Item C02BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: June 15, 2011 Division: _Deputy County Administrator
Bulk Item: Yes X No _ Department:
Staff Contact Person/Phone #: Norma Kula / x 7349
AGENDA ITEM WORDING: Approval of Application Services Agreement between Monroe
County and OverDrive, Inc., for the implementation of digital book technology and services in
providing eBook, audio book, and multimedia in digital formats for the Monroe County Public Library
System patrons.
ITEM BACKGROUND: This agreement will provide access for Monroe County Library patrons to
a growing collection of downloadable e-materials in a variety of formats for use on a variety of
reading/receiving e-devices.
PREVIOUS RELEVANT BOCC ACTION:
CONTRACT/AGREEMENT CHANGES:
STAFF RECOMMENDATIONS: Approval
TOTAL COST: $ 12,000.00/yr. BUDGETED: Yes X No
DIFFERENTIAL OF LOCAL PREFERENCE: N/A
COST TO COUNTY: $ 12,000.00/yr. SOURCE OF FUNDS: State Aid grant
REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year
APPROVED BY: County Atty OMB/Purchasing Risk Management
DOCUMENTATION: Included X Not Required _
DISPOSITION:
Revised 7/09
AGENDA ITEM #
MONFZOE COUNTY BOARD OF COUNTY COMMISSIONERS
Contract with: OverDrive, Inc.
CONTRACT SI_ MMARY
Contract
Effiective Late: Upon execution
Expiration Bate: At termination
Contract flu rpose/Description :
Agreement for OverDrive, Inc., to provide downloadable e-books and multimedia in Ea
variety of formats for use b Monroe Count L,ibrar atrons, OverDrive faac. will rovide
software, content ruana et �and website services to enable library patron access to these
materials
Contract Manager: Norma Kula
(Narne)
for BOC:C meetiriv can 6/15/11
7349 I.,ibrary / 4 23
-- __ __._... �._.._
(Ext.) (Department/Stop ##j
enda Deadliiie: 5/31/11
CONTRACT COSTS
Total Dollar Value of Contract: 48,000 Current Year Portion: 12,000
Budgeted'? YesM No [J Account Codes:�l25m� 62019-530490-(iP1100-560660_.._.
Grant:
County Match. �- �.�__. ..........
ADDITIONAL COSTS
Estimated Ongoing Costs: � .. ..._/yr For:
Nc�t inciucied its do9iar valcte abcsve e rt�aitrte a��ce„ sate}hies, 'anitorial, salaries etc.
CONTRACTREVIEW
Changes
Date Out
Director
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Needed
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Yes[ No
._.._..
Comments:
YNAB Form Revised 2/27/01 MCP #?
Digital Library Reserve
Content Service Plan
Application Services Agreement
1. INTRODUCTION
This Agreement is made and entered into this of 2011 by and between OverDrive, Inc., (hereinafter
referred to as "OverDrive"), a Delaware corporation, Valley Tech Center, 8555 Sweet Valley Drive, Suite N, Cleveland,
OH 44125 USA and Monroe Count- (hereinafter referred to as "Library"):
Libraiv Name: Monroe Count- Public Libraiv System
Virtual Branch Name:
Libraiv's Primaiv Contact: Anne Lavton Rice
A r � 700 FleminLy Street.Kev West. FL 33040-6828
Phone: (305) 292-3594
Email Address: rice-anne!a,monroecounty-fl.LOv
Attached and incoraorated in this Agreement are the follo-,vinu Schedules
Schedule "A-1" - Digital Library Reserve Application Services and Fee Schedule
Schedule "A-2" - Digital Library Reserve Content Service Plan Fee Schedule
Schedule `B" - Digital Library- Reserve and Library Website Guidelines
WHEREAS, OverDrive is a provider of digital book technology and services including those related to the management
and copyright protection of content in eBook, audio book, and multimedia in digital formats; and,
WHEREAS, Libraiv is seeking to utilize as part of its operation certain outsourced softvare and Website services for the
aggregation, management, copyright protection and distribution of Digital Products and related services; and,
WHEREAS, Libraiv seeks to license the use of and deploy softvare products, technology and services including those
licensed to OverDrive by Microsoft° Corporation, Adobe° Systems Inc. or other vendors of Digital Rights Management
(DRM) technologies.
THEREFORE, the parties agree as follows
2. DEFINITIONS
As used in this Agreement, the follo-,ving definitions shall appIN
2.1 "Agreement" shall mean this Agreement between OverDrive and Library and all Schedules and attachments.
2.2 "Application Services" or "Application(s)" shall mean the DLR°, OverDriveo, Microsoft° Corporation, Adobe o
Systems Incorporated, Adobe Benelux, B.V. and any other third party products or services identified in Schedule "A-1"
attached to the Agreement.
2.3 "Application Services Fees" shall be the amounts payable by Libraiv to OverDrive in accordance Nvith the terms
of this Agreement. A schedule of the current Application Services Fees is attached to this Agreement as Schedules -A-l-
and "A-2".
2.4 "Content" or "Digital Products" shall consist of digital files and titles available for loan to Patrons at the Libraiv
Website distributed using the Application Services.
c';2011 OverDrive. Inc.
Digital Library Reserve Content Service Plan Aareement — Monroe Countv Public Library System
2.5 "Content Reserve" shall mean the Digital Product and Content distribution service operated by OverDrive which
enables Library to browse, select and license rights to Digital Products for re -distribution and lending to Library- Patrons.
2.6 "Digital Library Reserve" or "DLR" shall mean the OverDrive and integrated services utilizing OverDrive,
Microsoft, Adobe or other third party software applications and services that relate to the Library Website operated by the
Library for managing the Digital Products.
2.7 "Digital Library Reserve Guidelines" shall mean the terms and conditions of utilizing the Digital Rights
Management Application Services.
2.8 "Effective Date" shall mean the date upon which both parties have signed the Agreement.
2.9 "Library" shall mean the organization or entity- identified in the Introduction to this Agreement.
2.10 "Library Website" shall mean the Internet -based Digital Product application operated by the Library that provides
Patrons access to Digital Products operated in association with the Digital Library Reserve and as a component of the
Library vvebsite address (URL) designated by Library in the Introduction to this Agreement.
2.11 "OverDrive" shall mean: OverDrive o , Inc., a Delaware Corporation
2.12 "Patron(s)" shall mean those persons that Library authorizes to access, use, and connect to the Library Website via
the Internet, and doN-,reload products from or otheitivise utilize the Application Services and/or access Digital Products
from the Library using the Application Services.
2.13 "Primary Support" shall mean services provided by Library to its Patrons for its day-to-day support, technical aid,
help and other assistance for Patron's use of the Library- Website, Applications or for any issues arising from the use of its
Libraiv Website.
2.14 "Secondary Support" shall mean technical support services to be provided by OverDrive to Library- including
reasonable efforts to assist Library in providing Primary Support, reasonable efforts to correct, fix, or circumvent errors,
and in the discretion of OverDrive, provide updates, enhancements, and nevv versions of the Application Services.
3. DIGITAL LIBRARY RESERVE APPLICATION SERVICES
3.1 OverDrive shall provide the Digital Library Reserve Application Services to the Library- under the terms and
conditions of this Agreement and the associated license agreements from its DRM or Digital Product and Content
suppliers. This right is non -transferable and applies solely to the server -based operation, management and use of the
Digital Library Reserve applications in unaltered, object code form. Nothing under the terms and conditions of this
Agreement, including any of the Attachments and Schedules, grant any right to Library- to the use of, or access to, any
Application Services source code. This grant does not include any right to reproduce the Application Services, to
distribute copies or versions of any modules of the Application Services to any third parties including its Patrons, or to
make and/or sell variations or derivative Nvorks of the Application Services. Library shall be permitted to customize
portions of the Application Services specifically the patron -facing User Interface on its Website or otheitivise to custom
integrate the Application Services into its operational offerings. Sole ownership of copyrights and other intellectual and
proprietary rights to the Application Services shall remain solely with OverDrive or its suppliers.
3.2 Library assumes responsibility for providing a suitable net-,vork and Internet system for integration of Application
Services into Library's vvebsite or other systems. All parties acknowledge that any expenditures or commitments are
made at the risk of the party making such expenditures or commitments. Libraiv agrees that it shall be responsible for its
own expenses and costs under this Agreement and that OverDrive shall have no obligation to reimburse Library- for any
expenses or costs incurred by Library in the preparation, systems integration, use of the Application Services, or for any
performance of Libraiy's duties hereunder. Specifically, DLR integrates with Libraiv s patron authentication system
using SIP2 or similar protocol. Library shall, at its mvn expense, purchase a SIP2 license, or use an existing such license if
available.
c';2011 OverDrive. Inc.
Digital Library Reserve Content Service Plan Aareement — Monroe Countv Public Library System
3.3 OverDr11 will create and implement a Libraiv Website for Library's use of the Application Services as detailed
in Schedule "A-l" that will include search function (by title category-, author, key -word), multiple categories with multiple
listing option, auditing and reporting functions and access to a protected web portal to manage the Libraiv s catalog of
Digital Product and Content files. Subject to OverDrive's approval, which shall not be unreasonably withheld, OverDrive
will incorporate the Library's name, logos and trademarks in accordance with design suggestions as provided by Libraiv.
Library will have the ability to manage and promote Digital Products from a password protected Digital Library- Reserve
administrative web portal.
3.4 OverDrive may include Libraiv logos and colors on the Library- Website. OverDrive reserves the right to display
its branding, trademarks, logos, and/or other third party marketing or promotional materials related to the Application
Services on the Libraiv Website. OverDrive will implement an inventor- data feed from Content Reserve to the Digital
Libras- Reserve inventory management system to permit Libraiv to browse, select and license rights to Digital Products
in supported formats and as permitted by OverDrive's publishers and suppliers. OverDrive will create the appropriate
doN-,reload links from the Libraiv s Website for the secure deliver- of Content to authorized Libras- Patrons. AllContent
available at the Libras- Website shall have at least a seven (7) day lending period, or other minimum lending period as
otherwise required by suppliers or publishers of Content.
3.5 Digital Libras- Reserve is for remote use only (outside of the Library). Without the use of OverDrive DONwnload
Station software, Patrons and all other users of DLR cannot doN-,reload Digital Content to any Libras- computers or
devices. OverDrive Do -,-,-reload Station software licenses are available for an additional fee.
4. FEES AND PAYMENT
4.1 Schedules "A-l" and "A-2" shall serve as written purchase orders for the Application Services Libras- seeks to
have OverDrive configure and operate under this Agreement. Libraiv shall make payment of applicable fees and or
deposits based on the terms and conditions of Schedules "A-l" and "A-2". Libraiv shall make payments to OverDrive in
U.S. funds Nwithin 30 days of presentation of invoice. OverDrive shall have sole discretion to approve any and all libraries
that seek to participate in the DLR service vwith the organization or entity identified in the Introduction to the Agreement,
as vwell as establish any other terms and conditions related to such expansion.
4.2 Under the terms of this Agreement, Libras- shall receive an Annual Content Collection Credit of Six Thousand
Dollars ($6,000 USD) (at suggested list price) tovward the selection of digital titles. Anytime during the term of this
Agreement Libras- may select additional titles and material subject to standard terms and pricing. Libras- shall make
payments to OverDrive in U.S. funds for Content selections Nwithin thu-ty (30) days of presentation of invoice.
4.3 The payment obligations stated in this Section 4 are exclusive of any federal, state, municipal or other
governmental taxes, sales taxes, duties, excise taxes or tariffs noNw or hereafter imposed on the production, storage, sale,
transportation, import, export, licensing or use of the Application Services or for operation or sales activity of the Libras-
Website. Such charges, shall be paid by Libraiv or, in lieu of payment of any tax, Libras- shall provide an exemption
certificate acceptable to OverDrive and the applicable authority-.
5. COPYRIGHT PROTECTION, PATRON AUTHENTICATION AND DATA SECURITY
5.1 During the Agreement Term and any renewal periods, Libras- Nwill reasonably cooperate vwith OverDrive to
achieve OverDrive's and its Publishers' and suppliers' objectives of protecting certain intellectual property interests
relating to OverDrlve supplied Digital Products and Content. The Libras- shall establish policies and procedures to abide
by the Digital Libras- Reserve Guidelines as described in the attached Schedule `B". Libras- shall provide OverDrive
access to a test Patron account for purposes of validating the system's performance relating to the Application Services.
Libraiv Nwill reasonably cooperate vwith OverDrive to correct or adjust systems as may be required to compensate for any
errors or omissions disclosed by such test. Any such test Nwill be conducted by OverDrive at its okwn expense and during
regular business hours and in such a manner as not to interfere with Libraiv s normal activities. Nothing in this Section
shall entitle OverDrlve to any Patron data or information relating to the identity- of Patrons accessing any components of
the Application Services.
6. RESPONSIBILITIES OF LIBRARY
c';2011 OverDrive. Inc.
Digital Library Reserve Content Service Plan Aareement — Monroe Countv Public Library System
6.1 Libraiv will assign personnel with appropriate skills and expertise in computer, data processing, and related services
to enable operation of the Application Services and the Library Website and to provide Primaiv Support. Library- will use
reasonable efforts to operate its Digital Libraiv Reserve and Library- Website in compliance with the terms of this
Agreement and all Schedules. Upon launch of the service, Library shall include a direct hyperlink and/or logo to the DLR
service from Libraiv s home page. Such link or logo shall be featured no less prominently than other electronic resources
including but not limited to NetLibraiv, Recorded Books and Ingram.
6.2 With the exception of the Application Services configured and hosted by OverDrive, Libraiv is solely responsible
for all aspects of catalog integration, operation, training, support and/or maintenance necessaiv for the operation of the
Libraiv Website. Library- shall keep its Digital Library- Reserve Account information current and alert OverDrive of any
changes in its operation of its Libraiv Website including but not limited to changes of personnel. Library will use
reasonable efforts to ensure that information or data relevant to the operation of the Libraiv Website will be treated as
required by applicable lave and reasonable and customaiv commercial practices.
6.3 Libraiv agrees to perform Primaiv Support for Patrons using its Libraiv Website. Libraiv will perform requested
installation, upgrade, and reasonable technical services for Primaiv Support of the Application Services pursuant to
installation and support procedures and policies as developed by OverDrive and as modified from time -to -time.
OverDrive will provide Library with documentation regarding Primary- Support and OverDrive support personnel will be
available for Secondary Support by e-mail and phone.
6.4 Library will, upon request, promptly cooperate with OverDrive by completing forms, reports, or checklists as
OverDrive may require its Library's to complete as part of an installation, upgrade or provision of the Primaiv Support of
the Application Services. Libraiv shall identifi- and promptly inform OverDrive of any design or programming errors or
omissions in the Application Services, of which it becomes aware.
6.5 Libraiv represents and agrees that it will not make any representations or create any warranties, expressed or
implied, concerning the DLR Application Services products. Library- will take reasonable steps to insure that its
employees, agents, and others under its direction, abide by the terms and conditions of this provision and this Agreement.
6.6 Libraiv shall at its own expense comply with all applicable laves, ordinances, rules and regulations, and Libraiv
shall obtain any and all permits, licenses, authorization and/or certificates that may be required in any jurisdiction or any
regulator- or administrative agency in connection with the use and/or operations of the Application Services. Regardless
of any disclosure made by Libras- to OverDrive of an ultimate destination for users of the Application Services, Libras-
agrees not to export either directly or indirectly any Application Services or system incorporating such Application
Services without first obtaining a license to export or re-export from the United States Government, as may be required
and to comply with the United States Government export regulations, as applicable.
7. OVERDRIVE'S OBLIGATIONS
OverDrive will create a Libras- Website that will be in compliance with the requirements listed in the attachments. As
part of the Application Services OverDrive will either implement the required services directly or oversee the necessaiv
procedures to assure compliance with the Digital Libras- Reserve guidelines. OverDrive will use reasonable efforts to
make the Application Services perform substantially in accordance with the product description, as it may exist from time
to time. However, Libras- acknowledges that inevitably some errors may exist in the Application Services, and the
presence of such errors shall not be a breach of this provision. OverDrive's sole obligation with regard to such errors shall
be to use commercially reasonable efforts to correct such errors and provide Secondaiv Support as stated in this
Agreement. Such services will be provided by phone or email. Such services will be provided at such times as are
mutually agreed upon by the parties.
8. OVERDRIVE'S OPTION TO MODIFY OR DISCONTINUE APPLICATION SERVICES
8.1 OverDrive has the right, at any time, to make such modifications to the Application Services as it sees fit to the
operation, performance, or functionality- of the Application Services or as required by OverDrive's suppliers.
8.2 OverDrive has the right, at any time, to discontinue distribution of any or all Application Services or versions of
Application Services, to remove supported Application Services or versions of supported Application Services from
c'2011 OverDrive. Inc.
Digital Library Reserve Content Service Plan Aareement — Monroe Countv Public Library System
OverDrive's supported Application Services list, or to discontinue support, maintenance, or the provision of nevv versions,
updates, or corrections for any Application Services or for any version or for any hardware or Application Services
platform or operating system. If such a discontinuance of distribution of the Application Services or of support,
maintenance or the provision of nevv versions, updates, or corrections materially impairs the value of this Agreement to
Library, Library- shall have the option to terminate this Agreement and receive a pro-rata refund of any Application
Service Fees paid; such option to terminate shall expire after sixty (60) days from the date notice of impairment is given.
9. WARRANTY
9.1 OverDrive represents and warrants to Library that is has the necessaiv rights to enter into this Agreement and that
it has the necessaiv ownership and intellectual property- rights and licenses to the Application Services to grant the
licenses herein. OverDrive warrants that the Application Services will operate as intended if properly used by Libraiv and
Patron. If any errors are discovered, Library shall promptly notifi- OverDrive in writing as to the description of the
problem, whereupon OverDrive shall use reasonable efforts to correct such problems within a reasonable time thereafter.
Corrections will be provided to Library with instructions for implementation. The remedies set forth in this Agreement
shall be Libraiv's sole remedies for breach of this Agreement.
9.2 THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR
IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
THE RIGHTS AND REMEDIES GRANTED TO LIBRARY AND ITS PATRONS UNDER THIS PARAGRAPH
CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF LIBRARY AND LIBRARY'S PATRONS AGAINST
OVERDRIVE FOR BREACH OF WARRANTY, EXPRESS OR IMPLIED, OR FOR ANY ERRORS OR DEFECTS IN
THE APPLICATION SERVICES. IN NO EVENT SHALL OVERDRIVE OR ITS SUPPLIERS BE LIABLE TO
LIBRARY OR LIBRARY'S PATRONS FOR ANY DAMAGES ARISING FROM OR RELATED TO FAILURE OR
INTERRUPTION OF THE APPLICATION SERVICES, OR FOR INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES, OR FOR LOSS OF PROFIT OR OPPORTUNITY, LOSS OF USE OR OTHER FINANCIAL LOSS
ARISING OUT OF OR IN CONNECTION WITH THE LICENSE, TRANSFER OR USE OF THE APPLICATION
SERVICES. IN NO EVENT SHALL OVERDRIVE'S LIABILITY HEREUNDER EXCEED THE TOTAL AMOUNT
RECEIVED BY OVERDRIVE UNDER THIS AGREEMENT.
10. INDEMNIFICATION
10.1 OverDrive agrees to indemnify Library against liability- and expense, including reasonable attorney fees, arising
from any breach of OverDrive's warranty that it has the required rights to the Application Services and that the
Application Services does not infringe any ownership or intellectual property- right of a third party, provided that
OverDrive: (i) is notified immediately after Library receives notice of such claim; (ii) is solely in charge of the defense of
and any settlement negotiations with respect to such claim; (iii) received Library's cooperation in the defense or
settlement of such claim; (iv) has the right, upon either the occurrence of or the likelihood (in the opinion of OverDrive)
of the occurrence of a finding of infringement, either to procure for Libraiv the right to continue use of the Application
Services, or to replace the relevant portions of the Application Services with other equivalent, non -infringing portions. If
OverDrive is unable to accomplish either of the options set forth in (iv) above, at OverDrive's option OverDrive shall
either remove the portion of the Application Services in issue and refund to Library- the value of such portion, or remove
the entire Application Services and refund to Library- the entire amount paid pro-rata under this Agreement as it relates to
the incident that gave rise to the claim.
10.2 OverDrive shall have no obligation to Libraiv to defend or satisfi- any claims made against Libraiv that arise from
use, marketing, licensing, or disposition of the Application Sofrivare by Library- other than as permitted by this
Agreement. OverDrive shall not be responsible to indemnifi- Library- for claims arising from the use or license of third
party- software including DRM where OverDrive is not afforded such corresponding indemnification from said third party
vendor. In the event a claim arises from use of non-OverDrive technology, where the vendor of such product or
technology does not indemnifi- OverDrive, then OverDrive is not liable to extend indemnification under this section to
Libraiv for anv such claims.
c'2011 OverDrive. Inc.
Digital Library Reserve Content Service Plan Aareement — Monroe Countv Public Library System
11. TERM AND TERMINATION
11.1 This Agreement shall take effect on the Effective Date. Unless sooner terminated in accordance with the relevant
provisions of this Agreement, or pursuant to the Early Termination provision of Schedule "A-2," the initial term of this
Agreement shall be for four (4) years. This Agreement may be renewed for an additional twenty-four (24) month term
upon written agreement by the parties.
11.2 This Agreement is a commitment of the current revenues only of the Library. Library represents and warrants
that it has appropriated and budgeted the necessaiv funds to make all payments required pursuant to this Agreement for
the remainder of the fiscal year in which the payment term commences; and that it currently intends to make payments for
the full contract term as scheduled in the applicable payment schedule herein if funds are appropriated for the payment in
each succeeding fiscal year by its governing body. Libraiv reasonably believes that monies in an amount sufficient to
make all payments can and will lawfully be appropriated. If Library's governing body fails to appropriate sufficient funds
in any fiscal year for payments due and if other funds are not legally appropriated for such payment, then a non -
appropriation event shall be deemed to have occurred. If a non -appropriation event occurs, (1) Library shall give
OverDrive immediate notice of such non -appropriation event and provide written evidence of such failure by Library's
governing body; and (2) the Agreement shall terminate on the first day of the fiscal year in which funds are not
appropriated.
I1.3 In the event of a filing by or against either pait< of a petition for relief under the United States Bankruptcy Code
or any similar petition under the insolvency laws of and, jurisdiction, where such filing is not dismissed within thirty ( )
days after the date of the filing, or should Library- discontinue the operations relevant to this Agreement, then the other
party- may immediately terminate this Agreement upon written notice.
11.4 In addition to provisions authorizing termination hereunder, either pait< shall have the right to terminate this
Agreement as a result of a material breach of the Agreement by the other party that is not cured within thirty (30) days
after written notice of such breach.
11.5 Upon termination of this Agreement, and except as othei-vvise provided in this Agreement, the license granted to
Libraiv by this Agreement shall be terminated immediately, Libraiv shall make no further use of all or any part of the
Application Services, Content or any confidential information received from OverDrive.
11.6 The provisions of this Agreement concerning confidential information and indemnification shall survive the
termination and/or expiration of this Agreement, and termination shall not relieve either party of the obligation to pay any
amount due to the other.
12. GENERAL PROVISIONS
12.1 Independent Contractor. OverDrive and Libraiv are independent contractors under this Agreement and nothing in
this Agreement authorizes either party to act as a legal representative or agent of the other for any purpose. It is expressly
understood that this Agreement does not establish a franchise relationship, partnership, principal -agent relationship, or
joint venture. Neither pait< shall have the power to bind the other with respect to any obligation to any third pait< Each
pait< is solely responsible for its employees, including terms of employment, wages, hours, required insurance, and daily
direction and control.
12.2 Confidential Information. Both OverDrive and Libraiv acknowledge that each will receive confidential
information from the other relating to technical, Application Services and operational affairs of the other. Each pait<
agrees that all confidential information of the other party shall be held in confidence and shall not be disclosed, not
withstanding any laves and regulations permitting public access to documents and information that are considered public,
pursuant to Florida Statute Chapter 119.
12.3 Announcements. OverDrive and Libraiv may issue, at a mutually agreed upon time and in a mutually agreed
upon form, a public announcement relating to this Agreement. OverDrive and Library- will each give the other party- the
opportunity to review and approve, in advance of its issuance, any public announcement or publicity- relating to this
Agreement or any aspect of the parties' relationship hereunder.
c'2011 OverDrive. Inc.
Digital Library Reserve Content Service Plan Aareement — Monroe Countv Public Library System
12.4 No Exclusivity-. This Agreement is not exclusive and does not impose any obligation on either party with respect
to competing relationships or opportunities.
12.5 No Waiver. The failure of either party to exercise any right or the waiver by either pait< of any breach, shall not
prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same of any other term
of the Agreement.
12.6 Notice. All notices, requests, demands or other communications required to be given pursuant to the Agreement
shall be in writing and shall be deemed to have been given, if sent by U.S. mail, registered or certified mail, return receipt
requested, postage prepaid, addressed to the parties at their place of business or to such other addresses as the parties
direct in writing. Notice to OverDrive shall be addressed to OverDrive at the address provided in the Introduction,
Attention: President or to such person or to such address as OVerDrlVe may designate. Notice to Libraiv shall be
addressed to the address for Libraiv in the Introduction to this Agreement, Attention to the individual signing on behalf of
Libraiv or to such person or to such address as Library- may designate.
12.7 Force Majeure. Neither party shall be deemed in fault of this Agreement to the extent that performance of their
obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster,
accident, act of government, shortages of materials or supplies, or any other causes beyond the control of such party
provided that such party gives the other written notice thereof promptly and, in any event, within fifteen (15) days of
discover- thereof and uses its best efforts to cure the delay. In the event of such Force Majeure, the time of performance
or cure shall be extended for a period equal to the duration of the Force Majeure but in no event shall exceed three (3)
months.
12.8 Assignment. OverDrive may assign this Agreement, upon written approval by the Libraiv, which shall not be
unreasonably withheld. This Agreement may not be assigned by Libraiv, nor any duty hereunder be delegated by Libras-
without the prior written consent of OverDrive. Subject to the foregoing, this Agreement shall be binding upon and inure
to the benefit of the parties to this Agreement and their respective heirs, legal representatives, successors and permitted
assigns.
12.9 Limitations of Liability. In the event of failure of either party to fulfill any of its obligations hereunder, the initial
remedy of the other party under this Agreement shall be to request performance of such obligation. If such performance is
not rendered, the other party may terminate the Agreement pursuant to Paragraph I L'), and where appropriate, bring an
action for any moneys due and payable hereunder for services rendered. However, either pait< shall be entitled to enforce
its rights regarding patents, copyrights, trademarks, or trade names, by any appropriate action, including actions for
damages and equitable relief.
12.10 Injunctive Relief. The parties to this Agreement recognize that a remedy at law for a breach of the provisions of
this Agreement relating to confidential information, use of OverDrive's and/or DLR's trademarks, copyright, and other
intellectual property rights, and/or Non -competition, will not be adequate for OverDrive's protection, and accordingly
OverDrive shall have the right to obtain, in addition to any other relief and remedies available to it, injunctive relief to
enforce the provisions of this Agreement.
12.11 Severability. In the event that a court of competent jurisdiction determines that any portion of the Agreement is
unenforceable, void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall
continue in effect as though such invalid provisions were deleted.
12.12 All Disputes Arising From the Agreement. This Agreement shall be governed by the laws of the State of Florida,
without regard to any conflict of laves principles.
12.13 Entire Agreement. This Agreement constitutes the entire Agreement and understanding of the parties and
supersedes all prior and contemporaneous Agreements, understandings, negotiations and proposals, oral or written.
Section headings are provided for convenience purposes only and do not provide any modifications or substantive
meaning to the terms and conditions of this Agreement. This Agreement may be amended or modified only by a
subsequent Agreement in writing signed by each of the parties and may not be modified by course of conduct.
c'2011 OverDrive, Inc.
Digital Library Reserve Content Service Plan Aareement — Monroe Countv Public Library System 7
12.14 Binding. This Agreement shall be binding and inure to the benefit of the parties hereto and their respective
successors. In the event OverDrive enters into an agreement to sell substantially all the assets of OverDrive, this
agreement shall be binding upon the purchaser.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized representatives:
Accepted and Agreed.
OverDrive, Inc.
("Over])rivel)
8555 Sweet Valley Drive, Suite N
Cleveland, Ohio 44125 USA
By (signature):
Name (Pfint)--44�,w,?/
Title:
Date:
Witness:
Printed Name:, UO-,—\
Witness: . .....
Printed Name: A A &209 2A aka
Monroe County Board of County Conunissioners
("Library" j
700 Fleming Street
Key West, Florida 33040 USA
By (signature):
Mayor, Heather Carruthers
(SEAL)
Attest: DANNY L. KOLHAGE, CLERK
0
Deputy Clerk
fV 0 N R 0 E 0 , 0! Y ATTC Y
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020111 OverDrive, Inc.
Digital Library Reserve Content Service Plan Agreement — Monroe County Public Library System
Schedule "A-l"
Digital Library Reserve
Application Service and License Fee Schedule - (Content Service Plan)
The following modules comprise Digital Library Reserve library services for library administration of a circulating digital content collection. All prices are in
USD.
Application
pp
Configuration
License and
Fee
Hosting Fee
Digital Library_ Reserve Server
DLR is the digital content repositoiv and database established for
Per Schedule
Per Schedule
(DLR-S)
each libraiv. Included is support for delivery and fulfillment of
A-2
A-2
Adobe software compatible with DRM-protected eBooks,
Mobipocket PDA titles, and digital audio books. Includes associated
copyright protection setvices (DRM). Included with this fee are all
third party software and technology licenses. Setvices are hosted at
the secure DLR hosting center. Access to library-managedsetvices is
accomplished via secure admire web setvices. The library utilizes a
PC, Internet connection and Web browser (Internet Explorer 5.5 or
higher) to administer its digital collection. No additional hardware or
software is required by library.
DLR Patton Website
This is the patron facing website that incorporates the library's look-
Included
(DLR-PW)
and -feel. The Patton Website is a complete digital book center
providing browsing, searching, promotional and checkout setvices for
patrons to explore and download digital media to their own PC or
mobile devices.
DLR Content Resetve
This module enables the library collection staff to administer approval
Included
Collection Access
plans and development profiles to aid in building its digital content
(DLR-CRCA)
collection from Digital Library Resetve. Each account has access to
digital media from leading publishers. Digital Library Resetve offers
a large collection of best-selling popular, academic, business and
educational titles.
DLR Patron Authentication
OverDrive personnel will work with library automation personnel to
Initial
Subsequent
Integration
integrate its existing patron authentication system. Will support
integration of
integrations
(DLR-PAI)
present library card, student ID, or other authentication to insure
one IL
may be
access of titles is limited to library patrons.
included
subject to
additional fees
DLR OPAC Record
OverDrive will assist Library to coordinate access to MARC records
MARC Records available for
Integration
for integration into the library catalog for patron searching and direct
purchase from OCLC
(DLR-OPAC)
access to eBook and audio book titles. Included in the record will be
a direct link for patrons to view the eBook and audio book title and
status for lending. MARC records are available for purchase by
Library from OCLC.
DLR Open Content
This module permits uploading digital content from other sources into
Included
Collection
the collection. This permits direct management of supported files and
(DLR-OPC)
setting DRM to manage copyright protection and circulation of the
title. This also enables the library to acquire eBooks and other
documents directly from publishers and authors.
DLR Windows Media
Support for download or streaming of copyright protected digital
Included*
Increased
Setver
audio and video using Microsoft Windows Media Series 9 and up.
bandwidth
(DLR-WMS)
* OverDrive reserves the right to limit bandwidth and impose additional hosting
Subject to
fee charges.
additional
charges
c';2011 OverDrive. Inc.
Digital Library Reserve Content Service Plan Aareement — Monroe Countv Public Library System
Schedule "A-2"
Digital Library Reserve
Content Service Plan Fee Schedule
1. Annual Application License and Hosting Fee: Library- shall pay OverDrive an Annual Fee of $12,000. This
includes all fees for all services including the DLR System License, configuration and customization ofNvebsite
services, third party software licenses, hosting and maintenance of the application services, training, plus the
annual credit for Digital Products. OverDrive shall submit initial invoice to Library Nvithin thu-ty- (30) days from
the Effective Date of the Agreement.
2. Annual Content Credit: Library- shall receive an Annual Content Collection Credit of $6,000 toward the
selection of Digital Products. Anytime during the term of this Agreement Library- may select additional titles and
material subject to standard terms and pricing. Libraiv shall make payments to OverDrive in U.S. funds for
Content selections Nvithin thirty (30) days of presentation of invoice.
3. Term: The initial term of this Agreement shall be for four (4) years from the Effective Date. The Agreement may
be renewed for txventy- four (24) months upon written agreement by the parties.
4. Early Termination: In addition to the provisions of this Agreement authorizing termination, Libraiv shall have
the option to terminate this Agreement Nvithout cause, after an initial term of eighteen (18) months from the
Effective Date ("Early Termination"). Libraiv shall provide OverDrive ninety- (90) days prior written notice of
termination. In the event Libraiv exercises Early Termination, Library acknowledges that its access to the
Application Services as Nvell as any interest in the Content purchased shall terminate and Libraiv shall make no
further use of the Application Services and/or the Content.
c'2011 OverDrive, Inc.
Digital Library Reserve Content Service Plan Aareement — Monroe Countv Public Library System 10
Schedule "B"
Digital Library Reserve and Library Website Guidelines
1. Patron Support Resources
Library Nvill provide Primary Support for its Patrons via e-mail and/or by phone in direct support of all Patron inquiries,
issues, and problems relating to the Library Website. Library Nvill post on the Libraiv Website OverDrive supplied
Frequently Asked Questions (FAQs) and other support information and links to assist Nvith providing Patrons Nvith
answers to frequently asked questions. Libraiv Nvill cooperate Nvith OverDrive to implement practices as recommended by
OverDrive to reduce the instances of Patron technical support issues.
2. Copyright Protection, Patron Authentication and Data Security
Libraiv Nvill take reasonable steps to prevent unwarranted intrusion into data managed or maintained by OverDrive or on
behalf of Libraiv and acquired in the course of Libraiv s operation of Library's Application Services. This includes
reasonable steps to protect its password and access to Libraiv s administrative Nvebsite for management of its Digital
Libraiv Reserve and Libraiv Website.
For Digital Products and Content which Library acquires rights from OverDrive's Content Reserve for re -distribution and
lending to Patrons, Libraiv agrees to deploy the follo-,ving practices and methods to respect the Copyright Protection and
Patron Authentication terms of OverDrive's Publishers and suppliers:
A. Libraiv Nvill respect and deploy the DRM protection settings as designated by Publisher that may restrict copying,
sharing and/or printing.
B. Libraiv acknowledges that Digital Product titles selected will not entitle Library- to access a copy of the title, but
Nvill enable its Libraiv Website the right to provide doN-,reload access to the title for their Patrons as fulfilled
through the Application Services after the DRM services have been applied.
C. Library is not granted any license to use titles for any "online" use, except for the display of Digital product cover
art, excerpts and metadata as designated by Publisher and available from Content Reserve.
D. Library Nvill be alloNved to loan to their patrons or "check-out" Digital Products or Content via a doN-,reload link
from the Libraiv Website. Libraiv acknowledges that all circulating Digital Products Nvill have a predetermined
period for an automatic self -expiring use period or "time-out", which shall not be less than seven (7) days or other
minimum lending period as required by publishers and suppliers.
E. A Digital Product in the Libraiv s Website that is checked out by a Patron Nvill not be available for another Patron
to check out unless multiple copies of the title have been selected by Libraiv, or until the expiration period of the
first Patron's time period has expired.
F. Libraiv Nvill take reasonable measures to ensure that only authorized Patrons of their Libraiv have access to the
Libraiv Website for access to Digital Products or Content.
G. Access to the Application Services shall be limited to those patrons of the Libraiv that have the required relation
to the Library- to receive a libraiv card ("Authorized Patrons"). Libraiv shall not provide access to the Application
Services to anv end users who are not Authorized Patrons. Authorized Patrons shall be defined as individuals
who can provide proof of residency, employment, or enrollment in school or similar institution in the Library's
service area. Online library- card applications and issuance, Nvith or Nvithout any fees, that provide access to the
Application Services Nvithout proof of the required libraiv relation (as referenced in the foregoing sentence) shall
not be permitted. OverDrlve reserves the right to immediately terminate this Agreement if Library provides
access to the Application Services to end users who are not Authorized Patrons.
3. Third Party Logo and Trademark Use Guidelines
Libraiv acknowledges that its Library Website will utilize and rely upon third party soft-,vare and technologies provided
by ONerDrlve, Microsoft Corporation, Adobe Systems, Inc., and other technology suppliers. OverDrlve shall provide to
Library the applicable guidelines for utilizing the registered trademarks, logos, and software products associated with
Libraiv's operation of the Libraiv Website. Libraiv agrees to abide by the terms and conditions of these third party-
suppliers. OverDrlve Nvill provide to Libraiv all necessaiv links, art, logos and instructions to permit Libraiv to comply
with this provision.
c';2011 OverDrive. Inc.
Digital Library Reserve Content Service Plan Aareement — Monroe Countv Public Library System 11
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May 18, 2011
Anne Layton Rice
Monroe County Public Library System
700 Fleming Street
Key West, Florida 33040
RE: OverDrive as a sole source provider
Dear Ms. Rice:
OverDrive provides a series of services and digital content materials that enable public libraries to lend download popular
audiobooks, eBooks, music, download video and other digital content via the library's website.
Uniquely available only from OverDrive as a sole source provider, we offer a system that combines:
• A customized website service for download digital materials integrated with the library's ILS system for real-time patron
authentication
• Control for the library to set digital book lending policies and manage access and usage of materials
• Download eBooks capable of operating on portable devices such as iPads, Blackberrys and Smartphones, as well as on
all generations of the Amazon Kindle
• OverDrive Media Console for Windows and MACs, a single integrated desktop client software application for use of
download audiobooks, music and video
• Download audiobooks and music with accessibility features for the blind and visually impaired
• Download audiobooks and music divided in parts, some with permissions for patrons to burn to standard CD
• OverDrive MP3 Audiobooks compatible with MAC/OS, iPods and other Apple devices
• Digital audio and eBook materials from Brilliance Audio, Hachette, HarperCollins, Weston Woods, Phoenix Audio and
other publishers only available from OverDrive
• Download video materials including documentaries, travelogues, feature films and concerts for use with the same
integrated desktop client that supports audiobook and music titles
As a result of the combination of the above referenced items as well as OverDrive's patents, copyrights and secret
processes, OverDrive is the only vendor to offer these services and materials and we have enjoyed adoption and success as
the sole source supplier of the foregoing to many leading public libraries around the world. Please do not hesitate to contact
me for further information.
Very truly yours,
Steve Potash, CEO
OverDrive, Inc.
spotash@overdrive.com
(216) 573-6886 ext. 201