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Home My WebLink AboutC-2551ByWater. . * , . , .. , ,,:Solutions CONTRACT FOR SERVICES This Contract for Services (this "Contract ") is made effective as of _$/14_, by and between _Arcadia Public Librarv_of —Arcadia, CA 91006_ ( "Client "), and ByWater Solutions LLC, of Santa Barbara, California 93117 ( "ByWater "). 1. TERM. This term of this Contract will be for one (1) year, beginning on 8/15, 2010 and terminating on &1j, 2011. In the event Client shall have complied with all the terms, provisions and conditions of this Contract, or any changes or alterations thereto, Client shall have the right and option to renew this Contract for two (2) additional one (1) year terms at the current support price for a total of three (3) years. In order to exercise the Renewal Term, Client shall give ByWater written notice of its election to renew the Contract on or before ninety (90) days prior to the expiration of the then current term of this Contract. The Renewal Term shall be upon the same terms as this Contract. 2. DESCRIPTION OF SERVICES. ByWater will provide the Client the following services (collectively, the "Services "): (a) Installation and implementation of Koha Integrated Library System ( "Koha "), including; 1. Customization of staff client and OPAC 2. Administrative configuration 3. Consultation on circulation and necessary data clean -up (if applicable) 4. Assist with import of patron data, fines, fees 5. Assist with import/configuration of authority files 6. Assist with import/configuration of bibliographic records and items (b) Terms regarding technical support for the Client are as follows: Support will be available 24/7. Support calls during hours in which the Client's facility is closed will be addressed by level of importance; i.e. system failure dictates immediate response time, training questions will be addressed within 24 hours. 2. Weekend and after hour support is available via phone only. 3. The support package will also cover software updates and Koha enhancements that may be applicable to the Client. 4. Integration services for the library's third party services and devices is included. These services and devices include OCLC Enhanced Content, and other services currently in use but not specified. Consult with library and city IT with network configuration (firewall, routers) requirements (c) Training will be provided upon request according to the terms found in section 3(c) 3. PAYMENT FOR SERVICES. In exchange for the Services the Client will pay ByWater for items (b) and (c). Item (a) will be billed to the Open Source - Open Library funds appropriated for this project; grant number 40 -7603. (a) Installation/Customization: $_20,000.00 payment due prior to start of installation. (b) Annual support fee: $ 6.470.00, due on or before 2L1 of each year, beginning on 2d, 2010. (c) Onsite Training: $_2,J00.00 for the first 3 days (24 hours) , $1,000.00 each subsequent day, due after the completion of each week in which the training takes place. 4. WORK PRODUCT OWNERSHIP. Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the "Work Product ") developed in whole or in part by ByWater solely in connection with the Services will be the exclusive property of the Client. Upon request, ByWater will execute all documents necessary to confirm or perfect the exclusive ownership of the Client to the Work Product. All such Work Product developed on behalf of the Client will be made available under the terms of the open source license in effect for koha at the time the code is written (currently GPL v2). A copy of the code will be given to the library even though the code may be hosted. A good faith effort will be made both by the library, and by ByWater at the coding stage, to integrate all code into the public, koha- community.ore code base, or wherever the public code base may subsequently be located. Upon expiration or termination of this Contract, ByWater will: (a) return to the Client all records, notes, documentation and other items owned by the Client that were used, created, or controlled by ByWater during the term of this Contract; and (b) assist Client in exporting data from ByWater's data cloud to Client, at no additional charge. 5. CONFIDENTIALITY. ByWater, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of ByWater, or divulge, disclose, or communicate in any manner, any information that is proprietary to the Client, except (a) if and to the extent the information is already a matter of public knowledge; (b) such disclosures as may be necessary to ByWater's attorney or accountant (collectively, "Permitted Confidants "); or (c) such disclosures as are required by law or by any litigation between the parties hereto with respect to this Contract. ByWater shall also timely require each of its Permitted Confidants to keep that information confidential. Before making any disclosure required by law, ByWater, or the Permitted Confidant, as the case may be, shall give Client as much notice thereof as is legally permitted, along with a copy of the proposed disclosure. The foregoing duties of confidentiality shall survive the termination of this Contract. 6. RELATIONSHIP OF PARTIES. Client and ByWater agree that the status of ByWater is that of independent contractor, and not that of employee, principal, agent or joint venture partner of Client. Neither party has authority to enter into contracts or assume any obligations for or on behalf of the other parry or to make any warranties or representations for or on behalf of the other party. 7. WARRANTY. ByWater shall provide the Services and meet its obligations under this Contract in a timely and workmanlike manner, using knowledge and recommendations for performing the Services which meet generally accepted standards in ByWater's industry. ByWater disclaims all other warranties, expressed or implied. ByWater does not in any way warrant that Koha will operate without interruption or be error free. ByWater shall have no liability for damages resulting from: hosting inoperability, interruption due to product or delivered software malfunction, loss of profits, goodwill, damage or loss of data, or any other indirect, special or consequential damages suffered by Client. ByWater will in good faith and using its best reasonable effort work to resolve any such issues. 8. REMEDIES. If Client fails to perform its obligations under this Contract, ByWater shall have the right to terminate the Contract and to seek whatever remedy may be available to ByWater, either in law or in equity. If ByWater fails to comply with any terms of this Contract, Client's sole remedy shall be to seek to recover any sums paid by Client to ByWater pursuant to the terms of this Contract. Except as otherwise expressly provided herein, in the event of any litigation brought to enforce any material provision of this Contract, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the other party. 9. ENTIRE AGREEMENT. This Contract contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Contract. This Contract supersedes any prior written or oral agreements between the parties. 10. SEVERABILITY. If any provision of this Contract will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable, provided that no party is, as a result thereof, deprived of its substantial benefits under this Contract. If a court finds that any provision of this Contract is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited. 11. AMENDMENT. This Contract may only be changed, modified, amended or discharged by an agreement in writing executed by the parties hereto. 12. GOVERNING LAW. This Contract shall be construed in accordance with the laws of the State of California. 13. NOTICE. Any notice or communication required or permitted under this Contract shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing. 14. ASSIGNMENT. The Client may not assign or transfer this Contract without the prior written consent of ByWater. 15. BINDING EFFECT. This Contract shall inure to the benefit of and be binding upon the parties named herein and their respective heirs, successors and assigns. ARCADIA PUBLIC LIBRARY By: Carolyn Gar er- agan Director of Library and Museum Services( Dated: / �✓ I 2010 APPROVED AS TO FORM: tephen P. Deitsch City Attorney ATTEST: .� ity Clerk BYWATER SOLUTIONS LLC uo-� ,. Brendan Gallagher CEO Date: 7/29/2010