File: Nashua Public Library
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 an 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 Customers 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 (ij) 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.
3. 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 474% 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.
4. CONFIDENTIALITY
4.1 Non-Disclosure. Each party will protect the other party’s
Confidential Information fram 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 ar
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; (iit) is
lawfully obtained from a third party who has ihe 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
any personally identifiable information; or (vi) is required to be disclosed by
Customer Initial and Date:
GC# 352967
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 legisiatian 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 contral 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 coaperates 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 (iti) the combination, operation or use of
the SirsiDynix Software with software or data not provided by SirsiDynix.
6.1.3 Ifitis adjudicated that the use of the SirsiDynix Software in accordance
with the Master Agreement infringes any USA patent, registered copyright,
or registered trademark, SirsiDynix shail, 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 shail 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 cagperation
to Customer, at Customer's expense, in the defense and settlement of such
claim; and (c) Customer having sole authority to defend or settle such claim.
7. WARRANTIES; REMEDIES; DISCLAIMERS
7.1 SirsiDynix Software. SirsiDynix warrants that, far 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
remedy for any claim under this warranty, Customer shall promptly notify
Confidential
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