08/16/2000 Agreement
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BRANCH OFFICE
3117 OVERSEAS InGHWA Y
MARAlHON, FLORIDA 33OSO
TEL. (305) 289-6027
FAX (305) 289-1745
CLERK OF THE CIRCUIT COURT
MONROE COUNTY
500 WHITEHEAD STREET
KEY WEST, FLORIDA 33040
TEL. (305) 292-3550
FAX (305) 295-3660
BRANCH OFFICE
88820 OVERSEAS InGHWAY
PLANTATION KEY, FLORIDA 33070
TEL. (305) 852-7145
FAX (305) 852-7146
MEMORANDUM
DATE:
August 21, 2000
TO:
James Malloch, Director
Community Services
ATTN:
Anne Hoover, Librarian
Library Services
Pamela G. Hanco-'&
Deputy Clerk U
FROM:
At the August 16, 2000, Board of County Commissioner's meeting the Board granted
approval and authorized execution of the following:
Florida Nurserymen and Growers Association Garden Grant Recipient Agreement. Two
dJlicate originals attached.
· Contract between Monroe County and BIGCHALK.COM Education Network for
subscription to the eLibrary Classic Web-database.
.
FY 2000-2001 Library Services and Technology Act Grant Agreement between Monroe
County and the Florida Department of State, State Library of Florida.
.
Enclosed please find two duplicate originals, executed on behalf of Monroe County, for
your handling. Please be sure that the "Clerk's Original" is returned to our office
once it is fully executed.
Should you have any questions, please do not hesitate to contact this office.
Cc:
County Administrator w/o documents
County Attorney
Financ,
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bigchalk.com, Inc.
Institutional Subscriber Agreement
This Institutional Subscriber Agreement ("Aqreement") is made as of the effective date ("Effective Date")
specified below by and between bigchalk.com, Inc., a Delaware corporation, having an address at 900 West Valley
Road, Suite 800, Wayne, PA 19087, U.S.A. (Ubiqchalk.com"), and the Subscribing Institution named below
("Subscribinq Institution").
Telephone Number: 305-292-3595
Fax number: 305-295-3626
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Subscribing Institution Information
Name of Subscribing Institution: Monroe County Public Library
Name of Contact Person: Anne Layton-Rice
Complete Billing Address (include street address):
700 Fleming St.
Key West, FL 33040
E-Mail Address:
Institutional Subscriber Agreement Information
Services and Products Subscribed to:
Service/Product: eLibrary Classic
Effective Date of Institutional Subscriber Agreement for this Service/Product: 7/31/00_ End Date: 7/30/01
Type of License (for example, single user, lab pack, site license): Two (2) users (Russell PL, and Key largo PL)
Subscription Fee for Subscribing Institution for this Service/Product: $1,845.00
Subscribing Institution's Purchase Order (PO) Number (for convenience only - terms not binding):
o New Customer
Execution of Institutional Subscriber Agreement
By signing below you certify that you have read and agree to the terms and conditions of this Institutional
Subscriber Agreement and you further certify that you are authorized to sign this Institutional Subscriber Agreement
on behalf of the Subscribing Institution and are hereby committing the Subscribing Institution to be bound by this
Agreement. Please return a fully completed and signed copy of this Institutional Subscriber Agreement, including
the attached terms and conditions as initialed on each page by you in the spaces provided to: bigchalk.com, Inc.,
Content and Curriculum Division - Subscriber Agreements, 900 West Valley Road, Suite 1100, Wayne, PA 19087,
U.S.A., fax 6"2 5-6:11. _ C
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bigchalk.com, Inc.
Institutional Subscriber Agreement
Terms & Conditions
1. The bigchalk.com Services and Products. The bigchalk.com™
services and products subscribed to and/or licensed by Subscribing
Institution from bigchalk.com, which are listed on the cover page of this
Agreement, in addition to any and all other materials (including the
bigchalk.com Software as defined in Section 9) made available by
bigchalk.com to Subscribing Institution, (collectively the "Services and
Products"), are owned, licensed and/or controlled by bigchalk.com. In
addition, certain services and products that may be among the
Services and Products subscribed to under this Agreement, as well as
certain content within various services and products, are owned,
licensed and/or controlled by bigchalk.com's licensors.
2. License to Use the Services and Products and Scope of Use.
Subject to the terms and conditions of this Agreement and upon
payment of the Subscription Fee(s). bigchalk.com grants to
Subscribing Institution a non-exclusive, non-transferable, license to
access and use the Services and Products solely for educational,
research, scholarly, and personal uses. All right, title and interest
(including all copyright and other intellectual property rights) in
bigchalk.com (in both print and machine-readable forms) belongs to
bigchalk.com or its third party suppliers of materials. Only Authorized
Users of Subscribing Institution shall be entitled to access and use the
Services and Products under the license granted in this Section 2.
"Authorized Users" shall consist solely of Subscribing Institution's
employees, staff, faculty, students officially affiliated with Subscribing
Institution, and other authorized users of Subscribing Institution's
facilities (for example, library patrons). Authorized Users shall be
entitled to search, retrieve, display, download, and print content
contained in the Services and Products solely for educational,
research, scholarly, and personal uses, but may make no other uses of
such content without the express written permission of bigchalk.com
and the copyright owner (or its authorized agent) of such content.
Authorized Users shall be entitled to download and print single copies
of individual works of content contained in the Services and Products.
All reproduction and other uses of the Services and Products and their
content are subject to the Copyright Act of 1976, Title 17 U.S.C., and
other applicable intellectual property laws. Notwithstanding the above,
bigchalk.com grants Subscribing Institution access to the web-based
Service(s) solely through the bigchalk.com community, the URL for
which shall be supplied by bigchalk.com, and access to the web-based
Service(s) via any other means is not authorized by this license and is
expressly prohibited by bigchalk.com. Neither Subscribing Institution
nor Authorized Users shall use the Services and Products or their
content in any way that would compete with any of the Services and
Products.
If Remote Access is granted to Subscribing Institution under this
Agreement (see line item regarding Remote Access on the Institutional
Subscriber Agreement form), such access and use resulting therefrom
shall be limited to the scope of use, purposes, Authorized Users, and
other limitations imposed on use of the applicable Service(s) as set
forth above in this Section 2 and otherwise in this Agreement.
Furthermore, Authorized Users who use remote access to access such
Service(s) must do so only from their personal/individual computers
from home, and not from another location or institution, regardless of
whether such institution is a subscribing institution itself. Likewise,
Subscribing Institution and its Authorized Users shall not access any of
the bigchalk.com Services through remote access to another institution
or subscriber, or use another institution's or other subscriber's remote
access to access any bigchalk.com Service, without the prior express
permission of bigchalk.com. Moreover, if Subscribing Institution's
subscription allows for Remote Access, Subscribing Institution agrees
to limit access to the applicable Service(s) through the use of user
identification numbers and passwords, IP address verification or other
secure method of user verification. Subscribing Institution shall
bigchalk.com, Inc.
Institutional Subscriber Agreement
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immediately notify bigchalk.com if it is believed that any secure access
method is being misused.
3. Unauthorized Use. Subscribing Institution shall not be responsible for
unauthorized use or infringement of the Services and Products, the content
contained in the Services and Products, or the bigchalk.com Software,
provided, that: (i) such unauthorized use or infringement is without the
express or implied consent of Subscribing Institution, (ii) Subscribing
Institution promptly notifies bigchalk.com of any such unauthorized use or
infringement of which it becomes aware, and (iii) Subscribing Institution
takes all reasonable steps to cause such unauthorized use or infringement
of which it is aware to stop. Subscribing Institution shall cooperate fully
with bigchalk.com in any investigation of such unauthorized use or
infringement. Subscribing Institution agrees that bigchalk.com shall have
the sole right, at its discretion, to bring any action on account of such
unauthorized use or infringement.
4. Term of Agreement and Termination. The term of this Agreement
shall begin on the Effective Date and shall end on the End Date specified
on the cover page of this Agreement. Either bigchalk.com or Subscribing
Institution may terminate this Agreement at any time if the other party
commits a material breach of any term or condition of this Agreement and
the breach remains uncured for thirty (30) days after written notice of the
breach has been furnished to the breaching party. Upon any termination or
expiration of this Agreement, the licenses granted in Sections 2 and 9 shall
terminate also, and Subscribing Institution shall return or destroy all
Services and Products upon bigchalk.com's request. Unless this
Agreement is terminated by Subscribing Institution for the uncured material
breach of bigchalk.com in accordance with this Section 4, bigchalk.com
shall not pro rate or refund any fees to Subscribing Institution upon the
termination or expiration of this Agreement.
5. Payment to bigchalk.com. Subscribing Institution shall pay the
Subscription Fee(s) in full immediately upon bigchalk.com'
acknowledgment of receipt of this Agreement from Subscribing Institution,
unless otherwise agreed in writing by bigchalk.com and Subscribing
Institution, either on the cover page of this Agreement or in another writing
signed by both parties. All payments to bigchalk.com by Subscribing
Institution shall be in United States dollars. Subscribing Institution's failure
to pay the Subscription Fee(s) to bigchalk.com when due shall give
bigchalk.com the right to suspend Subscribing Institution's license granted
in Section 2 and to terminate this Agreement. Subscribing Institution shall
be obligated to pay the Subscription Fee(s) to bigchalk.com whether or not
any Authorized User ever actually uses the Services and Products, and the
term of this agreement shall not be affected by when the first use is made.
6. Rights in the Content and the Services and Products. The Services
and Products and content thereon and thereof are protected by copyright,
patent, trademark, and other applicable intellectual property and proprietary
rights laws and are owned, controlled, and/or licensed by bichalk.com.
Portions of the Electric Library service are protected by U.S. Patent Nos.
5,822,731, 5,819,285, 5,812,769, 5,742,816, 5,737,734, 5,721,902,
5,717,914, 5,717,860, 5,712,979, 5,675,788, 5,659,742, 5,640,553,
5,873,076, and other patents are pending. Bigchalk.com is a trademark of
bigchalk.com, Inc. All other trademarks appearing on the Services and
Products are the property of their respective owners. Subscribing
Institution does not acquire any ownership, possessory, or intellectual
property rights in the Services and Products, except as expressly and
unambiguously granted herein and such grant shall be subject to the terms
and conditions of this Agreement. Subscribing Institution may not remove
or obscure the copyright notice or other notices contained in the Services
and Products.
7. Warranties, Disclaimers, and Limitation of Liability. bigchalk.com
warrants that it has the authority to enter into this Agreement and to grant
Subscribing Institution - Initials:
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the licenses made under this Agreement. bigchalk.com further
warrants that the web-based Services shall be reasonably available,
functional and operational on a 24X7 basis (24 hours per day, 7 days
per week), routine scheduled downtime excepted (for example, for
system maintenance) and failures outside of bigchalk.com' control
excepted (for example, a failure of the Internet or a failure of
Subscribing Institution's network). In addition, bigchalk.com warrants
that the Services and Products shall conform in all material respects to
the then-current specifications for the Services and Products published
by bigchalk.com. Subscribing Institution warrants that is has the
authority to enter into this Agreement and to perform all of its
obligations under this Agreement. BIGCHALK.COM, ITS CONTENT
PROVIDERS, ITS LICENSORS, AND ITS DISTRIBUTORS EACH EXPRESSLY
DISCLAIM ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR
REPRESENTATIONS, INCLUDING ANY AND ALL IMPLIED WARRANTIES OR
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE WITH RESPECT TO THE SERVICES AND PRODUCTS, THE CONTENT
CONTAINED IN THE SERVICES AND PRODUCTS, OR THE BIGCHALK.COM
SOFTWARE. NEITHER BIGCHALK.COM NOR ITS CONTENT PROVIDERS, ITS
LICENSORS, OR ITS DISTRIBUTORS MAKES ANY WARRANTIES OR
REPRESENTATIONS REGARDING THE ACCURACY, ADEQUACY,
TRUTHFULNESS, TIMELINESS, COMPLETENESS, OR USEFULNESS OF THE
SERVICES AND PRODUCTS, THE CONTENT CONTAINED IN THE SERVICES
AND PRODUCTS, OR THE BIGCHALK.COM SOFTWARE. BIGCHALK.COM
MAKES NO WARRANTIES OR REPRESENTATIONS THAT THE SERVICES AND
PRODUCTS OR ACCESS TO AND USE OF THE SERVICES AND PRODUCTS WILL
BE UNINTERRUPTED OR ERROR FREE. SUBSCRIBING INSTITUTION
ACKNOWLEDGES AND AGREES THAT THE CONTENTS, FEATURES, AND OTHER
ASPECTS OF THE SERVICES AND PRODUCTS MAY CHANGE FROM TIME TO
TIME.
BIGCHALK.COM'S (AND ITS CONTENT PROVIDERS', LICENSORS', AND
DISTRIBUTORS') ENTIRE LIABILITY TO SUBSCRIBING INSTITUTION AND
SUBSCRIBING INSTITUTION'S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES
OR ANY LOSS IN ANY WAY CONNECTED TO THE SERVICES AND PRODUCTS
OR THE CONTENT CONTAINED IN THE SERVICES AND PRODUCTS SHALL BE
LIMITED TO THE AMOUNT OF THE APPLICABLE SUBSCRIPTION FEE(S)
ACTUALLY PAID TO BIGCHALK.COM FOR THE PRODUCT(S) AND/OR
SERVICE(S) GIVING RISE TO SUCH DAMAGE/LOSS. UNDER NO
CIRCUMSTANCES SHALL BIGCHALK.COM (AND ITS CONTENT PROVIDERS,
LICENSORS, AND DISTRIBUTORS) BE LIABLE TO SUBSCRIBING INSTITUTION
OR ANY OTHER PERSONS, INCLUDING BUT NOT LIMITED TO AUTHORIZED
USERS, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES ARISING
OUT OF THE USE OF, OR THE INABILITY TO USE, THE SERVICES AND
PRODUCTS, ANY CONTENT CONTAINED IN THE SERVICES AND PRODUCTS,
OR THE BIGCHALK.COM SOFTWARE. THESE LIMITATIONS APPLY
REGARDLESS OF WHETHER BIGCHALK.COM WAS ADVISED, HAD OTHER
REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY OF SUCH
DAMAGES.
8. Indemnification. bigchalk.com will indemnify Subscribing
Institution (and its parents, subsidiaries, affiliates, employees, or
agents) from and against all claims, liability, and expenses, including
reasonable legal fees and costs, arising out of (i) bigchalk.com's
breach of any provision of this Agreement or (ii) any third party claim
for infringement or violation of that third party's intellectual property or
proprietary rights in the Services and Products and the bigchalk.com
Software, but only to the extent such items remain unaltered and as-
provided to Subscribing Institution by bigchalk.com. Subscribing
Institution will indemnify bigchalk.com (and its parents, subsidiaries,
affiliates, employees, agents, distributors, content providers, or
licensors) from and against all claims, liability, and expenses to the
extent authorized by sec. 768.28, FL stat. arising out of (i) Subscribing
Institution's breach of any provision of this Agreement or (ii)
Subscribing Institution's unauthorized use of any of the Services and
Products, the content contained in the Services and Products, and the
bigchalk.com Software.
9. Software License. For any software provided by bigchalk.com to
Subscribing Institution ("biqchalk.com Software"), bigchalk.com grants
bigchalk.com, Inc.
Institutional Subscriber Agreement
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Subscribing Institution and the Authorized Users a non-exclusive, non-
transferable license to copy and use the bigchalk.com Software solely as
expressly permitted herein or as necessary to access and/or use the
Services and Products in accordance with the provisions of this Agreement.
The bigchalk.com Software and all proprietary rights within the software are
the sole and exclusive property of bigchalk.com and/or its licensors. This
license to use the bigchalk.com Software terminates automatically upon the
termination or expiration of this Agreement. Subscribing Institution and the
Authorized Users may not modify the bigchalk.com Software in any
manner, nor may they reverse engineer, decompile, translate, disassemble
or make any derivative works from the bigchalk.com Software.
BIGCHALK.COM'S ENTIRE LIABILITY TO SUBSCRIBING INSTITUTION AND
SUBSCRIBING INSTITUTION'S SOLE AND EXCLUSIVE REMEDY REGARDING THE
BIGCHALK.COM SOFTWARE SHALL BE THE REPLACEMENT OF THE BIGCHALK.COM
SOFTWARE PROGRAM BY BIGCHALK.COM.
RESTRICTED RIGHTS LEGEND. Any software or documentation that is
either downloaded from the Services and Products or otherwise provided
under an agreement for or on behalf of the United States of America, its
agencies and/or instrumentalities ("U.S. Government"), including the
bigchalk.com Software, is provided with Restricted Rights. Use,
duplication, or disclosure by the U.S. Government is subject to restrictions
as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and
Computer Software clause at DFARS 252.227-7013 or subparagraphs
(c)(1) and (2) of the Commercial Computer Software - Restricted Rights at
48 CFR 52.227-19, as applicable.
10. General.
Entire Aqreement. Subscribing Institution agrees to be governed by the
Terms and Conditions, and Privacy Policy of bigchalk.com, as posted on
bigchalk.com, and as amended from time to time in the future to the
extentpermitted by chapter 119, F.S.. Apart from such Terms and
Conditions, and Privacy Policy, this Agreement constitutes the entire
agreement of the parties with respect to its subject matter. In the event of
any conflict between this Agreement and such Terms and Conditions, and
Privacy Policy, the terms and conditions of this Agreement shall govern.
The terms and conditions of any Purchase Orders are not agreed to by
bigchalk.com and shall not supersede the terms and conditions herein
regardless of when received and what actions the parties take or do not
take; such Purchase Order terms and conditions shall be wholly replaced
and superseded by the terms and conditions herein.
Modifications. Amendments. and Waivers. Any modifications or
amendments to this Agreement shall be effective only in a written
instrument agreed to and signed by the authorized representatives of both
parties. Failure by either party to enforce any provision of this Agreement
shall not be deemed a waiver of future enforcement of that or any other
provision.
Severabilitv. If any proVISion of this Agreement is found invalid or
unenforceable pursuant to a decree or decision of competent jurisdiction,
the remainder of this Agreement shall remain valid and enforceable
according to its terms.
Notices. All notices under this Agreement shall be in writing and may be
delivered personally, by fax, or by certified mail -- return receipt requested,
to the addresses and fax numbers specified in this Agreement, or to those
other addresses and fax numbers the parties are subsequently notified of in
accordance with this Section 10. Any notice given as provided for shall be
deemed to have been given on the date personally delivered, date of
delivery by fax indicated on the fax machine-generated confirmation
printout, the date of delivery of the certified mail as indicated on the
certified mail receipt, or on the date of actual receipt, whichever is earlier.
Applicable Law and Forum This Agreement shall be governed by and
construed in accordance with the laws of Florida, without giving effect to its
principles of the conflicts of laws. Venue for any litigation arising under this
agreement must be in a court of competent jurisdictin in Monroe County,
FL.
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Assianment. This Agreement shall be binding upon and inure to the
benefit of bigchalk.com and Subscribing Institution and their
successors, trustees, and permitted assigns. Except in the case of a
merger, acquisition, sale of substantially all of the assets of a party, or
accounts receivable or similar financing(s), neither party may assign
this Agreement, or any of its rights or obligations under this
Agreement, without the prior written consent of the other party and
such consent shall not unreasonably be withheld.
Taxes. Subscribing Institution shall be responsible for any sales, use, VAT,
personal property or other local taxes (except those based on
bigchalk.com's income), as well as any import duties imposed on the
Products and Services.
Survival. Sections 4, 6, 8, and 10 shall survive termination of this
Agreement.
biQchalk Community: Signing this Subscriber Agreement willi automatically pre-register your school or schools to the bigchalk
Community. Once available each school will receive a customized School Media Center site with links to bigchalk services.
Access to the "not for fee services" and the bigchalk Community is not contingent on renewing these "for fee services" in
subsequent years. Upon receipt of the customized Media Center site, electronic acceptance of the bigchalk Community terms and
conditions is required. bigchalk will advise each school when t~e customized site is available.
ACCEPTED BY bigchalk.com:
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Name (rint): :J&40 ,(It A. to /U1r
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Title (Print): ---.ll.'(;:,I ~"'&'iI"~ gA-/,s ""1A..
A countersigned copy of this Agreement is available to Subscribing Institution upon written request to bigchalk.com, Inc., Content
and Curriculum Division - Subscriber Agreements, 900 West Valley Road, Suite 1100, Wayne, PA 19087, U.S.A.
bigchalk.com, Inc.
Institutional Subscriber Agreement
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Subscribing Institution - Initials:
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