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Item C15 . .; BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 06/20/01 Division: Community Services Bulk Item: Yes L- No Department: Library Services AGENDA ITEM WORDING: Approval of agreement between Monroe County Public Library and netLibrary, Inc. for participation in the State Library of Florida program offering eBook access to libraries and their patrons. ITEM BACKGROUND: Utilizing Federal grant funds, the State Library of Florida has pursued and financed a license agreement on behalf of all Florida Public Libraries to offer access to the SOLINET Shared Collection of netLibrary eBooks. The purpose of this project is to provide an opportunity for Florida Public Libraries to introduce eBook access as a new, free resource to library patrons. There is no cost to the Monroe County Public Library to participate in this program. PREVIOUS REVELANT BOCC ACTION: None CONTRACT/AGREEMENT CHANGES: N/ A STAFF RECOMMENDATIONS: Approva I TOTAL COST: $0 COST TO COUNTY: ~ BUDGETED: Yes NoX REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year APPROVED BY: County Ally 'f.< ;MB/purchasin~ Risk ManagementLJ.fr ' DOCUMENTATION: Included X- DIVISION DIRECTOR APPROVAL: To Follow_ Not Required_ DISPOSITION: AGENDA ITEM #l:U5 Revised 2/27/01 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SUMMARY Contract with: NetLibrary, Inc. Contract # Effective Date: Expiration Date: Monroe County upon execution one year from execution Contract Purpose/Description: Agreement between Monroe County Public Library and netLibrary, Inc. for partipation in the State Library of Florida program offering eBook access to libraries and their patrons. Contract Manager: Anne Layton Rice (Name) 3594 (Ext. ) Library Services #6 (Department/Stop #) for BOCC meeting on 06/20/01 Agenda Deadline: 06/06/01 CONTRACT COSTS Total Dollar Value of Contract: $ 0 Budgeted? YesD No D Account Codes: Grant: $ County Match: $ Current Year Portion: $ 0 - ---- - - - ---- ADDITIONAL COSTS Estimated Ongoing Costs: $_/yr For: (Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.) CONTRACT REVIEW Changes D7te ~ Needed Division Director 5 g {ol YesD No Risk Management - c;- ( , I f c I o,Wur~ S.G\,O \ County Attorney >/r (01 Date Out Comments: OMB Form Revised 2/27/01 MCP #2 OIVISH)NS Of FLORIf),1 IJf:rARPI!:,'>iT Of: Sf ,I II omce 01 (he Sec,eu,)' Office of In(c:m~lIon.a1 Relallons Division of Eleclions DIVision OrCOrpoullons DIVIsion o[CullUral AffairS DiviSIOn of H,sloncal Resources D,VISion of Library and Informallon ServIces D'\"I5100 of LICenSing DIVISion of AdmlnlSlralr\C Scnlccs SIA1C Board of LJuCH,on TrlJ<;lccs of rhe fnlC'rnallmpro\'crncnl Trus! Fund AJfll1nl'ilrallOn CommissIon t fonda I.and and V':,lIer Ad)uJrc.l1ory Commission SHlng Bo.1fd D'\'[SIOn of Hond FIIl.lnCC DCP.l1HTlCIll of R.C\'CfllJC Dcpanmcnl of L,lW Enforcement DqJJrlrncnl of 1I1~h\'J\" Safely and MOlor VehICles FLORIDA DEPARTMENT OF STATE [)cr"n/l1cn, oIVclcr""s AfrallS Ka therine Ha rris Secretary of State OrVISION OF LIBRARY AND INFORMATION SERVICES .\f!:,\fIIfR(lI 1III IIOIllllI(l/lr'!:1 To: Florida Pub1ic Librar dministrators From: Barratt Wilki tate Librarian Date: Subject: State-wide access to the SOUNET Shared Collection of netLibrary eBooks and Instructions on How to Order and Implement the Program, I have good news to share with you regarding access to a new information medium of importance to public libraries and their patrons: eBooks. Through an agreement with SOLINET, The State Library of Florida is able to offer access for Florida Public Libraries to the SOLINET Shared <;:2ollection of netLibrary eBooks at av.ery affordable introductory cost. Consequently, I have made the decision to pursue a license agreement on behalf of all Florida Public Libraries using LST A funds to make access available in perpetuity to the initial netLibrary SOLINET Shared Collection. The Tampa Bay Library Consortium (TBLC) has agreed to act as the Administrative Agent for this project The purpose of this project is to provide an opportunity for Florida Public Libraries to introduce eBook access as a new service to your library patrons and to test the implementation and use of eBooks as a new information resource, Through this program 11,000 eBook titles will be accessible "in perpetuity" to your patrons by October 2000. SOLINET estimates that the collection will grow to over 20,000 titles by March 200 I, Participation in this project will require that you make the SOLINET Shared Collection of netLibrary eBooks available to your library patrons and agree to participate in periodic evaluations of the program conducted by State Library staff. There is no cost to Florida public libraries that elect to participate in this program for the initial offering through SOLINET. , \. Florida public libraries will gain access to the SOLINET Shared Collection during October 2000. There is no "end date" for access to the collection, However, eventually, the initial SOLINET Shared Collection will be closed (no new titles added) as orders decrease, At that point. individual Florida public library panicipants have various options to choose that may include: I) continue to panicipate in nevy' collections at their own expense through the next SOLINET Shared Collection offer, 2) work directly with netLibrary for their own unique collections, or 3) limit participation to only the initial Shared Collection described above. OST,.\TlIIIlH\I< YUill (JI<J1),.\ H \ (;ra~ Ilurldlfl~. Tallallie'''''' I l"r"Li 1] 1()().02<O. I~<O) 4R7.]6< I 1\.\ (RiO) -lRR.27.1i>. I [)I) (k<I)1 'J,)].Hi,~', Il"p:l/\\\\\\,do"""'r.nu, U/ I 1.1\1 ,.\IIVI I lIlIL\HY \IHVI(/ U I< I(()J<I!\ ,\1\',\1.1 :\11'</ \II<VI(I.\ UII (JI<lI),\ \1\/1 ,\1<( IlIV/ \ (,~il)) '"S.'SI]. 1.\.\ (R'I': I,~X.')P') IX<()) .IX'':'IXI'. I \ \ rk'II, 111 7'.' I ,S'()) ,IX) .'11:;.1\ -., I,~"', IX,~ j,~') I Page :2 /\tLlched you will find d d()CUll1efll offering d cksulptl()n\)f the tltiL'S Included cliiL'd ^bout the SUl.INLT Shared Collection as \\ell as a list ollreljlH:'ntly ^skcd Qucstlons and ^nswcrs Two additional documcnts provided by SOLINLT arc also enclosed that you will find helpful In understanding the SOLlNET Shared Collection program They arc netLibraryCom Features and Services and The netLlbrary Escrow Plan. If you have additional questions regarding this program that are not addressed in the information provided, please direct them to Mark Flynn at (850) 487-2651, or mflynn~mail.dos.state.flus. How to Place an Order: In order to participate in this program you must sIgn and return the three documents enclosed in this information packet. They are: I) the SOLINET and NetLibrary Shared Collection Order Form; 2) the SOLINET Subscriber Agreement; 3) the Member Terms and Conditions AgreementINetlibary eBooks Library Agreement. Please return these forms to Beth Watson, Tampa Bay Library Consortium, 1202 Tech Blvd" Suite 202, Tampa, FL 33619. If you need assistance with filling out the fOlms, you may contact Beth at (8 I 3) 622-8252 or email her at watsonb@ltblc.org, Please allow four weeks for SOUNET and NetLibrary to process your order. Once your order is processed you will be notified of activation of the service by email. Also, at that point, a netLibrary representative will contact your library to assist you with implementation. I thank all of you for your active involvement in this program and invite you to share your experiences with me and the State Library staff relating to the use of eBooks. Your continued input is very important to us as we embark upon this cooperative venture for Florida's public libraries. ~'l " . MEMBEI{ TERMS AND CONDITIONS AGREEMENT NETLlBRARY cBOOKS ""mARY ACI{EE!\1Ei\T TillS NETLlBRt\RY eBOOK L1BR!\RY ;\CJREEMENT (tillS "Agreement") dated________ 2001 IS between Monroc County Board of County Commissioners ("Customer") and netLibrary, Inc, a Dclaware corporation ("NL") Recitals A N L 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 tenns 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 tenns 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 I. PURCHASE OF EBOOK LICENSES 1,1 Purchases by Customer; Designation of Distributor. From time to time during the tenn of this Agreement, Customer may purchase from NL or through Consortium licenses to eBooks, as selected by Customer, on the price, discount and payment tenns 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 A~~eement, 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 extcnt permitted by such copyright laws. ARTICl.I; 2. NETLlBRARY.COM SERVICES 2 Provision Orsen'\CeS DUling the term orthis Agreement, NL shall provide to CustomCI' the "Member nelLibrary.com" and related services (the "nelLlbrarycom Services") deSCribed on Exhibit A to the Consortium Agreemcnt. 2.2 Patron Usage (a) Customer will be solely responsible ror determining which or Customer's Patrons will have access to Member netLibrary.com under the terms or 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 or netLibrary.com in the event that such Patron violates the Terms or 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 capa'ble 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 or the confidentiality provisions of this Agreement) or otherwise has committed breaches of this Agreement that, in the aggregate, are material. .1.J 1l!llitcd Warranty, NL warrants that, as to any eBooks sold or licensed to Customer hereunder, I\L has the necessary authority to sell or license such eBooks to Customer and, as applicable, to provide the netLlbrary.com Services to Customer. Otherwise, NL's sole warranty hereunder IS, as applicable, that NL will use commerCially reasonable efforts to provide the netl.lbrary.com Services as desnlbed In tills Agreement 3.4 Warranty DlsclalllleT, LXCEPT AS EXPRESSL Y PROVIDED IN SEC'TION J 3, MEMBER NETLlBRAR Y COM. TilE NETLlBRAR'r'COM SERVICES, AND Till: EBOOKS LICENSED IIEREUNDER ARE PROVIDED AS-IS WITIIOUT WARRANTY OF ANY KIND AND NL AND ITS CONTENT PROVIDERS AND CONSORTIUM EXPRESSL Y 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 REPRESENTATIONS 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 MA Y 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 of fees, 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 12-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"ll!ntitled 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 of NL Nothing in thiS section shall restrict usage of Member netLibrary.com by Patrons. (b) I:ntllT J\~reement. TillS Agreement sets forth the entllT agreement between the parties hereto with respect to the sublcctmatter hereof, merges all diSCUSSions bctween 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 Maieure. Customer acknowledges that the Internet is an unsecure, unstable, unregulated, unorganized and unreliable environment, and that the ability of NL 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 of laws 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. U) 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 I:-Matllfreceiptlfconfirmed. The parties recognize that a NOlice might not be deemed effective ifreceipt IS not confirmcd. Notices shall be addressed to the party to be so notified as follows If to NL net Library, Inc. Attention. Richard L. Rosy 301\0 Ccnter Green Drive Boulder, Colorado 1\030 I Telephone: (303) 415-2541\ fAX: (303) 381-8600 E-Mail address:ITllS\.lIlll.111I1I.11.\ .COlll I f 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, (I) Successors and Assigns. 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, I, NETLIBRARY, INC., a Delaware corporation By: Name: Title: Customer: By:___ Namc: Titlc: