HomeMy WebLinkAbout2004 CON Dynix Corporation - Automation Software License AgreementD► Y X
LICENSE AGREEMENT
This Agreement is made and entered into this 20 5t day of Scp ibex , 2004 ("Effective Date") by and between
Dynix Corporation ("Dynix'), a Utah corporation having its offices at 400 West 5050 North, Provo, Utah 84604 and City of
National City/National City Public Library ("Customer"), having its offices at 200 East 12th Street, National City,
California 91950. The term "Dynix" shall also refer to the company, its agents, suppliers, and its subcontractors.
1. DEFINITION OF TERMS
Licensed Software (or Software): Each Dynix-developed or Dynix-owned software product, which may include
third -party technology, as listed in Schedule 1, including machine-readable object code (not source code) for
such product, any user documentation for such product, and any other related materials which are furnished to
Customer b y Dynix for u se i n c onnection with s uch product, a s well a s a ny s ubsequent r eleases a nd e rror
corrections for Software previously licensed to Customer.
2. FURNISHING OF SOFTWARE AND SERVICES
Subject to the terms and conditions set forth herein, Dynix agrees to provide and Customer hereby agrees to
purchase the licenses and services described in Schedule 1. Customer agrees to provide Dynix with access to
the system via a dedicated data -grade phone line and the Internet to install and support the Software.
Customer shall be responsible for maintaining: (1) a telephone within reach of the database server; (2) an
auto -answer Dynix-approved modem attached to a port for the exclusive use of Dynix; (3) an "outside" data grade
phone line for the modem to be used in dial -up diagnostics and maintenance; and (4) Internet access including access
through any security measures. Dynix alone shall decide whether access to the System is sufficient for
installation and support.
3. WARRANTY
Dynix warrants that the then -current, unmodified version of the Software provided by Dynix to Customer will
operate in all material respects in conformity to Dynix's published technical manuals relating to the end use of
the Software for a period of one year from commencement of live operation. No representation is made that
the Software is error -free or will satisfy all of Customer's requirements. If the Software does not perform as
warranted, Customer's exclusive remedy, at Dynix's option, will be replacement of the non -conforming
Software or an equitable adjustment of the license fee paid by Customer for such non -conforming Software.
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES. THIS AGREEMENT EXPRESSLY
EXCLUDES TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT THE
LICENSED SOFTWARE IS ERROR -FREE; AND (ii) ANY AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON -INFRINGEMENT, AND (iii)
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
DYNIX, ITS AFFILIATES, CONTRACTORS OR EMPLOYEES SHALL CREATE OR CHANGE ANY
WARRANTY.
4. PAYMENT
Invoices shall be considered past due 30 days after the date shown thereon. Past due balances are subject to
the lesser of a 1'/2% per month interest charge (18% per annum) or the highest rate allowed by law. Customer
agrees to reimburse Dynix for any taxes arising out of this Agreement or Dynix's performance under this
Agreement, excluding taxes on Dynix's net income, that exceed the taxes contained herein. Payment is due
upon invoice for successful completion of the following milestones:
MILESTONE AMOUNT TAX GRAND TOTAL
Delivery of Client Licensed Software Modules to Customer 21,174.00 1,640.98 22,814.98
Completion of Data Test Load 20,329.00 1,575.50 21,904.50
Completion of Initial Core Training (Cat, Circ, Pac, SA) 7,150.00 554.12 7,704.12
TOTAL
$48,653.00 $3,770.60 $52,423.60
5. SOFTWARE LICENSE
A. Dynix hereby grants Customer a non-exclusive, non -transferable, non-sublicenseable and limited use license
to use the Software solely i n the conduct of the business of Customer on the Database Server, Horizon
Application Server, and Workstations.
B. Customer may not rent or lease the Software to any other entity or use the Software as part of a commercial
time-sharing, subscription bureau or service bureau operation.
C. The Software is confidential and copyrighted and all rights therein not expressly granted to Customer are
reserved to Dynix.
D. Dynix retains title to all copies of the Software; all training and procedural materials developed by Dynix in
conjunction with the Software; and any additions and supplements to the Software which may be developed
for Customer through the reimbursed or unreimbursed efforts of Dynix employees or agents.
E. Except to the extent permitted by applicable law, Customer may not make copies of the Software, other than
for archival or backup purposes, nor shall it modify, decompile, or reverse -engineer the Software.
F. Dynix may update and modify the Software from time to time, as it deems necessary.
G. Dynix or its independent audit firm may, upon reasonable notice, examine and audit the records and systems
of Customer to ensure compliance with any license granted by Dynix. Any audit will be performed during the
Customer's regular business hours and in a manner which avoids unreasonable interference with the
Customer's operations. If such an audit reveals that Customer has underpaid or failed to pay any license
fee, Customer agrees promptly to correct such underpayment.
H. Customer acknowledges that any breach or threatened breach of any license involving unauthorized use of
Dynix's intellectual property rights will result in irreparable harm to Dynix for which damages would not be an
adequate remedy.
1. Customer may not alter or obscure any proprietary rights notice, including the phrase "powered by Dynix,"
appearing on any Dynix-supplied materials and must include such notices on any copies.
J. Dynix's placement of a copyright notice on any portion of any Software or any update to such 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 Dynix.
K. Upon termination of this license, Customer shall destroy or return to Dynix all copies of the Licensed Software.
6. INDEMNIFICATION AND LIMITATION OF LIABILITY
To the extent not prohibited by applicable law, Dynix's maximum aggregate liability for all claims relating to
the Agreement, w hether for breach of contract, breach of warranty or i n tort, including n egligence, w ill b e
limited to the amount paid by Customer to Dynix during the previous 12 months for the Licensed Software or
service which is the subject matter of the claim.
DYNIX WILL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE AGREEMENT
(INCLUDING, WITHOUT L IMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE,
DATA, OR OTHER ECONOMIC ADVANTAGE), HOWEVER THEY ARISE EVEN IF DYNIX HAS
PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIABILITY FOR DAMAGES
WILL BE LIMITED AND EXCLUDED, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THE
AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
7. GENERAL
A. Force Majeure. A party is not liable under this Agreement for non-performance caused by events or
conditions beyond that party's reasonable control, if the party makes reasonable efforts to perform.
This provision does not relieve Customer of its obligation to make payments then owing.
B. Assignment. Customer may not assign or transfer the Agreement or its rights under it without Dynix's
prior written approval, which approval will not be unreasonably withheld.
C. Notices. All written notices required by this Agreement will be effective upon receipt. Notices
communicated by electronic mail or facsimile will be deemed to be written.
D. Invalidity. If any provision of the Agreement is held invalid by law or regulation of any government or
by any court or arbitrator, such invalidity will not affect the enforceability of other provisions.
E. Survival. Rights and obligations under the Agreement which by their nature should survive will remain
in effect after termination or expiration of the Agreement.
City of National City/National City Public Library- Page 2
CONFIDENTIAL AND PROPRIETARY
F. No Waiver. Any express waiver or failure to exercise promptly any right under this Agreement will not
create a continuing waiver or any expectation of non -enforcement.
G. Modification. No modification to this Agreement will be binding, unless in writing and signed by an
authorized representative of each party.
H. Entire Agreement. T his Agreement c onstitutes t he p arties' entire agreement r elating t o i ts s ubject
matter. It cancels and supersedes all prior or contemporaneous oral or written communications,
proposals, conditions, representations, and warranties, and prevails over any conflicting or additional
terms contained in any quote, purchase order, acknowledgement, or other communication between
parties relating to its subject matter during its term.
/. Counterparts. The parties agree that this Agreement may be executed in one or more counterparts,
each of which shall be constitute an enforceable original of the Agreement, and that facsimile
signatures shall be as effective and binding as original signatures.
IN WITNESS WHEREOF, the parties have caused this Agreement, which shall inure to the benefit of and be binding
upon the successors of the respective parties, to be signed and entered as of the Effective Date.
Dynix Corporation City of National City
By:^ .�\
Title:
Dynix Corporation
By:
Title: Nick Inzunza, Mayor
City of National City/National City Public Library - Page 3
CONFIDENTIAL AND PROPRIETARY
SCHEDULE 1
CONFIGURATION # 42264
Unit
Total
Annual
Qty
Description
Price
Price
Maint
1
Horizon Public Library Suite
66,677
66,677
10,002
General
Horizon Cataloging
Horizon Circulation
Horizon Information Portal
Horizon Kids' Information Portal
Horizon Acquisitions
Horizon Debt Collect
Horizon Community Resources
Horizon Home Service
Dynix Customer Loyalty Discount:
(20,003)
ADDITIONAL SOFTWARE
1
Horizon Enriched Content (Public)
1,117
1,117
1,117
Elements Selected Are:
Fiction & Bio
Table of Contents
Summaries/Annotations
Chapters/Excerpts
Cover Images
PW Reviews
LJ Reviews
SLJ Reviews
Author Notes
SIP
1
Horizon SIP License, First location
3,000
3,000
450
DATA SERVICES
HORIZON DATA LOAD SERVICES
1
MARC Data Load Setup & Consultation
6,000
6,000
Desc: Includes Consultation, test load(s), data tuning, and profiling while
in implementation.
Requirement: Customer will provide clean MARC records with item tags.
1
MARC Bibliographic and Item Record Load
3,829
3,829
Desc: Load MARC bibliographic records with item information
1
Circulation Transaction Migration
1
Less than 500,000 bib records
5,000
5,000
Requirements: Customer must provide a single file in pre -defined
or ASCII delimited format with field definitions. File contains item
status, fines and fees, notices, and requests. History is not transferable
City of National City/National City Public Library - Page 4
CONFIDENTIAL AND PROPRIETARY
however balance totals may be preserved.
1
Patron File Load — One Time
2,500
2,500
IMPLEMENTATION SERVICES
2
Pre -installation and Database Design Planning Days
1,500
3,000
Profile and map system, determine indexes and MARC maps, decide
collection and location codes, circulation privileges, borrower types
and barcodes (to be held at Dynix or via the Web)
SERVER INTEGRATION
1
Remote Server Integration
1,600
1,600
Integration for Database Server/ HIP Server
( Customer will send staged server to Dynix for Data
load)
EDUCATION SERVICES
HORIZON TRAINING
6.5
Total Training Days
1,100
7,150
1
Base Onsite Education Package
(3 Days)
Training Subjects:
Searching
Cataloging
Circulation
QuickStart System Administration
1
PUBLIC Onsite Education Package
(3.5 Days)
Training Subjects:
Offline Circ
Home Services
Community Resources
Inventory
Acquisitions
SUPPLIES
Documentation Bundle
1
Horizon Public Library Suite Doc And Media
SYSTEM SUBTOTAL
79,870
11,568
Discount:
(20,447)
Additional Dynix Discount:
(10,770)
Subtotal:
48,653
California Tax of 7.75%
3,770.60
GRAND TOTAL
52,423.60
11,568
City of National City/National City Public Library - Page 5
CONFIDENTIAL AND PROPRIETARY
City of National City, California
COUNCIL AGENDA STATEMENT
MEETING DATE September 21, 2004
AGENDA ITEM NO.
8
(—ITEM TITLE
RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE A LIBRARY AUTOMATION
SOFTWARE LICENSE AGREEMENT WITH DYNIX CORPORATION FOR THE NATIONAL
CITY PUBLIC LIBRARY IN THE AMOUNT OF $52,423.60.
PREPARED BY Anne Campbell DEPARTMENT Library EXT. 4364
hf
EXPLANATION
The Library's automation (circulation/catalog) software platform, Dynix, is currently based on a
restricted number of licenses, which restricts the number of concurrent users. In the new library, the
expanded number of public and staff computers requires us to move to the newest version of Dynix
software, which is based on an open platform that will not restrict concurrent users. By approving
this license agreement, the library will have ample time to work with Dynix staff to migrate the
existing databases, train staff and complete the process prior to moving to the new library. Dynix
Corporation, a Utah based corporation, has provided library automation software for the library
since 1993, and is rated among the top library automation vendors in the United States.
L
It is requested that City Council waive the formal bidding requirements, as allowed in Section 12a4
of Purchasing Ordinance #1480, and in Chapter 2.60.220(d) of the municipal Code, which states
that the Purchasing Agent may dispense with the requirements of bidding: "When the City Council
determines that due to special circumstances, it is to the City's best interest to purchase a
commodity or enter into a contract without compliance with the bidding procedure". In this case
the migration to the newest version of the existing software will ensure software compatibility with
the library's existing circulation/catalog system.
i
Environmental Review
N/A
MIS Approval
Financial Statement
Approved By:
Finance Director
The $52,423.60 cost for software licenses and migration services is available in the Library's Fund
108. Account No.
STAFF RECOMMENDATION
Approve the license agreement between the City of National City and Dynix Corporation.
BOARD / COMMISSION RECOMMENDATION
L.
DYNIX COMPANY INFORMATION
A-200 (Rev. 7/03)
ATTACHMENTS ( Listed Below) Resolution No. 2-0O'Hg/
RESOLUTION NO. 2004 —181
RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF NATIONAL CITY
AUTHORIZING THE MAYOR TO EXECUTE
A LIBRARY AUTOMATION SOFTWARE LICENSE AGREEMENT
WITH DYNIX CORPORATION FOR THE NATIONAL CITY
PUBLIC LIBRARY IN THE AMOUNT OF $52,423.60
WHEREAS, the City is in need of software in order to provide certain
services at the Library; and
WHEREAS, Dynix Corporation is able to provide such software through a
software license agreement.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City
of National City hereby authorize the Mayor to execute a library automation software
license agreement with Dynix Corporation for the National City Public Library in the
amount of $52,423. Said Agreement is on file in the office of the City Clerk.
PASSED AND ADOPTED this 21stday of September, 2004.
N' Inzunza,
ATTEST:
e
Michael Dalla, y Clerk
APPROVED AS TO FORM:
George H. Eiser, III
City Attorney
Passed and adopted by the Council of the City of National City, California, on
September 21, 2004, by the following vote, to -wit:
Ayes: Councilmembers Morrison, Natividad, Parra, Ungab.
Nays: None.
Absent: Councilmember Inzunza.
Abstain: None.
AUTHENTICATED BY:
NICK INZUNZA
Mayor of the City of National City, California
t Clerk of the Cit�
Ci of National City, California
By:
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 2004-181 of the City of National City, California, passed and
adopted by the Council of said City on September 21, 2004.
City Clerk of the City of National City, California
By:
Deputy
City of National City
Office of the City Clerk
1243 National City Boulevard, National City, California 91950-4397
Michael R. Della, CMC - City Clerk
(619) 336-4228 Fax: (619) 336-4229
September 28, 2004
Dynix Corporation
400 West 5050 North
Provo Utah 84604
On September 21, 2004, Resolution No. 2004-181 was passed and
adopted by the City Council of the City of National City, authorizing the
Mayor to execute a Library Automation Software License Agreement with
Dynix Corporation for the National City Public Library in the amount of
$52,423.60.
We are forwarding a certified copy of the above Resolution and one fully
executed original agreement.
Sincerely,
Martha L Alvarez, CMC
Deputy City Clerk
/mla
Enclosure
cc: Library
Fite No. C2004-45
® Recycled Paper