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HomeMy WebLinkAboutContract 26339 ACCU WEATHER SALES AND SERVICE, INC. ASSOCIATED PRESS®PHOTO ARCHIVE DIVISION CITY SECRETARY o� PLAIN LANGUAGE SUBSCRIBER AGREEMENT CONTRACT NO. cCrc" � October 18, 2000 "-31-00 A11 '58 I "+ Date of Agreement 1.Name and Address of Parties: A. AccuWeather Sales and Service, Inc., 385 Science Park Road, State College, PA 16803-2215 (J B. Subscriber: Summerglen Public Library Keith Miller Subscriber Site(s) Primary Conlact Person Summerglen Public Library 817-871-7735 Name of Subscriber Subscriber Telephone Number 4205 BMwood Blvd. kmiller(a fortworthlibrary.org Street Address E-Mail Address Fort Worth,TX 76137 City,State,Zip Code 2. Start Date: November 1,2000 3. Length of User Agreement: ❑ One Year ❑ Tv:o Years ❑ Three Years ® Other 13 months 4. Product: ® Photo Archive ® Graphics ❑ Audio Soundbank ❑ Text News Files 5. Service Level: Subscriber Fee: $695.00 Per Year—Payable Annually in Advance Number of Concurrent Users Authorized: Five(5) The maximum number of subscriber's users logged on to the service at any given point in time. 6. Subscriber shall be granted electronic access to the AP Photo Archive(products checked above)solely for the purpose of electronically viewing individual photographs and images in the Archive and making laser or desk jet prints of such content. Subscriber acknowledges that it understands that the image resolution of the Archive content, when printed, is 72 dots per inch. The Archive shall be used by Subscriber for the following purposes: (1) Printed copies of images for book reports,term papers,theses,class handouts and research, (2) "Power Point"type presentations, overhead projection,slide shows,and other similar multimedia presentations whose usage is confined to the licensed institution, (3) Transmitting an individual image to a specific e-mail user, (4) Archive photographs shall not be used or published in newspapers,magazines,brochures,catalogs,commercial announcements, calendars,posters,yearbooks, playbills, newsletters,on t-shirts,or promotional items,or for commercial use or gain of any kind. (5) The content of the Archive shall be that normally provided by AccuWeather Sales and Service from time to time. (6) Unless expressly authorized by AccuWeather Sales and Service in writing and subject to payment of additional licensing fees specified by AccuWeather Sales and Service,all other forms of access and use of the Archive and its constituent elements are expressly disallowed, including,by way of example and not limitation: (a)accessing or using the Archive while being delinquent with respect to any applicable fees hereunder,or (b)electronically downloading,manipulating or creating derivative works in any media except as allowed in this Agreement, (c)electronically transmitting the Archive and/or its constituent elements,or other such activity,except as allowed in this Agreement (7) In addition to the permitted uses described above,Subscriber may also allow Subscriber's users to access the Archive remotely[i.e.,from off-site via computer];provided that(i)only persons who are members(teachers/students/staff of Subscriber shall be permitted to remotely access the Archive,(ii)each person remotely accessing the Archive shall count toward the maximum number of persons permitted to be logged on at any given time,and(iii)all of the terms and conditions applicable under this Agreement to users who access or view the Archive at Subscriber's premises shall apply to persons remotely accessing the Archive. 7. Subscriber hereby certifies that it is an educational institution or a public library. Subscriber agrees to use the Archive for educational interest and information only. Subscriber agrees not to use the Archive for any commercial or commercially related, business or business related,job or job related,purpose whatsoever except as specified herein. THE SUBSCRIBER ACKNOWLEDGES THAT SUBSCRIBER HAS READ AND UNDERSTANDS THIS AGREEMENT AND HAS HAD THE OPPORTUNITY TO HAVE IT REVIEWED BY LEGAL COUNSEL,IT SHALL NOT BE CONSTRUED MORE STRICTLY AGAINST ONE PARTY THAN THE OTHER AND THE MEANINGS AND PURPOSES ATTACHED TO ITS VARIOUS PROVISIONS SHALL BE THOSE REASONABLY INTENDED BY ACCU WEATHER,INC. THE PARTIES,INTENDING TO BE LEGALLY BOUND,HAVE EXECUTED THIS AGREEMENT. THE SIGNERS REPRESENT THAT THEY HAVE FULL AUTHORITY TO EXECUTE THIS AGREEMENT ON BEHALF OF ACCU WEATHER,INC.AND SUBSCRIBER RESPECTIVELY AND TO LEGALLY BIND SAME AND THAT THEY HAVE READ AND UNDERSTAND THE IMPORTANT TERMS AND CONDITIONS ON THE REVERSE SIDE AND WHICH ARE A PART OF THIS AGREEMENT. ACCU WEATHER SALES AND SERVICE,INC. SUBSCRIBER DATE:�[ BY: DAT BY: is n eor-W'Y'n4< Admi lffAzew i auD PRINT NAME K. TITLE PRINT NAME AND ITLE CITY NCUPMPY Accu Weather/Al?Photo/(DAccu Weather.Inc.1B.L.Mvers06/22/00 ATTESI'E Y APPROVED AS TO FORM AND LEGALITY- HV-f 2::�f. Assistant City tarnE �1;,�� Q SERVICE TERMS AND CONDITIONS A. Equipment. Subscriber shall,at its own cost,obtain,maintain and operate all terminals,communication devices and other equipment needed for accessing the Archive. Subscriber acknowledges that AccuWeather Sales and Service shall not be liable for the suitability,delivery,performance or maintenance of any terminal or other equipment or for the hook-up of any terminal or equipment to suitable telephone lines or other communications links. B. Access. During the term of this Agreement,AccuWeather Sales and Service will provide the Archive through communication facilities it may from time to time select and Subscriber shall have access rights to the Archive. Access to the Archive shall be authorized by AccuWeather Sales and Service to begin upon the Starting Date and end upon termination of this Agreement. Subscriber agrees that it shall receive the Archive only at the site(s) listed in this Agreement.Access Codes and information furnished by AccuWeather Sales and Service to Subscriber are intended for Subscriber's sole and exclusive use and shall be considered proprietary information,ownership of which shall remain with AccuWeather Sales and Service.Subscriber shall be fully responsible for maintaining confidentiality of its account access information and for all charges made to its account. Should Subscriber's Access Information be lost,stolen, or fall into the hands of an unauthorized user or users, it is Subscriber's responsibility to immediately notify AccuWeather Sales and Service in writing. C. Subscription Fees. Subscriber agrees to pay to AccuWeather Sales and Service the fee set forth in this Agreement. The fees may be invoiced in advance. Subsequent year's prices shall be based on that of the year immediately preceding plus either(1)eight percent or(2)the increase in the Consumer Price In Hex during the year immediately preceding,whichever is greater. Each increase,after being computed,will be rounded up to the next whole dollar to arrive at a monthly or yearly price. This is a fixed fee,lump sum contract;the total contract sum equals the total number of periodic payments multiplied by the amount of each periodic payment. This Agreement may provide monthly payments as an accommodation to Client to facilitate budgeting and cash flow planning. Payment shall be due and payable at AccuWeather Sales and Service's office in State College,Pennsylvania at the beginning of each contract month or contract year without notice. Failure of payment shall render due and payable all sums payable during the initial period of this Agreement and any subsequent renewal period plus a late payment charge of one and one-half percent per month. All prices stated herein are in U.S.dollars. In the event the CPI were to exceed an eight percent annualized rate,AccuWeather Sales and Service would have the right to calculate price adjustments more frequently than annually. Subscriber shall pay the fees that are due and owing under this Agreement to AccuWeather Sales and Service within 30 days from the date of invoice. If Subscriber fails to perform any of its obligations under this Agreement,including but not limited to,failure to pay the fees that are due and owing,AccuWeather Sales and Service will have the right to notify Subscriber of such failure and Subscriber will have 30 days to cure such failure. If the failure is not cured within the 30-day cure period,AccuWeather Sales and Service will have the right to terminate this Agreement at any time thereafter immediately upon notice to Subscriber. D. Term. This Agreement shall remain in full force and effect for theperiod specified on the front hereof,beginning on the specified"Starting Date"and it shall remain and continue in full force and effect for subsequent periods equal in length to the original term hereof or one year,whichever is longer,unless written notice of termination is received by one party from the other party at least sixty(60)days prior to the initial expiration date of any subsequent expiration date. Time is of the essence of this paragraph. If an initial free trial period was granted,such free trial period shall not be carried into a renewal period but is time that shall be considered as part of the initial term. If a"Length of User Agreement" is indicated as more than one year but less than two years, the renewal term shall be one year at a time. E. Copyright,Storage and Ownership of Service. All information,data,images and other things comprising the Archive are to be considered copyrighted by AccuWeather Sales and Service or The Associated Press and the},remain the sole and exclusive property of their owner. Subscriber is authorized to store such information during the time of the Agreement. Subscriber may not store for future use such information beyond that period,nor develop a library of such information. Upon termination of this Agreement all stored data shall be destroyed by Subscriber. Subscriber acknowledges that The Associated Press retains sole and exclusive right,title and interest in and to the copyrights for all photos in the Archive and understands and acknowledges that no title to or ownership in the photos or the Archive database itself are hereby transferred to Subscriber hereunder. F. Elieiee of Laws. The o giAgivitit te the Pen rm�4yn"i&Croti rts only,wiy dispute m i3ing Out of th, related 04is l9wagr-oph shall ___1 "14 V G. Assignability. Neither this Agreement nor any rights or obligations hereunder may be assigned by Subscriber without the express written consent of AccuWeather Sales and Service,Inc.and written acceptance of the contract by the Assignee.This Agreement constitutes the entire agreement between the parties. No collateral or prior statements, representations,understandings or agreements survive or are a part of this Agreement. No modifications to this Agreement shall be made except by written addendum signed by both parties hereto. The invalidity of any paragraph, subparagraph or portion of this Agreement shall not affect the validity of any other paraggraph,subparagraph or portion hereof.The failure of AccuWeather Sales and Service to require the performance of any term of this Agreement or the waiver by AccuWeather Sales and Service of any breach under this Agreement shall not prevent a subsequent enforcement of such term by AccuWeather Sales and Service nor be deemed a waiver of any subsequent breach. -allinanner of suit,actions,damages,-c)rargcsand I-es.In the case of failure of payment by Subscriber,AccuWeather Sales and Service shall have the right to claim a sum equal to twenty-five percent of such payment due but not paid,that AccuWeather Sales and Service,may sustain by reason of Subscriber's failure t so perform this Agreement,Subscriber's breach of any of the terms,covenants or conditions of this Agreement or other claims against AccuWeather Sales d Service, Inc.arising from this Agreement as a liquidated amount for attorneys feesQ, _-`Y.2� 1. Damages. ACCU WEATHER AND THE ASSOCIATED PRESS WHICH OWN THE ARCHIVE AND PROVIDES SUBSCRIBERS WITH ACCE TO THE ARCHIVE HEREUNDER(TOGETHER,THE"PARTIES")EXPRESSLY D SCLAIM ANY RESPONSIBILITY OR LIABILITY FOR ANY LOSS, WHETHER DIRECT,CONSEQUENTIAL OR INDIRECT RESULTING TO SUBS BER OR ANY THIRD PARTY FROM ERRORS OR OMISSIONS IN THE SYSTEM OR ARISING FROM ANY USE BY SUBSCRIBER OF ANY PHO OS IN THE ARCHIVE. DELAYS IN PERFORMANCE,OR NON- PERFORMANCE CAUSED BY UNAVAILABILITY OF THE ARCHIVE OR ANY ORCE MAJEURE EVENT. IN NO EVENT WILL THE PARTIES BE LIABLE TO SUBSCRIBER FOR DIRECT,INCIDENTAL,INDIRECT,CONSEQ NTIAL OR ANY OTHER TYPE OF DAMAGES,IN CONTRACT, TORT OR OTHERWISE,EVEN IF THE PARTIES SHALL HAVE BEEN ADVISED ADVANCE OF THE POSSIBILITY OF SUCH LOSS,COST OR DAMAGES,ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. E PARTIES'SOLE LIABILITY TO SUBSCRIBER FOR FAILURE TO RECEIVE ACCESS TO THE ARCHIVE PURSUANT TO THIS AGREEMEN OR INABILITY TO US THORIZED HEREUNDER,SHALL BE LIMITED TO THE FEE PAID BY SUBSCRIBER TO AC U WEATHER HERE FR J. Warranties. THE PARTIES HEREBY DISCLAIM ALL OTHER WARRANTIE WHETHER EXPRES OR IMPLIED. CCE G ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER, INCLUDING WIT UT LIMITATION, ANY IMPLIED -VAR TY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED ARRANTY OF NON INFRINGEMENT. 14UIE HIVE IS BEING PROVIDED TO SUBSCRIBER ON AN"AS IS"BASIS. hro I- �j2Mo K. Headings and Captions. The headings and captions used in this Agreement are for onvenience only, the h� � 1U 61155!(nN1 all of the Agreement;they in no way define, limit,or describe the scope of intent of the paragraphs of�his Agreement nor in any way affect this Agreement. L. AP's Status. AP is an express third party beneficiary of the rights afforded AccuWeath4 Sales and Service hereu s �b���7 t Nr�or ar�Or���r,wt Initial , Date: b l s.�y ri.y¢r vT J„tck cc P,uunt--� IP Address: - •cl n✓T bz PablE' b y 5�}j�cr�lia:r vtt.te;w,s . AccuWeather/APPhoto/©AccuWeather,Inc./B.L.Myers06/22/00 Page 2of 2