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Home My WebLink AboutC2011-167 - 5/24/2011 - Approved- Solutions CONTRACT FOR SERVICES This Contract for Services (this "Contract ") is made effective as of 5M6,12011 , by and between the City of Co=s Christi Public Libobeg of 805 Comanche St.Corpus Christi,, TX 78401 ( "Client "), and Bywater Solutions LLC, of Santa Barbara, California 93109 ( "ByWater "). 1. TERM. This Contract shall be effective from 5/30. 2011 to 5/30. 2013 and shall automatically renew for two (2) successive two-year terms for a total possible term of six (6) years at the current, agreed -upon fee, unless either party notifies the other in writing within the last sixty (60) days of the then- current term of the intent not to allow this Contract to renew for a successive term and/or of their intention to modify the Contract. Upon renewal of this agreement, annual support fee increases will not exceed 5% per contract term. 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 migration of all data from legacy system to Koha. (b) Training will be provided for a minimum of three (3) days after completion of the installation. Additional training will be provided upon request of Client. (c) Terms regarding technical support for the Client are as follows: (1) Support will be available 24 hours. 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) The support package will also cover software updates and Koha enhancements that may be applicable to the Client 2011 -167 M2011 -121 45/24/11 ByWater Solutions INDEXED r 3. PAYMENT FOR SERVICES. In exchange for the Services the Client will pay ByWater according to the following schedule: (a) Installation/Data Migration: $ 37,000.00 payable in two equal installments as follows. 50% (18,500.00) payment due upon delivery of test system, 50% (18,500.00) due upon completion and sign off of live system. (b) Annual support fee: $20 00, billed on or before 911 of each year, beginning on 9J1, 2011. (c) Training: $2,600.00 for the first 3 days (24 hours) , $ 900 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 Client even though the code may be hosted. A good faith effort will be made both by the Client, and by ByWater at the coding stage, to integrate all code into the public, koha- conamunity.org 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 required by 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 ten-nination 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 party 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 (provided that regular daily backups are conducted by ByWater), 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 either party fails to perform its obligations under this Contract, the other shall have the right to terminate the Contract after providing a reasonable opportunity to cure, and to seek whatever remedy may be available, either in law or in equity. 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 Texas. 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. CITY OF CORPUS CHRISTI PUBLIC LIBRARIES By. Herb Canales, Director Ate:. ARMWDQ CWA CriY SECPEi'ARv BYWATER SOLUTIONS LLC By: Nathan 4Y MKIL ..��„ SECRETARY Approved as to form: _ 9- ao j r -Brian aez Assistant City Attorney For City Attorney Date: 515111