Item C31
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY -
Meeting Date: September 18, 2002 Division: Community Services
Bulk Item: Yes ~ No 0 Department: Library Services
AGENDA ITEM WORDING: Approval of amendment to agreement between
Monroe County and netLibrary 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
financed a license agreement on behalf of all Florida public libraries to offer
access to a 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 Monroe County Public
Library to participate in this program.
PREVIOUS RELEVANT BOCC ACTION: Approval 11/21/00 of agreement.
CONTRACT/AGREEMENT CHANGES: NetLibrary's assets were recently
purchased by the non-profit organization, Online Computer Library Center, Inc.,
necessitating modification of existing agreement language. Please see attached
netLibrary letter detailing amendments to the agreement.
STAFF RECOMMENDATION: Approval
TOTAL COST: $0 BUDGETED: Yes 0 No [g]
COST TO COUNTY: $0
REVENUE PRODUCING: Yes 0 No [g] AMOUNT PER MONTH
YEAR
APPROVED BY: COUNTY ATTY ~MB/PURCHASING [B' RISK MANAGEMENT cg--
,
i
I
DIVISION DIRECTOR APPROVAL: ~
~ James E. Malloe
DOCUMENTATION: INCLUDED: TO FOllOW: 0 NOT REQUIRED: 0
DISPOSITION: AGENDA ITEM #: C.L?/
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract with: Online Computer Contract # MonroeCoFla
Center, Inc. ("OCLC") Effective Date: Upon execution
Expiration Date: Upon termination
Contract Purpose/Description:
Amendment to agreement between Monroe County and netLibrary, a division of
OCLC, for participation in the State Library of Florida program offering eBook
access to libraries and their patrons.
Contract Manager: Anne Layton Rice 3594 Library Services, Stop #6
(Name) (Ext.) (Department/Stop #)
for BOCC meeting on 09/18/02 Agenda Deadline: 09/04/02
CONTRACT COSTS
." ,
Total Dollar Value of Contract: $0 Current Year Portion: $
Budgeted? YesO No I:8'l Account Codes: _-_-_-_-
Grant: $ $0 _-_-_-_-
County Match: $ $0 _-_-_-_-
- - - -
----
ADDITIONAL COSTS
Estimated Ongoing Costs: $Qjyr For:
(Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, ete,)
CONTRACT REVIEW
Date Out
Date In
Division Director 7/'1 Ie 2. __ .
Risk Managementq-3 -0,)- YesD Nol2] . .~~!
OoMoBolPurchasing:-/J]cn- YesDNor;;r- ~
County Attorney Y/ZS/ti2- YesO NoIT
Comments:
OMB Form Revised 2/27/01 MCP #2
(nfiID Li~ ra ry
To All netLibrary Participants:
The purchase of netLibrary Inc.'s assets by OCLC Online Computer Library Center, Inc. in January of this
year created the need for modification of some of the language in our existing standard agreement.
These changes serve to more accurately reflect our role within the OCLC organization as well as to
define several business decisions that were made as the two organizations began the process of
integration.
While all of the changes outlined below have been communicated to you previously, we have now
formally updated our contract language to reflect those changes, and copies of the amendment are
enclosed.
Here are highlights of the changes you will find reflected in the enclosed amendment:
. Language reflects our role as part of a non-profit organization serving libraries,
. Language updates definitions used in the contract.
. The term "perpetual access" has been redefined as "ongoing prepaid access."
. Language has been added recognizing that technology changes mayor may not result In
changes to the netLibrary platform in the future, which could result in additional costs to be
passed on to libraries in order to ensure they have ongoing access to purchased content using
the current technology.
. The protection of eBooks has been enhanced by updated sections about Limiting Access
Measures, Terms of Use and Tools.
. Changes to the netLibrary pricing structure, as announced in January, are included here,
. OCLC MARC record guidelines as outlined in Schedule 1 now apply.
Please review the amendment, sign the two execution copies and return both of them to the netLibrary
Legal Department at the address listed in the amendment. We will then have the amendment counter-
signed and return a fully executed original amendment to you for your files.
In the event you have questions about the amendment, please do not hesitate to contact your netLibrary
representative or to send an e-mail to Contract Questions @netLibrary.com.
We sincerely thank you for your time and consideration,
.",1".."" ./,,,,,,,,, /Jne IIIIII/!
CONFIDENTIAL
AMENDMENT TO THE MEMBER TERMS AND CONDITIONS AGREEMENT --
NETLlBRARY EBOOK LIBRARY AGREEMENT
This Amendment to the Member Terms and Conditions Agreement - netLibrary eBook Library Agreement (this
"Amendmenf') is effective , 2002 (the "Effective Date") and is by and between Monroe County
Board of County Comimissioners ("Library") 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 "Library" 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 "Librarv 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:
"Librarv 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.netlibrarv.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 County Board of County
Computer Library Center, Inc. Commissioners
By: By:
Name: Richard L.Rosy Name:
Title: OCLC Vice President, netLibrary Title:
,
.
f"I'TI' AN Ij:;:~
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CONFIDENTIAL
Exhibit A to netLibrary eBook Library Agreement -
eBook Services
1. SUDDort 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 "Existino 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. Mioration. 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 eBock 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. Accessino 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 of eBooks. 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.
ii. Removino 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 day.of 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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