Res 1994-016 - Laserfiche WebLink

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l t5' S' L.. separate profile. Training and other services required for the additional libraries shall be provided at the publish~ .rates. K. There shall °be no additional DYNIX application license fees except user application fees for any change in hardware platform to another IBM RS/6000 machine. If there is a change in hardware platform to a non-IBM RS/6000 at THE CITY's initiative, 70 percent of the license fee previously paid may be applied as a credit toward a new license. If DYNIX has discontinued support and maintenance of the IBM RS/6000 series within five (5) years after the execution of this Agreement, THE CITY may seek a change in hardware platform with 100 percent of the application license fee previously paid to be supplied as a credit. 16. PATENT AND COPYRIGHT PROTECTION 0 YN IX will: (I) assumc:: thc:: Jde::nse of any suit brought against THE CITY for infringement of any United States patent or copyright to the extent it is based upon the Equipment or Licensed Software provided under this Agreement: (2) defray the expense of such defense; and (3) indemnify THE CITY against any monetary damages and/or costs including attornc::y's fèes in such suit; provided that: (1) DYNIX is given sole and exclusive control of the defense of such suit and sale and exclusive control of negotiations relative to the settlement thereof; (2) the liability claimed shall have arisen solely ~ause 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 CITY in the form. state or condition as delivered by DYNIX; (3) that THE CITY shall have substantially performed all of its obligations under this Agreement; and (4) that THE CITY provides DYNIX with written notice of any claim with respect to which THE CITY asserts that DYNIX assumes responsibility under this Article within 10 days of receipt of notice of such a claim by THE CITY. Should any Equipment or Licensed Software which has not incurred any unauthorized modifications or combinations ~omc::. or in DYNIX's opinion be likely to ~ome, the subject of a claim of infringement, then THE CITY shall permit DYNIX. at DYNIX's option and expense, either to: (i). procure for THE CITY the right to continue using the Equipment and Licensed Software, or (ii). replacè 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 CITY'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. 17. rND Et\tNI FlC A TION AND LIMIT A TION OF LIABILITY DYNIX shall assume the defense of, and indemnifY and save harmless. THE CITY, its officers and employees from and against all damages and liability resulting from negligence or willful misconduct of DYNIX in the performance of 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 agreemc::nt except as provided in Section 16. Rider G, the preceeding paragraph. or for personal injury and damage to tangible personal property claims, shall be limited to direct damages and shall not exceed the system purchaSê price; THE CITY OF SAN MARCOS - PAGE 10 January 17. 1994