Item C11 C.11
County of Monroe P W
;� w 1rJ� BOARD OF COUNTY COMMISSIONERS
r,�� Mayor Craig Cates,District 1
The Florida Keys Mayor Pro Tem Holly Merrill Raschein,District 5
y Michelle Lincoln,District 2
James K.Scholl,District 3
Ij David Rice,District 4
County Commission Meeting
March 22, 2023
Agenda Item Number: C.11
Agenda Item Summary #11806
BULK ITEM: Yes DEPARTMENT: Public Libraries
TIME APPROXIMATE: STAFF CONTACT: Anne Layton Rice (305) 292-3594
N/A
AGENDA ITEM WORDING: Agreement with Kanopy, Inc. to provide streaming digital video
content to library patrons.
ITEM BACKGROUND:
In response to significant requests by library patrons, in 2018 the MCPL began providing card
holders with high-quality streaming videos from Kanopy, Inc. Our small contract agreement with
Kanopy has been successful, with budgeted credits added as more county residents engaged with
these exceptional films and documentaries. Due to expenditures exceeding the $50,000 ceiling for
small contracts, , a BOCC approved legal
agreement is necessary to continue MCPL's Kanopy service. This agreement also includes updated
terms that are now standard for County contracts.
PREVIOUS RELEVANT BOCC ACTION:
CONTRACT/AGREEMENT CHANGES:
NA
STAFF RECOMMENDATION: Approve
DOCUMENTATION:
Monroe County Kanopy Addendum (2.22.23)
Kanopy Monroe County Master Agreement(Partially Executed) (3.1.23)
FINANCIAL IMPACT:
Effective Date: 22 Feb 2023
Expiration Date: upon 30 days' notice
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C.11
Total Dollar Value of Contract:
Total Cost to County:
Current Year Portion: not to exceed $15,600
Budgeted: Yes
Source of Funds: donations, State Aid grant, and ad valorem
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: If yes, amount:
Grant:
County Match:
Insurance Required: No
Additional Details:
Service is budgeted through FY23.
REVIEWED BY:
Kimberly Matthews Completed 02/28/2023 11:17 AM
Christina Cory Completed 03/01/2023 8:07 AM
Kimberly Matthews Completed 03/02/2023 11:30 AM
Purchasing Completed 03/02/2023 11:43 AM
Budget and Finance Completed 03/03/2023 8:29 AM
Brian Bradley Completed 03/03/2023 2:10 PM
Lindsey Ballard Completed 03/06/2023 10:11 AM
Board of County Commissioners Pending 03/22/2023 9:00 AM
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C.11.a
ADDENDUM A
The following clauses are added into the Kanopy Master Agreement as part of the agreement
between Kanopy, Inc. and Monroe County Public Library as if fully set forth therein:
THIS AGREEMENT is made and entered into this 22nd day of February, 2023, by and
between MONROE COUNTY("County"),apolitical subdivision ofthe State of Florida,whose
address is 1100 Simonton Street, Key West, Florida 33040 and Kanopy, Inc. ("Contractor"),
whose address is 781 Beach Street, Floor 2, San Francisco, California 94109.
SECTION 1. OVERVIEW AND SCOPE OF SERVICES a
Contractor streams and makes digital video content available to users. The price of each video
is set by the production company and Contractor. County maintains an account with 3:
Contractor whereby users view videos and the amount of each video is then deducted from
County's account. When the balance of County's account is low, Contractor sends an invoice E
to County and when County pays the invoice, the payment reloads credits back into County's
account. 4-
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Contractor shall do, perform, and carry out in a professional and proper manner the
professional services described in the Master Agreement, attached hereto and made a part of
this agreement, as well as any future Invoices.
Contractor and County may execute additional Invoices, each of which shall be deemed to be
part of this Agreement. The Invoices shall be to reload credits into County's account so
consumers can continue to access the media provided by Contractor. Upon receipt of any
future Invoices, the requesting department shall prepare and submit a Task Order to be
approved and executed according to the Monroe County Purchasing Policy.
SECTION 2. WARRANTIES AND REPRESENTATIONS
Contractor warrants that it is authorized by law to engage in the performance of the activities
herein described, subject to the terms and conditions set forth in these Agreement documents.
The Contractor shall, at all times, exercise independent, professional judgment and shall
assume professional responsibility for the services to be provided. Contractor shall provide 0
services using the following standards, as a minimum requirement: 0)
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A. The Contractor shall maintain adequate staffing levels to provide the services required 0
under this Agreement. ..
B. To the extent that Contractor uses employees, subcontractors or independent
contractors,this Agreement specifically requires that the employees, subcontractors and E
independent contractors shall not be an employee of or have any contractual
relationship with County.
C. All personnel engaged in performing services under this Agreement shall be fully
qualified, and, if required, to be authorized or permitted under State and local law to
perform such services.
D. The Contractor shall maintain all necessary licenses, permits or other authorizations
necessary to act as a Contractor.
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SECTION 3. COUNTY'S RESPONSIBILITIES
3.1 Contractor's scope of basic services consists of those described in the Master
Agreement and in Section 1 of this Addendum. Upon receipt of any future Invoices, the
requesting department shall prepare and submit a Task Order to be approved and
executed according to the Monroe County Purchasing Policy.
3.2 The County shall make payments as outlined in Section 5 of this Agreement.
SECTION 4. TERM OF AGREEMENT 0
4.1 This Agreement shall continue until terminated by either Parry.
SECTION 5. PAYMENT TO CONTRACTOR
5.1 The fees that will be paid by the County are as shown in the attached Invoice and shall be
contained in any future Invoice. The County is exempt from sales and use taxes.
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5.2 Payment will be made according to the Florida Local Government Prompt Payment Act, 0
Sections 218.70-218.80, Florida Statutes. Contractor shall submit to the County an invoice
with supporting documentation in a form acceptable to the Clerk. Invoices may be submitted
upon completion of the services. Acceptability of the invoice to the Clerk is based on
generally accepted accounting principles and such laws,rules and regulations as may govern
the Clerk's disbursal of funds. Invoices shall be sent to the County Public Library who will N
review the documents and route them to appropriate County Staff for approval. Upon
receiving all required approvals, the invoice(s) will be forwarded to the County Clerk's E
office for payment.
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SECTION 6. CONTRACT TERMINATION
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The Parties reserve the right to terminate this Agreement by written notice with 30 days notice. In
the event of such termination, any services provided by Contractor up to the effective date of
termination shall be due to the Contractor.
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SECTION 7. NOTICES U
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Any notice required or permitted under this agreement shall be in writing and hand delivered or 0
mailed, postage prepaid, to the other parry by certified mail, returned receipt requested, to the 2
following:
To the County: Roman Gastesi, Monroe County Administrator
1100 Simonton Stret
Key West, Florida 33040
And: Monroe County Attorney's Office
1111 12' Street, Suite 408
Key West, Florida 33040
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C.11.a
And: Monroe County Public Library
Attn: Business Office
700 Fleming Street
Key West, Florida 33040
For the Contractor: Kanopy Inc.
Attn: Legal Department
781 Beach Street, Floor 2 0
San Francisco, California 94109
SECTION 8. GOVERNING LAW,VENUE, INTERPRETATION, COSTS AND FEES E
This Agreement shall be governed by and construed in accordance with the laws of the State
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of Florida applicable to contracts made and to be performed entirely in the State. In the event 0
that any cause of action or administrative proceeding is instituted for the enforcement or
interpretation of this Agreement, County and Contractor agree that venue shall lie in the 161h
Judicial Circuit, Monroe County, Florida.
SECTION 9. CONTRACT DOCUMENTS
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This contract consists of this Addendum, the Master Agreement provided by Kanopy, Invoice zl-
9333475-PPU, and any future Invoices. In the event of a conflict in terms between the Master
Agreement, Addendum, or future Invoices, THE TERMS OF THE ADDENDUM SHALL
PREVAIL.
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SECTION 10. Florida Public Records law (Florida Statute 119.0701) CL
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Contractor must comply with Florida public records laws, including but not limited to Chapter
119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and
Contractor shall allow and permit reasonable access to, and inspection of, all documents, records
papers, letters or other "public record" materials in its possession or under its control subject to U
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the provisions of Chapter 119,Florida Statutes,and made or received by the County and Contractor
in conjunction with this contract and related to contract performance. The County shall have the 0
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right to unilaterally cancel this contract upon violation of this provision by the Contractor. Failure
of the Contractor to abide by the terms of this provision shall be deemed a material breach of this 0
contract and the County may enforce the terms of this provision in the form of a court proceeding
and shall, as a prevailing party, be entitled to reimbursement of all, attorney's fees and costs
associated with that proceeding. This provision shall survive any termination or expiration of the
contract.
The Contractor is encouraged to consult with its advisors about Florida Public Records Law in
order to comply with this provision.
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C.11.a
Contractor shall maintain all books, records, and documents directly pertinent to performance
under this Agreement in accordance with generally accepted accounting principles consistently
applied. Each party to this Agreement and their authorized representatives shall have reasonable
and timely access to such records of each other parry to this Agreement for public records and
auditing purposes during the term of the Agreement and for five(5)years following the termination
of this Agreement. If an auditor employed by the County or Clerk determines that monies paid to
Contractor pursuant to this Agreement were spent for purposes not authorized by this Agreement,
the Contractor shall repay the monies together with interested calculated pursuant to Section 55.03
the Florida Statutes, running from the date the monies were paid to Contractor. C
Pursuant to F.S. 119.0701, Contractor and its subcontractors shall comply with all public records
laws of the State of Florida, including but not limited to:
a. Keep and maintain public records required by Monroe County in order to perform the service.
b. Upon request from the public agency's custodian of public records, provide the public agency 2
with a copy of the requested records or allow the records to be inspected or copied within a M
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reasonable time at a cost that does not exceed the cost provided in Florida Statutes, Chapter 119 0
or as otherwise provided by law.
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c. Ensure that public records that are exempt or confidential and exempt from public records
disclosure requirements are not disclosed except as authorized by law for the duration of the
contract term and following completion of the contract if the contractor does not transfer the
records to the public agency.
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d. Upon completion of the contract, transfer, at no cost, to Monroe County all public records in E
possession of the contractor or keep and maintain public records required by the public agency to
perform the service. If the contractor transfers all public records to the public agency upon
completion of the contract,the contractor shall destroy any duplicate public records that are exempt
or confidential and exempt from public records disclosure requirements. If the contractor keeps 0
and maintains public records upon completion of the contract, the contractor shall meet all
applicable requirements for retaining public records. All records stored electronically must be
provided to Monroe County, upon request from the public agency's custodian of records, in a
format that is compatible with the information technology systems of Monroe County. U
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If the contractor does not comply with the County's request for records, the County shall enforce
the public records contract provisions in accordance with the contract notwithstanding the 2
County's option and right to unilaterally cancel this contract upon violation of this provision by
the Contractor. A Contractor who fails to provide the public records to the County or pursuant to E
a valid public records request within a reasonable time may be subject to penalties under Section
119.10, Florida Statutes.
Contractor shall not transfer custody, release, alter, destroy, or otherwise dispose of any public
records unless or otherwise provided in this provision or as otherwise provided by law.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119,FLORIDA STATUTES,TO THE CONTRACTOR'S DUTY TO PROVIDE
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C.11.a
PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN
OF PUBLIC RECORDS, BRIAN BRADLEY, AT (305) 292-3470, hradley-
hrianLa)monroecounty-fl.gov, c/o Monroe County Attorney's Office, 1111 12' St., Suite 408,
Key West FL 33040.
SECTION II. Monroe County Purchasing Policy and Florida Statute 287.0582
Monroe County's performance and obligation to pay under this contract is contingent upon an ci
annual appropriation by the BOCC.
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SECTION 12. Public Entity Crime Statement
A person or affiliate who has been placed on the convicted vendor list following a conviction for
public entity crime may not submit a bid on a contract to provide any goods or services to a public
entity, may not submit a bid on a contract with a public entity for the construction or repair of a
public building or public work, may not submit bids on leases of real property to public entity,
may not be awarded or perform work as a CONTRACTOR, supplier, subcontractor, or
CONTRACTOR under a contract with any public entity, and may not transact business with any 0
public entity in excess of the threshold amount provided in Section 287.017, for CATEGORY
TWO for a period of 36 months from the date of being placed on the convicted vendor list. As
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used herein, the term "convicted vendor list" means a list maintained by the Florida Department
of Management Services, as defined in F.S. 287.133.
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By entering in this Agreement, the vendor acknowledges that it has read the above and states that
neither the vendor nor any Affiliate has been placed on the convicted vendor list within the last 36
months.
SECTION 13. Ethics Clause
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By entering in this Agreement, the vendor warrants that he/it has not employed, retained or 0
otherwise had act on his/her behalf any former County officer or employee in violation of Section
2 of Ordinance No. 010-1990 or any County officer or employee in violation of Section 3 of
Ordinance No. 010-1990. For breach or violation of this provision the County may, in its 0
discretion, terminate this Agreement without liability and may also, in its discretion, deduct from 0
the Agreement or purchase price, or otherwise recover, the full amount of any fee, commission,
percentage, gift, or consideration paid to the former County officer or employee. 2
SECTION 14. Scrutinized companies (F.S. 287.135)
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This contract is terminable at the option of the awarding body if the company is found to have
been placed on the Scrutinized Companies that Boycott Israel List as that term is defined in F.S.
287.135 or is engaged in a boycott of Israel.
SECTION 15. Indemnification, Defend, Hold Harmless
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C.11.a
The Contactor does hereby consent and agree to indemnify, defend and hold harmless the
County, its Mayor, the Board of County Commissioners, appointed Boards and Commissions,
Officers, and the Employees, and any other agents, individually and collectively, from all fines,
suits, claims, demands, actions, costs, obligations, attorney's fees, or liability of any kind arising
out of the sole negligent actions of the Contract or substantial and unnecessary delay caused by
the willful nonperformance of the Contractor and shall be solely responsible for any and all
accidents or injuries to persons or property arising out of its performance of this contract. The
amount and type of insurance coverage requirements set forth hereunder shall in no way be
construed as limiting the scope of indemnity set forth in this paragraph. Further the Contractor
agrees to defend and pay all legal costs of the County for claims or acts attributable to the sole
negligent act of the Contractor or any of the Contractor's employees or representatives.
At all times and for all hereunder, the Contractor is an independent contractor and not
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an employee of the Board of County Commissioners. No statement contained in this agreement
shall be construed so as to find the Contractor or any of his/her employees, contractors, servants 2
or agents to be employees of the Board of County Commissioners for Monroe County. As an
independent contractor the Contractor shall provide independent,professional judgment and 0
comply with all federal, state, and local statutes, ordinances, rules and regulations applicable to
the services to be provided.
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C.11.a
IN WITNESS WHEREOF,the parties hereto have caused these presents to be executed on
the 22nd day of February,2023.
ON BEHALF OF MONROE COUNTY
By
Craig Cates, Mayor
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:Ctcnroe Cowt.-A--s(ice
CA i—Cory,Assis—C—Aft.—,
Date 22723
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(Signature of Notary Public)
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C.11.b
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MASTER AGREEMENT
Institution Name: Monroe County Public Library Institution Contact: Anne L.Rice
Address: 700 Fleming Street Phone: 305-292-3594
Key West,FL 33040 Email: rice-anne@monroecounty-fl.gov
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This Master Agreement is made and entered into as of the Effective Date set forth below by and between Kanopy INC,a Delaware limited
liability company with a place of business Floor 2, 781 Beach Street, San Francisco, CA 94109 ("Kanopy"), and the institution identified above
("Institution").
Overview qs
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Kanopy streams and makes available digital video content,including associated audio,graphics,text, images and other data and content,to
universities,colleges,schools,public libraries,corporations and other institutions for access and use pursuant to applicable access and license terms. CD
As permitted by an order between Kanopy and an institution, Kanopy may also host and stream digital video content uploaded by the institution
where such institution holds all necessary rights and permissions to enable Kanopy to host and stream such content. Kanopy streams and makes
digital video content available through various platforms, including its website at www.kanopy.com,the Kanopy iOS and Android mobile apps,the
Kanopy channel on Roku,and other modes of access that are available now or may become available in the future.
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Structure of Agreement and Order of Precedence
Kanopy and Institution may enter into one or more order forms under this Agreement (as defined below)for access to and use of digital ^�
content hosted or streamed by Kanopy.As appropriate,each order form will specify the title(s), product(s),fees, period or term of access,and any
special usage rights and/or restrictions and other terms relevant to the order.Each such order form will be governed by the terms and conditions of
this Agreement.
This Master Agreement consists of:(a)the attached Terms and Conditions;(b)any order forms entered into hereunder between Kanopy and
Institution;and(c)this signature page(collectively,the"Agreement").In the event of any conflict between or among the various components of this U
Agreement,the terms and conditions of each component shall take precedence in the order listed above; provided,however,that any conflict with
respect to restrictions on access to or use of materials provided by Kanopy shall be resolved in the manner that gives broadest effect to such W
restrictions.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed as of the Effective Date by its duly authorized
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KANOPY INC / INSTITUTION E
By:
Name: Jason Tyrrell By:
Title: General Manager Name:
Title:
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TERMS AND CONDITIONS
1. Definitions the Service,or otherwise provide access to the Service as part of a service
(a) "Access Term" means the period of time set forth in bureau or similar fee-for-service purpose; (vi) make the Service or any
each Order Form during which the Offerings or,as applicable,Institution Offering accessible to anyone who is not an End User; (vii) remove or
Content covered by such Order Form will be hosted and streamed by obscure any proprietary notice that appears within the Service or any
Kanopy pursuant to this Agreement. Offering; or(viii) use the Service in any way that does not comply in all
(b) "Credentials" means any user accounts, passwords material respect with the terms and conditions of this Agreement and all
and other authentication credentials associated with access to or use of applicable laws and regulations. CL
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the Service by Institution or End Users. (c) Policies. In addition to the terms and conditions of
(c) "End User" means: (i) any student, teacher, this Agreement, access to and use of the Service shall comply with and �e
professor, patron, employee or staff member affiliated with Institution; be subject to any terms of service,acceptable use policy, privacy policy,
(ii)any authorized visitor physically present at the facilities of Institution; end user license agreement and other guidelines instituted by Kanopy or
and(iii)with respect to any Institution that is a library established for use its licensors or service providers.
by the general public and maintained primarily through public funds,any (d) Technical Requirements. Institution and End Users
individual who is a member of such Institution. shall be solely responsible for obtaining,configuring and maintaining any
(d) "Institution Content"means any content provided by hardware, network connectivity and third-party software required to
Institution pursuant to this Agreement for hosting and streaming by access the Service, including computers, operating systems, web
Kanopy. browsers and storage devices. 0
(e) "Institution Facilities" means Credentials and any (e) Protection. Institution shall be solely responsible for
account, hardware, system or other facility within Institution's custody protecting the confidentiality of Credentials and all activities undertaken 0
or control. using Institution Facilities.In the event that Institution becomes aware of LEL
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(f) "Offering"means any Product or Title. any unauthorized use of the Service through Institution Facilities,
(g) "Order Form"means an order form,invoice or other Institution shall promptly give written notice to Kanopy of such
ordering document entered into between the parties pursuant to this unauthorized use and make reasonable efforts to eliminate such
Agreement specifying the Offerings, Institution Content, fees and unauthorized use. Institution shall implement and maintain appropriate
payment terms, special usage rights and restrictions and other terms security policies and procedures and access control methodologies to
relevant to the order. safeguard access to the Service through Institution Facilities and to limit :6
(h) "Product"means each product identified in an Order access to the Service to End Users.
Form that Kanopy will make accessible to Institution pursuant to this 3. Institution Content
Agreement, including: (i) any package or collection of titles or other (a) Grant of Rights. As specified in an applicable Order
content made accessible to Institution via subscription, patron-driven Form, Institution may upload Institution Content to the Service for
acquisition (PDA), pay-per-use (PPU) or other such models; and (ii) any hosting and streaming by Kanopy pursuant to this Agreement.During the
other product that Kanopy may offer. applicable Access Term,Institution hereby grants Kanopy a limited,non-
(i) "Service" means the service through which Kanopy exclusive, non-sublicensable, royalty-free right and license to host,
hosts and makes accessible Offerings and, as applicable, Institution stream, exhibit, transmit, reproduce, publicly perform, publicly display P>
Content. and project Institution Content as necessary to make Institution Content
W "Territory" means the geographical area designated available for viewing by End Users within the Service.
as the Territory in an Order Form or, if no such area is designated in an (b) Assurances.Institution represents and warrants that:
Order Form,the country in which Institution is domiciled. (i) it holds all necessary rights (including all intellectual property rights) �y
(k) "Title" means each film, video or other content and permissions to grant the rights under this Section 3 to Kanopy; and
(excluding Institution Content) identified in an Order Form that Kanopy (ii) Institution Content does not violate any applicable laws or any rights LE
will make accessible to Institution pursuant to this Agreement. of another party, including any laws relating to defamation or indecency
2. Grant of Rights and Restrictions and any intellectual property or right of privacy or publicity.
(a) Grant of Rights. During the applicable Access Term (c) Institution Ownership. Kanopy acknowledges and
and subject to Institution's compliance in all material respects with the agrees that, as between Institution and Kanopy, Institution (or its
terms and conditions of this Agreement, Kanopy hereby grants licensors) owns all rights, title and interest (including all intellectual f0
Institution a limited, non-exclusive, non-sublicensable right and license property)in and to Institution Content.
to allow End Users within the designated Territory to view Offerings and, 4. Fees and Taxes 0-
as applicable,Institution Content in real-time within the Service. (a) Fees.Institution shall pay Kanopy the applicable fees C
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(b) Restrictions.All rights granted under this Agreement set forth in each Order Form pursuant to the payment terms therein. If
may only be exercised for non-commercial personal or educational use. an Order Form does not specify payment terms, then payments
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Institution shall not: (i) use, archive, capture, reproduce, modify, adapt, thereunder shall be due net thirty (30) days after invoice. Amounts not
create derivative works from, publicly perform, publicly display, paid when due shall be subject to interest at the rate of one and a half
distribute, make, have made,assign,pledge,transfer or otherwise grant percent (1.5%) per month or the maximum rate permitted by law,
rights to the Service or any Offering,except as expressly permitted under whichever is less.
this Agreement; (ii)translate or reverse engineer,decom ile,decode or b Taxes. An and all amounts payable hereunder b
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otherwise attempt to derive the source code,architectural framework or Institution are exclusive of any sales, use, value-added, excise or other
data records of any software within or associated with the Service; (iii) similar taxes(collectively,"Taxes").Institution shall be solely responsible
frame or utilize any framing technique to enclose any content within the for paying all applicable Taxes.If Kanopy has the legal obligation to collect
Service; (iv) access the Service for the purpose of benchmarking or any Taxes, Institution shall reimburse Kanopy upon invoice by Kanopy.If
developing, marketing,selling or distributing any product or service that Institution is required by law to withhold any taxes from its payments to
competes with or includes features substantially similar to the Service or Kanopy, Institution shall provide Kanopy with an official tax receipt or
any products or services offered by Kanopy; (v) rent, lease, lend or sell
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C.11.b
other appropriate documentation to support such payments and take 2(b) or 3(b) or infringement of such third party's copyright attributable
reasonable steps to minimize such payments. to any materials provided by the party under this Agreement; provided,
5. Intellectual Property however, that Kanopy shall have no obligation to indemnify Institution
(a) Kanopy Ownership. Institution acknowledges and from any loss, damage, cost, liability or expense to the extent it arises
agrees that,as between Kanopy and Institution,Kanopy(or its licensors) from: (i)access to or use of the Service or any Offering in a manner that
owns all rights, title and interest (including all intellectual property) in does not comply in all material respects with the terms and conditions of
and to the Service and Offerings.Kanopy reserves all rights not expressly this Agreement or applicable laws or regulations;(ii)use of the Service or U
granted under this Agree ment.Suggestions. If Institution elects to any Offering in combination with any materials not provided or approved
provide or make available to Kanopy any suggestions,comments, ideas, by Kanopy;or(iii)Institution Content.In the event that the Service or any
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improvements or other feedback relating to the Service or Offerings Offering becomes the subject of an indemnified claim or Kanopy
("Suggestions"), Kanopy shall be free to use, disclose, reproduce, have reasonably determines that any Offering is likely to become the subject M
made, modify, license, transfer and otherwise utilize and distribute of an indemnified claim, Kanopy may, at its sole discretion: (1) procure
Suggestions in any manner, without credit or compensation to for Institution a license as necessary for Institution to exercise the rights
Institution. granted by Kanopy under this Agreement; (2) modify or replace the
6. Term and Termination Service or Offering to avoid infringement, provided, however, that the
(a) Term.The term for this Agreement shall commence Service or Offering as modified or replaced remains materially the same;
on the Effective Date and continue in effect until terminated by Kanopy or(3) issue to Institution a pro-rata refund of fees paid by Institution for
or Institution in accordance with this Agreement. the Service or Offering based upon the remainder of the Access Term.
(b) Suspension. Kanopy reserves the right to suspend (b) Procedure. The indemnified party shall: (i) give the
Institution's and any End User's access to and use of the Service and indemnifying party prompt written notice of any indemnified claim; 0
Offerings in the event of any: (i) actual or reasonably suspected breach provided, however, that failure of the indemnified party to give such y
of Section 2 by Institution or any End User; provided, however, that prompt written notice shall not relieve the indemnifying party of any 0-
Kanopy, where applicable, will use commercially reasonable efforts to obligation to indemnify pursuant to this Section 8, except to the extent CL
limit suspension to each End User in breach of Section 2 or 3(b) and the indemnifying party has been prejudiced thereby; (ii)cooperate fully
restore access upon elimination of the relevant breach; or(ii)failure by with the indemnifying party,at the indemnifying party's expense, in the
Institution to make any payment when due under this Agreement; defense or settlement of any indemnified claim; and (iii) give the �
provided, however, that Kanopy will restore access upon Institution's indemnifying party sole and complete control over the defense or
payment of all outstanding fees. settlement of any indemnified claim; provided, however, that any
(c) Termination. Notwithstanding anything to the settlement must include a complete release of the indemnified party
contrary,this Agreement may be terminated as follows: i b either art without requiring the indemnified art to make an payment or bear
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upon written notice to the other party;provided,however,that no Order any obligation.
Form is then in effect;(ii)upon a material breach of this Agreement by a 9. DISCLAIMER OF WARRANTIES
party,which breach is not cured within thirty (30) days after receipt of THE SERVICE,OFFERINGS AND ALL OTHER MATERIALS PROVIDED
written notice from the other party; or(iii) by either party in the event BY KANOPY UNDER THIS AGREEMENT (COLLECTIVELY, "KANOPY
the other party becomes insolvent or bankrupt; becomes the subject of MATERIALS") ARE PROVIDED "AS IS," "AS AVAILABLE" AND "WITH ALL
any proceedings under bankruptcy,insolvency or debtor's relief law;has FAULTS." KANOPY, TO THE MAXIMUM EXTENT PERMITTED BY LAW,
a receiver or manager appointed;makes an assignment for the benefit of EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS ,
creditors;or takes the benefit of any applicable law or statute in force for (EXCEPT AS SET FORTH IN SECTION 7),EXPRESS OR IMPLIED,INCLUDING:
the winding up or liquidation of such party's business. (A)THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
(d) Survival.Any provision that, by its terms,is intended A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH RESPECT TO
to survive the expiration or termination of this Agreement shall survive THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE C9
such expiration or termination, including Sections: 3(b)(Assurances); 4 KANOPY MATERIALS,OR THAT USE OF THE KANOPY MATERIALS WILL BE
(Fees and Taxes); 5 (Intellectual Property); 6(d) (Survival); 7 ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL
(Representations and Warranties); 8 (Indemnification); 9 (Disclaimer of MEET INSTITUTION'S OR END USERS'REQUIREMENTS.
Warranties); 10(Limitation of Liability);and 11(Miscellaneous). 10. LIMITATION OF LIABILITY
7. Representations and Warranties OTHER THAN WITH RESPECT TO KANOPY'S INDEMNIFICATION
Kanopy and Institution each represents and warrants to the other OBLIGATIONS UNDER SECTION 8(a):(A)IN NO EVENT SHALL KANOPY OR
that: (a) it has the necessary power and authority to enter into this ITS AFFILIATES AND LICENSORS BE LIABLE FOR ANY INCIDENTAL, C3
Agreement; (b)the execution and performance of this Agreement have INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST 0
been authorized by all necessary corporate or institutional action; (c) PROFITS OR COST OF COVER, ARISING FROM OR RELATING TO THIS
entry into and performance of this Agreement will not conflict with any AGREEMENT, INCLUDING DAMAGES ARISING FROM ANY TYPE OR 0
provision of law or the certificate of incorporation,bylaws or comparable MANNER OF COMMERCIAL,BUSINESS OR FINANCIAL LOSS OCCASIONED
organizational documents of such party; (d) no action by any BY OR RESULTING FROM ANY ACCESS TO OR USE OF OR INABILITY TO C
governmental entity is necessary to make this Agreement valid and ACCESS OR USE THE KANOPY MATERIALS,SUCH AS ANY MALFUNCTION,
binding upon such party; and (e) it possesses all governmental licenses DEFECT OR FAILURE OF ANY KANOPY MATERIALS,EVEN IF KANOPY HAD
and approvals necessary to perform its obligations under this Agreement. ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH ;
8. Indemnification DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE
(a) Indemnification. To the extent permitted by FORESEEABLE; AND (B) IN NO EVENT SHALL KANOPY'S AGGREGATE
applicable law, each party agrees that the other party and its affiliates LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES cy
and licensors (collectively, "Indemnified Parties") shall have no liability RECEIVED BY KANOPY FROM INSTITUTION UNDER THIS AGREEMENT IN
for, and each party shall indemnify, defend and hold the other party's THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE
Indemnified Parties harmless against,any loss,damage,cost,liability and ON WHICH THE EVENTS GIVING RISE TO LIABILITY AROSE.
expense(including reasonable attorneys'fees)finally awarded by a court 11. Miscellaneous
of competent jurisdiction or paid in settlement to the extent arising from (a) Independent Contractors.The relationship between
any action or claim of a third party based upon a party's breach of Section Kanopy and Institution established by this Agreement is solely that of
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C.11.b
independent contractors.Neither party is in anyway the partner or agent behalf of civilian agencies,consistent with the policy set forth in 48 C.F.R.
of the other, nor is either party authorized or empowered to create or 12.212;or(ii)for acquisition by or on behalf of units of the Department
assume any obligation of any kind,implied or expressed,on behalf of the of Defense,consistent with the policies set forth in 48 C.F.R.227.7202-1
other party, without the express prior written consent of such other and 227.7202-3.The U.S.Government shall acquire only those rights set
party. forth in this Agreement with respect to the such items,and any access to
(b) Notice. All notices, demands and other or use of the Service by the U.S.Government constitutes: (1)agreement
communications to be given or delivered under or by reason of the by the U.S.Government that that such items are"commercial computer u
provisions of this Agreement shall be in writing and sent to the parties as software" and "commercial computer software documentation" as
follows: (i) if to Kanopy, at the address set forth for Kanopy in the defined in this section; and (2) acceptance of the rights and obligations
CL
signature page herein, Attn: Legal Department, or, if different, in the herein. 0
most recent Order Form; (ii) if to Institution,at the address set forth for (1) Force Maieure. Except with respect to payment q
Institution in the signature page herein or,if different,in the most recent obligations under Section 4,neither party shall be liable for any failure to
Order Form. perform under this Agreement to the extent due to any act of God,fire,
(c) Assignment. Institution may not assign this casualty,flood,war, strike, lock out,failure of public utilities, injunction
Agreement, or assign or delegate any right or obligation hereunder, by or any act, exercise, assertion or requirement of any governmental
operation of law or otherwise without the prior written consent of authority, epidemic, destruction of production facilities, insurrection or E
Kanopy.This Agreement shall be binding upon and inure to the benefit any other cause beyond the reasonable control of the party invoking this
of the parties hereto and their respective successors and permitted provision.
assigns. (m) Confidentiality.Each party acknowledges and agrees
(d) No Third-Party Beneficiaries. Nothing in this that it shall treat the terms and conditions of this Agreement, including
Agreement shall confer any rights upon any person or entity other than any pricing information,as confidential information and not disclose such y
the parties hereto and their respective successors and permitted assigns. information to any third party except to the extent required by applicable 2
(e) Interpretation. For the purposes of this Agreement: law.For the avoidance of doubt,the parties acknowledge and agree that CL
(i) the words "such as," "include," "includes" and "including" shall be Kanopy may identify Customer as a Kanopy customer,and Customer may
deemed to be followed by the words"without limitation;" (ii)the word identify Kanopy as a provider of content to Customer.
"or" is not exclusive; and (iii) the words "herein," "hereof," "hereby," (n) Counterparts. This Agreement may be executed in CN
"hereto" and "hereunder" refer to this Agreement as a whole. This one or more counterparts,each of which shall be deemed an original,but ':
Agreement shall be construed without regard to any presumption or rule all of which together shall constitute one and the same agreement.
requiring construction or interpretation against the party drafting an 1.
instrument or causing any instrument to be drafted.
(f) Entire Agreement. This Agreement contains the
entire agreement of the parties with respect to the subject matter hereof
and supersedes all previous or contemporaneous oral or written
negotiations or agreements with respect to such subject matter.
(g) Amendment.This Agreement may not be amended
except in a writing executed by an authorized representative of each CL
party. ,
(h) Severability. If any provision of this Agreement shall
be held to be invalid or unenforceable under applicable law,then such
provision shall be construed, limited, modified or, if necessary, severed
to the extent necessary to eliminate its invalidity or unenforceability,
without in any way affecting the remaining parts of this Agreement.
(i) Governing Law.This Agreement shall be governed by
and construed and enforced,without regard to conflict of laws principles,
in accordance with: (i) if Institution is domiciled in the United States or
Canada,the laws of the state or province in which Institution is domiciled;
or(ii)if Institution is domiciled outside the United States and Canada,the
laws of the country in which Institution is domiciled.The United Nations to
Convention on Contracts for the International Sale of Goods is specifically 0
excluded from application to this Agreement.
(j) No Waiver.The failure of either party to require strict 0
performance by the other party of any provision hereof shall not affect
the full right to require such performance at any time thereafter,nor shall CL
the waiver by either party of a breach of any provision hereof be taken
or held to be a waiver of the provision itself.Any waiver of the provisions
of this Agreement, or of any breach or default hereunder, must be set ;
forth in a written instrument signed by the party against which such
waiver is to be enforced.
(k) U.S. Government Entities. This section applies to
access to or use of the Service by a branch or agency of the United States
Government ("U.S. Government"). The Service includes "commercial
computer software" and "commercial computer software
documentation"as such terms are used in 48 C.F.R. 12.212 and qualifies
as "commercial items" as defined in 48 C.F.R. 2.101. Such items are
provided to the United States Government: (i) for acquisition by or on
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