File: Nashua Public Library
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 Customers 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. lf 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 52.227-18, 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 shail have the right to
verify Customer's full compliance with the terms and requirements of the
Master Agreement. If such verification process reveals any noncampliance
by Customer, Customer shall reimburse SirsiDynix for the reasonable costs
and expenses of such verification process incurred by SirsiDynix {including
but not limited to reasonable attomeys’ 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 fo 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
Customer Initial and Date:
GC# 352967
to SirsiDynix at legal@sirsidynix.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 ta 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 nat 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.
16.14 Entire Agreement. The Master Agreement constitutes the parties’
entire agreement relating to its subject matter. It cancels and supersedes all
prior or contemporaneous ora! or written cammunications, requests far
proposals, proposals, conditions, representations, and warranties, or other
communication between the parties relating to its subject matter as weil as
any prior contractual agreements between the parties. Notwithstanding the
precedence of this Master Agreement, any existing Customer License
Metrics shail 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
govemed by and construed in accordance with the laws of the State of New
Hampshire without giving effect to its principles of conflict of laws. Any claim,
action, cause of action, or complaint in law or inequity arising out of this
contract, an alleged breach thereof, the work performed or contracted to be
performed thereunder, or in any way referable to this contract or said work
shall be brought in the Hillsborough {New Hampshire) County Superior
Court Southern Judicial District or in the New Hampshire 9th Circuit Court
in Nashua, New Hampshire and not elsewhere. 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”.
10.17 Application of Laws. The parties agree that this cantract is not a
contract for the sale of goods; therefore, the Master Agreement shall not be
governed by any codification of Article 2 or 2A of the Uniform Commercial
Code, or any codification of the Uniform Computer information Technology
Act (“UCITA”), or any references to the United National Convention on
Contracts for the International Sale of Gaads.
Confidential
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& SirsiDynix”
