unless otherwise specified, capitalized terms in these GTCs have the same meaning as those in the License Agreement.
1. Software License.
a. Subject to the terms and conditions of this Agreement, including without limitation Client's payment of all of the Fees (defined below) due hereunder, lnnovative hereby grants to Client a limited, nonexclusive, non-sub- licensable, nontransferable license to use the components of its software applications, modules, and other products that are listed in the Pricing Exhibit to the License Agreement (collectively, the "Software"). The license granted in the preceding sentence will be for the duration of the term of this Agreement and will automatically expire upon the termination or expiration of this Agreement or as otherwise specified in this Agreement. b. Client and, where applicable, its Authorized Users (defined below) may use the Software (including any Client Configurations) (i) only for the management of the library and for servicing its patrons (including permitting Authorized lsers to search iibrary catalogues), and not on an outsourced basis, as a service bureau, for resale, or similarly on behalf of or for the direct or indirect benefit of third parties, and (ii) only in accordance with the other terms of fhis Agreement. Client will be responsible for its Authorized Users' compliance with the terms hereof.
Without limiting the foregoing, Client agrees that it and its Authorized Users will: (i) comply with all applicable laws regarding the [ransmission of data, including, without limitation, any applicable export control and data protection laws; and (ii) not use the Software for illegal purposes. c. Subject to Section 11 (Client Configurations), other than lnnovative, no one is permitted to copy, modify, reverse engineer, decompile, or disassemble the Software, create derivative works thereof, or separate the Software inlo its component files. All rights to the Software that are granted to Client in this Agreement are limited to the object code versions of the Software and in no event will Client be deemed to have any right, title or interest in the source code of the Software.
d. The Software may be used by the base number of Client's worldwide employees, third-party auditors, agents and contractors ("Authorized Users") set forth in the Pricing Exhibit to the License Agreement for such S-oftware and such additional Authorized Users as may be hereafter identified to lnnovative by Client for which Client pays the additional Fees referred to in Section 4(a) of this Agreement. Each Authorized User license is allocable-to a single fulltime user of the Software and may be transferred to another user only on a full-time basis. Authorized User license(s) may not be shared on a part time or concurrent user basis. e. The license granted to Client pursuant to this Agreement will include, at no additional cost, a license to use all new scheduled major releases, service pack releases, and hot fixes of the Software offered generally by lnnovative to its clients duiing the term of this Agreement (collectively, "New Releases"). "New Releases" do not include new or additional modules, applications or other software now or hereafter offered by lnnovative, each of which require a separate license and payment of additional license fees. The term "Software" will be deemed to include New Releases. Additional fees at lnnovative's then-prevailing professional service rates will apply for implementation of New Releases.
f. lnnovative offers support for the Software in accordance with the Support Terms, the terms of which are incorporated by reference herein.
g The license granted hereunder grants Client the right to use a single production instance (copy) of the Software and up to tvvo (2) additional instances (copies) of the Software for non-production use at no additional charge. All copies of the Software are subject to the terms of this Agreement. Non-production use includes training, development, testing, quality
".rrr"n"",
staging or preproduction provided that the copies of the software are not used'in a pr6duction environmeni or ai Joact<up to production. Except to the extent expressly set forth in a License Atreement, this license grant does not provide client with any rights to hosting services.
2. Acceptance. Following the execution of the Agreement by the parties, Innovative will deliver the software, in its precontigureo, oirot-tn" box format, to client (i) via the lnternet, if client has purchased hosting services from lnnovatiuJfrr.u"nt to the Hosting Terms or (ii) by making it available to client to download via an FTp site, if Client nas noifurchased hosting se'rvices from'lnnovative pursuant to the Hosting Terms. Client will be deemed to have accepted the Software upon initial delivery'
3. OwnershiP.
a. All lntellectual property Rights (defined below) in the Software and also including, without limitation, all irprou",.,.'"nts, enhancements, molificaiions, client-specific upgrades, or updates to the software, developed by either party, solely oilointty (collectively, "lnnovative Producti"), will remain the exclusive, sole and absolute prop"rtv oi'tnnouitiue or the irriro parties from whom lnnovative has obtained the right to use the lnnovative products. lntellectual property created by lnnovative pursuant to this Agreement, or ally other party at the request or direction of lnnovative, will be owned by lnnovative. "lntellectual Property Rights" means any and all intellectual property rfuntr'existing from time to time under any law or regulation, including without limitation, patent law,'copyright liw, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competiiionlaw, publicity rights law, or'piiuacy rights law, and any and all other proprietary-rights, and any and all applications, renewals,'exlensions and restorations of any of the foregoing, ngw or hereafter in force and effect worldwide. Client rrereoy assigns to lnnovative all right, title and interest in any feedback and suggestions it provides to lnnovativ" r"j"t.iing tn]e sottware or other products commercialized by lnnovative now or in the iuture. This Agreement -does not convey to the client any interest in or to the lnnovative Products or any associated lntelectual property Rights, bui only a limited rignt to use the Software to the extent set forth in this Agreement, which right is ierminable in accordance with the terms of this Agreement and is otherwise subject to the limitations, restrictions, and requirements contained herein. lf Client configures or otherwise modifies the software using an Apl licensed hereunder, client will also have a license to use such configurations or modifications as part of the Software on the terms set forth in Section 1. Rights not expressly granted to the Client are hereby expressly reserved by lnnovative.
b. For purpose of this Agreement, as between lnnovative and Client, any lntellectual Property Rights in the lnnovative products to the exient owned by any third party will be and remain the exclusive property of such third party. The Software may include third-party software and products, which are described in the documentation anoior specification" r"d" available to client by lnnovative, qnd any third-party passthrough terms relating to such thiril-party software and products are identified therein (or by other mode of disclosure). c. Except as expressly stated herein, Client will exclusively have and retain all right, title and.interest, including all associated lnteliectual property Rights, in.1nd to data ihat client enters into the software or disclosed nv Cri",it to lnnovative in its performance hereinder ("client Data"), and, as between client and lnnovative, such Client Data will remain the sole property of Client. Client hereby grants to lnnovative a license to use Client Data (i) to pro""rs the client Data pursuantio client's business requiiements, (ii) for maintenance and support of the Software, (iii) to collect and use aggregate, non-identifying and anonymized data, and (iv) for research and development purposes. client acknowledges and agree-s-that it will have no rights in any products or services created or sold by lnnovative or its affiliateJ that use iny ot the Client Data in the manner set forth in (iii) or (iv) of the preceding sentence. To the extent that applicable law requires any permissions or authorizations to have been obtained prior to submission of Client Data to Innovative (including without limitation from individuals to whom the data pertains), client warrants and covenants that it (and its Authorized U.sers, as applicable) will have first obtained the same permissions or authorizations prior to transmitting such data to lnnovative. Client will defend, indemnify and hold harmless lnnovative in the event of any third-party claim arising from a breach of the aforesaid warrantY and covenant.
4. Fees; ExPenses; PaYmentTerms.
a. ln consideration of receiving a limited license to use the software, client will pay the fees set forth in the pricing Exhibit to the License Agreement (the "Fees') gl tl" terms set forth therein. lnitial invoicing under this Agreement will occur when the Software is made auailable to Client; subsequent renewal invoices will be sent to Client prior to the date such payment is due. lnvoices for any Renewal Terms may be provided to Client up to 90 Cays prior to the effective date of such Renewal Term. Client will notify lnnovative in writing if Client hereafter requires additional Authorized Users or additional software modules, and will pay the fees for such additional Authorized Users or additional Software modules in accordance with the terms set forth on the invoice for such fees. The Software may, from time to time, electronically transmit to lnnovative reports verifying the type and number of Authorizeo users, and lnnovative may utilize license keys or other reasonable controls to enforce Authorized User license limitations. Client will cooperate with lnnovative in all such efforts. b. AII Fees are exclusive of all taxes and similar fees now in force or enacted in the future or imposed on the delivery and license of the Software, all of which Client will be responsible for and will pay in full, other than taxes based on lnnovative's net income. Client will provide lnnovative its state issued Direct Pay Exemption Certificate ior equivalent certificate), if applicable, upon execution of this Agreement. ln the event an applicable taxing auttroiity, as a result of in aud'it or otherwise, assesses additional taxes for goods or services sold under this Agreement at any time, Client and not lnnovative will be solely responsible for payment of such additional taxes and all costs associated with such assessment, including without limitation, interest, penalties and attorney's fees.
Additionally, should Client be required under any applicible law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to lnnovative hereunder, then the sum due to lnnovative will be increased by the amount necessary toyield to Innovative an amount equal to the sum lnnovative would have received had no withholdings or deductions been made.
c. Where this Agreement establishes a due date for a payment and/or a recurring method _for payment, payment will be due "and payable on such due date and/or according to the method specified. other_fees or "*6"nr.r
charged pursuant to tris Agreement will be paid at the amounts set forth in the invoice within 30 (thirty) days of the datle of the invoice. All amounts stated heiein and all Fees determined hereunder are in U'S. Dollars, unless otherwise required by applicable law.
d. Any invoices not paid when due will accrue interest at the rate of 1o/o per month or the maximum rate permitted by law, whichever is greater.
5. Limited WarrantY.
a. lnnovative warrants, solely for the benefit of Client, that:
i. lt has the corporate power and authority to enter into this Agreement and to grant Client the license to the Software hereunder; and
ii. The Software will conform in all material respects to the applicable technical documentation for the Software provided to Client by lnnovative and expressly identified by lnnovative as the specifications for the Software (collectively, the "Specifications").
b. EXCEPT FOR (i) THE WARRANTTES EXPRESSLY STATED ABOVE lN THIS SECTION AND (ii) ANY wARRANTv, REpRESEfurnrroru oR coNDtloN To rHE EXTENT THE SAME cANNor BE EXCLUDED oR
LIMITED UNDER APPLICABLE LAW, INNOVATIVE AND ITS LICENSORS, AFFILIATES, AGENTS'
SUBCONTRACTORS AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES, AND
EXPRESSLY DISCLAIM AND EXCLUDE ANY AND ALL WARRANTIES, REPRESENTATIONS AND
CONDITIONS, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY OR UNDER STATUTE, COMMON
LAW, CUSTOM, USAGE, COURSE OF PERFORMANCE OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, INNOVATIVE AND ITS
LICENSORS, AFFILIATES, AGENTS, SUBCONTRACTORS AND SUPPLIERS DO NOT WARRANT, AND
EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY, THAT THE SOFTWARE OR OTHER
DELIVERABLES PROVIDED BY OR ON BEHALF OF INNOVATIVE WILL SATISFY CLIENT'S
REQUIREMENTS OR THAT THEIR USE OR OPERATION WILL BE ERROR OR DEFECT-FREE OR
UNINTERRUPTED OR AVAILABLE ON THE INTERNET, OR THAT ALL PRODUCT DEFECTS WILL BE CORRECTED. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 5(A), THE SOFTWARE, INCLUDING
ALL CONTENT, IS PROVIDED ''AS IS,'' WITH ALL FAULTS AND WITHOUT ANY GUARANTEES REGARDING
QUALITY, PERFORMANCE, SUITABILITY, TIMELINESS, SECURITY, DURABILITY, INTEGRABILITY OR
ACCURACY, AND CLIENT ACCEPTS THE ENTIRE RISK OF AND RESPONSIBILITY FOR SELECTION, USE'
QUALITY, PERFORMANCE, SUITABILITY AND RESULTS OF USE THEREOF, INCLUDING ALL CONTENT GENERATED THROUGH USE THEREOF.
c. As the exclusive remedy of Client for a breach of the limited warranties set forth in Section 5, for any error or other defect for which Innovative is solely responsible, lnnovative will, at its option, either (i) correct or repair the Software, or (ii) accept termination of this Agreement and refund the unused balance of any prepaid Fees for the Software, prorated for the period commencing on the date the error or defect was reported by Client to lnnovative and continuing throughout the balance of the period to which such Fees apply. None of the above warranties or remedies in this Section 5 will apply with respect to any Software that has been damaged or modified by any party other than lnnovative, or used in a manner for which the Software is not designed or intended.
6. LIMITATIONS ON LIABILITY. IN NO EVENT WILL INNOVATIVE BE LIABLE FOR LOST PROFITS OR
OTHER INCIDENTAL OR CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES
UNDER ANY CIRCUMSTANCES WHATSOEVER, EVEN IF INNOVATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THEY WERE OTHERWISE FORESEEABLE. INNOVATIVE'S
TOTAL LIABILITY FOR TORT, CONTRACT AND OTHER DAMAGES WILL NOT EXCEED THE TOTAL
AMOUNT OF ALL FEES PAID TO INNOVATIVE BY CLIENT UNDER THIS AGREEMENT IN THE TWELVE-
MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH A CLAIM IS FIRST ASSERTED AGAINST INNOVATIVE. INNOVATIVE WILL NOT BE LIABLE FOR ANY CLAIM OR DEMAND AGAINST CLIENT BY ANY THIRD PARTY EXCEPT FOR THE INDEMNIFICATION SET FORTH IN SECTION 7. THESE
LIMITATIONS OF LIABILITY WILL APPLY TO ALL CLAIMS AGAINST INNOVATIVE IN THE AGGREGATE (NOT pER tNCTDENT) AND TOGETHER W|TH THE DTSCLAIMER OF WARRANTIES ABOVE WILL SURVIVE
FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT,
7. lndemnification.
a. lf a third party files a legal action in a court of competent jurisdiction against Client claiming the Software, as delivered to itieni by lnnovative, directly infringes such third party's U.S. copyright or U.S. patent, lnnovative will defend Client against such legal action, provided that Client promptly notifies lnnovative in writing of the legal action and fully cooperates with lnnovative in the defense of such legal action. lnnovative will also indemnify Client from all damages and out-of-pocket costs (including reasonable attorneys' fees) finally awarded by a court of competent jurisdiction in connection with any such legal action, or agreed to by Innovative in a settlement. lnnovative will control all aspects of the defense and conduct the defense and any settlement negotiations in any such third-party legal action. This indemnification is limited to the Software in the form delivered to Client and does not covei claims arising from (x) modifications thereto not made by lnnovative, or, even if by lnnovative, at the request of Client; (y) use of the Software in combination with other software or items not provided by Innovative, or (z) third party modifications (including addition of source code) to the Software. b. As the exclusive remedy of Client under the limited indemnity set forth in Section 7.a, if the use of the Software by Client is enjoined, lnnovative will, at its sole option: (i) obtain for Client the right to continue to use the Software, (ii) modify the Software to remove the cause of the legal action, (iii) replace the Software at no additional charge to Client with a substantially similar, non-infringing product, which will then be subject to the provisions of this Agreement, or (iv) terminate this Agreement and refund to Client that portion of the Fees allocable to the infringing component of the Software, prorated for the period Client's use of the Software is enjoined. None of the above warranties or remedies will apply with respect to any element of the Software that hal been modi1ed by any party other than lnnovative, or used in a manner for which the Software is not designed or intended. This Sectioh states Innovative's entire liability and Client's exclusive remedies for infringement of intellectual property rights of any kind.
B. Gonfidentiality.
a. Client acknowledges that all documentation, audit reports, technical information, software, Specifications and other information pertaining to the Software, and/or lnnovative's business interests or activities, product pricing, financial information, methods of operation or customers that are disclosed by any party to Client in the cours6 of performing this Agreement are the confidential and proprietary information of lnnovative. lnnovative acknowledges that Ctient Oata and other proprietary Client materials are the confidential information of Client.
The information and materials described in the preceding sentences is referred to herein as "Confidential Information." Notwithstanding the foregoing, the term "Confidential lnformation" does not include information pertaining to a party if (i) such information is generally known to the public through no improper action or inaction by the oi-her party,'(ii) was, through no improper action or inaction by the other party, in the possession of the oiner party piior t-o the ffective D-ate, or (iii) rightly disclosed to the other party by a third party if such disclosure does not violate the terms of any confidentiality agreement or other restriction by which such third party may be bound.
b. All Confidential lnformation will be held in confidence and may not be copied, used or disclosed other than as set forth in this Agreement. Each party must take all reasonable efforts to protect the confidentiality of and prevent the unauthoiized use of any such Confidential lnformation by any third party within such party's control. Each party may disclose Confidential lnformation (i) to the receiving party's employees and contractors required to have access to such Confidential lnformation for the purposes of performing this Agreement o_r using the Software, provided each party hereto notifies its employees and contractors accessing such Confidential lnformation of ine confidentialiiy oOtigations in this Section B; (ii) if such disclosure is in response to a valid order of any court or other governmental body ("Order"), in which event, the disclosing party must use reasonable efforts to provide the olher party with prior notice of such Order, to the extent legally permitted to do so; or (iii) if such disclbsure is required under applicable law, in which event, the disclosing party must use reasonable efforts to provide the other party with prior notice of such disclosure, to the extent legally permitted to do so. Under no circumstances will Confidential lnformation received from lnnovative be disclosed to any competitor of lnnovative without lnnovative's advance written permission.
c. Recognizing any improper use or disclosure of any Confidential lnformation by either party may cause the party whose -Con1lential information is improperly used or disclosed irreparable damage for which other r".LOi"r may be inadequate, a party whose Confidential lnformation is improperly used or disclosed will have the right to petitibn for injunctive oi other equitable relief from a court of competent jurisdiction as appropriate to pievent any unauthorized use or disclosure of such Confidential lnformation. d. lf the parties have previously executed a nondisclosure agreement ("NDA"), any Confidential lnformation exchanged pursuant to such NDA will remain confidential, and will as of the date of the execution of this Agreemlnt be deemed Confidential lnformation within the meaning of this Agreement and also be governed by the terms hereof.
9. Term;Termination.
a. The term of the Agreement is set forth in the License Agreement. b. lf either party hereto fails to perform or comply with any material term or condition of this Agreement, specifically including-Client's failure to pay any Fees (such party being the "Breaching Party"), and such failure continues- unremedied for 30 (thirty) days after receipt of written notice, the other party may terminate this Agreement. Notwithstanding the foiegoing, if the Breaching Party has in good faith commenced to remedy such failure and such remedy cannot reasonably be completed within such 30-day period, then the Breaching Party will have an additional 30 (ihirty) days to complete such remedy, after which period the other party may terminate this Agreement if such failure continues unremedied.
c. Client may terminate this Agreement at any time during the lnitial Term effective as of the date of the next annual anniversaiy of the Effective Date if Client's budget (funding) is eliminated and Client provides written evidence to lnnovative of the elimination of Client's budget (funding), such evidence to be in the form and substance reasonably requested by lnnovative.
d. Except for a termination by Client pursuant to Section 9.b., and unless as otherwise set forth in this Agreement, upon any termination of this Agreement, all prepaid Fees will be nonrefundable and Client will be reiponsible for all Fees and expenses for the Software provided prior to and as of the date of termination. Any termination of this Agreement will not waive or otherwise adversely affect any other rights or remedies the terminating party may have under the terms of this Agreement. Upon termination of this Agreement, the rights and dutieJof the parties will terminate, other than the obligation of the Client to pay Fees and costs in accordance herewith, and the obligations of the parties pursuant to Section 1.c. (Software License), Section 3 (Ownership), Section 4 (Fees; Exp6nses; payment Terms), Section 6 (Limitations on Liability), Section 7 (lndemnification), Section B (bonfidentiality), Sections 9.d. and 9.e. (Termination), Section 11 (Client Configurations)and Section 13 (General). Within aO ltfrirtyl days of receipt of a written request following a termination of this Agreement, and to ifre extent permitted oy apiitica6te law, each party must return or destroy all Confidential lnformation of the other party, as requested in writing by the other party. Notwithstanding the foregoing, a party will not be obligated to b"riroy data containing ConiiOential lnformation of the other party when it would be commercially impracticable for the receiving part/to do so (for example, when Confidential lnformation is contained in e-mail stored on backup tapes 6r'othLr archival media), but for so long as such receiving party is in possession of such Confid'ential lnformation of the other party, the terms of Section B (Confidentiality) hereof will continue to restrict the receiving party's use or disclosure of such Confidential lnformation. Neither party will be liable to the other for any termination or expiration of this Agreement in accordance with its terms. e. Following termination of this Agreement, lnnovative has no duty whatsoever to deliver to Client any parts of its programming, data model, or any other information regarding which lnnovative claims a proprietary or lntellectual property Right. To the extent that lnnovative is requested to perform any services for Client in connection with the terlrination of this Agreement (including without limitation providing Client with a copy of Client Data in a commercially-standard format to be agreed upon by the Parties), such service will be performed pursuant to a written statement of work under a separate professional services agreement and paid for by Client, applying lnnovative's then-current rates for daily/hourly work, as the case may be.
10. Third party Software. The Software may contain third-party and/or "open source" code provided under third-party license igreements. The terms and conditions of such third-party license agreements will apply to such source code in lieu of these terms, where applicable, and Client is responsible for compliance therewith. A listing of certain third-party and/or open source code contained in the Software, the respective license terms applicable to such code, and certain related notices are included in the documentation and/or Specifications made available to Client by lnnovative. Except as required for the authorized use of the Software as contemplated herein, Client may not uie any name or trademark of any supplier of third party or open source code without such party's prior written authorization.
11. Glient Configurations. Client will be permitted to use one or more application programming interfaces (Apls) made availante ny lnnovative to configure the Software hereunder in accordance with the Specifications isuch'configurations or oiher modifications, "Client Configurations"). Client will not use any other API to modify or configure ttie Software. No API may be used to create any Client Configuration that, in whole or in part, mimics any inaterial functionality of any ioftware or service developed or marketed by lnnovative or that would rejsonably be deemed cbmpetitive to any software or service developed or marketed by lnnovative if the Client Configurafion were to be released to the public market. lnnovative disclaims all representations and warranties, expreis or implied, regarding Client Configurations and assumes no liability whatsoever with respect to Client Configurations. Ciieniagrees to indemnify and hold harmless lnnovative from all damages and out-of-pocket costslincluding reasonab-le attorney fees) for any third-party action based on a claim that any Client Configuration infringes a cop-yright or a patent, oi constitutes an unlawful disclosure, use or misappropriation of another party's trade secrets.
1,2. Back-Up Activities. Except to the extent that Client purchases lnnovative's hosting service or back-up services, Client has the sole responsibility for the maintenance and protection of all data input into the Software, including, without limitation, the making, itoring and security of back-up and archive copies of such data and the Softwar6 (collectively "Back-Up Activities"), and Ctient acknowledges lnnovative will not perform any Back-Up Activities for or on behalf of Client.
13. General.
a. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in tfre event of any breach hereunder will not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. b. lndependent Contractor. Client acknowledges that lnnovative is at all times an independent contractor and that Client's retationsf'rp-wnh Innovative is not one of principal and agent nor employer and employee. No lnnovative personnel will be entitled to participate in any compensation or benefits plan of Client' c. Force Majeure. Neither party will be liable or responsible for any delay or failure in performance if such delay or taiture G czused in whole or in part by fire, flood, explosion, power outage, war, strike, .embargo, government regulation, civil or military authority, hurricanes, severe wind, rain, other acts of God, acts or omissions of carriers, third-party local exchange and long distance carriers, utilities, lnternet service providers, transmitters, vandals, or hackers, or any other similar causes that may be beyond its control (a "Force Majeure Event").
d. Notice. Any notice or communication required to be given by either party must be in writing and made by tranO Oetivery, expiess delivery service, overnight courier, electronic mail, or fax, to the party receiving such communication. Unless otherwise instructed in writing, such notice will be sent to the parties at the addresses set forth on the first page of the License Agreement. All communications pursuant to this Section will be deemed delivered as follows: (a) upon receipt, if delivered personally or by a recognized express delivery or courier service, or (b) when electronically confirmed, if delivered by facsimile. e. Invaliditv. Any provision of this Agreement which is invalid, illegal, or unenforceable in any jurisdiction will, as to tnaqurisOiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal, or unenforceable in any other jurisdiction. f. Counterparts. This Agreement may be executed by the parties in separate counterparts by original, .pdf 1or simitar torrnat tor scannedtopies of documents) or facsimile signature, each of which when so executed and delivered will be deemed an original, but all such counterparts will together constitute but one and the same instrument.
g Publicitv. Except as provided in this Section, neither party will make any press release, public statement or otfrer Oisclosure regarding the terms of this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld.
h. Assiqnment. Neither party has the power to assign, license, or sub-license any of its rights or obligations hereunder vvithout the prior writ[en consent of the other party, which will not be unreasonably withheld. Any assignment, license, or sub-license attempted without such consent will be void. Notwithstanding the foregoing, a partf may assign this Agreement without the other party's consent (i) as part of a corporate reorganization, coniolidaiion, merger, orlale of substantially all of its assets or capital stock; or (ii) to an Affiliate of such party provided that any such assignment will not release the assigning party from its obligations under this Agreement. i. Waiver of Jury Trial: Governinq Lanquage. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRlALwnruyDlSPUTEoRLEGALPRocEEDlNGARlSlNGoUToFTHlS
AGREEMENT OR THE SUBJECT MATTER HEREOF. This Agreement and all proceedings hereunder will be conducted in the English language; any translation of this Agreement into another language will be for convenience only but witt not moOity the meaning hereof. Only a written instrument duly executed by both parties may modify this Agreement.
j. Entire Aqreement. This Agreement contains the entire understanding of the parties, and supersedes all prior agreernents anO gnderstandings relating to the subject matter hereof, provided that nothing herein will diminish or affect any separate services agreement or statement(s) of work issued thereunder. The parties represent that they aie sophisticated commercial entities, have had the opportunity to consult with their own counsel, and have included in this Agreement all terms material to the parties' rights and obligations with respect to the subject matter hereof and intend this document to be the final expression of their contractual intent. The parties furiher represent and acknowledge that communications exchanged between the parties during contract negotiation (including, without limitation, requests for proposal ("RFPs") and lnnovative's responses to such RF-ps; quesiionnairei and responses to same, quotes) do not constitute a part of this Agreement. Purchase orders, work orders or other such documents submitted by Client will be for Client's internal administrative purposes only and the terms and conditions contained in any such purchase order, work order or other such document wiil have no force or effect and will not amend or modify this Agreement. ln the event of any inconsistencies or conflicts among the GTCs, a License Agreement or any other exhibits or schedules referenced by these GTCs, the following order of priority will control: 1. License Agreement, 2. GTCs and 3. any other terms, agreements, exhibits or schedules included in, or referenced by the Agreement.
Innovative lnterfaces I n corporated
Maintenance and SuPPort
Terms and Gonditions
These Maintenance and Support Terms and Conditions ("Support Terms") apply to the License Agreement. Unless otherwise specified, capitalized terms in these Support Terms have the same meaning as those in the GTCs. The terms set forth herein supplement, but do not replace or modify, the GTCs'
1. Maintenance and Support. lnnovative will offer maintenance and support on the terms set forth herein (,,Maintenance and Support") for the latest generally available version of the Software and for certain earlier versions in accordance with lnnovative's support policy. Standard Maintenance and Support is included with the price for the annual license set forth in the License Agreement.
2. Error Response. Error descriptions (each an "Error"), the Error severity levels and corresponding targeted response time per level are each described in the table below. The Targeted Response Times in the table below identify the response times that lnnovative will target for the corresponding Error, however, such Targeted Response Times are not guaranteed.
Severity Description Target
Response Time
One - Site Down A major component of the software is in a non-respons and severely affects library productivity or operations. ive state
A high
m pact problem that affects the entire ibrary system widespread avat ab m is down
t hour
Two - Critical Any component fail ure or OSS of fu ncti ona ity not covered i n Severity 1 that IS h tndering operations such cl5 but not mited to:
excessively slow respon
messages; backup prob
module or the data
SE time fu nctionality deg radation error
ems or SSues affecti ng the uSE of the
2 business
hours
Three - High Lesser issues, questions, or items that minimally impact the work flow or require a work around
2 business days;
excludes
holidays and
weekends
Four - Routine lssues, questions, or items that don't impact the work flow. lssues that can easily be scheduled such as an upgrade or patch 4 business days;
excludes
holidays and
weekends
3. Error Reporting and Diagnosis.
a. Client must designate a representative as the contact that will report Errors to lnnovative and be lnnovative's primary contact for the provision of Maintenance and Support pursuant to the terms of this Agreement (such representative is referred to herein as the "Client Contact"). When a Client Contact reports an Error, lnnovative will use commercially reasonable efforts to diagnose the root cause of the Error ("Diagnosis")' Upon completing the Diagnosis, each Error will be classified as either a "Warranty Error" or a "Non-Warranty Error', pursuant to Section 3.b. below. lnnovative will use commercially reasonable efforts to diagnose and repair both Warranty and Non-Warranty Errors as described below. b. "Warranty Errors" are all Errors that do not qualify as Non-Warranty Errors. "Non-Warranty Errors" are Errors resulting from any of the following causes: (i) misuse, improper use, alteration or damage of the Software; (ii) operator error; (iii) incorrect data entry by Client; (iv) third-party software not part of the Software; (v) errors and/or limitations attributable to Client environment; (vi) Client's failure to incorporate any New Release previously provided to it by lnnovative which corrects such Error; (vii) modification of the Software performed by Client; and (viii) technical consulting services provided by lnnovative at Client's request (e.9., change orders, integration development, or configuration design and implementation), unless Client notifies lnnovative of such technical consulting services problem within the applicable warranty period set forth in the governing statement of work, change order or agreement. Client acknowledges that the software is intended for use only with the software and hardware described in the Specifications provided by lnnovative from time to time, and Client will be solely responsible for its adherence thereto.
4. Complimentary and Chargeable Support. lnnovative will respond to all reported Errors pursuant to Section 2 above and will use commercially reasonable efforts to resolve Warranty Errors at no additional charge if Client has purchased and is current on its payment for Maintenance and Support; however, lnnovative may charge Client for such effort with respect to Non-Warranty Errors according to the following process: (i) When the Client Contact reports any Error, prior to commencing the Diagnosis for the Error, lnnovative will notify the Client Contact that the Diagnosis and repair effort will be at no charge to Client unless the reported Error is determined to be a Non-Warranty Error, in which case only the first two hours of Diagnosis will be at no charge; and (ii) lnnovative will then commence the Diagnosis unless instructed otherwise by the Client Contact. lf more than two hours are required for the Diagnosis of Non-Warranty Errors, then such additional Diagnosis hours will be charged to CIient at lnnovative's then-current rate for technical services. once the Diagnosis is complete, the Client Contact will be given the option of having lnnovative proceed with repairing the Non-Warranty Error, and, if so requested, lnnovative will provide an estimate of the total cost for such effort. lf agreed to by the client Contact, lnnovative will undertake to repair the Non-Warranty Error and charge Client for the associated technical services performed.
S. Ticket Management and Escalation. lnnovative manages all reported issues using a ticket management system, and provides an lnternet portal for Clients to report issues. Clients may review the status of issues reported online. When an Error is either unresolved or not resolved in a timely fashion, the Client should contact Innovative representatives pursuant to lnnovative's escalation policy made available on lnnovative's lnternet portal.