HomeMy WebLinkAboutC-2995 - Purchase Agreement (for Computer System for New Central Library & Branches)i
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C Z 995-
PURCHASE AGREEMENT BETWEEN DYNIX, INC.
AND
NEWPORT BEACH PUBLIC LIBRARY
March 4, 1994
3
TABLE OF CONTENTS
Section
Page
I.
FURNISHING OF EQUIPMENT AND SOFTWARE ..............................
1
2.
CONTRACT DOCUMENTS ............... ...............................
1
3.
DEFINITION OF TERMS ................ ...............................
2
4.
SITE PREPARATION ................... ...............................
2
5.
TRANSPORTATION AND INSTALLATION OF EQUIPMENT .......................
2
6.
RISK OF LOSS ....................... ...............................
3
7.
DATA CONVERSION .................. ...............................
3
8.
ACCEPTANCE TESTS .................. ...............................
3
9.
WARRANTY ........................ ...............................
4
10.
PAYMENT SCHEDULE ................. ...............................
4
11.
TAXATION ......................... ...............................
5
12.
TITLE ............................. ...............................
5
13.
TRAINING ......................... ...............................
5
14.
DOCUMENTATION ................... ...............................
5
15.
SOFTWARE LICENSE .................. ...............................
6
16.
PATENT AND COPYRIGHT PROTECTION .... ...............................
8
17.
INDEMNIFICATION AND LIMITATION OF LIABILITY ...........................
8
18.
INSURANCE ........................ ...............................
9
19.
SYSTEM MODIFICATION ............... ...............................
9
20.
MAINTENANCE ...................... ...............................
10
21.
LIBRARY RESPONSIBILITIES ............. ...............................
10
22.
FOREIGN COMPONENT INTERFACE ....... ...............................
10
23.
ASSIGNMENT .:....................................................
10
24.
NO WAIVER ........................ ...............................
10
25.
FORCE MAJEURE .................... ...............................
11
26.
NOTICES .......................... ...............................
11
27.
PUBLICITY ......................... ...............................
11
28.
SEVERABILITY ...................... ...............................
11
29.
GOVERNING LAW .................... ...............................
11
30.
NONDISCRIMINATION ................. ...............................
11
31.
AGREEMENT EXTENSION AND MODIFICATION CLAUSE ........................
11
32.
NON - COLLUSION COVENANT ............ ...............................
12
33.
HEADINGS NOT CONTROLLING .......... ...............................
12
34.
ENTIRE AGREEMENT .................. ...............................
12
RIDERS
A Schedule of Activities ............ ...............................
R -1
B Equipment List, Prices ........... ...............................
R -3
C Software List, Prices ............. ...............................
R4
D DYNIX Services and Supplies, Prices .. ...............................
R -5
E Price Summary ...............................................
R -9
F Payment Schedule and Contract Milestones ............................
R -10
G Performance Standards .......... ...............................
R -I1
H Testing Procedures ............ ...............................
R -16
I Additional Functional Capabilities ... ...............................
R-45
J Maintenance Agreement .......... ...............................
R-46
KTaxes ...................... ...............................
R -57
L Source Code Escrow Agreement .... ...............................
R -58
M Operating System License ........ ...............................
R -59
N Price Protection ............... ...............................
R-60
O Vista Services ..............................................
R-61
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PURCHASE AGREEMENT
This Agreement is made and entered into by and between DYNIX, Inc. (hereinafter referred to as "DYNIX "), a
Utah corporation having its offices at 400 West Dynix Drive, Provo, Utah 84604, and the Newport Beach Public
Library in the City of Newport Beach (hereinafter referred to as "THE LIBRARY "), having its offices at 856 San
Clemente Drive, Newport Beach, California 92660. The term "DYNIX" shall refer to the company, its agents,
and its sub - contractors.
RECITALS
WHEREAS, THE LIBRARY desires to contract with DYNIX to obtain the Equipment, licenses to the Software, .
hardware and software maintenance and other services described herein and DYNIX desires to contract with THE
LIBRARY to provide said Equipment, license to the Software, hardware and software maintenance and the services
described herein;
NOW THEREFORE, in consideration of the mutual covenants, promises and undertakings contained herein, the
parties hereto hereby agree as follows:
1. FURNISHING OF EQUIPMENT AND SOFTWARE
- Subject to the terms and conditions set forth herein, DYNIX agrees to provide at locations specified by THE
LIBRARY, and THE LIBRARY hereby agrees to purchase:
A. the Equipment listed on Rider B hereto (collectively the "Equipment ") at the price listed on Rider B.
B. the license for the use of the computer programs and related documentation listed on Rider C hereto
(collectively the "Software ") at the price specified on Rider C.
C. the DYNIX services listed on Rider D at the prices specified on Rider D.
D. the maintenance service revisions listed in Rider J according to the payment schedule set out in
Exhibits A and B of Rider J.
2. CONTRACT DOCUMENTS
The contract documents are:
A. This Agreement, including the following Riders attached hereto:
Rider A.
Schedule of Activities
Rider B.
Equipment List, Prices
Rider C.
Software List, Prices
Rider D.
DYNIX Services and Supplies, Prices
Rider E.
Price Summary
Rider F.
Payment Schedule and Contract Milestones
Rider G.
Performance Standards
Rider H.
Testing Procedures
Rider L
Additional Functional Capabilities
Rider J.
Maintenance Agreement
Rider K.
Taxes
Rider L.
Source Code Escrow Agreement
Rider M.
Operating System License
Rider N.
Price Protection
Rider O.
Vista Services
Z
0 • 1 ,l
Each of these documents is incorporated herein by this reference as if set forth in full, and shall constitute
a part of this Agreement.
The failure of this Agreement to include reference to any matter contained in any other contract document
shall not be deemed to constitute a conflict.
3. DEFINITION OF TERMS
A. Equipment: The items listed on Rider B hereto.
B. System: The total complement of equipment and software furnished under this agreement and
maintained by DYNIX which are acquired to operate as an integrated group.
C. Licensed Software (or "Software "): Each software product listed in Rider C, 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 THE LIBRARY by DYNIX for use
in connection with such product.
D. Use: To cause the computer system as designated in Rider B to execute any machine - readable portion
of the Software or to make use of any documentation or related materials in connection with the
execution of any machine - readable portion of the Software.
4. SITE PREPARATION
DYNIX will provide site specifications for all Equipment set forth in Rider B.
THE LIBRARY will, at its own expense, prepare the site or sites for installation of Equipment to comply
with the requirements set forth in the DYNIX Preinstall Guide for Conversions furnished by DYNIX. Prior
to commencing installation, DYNIX shall review the specifications and construction drawings for the
computer site and provide a written report certifying compliance with the requests or indicating any
deficiencies in the site.
THE LIBRARY acknowledges that DYNIX must carefully coordinate the schedules, its people, and other
resources to successfully meet the installation of its clients.
5. TRANSPORTATION AND INSTALLATION OF EQUIPMENT
A. TRANSPORTATION
I. Upon written notification by THE LIBRARY that the site(s) have been or shall, by a specified
date, be prepared for installation, DYNIX shall arrange for transportation of Equipment to the
site(s).
2. Shipments by the parties to and from the installation site(s) shall be made by commercial carrier
and /or by vehicle properly constructed for shipment of electronic and computer Equipment.
3. All computer room Equipment shall be delivered as inside deliveries to the computer room at
the installation site.
4. Equipment shall he preserved, packed and marked in accordance with standard shipping
practices.
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Match 4, 1994
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5. THE LIBRARY shall receive all shipments from vendor and care for the same in a prudent
manner until vendor arranges for its installation.
6. All shipping and insurance to and from the site are the responsibility of DYNIX, with costs to
be paid by THE LIBRARY as listed on Rider D.
7. When Equipment is moved for warranty or performance replacement purposes. DYNIX shall
pay all rigging and drayage costs unless the replacement was due to the fault or negligence of
THE LIBRARY.
B. INSTALLATION
DYNIX shall furnish all necessary labor, materials, and other services listed on Rider D,
Schedule 3 required to accomplish installation at the sites specified in Rider D, Schedule 3.
DYNIX shall be responsible for the installation of the equipment and software and shall connect
the equipment to the power sources which are installed by THE LIBRARY pursuant to
Paragraph 4. THE LIBRARY shall make all the necessary arrangements to allow DYNIX
personnel sufficient work space and access to the installation locations during normal business
hours or at such other times as may be mutually agreed upon.
DYNIX's proceeding with the installation shall constitute DYNIX's acceptance of the site
preparation and certification that the site meets all DYNIX specifications at the time of
installation.
2. In the event that the conversion test described in Rider H, Schedule 3 is not completed on or
before the date specified in Rider A (Schedule of Activities), and THE LIBRARY has met all
of its contractual obligations, including, but not limited to, completing all of its obligated tasks
on schedule as specified in Rider A, DYNIX shall be subject to five hundred dollars ($500.00)
per day damages for up to a maximum of 90 calendar days or until the acceptance test is
completed.
3. When the System has passed the Hardware Functionality Test, Dynix shall certify to THE
LIBRARY that the installation is complete.
6. RISK OF LOSS
DYNIX is responsible for all risks of loss or damage to Equipment furnished under this Agreement until
delivery is made inside THE LIBRARY premises. Thereafter THE LIBRARY will be responsible for risks
of loss or damage, except for loss or damage caused by DYNIX in the process of installation.
7. DATA CONVERSION
DYNIX will load THE LIBRARY data as outlined in Rider D Schedule 4.
8. ACCEPTANCE TESTS
A. HARDWARE FUNCTIONALITY TEST
The purpose of the Hardware Functionality Test is to ascertain that the equipment listed on Rider B
as installed is operational. The test will he performed as set forth in Rider H, Schedule 1.
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March 4. 1994
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B. MODULE FUNCTIONALITY TEST(S) - (FOR NEW MODULES ONLY)
The purpose of the Module Functionality Test is to verify that the required functional capabilities of
the Software have been delivered. The test will be performed as set forth in Rider H, Schedule 2.
C. CONVERSION TEST
The purpose of the Conversion Test is to demonstrate and verify that THE LIBRARY's data files will
be properly loaded. This test will be performed upon the Ist day of online operation on the new
system. The test will be performed as set forth in Rider H, Schedule 3.
D. SYSTEM RELIABILITY TEST - PILOT OPERATION
The purpose of the System Reliability Test is to demonstrate and verify that the System operates at
a 98% reliability level for an extended period of time. This test may overlap other tests. The test will
be performed as set forth in Rider H, Schedule 4.
9. WARRANTY
A. PERFORMANCE LEVELS
DYNIX warrants that the System provided pursuant to this Agreement will meet or exceed the
performance standards specified in Rider G at the activity levels and data storage capacity levels
described therein. In the event that the System fails to perform at the levels specified any time
within five (5) years after the installation of the System, DYNIX will provide at no additional cost
to THE LIBRARY additional hardware and software necessary to bring the System into compliance
with these requirement within 120 days after written notification to DYNIX by THE LIBRARY of
such failure.
Failure of DYNIX to responde to such notice will result in damages being sustained by THE
LIBRARY. It being impractical or extremely difficult to determine the exact amount of damages in
the event of such failure by DYNIX to bring the system into compliance, it is agreed by the parties
hereto that the sum of three hundred dollars ($300) per day for each consecutive calendar day beyond
the 150 days after written notification of failure, that DYNIX fails to bring the system into compliance
shall be paid to THE LIBRARY. The total amount of damages shall not exceed the cost of the
system.
1. DYNIX warrants that DYNIX has the right to license the Software and to sell the Equipment
which is described in Riders B and C of this Agreement.
2. DYNIX warrants that THE LIBRARY shall acquire good and clear title to the Equipment
purchased hereunder, free and clear of all liens and encumbrances.
3. DYNIX warrants that the Software delivered will comply with the functions defined by the
Documentation.
4. DYNIX warrants that all of the Equipment described in Rider B will be delivered new and not
as "used" Subsequent equipment purchases shall be provided as new equipment,unless the fact
that equipment has been used has been disclosed to THE LIBRARY and THE LIBRARY has
given its written consent.
NEWPORT BEACH PUBLIC LIBRARY - PAGE 4
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DYNIX warrants the system and all parts thereof and all goods and services to be free of defects
in materials and workmanship for a period of one year following the installation. DYNIX
further warrants that all equipment described in this agreement will be maintained by DYNIX
at DYNIX's expense until THE LIBRARY commences paying maintenance charges for the
Equipment outlined in Exhibit A, after the applicable warranty has expired.
The warranties specified in paragraphs 9.A. and B. above do not cover damage, defect, malfunctions
or failure caused by: (i) failure by THE LIBRARY to follow DYNIX's and the manufacturer's
installation, operation, or maintenance instructions or its failure to fulfill its obligations under this
Agreement, (ii) THE LIBRARY's modification or relocation of the System, (iii) THE LIBRARY's
abuse, misuse or negligent acts, (iv) power failure or surges, lightning, fire, flood, accident, actions
of third parties and other events (including those described in paragraph 25) outside DYNIX's
reasonable control, and (v) improper operating environment for the System, including insufficient
electrical and telecommunications connections.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER
WARRANTIES OF ANY TYPE WHETHER EXPRESSED OR IMPLIED, INCLUDING
WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10. PAYMENT SCHEDULE
A. Payment is due within 30 days of invoice for successful completion of contract milestones and
acceptance tests. Payment is calculated as a percentage of the total of the system price as listed in
Rider E except as noted in paragraph C below. Payment percentages and corresponding milestones
are detailed in Rider F.
B. Invoices shall be submitted to THE LIBRARY at the address contained in the first paragraph of this
Agreement.
C. In the event that DYNIX, per instructions from THE LIBRARY that the sites are ready for
installation, delivers Equipment to the site(s) and due to delays by THE LIBRARY or its agents the
installation may not proceed within fourteen (14) days of the date specified in 5.A.(I), the following
amount shall be due and payable to DYNIX: (1) the Hardware Functionality payment as outlined in
Rider F; (2) shipping and transportation charges for same; and (3) any applicble taxes.
It. TAXATION
THE LIBRARY represents that it is subject to taxation only as set forth in Rider K. THE LIBRARY agrees
to indemnify DYNIX for all taxes which DYNIX may be required to pay which DYNIX would normally
be required to collect and pay which do not appear in Rider K or have not been paid by THE LIBRARY,
together with any legal fees, penalties, interest and /or other charges which may be incurred by DYNIX in
relation to the assessment and payment of taxes not listed in Rider K.
12. TITLE
Title to the Equipment shall pass from DYNIX to THE LIBRARY upon successful completion of the
Hardware Functionality Test described in Rider H and payment of the associated invoice from Rider F.
NEWPORT BEACH PUBLIC LIBRARY - PAGE 5
March 4, 1994
13. TRAINING
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DYNIX will provide training sessions on the operation and use of the System for THE LIBRARY's
personnel as set forth in Rider D, Schedule Z at times to be agreed upon by DYNIX and THE LIBRARY.
DYNIX agrees to provide at DYNIX's then published rates periodic review sessions and training then being
offered. Any additional training requested as a result of hardware and /or software upgrade to the System
purchased under this Agreement will be provided as agreed upon by DYNIX and THE LIBRARY.
14. DOCUMENTATION
DYNIX shall provide system documentation and training manuals in various formats for the operation and
maintenance of the System. Such documentation shall include:
A. DYNIX produced documentation, users manuals, training materials and subscriptions as detailed in
Rider D, Schedule 5 for new modules on Rider B.
B. Appropriate user documentation for all peripherals supplied by DYNIX, including at least one copy
per site of each of the manuals for each type of equipment installed at that site,-to arrive with the
peripherals.
C. One set of documentation for the computer that describes such activities as system boots, file saves,
tape loading, and proper handling of the hardware. Said documentation will arrive with the CPU.
THE LIBRARY may photocopy or otherwise reproduce DYNIX copyrighted documentation and training
materials for training or other internal uses provided that DYNIX's statement of copyright be included on
each copy.
15. SOFTWARE LICENSE
A. GENERAL
Subject to the terms and conditions hereinafter set forth, DYNIX hereby grants to THE LIBRARY
a nontransferable, nonexclusive and royalty -free license (the "License ") to use the Licensed, Software
solely in the conduct of the business of THE LIBRARY on the specific computer or computers listed
in Rider B and for the number of Users specified in Rider C. Licensed Software will be provided by
DYNIX to THE LIBRARY pursuant to the terms of this Agreement, only in machine- readable object
code. THE LIBRARY acknowledges that by virtue of this License, THE LIBRARY acquires only
the right to use the original and permitted duplicate copies of the Licensed Software as described
herein and does not acquire any rights of ownership in the Licensed Software which rights shall remain
exclusively with DYNIX. The term of License shall commence upon delivery of the first module of
Licensed Software and shall remain in force as long as THE LIBRARY is in compliance with all the
provisions of the Agreement.
PAYMENT OF LICENSE FEE
THE LIBRARY agrees to pay DYNIX a one -time license fee for the use of the Licensed Software in
the amount specified in Rider C hereto.
NEWPORT BEACH PUBLIC LIBRARY - PAGE 6
March 4, 1994
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C. RIGHT TO COPY
0
No portion of the Licensed Software or any updates or enhancements to the Licensed Software may
be duplicated by THE LIBRARY except that THE LIBRARY may make copies of the
machine - readable portion thereof for normal security backup purposes, provided that THE LIBRARY
properly reproduces on each such copy all notices of DYNIX's patent, copyright, trademark, or trade
secret rights.
D. TITLE TO SOFTWARE
DYNIX retains ownership of all Licensed Software and related documentation.
Within thirty (30) days from the date of THE LIBRARY's discontinuance of the use of any portion
of the Licensed Software licensed hereunder, THE LIBRARY shall furnish DYNIX with written notice
certifying that through its best efforts and to the best of its knowledge, all machine- readable code, user
documentation or other related materials provided to THE LIBRARY with such Licensed Software,
including any copies thereof, whether in whole or in part, have been destroyed or returned as follows:
All documents relating to such discontinued portion of the Licensed Software shall he returned
to DYNIX; and
2. The originals and all copies of any machine - readable materials containing all or any portion of
the discontinued Licensed Software shall be destroyed or purged so as to totally remove from
such machine- readable materials all codes relating to the discontinued portion of the Licensed
Software.
E. MATERIALS DEVELOPED BY DYNIX OR THE LIBRARY
THE LIBRARY agrees that all training and procedural materials developed by DYNIX in conjunction
with the Licensed Software shall be the property of DYNIX. THE LIBRARY further agrees that
additions and supplements to the Licensed Software which may be developed for THE LIBRARY
through the reimbursed or unreimbursed efforts of DYNIX employees or agents shall be the exclusive
property of DYNIX. All software and training and procedural manuals or materials developed by
THE LIBRARY acting without DYNIX shall he the exclusive property of THE LIBRARY.
PROPRIETARY RIGHTS
DYNIX retains for itself, and THE LIBRARY acknowledges that DYNIX so retains, all proprietary
rights in and to all designs, engineering details, and other software pertaining to the System, and any
and all such Systems. The Licensed Software and the configuration of the Equipment shall be deemed
to be the trade secrets of DYNIX. THE LIBRARY shall not reverse assemble, reverse compile or
translate any portion of the Licensed Software.
G. PROTECTION OF PROPRIETARY INFORMATION
THE LIBRARY recognizes and agrees that all Software and updates of Licensed Software which are
provided to THE LIBRARY:
are considered by DYNIX to be trade secrets of DYNIX;
2. are furnished by DYNIX to THE LIBRARY in confidence; and
3. contain proprietary and confidential information.
NEWPORT BEACH PUBLIC LIBRARY - PAGE 7
March 4, 1994
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DYNIX's placement of a copyright notice on any portion of any Licensed Software or any update to
such Licensed Software will not be construed to mean that such portion has been published and will
not derogate from any claim that such portion is a trade secret or contains proprietary and confidential
information of DYNIX.
THE LIBRARY agrees to hold all such Licensed Software and updates and enhancements to the
Licensed Software, in confidence at least to the extent that it protects its own similar confidential
information and to take all reasonable precautions consistent with general accepted standards in the
data processing industry to safeguard the confidentiality of such information. No portion of any
update or enhancement to the Licensed Software may be disclosed, furnished, transferred or otherwise
made available by THE LIBRARY to any person except to those of its employees who need to use
such information in accordance with this Software License. THE LIBRARY agrees to take appropriate
action by instruction, agreement and otherwise with its employees to inform them of the trade secret,
proprietary, and confidential nature of the Licensed Software and the updates and enhancements
disclosed to THE LIBRARY under this Agreement, and to obtain their compliance with the terms
hereof. The obligations of this paragraph will survive the termination of this Agreement.
Lei ej* **1k C 4103.3 i 1� 1:1 i]: 4K s l d
Copies of the Licensed Software in machine - readable source code along with necessary documentation
for installing, maintaining or m<xlifying the Licensed Software have been deposited with Data
Securities International, Inc., of San Diego, California, under a Deposit Agreement ( "Escrow
Agreement ") as set forth in Rider L. DYNIX shall maintain in good force for the duration of this
Agreement an Escrow Agreement and will not cancel or modify said Escrow Agreement without thirty
days notice to THE LIBRARY. Access to the materials in escrow is available to THE LIBRARY
in the event:
I. All or any part of the software is generally made available by DYNIX to other similarly situated
libraries under similar terms and conditions; or
2. DYNIX ceases for any reason to do business; or
3. DYNIX fails to maintain the software adequately pursuant to this agreement following not less
than thirty (30) days prior written notice from THE LIBRARY; or
4. DYN IX is declared bankrupt in a final non - appealable order of a court of competent jurisdiction.
OWNERSHIP OF DATA
THE LIBRARY retains for itself, and DYNIX acknowledges that THE LIBRARY so retains,
ownership and rights of ownership to all bibliographic, authority, item, patron, and associated
transaction records entered into the database or created by the System. DYNIX shall not, without
THE LIBRARY's written consent, copy or use such records, except to carry out contracted work, and
will not transfer such records to any other party not involved in the performance of this Agreement.
THE LIBRARY shall have the right, without the consent of DYNIX, to extract as THE LIBRARY's
property such data using system utilities and at no cost to THE LIBRARY.
16. PATENT AND COPYRIGHT PROTECTION
DYNIX will: (l) assume the defense of any suit brought against THE LIBRARY for infringement of any
United States patent or copyright to the extent it is based upon the Equipment or Licensed Software under
this Agreement; (2) defray the expense of such defense; and (3) indemnify THE LIBRARY against any
monetary damages and /or costs including attorney's fees in such suit; provided that: (1) DYNIX is given sole
NEWPORT BEACH PUBLIC LIBRARY - PAGE 8
March 4, 1994
17
and exclusive control of the defense of such suit and sole and exclusive control of negotiations relative to
the settlement thereof; (2) the liability claimed shall have arisen solely because of DYNIX's selection as to
the design or composition of the Licensed Software or the Equipment, and that the Licensed Software or the
Equipment is used by THE LIBRARY in the form, state or condition as delivered by DYNIX; (3) that THE
LIBRARY shall have substantially performed all of its obligations under this Agreement; and (4) that THE
LIBRARY provides DYNIX with written notice of any claim with respect to which THE LIBRARY asserts
that DYNIX assumes responsibility under this Article within 10 days of receipt of notice of such a claim by
THE LIBRARY.
Should any Equipment or Licensed Software which has not incurred any unauthorized modifications or
combinations become, or in DYNIX's opinion likely become, the subject of a claim of infringement, then
THE LIBRARY shall permit DYNIX, at DYNIX's option and expense, either to: (i) procure for THE
LIBRARY the right to continue using the Equipment and Licensed Software, or (ii) replace or modify the
Equipment or Licensed Software so that it becomes non - infringing and functionally equivalent, or upon
failure of (i) and (ii), despite the reasonable efforts of DYNIX (iii) buy back the Equipment or Licensed
software at THE LIBRARY's net book value.
THIS ARTICLE STATES THE ENTIRE LIABILITY OF DYNIX FOR PATENT OR COPYRIGHT
INFRINGEMENT BY THE LICENSED SOFTWARE OR THE EQUIPMENT OR ANY PORTIONS
THEREOF.
INDEMNIFICATION AND LIMITATION OF LIABILITY
DYNIX shall assume the defense of, and indemnify and save harmless, THE LIBRARY, The City of
Newport Beach, the Newport Beach City Council, its boards, commissions, officers and employees from and
against any and all loss, damages, liability, claims, suits, costs, and expenses whatsoever, including
reasonable attorneys' fees, regardless of the merit of any such claim or suit arising from or in any manner
connected by DYNIX's negligent performance of services or work conducted or performed pursuant to this
agreement.
DYNIX shall effect the repair or replacement of the system or correct the performance of its services in
accordance with Section 9, and this shall constitute its and its suppliers' sole liability for any failure or
defects of such system or services;
DYNIX's and its suppliers' liability on any claims for damages, losses or expenses arising out of this
agreement except as provided in Section 16, Rider G, the preceding paragraph, or for personal injury and
damage to tangible personal property claims, shall be limited to direct damages and shall not exceed the
system purchase price;
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER DYNIX, ITS
AFFILIATES, SUBSIDIARIES, PARENT CORPORATION, ANY OF ITS PARENT
CORPORATIONS AFFILIATES OR SUBSIDIARIES, INCLUDING THEIR OFFICERS,
DIRECTORS, EMPLOYEES OR AGENTS, NOR DYNIX SUPPLIERS, INCLUDING THEIR
OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS NOR THEIR SUBSIDIARIES, SHALL BE
LIABLE TO OR THROUGH THE LIBRARY FOR ANY INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST
REVENUE OR FAILURE TO REALIZE EXPECTED SAVINGS) SUSTAINED OR INCURRED IN
CONNECTION WITH THE PERFORMANCE OR NONPERFORMANCE OF WORK UNDER THIS
AGREEMENT AND ANY AMENDMENTS THERETO, OR THE PROVISION, USE OR
NEWPORT BEACH PUBLIC LIBRARY - PAGE 9
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OPERATION OF THE SYSTEM OR SERVICES PROVIDED OR SOLD HEREUNDER,
REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT SUCH DAMAGES ARE
FORESEEABLE;
THIS SECTION 17 SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDY.
18. INSURANCE
During the performance of this Agreement, DYNIX will maintain in full force and effect the following
insurance coverage:
A. Worker's Compensation
Full Worker's Compensation in full compliance with applicable State of California Statutes.
General Liability Insurance
DYNIX shall provide sufficient broad coverage to include:
General Liability Insurance
Personal Injury Liability
The amount of the policy shall he no less than $1,000,000 Single Limit per occurrence, issued by an
insurer licensed to do business within the State of California.
DYNIX will have a Certificate of Insurance completed and filed with the director of THE LIBRARY
within thirty (30) days of the execution of this Agreement. No cancellation, change in coverage, or
expiration by the insurance company or the insured shall occur during the term of this contract,
without thirty (30) days written notice to THE LIBRARY prior to the effective date of such
cancellation or change in coverage.
If DYNIX at any time during the term hereof should fail to secure or maintain the foregoing
insurance, the City of Newport Beach shall be permitted to obtain such insurance in DYNIX's name
or as an agent of DYNIX and shall he compensated by DYNIX for the costs of the insurance
premiums at the maximum rate permitted by law computed from the date written notice is received
that the premiums have been paid.
19. SYSTEM MODIFICATION
A. LIBRARY PARAMETERS
The System allows authorized library staff to change most parameters without programmer
intervention. These parameters may be modified by THE LIBRARY without consulting DYNIX at
any time. Library parameters include circulation rules, statistical category definitions, library hours,
passwords, and so on. The complete list is contained in the System Administrators Manual.
B. SOFTWARE ENHANCEMENTS AND NEW RELEASES
DYNIX may provide, from time to time as part of the Maintenance Agreement, modifications of the
construction and /or design of the Equipment and /or the Licensed Software. Should DYNIX change
the software capabilities beyond those required as part of this Agreement, it is the option of THE
LIBRARY to accept or reject the installation and use of the software changes. Should THE LIBRARY
NEWPORT BEACH PUBLIC LIBRARY - PAGE 10
March 4, 1994
choose to accept the new software, DYNIX will provide THE LIBRARY the necessary installation
software and THE LIBRARY shall be able to install the said modifications at their convenience.
DYNIX personnel will be available during normal business hours for consultation should THE
LIBRARY encounter difficulty installing the modifications. In the event that DYNIX provides such
modifications to THE LIBRARY, DYNIX shall supply documentation which shall be sufficient for
the use and operation of the System by THE LIBRARY. Should THE LIBRARY elect to install and
use the added software functions or capabilities, THE LIBRARY shall be responsible for the costs
associated with the purchase, installation and maintenance of the computer hardware necessary to
operate same. If THE LIBRARY does not elect to install and use the software functions or
capabilities, then such enhancements or improvements will not be required and DYNIX will continue
to provide hardware and software maintenance as prescribed in this Agreement for a period of at least
two (2) years. After such time THE LIBRARY may elect to continue maintenance under an
Agreement to be negotiated at that time. THE LIBRARY understands that all releases must be
installed separately and that new enhancements, and some bug fixes, are not made available without
accepting such releases.
20. MAINTENANCE
DYNIX and THE LIBRARY hereby enter into an agreement for maintenance of the System described in the
Maintenance Agreement attached hereto as Rider J for corrective, remedial, and preventive maintenance for
Equipment and Software.
21. LIBRARY RESPONSIBILITIES
THE LIBRARY will provide adequate and timely support or information with regard to its administrative,
operational and management procedures, and any data necessary to effectively complete installation or
implementation of the System. Once the installation has been completed, THE LIBRARY will manage and
operate the System.
22. FOREIGN COMPONENT INTERFACE
THE LIBRARY is hereby authorized to attach to the System equipment supplied by a vendor other than
DYNIX, provided said equipment consists of peripheral devices which will not adversely affect the operation
and performance of the System and DYNIX is notified in writing of such equipment. If requested, DYNIX
will consult with THE LIBRARY at DYNIX's then effective rates regarding the compatibility and
installation of the proposed equipment with the System.
23. ASSIGNMENT
No assignment of this Agreement or any right or interest herein either party by either party shall be effective
unless The other party shall first give its written consent to such assignment. The performance of the
Agreement by DYNIX is the essence of this Agreement. Notwithstanding, DYNIX tray, without THE
LIBRARY's consent, assign this Agreement to an affiliate or subsidiary of DYNIX or its parent corporation,
or assign its rights to receive payments hereunder.
24. NO WAIVER
No waiver of any breach of any term or condition of this Agreement shall be construed to waive any
subsequent breach of the same or any other term or condition of this Agreement.
NEWPORT BEACH PUBLIC LIBRARY - PAGE I1
March 4, 1994
7
P
25. FORCE MAJEURE
0
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, compliance with any Government taw or regulation, acts of God, acts of omission, fires,
strikes, lockouts, national disasters, wars, riots, transportation problems and /or any other cause whatsoever
beyond the reasonable control of the parties.
U. NOTICES
All notices given hereunder will be sent registered, certified or overnight delivery, addressed to the other
party at the addresses shown in the first paragraph of this Agreement or such other address as either party
may specify in writing.
27. PUBLICITY
DYNIX agrees to submit to THE LIBRARY all press releases, advertising, sales promotions, and other
publicity matters related to any product furnished by DYNIX to THE LIBRARY wherein THE LIBRARY's
name is mentioned, excluding the DYNIX customer list and newsletter. DYNIX shall not publish nor
knowingly permit to be published any such material without the prior written consent of THE LIBRARY.
28. SEVERABILITY
If any provision of this 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.
29. GOVERNING LAW
This Agreement shall be governed by the laws of the State of California.
30. NONDISCRIMINATION
Neither DYNIX, nor any officer, agent, employee, servant or subcontractor of DYNIX shall discriminate
in the treatment or employment of an individual or groups of individuals on the grounds of race, color,
religion, national origin, age, sex or disability unrelated to job performance, either directly, indirectly or
through contractual or other arrangements.
31. INDEPENDENT CONTRACTOR
DYNIX shall perform the services hereunder as an independent contractor and shall furnish such services
in its own manner and method, and under no circumstances or conditions shall any agent, servant or
employee of DYNIX be considered as an employee of THE LIBRARY.
NEWPORT BEACH PUBLIC LIBRARY - PAGE 12
March 4, 1994
• •
32. NON - APPROPRIATION OF FUNDS
This Agreement shall commence upon the day first provided herein and continue in full force and effect until
termination in accordance with its provisions. All parties will recognize that the continuation of any contract
after the close of any fiscal year of THE LIBRARY, which fiscal year ends on June 30 of each year, shall
be subject to budget approval providing for or covering such contract item as an expenditure in said budget.
THE LIBRARY does not represent that said budget item will be actually adopted, said determination being
the determination of the Newport Beach City Council at the time of the adoption of the budget herein. No
penalty shall accrue to THE LIBRARY in the event of this provision shall he excercised. THE LIBRARY
shall not terminate this contract under this Section in order to acquire similar EQUIPMENT or SOFTWARE
from a third party.
33. PRICE PROTECTION
THE LIBRARY shall have the option to purchase additional equipment and software based upon the prices
set forth in Rider N for a period of twenty four (24) months from the date of execution of this Agreement.
Any price reductions that occur before DYNIX orders equipment and software will be made available to
THE LIBRARY, which at its option may use this reduction in lieu of proposed prices.
34. VISTA SERVICES
DYNIX agrees to provide THE LIBRARY with the VISTA services as outlined in Rider O of this
Agreement for one (I) year from installation at the prices specified in Rider D, Schedule L VISTA access
shall be made available to THE LIBRARY prior to the completion of the Conversion Test assuming that
THE LIBRARY has completed all of its obligated tasks described hereunder.
THE LIBRARY is responsible for providing and installing the necessary hardware, outlined in Rider O, to
access VISTA via an Internet connection. THE LIBRARY agrees that if it has not installed the Internet -
required components prior to completion of the Conversion Test then the associated milestone payment
outlined on Rider F shall be due and payable.
35. AGREEMENT EXTENSION AND MODIFICATION CLAUSE
The Agreement may be modified or extended in accordance with the following procedures: In the event that
all parties to the Agreement agree that such changes would be of a minor and nonmaterial nature, such
changes may be effected by a written statement which describes the situation and is signed, prior to the
effectiveness, by both parties. In the- dverifdtat the changes are determined by either or both parties to the
Agreement to he of a major of complez`-natui ;:,then the change shall be by formal amendment of the
Agreement signed by the parties and made a permanent part of the Agreement.
36. NON - COLLUSION COVENANT
DYNIX hereby represents andragrees t6t.it has in.ito way entered into any contingent fee arrangement with
any firm or person concerning the4iiiinih6 o£xfiis Agreement with THE LIBRARY. DYNIX has received
from THE LIBRARY no incentive or sokial payments, or considerations not related to the provision of
automation systems and services described in this Agreement.
37. HEADINGS NOT CONTROLLING
Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part
of this Agreement.
NEWPORT BEACH PUBLIC LIBRARY - PAGE 13
March 4.1994
R
38. ENTIRE AGREEMENT
This Agreement, including the documents incorporated by reference, contains the entire understanding of
the parties hereto and neither it nor the rights and obligations hereunder may be changed, modified or waived
except by an instrument in writing signed by the parties hereto. In particular, this Agreement supersedes
all obligations which DYNIX has or THE LIBRARY believes DYNIX may have under an earlier Agreement
dated July 13, 1987, whereby DYNIX delivered similar software and services.
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 date first mentioned above.
WITNESSES:
DYNIX, I
Bv: -
Its: Vice President
Date: L
TH IT OF NEWPORT BEACH
NEWPORT BEACH PUBLIC LIBRARY - PAGE 14
March 4, 1994
RIDER A
SCHEDULE OF ACTIVITIES*
•
*Upon contract execution, THE LIBRARY and DYNIX will have fourteen (14) days to draft a preliminary
Schedule of Activities which will he met by DYNIX if THE LIBRARY meets its contractual obligations.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -1
March 4, 1994
fy
Party
Date to Finish
Responsible
Tasks
March 1994
JOINT
Contract execution
DYNIX
Certificate of insurance
THE LIBRARY
Prepare purchase order for equipment
THE LIBRARY
Prepare purchase order for supplies
DYNIX
Provide preinstAlation packet for conversions
DYNIX
Provide site specifications
March 6, 1994
THE LIBRARY
Provide specifications in construction drawings for computer
site
April 1, 1994
DYNIX
Approve site preparation plans
THE LIBRARY
Begin site preparation
May 31, 1994
THE LIBRARY
Complete site preparation
DYNIX
Deliver equipment
June 10, 1994
DYNIX
Install equipment
June 10, 1994
DYNIX
Hardware Functionality Test
DYNIX
Certify installation complete with installation invoice
DYNIX
Load software
June 17, 1994
DYNIX
Load or convert data tiles
JOINT
Train on system operations & troubleshooting
June 24, 1994
JOINT
Conversion Test
JOINT
Begin System Reliabilty Test
*Upon contract execution, THE LIBRARY and DYNIX will have fourteen (14) days to draft a preliminary
Schedule of Activities which will he met by DYNIX if THE LIBRARY meets its contractual obligations.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -1
March 4, 1994
fy
0
RIDER B
EQUIPMENT
11
TOTAL
OTY COMPONENT UNIT PRICE
CENTRAL SITE HARDWARE #7119
Hewlett Packard Model 800 G Class 17,000 17,000
Includes:
Model G30 48 Mhz PA -RISC SPU w/ 512K Cache
HP Precision Bus w/ four single high HP -PB slots
Integrated cabinet and power supply
32 MB ECC Memory
2 x RS232 Ports
SCSI Interface / Parallel Centronics Interface
566 MB Embedded Disk drive
2 -user HP -UX License
System Console w/ Cable
2.0 GB Embedded DDS Tape Drive
LAN /9000 Thin Coax Network Interface
Pre- loaded HP -UX 9.0 with 2 User License, TCP/IP Services
I
G30 Floating Point Coprocessor
1,500
1,500
1
Increase Main Memory to 128MB
21,600
21,600
1
Additional 32 MB of Memory
2,560
2,560
1
Delete Int. 566MB Disk
-2,200
-2,200
1
1.6 Meter Integrated Cabinet (32 EIA Units)
2,200
2,200
1
Add 2 x 2.OGB Disk Drive (4.006) / (Rack)
10,650
10,650
2
EIA -Unit Filler Panels (Package of 6)
25
50
1
SCSI Terminator
40
40
1
SCSI 2 Thumbscrew connection to SCSI 1
88
88
1
SCSI Cable .5m
49
49
1
16 Port RS -232 MUX Card
2,160
2,160
7
Terminal Server (16 Ports)
2,495
17,465
1
Concentrator (16 Ports)
995
995
8
Ethernet Transceiver
140
1,120
250
PCH 2 Cable
9
2,250
1
Delete Standard 2.OGB DDS DAT Tape Drive
-2,500
-2,500
I
Add 4.OGB DDS DAT Tape Drive (HH)
3,650
3,650
l
HP -UX Unlimited User License
13,525
13,525
I
Upgrade from 2 -User HP -UX License
-1,525
-1,525
I
HP -UX on DDS Tape w /documentation
525
525
125
UniVerse License (per port)
475
59,375
I
UniVerse Documentation
180
180
l
Report Generator
N/C
N/C
I
4201pm Impact Printer
8,717
8,717
l
RS -232C Interface for Printer
207
207
2
4mm 2.0 GB Data Cassettes Box of Five
95
190
l
Upgrade to Hewlett Packard Same Day Support
3,874
3,874
SUBTOTAL - Central Site Hardware $163,745
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -2
March 4, 1994
RIDER B
EOUIPMENT, Cont'd.
QTY COMPONENT
UNIT
583
558
804
365
795
795
40
1,950
TOTAL
PRICE
Existing
Existing
Existing
6,413
9,486
804
6,205
$22,908
795
2,385
160
3,900
$7,240
$193,893
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -3
March 4.1994
/0
PERIPHERALS
I
Electronic Notification System
3
Additional ENS Messages
I
ADA VIEW & VOICE
11
Dynix Circulation Terminal
17
Dynix PAC Terminal
I
Dataproducts 9030 Spine Label Printer
17
HP Deskjet 520 Printer
SUBTOTAL - Peripherals
TELECOMMUNICATIONS
I
Dynix Maintenance Modem
3
Dynix Dial -in Modem
4
15' Modem Cable
2
8 Channel Mux Card
SUBTOTAL - Telecommunications
EQUIPMENT TOTAL:
UNIT
583
558
804
365
795
795
40
1,950
TOTAL
PRICE
Existing
Existing
Existing
6,413
9,486
804
6,205
$22,908
795
2,385
160
3,900
$7,240
$193,893
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -3
March 4.1994
/0
•
2 MODULE
SOFTWARE
RIDER C
SOFTWARE
1 Cataloging w/ Authority Control
1 Circulation w/ Inventory
1 Public Access
1 Electronic Dictionary (American Heritage)
I Dial -in PAC
1 Acquisitions
1 Bibliographic Interface
1 Acquisitions /BISAC Interface
3 Add'I Branches (1,2,3)
2 Telxon 256KB Portable Backup (vI0.3)
I Report Generator
I Electronic Mail
122 Dynix Application User License
9
TOTAL
PRICE
8,000
8,000
8,000
1,500
1,000
15,000
Existing
Existing
Existing
Existing
N/C
N/C
54,900
TOTAL - Software $96,400
NEWPORT BEACH PUBLIC LIBRARY - PAGE R4
March 4, 1994
RIDER D
Schedule 1
DYNIX SERVICES AND SUPPLIES, PRICES
TOTAL
SERVICES AND SUPPLIES CHARGE
SERVICES
I Platform Migration and Training
6,500
l 1/2" Tape Drive Rental
1,000
I Systems Integration Services 1 -128 Users
- 39,000
1 System Installation /Shipping
5,308
VISTA
1 Vista One Time Setup Charge per Library #
- 1,000
15 Vista Concurrent Users (per user)
9,000
TOTAL - Services $61,808
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -5
March 4, 1994
•
:>ru»I:ae
Schedule 2
TRAINING SERVICES DETAIL*
•
TOPIC # DAYS TRIP
System Operation/Troubleshooting
.5 Installation
Charges noted on Rider D, Schedule 1 include all travel - related expenses.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R-6
March 4. 1994
G
RIDER D
Schedule 3
INSTALLATION SERVICES DETAIL
DESCRIPTION
r1
Onsite installation of computer listed on Rider B by DYNIX subcontractor for maintenance.
Installation of software modules specified in Rider C by DYNIX.
Transfer user accounts as follows:
I
Cataloging
4
Circulation
4
Public Access
1
Acquisitions
_
Serials
_
Reserve Book Room
1
Dial -in PAC
1
Bibliographic Interface
1
BISAC Interface
Installation of new user accounts as follows:
_ Cataloging
_ Circulation
_ Public Access
Upgrade Public Access to PAC Plus
Community Resource Files
_ Media Scheduling
_ Journal Citations
y
_ Reserve Book Room
_ Serials
_ Acquisitions
Bibliographic Interface
BISAC Interface
Dial -in PAC
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -7
March 4, 1994
12--
• i
RIDER D
Schedule 4
DATA LOAD
Conversion Data ($6,500)
-DYNIX will convert all library data files including: Bibliographic, Holdings, Patron records, transactions, PURF,
holds, track and all current indexes.
Tape Drive Rental ($1,000)
-DYNIX will supply a 112 inch tape drive during the conversion process to facilitate the transfer of THE
LIBRARY'S DYNIX data files from the old CPU to the new machine.
NEWPORT BEACH PUBLIC LIBRARY - PACE R -8
March 4, 1994
E
RIDER S
PRICE SUMMARY
RIDER
ITEM
B
Equipment
C
Software
D
Services and Supplies
TOTAL:
Hardware Turnkey Discount:
Existing Software Credit:
Additional Sole Source Discount:
GRAND TOTAL:
0
PRICE
193,893
96,400
61,808
$352,101
- 29,797
- 56,000
- 17,000
$249,304
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -9
March 4, 1994
/J
RIDER F
PAYMENT SCHEDULE AND CONTRACT MILESTONES
EVENT
Contract Signing
Completion of Hardware Functionality Test
Completion of Conversion Test and VISTA Connection
Completion of System Reliability Test*
TOTAL:
*to be completed within 180 days of Hardware Functionality Test
% PAYMENT AMOUNT
5 %
12,465
50 %
124,652
25 %
62,326
20 %
49,861
100% $249,304
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -10
March 4, 1994
RIDER G
PERFORMANCE STANDARDS
Table G -1: System Configuration
0
System
HP Model 800 G Class
Processor
Model G30 48 Mhz PA -RISC SPU w /512K Cache
Memory
160 MB
# users
125
Disk Storage
4.0 GB
OS Release
HP -UX
DYNIX Release
140
Table G -2: File Sizes and Indexes
FILE
Bibliographic Records
Copy /Item Records
Patron Records
In addition, the followine indexes are included:
Patron Name
Patron Barcode
Item Barcode
ISBNASSN
LCCN
OCLC Number
Music Publisher Number
Government Publication Number
American Heritage Dictionary
225.000
480,000
100,000
Title /Series Keyword
Title Alphabetical
Author Authority
Subject Keyword
Subject Authority
'Series Authority
Dewey Call Number
AV Call Number
NEWPORT BEACH PUBLIC LIBRARY- PAGER-t 1
March 4, 1994
0 0
Table G -3: Transaction Mix Table - Year 5
Table G -4: Response Time Table*
Charges
2.0 seconds
Per Hour
Per Hour
Transaction Type
Annual
Normal
Peak
Check -Out
1,600,000
450
1,115
Check -In
1,700,000
700
910
Titles Added/Changed
30,000
15
20
Items Added /Changed
50,000
20
45
Patrons Added /Changed
30,000
10
20
Reserves and Inter - Branch Loans
100,000
80
I50
Fine Processing
150,000
40
70
First Overdue Notices
50,000
batch
batch
Final Overdue Notices
15,000
batch
batch
Patron Record Queries
300,000
100
150
Catalog Searches
6,000,000
1,900
4,700
Purchase Orders
500
1
1
Titles Ordered
15,000
35
70
Table G -4: Response Time Table*
Charges
2.0 seconds
5.0 seconds
Discharges
3.0 seconds
5.0 seconds
New Titles Added or Changed
4.0 seconds
8.0 seconds
New Items Added or Changed
4.0 seconds
8.0 seconds
New Patrons Added or Changed
4.0 seconds
8.0 seconds
Acquisitions Records Added or Changed
4.0 seconds
8.0 seconds
Reserves Entered
3.0 seconds
8.0 seconds
Inter - Branch Loans
2.0 seconds
5.0 seconds
Fine Processing
3.0 seconds
6.0 seconds
Patron Queries
5.0 seconds
8.0 seconds
Exact Key Searches (e.g. Item Barcode,
Bibliographic ID Number)
2.0 seconds
4.0 seconds
Number or Indirect Searches
(e.g. LCCN, OCLClt, ISBN/ISSN)
3.0 seconds
6.0 seconds
Simple Catalog Searches
(List or Authority)
5.0 seconds
8.0 seconds
Complex Catalog Searches
(Keyword)
10.0 seconds
20.0 seconds
Renewals
2.0 seconds
5.0 seconds
Response Time between Types of Functions
3.0 seconds
5.0 seconds
* All 125 terminals /ports operating, performing all functions
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -12
Mamh 4. 1994
Response Time Test Procedures
(1) The Response Time Test is intended to demonstrate that the System is capable of meeting the
performance standards as defined in the Agreement, at user terminals under full -load conditions.
(2) A Response Time Test may be requested by THE LIBRARY anytime within five (5) years of the
completion of the Hardware Functionality Test as a means of verifying the performance standards.
The specific date shall be mutually arranged between THE LIBRARY and DYNIX, but in no case
shall the Test be scheduled later than forty -five (45) days following the receipt of written request for
the test.
(3) The Response Time Test will be performed with terminals allocated as normal library processes would
dictate or to specific functions as mutually agreed upon at the time of the test.
(4) System load defines the number of transactions being processed during a given time period. Average
response time under Normal and Peak loads will vary as shown in Table G -4 Response Time Table.
Normal Load is defined as the load on the System when processing transactions up to the level
specified in Table 0-3. The Normal Load is computed by dividing the annual transactions by the
number of operational hours.
Peak Load is defined as the load on the System when processing transactions at rates above Normal
Load up to the level shown in Table G -3 for Peak Load.
(5) The test may be performed for normal and /or peak load conditions. The transaction load on the
system may be achieved by actual library activities or scripting transactions at a rate to simulate either
load level.
(6) THE LIBRARY shall provide terminal operators and people acting as data recorders. The operators
shall perform the terminal functions and tally the number of transactions completed. The recorders
will clock and record the response times for each transaction at selected terminals.
(7) Each test shall last for at least 30 minutes. No test shall he deemed valid unless a minimum of 50
timings were performed at the selected terminals for each type of transaction.
(8) Both DYNIX and THE LIBRARY may provide inspectors to verify the accuracy of the activities of
the operators and the recorders.
(9) Prior to the commencement of the test, DYNIX shall provide, with the assistance of THE LIBRARY
personnel, such training as shall he necessary for the terminal operators and the recorders to perform
the activities herein described.
(10) Response time shall be the interval of time between the moment when the operator at a terminal
completes the input of a command or data by pushing the < return > key or by completing a label
scan, as applicable, and the commencement of meaningful response from the terminal indicating either
the result of the transaction or the readiness of the terminal to accept further data or the next
transaction.
(11) All records and logs made during the test shall he available for inspection by representatives of
DYNIX and THE LIBRARY during and after the test. At the end of the test, all the records and logs
are to he collected.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -13
March 4, 1994
0 0
(12) The response times for each type of function shall be computed separately. Transactions with multiple
steps shall include timings for each step.* The average response time is computed by summing the
response times for all steps for a given type of transaction and dividing the total by the number of
timings.
(13) The Response Time Test shall be successful if (1) the stated transaction throughput is achieved; (2)
all transactions complete (i.e. - -no hung terminals); and (3) the "normal " and "peak" response time
averages for each function do not exceed those stated in Table G -4 Response Time Table for the
appropriate load levels.
(14) DYNIX shall hear its own expenses for the performance of a warrantee Response Time Test if the test
is unsuccessful. In the event THE LIBRARY requests a Response Time Test and the test passes, THE
LIBRARY shall pay DYNIX's expenses.
* Each search shall consist of the following steps: (I) select search option, (2) enter request, (3)
review summary screen (if any), (4) review full bibliographic display, and (5) review holdings /status
displays. Boolean keyword searches shall exclude the top one percent most frequently occurring words
in the file. Any and all "stop words" will be included in the top one percent.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -14
March 4, 1994
•
RIDER H
Schedule I
HARDWARE FUNCTIONALITY TEST
0
PURPOSE:
The purpose of the Hardware Functionality Test is to ascertain that the Equipment supplied by DYNIX is installed
and operational.
TIMING:
The Hardware Functionality Test will be performed by the DYNIX installer immediately after successful
installation of sufficient Equipment to load THE LIBRARY's data and commence initial on -site training.
PERFORMED BY:
DYNIX personnel with observer., from THE LIBRARY,
TEST METHODOLOGY:
This examination will include the following tests as applicable for Equipment supplied by DYNIX then installed:
(a) Central Processing Unit(s) diagnostic test
(b) Memory unit(s) diagnostic test
(c) Disk storage /controller unit(s) diagnostic test. (Including the writing of a disk file, the reading of a
disk file, and the erasure of a disk tile.
(d) Magnetic tape drive units(s) diagnostic test. Including the writing of a file to tape, the reading of
a file from tape, and the erasure of a tape file.(
(e) Terminal unit(s) diagnostic test
(f) Printer unit(s) diagnostic test
(g) Telecommunications unit(s) diagnostic test
(h) Power loss /failure test
ACCEPTANCE:
The Equipment will be accepted and THE LIBRARY obligated to pay invoices as per Rider F when all of the
above tests are successfully completed.
REMEDIES:
In the event DYNIX is unable to pass the Hardware Functionality Test within forty -five (45) days of first
attempting the test, THE LIBRARY may, at its option:
(I) grant DYNIX further time to resolve the problem and accept the Equipment when all problems are resolved
and the lest is successfully passed; or
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -15
March 4, 1994
i6
•
(2) require DYNIX to provide an alternate equipment configuration capable of passing the test. THE LIBRARY
shall be the sole judge of whether the revised delivery and installation schedules are acceptable; or
(3) reject the System, declare DYNIX in breach of contract, and require DYNIX to refund all monies paid to
DYNIX by THE LIBRARY under this Agreement to date. DYNIX shall have the right to remove, at its
expense, all Equipment, Software and Supplies provided under this Agreement.
These remedies shall be THE LIBRARY's exclusive remedies in the event DYNIX is unable to pass the Hardware
Functionality Test within forty -five (45) days of first attempting the test.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -16
March 4, 1994
RIDER H
Schedule 2
MODULE FUNCTIONALITY TEST FOR NEW MODULES
PURPOSE:
The purpose of the Module Functionality Test is to verify that the required functional capabilities of the Software
have been delivered.
TIMING:
Testing will coincide with the implementation of the various modules and shall occur during the training session
for the module. For modules using tutorials instead of on site training, the test shall be completed or waived
within sixty (60) days of installation. Training and testing will not occur until after the Hardware Functionality
Test has been passed and sufficient software and data have been loaded to permit training and the test to be
effectively performed. Verification of the attached functional check lists will occur during the training sessions.
THE LIBRARY shall have an additional thirty (30) days to test additional functions related to the module(s) on
which training was received.
PERFORMED BY:
Library staff and DYNIX personnel.
TEST METHODOLOGY:
(1) Prior to training, THE LIBRARY shall designate one or more persons participating in the training session
who are authorized to initial acceptance of the functional checklists attached.
(2) During training THE LIBRARY shall initial the functional checklist for features observed and operational.
(3) Functions which do not operate properly shall be noted and reported in writing to DYNIX.
(4) THE LIBRARY shall have thirty (30) days from the completion of training for a module to verify other
functions which DYNIX documentation indicates the Software will perform and submit any exceptions to
DYNIX in writing.
(5) DYNIX shall clarify and resolve all reported problems within thirty (30) days of receipt of report. Within
seven (7) days of receipt of notice of resolution from DYNIX, THE LIBRARY shall retest the function and
confirm that the function has or has not been resolved.
(6) DYNIX and THE LIBRARY agree that not all aspects of the software are reasonably testable in the time
frame given (e.g. "two -year cumulative statistics ") and that certain aspects (e.g. "user friendliness ") are
subjective. Untestable features or aspects of the Software shall not prevent the Module Functionality Test
from being accepted.
ACCEPTANCE:
The Module Functionality Test for a given module will be successfully completed and THE LIBRARY obligated
to pay invoices as per Rider F when:
(1) Each function of the appropriate functional checklist is operational, and
(2) Each problem properly reported in the thirty (30) day additional lest period has been resolved.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -17
March 4, 1994
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In the event that DYNIX receives no notice regarding non - functioning items within thirty (30) days of completion
of training, then the Module Functionality Test will be deemed to have been successfully completed and THE
LIBRARY shall pay the appropriate invoices. The foregoing does not relieve DYNIX of any obligation to make
operational each function as per the warranties of Section 9.B.3. of this Agreement or the terms of the Maintenance
Agreement in Rider 1, Section S.B. The thirty (30) day period will only be extended due to reasons of force
majeure or to the extent that the System is down according to the System Reliability Test during the Module
Functionality Test.
REMEDIES:
In the event that DYNIX is unable to provide software to pass the Module Functionality Test within ninety (90)
days of commencing the test, THE LIBRARY may, at its option:
(1) grant DYNIX further time to resolve the problem and accept the test when resolutions are satisfactorily
reached; or
(2) accept the Software as is and upon negotiating satisfactory terms pay the appropriate invoices; or
(3) during the first twelve (12) months following installation, reject the.System and require DYNIX to refund
monies paid to DYNIX to date by THE LIBRARY. DYNIX shall have the right to remove, at its expense,
all Equipment, Software and Supplies provided under this Agreement.
These remedies shall be THE LIBRARY's exclusive remedies in the event DYNIX is ratable to pass any Module
Functionality Test within ninety (90) days of commencing the test.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -I8
March 4, 1994
E
RIDER H
Schedule 3
CONVERSION TEST
PURPOSE:
The purpose of the Conversion Test is to demonstrate and verify that THE LIBRARY'S data files, transaction files,
Licensed Software and DYNIX maintained peripherals have been properly implemented onto the new system.
TIMING:
This test will commence upon the first day of on -line operation on the new system.
PERFORMED BY:
THE LIBRARY Staff.
TEST METHODOLOGY:
(1) Test shall run for five (5) days and may he overlapped with other tests.
(2) THE LIBRARY staff shall sample the data tiles to ensure that data from the old system has been correctly
and completely transferred. LIBRARY Staff may select up to 100 records from each of the following files
to validate:
-BIB
- HOLDINGS
- PATRON
- CIRC.OUT
-BIB. HOLDS
-PURF
- VENDOR
-ORDER
- AUTHORITY tiles
- parameter files such as CODES, CRECS, etc.
The above tiles are to be transferred if they exist on the old system.
(3) LIBRARY Staff shall check the proper functioning of terminals, light pens, lasers, telecommunications and
other peripheral equipment.
(4) LIBRARY staff shall: Run day end, start TAP, and print reports.
(5) Any problems shall be reported promptly to DYNIX.
(6) DYNIX shall devote immediate and concerted efforts to resolve verified problems.
(7) THE LIBRARY shall have five (5) days from the commencement of the test to verify functions in accordance
with the relevant DYNIX documentation for the transferred licensed Software and notify DYNIX of any
discrepancies.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -19
March 4.1994
f �.
ACCEPTANCE:
The Conversion test shall be successfully completed and THE LIBRARY obligated to pay invoices as per Rider
F when:
(1) The five (5) test days have passed and THE LIBRARY reports no problems; or
(2) Any verified problems have been resolved.
REMEDIES:
In the event that DYNIX is unable to pass the Conversion Test within thirty (30) days of commencing the test,
THE LIBRARY may, at its option:
(I) grant DYNIX further time to resolve the problem and accept the test when resolutions are satisfactorily
reached; or
(2) accept the System as is and upon negotiating satisfactory terms pay the appropriate invoices; or
(3) Reject the new System and require DYNIX to refund monies paid to DYNIX to date by THE LIBRARY
under this amendment. DYNIX shall have the right to remove, at its expense, all Equipment, Software and
Supplies provided under this Agreement
These remedies shall be THE LIBRARY's exclusive remedies in the event DYNIX is unable to pass the Conversion
Test within thirty (30) days of the first day of online operation of the new system.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -20
March 4, 1994
RIDER H
Schedule 4
SYSTEM RELIABILITY TEST
•
PURPOSE:
The purpose of the System Reliability Test is to demonstrate and verify that the system operates at a 98%o reliability
level for an extended period of time.
TIMING:
This test will begin upon completion of the Hardware Functionality Test.
PERFORMED BY:
Library staff.
TEST METHODOLOGY:
(1) The System is defined as all newly purchased hardware (Rider B) and all.software (Rider Q installed and
maintained by DYNIX to date.
(2) Within a total test period of ninety (90) days, a successful performance period of thirty (30) days must be
completed. The total test period and the successful performance period are calendar days, excluding
holidays.
(3) This test may be overlapped with other testing procedures.
(4) The System must be available for ninety -eight percent (984'%) of THE LIBRARY's operational hours.
(5) THE LIBRARY may stop and restart the test, and the time during which the test has been stopped at THE
LIBRARY's option shall not count as downtime nor as part of the performance or test period. In no event
shall such interruption(s) of the test extend beyond a total of five (5) days per test.
(6) THE LIBRARY and DYNIX will each maintain an operations log. Each downtime occurrence, as defined
below, shall be measured, calculated, and logged separately into the operations log.
(7) Downtime is defined as the amount of time between the moment DYNIX is notified of the occurrence and
the moment that the outage is successfully resolved during both THE LIBRARY's operational hours and the
hours THE LIBRARY is covered by a DYNIX Maintenance Agreement.
Not to be counted as downtime:
- holidays
- other times when THE LIBRARY is officially closed
- times when THE LIBRARY has not contracted for maintenance coverage
- all scheduled preventative maintenance downtime
- downtime due to power failures
- downtime due to improper environmental conditions
- downtime due to THE LIBRARY's staff (operator) error
- outages which do not affect Library operations or System performance
- outages for which on site spares are available
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -21
March 4, 1994
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(8) All downtime shall be measured by rounding to the nearest increment of 6 minutes. At the conclusion of
each downtime period, the downtime value resulting from each occurrence will be computed to arrive at the
total amount of downtime. Under no circumstances shall a downtime coefficient value of more than 1.0
be used in calculating the minutes of downtime.
(A) The formula for calculating each occurrence of downtime is as follows:
(d) = downtime coefficient value
(m) = number of minutes of downtime
(t) = total downtime [for that occurrence]
FORMULA (t) = (d) x (m)
(B) The downtime coefficient value shall he assigned according to the following table:
Hardware Maior Outage:
1.00 --
Central processing unit
1.00 --
Disk drive(s) controller
1.00 --
Port Controllers
1.00 --
Main memory
Hardware Minor Outage: (each device)
0.05 --
Terminals
0.05--
Optical scanning device
0.50--
Line printer
0.50--
Tape drive
0.10--
Portable optical reader /terminal
0.50--
Modems /MUX
0.05--
Any other vendor supplied equipment
Software Mador Outage:
1.00--
Checkout
1.00--
Checkin
1.00--
Bibliographic file update
1.00 --
Patron file update
1.00--
Item file update
1.00--
Hold
1.00--
Fine payment
1.00 --
Patron name inquiry
1.00--
OPAC title inquiry
Software Minor Outage: (per function)
0.50 -- Authority file update
0.50-- Receiving items in Acquisitions or Serials
0.50-- Cataloging items in Media Scheduling
0.50-- Ordering items
0.50-- Adding reserve items
0,25-- Updating funds
0.25-- Claiming
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -22
March 4. 1994
0
0
Any software functions not specifically identified above will not be included in the downtime
calculation until they remain uncorrected for a period of 16 scheduled business hours. At that time,
they will automatically carry a coefficient value of 0. 10.
Only those items purchased in this Agreement and covered by Dynix maintenance shall be considered
in downtime calculations.
(9) In the event that at any time during the test the cumulative downtime exceeds the allowable two percent (2%)
for the entire test, the test shall automatically restart at the point the problem has been solved. THE
LIBRARY shall notify DYNIX in writing within seven (7) days of the date the System Reliability Test is
restarted. Notification shall include a copy of the log.
ACCEPTANCE:
The System Reliability Test shall be successfully completed when the System has run thirty (30) days with ninety-
eight percent (98 %) or greater uptime. If no notice of downtime is received by DYNIX within forty (40) days
of the commencement or restart of the test, the test shall be deemed successful. Upon successful completion of
the System Reliability Test, THE LIBRARY shall pay appropriate invoices as per Rider F.
REMEDIES:
In the event that DYNIX is unable to successfully complete the test within the total test period, THE LIBRARY
may, at its option:
(1) require that DYNIX replace any of the components under DYNIX warranty or maintenance which have
caused the test to fail. Any and all costs associated with said replacements shall be home by DYNIX. The
test shall not be restarted until said replacements have been made; or
(2) reject the System during the Warranty period, declare DYNIX in breach of contract, and require DYNIX
to refund all monies paid to DYNIX by THE LIBRARY under this Agreement to date. DYNIX shall have
the right to remove, at its expense, all Equipment, Software and Supplies provided under this Agreement.
These remedies shall be THE LIBRARY's exclusive remedies in the event DYNIX is unable to pass the System
Reliability Test within the total test period.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -23
March 4, 1994
RIDER 1
ADDITIONAL FUNCTIONAL CAPABILITIES
This page left blank intentionally.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -24
March 4, 1994
RIDER J
MAINTENANCE AGREEMENT
1. PROVISIONS FOR MAINTENANCE SERVICES
n
DYNIX agrees to furnish, as specified herein, services to maintain the Equipment and Software described
below as the "System" and THE LIBRARY hereby purchases maintenance service for the System upon the
terms and conditions set forth herein.
Newly purchased peripherals have a one year warranty. Newly purchased peripherals may be added to THE
LIBRARY's 60/40 Maintenance Plan or the Sparing Maintenance Plan, if appropriate. THE LIBRARY
should contact the DYNIX Contract Maintenance Department to add new peripherals.
2. TERM
This Maintenance Agreement shall commence on the effective date of this contract and shall continue for a
period of one (1) year. The Maintenance Agreement may he automatically renewed through Q years) by
THE LIBRARY by paying the appropriate maintenance fees.
3. SUBCONTRACTORS
DYNIX hereby accepts full responsibility for the obligations outlined by this Agreement. THE LIBRARY
agrees that DYNIX may sub - contract some or all of the performance of its duties provided for herein,
provided that THE LIBRARY approves of the sub - contractor.
4. DIAGNOSIS OF PROBLEMS
DYNIX shall maintain technical personnel stationed at its Provo, Utah facility for purposes of providing a
telephone customer service to report problems and discuss questions about operations. For diagnosis of
problems, DYNIX technical personnel shall be able to dial THE LIBRARY's CPU directly. DYNIX technical
staff will use its best efforts to respond to each reported problem within four hours.
5. MAINTENANCE RESPONSIBILITIES
A. Maintenance on CPU Hardware
(1) Items included are detailed in Exhibit A of the Agreement.
(2) Unscheduled on -site remedial maintenance shall be performed after notification that equipment
is inoperative or malfunctioning. DYNIX shall provide THE LIBRARY with a designated
point of contact and shall make arrangements to enable maintenance personnel to receive such
notification.
(3) Unscheduled on -site remedial maintenance for equipment shall be provided during the following
hours:
MON -FRI SAM -5PM Pacific Time
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -25
March 4, 1994
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THE LIBRARY may change or extend the hours of maintenance coverage upon mutual
agreement with DYNIX.
(4) Holidays excluded from unscheduled on -site remedial maintenance service include:
New Year's Day
Good Friday
Memorial Day
Independence Day
Labor Day
Thanksgiving Day
Friday after Thanksgiving Day
Christmas Eve
Christmas Day
New Year's Eve (1 /2 day)
(5) All parts necessary for unscheduled on -site remedial maintenance shall be furnished at no
additional charge to THE LIBRARY, on an exchange basis. Only new parts or refurbished,
like -new parts shall he used.
(6) Charges for CPU Hardware Maintenance shall begin one (1) year following installation
(7) THE LIBRARY must provide DYNIX within (90) days notice of its intent to cancel all or any
portions of its CPU maintenance.
(8) Charges for UniVerse shall begin one year following installation.
(9) Ultimate .requires 90 days' notice to cancel maintenance. If there is any remaining prepaid
maintenance fee at the end of the Ultimate maintenance contract, this money will be applied
to other maintenance fees to he paid by THE LIBRARY.
B. Maintenance on Licensed Software
(1) Products covered are detailed in Exhibit B.
(2) DYNIX will provide all fixes, minor enhancements, releases, or upgrades to the Licensed
Software at no additional charge to THE LIBRARY. Such fixes, minor enhancements,
releases, or upgrades shall be provided with all appropriate documentation for successful
installation and implementation.
(3) DYNIX shall provide corrections to the Licensed Software at no additional cost to THE
LIBRARY for any error, malfunction, or defect which causes the Licensed Software to fail to
perform in accordance with functional specifications contractually guaranteed by DYNIX except
as provided for in paragraph 7 below.
(4) Unscheduled Software maintenance and library consultations shall he provided during the
following hours:
MON -THU 7AM -9PM Mountain Time
FRI 7AM -6PM Mountain Time
(5) Holidays excluded from unscheduled Software maintenance service include:
New Year's Day
President's Day
Easter
Memorial Day
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -26
March 4, 1994
• •
Independence Day
Pioneer Day, July 24
Labor Day
Thanksgiving= Day
Friday after Thanksgiving Day
Christmas Eve
Christmas Day
(6) DYNIX shall provide assistance for emergency problems at all other hours including weekends
and holidays. Emergency assistance is limited to work in correcting problems which prevent
successful operation of major required functions as listed in Rider H, Schedule 2 (8) Software
Ma or and Minor Outages.
(7) DYNIX shall have no obligation to provide assistance in correcting errors or problems arising
in connection with any modifications or alterations to the Licensed Software which have been
made by or on behalf of THE LIBRARY without DYNIX's express written consent.
(8) THE LIBRARY may request that DYNIX perform standard services such as maintenance or
installations of new Software releases during times outside those identified in paragraph (4)
above. The performance of regular services outside normal hours is called "discretionary
services" and will be billed at the then published rate for the time required to perform such
services.
(9) Charges for maintenance on newly installed software modules shall commence ninety (90) days
after THE LIBRARY has received training on that module or, for modules without training,
ninety (90) days after installation.
(10) Charges for maintenance on modules installed on THE LIBRARY's previous system are to take
effect upon completion of the conversion test.
C. Maintenance on Terminals and Peripheral Devices (60/40 Plan)
(1) Items covered are detailed in Exhibit C.
(2) Maintenance for terminals or peripherals may be terminated by either party on the anniversary
of the contract. Maintenance may continue for all items originally covered or either party may
discontinue maintenance for specific pieces of Equipment.
(3) If a piece of Equipment malfunctions, THE LIBRARY contacts DYNIX fora "Return Materials
Authorization Number" (RMA #). THE LIBRARY then ships the equipment, at its expense,
to a DYNIX - designated repair center. The item is repaired and returned to THE LIBRARY
at DYNIX's expense.
(4) THE LIBRARY may, at its option, request a loaner unit for the item in repair. When a unit
is sent to THE LIBRARY, THE LIBRARY may use it until THE LIBRARY's equipment is
returned. The purchase price of the unit will be invoiced to THE LIBRARY. When the loaner
unit is returned the invoice will be credited in full and an invoice for the loaner fee and freight
will be issued.
(5) Equipment abused, physically or otherwise, is not covered by the maintenance contract and the
full cost of repairs will be home by THE LIBRARY.
(6) At the end of each year the total amount paid to DYNIX for maintenance is reduced by any
repair debits as per Exhibit C. DYNIX will credit THE LIBRARY with sixty (60) percent of
the balance.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -27
March 4, 1994
i 2.
! •
(7) The remaining credit may be used for any hardware, services, workshops, or training purchase
from DYNIX any time within three (3) years after the close of the maintenance year.
(8) In the event that repair debits for a given year exceed the amount of maintenance paid, THE
LIBRARY shall receive no maintenance credit for the year. No additional maintenance charges
shall be assessed, nor will credits held from previous years (if any) be reduced.
(9) If maintenance on peripherals is allowed to lapse, or if THE LIBRARY wishes to cover used
equipment not previously covered, DYNIX will assess a one -time charge equal to the repair
debit before accepting the item for coverage.
(10) Maintenance charges on newly added peripherals begin one year following the successful
completion of the Hardware Functionality Test.
D. Maintenance of Terminals and Peripherals (Sparing Plan)
(l) Items covered are detailed in Exhibit D.
(2) Maintenance for terminals or peripherals may be terminated by either party on the anniversary
of the contract. Maintenance may continue for all items originally covered or either party may
discontinue maintenance for specific pieces of Equipment.
(3) DYNIX will provide Spares to be housed at THE LIBRARY. Spares remain the property of
DYNIX. DYNIX may vary the quantity as required.
(4) When a piece of Equipment owned by THE LIBRARY malfunctions, THE LIBRARY places
a Spare in operation in its place. Within one (l) day THE LIBRARY must contact DYNIX
for problem diagnosis and, if necessary, a "Return Materials Authorization Number' (RMA#).
THE LIBRARY ships the equipment, at its expense, to a DYNIX - designated location. DYNIX
shall pay return shipping to THE LIBRARY. When THE LIBRARY receives the repaired
equipment hack, it must put it back into operation and return the Spare to storage within five
(5) working days.
(5) If a Spare malfunctions, DYNIX will repair it or replace it at its option. The cost for all
shipping and repairs associated with malfunctioning Spares shall be home by DYNIX.
(6) THE LIBRARY is responsible for storing the Spares and for all risk of loss.
(7) Equipment abused, physically or otherwise, is not covered by the maintenance contract and the
full cost of repairs will be home by THE LIBRARY.
(8) In the event all Spares are in use and THE LIBRARY requires additional units, DYNIX shall
express ship additional units at its expense to THE LIBRARY.
(9) DYNIX will be the sole determinant of whether THE LIBRARY has sufficient quantities of
equipment to justify sparing.
(10) Unlike the 60140 Maintenance Plan, no credit is given for "unused maintenance."
(11) THE LIBRARY shall not use Spares for other than substitution of malfunctioning equipment
as defined in this Section C. DYNIX reserves the right to inspect the Spares from time to time
to see that they are secure and properly used.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R - ?a
Mamh 4, 1994
(12) In the event DYNIX finds that THE LIBRARY is making unauthorized use of spares, it may
cancel the program and require THE LIBRARY to purchase all Spares in its possession at the
published price for comparable new equipment.
(13) If maintenance on peripherals is allowed to lapse, or if THE LIBRARY wishes to cover used
equipment not previously covered, DYNIX may assess a one -time charge equal to the repair
debit before accepting the item for coverage.
(14) Maintenance charges on newly added peripherals begin one year following the successful
completion of the Hardware Functionality Test.
E. Telecommunications Maintenance Plan (TMP)
(l) Maintenance fees for the telecommunication equipment have been listed in Exhibit E. Figures
shown are based on annual prepayment
(2) Participants in the Telecommunications Maintenance Plan must have at least three (3) sites
linked to the central site by a network. All telecommunication equipment which is eligible for
maintenance by DYNIX must be covered under the Telecommunications Maintenance Plan.
Non - maintained components included in the network may be repaired on a time- and - materials
basis.
(3) THE LIBRARY shall contact DYNIX support services to report any telecommunications
problems. After diagnosing the problem, DYNIX shall supply an RMA (Return Materials
Authorization) number. No equipment may be returned to DYNIX without this number.
(4) THE LIBRARY shall ship the defective piece to the address supplied by DYNIX.
(S) DYNIX reserves the right to replace the unit with an equivalent unit when repair is impractical.
(6) DYNIX shall not be responsible for the repair or replacement of any items which have been
subject to misuse or abuse.
(7) Shipping charges to the repair site shall be borne by THE LIBRARY. Shipping charges to
THE LIBRARY shall be borne by DYNIX.
(8) Loaner equipment is available for selected items. When THE LIBRARY's unit has been
repaired, it shall be shipped to THE LIBRARY and THE LIBRARY shall return the loaner
unit. The loaner fee and shipment costs are the responsibility of THE LIBRARY.
(9) THE LIBRARY may elect to rent spares from DYNIX for on -site storage. All spares remain
the property of Dynix and the rental fees shall be added to the annual maintenance price. THE
LIBRARY must commit to rent the spares from DYNIX fora minimum of three (3) years.
DYNIX may charge a penalty for early withdrawal from this portion of this agreement.
(10) If THE LIBRARY elects not to rent spares from DYNIX, any purchased network pieces listed
on the Optional Spares List which malfunction shall not he included in any System Reliability
Test calculations.
(11) There will be no 60140 credit.
(12) DYNIX shall adjust the maintenance fees annually to reflect the costs of maintaining THE
LIBRARY's network. Maintenance on any item may be discontinued by DYNIX on the
anniversary of the agreement. THE LIBRARY may discontinue the entire agreement on the
anniversary of the agreement and subject to the terms expressed in 9 above.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -29
Menh 4, 1994
'73
•
(13) All telecommunications equipment has a one (1) year warranty. Maintenance charges shall
begin one (1) year following the successful completion of the Hardware Functionality Test.
Consolidated Peripheral Maintenance (CPM)
(1) All peripherals used with the System which can be maintained by DYNIX must be covered
under a DYNIX maintenance program in order to place eligible items on CPM maintenance.
Items listed on Exhibit F can he placed on the CPM program. Items not purchased from
DYNIX or are not currently covered by a DYNIX maintenance program must be certified as
operational and in good working order by DYNIX before they can be covered under a DYNIX
maintenance program.
(2) The CPM maintenance fees for the equipment THE LIBRARY has purchased are summarized
on Exhibit F. Figures shown are based on annual prepayment.
(3) For every five (5) items, or a remainder less than five (5) items, covered under CPM
maintenance, DYNIX shall repair one (1) item during the maintenance year. The total number
of annual repairs allowed is shown at the bottom of Exhibit F.
(4) If more than the allowable number of items require repair during the maintenance year, THE
LIBRARY shall include a purchase order with the equipment when it is returned to DYNIX.
Standard repair charges are shown in the repair column of Exhibit F.
(5) When a piece of equipment malfunctions, THE LIBRARY shall contact DYNIX for diagnosis.
If it is necessary to return the equipment to DYNIX, DYNIX shall issue THE LIBRARY an
RMA (Return Materials Authorization) number. This number shall be clearly identified on the
package. No equipment shall be returned without an RMA number.
(6) Substitute equipment is available to THE LIBRARY upon request without charge while
equipment is being repaired. DYNIX shall pay the shipping fees to ship the substitute
equipment to THE LIBRARY by second day air. Return shipping costs for the substitute
equipment are the responsibility of THE LIBRARY.
(7) Dynix shall return the equipment to THE LIBRARY when it has been repaired.
(8) Shipping charges to DYNIX for equipment sent in for repair shall be borne by THE
LIBRARY. Shipping for the return of the equipment to THE LIBRARY shall be home by
DYNIX.
(9) DYNIX shall not be responsible for the repair or replacement of any items which have been
subject to misuse or abuse.
(10) DYNIX reserves to right to replace the unit with an equivalent unit should repair prove
impractical.
(11) There are no 60140 credits.
(12) Maintenance may he discontinued by either party on the anniversary of this agreement.
Notification of price changes will be included in the DYNIX U. S. Add -On Price List 90 days
before the renewal date of this agreement.
(13) All newly added peripherals sold by DYNIX have a one (1) year warranty from the date of
installation.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -30
Match 4, 1994
S
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CONDITIONS OF DYNIX'S OBLIGATIONS
All maintenance services of any nature rendered by DYNIX hereunder shall be limited to the System and
shall be contingent upon THE LIBRARY's proper use of the System in the application for which the System
was intended.
ONGOING RELIABILITY TEST
(1) The maintenance services provided hereunder shall serve to make the Central Site hardware and
peripherals purchased in this Agreement, and the licensed software available at least ninety -eight
percent (98%) of the time required by THE LIBRARY.
(2) The ongoing reliability test will begin upon completion of the initial test (Rider H, Schedule 4) and,
thereafter, will run for ninety (90) calendar day periods. The System is defined as all hardware and
software then covered by this Maintenance Agreement.
(3) The test shall follow the procedures set forth in Rider H, Schedule 4 under Test Methodology steps
4 through 8.
(4) In the event the total downtime for any test period exceeds the allowable two percent (2%), a remedy
of reduced maintenance payment is available. THE LIBRARY must submit a copy of the operations
log within thirty (30) days for verification along with a request for reduced maintenance payments.
(5) The maintenance paid for the 90 -day test period is the base used to obtain the amount of the remedy.
This amount is calculated as ten percent (10 %) of the base for every one percent (190) that the
allowable downtime is exceeded. This amount is then subtracted from the next maintenance payment.
In no event shall the reduced maintenance payment for the ninety (90) day test period be less than $0.
OBLIGATIONS OF THE LIBRARY
A. THE LIBRARY shall be responsible for maintaining a sufficient staff to handle normal day - today
operation and support for the System, including but not limited to such tasks as back -ups and report
handling. It is acknowledged and understood [hat the maintenance and support service to be provided
by DYNIX hereunder is not intended to supplant THE LIBRARY's day - today operation and support
for the System.
B. THE LIBRARY shall provide DYNIX full and free access to each item of Equipment to allow
DYNIX to provide maintenance service thereon and a suitable place in which to perform such service
shall be made available to DYNIX. THE LIBRARY shall provide DYNIX all access to the System
which DYNIX believes is necessary or desirable for the performance of any unscheduled on -site
remedial maintenance services. A designated representative of THE LIBRARY shall be in the
building whenever DYNIX personnel are present.
THE LIBRARY shall provide suitable environmental conditions, including space, heat, light,
ventilation, cooling, electrical power, current and grounding, and the like for the System to be
maintained properly hereunder.
D. THE LIBRARY shall not perform, nor attempt to perform, or cause to be performed, maintenance
or repair to the Equipment or Licensed Software covered hereunder during the. term of this
Maintenance Agreement except with the prior written or oral approval of DYNIX.
THE LIBRARY shall be responsible for maintaining: (1) a telephone within operational reach of the
central equipment; (2) an auto - answer, MNP -level 5 error correction, 9600 baud modem attached to
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -31
March 4, 1994
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0 6
a port for the exclusive use of DYN IX; and (3) a dedicated 'outside" phone line for the above modem
to be used in dial -up diagnostics and maintenance. The cost of procuring and maintaining this line
in good operating condition shall be borne by THE LIBRARY.
CHARGES AND PAYMENTS
A. The maintenance charges outlined on Exhibit A, B, C and D of this Maintenance Agreement are due
and payable by THE LIBRARY at the start of each maintenance period.
Maintenance charges may be pro -rated at the single annual payment rate for the first year ending on
the first anniversary of the effective date of this Maintenance Agreement or THE LIBRARY's fiscal
year.
B. Charges for on -site remedial maintenance provided other than during the hours of contracted
maintenance or for other services which are not included in the monthly maintenance charges are due
and payable thirty (30) days from the date of invoice.
C. There shall be no additional maintenance charge for:
(1) Unscheduled on -site maintenance begun during the contracted hours of maintenance and
extending one hour beyond.
(2) Travel expenses or per diem expenses.
(3) Time spent by maintenance personnel after arrival at the site awaiting the arrival of additional
maintenance personnel and /or delivery of parts, tools, or other required material after a service
call has commenced.
(4) Unscheduled on -site remedial maintenance required when the scheduled preventive maintenance
preceding the malfunction has not been performed.
(5) Unless otherwise specified herein, cost of transportation, rigging and drayage whenever
equipment is shipped for remedying mechanical problems unless the replacement was due to
a cause specified as a Library responsibility.
D. The LIBRARY shall give DYNIX at least sixty (60) days written notice of intention to move the
System central site equipment (or any portion thereof covered by this Agreement) from the installation
site(s) first set forth above or any subsequent relocation site as approved by DYNIX. If the System
(or any portion thereof) is moved without the express approval of DYNIX, it shall not continue to
he maintained by DYNIX under this Agreement. This does not apply to terminals, wands, lasers, and
slave printers.
NEWPORT BEACH PUBLIC LIBRARY • PAGE R -32
March 4, 1994
CPU HARDWARE RATES
EQUIPMENT ANNUAL CHARGE
1 Hewlett Packard Model 800 G Class 1,615
Includes:
Model G30 48 Mhz PA -RISC SPU w/ 5I2K Cache
HP Precision Bus w/ four single high HP -PB slots
Integrated cabinet and power supply
32 MB ECC Memory
2 x RS232 Ports
SCSI Interface / Parallel Centronics Interface
566 MB Embedded Disk drive
2 -user HP -UX License
System Console w/ Cable
2.0 GB Embedded DDS Tape Drive
LAN /9000 Thin Coax Network Interface
Pre - loaded HP -UX 9.0 with 2 User License, TCP /IP Services
I
G30 Floating Point Coprocessor
1
Increase Main Memory to 128MB
I
Additional 32 MB of Memory
1
Delete Int. 566MB Disk
1
1.6 Meter Integrated Cabinet (32 EIA Units)
I
Add 2 x 2.OGB Disk Drive (4.OGB) / (Rack)
1,012
2
EIA -Unit Filler Panels (Package of 6)
1
SCSI Terminator
1
SCSI 2 Thumbscrew connection to SCSI I
1
SCSI Cable .5m
1
l6 Port RS -232 MUX Card
205
7
Terminal Server (16 Ports)
2,793
1
Concentrator (16 Ports)
159
8
Ethernet Transceiver
176
250
PCH 2 Cable
1
Delete Standard 2.OGB DDS DAT Tape Drive
I
Add 4.OGB DDS DAT Tape Drive (HH)
347
1
HP -UX Unlimited User License
1,285
l
Upgrade from 2 -User HP -UX License
1
HP -UX on DDS Tape w /documentation
50
125
UniVerse License (per port)
7,125
1
Report Generator
1
4201pm Impact Printer
828
1
RS -232C Interface for Printer
2
4mm 2.0 GB Data Cassettes Box of Five
Upgrade to Hewlett Packard Same Day Support
TOTAL
$15,595
Maintenance prices are based on quarterly prepayment.
Local maintenance on the UPS to be provided by THE LIBRARY.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -33
March 4, 1994
Z.S
• r
EXHIBIT B
SOFTWARE MAINTENANCE RATES
MODULE ANNUAL CHARGE
TOTAL 15,527
NOTE: Maintenance charges may he pro -rate) at the single annual payment rate for the first year ending on the
first anniversary of the effective date of this Maintenance Agreement.
New releases will be delivered on 4mm media.
Maintenance prices are based on quarterly prepayment.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -34
March 4, 1994
Cataloging w/ Authority Control
800
l
Circulation w/ Inventory
800
1
Public Access
800
1
Dial -in PAC
120
1
Acquisitions
1,500
1
Bibliographic Interface
400
1
Acquisitions /BISAC Interface
400
3
Add'l Branches (1,2,3)
360
2
Telxon 256KB Portable Backup (v10.3)
504
1
Report Generator
N/C
I
Electronic Mail
N/C
122
Dynix Application User License
5,490
1
Systems Integration Services
3,900
2
PC Back -up
288
1
Electronic Dictionary (American Heritage)
65
1
Vista Setup Charge per Library
100
TOTAL 15,527
NOTE: Maintenance charges may he pro -rate) at the single annual payment rate for the first year ending on the
first anniversary of the effective date of this Maintenance Agreement.
New releases will be delivered on 4mm media.
Maintenance prices are based on quarterly prepayment.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -34
March 4, 1994
EXHIBIT C
60/40 PLAN
TOTAL: $12,835
*This is NOT an additional charge to THE LIBRARY for each repair. It is simply the amount deducted from the
total maintenance paid before computing THE LIBRARY's credit.
Maintenance charges are based on quarterly prepayment.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -35
March 4, 1994
z6
REPAIR*
LOANER
ANNUAL
#OF
ANNUAL
EQUIPMENT
DEBIT
UNIT
CHARGE
UNITS
TOTAL
Terminals
139
55
96
61
5,856
Wyse 30 /Dynix PAC
168
55
96
Dial PAC Microcom Modem215
60
48
3
144
Microcom Modem
215
60
48
3
144
Maintenance Modem
155
60
48
1
48
8 Channel + Mux
536
250
204
5
1,020
Intermec Light Pen
190
90
96
Laser Scanner
400
185
180
HP ThinkJet Printer
120
65
72
18
1,296
HP Deskjet Printer
120
65
72
1
72
PC Workstation
250
264
Symbol Tech Laser
180
14
2,520
Spine Label Printer
72
1
72
Metrologic MS -700
Project Scanner
TBD
7
TBD
Electronic Notification
System
1,260
1
1,260
Additional ENS Messages
63
1
63
ADA -VIEW
1,632
170
1
170
ADA -VOICE
1,606
170
1
170
TOTAL: $12,835
*This is NOT an additional charge to THE LIBRARY for each repair. It is simply the amount deducted from the
total maintenance paid before computing THE LIBRARY's credit.
Maintenance charges are based on quarterly prepayment.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -35
March 4, 1994
z6
31r1x[ati
TAXES
L
THE LIBRARY represents that it is subject to taxation. THE LIBRARY will be responsible for paying all
applicable taxes and remitting them directly to the State Board of Equalization under permit number SU Eaa 24
3000021.
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -36
March 4, 1994
RIDER L
SOURCE CODE ESCROW AGREEMENT
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -37
Match 4. 1994
2 7
0 0
DSI DEPOSIT AGREEMENT
Account Number 0425005 -OPOO?
This Deposit h2reesent is effective this 18th day of duly
1991 . by and between Data Securities International. Inc.
('DSI') a Delaware corporation and riv"jv ('Licensor').
Notices to Licensor should be seat tog
Licensor:
Addresss
Designatad --
Representative:
Phones
All contracts. deposit materials and notices to DSS-must be sent
to:
Data Securities International: Inc.
Attns Contract Administration
GIGS Greenwich Drive, #220
San Diego, CA 92122
(419) 457 -5199 _
WHEREAS. Licensor has or will enter into a contracts) with a
person(s) or a corporations) ('Licensee(:)') for -the use of
proprietary technology and other aaterialsg
WHEREAS, availability of or access to certain proprietary data
related to the proprietary technology and other materials is
critical to certain Licensees in the conduct at their business
WHEREAS. Licensor has deposited with DES the related proprietary
data to provide for retention and controlled access for certain
Licansees under certain conditions,
NOWTNERElORE, for good and valuable Consideration, the receipt
of which is hereby acknowledgeds and IS consideration of the
promises, mutual Covenants and Conditions Contained herein. the
parties hereto agree as follows
Pane 1 VMDA87 /v?
• ARTICLE 1 •
curren
!!Heads of Material. The Deposit consists of all material
tly supplied to DSI as specified by an accompanying
document ealled•a "Description of Deposit Katerials" hereinafter
referred to as Exhibit B(s). Licensor represents that it is
lawfully possessed of all deposit materials- stored under this
Agreement and has the authority to store them in accordance with
the terms thereof.
Deposit Chances. Pursuant to this Agreement. Addenda or Exhibits
incorporated herein. the Licensor has the option to update the
Deposit with supplemental or replacement materials to maintain
the currency of the deposit materials. Upon acceptance of any
deposit change DSI shall acknowledge same to Licensor by issuing
a signed copy of the Exhibit S(s).
Supplemental Depesit. The Supplemental Deposit Will include any
■ aterials added to the Deposit. Licensor will submit the
Supplemental Deposit accompanied by an Exhibit B(s).
Replacement of existing Desesi-t.- Replacement materials replace
the complete existing Deposit. Licensor will submit the
Replacement materials accompanied by an Exhibit B(s).
Deposit Tnspeetion. Upon receipt of an Exhibit B. GSI will -
visually match the listed Items on the Exhibit B to the labeling
Of the _material ('Deposit Inspection'). DS2 will not be
responsible for verifying the contents or for validating the
accuracy, of Licensor "s labeling. Acceptance will occur when DSI
concludes that the Deposit Inspeetioa is complete.
ARTICLE 2
Registered eensee. Lieensor.'and only Licensor., may enroll
certain Licausee.(s), participating user(s). as Registered
Licensee(s) to this Agreement. Licensor must submit to DSI a
'Participating User Licensee Registration Document', hereinafter
referred to as an Exhibit A. for each Licensee to be Registered
under this Agreement. DSI shall issue to the Registered Licensee
a Licensee registration packet including a copy of _Exhibit A.
Participating User Agreement, to be executed by the Registered
Licensee.
Sher L ±eensees. DS2 shall have no obligation to aay Licensee or
other third party of Licensor except Registered' Licensees
accepted by DSI9 to the extent provided in a writing signed by
DSi. DS2 shall have the right to modify or cancel this Agreement
without the consent of any third party unless expressly
prohibited trom doing so by an agreement signed by DSI.
Page 2
VKDAE7/
ARTICLE 3
astablisn a receptacle in which it shall place thi
shall put the receptacle under the control of one c
officers, selected by'DSI, whose identity shall be
Licensor at all times. DSI shall exercise that high
in carrying out the terms of this Agreement as DSI
protect items of this nature which DSI might own.
Y
DSI agrees to
i Deposit and
r more of its
available to
level of care
would use to
DSI understands (i) that Licensor claims that Deposit contains
information that is trade secrets of itself and (ii) that Deposit
is intended to constitute items useful to persons reasonably
skilled in computer technology for providing maintenance support
for. computer software programs Licensor licensed to its Registered
Licensaes, in the event that any of these Registered Licensees
becomes entitled to receive it.
DSI shall bear no obligation or -responsibility whatsoever, to
determine the completeness or accuracy of the Deposit or whether
what is deposited is or is not proprietary data as contemplated
herein.
ARTICLE a
Term of Agreement. This Agreement will have an initial term of one-
year. This Agreement may be renewed for additional one -year
periods upon receipt by DSI of the specified renewal toss prior to
the last day of the term (expiration date)..In the event that the
renewal fees are not received within thirty (30) days before the
expiration date, - DSI shall so notify Licensor and all Registered
Licensees of the thirty (30) day expiration period. If the renewal
fees are not received within the subsequent thirty (30) days, DSI
may tarminata this Agreement without further notice and without
liability to any other party.
obligations of Dram-renewal to Licensor, and A all duties
will
terminate. It Licensor requests the return of the Deposit, DSI
shall return the Deposit to Licensor only after the deposit return
fee is paid. If the deposit return fee is not received by the
anniversary date of this Agreement (termination day), DSI may
destroy the Deposit.
Fxein. of Registered LAeensee. Licensor may rawest DSI to
terminate a Registered Licensee separate from termination of this
Deposit Agreement by notice to DSI or by Licensor *s non - payment of
the annual renewal fee for -that Registered Licensee.
Page 3 DIv21VMU7 /v4 /nOS
ARTICLE 6
F +�ina For release et Denos +t by Reaist.r..� Licensee If DSI is
notified by a Registered Licensee o! the occurrence of a release
condition as defined in Article 7, and includes at that time the
filing for release fee, DSI shall so notify Licensor at the last
known address by certified mail with a copy of the notice from the
Registered Licensee. If Licensor provides contrary instruction, as
defined in this Article within fifteen (15) working days of the
mailing of the notice to Licensor, DSI shall not deliver a copy of
the Deposit to the Registered Licensee who is filing for the
release of .the Deposit.
Contrary instruction for the purpose of this article means, the
filing of an affidavit or declaration with DSI by an officer of
Licensor stating that a Release Condition has not occurred, or has
been cured. DSI will send a copy of the affidavit or declaration
by certified mail to the Registered Licensee who is filing for the
release of the Deposit materials. upon receipt of contrary
instruction, DSI shall not deliver a copy of the Deposit and shall
continue -to store the Deposit until otherwise directed by
Registered Licensee and Licensor jointly, or until resolution of
the dispute by a court of competent jurisdiction.
In the event that DSI does not receive contrary instruction DSI is
authorized to release a copy of the entire Deposit to the
Registered Licensee requesting the release. Release processing
tees will be paid by the Registered Licensee. DSI may duplicate
the Deposit only as necessary to preserve and safely store the
Deposit, and to provide copies thereof, as authorized herein, to
Registered Licensee.
- ARTICLE 7
Licensor's failure, without cause on the Registered Licensee's
part, to furnish the Registered Licensee with maintenance support
to the extent provided for in the applicable maintenance
agreement with Licensor.
Page 4
DIv2 1VMU7 /v4 /SOS
a9
ARTICLE 8
Nee - Disclosure.' Except as provided in-this Agreement, DSI agrees
that it shall net divulge, disclose, make available to third
parties, nor make any use whatsoever of the Deposit. or any
information provided to it by Lieansor in connection with this
Agreement or Exhibits, without the express written consent of-
Licensor.
ARTICLE 9
Indemnification. Licensor agrees to defend and indemnify DSI and
hold DSI harmless from and against any and all -claims, actions
and suits, and from and against any and all liabilities. losses,
damages, costs, charges, penalties, counsel fees, and other
expenses of any nature (including, without limitation, settlement
costs) incurred by D31 on account of any act or omission of D5I
In respect to or with regard to this Agreement except as
specified in Articles 3 and 5 herein.
ARTZCLZ is
Audit Riehz —� DS1 agrees
act- "Lies undertaken and.
Agreement. Licensor will be
normal business hours and
the tern of this Agreement t,
respect to this Agreement.
'to keep written records of the
materials prepared pursuant to this
entitled at reasonable times during
upon reasonable notice to DSI during
D inspect the records of DSI with
Licensor will be entitled. upon reasonable notice to DSI and
_during normal business hours, at the facilities designated by
DSI. accompanied by a designated employee of DSI, to inspect the
physical status and condition of the Deposit: The status of the
Deposit may not be changed by Licensor during the audit..
ARTICLE 11
Designated Remresentative.
individual to receive not
Licensor with respect to the
set forth in this Agreement
event of any change from
another.
Licensor agrees to designate one
Laos from DSZ and to act on behalf of
performance of its obligations as
and to notify 052 immediately in the
one designated representative to
Pace 5 VRDAs"?
• ARTICLE 12 •
General— DSI may act
instruments or.. signature
that any person giving any
instruction in connection
been duly authorized to do
in reliance upon any instruction,
believed to be genuine and may assume
written notice* request, advice or
with or relating to this Agreement has
so.
This Agreement will be governed by. and construed in accordance
with the laws Of the Commonwealth of Massachusetts.
This Agreement, including the Exhibits and Addenda hereto
constitutes the entire Agreement betweef the parties' concerning
the subject matter hereof. and will supersede all previous
communications, repro sentations .understandings, and agreements.
- either.oral.or written, between the parties.
If any provision of this Agreement is held by any court to be
invalid or unenforceable. that- provision will be severed from
phis Agreement and the remaining provisions will continue in full
force. -
ARTICLE 13
LOSS, All service teas will be due In full at the -time of the
request tar service. Renewal foes will be due in Lull upon the
receipt of invoice unless otherwise specified by the invoice.
Par the purpose of annual renewal fees the effective dot* of this
Agreement will be the anniversary data. Poem for this - Deposit
Agreement will be paid within sixty (60) days of execution of
this Agreement or this Agreement will be automatically
terminated. Fees tar other service requests must be paid within
sixty (60) days or such service will be automatically
terminated.
All service tees and annual renewal fees will be thow --specified
in DSI's schedule of tees in effect at the tine of renewal, or
request for service, except as otherwise agreed. Per any
Increase in DST's - standard fees. DSI shall notify Licensor at
least ninety ") days prior to any remowai of this . Agreement.
Tor any service not listed on the .schedule of tees. DSI shall
provide a quote prior to rendering such service.
DYNIX
By%
Page 6
Data Securities
International..Ine.
. W,
�� /mot �- rirtele
AA (print name)
TiLlee�1l��r l�— �Cl��' .�r�✓ =Coe
3(�
VMDA67Iv
• i
RIDER M
OPERATING SYSTEM LICENSE
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -38
March 4, 1994
U" I ,
i
RIDER M
LICENSE FEE DESIGNATED SYSTEM
As listed in Rider B HP Model 800 G Class
UNIVERSE SOFTWARE AGREEMENT
This Agreement is entered into by and between Dvnix. Inc. (the
DISTRIBUTOR) located at 400 West Dvnix Drive Provo, Utah 84604,
and the Newport Beach Public Library (The LICENSEE) located at 856
San Clemente Drive, Newport Beach, California 92660. DISTRIBUTOR
agrees to license certain software (UNIVERSE SOFTWARE) provided by
VMARK Software, Inc. (the SUPPLIER) to LICENSEE for the internal
use of LICENSEE. The LICENSEE agrees to be bound by the terms of
the sublicense herein granted.
SUB - LICENSE OF OPERATING SYSTEM
1. DISTRIBUTOR hereby grants LICENSEE a personal non - exclusive,
non - transferrable license to use and to copy in machine
readable form the UNIVERSE SOFTWARE provided by DISTRIBUTOR on
a single identified Central Processing Unit (CPU) solely for
LICENSEE's own use for its internal data processing operating
on equipment purchased from or approved in writing by DISTRIB-
UTOR. "UNIVERSE SOFTWARE" as used herein means system
software, utility programs, routines, related documentation
and media. If the designated CPU becomes temporarily inopera-
tive, LICENSEE may use the Software on a back -up CPU until
operable status is restored.
LICENSEE'S OBLIGATIONS
LICENSEE shall:
(a) pay the DISTRIBUTOR the license fee set forth herein:
(b) agree that title to all rights and interest in UNIVERSE
SOFTWARE, wherever resident and in whatever media
(except only the right to use pursuant to the license
herein granted) remains with DISTRIBUTOR's SUPPLIER;
(c) install within six months of issuance and the notifica-
tion by DISTRIBUTOR of its availability the latest
releases of the UNIVERSE SOFTWARE which is offered by
DISTRIBUTOR;
(d) not make any copies of any UNIVERSE SOFTWARE except as
necessary in connection with the rights granted hereun-
• 0
der, and shall reproduce and include any copyright and
proprietary notice included on the original copy on all
such copies of the UNIVERSE SOFTWARE and mark all media
containing such copies with a warning that such UNIVERSE
SOFTWARE is subject to restrictions contained in a
license between DISTRIBUTOR and its suppliers and that
such UNIVERSE SOFTWARE is the property of the SUPPLIER;
(e) not export or transmit UNIVERSE SOFTWARE to any country
foreign to the United States;
(f) not reverse compile or disassemble the UNIVERSE SOFT-
WARE;
(g) take appropriate action, by instruction, agreement or
otherwise regarding all persons permitted access to the
UNIVERSE SOFTWARE so as to enable LICENSEE to satisfy
its obligations under this license;
(h) treat the UNIVERSE SOFTWARE as confidential information
which is proprietary to DISTRIBUTOR's SUPPLIER by not
making any part thereof available to others;
(i) shall use the UNIVERSE SOFTWARE only on the designated
system;
(j) shall promptly return to DISTRIBUTOR the UNIVERSE SOFT-
WARE and all materials associated with the UNIVERSE
SOFTWARE upon termination of this License. This License
will terminate upon LICENSEE's surrender of the UNIVERSE
SOFTWARE and all materials associated therewith or upon
DISTRIBUTOR's giving LICENSEE written notice of
LICENSEE's violation of one or more of the conditions of
thiss license;
3. LIMITATION OF LIABILITY
Distributor OR ITS Supplier SHALL IN NO EVENT BE LIABLE TO
Licensee OR TO ANY OTHER ENTITY WHICH OBTAINS FROM Licensee OR
USES THE UNIVERSE SOFTWARE SUPPLIED UNDER THIS AGREEMENT FOR
ANY CLAIM FOR INDIRECT, SPECIAL,. RELIANCE, INCIDENTAL OR
CONSEQUENTIAL LOSSES, DAMAGES OR EXPENSES ARISING OUT OF THIS
AGREEMENT OR ANY OBLIGATION RESULTING THEREFROM OR THE USE OR
PERFORMANCE OF THE UNIVERSE SOFTWARE, WHETHER IN AN ACTION
BASED ON BREACH OF WARRANTY (EXPRESS OR IMPLIED), BREACH OF
CONTRACT, DELAY, NEGLIGENCE (ACTIVE OR PASSIVE), STRICT TORT
LIABILITY OR OTHERWISE. Distributor OR ITS Supplier'S ENTIRE
LIABILITY FOR ANY CLAIM ARISING FROM ANY CAUSE WHATSOEVER,
EXCEPTING PERSONAL INJURY AND INFRINGEMENT, (WHETHER FOR
UNIVERSE SOFTWARE DELIVERED OR NOT DELIVERED, INCLUDING BUT
NOT LIMITED TO THE MANUFACTURE, SALE, DELIVERY, RESALE,
REPAIR, IN OR OUT OF WARRANTY, USE OR ANY. INABILITY TO USE THE
UNIVERSE SOFTWARE, SEPARATELY OR IN COMBINATION WITH ANY OTHER
GOODS OR EQUIPMENT) SHALL IN NO EVENT EXCEED THE LOWER OF THE
l �
REPAIR OR REPLACEMENT COST OR PURCHASE PRICE OF THE UNIVERSE
SOFTWARE WHICH DIRECTLY GIVES RISE TO THE CLAIM. IF UNIVERSE
SOFTWARE IS NOT INVOLVED, SUCH ENTIRE LIABILITY SHALL NOT
EXCEED $100,000 PER INCIDENT. NO ACTION OR PROCEEDING AGAINST
Distributor OR ITS Supplier MAY BE COMMENCED MORE THAN TWO
YEARS AFTER THE UNIVERSE SOFTWARE IS SHIPPED OR THE CAUSE OF
ACTION OTHERWISE ARISES. THIS CLAUSE SHALL SURVIVE THE
FAILURE OF ANY EXCLUSIVE REMEDY.
4. INFRINGEMENT
4.1 DISTRIBUTOR or its SUPPLIER shall defend any claim, suit
or proceeding brought against LICENSEE so far as it is
based on a claim that the use or transfer of the UNI-
VERSE SOFTWARE and related material delivered hereunder
constitutes an infringement of a United States patent or
copyright or trade secret, so long as DISTRIBUTOR or its
SUPPLIER is notified promptly in writing by LICENSEE as
to any such action and is given full authority, informa-
tion and assistance (at DISTRIBUTOR or its SUPPLIER's
expense) for the defense of any such claim or proceed-
ing. DISTRIBUTOR or its SUPPLIER shall pay all damages
and costs awarded therein against LICENSEE but shall not
be responsible for any compromise made without its
consent. In the event of a final judgment which prohib-
its LICENSEE's continued use of the UNIVERSE SOFTWARE.by
reason of infringement of a United States Patent or
copyright, or if at any time DISTRIBUTOR or its SUPPLIER
is of the opinion that the UNIVERSE SOFTWARE is likely
to become the cause of an action for infringement of a
United States patent or copyright; DISTRIBUTOR or its
SUPPLIER shall, at its sole option and at its expense,
either obtain the rights to continued use of UNIVERSE
SOFTWARE, replace or modify UNIVERSE SOFTWARE so that it
is no longer infringing.
4.2 LICENSEE shall indemnify and hold harmless DISTRIBUTOR
or its SUPPLIER from any loss, cost, or expense suffered
or incurred in connection with any claim, suit or
.�Ytioeeding brought against DISTRIBUTOR or its SUPPLIER
so, fir as it is based on a claim that the UNIVERSE
SOFTWARE modified, altered or combined by LICENSEE with
any equipment, device or software not supplied by
DISTRI$ii!rOR or its SUPPLIER hereunder constitutes such
infrngement because of such modification, alteration
bombnation.
5. WARRANTY-
5.1 DISTRIBUTOR or its SUPPLIER warrants that the UNIVERSE
SOFTWARE, when shipped will conform to its then current
published specification for UNIVERSE SOFTWARE on comput-
er systems set forth in said specifications. In the
event that the UNIVERSE SOFTWARE does not so conform and
3 z
LICENSEE notifies DISTRIBUTOR or its SUPPLIER in writing
within ninety (90) days from the date of shipment, then
DISTRIBUTOR or its SUPPLIER shall at its option, either
correct the defect or replace the UNIVERSE SOFTWARE with
a conforming copy.
5.2 EXCEPT FOR THE WARRANTIES SET FORTH HEREIN IN THIS
PARAGRAPH 5.1 ABOVE, Distributor OR ITS Supplier DIS-
CLAIMS ALL WARRANTIES WITH REGARD TO THE UNIVERSE
SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANT-
ABILITY AND FITNESS FOR A PARTICULAR PURPOSE; and the
stated express written warranties are in lieu of all
obligations or liabilities on the part of DISTRIBUTOR or
its SUPPLIER for damages, including but not limited to
special, indirect or consequential damages arising out
of or in connection with the use or performance thereof.
LICENSEE agrees that the sublicense Agreement may be enforced
directly by VMARK Software, Inc.
IN WITNESS WHEREOF, THE PARTIES HEREUNTO EXECUTED THIS AGREEMENT:
DISTRI71e251t.4
BY:
TITLE: Vice President
DATE:
�: • i
s
RIDER N
PRICE PROTECTION
0
QTY
MODULE
PURCHASE PRICE
I
Serials Control
$15,000
1
CPU Gateways
3,500
1
Community Resources
5,000
1 -9
Kid's Catalog*
500 /ea.
10 -49
Kid's Catalog **
475/ea.
50+
Kid's Catalog
450/ea.
1
Telecirc (2 lines)
19,500
1
Self Check -out Unit
20,450
1 Software Licensim_
1,200
1
Homebound
5,000
1
Journal Citation (per loader program)
5,000
1
Additional Loader from same source
500
Receipt Printer Software#
(Based on the number of Circulation accounts)
License Price
Annual Maint.
1
500
75
2 -5
1,000
150
6 -10
1,500
225
11 -25
2,500
375
* One time installation per system $750
* *On -site installation (per day) $1,500
NEWPORT BEACH PUBLIC LIBRARY - PAGE R -39
March 4, 1994
33
r1
►�J
RIDER O
VISTA SERVICES
Internet Connection Hardware
Router I Serial & I Enet
AUI to Thin Net Transceiver
3500 CSU /DSU
Cable 10' DB25M - DB50
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NEWPORT BEACH PUBLIC LIBRARY - PAGE R -40
Momh 4.1994
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VISTA AGREEMENT
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This agreement is made between Dynix, Inc. and the customer profiled below. It is subject to the terms and conditions
described on the back of this sheet, and it is bound by the customer's signature at the bottom.
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FIRST NAMf
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AREA cool iEFPHONE
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STAT59R 10E
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COUNTRY ZIe903TAL CODE
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LAST NAME
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PRE
❑
Other (Specify Below)
ORGANIZATgN
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School lK -121
❑ Library
OWARTMENt
-
❑ Other (Specify Below)
PRIAURY General BUshm Social
INTEREST El Reference ❑ Information ❑ Sciences
Health
❑ Sciences
❑ Technical ❑ Consumer
CITY
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STAT59R 10E
I I I I I I I 1 1! I I I I
COUNTRY ZIe903TAL CODE
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77
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1 I EA I E 1 IFM B i l l
USERS
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Please in the of concurrent users per month you will make available.
TA%EXEAIVT NUMBER
I I I I I I I I I
This n m may be changed
This numbs maybe changed on a quarterly basis. Billing will be quarterly.
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1- brarian/Infwmatlon
PROFESSION ❑ Professional
❑ Business
❑ Education
Scientist/
❑ Researcher
❑
Other (Specify Below)
TYPE OF Public Cw%ate or Academic
ORGANIZATION ❑ Library ❑ Special Library ❑ Library
School lK -121
❑ Library
Personal Government
❑ Use ❑ Agency
-
❑ Other (Specify Below)
PRIAURY General BUshm Social
INTEREST El Reference ❑ Information ❑ Sciences
Health
❑ Sciences
❑ Technical ❑ Consumer
❑
Other (Specify Below)
WHERE OID YM
LEARNAROUTURAt ❑ colleague ❑ Mailing
❑ Advertisement
❑ Publication:
Professional
❑Meetings ❑ Exhibition
❑
Other (Specify Below)
IF YOU MARKED THE - OTHER' BOX FOR ANY
-
Of THE ABOVE, PLEASE SPECIFY HERE.
Dynix • 400 Dynix Drive • Provo, UT 84604 -5650 • (801) 223 -5200 • (801) 223 -5202 (FAX)
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TERMS AND CONDITIONS
As used herein, "Dynix" means Dynix, Inc., a Utah corporation. Dynix and The Library agree that the following standard terms and conditions shall
apply to the purchase of vista services by The Library from Dynix.
1. Dynix Responsibilities. Dynix agrees to provide to The Library access to databases which The Library has licensed through a database provider.
Such service shall be provided up to the point of connection by a third party telecommunications carrier of The Library's choosing. Dynix shall
provide access codes, passwords, and other data through which The Library shall connect to the Vista system. Dynix shall provide information to
The Library regarding the parameters for access software and the configuration of terminals.
2. Library Responsibilities. The Library shall anange for the purchase, installation, configuration and maintenance of all computers, terminals,
telecommunications equipment, and data lines necessary to connect to the Vista computer. Documentation from Dynix which aids The Library in
the use of the Vista system shall be included in the set-up price.
3. Licensing Agreements. The Library shall sign licensing agreements with third party database providers or as otherwise provided by Dynix. Dynix
shall receive evidence of such databases. With verification from the database provider Dynix will extend access to additional databases.
4. Term of Agrednarl The term of this agreement shall be one year. The agreement shall be renewed automatically by The Library paying the appro.
priate fees. This agreement may be canceled by either party with ninety (90) days notice.
S. Changes to the Number of Concurrent Users. Rates are based on the number of concurrent users to which The Library has subscribed during a
quarter. The Library may modify its number of concurrent users by notifying Dynix at least three (3) waking days prior to the beginning of each
calendar quarter, which begin on January 1, April 1, July 1, and October 1.
6. Payment. Dynix shall bill The Library at the beginning of each calendar quarter, OR semiannually or annually. Payment terms are net 30 days.
7. Taxes. The Library agrees to pay or reimburse Dynix for any federal, state, and local taxes, charges and assessments imposed a based upon the
products and services sold, provided that The Library shall not be responsible for the payment of Dynix's income taxes or taxes, charges, and
assessments in regard to Dynix's employees.
8. SupporL Dynix support staff shall be available during normal business hours, 8 a.m. to 5 p.m. Mountain Time, Monday through Friday, to respond
to questions regarding the databases or access. Such support shall l not extend to data communications or equipment at The Library site. Dynix will
use hs.best efforts to respond to reported problems within four (4) waking hours of notification. Clients will receive at least two (2) days advance
notice of scheduled downtime.
9. Availability. Vista is available seven (7) days a week, twenty -four (24) hours a day. System upgrades will be scheduled and the Library will be notified
in advance. Dynix agrees to make its best efforts to conduct these upgrades during business fours, not to exceed twenty -four (24) hours per month.
10. Proprietary Information. The Library shall consider all licensed software, access codes, parameters and passwords as confidential and proprietary
information of Dynix. No portion of any software, access codes, parameters or passwords may be disclosed, furnished, transferred or otherwise
made available by The Library to any person except those of its employees who need such information in accordance with this agreement. Any
breach in confidentiality must be immediately reported to Dynix. Information contained in the databases is the property of the database provider.
As such, no data shall be reproduced, duplicated or transmitted in printed a machine readable form other than temporarily for the purposes of
producing a single, non - reproducible copy.
11. Warranties. Dynix warrants that it has agreements with the database providers to provide access to the database providers' licensed clients.
NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PUR-
POSE, ARE MADE BY DYNIX.
12. Limitation of Liability. Dynix's liability on any claims for damages, losses or expenses arising out of this agreement shall be limited to direct dam-
ages and shall not exceed the purchase price.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER DYNIX ITS AFFILIATES, SUBSIDIARIES, PARENT CORPO-
RATION, ANY OF ITS PARENT CORPORATIONS, AFFILIATES.OR SUBSIDIARIES, INCLUDING THEIR OFFICERS, DIRECTORS, EMPLOYEES
OR AGENTS, NOR DYNIX SUPPLIERS, INCLUDING THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS NOR THEIR SUBSIDIARIES,
SHALL BE LIABLE TO OR THROUGH THE LIBRARY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT
NOT LIMITED TO LOST PROFITS, LOST REVENUE OR FAILURE TO REALIZE EXPECTED SAVINGS) SUSTAINED OR INCURRED IN CONNEC-
TION WITH THE PERFORMANCE OR NONPERFORMANCE OF WORK UNDER THIS AGREEMENT AND ANY AMENDMENTS THERETO, OR
THE PROVISION, USE OR OPERATION OF THE SYSTEM OR SERVICES PROVIDED OR SOLD HEREUNDER, REGARDLESS OF THE FORM OF
ACTION AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.
THIS SECTION 11 SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDY.
13. Assignment No assignment of this Agreement or any right or interest herein by either party shall be effective unless the other party shall first give
its written consent to such assignment. The performance of the Agreement by Dynix is the essence of this Agreement. Notwithstanding, Dynix may,
without The Library's consent, assign this Agreement to an affiliate or subsidiary of Dynix or its parent corporation, or assign its rights to receive
payments hereunder.
14. General. This agreement contains the entire understanding of the parties hereto and neither it nor the rights and obligations hereunder may be
changed, modified, or waived except by an instrument in writing signed by the parties hereto.
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B. MODULE FUNCTIONALITY TEST(S) - (FOR NEW MODUl" ONLY)
The purpose cf the Module Functionality Test is to verity that the NgWftd flmctlemal capabilities of
the Software have been delivered. The test will be performed as set forth in Rider lI, Schedule 2,
C. CONVERSION TBST
The purpose of the ConverAva Testis to de esonatnde and verify elms THE LIBItAR rs date filar will
be properly loaded. This test will be psefixmed upon the lot day of online operation en"now
aystom. Tho teat will be performed ae eat forth in Rider H, Schedule 3-
D. SYSTEM RELIABILITY TEST - PILOT OPERATION
The purpose of the System Reliability Test is to dentonstrate and verify that the System operates at
a "% reliability love) for an extended period of time, This last may overlap other tests. The test will
be performed as sat forth in hider H. Schedule 4.
9, WARRANTY
A• PERFORMANCE LEVELS
DYNIX warrants that the System pmvidad pursuant to this Agrasrnent will least or eaoeod oho
performsece standatds npseified in Rider G at lho activity levels and data etorego capacity levels
described dwrein. In the event that the System fails to perform at tho levels specified any rims
within five (5) years attar dw installation of tba System, DYNIX will provide at so additimal cost
to M T.TBRARY additional hardware and software necessary to bring the System into compliance
with theca requirement within 120 plays after written notificatim to DYNIX by M LIBRARY of
such failure.
Pailure of DYNIX to respond to such notice will result in damages being sustained by THE
LIBRARY, it being impractical or extremely difficult to determine the exact amount of damages in
the event of such failure by DYNIX to bring the system into compliance, it is agreed by the parties
hereto that the sum of three hundred dollars ($300) per day for oath consecutive calendar day beyond
the 120 days after written notification of failure, that DYNIX faits to bring the system into compliance
shall be paid M THE LIBRARY. The lolal amount of damages %hull not exceed ft coat of the
system.
B. OTHER WARRANTIES
I. DYNIX wwrormu that .DYNIX has the right to li¢anse th 4 Software and to nett the Equipment
which is dese:ribad in Ridam R and C of this Agreement.
2. DYNIX warrants that THE LIBRARY shall acquire good and clear title to the Equipmeat
putchased hereunder, free and clear of all liens and encumbrances.
3. DYNIX warrants that the Software delivered will comply with the functions defined by the
Docunwntation.
4. DYNIX warrants that all of the Equipment described in Rider B will be delivered now and not
as "usul" Subsequent equipment purchases shall, be provided as new equipmeatmoless the Blot
that equipmem baq been used tws bout discloso'il to THE LIBRARY and THE LIBRARY leas
given its written couseur.
NEWT BEACH PUBLIC LTRWY - PAGE 4
March a, 1994
P.02