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CONTRACT 2235 Service Agreement CLOSEDCONTRACT '2235 THIS AGREEMENT is made this � th day of 1993 BETWEEN INNOVATIVE INTERFACES, INC., a company incorporated under the laws of the State of California (hereinafter referred to as "Innovative Interfaces ") OF THE FIRST PART -AND- EL SEGUNDO PUBLIC LIBRARY (hereinafter referred to as the "Library ") OF THE SECOND PART WITNESSETH: WHEREAS the Library wishes to install and use a computer system to improve the operation of the Library particularly in relation to the catalog function: AND WHEREAS Innovative Interfaces has represented and does hereby represent to the Library, subject to the terms and conditions hereof, that the computer equipment and related software to be supplied to the Library pursuant hereto will satisfy the requirements of the Library as set forth hereunder: NOW THEREFORE in consideration of the premises, and the mutual covenants and agreements herein contained, the parties hereto agree as follows: 1.00 INTERPRETATION Where used in this Agreement, unless the context otherwise requires, the following words and phrases have the respective meanings set forth below: 1.01 "Agreement ", "this similar expressions annexed hereto and time to time, and number means and z Agreement: Agreement ", "herein ", "hereunder" and refer to this Agreement and the Schedules referred to herein, all as amended from the expression "Section" followed by a -efers to the specified section of this 1.02 "INNOPAC ", "System ", or "Software" refers to the hardware and software developed by Innovative Interfaces for use in a library environment, including all components necessary for running an automated library system as described more particularly in Schedule D. Im E1 Segundo Public Library INNOPAC Contract March 19, 1993 1.03 "Equipment" means the computer equipment and equipment peripheral thereto purchased by the Library. 1.04 "Installation Site" or "Site" means the room or rooms within which each unit of the Equipment is to be installed on the premises of the Library. 1.05 "Purchase Price" means the dollar amount set plus all applicable taxes and cost of transportation and /or installation specified in the attached schedules which shall not exceed the sum of $238,490.05, but does not include charges for monthly maintenance. 2.00 SUPPLY OF SYSTEM 2.01 In consideration of the payment of the Purchase Price and subject to all the terms and conditions hereof, Innovative Interfaces shall: (a) sell to the Library, and the Library shall purchase, the Equipment referred to in Section 3.00; (b) supply to the Library under license the Software referred to in Section 4.00; and (c) deliver to the Library the materials and documentation referred to in Section 5.00. 2.02 Subject to the other terms and conditions hereof, the System will be installed and will become operational in accordance with the implementation timetable set forth in Schedule C. 3.00 EQUIPMENT 3.01 The Equipment will consist of computer equipment to support the INNOPAC System, including all necessary components and peripherals for proper functioning, as described more particularly in Schedule A. 4.00 SOFTWARE 4.01 Innovative Interfaces will supply to the Library the INNOPAC System, together with all Software needed for proper System operation. 2 E1 Segundo Public Library INNOPAC Contract March 19, 1993 E1 Segundo Public Library INNOPAC Contract March 19, 1993 4.02 Innovative Interfaces shall retain ownership of the Software and all modifications thereto. Each licensed Software product, and all reproductions, corrections, modifications, enhancements and improvements thereof, provided by Innovative Interfaces to the Library, are the exclusive and proprietary property of Innovative Interfaces. Title and full ownership rights in all licensed Software products and all reproductions, corrections, modifications, enhancements and improvements, and all related patent rights, copyrights, trade secrets, trademarks, service marks, related goodwill and Innovative Interfaces' intellectual property are reserved to and shall remain proprietary to Innovative Interfaces. The Library shall not remove or destroy any copyright, trade secret, proprietary or confidential legends or markings placed upon or contained or embedded within any licensed Software products and related materials. 4.03 Innovative Interfaces hereby grants to the Library, upon payment in full of the Purchase Price, a non - transferable, non - exclusive license to use a single copy of the Software in conjunction with the Equipment. 4.04 The Library agrees to keep confidential all material and documentation relating to the Software and any modification thereto. The Library will not make available or distribute any program code or description associated with the INNOPAC System in any form whatsoever to third parties without the prior written approval of Innovative Interfaces. 5.0 DOCUMENTATION 5.01 Within two weeks of the signing of the Agreement, Innovative Interfaces will supply, at no cost to the Library, all standard materials published by and then available for use by purchasers of INNOPAC Systems including manuals, programming aids and other relevant materials and documentation. At the time of installation, Innovative Interfaces will provide complete System documentation to support all functions as specified in Schedule D. 5.02 All materials, documents and other information provided by Innovative Interfaces to the Library pursuant to Section 5.01 shall, if so identified by Innovative Interfaces at the time of delivery thereof, be and remain confidential in the possession of the Library and the Library shall not copy or 4 El Segundo Public Library INNOPAC Contract March 19, 1993 disclose any of such confidential materials, documents or other information to any third party whatsoever. 6.0 SUPPLIES 6.01 The Library is responsible for the acquisition at its own expense of all supplies to be used in the day -to -day operation of the System including, without limitation, paper, magnetic tape, ribbons for printers and forms. 6.02 Innovative Interfaces will advise the Library of the specifications, quantities, sources, and required uses of any supplies which are necessary for the installation of the System. 7.00 SPECIAL DECLARATIONS 7.01 Innovative Interfaces represents and warrants that the Software will contribute to the System the qualities and functions described in Schedule D. 7.02 The Library will pay any and all State and Local taxes with respect to the acquisition by it of the System or any part thereof if such taxes are or become applicable, and agrees to indemnify Innovative Interfaces with respect to any liability or expense incurred by Innovative Interfaces in respect thereof. 7.03 Notwithstanding the provisions of any collective bargaining agreement to which Innovative Interfaces or the Library may be or become a party, the personnel employed by Innovative Interfaces in respect of the installation of the System need not be members of any union or employees, association. 7.04 Title to the Equipment shall pass to the Library at the time referred to in Section 10.02. Prior to the passage of title, the Library shall not encumber the System or any part thereof nor permit a third party to take possession thereof in any way whatsoever prejudicial to the rights and interest of Innovative Interfaces therein. 7.05 Upon delivery to the Library of any portion of the Equipment, the Equipment will be insured by the Library on the same basis as the Library insures similar equipment. The Equipment will be insured for the replacement value of the Equipment until 9 E1 Segundo Public Library INNOPAC Contract March 19, 1993 full payment has been made to Innovative Interfaces as provided hereinafter. Innovative Interfaces shall be entitled to receive written proof of insurance upon request. 7.06 At the time of delivery thereof and thereafter until the Library acquires title thereto pursuant to this Agreement, Innovative Interfaces represents and warrants to the Library that Innovative Interfaces has and will have good title to the Equipment and the right to sell the same and that upon completion of the installation thereof the Library shall obtain good and marketable title to the same and that all v Equipment will be new and conform to the specifications set forth herein. 7.07 Innovative Interfaces represents and warrants that it has the full right to deliver to the Library the Software and that, on acceptance by the Library, the Library shall have license and rights granted herein to use the same free from any lien, claims, charges or encumbrances, and that such rights shall survive the expiration hereof; provided however, that the Library shall have no right to sub - license or assign its rights in respect to the Software or any part thereof. 7.08 Neither party shall divulge or disclose to any third parties any information concerning the affairs of the other party which come to the knowledge of such party as a result or in performance of this Agreement of the other party unless such information becomes publicly available through no fault of Innovative Interfaces or the Library. 7.09 Neither Innovative Interfaces nor the Library shall be liable to the other for loss, damage, or delay in the work caused by war, riot, the act or order of any competent civil or military authority, strikes, unauthorized work stoppage or by fire, f lood, act of God or by any cause which is unavoidable and beyond its reasonable control. In addition, Innovative Interfaces is not liable for loss or damage suffered by the Library or any third party not caused by the employees, agents or Equipment of Innovative Interfaces. Nor shall the Library be liable for loss or damage suffered by Innovative Interfaces or any third party not caused by the employees, agents or equipment of the Library. 7.10 INNOVATIVE INTERFACES IS NOT LIABLE FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE HOWEVER CAUSED. 7.11 The Library may, at its option, connect to the System E1 Segundo Public Library INNOPAC Contract March 19, 1993 purchased under this Agreement any equipment manufactured or supplied by others including, but not limited to, peripheral equipment, other computers, communications equipment, terminal devices, and the like, provided there is a standard, industry - established interface of RS232 available. Innovative Interfaces shall promptly disclose, subject to confidentiality, trade secret, non - competition agreements, upon request to the Library the technical specifications for any given interface point on the System. The Library shall accurately and fully advise' Innovative Interfaces, in writing, at least 30 days before it intends to connect any other equipment to the System, and Innovative Interfaces shall have the right to inspect at its own cost the specifications and installation of any such new equipment. In the event that Innovative Interfaces is required to perform maintenance services on the System because of damage to the System resulting from the attachment of such equipment, such service shall be billed to the Library at the then - current standard hourly maintenance rates. 8.00 INSTALLATION AND TRAINING 8.01 All shipping and insurance costs to and from the site are included in the Purchase Price of the System, as listed in Schedule B. All payments to shipping agents and for insurance fees shall be made directly by Innovative Interfaces and the Library shall make no payments to any firm concerning the shipment, installation, and delivery of Equipment which is not a part of this Agreement and for which exact payments are not described. Innovative Interfaces shall be responsible for all arrangements for the shipment of Equipment to the Library and movement of the Equipment from the protective storage area within the library at the Library to the prepared computer site within the library. Innovative Interfaces shall also be responsible for removal of all debris and packing materials from the Library site resulting from the installation of the Equipment or the Software. 8.02 Innovative Interfaces shall provide to the Library in a timely manner the information necessary to enable the Library to prepare the Installation Site for the Equipment in accordance with the instructions of Innovative Interfaces. The Library shall at its sole expense prior to the date agreed upon for hardware installation provide all necessary installations and 7 E1 Segundo Public Library INNOPAC Contract March 19, 1993 the like which shall be required for proper functioning of the System. The Library will further ensure that, prior to the acceptance dates set out in Schedule C, access to the System in any form will be restricted to persons involved in the implementation of the System. The Library shall complete site preparation prior to the date of installation of the hardware, and the site shall thereafter be available for inspection and approval. 8.03 All costs and expenses related to the site preparation shall be at the sole expense of the Library. 8.04 Innovative Interfaces will provide, at its sole expense, staff for complete on -site training of Library personnel. 8.05 Prior to the acceptance dates set out in Schedule C, Innovative Interfaces shall have first priority of access to and use of the System for purposes of diagnosis. 9.00 ACCEPTANCE 9.01 The testing of the System Innovative Interfaces and satisfaction of the parties. 9.02 Acceptance of Equipment shall be completed jointly by the Library to the mutual Upon completion of the installation of the Equipment, Innovative Interfaces will notify the Library that such Equipment has successfully complied with Schedule A. 9.03 Operational Testing Upon completion of the installation of the System, Innovative Interfaces will notify the Library that the System is available to the Library for use and for operational testing. It is understood that the operational testing will be use of the System in actual operation. Innovative Interfaces agrees to correct problems found in the course of this operational testing. 9.04 The testing by the Library required by Section 9.03 shall continue for a period not to exceed 90 days from date of initial installation. Unless the Library provides Innovative Interfaces, in writing, with any claim that the system does not meet performance specification on or before expiration.of 8 E1 Segundo Public Library INNOPAC Contract March 19, 1993 said 90 days, it will be conclusively presumed that the System has met all performance specifications. 9.05 Innovative Interfaces will provide to the Library, its representatives and consultants, such documentation and assistance as may reasonably be required by the Library in connection with the aforesaid acceptance tests. 10.00 PAYMENT AND TITLE 10.01 The Purchase Price for the System and all rights and benefits herein contained shall be payable in lawful money of the United States at the times and in the amounts set forth in Schedule B. If the Implementation Schedule is delayed at the Library's request, payment based on acceptance of the modules shall be due at the times originally set (i.e. 60 days after initial training was scheduled to occur). 10.02 Title to the Equipment shall pass to the Library upon date of completion of installation. Innovative Interfaces shall retain a security interest in the Equipment which is discharged when 100% of all payments against Equipment are made. The passing of title to the Equipment shall not affect Innovative Interfaces' other obligations hereunder. 11.0 WARRANTIES 11.01 Innovative Interfaces represents and warrants to the Library that: (i) The Equipment and all components thereof, the Software, all programming aids and all other items supplied to the Library under the provisions of this Agreement shall be, and provided that the Equipment and Software are used in accordance with Innovative Interfaces recommended operating procedure, and is not abused or misused, shall remain free from any and all defects and will conform to all stated specifications. (ii) As of the date upon which title to the Equipment is transferred to the Library, the Equipment will be owned by the Library, and no person, firm or 4 E1 Segundo Public Library INNOPAC Contract March 19, 1993 corporation shall have any interest therein other than Innovative Interfaces and the Library pursuant to this Agreement. 11.02 The representations and warranties by Innovative Interfaces as provided for Section 11.01 (i) shall continue in full force and effect for a period of 30 days following initial installation of the Equipment but the expiration of such period shall not affect the rights of the Library hereunder in respect of any claim of which Innovative Interfaces has then received written notice from the Library under the provisions hereof. 11.03 If without the approval of Innovative Interfaces, the Library shall: (i) exceed the System specifications as set forth in this Agreement; or (ii) utilize the System for a purpose which is unrelated to INNOPAC applications; or (iii) make modifications to the System or additions which will have an adverse impact on the System specifications as set forth in Schedule A, then Innovative Interfaces shall be relieved from any responsibility for a breach of warranty under clause (i) of Section 11.01 and any other performance guarantees set forth in this agreement. 11.04 Except as specifically set forth in this Agreement, it is expressly agreed there is no warranty of merchantability or fitness for a particular purpose, except for library related applications, express or implied, by Innovative Interfaces with reference to the System which extends beyond the warranties set forth herein. 11.05 If degradation in System performance occurs because the Library connects to the system equipment in violation of Section 7.11, then Innovative Interfaces is thereby relieved from any responsibilities from a breach of warranty and performance guarantees as set forth in this Agreement if it can be shown that said equipment caused the degradation in performance. 10 E1 Segundo Public Library INNOPAC Contract March 19, 1993 12.00 TERMINATION 12.01 If, prior to payment by the Library of the Purchase Price in full, the Library defaults in payment of any sum due hereunder or otherwise fails to fulfill its obligations under this Agreement beyond 60 days after receipt by the Library of written notice from Innovative Interfaces of such default, then Innovative Interfaces shall have the immediate right to terminate this Agreement and revoke the software license by notice to the Library and to enter upon the Library's premises to repossess and remove any Equipment or Software which is not fully paid for by the Library. The Library's obligation to pay all charges which shall have accrued shall survive any such termination of this Agreement by Innovative Interfaces and such taking of possession shall be without waiver of any other remedies Innovative Interfaces may have at law or in equity. In addition, the Library shall be responsible for reasonable costs of removal of the System, including but not limited to transportation and labor charges. 12.02 (i) If Innovative Interfaces does not fulfill its obligations to deliver, install and test the Equipment in accordance with the dates specified in Schedule C, or (ii) If the System when installed does not meet the specifications set forth in Schedule D, or If Innovative Interfaces is in default in respect of any covenant, representation, warranty and /or agreement provided herein, or (iv) If any proceeding in receivership, liquidation or insolvency is commenced against Innovative Interfaces or its property, and the same be not dismissed within 30 days, or (v) If Innovative Interfaces makes any assignment for the benefit of its creditors, becomes insolvent, ceases to do business as a going concern, or seeks any arrangement or compromise with its creditors under any statute or otherwise, then the same shall constitute an event of default by Innovative Interfaces hereunder, and upon the happening of any of the aforesaid events, the Library may upon 60 days 11 E1 Segundo Public Library INNOPAC Contract March 19, 1993 notice to Innovative Interfaces specifying Innovative Interfaces' default terminate this Agreement and such termination shall be without prejudice to any right the Library may have to damages at law or in equity; provided that if Innovative Interfaces or any of its Sureties, Guarantors or Indemnitors remedies such default within the said 60 days period, this Agreement shall remain in full force and effect. Upon the happening of Section 12.02 (iv) or 12.02 (v) , the Library will be entitled to receive and continue to use all materials related to all processes of the INNOPAC hardware and the source code for the INNOPAC Software. These shall be placed in escrow by Innovative Interfaces upon completion of installation and shall be accessible to the Library only upon the happening of Section 12.02 ( iv) or 12.02 (v) . 13.00 GENERAL PROVISIONS 13.01 No party to this Agreement shall have the right to assign its rights or obligations under this agreement except with the written consent of the other party hereto, which consent will not unreasonably be withheld. 13.02 There are no understandings, agreements or representations, express or implied, between the parties hereto not specified or embodied herein. Any prior commitments, written or oral, made by either party to this Agreement are superseded by this Agreement. 13.03 This Agreement shall not be modified, amended, rescinded, cancelled or waived in whole or in part, except by written instrument signed by the parties hereto and no waiver of any of the provisions of this Agreement shall constitute a waiver of any of the other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver unless expressly so provided therein. 13.04 This Agreement shall be governed by and construed in accordance with the laws of the State of California. 13.05 In the event that a claim or cause of action arises out of the interpretation, performance, or breach of this contract, the prevailing party shall be entitled to a reasonable attorney's fee in addition to costs of suit. Venue for any action hereunder shall be at the site of the respondent. 12 E1 Segundo Public Library INNOPAC Contract March 19, 1993 13.06 This Agreement is not to be distributed by any party hereto to any third party without the written approval of the other party hereto. 13.07 All notices to be given to or received by the parties hereto shall be in writing and shall be delivered by messenger or mailed by prepaid registered or certified first class mail, with return receipt requested, to any such party at its address which: in the case of Innovative Interfaces shall be: Innovative Interfaces 2344 Sixth Street Berkeley, CA 94710 Attention: President and in the case of the Library shall be: El Segundo Public Library 111 W. Mariposa Avenue E1 Segundo, CA 90245 Attention: Library Director Any party may by notice change its address for the purposes hereof. Any such notice shall be deemed to have been given, if delivered by messenger, on the date of its actual receipt, or, if delivered by mail, upon the date that it shall have been properly deposited in the mail. 13.08 Save as otherwise expressly provided, this Agreement shall endure to the benefit of and be binding upon the parties hereto, their respective successors and permitted assigns. 13.09 This Agreement is made and becomes effective only when executed by a duly authorized officer of Innovative Interfaces at Berkeley, California. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. THE LIBRARY per: 13 %L name: Carl Yacobson title: Mayor date: INNOVATIVE INTERFACES per: �-t name: Gera Kline title: President date: Vlzlq--3 APPROVED AS TO FORA City Attorney 14 E1 Segundo Public Library INNOPAC Contract March 19, 1993 E1 Segundo Public Library INNOPAC Schedules March 19, 1993 S C H E D U L E A INNOPAC Hardware and Software 140,000 titles Bibliographic database system 155,000 volumes Cataloging (including authority control) 26,000 patrons Circulation system 48 ports Online Public Access Catalog 33 terminals Management Information System 2 OCLC interfaces 14 lightpens 36 users HARDWARE MIPS 3330 CPU [Silicon Graphics] $39,190.00 32 MB memory 120 MB tape cartridge system printer [Okidata 393] 1 [Seagate] 1 -GB disk drive @ $7,500.00 /each $7,500.00 48 ports* @ $2,695/per 16 ports $8,085.00 [32 ports - 4 8 -port Specialix ModelSI 8] [16 ports - 1 Lantronix terminal server] 1 U100 INNOPAC battery backup @ $3,340.00 $3,340.00 [American Power 1250VX [1.2KVA]] Subtotal, CPU: $58,115.00 1 WY50 [Wyse Model WY -50] terminals @ $595.00 /each $595.00 14 B120 [Percon Series 10] lightpens @ $785.00 /each $10,990.00 6 [Multitech] 8- channel multiplexors w/9600 baud [Multitech] modems @ $3,950 /each $23,700.00 Subtotal, Peripherals $35,285.00 HARDWARE SUBTOTAL: $93,400.00 LESS DISCOUNT: - $43,408.00 HARDWARE TOTAL: $49,992.00 (CONTINUED ON NEXT PAGE) 15 E1 Segundo Public Library INNOPAC Schedules March 19, 1993 SOFTWARE: Catalog database $30,000.00 Authority control $15,000.00 OPAC $20,000.00 Circulation $28,500.00 OCLC Interfaces (2 @ $4,850.00 /each) $ 9,700.00 License for first 30 simultaneous users @ $1500.00 /each $45,000.00 License for next 6 simultaneous users @ $1,250.00 /each $7,500.00 SOFTWARE TOTAL: $155,700.00 SYSTEM SUBTOTAL: $205,692.00 INSTALLATION: $3,000.00 Shipping, Insurance $2,300.00 DATABASE LOAD (bib., item and patron records in MARC format) $9,500.00 DOCUMENTATION: INCLIIDED ONSITE TRAINING: INCLIIDED TOTAL: $220,492.00 est. Calif. State Sales Tax (8.750 on $205,692 (excludes installation, shipping, insurance, and database load) $17,998.05 GRAND TOTAL: MAINTENANCE COSTS: $238,490.05 A maintenance contract on the system as proposed would be for a cost of $1,645 per month (eight- tenths of one percent of purchase price /month [exclusive of installation, shipping, insurance, and database load]. (SCHEDULE A CONTINUED ON NEXT PAGE) 16 MAINTENANCE AND SUPPORT SERVICES HARDWARE AND SOFTWARE SUPPORT SERVICES Innovative Interfaces shall provide the Hardware and Software Support Services as specified herein. Such services shall be provided based on Innovative Interfaces' annual support charge as specified in Schedule A. (i) Innovative Interfaces will make available maintenance and support services Monday through Friday 8:00 a.m. to 5:00 P.m. Pacific Time except on the following holidays: New Year's Day Presidents' Day Easter Sunday Memorial Day Independence Day Labor Day Thanksgiving Day Christmas Day Weekday adjacent to Christmas Day Remote telephone diagnostic service shall be provided Monday through Friday 5:00 a.m. to 6:00 p.m. Pacific Time, Saturday from 8:Oq a.m. to 6:00 p.m. Pacific Time and Sunday from 9:00 a.m. to 10:00 P.M. Pacific Time. An answering service may be within one hour. used providing calls are returned Innovative Interfaces will make its best efforts to complete repairs within 48 hours of notice excluding weekends and holidays. Such maintenance service does not include repairs or replacement parts due to damage caused by fire, lightning, tornado, windstorm, hail, earthquake, explosion, smoke, aircraft, motor vehicle, collapse of building, strike, riot, power failure or fluctuation, or other cause originating by reason of other than normal operation of the equipment, or Library's negligence or misuse of the equipment. The Library agrees, as part of such maintenance service, to take reasonable care of the equipment and not permit persons other than authorized representatives of Innovative Interfaces, Inc. to effect adjustments or repairs to the equipment. On reasonable notice and at Innovative Interfaces' expense, Innovative Interfaces may require the Library to permit Innovative Interfaces to correct Software bugs and carry out modifications to the System for the purpose of maintaining the System. Innovative Interfaces will be responsible for all corrections at Innovative Interfaces' expense. E1 Segundo Public Library INNOPAC Schedules March 19, 1993 The standard of reliability for future ongoing System performance shall be 98% using the table of coefficients in the Contract Schedule E. Maintenance payments shall be reduced by 10% for each 1% reliability falls below the agreed -upon level. Such penalty shall not exceed 100% of the monthly maintenance charge and shall not be carried over to subsequent months. (iv) The Library will be informed of the release of new modules for the System (including the operating System) which may be acquired by the Library from Innovative Interfaces at the then - prevailing market price. Upgrades to the Software shall be installed at no cost to the Library. For the purpose of this document, the term "upgrades" shall mean improvements in the Software which relate to operating performance but do not change the basic function of the Software or the file size. ADDITIONAL EQUIPMENT If the Library adds any additional Innovative Interfaces equipment to the System after the initial installation, the Maintenance Agreement shall be extended to cover the new equipment. The maintenance charges for such equipment shall be based upon Innovative Interfaces' then - current maintenance price list. The 30- day warranty shall commence on the date of installation by the Library of such additional equipment. The additional equipment shall be added to the Maintenance Agreement after such warranty shall expire. THE LIBRARY per: name: Barbara J. Pearson title: Library Director date: 41(, /9a INNOVATIVE INTERFACES, INC. 1 per: _"sI name: Gerald M. Kline title: President date: 1 /� 3