Loading...
06/20/2001 Agreement CLERK OF THE CIRCUIT COURT MONROE COUNTY BRANCH OFFICE MARATHON SUB COURTHOUSE 3117 OVERSEAS HIGHWAY MARATHON, FLORIDA 33050 TEL. (305) 289-6027 FAX (305) 289-1745 MONROE COUNTY COURTHOUSE 500 WHITEHEAD STREET KEY WEST, FLORIDA 33040 TEL. (305) 292-3550 FAX (305) 295-3663 BRANCH OFFICE PLANTATION KEY GOVERNMENT CENTER 88820 OVERSEAS HIGHWAY PLANTATION KEY, FLORIDA 33070 TEL. (305) 852-7145 FAX (305) 852-7146 MEMORANDUM DATE: August 16, 20G 1 TO: James Malloch, ;>irector Community Services ATTN: Ann.e Layton Rice Library Administrator Pamela G. Hanc~ Deputy Clerk a FROM: At the June 20, 2001, Board of County Commissioner's meeting the Board granted approval and authorized execution of the following: / Member Terms and Conditions Agreement, netlibrary eBooks Library Agreement between Monroe County and netLibrary, Inc. for participation in the State Library of Florida program offering eBook access to libraries and their patrons. Solinet Subscriber Agreement between Monroe County and Southeastern Library Network, Inc. (SOLINET), lJ'state contract vendor, for participation in the State Library of Florida program offering eBooK access to libraries and their patrons. Enclosed please find a duplicate original of each of the above ment~oned for your handling. Should y.ou have any questions please do not hesitate to contact this office. Cc: County Administrator w/odocumentf, County Attorney Financ~ File ./ MEMBER TERMS AND CONDITIONS AGREEMENT NETLIBRARY eBOOKS LIBRARY AGREEMENT THIS NETLIBRARY eBOOK LIBRARY AGREEMENT (this "Agreement") date 200 I is between Monroe County Board of County Commissioners ("Customer") an Delaware corporation ("NL"). L.6 Recitals A. NL has acquired certain rights to convert various books and other works to electronic format, and to market and distribute the works as converted. (The works, as converted, are referred to in this Agreement as "eBooks.") NL has also designed and developed certain computer software and an Internet Web site, as well as related business relationships, concepts, plans and ideas, for an electronic "library" service know as netLlibrary.com ("netLibrary.com") for hosting and managing eBooks and other materials over the Internet. B. NL and Southeastern Library Network, Inc. ("Consortium") have entered into a netLibrary.com Consortium Library Agreement (the "Consortium Agreement"). Capitalized terms used in this Agreement without definition shall have the meanings assigned to them in the Consortium Agreement. Customer and Consortium have entered into a Subscriber Agreement (the "Consortium Subscriber Agreement") pursuant to which Customer has been designated a "Member" as defined in the Consortium Agreement, and Consortium has been designated to act on behalf of Customer for certain purposes under the Consortium Agreement. Customer desires to purchase licenses to certain eBooks subject to the terms and conditions described in the Consortium Agreement, the Consortium Subscriber Agreement and herein. In consideration of the mutual covenants and obligations set forth below, the parties agree as follows: Agreement ARTICLE 1. PURCHASE OF EBOOK LICENSES 1.1 Purchases by Customer: Designation of Distributor. From time to time during the term of this Agreement, Customer may purchase from NL or through Consortium licenses to eBooks, as selected by Customer, on the price, discount and payment terms set forth or referred to in the Consortium Agreement or as otherwise agreed between NL and Customer. Customer hereby designates Consortium as its distributor for the purpose of acquiring rights to eBooks on behalf of Customer under the Consortium Agreement, with authority to act (including ordering eBooks) on behalf of Customer under this Agreement, the Consortium Agreement and the Customer's Consortium Subscriber Agreement. NL is authorized to rely on this designation and to recognize Consortium as distributor for Customer. Customer agrees to comply with and be bound by all the provisions of the Consortium Agreement applicable to "Members." 1.2 Copyrighted Works. Customer acknowledges that the copyright to each eBook is owned by NL and the respective publisher thereof. All Rights Reserved. By purchasing a license to an eBook under this Agreement, Customer obtains a perpetual, non-exclusive right to access and use the copy purchased, but Customer does not own any rights in the copyrights associated with the eBook. Customer agrees that any use of the eBooks by Customer or its patrons, members, students, faculty and other users (collectively, "Patrons") is governed by and shall be in compliance with U.S. copyright laws. Customer acknowledges that it and its Patrons have no right to make copies of any eBook, or any portions thereof, except to the extent permitted by such copyright laws. ARTICLE 2. NETLIBRARY.COM SERVICES 2.1 Provision of Services. During the term of this Agreement, NL shall provide to Customer the "Member netLibrary.com" and related services (the "netLibrarv.com Services") described on Exhibit A to the Consortium Agreement. 2.2 Patron Usage (a) Customer will be solely responsible for determining which of Customer's Patrons will have access to Member netLibrary.com under the terms of this Agreement. (b) The use of netLibrary.com by Customer and Patrons shall be governed by the netLibrary.com online Terms of Use as amended from time to time. NL reserves the right to terminate any Patron's access to and usage of net Library. com in the event that such Patron violates the Terms of Use. NL may notify Customer of any violation by a Patron of the Terms of Use. Except in the case of repeated or persistent violations or violations that NL determines may cause a risk or substantial liability or harm, if the use of Member netLibrary.com or any eBook by any person given access by Customer violates the Terms of Use, Customer shall have seven days to attempt to correct the violation, and NL will not terminate any Patron's usage if the violation is corrected within the seven-day period. Repeated violations of the Terms of Use by Customer or Patrons may be cause for termination of this Agreement. ARTICLE 3. GENERAL PROVISIONS 3.1 Term (a) Except as provided in Section 3.1 (b), the initial term of this Agreement shall commence upon the effective date hereof and shall terminate one year from such effective date. This Agreement shall automatically renew for additional one year terms on the first and each subsequent annual anniversary of such effective date unless either party gives written notice to the other party, at least 60 days prior to expiration of the then current term, of its election to terminate this Agreement. (b) With respect to any eBook for which Customer is receiving netLibrary.com Services, NL shall continue to provide such services for the Customer until Customer elects to remove the eBook from Member netLibrary.com or to cease paying Access Fees, even though this Agreement may be terminated as to future purchases of eBooks. 3.2 Termination. A party (non-breaching party) may terminate this Agreement at any time after providing the other party 60 days prior written notice of the occurrence of any of the following events, unless such event is capable of cure or remedy and is cured or remedied within the 60-day period following receipt of such written notice (provided that a 10-day notice and cure period shall apply to nonpayment of amounts due): (a) A party fails to timely pay any amounts due hereunder; or (b) A party violates any material provision of this Agreement (which shall include a material failure to provide required services hereunder, a breach by Customer or its Patrons of copyrights laws, or a breach of the confidentiality provisions of this Agreement) or otherwise has committed breaches of this Agreement that, in the aggregate, are material. 3.3 Limited Warranty. NL warrants that, as to any eBooks sold or licensed to Customer hereunder, NL has the necessary authority to sell or license such eBooks to Customer and, as applicable, to provide the netLibrary.com Services to Customer. Otherwise, NL's sole warranty hereunder is, as applicable, that NL will use commercially reasonable efforts to provide the netLibrary.com Services as described in this Agreement. 3.4 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 3.3, MEMBER NETLIBRARY.COM, THE NETLIBRARY.COM SERVICES, AND THE EBOOKS LICENSED HEREUNDER ARE PROVIDED AS-IS WITHOUT WARRANTY OF ANY KIND AND NL AND ITS CONTENT PROVIDERS AND CONSORTIUM EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER NL NOR ITS CONTENT PROVIDERS NOR CONSORTIUM WARRANTS, GUARANTEES OR MAKES ANY REPRESENT A TIONS REGARDING THE USE, OR THE RESULTS OF THE USE OF NETLIBRARY.COM. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NL OR CONSORTIUM OR THEIR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF NL'S OBLIGATIONS HEREUNDER, AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. 3.5 Indemnity: Limitation on Damages (a) NL will defend, indemnify and hold Customer harmless from any action based solely on a claim that the use by Customer or its Patrons of net Library. com or the eBooks purchased under this Agreement in accordance with this Agreement infringes any copyright or trade secrets of any third party. Customer will defend, indemnify, and hold NL harmless from any action based on a claim that the use by Customer or its Patrons of Member netLibrary.com or the purchased eBooks in violation of the terms of this Agreement infringes any copyright or trade secrets of any third party. (b) Except as provided in Section 3.5(a), neither party shall claim special, incidental, indirect, or consequential damages, including lost profits, for breach of this Agreement. This limitation shall also apply as to any claims brought against NL's content providers. Remedies shall be limited to claims for amounts due hereunder, for injunctive relief only as provided hereunder, or for direct damages. A party's aggregate liability for any and all claims, losses, liabilities and demands arising hereunder, whether for breach of contract, in tort or otherwise, shall be limited (in the case ofNL's liability to Customer) to the total amount offees, paid by Customer to NL, or (in the case of Customer's liability to NL) to the amount of fees payable by Customer to NL, in each case in the I2-month period preceding the claim. Notwithstanding any other provision of this Agreement, a non- breaching party may seek injunctive relief in any court of competent jurisdiction to enjoin or restrain the breaching party from continuing to do any act or commit any violation or threatened violation of this Agreement, and the prevailing party, if any, on a claim for injunctive relief shall be entitled to recover its reasonable attorneys' fees incurred in connection with that proceeding. Injunctive relief will be without prejudice to the non- breaching party's right also to seek money damages for breach. 3.6 Confidential Information. To the extent allowed by applicable law and subject to Chapter 119, Florida Statutes, Florida Public Records Law, Customer agrees that it shall not use or disclose information relating to (i) the terms of this Agreement, (ii) the content of reports delivered hereunder, or (iii) pricing terms or arrangements under this Agreement. 3.7 General Provisions. (a) Assignability. Neither party may sell, assign, transfer or convey this Agreement or its rights and obligations hereunder, without the prior written consent of the other party, which shall not be unreasonably withheld; provided that NL reserves the right to assign or transfer this Agreement to an affiliate or to any party that acquires substantially all of the assets ofNL. Nothing in this section shall restrict usage of Member netLibrary.com by Patrons. (b) Entire Agreement. This Agreement sets forth the entire agreement between the parties hereto with respect to the subject matter hereof, merges all discussions between them and supersedes and replaces any and every other prior or contemporaneous agreement, understanding or negotiation that may have existed between NL and Customer to the extent that any such agreement relates to the subject matter hereof. In the event of any conflict between this Agreement and the Consortium Subscriber Agreement, this Agreement shall control as between Customer and NL. Nothing in the Consortium Subscriber Agreement shall increase NL's obligations or decrease its rights under this Agreement or the Consortium Agreement. (c) Exhibits Incorporated. Any Exhibits referred to in this Agreement shall be deemed incorporated in this Agreement by reference. (d) Force Majeure. Customer acknowledges that the Internet is an unsecure, unstable, unregulated, unorganized and unreliable environment, and that the ability ofNL to deliver the netLibrary.com Services may be dependent upon the Internet and equipment, software, systems, data and services provided by various telecommunications carriers, equipment manufacturers, firewall providers and encryption system developers and other vendors and third parties. Neither party shall be liable for or have the right to terminate this Agreement as a result of, any delays or failures to perform any of its obligations hereunder to the extent that such delays or failures are due to circumstances beyond its reasonable control, including acts of God, strikes, riots, acts of war, power failures, functions or malfunctions of the Internet, telecommunications services, firewalls, encryption systems and security devices, or governmental regulations imposed after the date of this Agreement. (e) Further Assurances. Customer and NL agree to take such further actions and to execute such further documents as may be necessary or appropriate to effectuate this Agreement and the transactions contemplated herein. (f) Jurisdiction and Venue. NL and Customer agree that any action arising from or out of the negotiations, execution, interpretation or enforcement of this Agreement may be brought in the state or federal courts that are located in the State of Colorado. Customer hereby consents to jurisdiction and venue in the state and federal courts in Colorado. (g) Law Governing Agreement. This Agreement shall be governed by the laws of the State of Florida, U.S.A. (without regard to any conflict oflaws provisions contained therein.) (h) Modification or Amendment. Notwithstanding any other provision contained herein, NL shall have the right to modify and amend its fees and discounts on each annual anniversary of this Agreement provided that NL provides Customer with 30 days written notice of any new fee or discount structure. Any other modification or amendment of any provision of this Agreement must be in writing and signed by a duly authorized representative of each party. (i) No Third-Party Beneficiaries. This Agreement is not intended to confer any benefit on any person or entity not a party hereto. (j) Notices. Any notice, demand, request, consent, approval or other communication (collectively, the "Notices") required or permitted to be given by any provision of this Agreement shall be in writing and sent by hand-delivery, by special courier capable of confirming receipt, by United States Certified Mail (return receipt requested, postage prepaid), or by telecopy or E-Mail if receipt if confirmed. The parties recognize that a Notice might not be deemed effective if receipt is not confirmed. Notices shall be addressed to the party to be so notified as follows: If to NL: netLibrary, Inc. Attention: Richard L. Rosy 3080 Center Green Drive Boulder, Colorado 8030 I Telephone: (303) 415-2548 FAX: (303) 381-8600 E-Mail address:lTosv\aJnctlibrarv.com If to Customer: Company: Address: Address: Telephone: FAX: Attention: Monroe County Public Library 700 Fleming Street Key West, FL 33040 305-292-3595 305-295-3626 Anne Layton Rice Notice pursuant to this Agreement shall be deemed given pursuant to the following rules: if hand-delivered, at the time of delivery; if sent by special courier, if mailed, on the seventh day after deposit thereof in the United States Mails; and if sent by telecopy or E-. Mail, on the date transmitted if the sender receives confirmation that such transmission was received. (k) Severability, If any provision of this Agreement shall prove to be illegal, invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and in lieu of each provision of this Agreement that is legal, invalid or unenforceable, there provision as may be possible and be legal, valid and enforceable. (1) Successors and Asshms. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. (m) No Partnership. It is not the intention of the parties to create, nor shall this Agreement be construed as creating, a partnership, joint venture, agency relationship, or association, or render the parties liable as partners, co-venturers, agents or principals. (n) Survival. Sections 1.2 (Copyright Works), 2.2 (patron Usage), 3.5 (Indemnity), and 3.6 (Confidentiality) shall survive termination of this Agreement. Executed to be effective as set forth above. By: Name: Title: ~~ - NETLIBRARY.COM FEATURES AND SERVICES 1. Licensing of eBooks NL will grant Consortium and its Members, as applicable, licenses to copies of eBooks available to NL under NL's agreements with publishers and other sources, subject to the terms of this Agreement and to availability in a format suitable for netLibrary. a) Absent other mutually agreeable arrangements, and except as provided below, each licensed eBook shall be available on the Member netLibrary.com (for Unique Collections) or Consortium netLibrary.com (for the Shared Collection) for the term of this Agreement. b) Within 60 days of the annual anniversary of the license date (or; if applicable, the reinstatement date) for any eBook, Consortium or Member may elect to have the eBook removed from Consortium netLibrary.com or Member netLibrary.com, as applicable, and thereby suspend its obligation to pay annual Access Fees for that eBook. c) On at least 30 days' written notice effective as of the first day ofa month, Consortium or Member may elect to reinstate any removed eBook, upon payment of the applicable Reinstatement Fee. Annual access Fees for reinstated eBooks shall be payable commencing on the reinstatement date at the rates and on the schedule that would have been applicable immediately following the removal date (Le., suspending the annual Access Fee reduction schedule for the period during which the book had been removed). 2. Patron Internet A.ccess If applicable, NL will implement a system, based on NL's standard netLibrary system, under which Consortium's Members or patrons will have controlled access to netLibrary. Typically, access is controlled by valid IP address, referring URL, or customer ID and password. netLibrary users may set up a user account on an IP authenticated workstation associated with the library. This will allow the user remote access from areas other an authenticated IP addresses. If the user is unable to set up a user account at the library workstation, the library and/or NL may set up the account on behalf of the user. Other access methods will be considered on a case-by-case basis. 3. Training and Documentation Access fees entitle Consortium with up to two group training sessions per year available to employees of Consortium and its Members, at no charge to Consortium or its Members, and entitle Consortium and each Member to a copy ofNL's standard library documentation. In addition, NL will provide training for a fee at NL's facility on a regular scheduled basis. Training may be provided through remote access facilities. \. 4. Ongoing Support Access fees entitle designated personnel of Consortium and its Members to ongoing support consistent with NL's standard support policies. Ongoing support may include online application specific help, online documentation. online interactive tutorials, email support, and business hour technical phone- based support. 5. Reports Access fees entitle Consortium and Member to the standard reports offered by NL with netLibrary.com. These reports may include but are not limited to: current discount schedule. transaction history, owned eBooks, popular eBooks, Not --{)wned eBooks. all eBooks, new eBooks. Books in Queue. Queue Report. frequently used search terms, unsuccessful search terms activity by subject area. activity by \, author, activity by title, and total queries. Non-standard reports may be developed for a fee on a case-by- case basis. 6. Average Annual Up Time NL will use its commercially reasonable best efforts to provide Consortium and Members with 24 hour per day seven days a week access to netLibrary.com. 7. Additional Services NL is willing to provide additional services such as custom reports, on-site training or integration for an additional service fee. Quotations will be provided upon request. .-..)>.