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HomeMy WebLinkAboutContract 41914n" 9 R T CONTRACT1i ). SUBSCRIPTION PURCHASE AGREEMENT THIS SUBSCRIPTION PURCHASE AGREEMENT (this "Agreement") is made by and between Fort Worth Public Library, a Texas public Library maintaining a physical address at 500 West 3``r Street, Fort Worth, hereafter referred to as (the "Library") and Library Ideas, LLC, a Delaware media company, hereafter referred to as (the "Company"). All parties to this Agreement may, from time to time, be referred to as (the "Parties"). RECITALS WHEREAS Company is the sole United States and Canadian distributor of an interactive, online Language Learning Program called Rocket LauguagesTM to public libraries and aims to provide Patrons of these institutions with access to a website allowing use of the language learning tool (the "Service"). WHEREAS Company wishes to sell the right to use the Service to the Library subject to the terms and conditions described in this Agreement. WHEREAS Library desires to purchase the right to use the Service from Company subject to the terms and conditions described in this Agreement. NOW THEREFORE in consideration of the provisions contained in this Agreement and for other good and valuable consideration., the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: ARTICLE I. Definitions Section 1.01 Definitions. The terms defined within this Agreement have the respective meanings attributed to them throughout this Agreement or in this Article I. Any defined term may be used in the singular and in the plural forms, as appropriate in the context. Section 1.02. ",Service(s)" refers to Rocket LanguagesTM and is related to Library's ongoing access to and use of such service via the Internet. Section 1.03. "Effective Date" Unless otherwise agreed to in writing by the Parties, the "Effective Date" of this Agreement means the first day the Library's service "goes live" via the Library site. Section 1.01. "Purchase Agreement" means the right to access Company's online Language Learning Program Service for a specified price ("Purchase Agreement Price") and expiring time ("Purchase Agreerent Term"). fl 191ii:&lens' CITY SECRETARY Section 1.05. "Purchase Agreement Price" means the price established for access 1 flip cii _g i`�'I �• d Section 1.06. "Subscription Agreement Term" refers to the right to access Company Service for a Ilmlte period of time. Except as otherwise specifically agreed to in writing by the Parties, the "Purchase Agreement Term" of this Agreement commences on the Effective Date and continues in effect for one year. Section 1.07. "Lihrmy'v Website Porial" means the Website operated by the Library and open to its Patrons in order to access and use all materials of the Library. Section 1.08. "Company Website" means the Website operated by Company and open to the Library and its Patrons via the Library's own website portal. Rocket Languaaes Agreement — Updated 3/2/201 U Section 1.09. "Patrons" mean Library's registered, authenticated cardholders, and all members of the public who have been issued a library card, including onsite and offsite users. Section 1.10. "License" means a revocable permission given to an individual or entity which allows that individual or entity the right to use or access the property of the rightful owner or legal Distributor of the property. Section 1.11. "Personal Use" is defined, for purposes of this Agreement, as the use which is of a personal nature and used only by the person who is authorized to use such media, i.e. a downloaded audio file, and prohibits the sharing of said media with the public or placing such media in the public domain, i.e sharing audio files on the Internet. This Agreement adopts the definitions of "personal use" as established by the Courts and U.S. Copyright laws. ARTICLE II. Rocket Languag,esTM Services Terms and Conditions Section 2.01. Purchase Agreement Price. Company will charge Library a yearly Purchase Agreement Price for the right to access the Company's Service. The price for the Language Program as described herein in Schedule A. Section 2.02 All Purchases cu'e Final. All purchases of Service are final. For purposes of clarification, Library will not receive any refunds or credit if the library chooses not to continue with the Subscription for the Subscription Term. Section 2.03. Pay111e111 Due Date. All fees and charges are due and payable 30 days from the date of the related invoice. The Company may deny Library and its Patrons access to Library's Company Website until the unpaid invoice is paid in full. Section 2.04. Limitations 011 Use. Library Patrons will be able to access the Service on a simultaneous basis, and the cost to the library is specified in Schedule A and unrelated to usage. Company reserves the right to put limits on simultaneous access to the Service if in its sole discretion it believes usage is suspiciously high and due to a break of the attached EULA. Section 2.05. Termination. Subsection 2.05.A. Termination by Expiration of Te1111. This Agreement will terminate automatically at the end of a one-year Purchase Agreement Term. If Library wishes to renew for an additional year, Library may contact Company at any time during or after the end of the current Purchase Agreement Term and negotiate a new Purchase Agreement Term. Subsection 2.05.B. Termination for Breach of this Agreemen1. Either party may terminate this agreement for cause at any time by providing the other party with prior written notice of the occurrence of any of the following events: (1) a party fails to timely pay any amounts due and payable, provided that the nonpayment is not cured within I 0 days of the notice; or (2) a party breaches any Material provision of this Agreement provided that the breach cannot be, or is not, cured within 30 days of the notice. Material terms of this Agreement are Sections 2.03, 2.05, 2.06, 2.07, 2.08, 2.09, 3.01, and 3.02. Section 2.06. Provision ofAudio Services. During the Purchase Agreement Term, the Company will establish, host, and administer Company's Website. Library and Patrons will access Company's Service through Library's Website Portal. The Library and its Patrons will access the Library's Language Programs either inside the library (if allowed and enabled) using the Library's own Internet connection or remotely. Rocket Languages Agreement — Updated 3/2/2010 2 0l Service will have reasonable periods of scheduled maintenance in which the Service is not available. Otherwise Service will be available at commercially accepted standards of operation. Section 2.07. Library and Member Usage - Limiting Access Measures. The Library will be solely responsible for authenticating which Patrons will have access to the Library's Website under this Agreement. Except for standard fees charged by Library to its Patrons, the Library will not charge any Patron for the use of the Company's Website Section 2.08. DELETED BY AGREEMENT OF THE PARTIES Section 2.09. Copyrighted Works. Library acknowledges and agrees that all Language Programs included in the Service are copyrighted mate' ial. All Rights Reserved. Section 2.10. No Copyright Conveyed. Upon signing this Agreement, Library will receive an annual license to access the Company's Service via the Library s Website Portal.Library will not acquire any other rights in the Company or the Company's Language Programs and/or its Service. ARTICLE III Accessing Services and Reports Section 3.01. DELETED BY AGREEMENT OF THE PARTIES Section 3.02. Reports. Payment of the Subscription Agreement Fee entitles Library to the standard reports offered by Company, which gauges the use of Company's Service. ARTICLE IV General Provisions Section 4.01. DELETED BY AGREEMENT OF THE PARTIES Section 4.02. Notice to Parties. All notices from either party to the other under this Agreement shall be sent by telegram, overnight courier service, or by registered or certified mail, return receipt requested, or hand -delivered with signed receipt. Whenever in this Agreement reference is made to a Notice to be given, such Notice shall be deemed to have been given when mailed wired, or hand -delivered to the proper notice address of the party to be notified. Notices shall be addressed in care of the individual representatives identified herein and mailed to the address designated for each Party and listed in the Signature Page of this Agreement. Either party may, from time to time, designate a different address for receiving Notices by giving the other party notice of the change of address in the manner above specified. Section 4.03. Assignment. Library may not sell, assign, transfer or convey this Agreement or any rights and obligations thereto. However, Company may assign or transfer this Agreement to an affiliated company or to a third party that acquires substantially all of its assets upon 30 days written notice to the Library. If for some reason the Library does not want to, or cannot transact with the new company, the Library is entitled to a pro -rated refund of the pi ice paid based upon time used. Section 4.04. Successors & Assigns. This Agreement shall be binding on and inure to the benefit of and be binding upon the respective heirs, executors, administrators, successors and assigns of Library, and the Company's successors and assigns Section 4.05. Section Partial Invalidity. If any term, covenant, or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable the remainder of this Agreement, or the application of such term, covenant, or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and every other term covenant, or condition of this Agreement shall be valid and be enforced to the fullest extent permitted by law. Section 4.06. Separability. Each and every covenant or understanding contained in this Agreement shall, for all intents and purposes, be construed as a separate and independent covenant and agreement. If any term or provision of this Agreement or the application thereof to any person or circumstance shall to any extent be found invalid and unenforceable by a court of competent jurisdiction, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those to which it is valid or unenforceable, shall not be affected thereby and each term and provision of this Agreement shall be valid and shall be enforced to the extent permitted by law. It is the intention of the parties hereto that if any provision of this Agreement is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, then the provision shall have the meaning which renders it invalid. Section 4.07. Headings. The headings to the various paragraphs and/or Sections of this Agreement have been inserted for reference only and shall not to any extent have the effect of modifying, amending or changing the expressed terms and provisions of this Agreement. Section 4.08. Limited Warranty. Company warrants that Company is the legally authorized Distributor of the Service offered and has the legal authority to offer access of such Service to Library. Company warrants that it will use its commercially reasonable efforts to provide such Services as described in this Agreement. Company further warrants that all products supplied by Company shall be free of all defects with respect to workmanship and material for a period of one year from the date of commencement of Service and Company shall make good on such defects provided that: (a) The alleged defect has been brought to the attention of Company within one year from the date of Service Commencement; (b) Library and/or Library Patron has used the product or service as Company and manufacturer intended it to be used; (c) Library and/or Library Patron has not carried out any unauthorized repairs, alterations and/or modifications to the Product and Service; (d) The defect was brought to the attention of Company within 30 days from the time Library and/or Library Patron first noticed the defect. Section 4.09. Limitation on Liability. Neither party will claim special, incidental, indirect or consequential damages, including lost profits for breach of this Agreement. This limitation will also apply to any claims brought against Company's content providers Remedies are limited to claims for amounts due, for injunctive relief only as provided, or for direct damages. A parry's aggregate liability for any and all claims losses, liabilities and demands arising, whether for breach of contract, in tort or otherwise, are limited to the total amount of Purchase Agreement Fees paid by Library to the Company during the 12 month period immediately preceding the date on which the claim first arose Section 4 10. Force Majeure. Neither party will be fable for, or have the right to terminate this Agreement as a result of, any delays or failures to perform any of its obligations under the Agreement to the extent that the delays or failures are due to circumstances beyond its reasonable control including without limit acts of God strikes; riots; acts of war; power failures; and functions or malfunctions of the Internet, telecommunications services, firewalls, encryption systems, and security devices; or governmental regulations imposed after the Effective Date. IN WITNESS WHEREOF the parties hereto by and through their authorized agents, have duly affixed their signatures under seal as of the date shown herein. All legal obligations under this Agreement shall become binding upon the parties 30 days from the date the last party signs this Agreement. Company: LIBRARY IDEAS, LLC By: DeetC7 Address: 333 Maple Avenue East # 105 Vienna, VA 22180 Library: Fort Worth Library Name of Z'brary By: ized Agent/Representative Susan Alanis Print Name Address: 1000 Throckmorton St. Fort Worth, •n %6102 APF r VE fIOMF� AS TO GALITY: Attested by: • Marty Hendrix, City Secr&aiy , ... ecco0-06-tairti.N a con y♦ itsze b eXPfrAPe OFFICIAL RECORD CITY SECRETARY L_Ft WORTH, TX .., Rocket Languages Agreement - Updated 3/2/2010 5 016 SCHEDULE A Service Pricing Schedule 1 Rocker Languc r Qs Learn a Language with Rocket Languages on Your Own Terms and in Your Own Time! Ordering is simple and easy. 1. Complete the order form below and email to orders@libraryideas.com. 2. When order email is received, an automatic email receipt will be transmitted to you. 3. Within 48 business hours, Library Ideas administrative staff will contact you to begin account set up and to assign a go -live date. 0 liBRARY IDEAS Library Ideas, LLC www.iibraryideas.com 333 Maple Avenue East #105 Vienna, VA 22180 Phone: 571.730.4300 Fax: 571.730.4305 Email: orders@libraryideas.com Database Subscriptions Category: Date: Sales Rep: 7 Brian Downing Account #: Library: Fort Worth Library Street Address: 500 W. 3rd St. City, State, Zip: Fort Worth, TX 76102 Administrator Name: Amy Bledsoe Bill To: same Address (if different): City, State, Zip (if different): Purchase Order Number (if needed): Email: Amy.Bledsoe@fortworthlibrary.org Phone: 817.871.8049 Order Description One year subscription to Rocket Languages Office Use Only Activation Date: Contact: Amy Bledsoe Amount Select 1 I $4,550 (No cap on downloads, unlimited streaming, unlimited multiple simultaneous access and no DRM) Authorized Signature: Printed Name: Title: Date: Initial set up fee (one time fee): Grand Total: I I $cool $4,650