1st Amendment 09/18/2002
Clerk ofllle
Circul coon
Danny L. Kolhage
Cler]{ of the CIrcuIt Court
Phone: (305) 292-3550
FAX: (305) 295-3663
e.mail: phancoek@monroe.cJcrk.com
Memorandum
TO: James Malloch, Director
Community Services
ATTN: Anne Layton Rice
Library Administrator
FROM: Pamela G. Hanco~
Deputy Clerk c:JJ
DATE: November 4, 2002
At the September 18,2002, Board of County Commissioner's meeting the Board granted
approval and authorized execution of an Amendment to the Member Terms and Conditions
NetLibrary eBook Library Agreement between Monroe County and netLibrary for participation in
the State Library of Florida program offering eBook access to libraries and their patrons.
Enclosed is a duplicate original of the above mentioned for your handling. Should you
have any questions please do not hesitate to contact this office.
Cc: County Administrator w/o document
County Attorney
Finance
File ./
...
CONFIDENTIAL
AMENDMENT TO THE MEMBER TERMS AND CONDITIONS AGREEMENT
NETLIBRARY EBOOK LIBRARY AGREEMENT
This Amendment to the Member Terms and Conditions Agreement - netLibrary eBook Library Agreement (this
"Amendment") is effective Sept. 18, ,2002 (the "Effective Date") and is by and between Monroe County
Board of County Comimissioners ("Librarv") and netLibrary, a division of OCLC Online Computer Library Center,
Inc., an Ohio nonprofit corporation that assumed all of the right, duties and obligations of netLibrary, Inc. ("nL") and
is a predecessor in interest to nL.
Whereas, nL and Library are parties to the Member Terms and Conditions Agreement - netLibrary eBook Library
Agreement dated May 3, 2001 (the "Aareement") and desire to amend the Agreement to accurately reflect their
current relationship with respect to the unique collection of eBook licenses purchased by Library, in consideration of
the foregoing, the adequacy of which is hereby acknowledged, nL and Library mutually agree to the following
revised terms and conditions.
1. Capitalized terms used in this Amendment without definition or modification shall have the meanings
assigned to them in the Agreement. Capitalized terms may be used in the singular or in the plural, as appropriate
in the context.
2. The term "Customer" shall be replaced with the term "Librarv" throughout the Agreement.
3. The term "netLibrary.com" shall be replaced with the term "nL Website" throughout the Agreement.
4. The term "Member netLibrary.com" shall be replaced with the term "Library nL Website" throughout the
Agreement. .
" > I
5. The term "netLibrary.com Services" shall be replaced with the term "eBook Services" throughout the
Agreement.
6. The term "Service Fees" shall be replaced with the term "CSS Fees" throughout the Agreement.
7. The word "perpetual" in the third sentence of Section 1.2 of the Agreement shall be stricken.
8. The text of Section 2.1 of the Agreement shall be stricken in its entirety and the following text shall be
inserted in the same place:
"Provision of eBook Services. During the term of the Agreement, nL will establish and administer Library's
nL Website using nL's existing electronic bookshelf technology and nL Website. nL will provide Library and
Patrons with access to Library's eBook collection through Library's nL Website, and nL will provide Library
with eBook Services for eBooks for which Library has purchased licenses and paid the applicable CSS
Fee. -Access to Library's eBook collection and eBook Services will be provided via Library's Internet
connection, which will be Library's expense and responsibility."
9. The text of Section 2.2 of the Agreement shall be stricken in its entirety and the following text shall be
inserted in the same place:
"Library and Patron Usaae.
(a) Limitina Access Measures. Library will be solely responsible for determining which Patrons will have
access to Library's nL Website as contemplated by this Agreement. Library agrees to implement appropriate
measures to limit the use of eBooks through remote access by Patrons ("Limitina Access Measures").
Limiting Access Measures are to comply with nL's reasonable application requirements which may change
from time to time and may include, but are not limited to, remote patron authentication applications,
authentication through protected IP addresses, a patterned identification check and privileged user accounts.
Library agrees to implement Limiting Access Measures within a reasonable time frame. nL, in its sole
discretion, may discontinue Library's access to Library's nL Website if Library fails to implement Limiting
Access Measures within a reasonable timeframe. Except for standard fees charged by Library to Patrons,
Library will not charge any Patron for use of Library's nL Website.
(b) Terms of Use. The use of Library's nL Website by Library and Patrons will be governed by the "Terms
of Use" currently available at www.netlibrary.com/helo/terms of use.aso, as such may be amended from
time to time, which are incorporated herein by reference. In the event a Library or a Patron violates the
Terms of Use, nL reserves the right, in its sole discretion, to suspend or terminate Library's or such Patron's
access to and utilization of Library's nL Website. At its sole option, nL may notify Library of any violation by a
Patron of the Terms of Use, and in such event, also at its sole option, nL may grant Library seven days to
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CONFIDENTIAL
attempt to correct such violation by a Patron and nL will not terminate such Patron's access to and utilization
of Library's nL Website if such violation is corrected within such seven day period. Library acknowledges
and agrees that, in the case of repeated or persistent violations, nL may not provide the aforementioned
notice and correction period to Library. Repeated or persistent violations of the Terms of Use by Library or
Patrons may be cause for termination of this Agreement by nL.
(c) Tools. Library will not use, implement or authorize use of any computerized or automated tool or
application to search, index, test or otherwise obtain information from Library's nL Website, including without
limit any "spidering" or web crawler application (collectively, "Tools"), without obtaining the prior written
approval of nL, which will not be unreasonably withheld, provided that the proposed use of Tools does not (i)
present a risk of interfering with use of nL Website by Patrons or other nL end-users, (ii) degrade or impair
the performance of nL Website, (iii) cause nL to violate its agreements with its other end-users, its publishers
or other third parties or (iv) constitute a violation of applicable law, including without limit U.S. copyright'law.
Library acknowledges and agrees that nL may from time to time implement controls on Library's nL Website
to regulate or restrict the use of Tools."
8. The text of Section 2.3 of the Agreement shall be stricken in its entirety and the following text shall be
inserted in the same place:
"'CSS Fee' refers to the Content Service and Support Fee, which is the fee associated with Library's
ongoing access to its eBooks via the Internet, nL's maintenance of Library's nL Website and nL's
maintenance and upgrade to the Existing Platform and bandwidth. CSS Fees include eBook Services.
Library may opt to pay the CSS Fees associated with any order of eBooks either as an 'Annual CSS Fee'
or as a 'Preoaid CSS Fee,' as further described in Exhibit C hereto. All CSS Fees are due and payable 30
days from the date of the relevant invoice."
9. The text of Section 3.1 (b) of the Agreement shall be stricken in its entirety and the following text shall be
inserted in the same place:
"Other Termination Provisions. In the event this Agreement is terminated as described herein, with
respect to any eBook for which Library is receiving eBook Services and subject to the limitations set forth
on Exhibit A hereto, nL will continue to provide such eBook Services to Library until Library elects to
remove such eBook from Library's nL Website or to cease paying the CSS Fee associated with such
eBook, even though this Agreement is terminated as to future purchases of other eBook licenses.
10. The text of Section 3.7(h) of the Agreement shall be stricken in its entirety and the following text shall be
inserted in the same place:
"Modification or Amendment. Notwithstanding any other provision herein, nL will have the right to modify and
amend' Exhibits Band C and the business terms referenced therein provided that nL provides Library with
not less than 30 days prior written notice. Any other modification or amendment of this Agreement must be
in writing and signed by a duly authorized representative of each party."
11. Effective April 1, 2002, nL's business offices are located at:
netLibrary, a division of OCLC Online Computer Library Center, Inc.
4888 Pearl East Circle, Suite 103
Boulder, Colorado 80301
Attention: Sales Management
Telephone: (303) 415-2548
Facsimile: (303) 381-8600
12. Exhibits A, Band C attached hereto shall be incorporated herein.
13. A "MARC Record" is an electronic record containing metadata and other relevant information about the
corresponding eBook. In its sole discretion, nL may also provide MARC Records to Library. MARC Records are
the property of nL; Library may use MARC Records for its own internal purposes as further described in Schedule 1
hereto.
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CONFIDENTIAL
14. Except as specifically set forth above, the Agreement remains in full force and effect without modification.
In witness whereof, the parties have caused this Agreement to be executed by their duly authorized
representatives, to be effective as of the Effective Date, as set forth below.
nL: netLibrary, a division of OCLC Online Library: Monroe
Com put ibra Ce , Inc. Commi
By:
Name:
Title:
By:
Name:
Title:
Mayor
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CONFIDENTIAL
Exhibit A to netLibrary eBook Library Agreement
eBook Services
1. Suooort for nL Website and Library's nL Website.
a. Existina Platform. At the time this Agreement is executed, nL Website and Library's nL Website are
supported by nL's existing electronic bookshelf technology, which includes a third party operating system,
third party database management software and proprietary nL software (collectively, the "Existina Platform").
nL agrees that it will not charge any fees to continue to support the operation of the Existing Platform, except
as may be provided in this Agreement.
b. Platform Commitment Date. The "Platform Commitment Date" will be a date determined for each
purchase of eBook licenses. Initially, the Platform Commitment Date will be five years from the date of each
applicable purchase of eBook licenses. However, nL may publish or announce a specific date as the
Platform Commitment Date or a change in the practice of determining the Platform Commitment Date,
provided that such publication or announcement will only be applicable to purchases of eBook licenses made
after the date of such publication or announcement. Thereafter, at nL's discretion, the Platform Commitment
Date for any purchase of eBook licenses may be as stated in the related documentation.
c. Miaration. nL agrees that if, prior to the Platform Commitment Date, the Existing Platform becomes
technologically obsolete and/or third party components of the Existing Platform are no longer supported by
the applicable vendors, then nL will not charge any additional fees to continue to support the Existing
Platform or to migrate Library's eBoak content to a replacement platform prior to the Platform Commitment
Date, except as may be provided in this Agreement. After the Platform Commitment Date, if nL ceases to
support the Exi.stirg. Platform due to technological obsolescence or cessation of third party vendor support,
then nL may charge fees to support a replacement platform or to migrate Library's eBooks to a replacement
platform.
2. Soecific eBook Services.
a. Accessina eBooks. Subject to the terms of this Agreement, nL will allow Library to access the eBooks
that are available to nL under nL's agreements with publishers and other content providers in formats
suitable for nL's electronic publication process and that are licensed to Library.
i. Availabilitv ofeBooks. Absent other mutually agreeable arrangements, and except as provided
below, each licensed eBook will be available on Library's nL Website for as long as Library elects to
receive and pay for the corresponding eBook Services and nL continues to provide support as
described above.
ti. Removina eBooks. If Library chooses the Annual CCS Fee payment option, Library may elect
to have any eBook removed from Library's nL Website, thereby suspending Library's obligation to pay
the Annual CSS Fee for such eBook, by providing nL with written notice of such election within 60
days of the anniversary of the licensure of such eBook (or, if applicable, the reinstatement date for
such eBook). CSS Fees for removed eBooks may cease on the anniversary date or the removal date,
whichever date occurs first..
iii. Reinstatina eBooks. Effective as of the first dayqf any month, Library may elect to reinstate
any removed eBook by providing nL with at least 30 days prior written notice of such election and by
paying the applicable Reinstatement Fee as further described in Exhibit C hereto. CSS Fees for
reinstated eBooks are due and payable on the reinstatement date.
b. Patron Access. nL will implement a system, based on nL's standard systems, under which Patrons
will have controlled access to Library's nL Website. Typically, Patron access is controlled by valid IP
address or Library 10 and password. nL will consider other proposed Patron access methods on a case-by-
case basis, but may reject such proposed methods if, in nL's opinion, access will not be sufficiently
controlled.
c. Reoorts. CSS Fees entitle Library to the standard reports offered by nL. These reports may be
modified by nL from time to time and may include without limit: current discount schedule, transaction history,
owned eBooks, popular eBooks, eBooks not owned, all eBooks, new eBooks, activity by subject area and
activity by title. Nonstandard reports may be developed for a fee on a case-by-case basis.
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CONFIDENTIAL
Exhibit B to netLibrary eBook Library Agreement
eBook License Fees and Discounts
1. Determinina Discounts. The Discount applicable to each order of eBook License Fees will be calculated
as follows:
Amount of Library's Purchases During the Maximum Discount off eBook List Price
Preceding 12 Month Period in U.S. Dollars
$750,000 and above 8%
$500,000 -749,000 6%
$200,000 - 499,000 4%
$75,000 - 199,000 2%
2. Factors. The Discount structure provided above is subject to the following conditions:
a. The Discount is applicable if the minimum initial order is at least 500 eBooks.
b. The Discount is based on one contract and one billing address.
c. The Discount is guidelines and will vary by title.
d. The Discount as applied to each specific purchase of eBook licenses is based on the aggregate
amount of Lib,rarY'$ purc~ases of eBook licenses during the preceding rolling 12 month period.
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CONFIDENTIAL
Exhibit e to netLibrary eBook Library Agreement
nL Website and ess Fees
1. ess Fee Pavment Ootions. On an order-by-order basis, Library will choose one of the two ess Fee
payment options described below by indicating its election on the applicable purchase order. If Library does not
make such election on any purchase order, Library will be deemed to have selected the Annual ess Fee for the
corresponding order. In addition, if Library selects or is deemed to have selected an Annual ess Fee for an
order of eBooks, Library may, at any time during the Term, elect to convert to the Prepaid ess Fee for such
order of eBooks. This election will be made by written notice to nL and payment of the Prepaid ess Fee in an
amount equal to 55% of the sum of each eBook List Price for all eBooks in the order at the time of initial
licensing, less a credit equal to 80% of the sum of all Annual ess Fees paid for such eBooks.
a. Annual ess Fee.
i. The Annual ess Fee for an order will be equivalent to 15% of the sum of the eBook List
Prices for all the eBooks in the order at the time of initial licensing. The Annual ess Fee in each of
the second and subsequent years will be reduced by the portion of the first year Annual ess Fee
attributable to any eBook removed from, and not reinstated to, Library's eBook collection as further
described in Exhibit B hereto.
ii. The first payment of the Annual ess Fee for an order will be due and payable at the time the
eBook licenses are initially purchased, and will be included on the invoice for the corresponding
eBook License Fees.
iii. f'n~ual CS~ Fees for the second and subsequent years for all orders will be calculated and
invoiced i'n the month in which the anniversary of the order date occurs, or at nL's election, on an
annualized basis on a single date each year for Library's entire eBook collection.
iv. For the Annual ess Fee option only, the Reinstatement Fee for an eBook will equal 15% of
the eBook List Price.
v. If nL elects not to continue to support the Existing Platform at any time due to technological
obsolescence or cessation of third party vendor support, nL may charge Library (if Library selected
the Annual ess Fee option) additional fees for migrating the eBooks for which Library is paying the
Annual CSS Fee to a replacement platform, subject to any applicable limitations as set out on
Exhibit A hereto.
b. Preoaid ess Fee.
, i. Library may prepay ess Fees for an order by making a one-time-only nonrefundable
payment equivalent to 55% of the sum of the eBook List Prices for all eBooks in the order at the
time of initial licensing.
ii. Upon payment of the Prepaid ess Fee, Library will have Internet access to the appropriate
eBooks and rights to receive eBook Services for as long as nL continues to support the Existing
Platform.
iii. If Library selects the Prepaid ess Fee payment option and nL ceases to support the
Existing Platform due to technological obsolescence or cessation of third party vendor support at
any time prior to the Platform Commitment Date, nL will not charge Library any additional fees for
migrating Library's licensed eBooks for which Library has paid the Prepaid ess Fee to a
replacement platform.
2. Delivery of eBook Services. Payment of the ess Fee allows Library to access the eBooks licensed to it
on Library's nL Website and receive eBook Services for such eBooks for so long as:
a. Library continues to pay, or has prepaid, as the case may be, such ess Fee,
b. nL continues to support the Existing Platform as provided in Exhibit A hereto and
c. Library has not removed the eBook from Library's nL Website.
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CONFIDENTIAL
Schedule 1 to Amendment to the netLibrary eBook Library Agreement
Guidelines for the Use and Transfer
of OCLC-Derived Records
Revision of November 16, 1987
I. GUIDELINES
(See Definitions in Part II below)
1. Each member and nonmember library may use records without restriction, and may transfer records of its
own holdings without restriction to other libraries.
2. In addition to transfers to libraries, each member and nonmember library may transfer records of its ow~
holdings without restriction, to (a) member networks, (b) state and multi-state library agencies and (c) all other
noncommercial firms.
a. Member networks may produce and transfer to any member library, copies on magnetic tape of
records used or inserted into the OCLC database by the library. Each member network also may process
records of the holdings of any member or nonmember library which has employed and agreed to pay it for
that service, provided the member network has first signed either an individual agreement with the library,
or a general agreement with OCLC, containing measures agreed upon by OCLC and the member
network for protection of the records it has been employed to process. Any other use and transfer of
records by member networks will be as provided in separate understandings with OCLC.
b. The use and transfer of records by library systems or projects operated by or under the aegis of
one or more state or natibnallibrary agencies will be as provided in separate understandings with OCLC.
Such understandings may include (i) arrangements to incorporate state or national bibliographic
databases into the OCLC system, (ii) paid-up licenses to use records in state or national programs (e.g.,
by means of payments for OCLC multi-institution tapes) and/or (iii) any other understandings that will
facilitate state or national programs as well as the maintenance and enhancement of the OCLC database.
c. The use and transfer of records by any other organizations to which transfers are made under
this Guideline 2 will be as provided in separate understandings with OCLC.
3. In addition, each member and nonmember library may transfer records of its own holdings to commercial
firms which the library has employed and agreed to pay to process such records, provided that each commercial
firm has first signed an individual agreement with the library, or OCLC has advised the library that the
commercial firm has signed a general agreement with OCLC, in either case containing measures agreed upon
by OCLC al'ld the commercial firm for protection of the records it has been employed to process. In addition,
each member and nonmember library may make any other transfers of records to commercial firms, subject to
prior written agreements with OCLC. However, there is no requirement for prior written agreements (a) for
transfers made under Guideline 1 above to libraries operated by commercial firms or (b) for transfers to
commercial firms by former OCLC member libraries of records of their holdings, so long as the libraries maintain
no continuing user status with OCLC.
4. When a nonmember organization makes bibliographic information available to OCLC which is subject to
usage or transfer restrictions imposed by such nonmember organization, and OCLC nevertheless elects to
accept the information for addition to the OCLC database. OCLC will notify libraries to which it makes the
information available, and rights to use and transfer records based on such information will be subject to the
same restrictions.
5. When transfers under Guideline 1 above are made to machine-readable union catalogs accessible by
nonmember libraries, it is requested that machine-readable copies of the records of such union catalogs be
submitted to OCLC. OCLC, at its own expense, will have the right to add such records to its database for all
uses consistent with its chartered purposes.
6. The Guidelines above apply to all uses and transfers of records except where a mutually acceptable
agreement establishing broader or narrower rights is made with OCLC relating to a specific product or service.
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CONFIDENTIAL
II. DEFINITIONS
1. The term "member library" means a general member of OCLC as defined in its Code of Regulations.
2. The term "nonmember library" means any library other than a member library.
3. A "member network" is an OCLC-affiliated regional, state or multi-state library network organization which
is in contract with OCLC to provide OCLC services and products, or to assist OCLC to provide such services
and products, to general members of OCLC.
4. A "commercial firm" is any organization permitted, under applicable law, to operate on a for-profit basis.
5. The term "records" means bibliographic records and holdings data (including copies thereof) derived from
the OCLC database, including derivative works made from such records, and either received in machine-
readable form or converted by the transferee into machine-readable form. The term also includes such records
when held only in eye-readable form, in the case of proposed transfers to commercial firms. However, records
do not include, as to any member or nonmember library (a) bibliographic records designated in the OCLC
database as original cataloging by such member or nonmember library and (b) bibliographic records derived by
such member or nonmember library from sources other than the OCLC database and to copies of which in the
OCLC database its holdings symbol has been attached by tapeloading. Such excluded records are freely
transferable and are not dealt with in these Guidelines. OCLC-derived records held only in eye-readable form
are freely transferable except to commercial firms.
6. The terms "transfer" and "transfer of records" refer to all sales, exchanges, gifts, sharing and other
transfers, and all online access except online access provided to end-user patrons of a library in authorized
possession of the r~.co~ds.
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