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HomeMy WebLinkAboutContract 44738 (2)CENGAGE LEARNING INC. LICENSE AGREEMENT ON-LINE LEARNING Ia LS CITY SECRETARY CONTRACT An This LICENSE AGREEMENT ("License") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a home rule municipal corporation situated in portions of Tarrant, Denton and Wise Counties, Texas, acting by and through Charles W. Daniels, its duly authorized Assistant City Manager, and CENGAGE LEARNING, INC. ("Cengage"), a Delaware corporation and acting by and through Jim Draper, its duly authorized General Manager, each individually referred to as a "party" and collectively referred to as the "parties." CONTRACT DOCUMENTS: The Contract documents shall include the following: 1. This License for PowerSpeak Languages, online learning tools for the City Library 2. Exhibit A — Subscription and Hosting Services 3. Exhibit B -- Licensed Content, Fees and Subscription Period - PowerSpeak All Exhibits attached hereto are incorporated herein and made a part of this License for all purposes. In the event of any conflict between the documents, the terms and conditions of this License shall control. 1. SCOPE OF SERVICES. Cengage hereby agrees to provide the City with subscription and hosting services the City's licenses for PowerSpeak Languages. Attached hereto and incorporated for all purposes incident to these Licenses are Exhibit "A," Subscription and Hosting Services Agreement and Exhibits `B", Licensed Content, Fees and Subscription Period (PowerSpeak Languages) more specifically describing the services, fees and subscription to be provided hereunder. 2. TERM. This License shall commence upon the date that both the City and Cengage have executed this License ("Effective Date") and shall continue in full force and effect from the date last signed until October 19, 2014 unless terminated earlier in accordance with the provisions of these Licenses. Following the Initial Term, these Licenses shall be renewable at the option of the City for two additional terms of one year each (each a "Renewal Term"). Cengage shall provide City with notice of any increase in fees at least sixty (60) days prior to the beginning of the renewal term. The City shall provide Cengage with written notice of its intent to renew at least thirty (30) days prior to the Cengage Learning, Inc. Page�Vb A UC 21 2813 OFFICIAL RECORD CITY SECRETARY FT WORTH, TX end of each term. 3. COMPENSATION. The City shall pay Cengage an amount not to exceed $12,264.21 in accordance with the provisions of these Licenses and the payment schedules contained in Exhibit "B" which is incorporated for all purposes herein. Cengage shall not perform any additional services for the City not specified by this License unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Cengage not specified by this License unless the City first approves such expenses in writing. 4. TERMINATION. 4.1. Written Notice. The City or Cengage may terminate this License at any time and for any reason by providing the other party with 30 days' written notice of termination. Additional terms are more particularly described in section 3.0 of Exhibit "A". 4.2 Non -appropriation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Cengage of such occurrence and these Licenses shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 4.3 Duties and Obligations of the Parties. In the event that this License is terminated prior to the Expiration Date, the City shall pay Cengage for services actually rendered up to the effective date of termination and Cengage shall continue to provide the City with services requested by the City and in accordance with this License up to the effective date of termination. Additional terms are provided in section 3 of Exhibit "A". 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. Cengage hereby warrants to the City that Cengage has made full disclosure in writing of any existing or potential conflicts of interest related to Cengage's services under these Licenses. In the event that any conflicts of interest arise after the Effective Date of these Licenses, Cengage hereby agrees immediately to make full disclosure to the City in writing. Cengage, for itself and its officers, agents and employees, further agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third party without the prior written approval of the Cengage Learning, Inc. PowerSpeak Database Page 2 of 10 City. Cengage shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Cengage shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised. 6. RIGHT TO AUDIT. Cengage agrees that the City shall, until the expiration of three (3) years after final payment under this contract, or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the Cengage involving transactions relating to this Contract at no additional cost to the City. Cengage agrees that the City shall have access during normal working hours to all necessary Cengage facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Cengage reasonable advance notice of intended audits. The City shall bear the costs related to conducting the audit, including the audit group, travel expenses and document mailings. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Cengage shall operate as an independent contractor as to all rights and privileges and work performed under these Licenses, and not as agent, representative or employee of the City. Subject to and in accordance with the conditions and provisions of these Licenses, Cengage shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors and subcontractors. Cengage acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Cengage, its officers, agents, employees, servants, contractors and subcontractors. Cengage further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Cengage. It is further understood that the City shall in no way be considered a Co -employer or a Joint employer of Cengage or any officers, agents, servants, employees or subcontractors of Cengage. Neither Cengage, nor any officers, agents, servants, employees or subcontractors of Cengage shall be entitled to any employment benefits from the City. Cengage shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees or subcontractors. Cengage Learning, Inc. PowerSpeak Database Page 3 of 1.0 8. LIABILITY AND INDEMNIFICATION. CENGAGE SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS CLIENT FROM AND AGAINST ANY AND ALL DAMAGES, TO THE EXTENT SUCH DAMAGES ARISE OUT OF OR RELATE TO THE FOLLOWING: (A) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF CENGAGE OR ITS REPRESENTATIVES IN THE PERFORMANCE OF CENGAGE'S OBLIGATIONS UNDER THIS AGREEMENT; OR (B) ANY CLAIMS THAT CITY HAS VIOLATED OR INFRINGED THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY IN THE USE OF ANY PRODUCT PROVIDED TO CLIENT UNDER THIS AGREEMENT OR IN THE USE OF ANY PRODUCT AS PERMITTED BY THIS AGREEMENT. CENGAGE AGREES TO DEFEND, SETTLE, OR PAY, AT ITS OWN COST AND EXPENSE, ANY CLAIM OR ACTION AGAINST CLIENT FOR INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, OR SIMILAR PROPERTY RIGHT ARISING FROM CLIENTS USE OF THE PRODUCTS IN ACCORDANCE WITH THIS AGREEMENT. CENGAGE SHALT HAVE THE SOLE RIGHT TO CONDUCT THE DEFENSE OF ANY SUCH CLAIM OR ACTION AND ALL NEGOTIATIONS FOR ITS SETTLEMENT OR COMPROMISE AND TO SETTLE OR COMPROMISE ANY SUCH CLAIM, AND CLIENT AGREES TO COOPERATE WITH IT IN DOING SO. CLIENT AGREES TO GIVE CENGAGE TIMELY WRITTEN NOTICE OF ANY SUCH CLAIM OR ACTION, WITH COPIES OF ALL PAPERS CLIENT MAY RECEIVE RELATING THERETO. IF THE PRODUCTS OR ANY PART THEREOF ARE HELD TO INFRINGE AND THE USE THEREOF IS ENJOINED OR RESTRAINED OR, IF AS A RESULT OF A SETTLEMENT OR COMPROMISE, SUCH USE IS MATERIALLY ADVERSELY RESTRICTED, CENGAGE SHALL, AT ITS OWN EXPENSE AND AS CLIENT'S SOLE REMEDY, EITHER: (A) PROCURE FOR CLIENT THE RIGHT TO CONTINUE TO USE THE PRODUCTS; OR (B) MODIFY THE PRODUCTS TO MAKE THEM NON -INFRINGING, PROVIDED THAT SUCH MODIFICATION DOES NOT MATERIALLY ADVERSELY AFFECT CLIENT'S AUTHORIZED USE OF THE PRODUCTS; OR (C) REPLACE THE PRODUCTS WITH EQUALLY SUITABLE, COMPATIBLE, AND FUNCTIONALLY EQUIVALENT NON - INFRINGING PRODUCTS AT NO ADDITIONAL CHARGE TO CLIENT; OR (D) IF NONE OF THE FOREGOING ALTERNATIVES IS REASONABLY AVAILABLE TO CENGAGE, TERMINATE THIS AGREEMENT AND REFUND TO CLIENT THE PAYMENTS ACTUALLY MADE TO CENGAGE UNDER THIS AGREEMENT. 9. ASSIGNMENT AND SUBCONTRACTING. Neither Cengage nor the City shall assign or subcontract any of its duties, obligations or rights under this License without the other party's prior written consent, If the non - assigning party grants consent to an assignment, the assignee shall execute a written Cengage Learning, Inc. PowerSpeak Database Page 4 of 10 agreement with the City and Cengage under which the assignee agrees to be bound by the duties and obligations of the assigning party under this License. The assigning party and Assignee shall be jointly liable for all assigning party's responsibilities under this License prior to the effective date of the assignment. If the non -assigning party grants consent to a subcontract, the subcontractor shall execute a written agreement with the assigning party referencing this License under which the subcontractor shall agree to be bound by the duties and obligations of the assigning party under this License as such duties and obligations may apply. The assigning party shall provide the non -assigning party with a fully executed copy of any such subcontract. 10. INSURANCE. Cengage shall provide the City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this License: 10.1 Coverage and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $1,000,000 Aggregate (b) Automobile Liability $1,000,000 Each occurrence on a combined single limit basis Coverage shall be on any vehicle used by the Cengage, its employees, agents, representatives in the course of the providing services under this License, "Any vehicle" shall be any vehicle owned, hired and non -owned (c) Worker's Compensation - Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease - per each employee $500,000 Disease - policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex, Rev. Civ. Stat.) and minimum policy limits for Employers' Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee Cengage Learning, Inc. PowerSpeak Database Page 5 of 10 (d) Technology Liability (E&O) $1,000,000 Each Claim Limit $1,000,000 Aggregate Limit Coverage shall include, but not be limited to, the following: (i) Failure to prevent unauthorized access (ii) Unauthorized disclosure of information (iii) Implantation of malicious code or computer virus (iv) Fraud, Dishonest or Intentional Acts with final adjudication language Technology coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, or a separate policy specific to Technology E&O, Either is acceptable if coverage meets all other requirements. Any deductible will be the sole responsibility of the Prime Vendor and may not exceed $50,000 without the written approval of the City. Coverage shall be claims -made, with a retroactive or prior acts date that is on or before the effective date of this Contract. Coverage shall be maintained for the duration of the contractual agreement and for two (2) years following completion of services provided. An annual certificate of insurance shall be submitted to the City to evidence coverage. 10.2 General Requirements (a) The commercial general liability and automobile liability policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers in respect to the contracted services. (b) The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. (c) A minimum of Thirty (30) days notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten (10) days notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. (d) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. (e) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. Cengage Learning, Inc. PowerSpeak Database Page 6 of 10 (f) Certificates of Insurance evidencing that the Cengage has obtained all required insurance shall he delivered to the City prior to Cengage proceeding with any work pursuant to this License. 11. NON-DISCRIMINATION COVENANT. Cengage, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Cengage's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non-discrimination covenant by Cengage, its personal representatives, assigns, subcontractors or successors in interest, Gale Group agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. 12. NOTICES. Notices required pursuant to the provisions of these Licenses shall be conclusively determined to have been delivered when (1) hand -delivered to the other party, its agents, employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or (3) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: City of Fort Worth Attn: Charles Daniels, Assistant City Manager 1000 Throckmorton Fort Worth TX 76102-631 1 Facsimile: (817) 392-8654 13. SOLICITATION OF EMPLOYEES. Cengage Learning, Inc. Attn: Karen Bailey, Contract Admin. 27500 Drake Road Farmington, Michigan 48331-3535 Facsimile: (248) 699-8032 Neither the City nor Cengage shall, during the term of these Licenses and additionally for a period of one year after their termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by the other during the term of this agreement, without the prior written consent of the person's employer. 14. GOVERNMENTAL POWERSIIMMUNITIES It is understood and agreed that by execution of these Licenses, the City does not waive or surrender any of its governmental powers or immunities. 15. NO WAIVER. The failure of the City or Cengage to insist upon the performance of any term or Cengage Learning, Inc. PowerSpeak Database Page 7 of 10 provision of these Licenses or to exercise any right granted herein shall not constitute a waiver of the City's or Cengage's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 16. SEVERABILITY. If any provision of these Licenses are held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 17. FORCE MAJEURE. The City and Cengage shall exercise their best efforts to meet their respective duties and obligations as set forth in these License, but shall not he held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not Limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 18. HEADINGS NOT CONTROLLING. Headings and titles used in these Licenses are for reference purposes only, shall not be deemed a part of these Licenses, and are not intended to define or limit the scope of any provision of this License. 19. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised these Licenses and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of these Licenses or exhibits hereto. 20. AMENDMENTS. No amendment of these Licenses shall be binding upon a party hereto unless such amendment is set forth in a written instrument, which is executed by an authorized representative of each party. 21. ENTIRETY OF LICENSE. These Licenses, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and Licenses between the City and Cengage, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written Licenses are hereby Cengage Learning, Inc. PowerSpeak Database Page 8 of 10 declared null and void to the extent in conflict with any provision of these Licenses. 22. SIGNATURE AUTHORITY. The person signing this License Agreement hereby warrants that he/she has the legal authority to execute this License Agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The other party is fully entitled to rely on this warranty and representation in entering into these Licenses. 23. COUNTERPARTS. These Licenses may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute one and the same instrument. 24. WARRANTY OF SERVICES. Cengage warrants that its services will be of a professional quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty within thirty (30) days from the date that the services are completed. In such event, at Cengage's option, Cengage will provide a pro-rata refund of the fees paid by the City to Cengage for the nonconforming services for the unexpired term of these Licenses. 25. PUBLIC INFORMATION ACT Consultant understands and acknowledges that the City is a public entity under the laws of the State of Texas and as such, all documents held by the City are subject to disclosure under Chapter 552 of the Texas Government Code. Consultant shall clearly indicate to the City what information it deems proprietary. If the City is required to disclose any documents that may reveal any Consultant Proprietary Information to third parties under the Texas Government Code, or by any other legal process, law, rule or judicial order by a court of competent jurisdiction, the City will notify Consultant prior to disclosure of such documents, and give Consultant the opportunity to submit reasons for objections to disclosure. The City agrees to restrict access to Consultant's information to those persons within its organization who have a need to know for purposes of management of this Contract. The City agrees to inform its employees of the obligations under this paragraph and to enforce rules and procedures that will prevent any unauthorized disclosure or transfer of information. The City will use its best efforts to secure and protect Company's information in the same manner and to the same degree it protects its own proprietary information; however, the City does not guarantee that any information deemed proprietary by Consultant will be protected from public disclosure if release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Contract. Cengage Learning, Inc. PowerSpeak Database Page 9 of 10 IN WITNESS WHEREOF, the parties hereto have executed this License Agreement in multiples thiltday of , 2013. ACCEPTED AND AGREED: CITY OF FORT WORTH: By: lades Daniels As ' • City Manager Date: 08.2/./„3 APPROVED AS TO FORM AND LEGALITY: By. Charlene Sanders Assistant City Attorney CONTRACT AUTHORIZATION: M&C: None required Date Approved: Cengage Learning, Inc. PowerSpeak Database Page 10of10 CENGAGE LEARNING INC: By: Jim I per General Manager Date: 7/29/2013 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX EXHIBIT "A" SUBSCRIPTION AND HOSTING SERVICES AGREEMENT This License Agreement is made as of date of signature by Licensee is by and between Cengage Learning, Inc. ("Cengage"), a Delaware corporation, with its principal office at 27500 Drake Rd., Farmington Hills, MI., USA 48331-3535 and the following Licensee: Name of Licensee: Fort Worth Public Library Jurisdiction of Formation: Texas Address: 500 W. Third Street; Fort Worth TX 76102-7305 By using the subscription -hosting services available through Cengage or by making the services available to Authorized Users, the Authorized Users and the Licensee agree to comply with the following terms and conditions. For purposes of this Agreement "Authorized Sites" are the Internet websites or any other remote site operated by Licensee with secure access from which Authorized Users can obtain access to Cengage's databases and services; "Authorized Users" are employees, staff, students and registered patrons affiliated with the Licensee and persons with legal access to the Licensee's collections and facilities onsite ("walk-ins") and persons remote ("remote users") from Licensee's physical location whose access is authenticated by a secure server or other systems from Licensee's site or campus but not persons at remote sites or campuses with separate administrations (for avoidance of doubt, separate administrations include without limitation other schools, public libraries and college and academic universities). Upon request Cengage will provide price quotes to allow for access within sites with separate administrations. Use of and access to Cengage databases and services shall be limited to the customary services provided to Authorized Users and shall not include providing access to other libraries or third parties, unless specifically authorized by Cengage. The Licensee's Authorized Users may only access the Licensed Content (as defined below) via the Licensee's Authorized Sites using such Authorized User's personal access codes provided by the Licensee. Users may not share their access codes with others or access the Licensed Content as an Authorized User under this Agreement other than via an Authorized Site. For example student patrons in K12 libraries or facilities using onsite access to terminals or workstations within school premises are restricted from accessing the Licensed Content using public or state issued library identification/user cards without prior written consent of Cengage. Subcontractors, affiliates and other third party contacts of the Licensee are not defined as Authorized Users under this license and as such are not granted access rights without the prior written consent of Cengage. 1.0 License 1.1 Grant of License. Cengage hereby grants to Licensee, the non -transferable, non-exclusive right to access and use the content provided by Cengage via the on-line, FTP electronic feed or CD-ROM products ("Licensed Content") as listed in the attached schedule, to download, display, view and print and/or make limited paper or electronic copies of citations, abstracts, full text or portions thereof for internal business purposes and for Licensee's Authorized Users' educational research and personal non-commercial use only. Licensee shall not use the Licensed Content as a component of, or a basis for, a directory, database, or other publication prepared for sale, exchange, barter or transfer, rent, lease, loan, resell for profit, distribute, alter or in any other manner commercially exploit any data or documentation received from the Licensed Content. Cengage reserves the right at any time to withdraw from the Licensed Content any item or part of an item for which it no longer retains sufficient rights, ,or which it has reasonable grounds to believe infringes copyright or is defamatory, obscene, unlawful or otherwise objectionable. 1.2 Limitation on Grant of Rights. All rights in and to Licensed Content not specifically provided to Licensee hereunder shall remain the exclusive property of Cengage and its licensors. Accordingly: a. Licensee may incorporate parts of the Licensed Content in electronic course packs and electronic reserve collections for the use by Authorized Users but not for printed (hard) copy versions of course packs, commercial use or resale. Each such item shall carry appropriate acknowledgement of the source, listing title and author of the extract, title and author of the work and the publisher. Course packs in non- 27500 Drake Road Farmington Hills, MI 48331-3535 248-699-4253; 800-877-4253 www.gale.cengage.com 1 electronic non -print perceptible form, such as audio or Braille, may also be offered to visually impaired Authorized Users. The Licensee shall delete or destroy all copies of such items when they are no longer used for such purpose. b. Licensee may provide electronic links to the Licensed Content from Licensee's web page(s). Cengage will assist Licensee upon request in creating such links effectively. Licensee shall make changes in the appearance of such links and/or statements accompanying such links as reasonably requested by Cengage. c. Authorized Users may transmit to a third party individual in hard copy or electronically, minimal, insubstantial portions of the Licensed Content for personal, scholarly or educational use, or scientific research but in no event may any Licensed Content be used or transmitted for commercial purposes. In addition, Authorized Users have the right to use, with appropriate attribution to Cengage, figures, tables and brief excerpts from the Licensed Content in the Authorized User's own scientific, scholarly and educational works. d. Authorized Users who remotely access the Licensed Content may do so from home or another location, provided, that proper security procedures are undertaken by the Licensee that will prevent remote access by unauthorized users. Licensee shall take all reasonable precautions to limit the usage of the Licensed Content to those specifically authorized by this Agreement and shall use reasonable efforts to inform its Authorized Users of the provisions of this Agreement. The Licensee agrees to notify Cengage if it becomes aware of any of the following: (a) any loss or theft of the Licensee's passwords(s); (b) any unauthorized use of any of the Licensee's passwords(s) of the Licensed Content; or (c) any breach by an Authorized User of the terms of this Agreement. Upon becoming aware of any breach of the terms of this Agreement by an Authorized User, the Licensee agrees to work with Cengage to correct such practices. Notification of claims of copyright infringement regarding materials available or accessible on, through, or in connection with Cengage's services may be sent to Cengage Learning, Inc., 200 First Stamford Place, Stamford, CT 06905, Attention: General Counsel 2.0 Warranties. A. Cengage warrants to the Licensee and its Authorized Users, that the Licensed Content used in accordance with this Agreement does not infringe the copyright or any other proprietary or intellectual property rights of any person. Cengage further warrants that it owns and has the right to make available the Licensed Content to the Licensee. B. Cengage shall use commercially reasonable efforts to provide continuous availability of the online Licensed Content, subject to periodic unavailability due to maintenance of the server(s), the installation or testing of software, the loading of data and downtime related to equipment, the failure of communications networks, or services outside of control of Cengage. Cengage shall use reasonable efforts to provide an average of 98% up time per month. Scheduled downtime will be performed at a time to minimize inconvenience to Licensees worldwide. C. Although Cengage believes the Licensed Content to be reliable, Cengage does not guarantee or warrant any information or materials contained in or produced by the Licensed Content or the accuracy, completeness or reliability of the Licensed Content Any data or information contained in or provided in connection with the Licensed Content may be incomplete or condensed. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS AGREEMENT, CENGAGE PROVIDES THE LICENSED CONTENT ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND AND CENGAGE DISCLAIMS ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL CENGAGE BE LIABLE FOR: INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING FOR LOST PROFITS, LOST DATA, OR OTHERWISE. D. IN NO EVENT SHALL CENGAGE OR ANY THIRD PARTY DATA SUPPLIER BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED CONTENT OR FOR THE LOSS OR DAMAGE OR CORRUPTION OF DATA, LOSS OF PROGRAMS, LOSS OF BUSINESS OR GOODWILL, OR OTHER DAMAGES OR LOSSES OF ANY NATURE ARISING OUT OF THE USE, OR INABILITY TO USE THE LICENSED CONTENT, INCLUDING WITHOUT LIMITATION LOSSES ARISING FROM ANY ERRORS, OMISSIONS OR OTHER INACCURACIES IN OR CORRUPTION CAUSED WHETHER BY TRANSMISSION 27500 Drake Road Farmington Hills, MI 48331-3535 248-699-4253; 800-877-4253 www.gale.cengage,com 2 PROCESSING OR OTHERWISE TO THE MATERIAL PUBLISHED IN THE LICENSED CONTENT OR OTHERWISE MADE ACCESSIBLE THROUGH THE LICENSED CONTENT. IN NO EVENT SHALL CENGAGE'S OR THIRD PARTY DATA SUPPLIER'S LIABILITY UNDER THIS AGREEMENT WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE EXCEED THE ANNUAL FEE RECEIVED BY CENGAGE FROM LICENSEE. E. The parties further agree that this license is subject to the copyright act and laws governing infringement of copyrights and other intellectual property rights including, without limitation, 28 U.S.C. sec. 1498(b). 3.0 Termination 3.1 Either party may at any time (without prejudice to its other rights or remedies) terminate this Agreement and any order form hereunder or in connection herewith (an "Order Form") with written notice to the other party in the following circumstances: a, With respect to the delivery of any part of the Licensed Content from any third party (a "Source"), upon request of such Source or immediately upon termination of Cengage's agreement with such Source. b. If either party commits a material or persistent breach of any term of this Agreement or the terms and condition of any Order Form and fails to remedy the breach (if capable of remedy) within thirty (30) days of notification in writing by the non -breaching party. c. If the Licensee willingly defaults in making payment of the fee as specified in Section 4 of this Agreement and fails to remedy such default after receiving thirty (30) days of notification in writing by Cengage. d. If for any reason at any time during any term of this Agreement the Fort Worth City Council fails to appropriate sufficient funds for the Licensee to fulfill its obligations under this Agreement provided that such termination shall be effective on the later of (i) thirty (30) days following delivery of written notice from the Licensee to Cengage of the Licensee's intention to terminate or (ii) the last date for which funding has been appropriated by the City Council for the purposes set forth in the Agreement. e. If Cengage assigns this Agreement to an affiliate or a successor in interest or in connection with a change of control or transfer of assets to which this Agreement relates and Licensee provides Cengage with thirty (30) days' advance written notice of the Licensee's intention to terminate. 3.2 On termination, all rights and obligations of the parties automatically terminate: a. Licensee shall immediately cease to distribute or make available the Licensed Content to Authorized Users, and shall destroy all Licensed Content locally mounted pursuant to Section 1.2 b. On termination of this Agreement by the Licensee for cause, Cengage shall forthwith credit the proportion of the fee that represents the paid but unexpired part of the access period. c. In the case of Licensed Content for which a fee is paid for continual or perpetual access to the materials, on termination of this Agreement, (otherwise than as a result of notice being given by Cengage for°breach of contract) Cengage shall provide reasonable assistance to the Licensee as needed to enable the Licensee and any third part vendor engaged by the Licensee to host, and provide to Licensee and its Authorized Users uninterrupted on-line Internet web -based access to the Licensed Content d. Use of the CD-ROMs and FTP electronic feeds after subscription expiration is subject to the license granted under this Agreement. In the case of CD-ROM or FTP electronic feeds for which a license fee is paid for continual or perpetual access to the materials, Licensee may retain the CD-ROM or FTP electronic feed unless the license is terminated due to breach of this Agreement. In the event of breach of any term of this Agreement, Cengage may, in addition to its other legal rights and remedies, terminate the license granted and upon written notice of such termination Licensee shall certify the destruction of all copies of the Licensed Content including the CD-ROMs or FTP electronic feeds as well as any downloaded copies of the licensed materials. 4.0 General A. Affirmative Action, Non -Discrimination in Hiring and Employment. Cengage shall comply with all federal and state laws, rules and regulations promoting fair employment practices or prohibiting employment discrimination and unfair labor practices and shall not discriminate in the hiring of any applicant for employment nor shall any qualified employee be demoted, discharged or otherwise subject to discrimination in the tenure, position, promotional opportunities, wages, benefits or terms and conditions of their 27500 Drake Road Farmington Hills, MI 48331-3535 248-699-4253; 800-877-4253 www,gale.cengage.com 3 employment because of race, color, national origin, ancestry, age, sex religion, disability, handicap, sexual orientation or for exercising any rights afforded by law. B. Equal Opportunity. Cengage shall not discriminate against any individual with respect to his or her compensation, terms conditions or privileges of employment or discriminate in any way that would deprive or intend to deprive any individual of employment opportunities or otherwise adversely affect his or her status an employee because of such individual's race, color, religion, sex, national origin, age, handicap, medical condition, sexual orientation or marital status. C. Copyrighted Works. Except for the specific rights granted herein, all right, title and interest, including copyrights to the Licensed Content, are owned exclusively by Cengage and its licensors. All rights in respect thereof are reserved to Cengage and such licensors. Through this Agreement Licensee obtains certain limited rights to the Licensed Content, but Licensee does not obtain or own any rights in the copyrights or any other intellectual property rights that may be associated with such Licensed Content. All such copyrights and intellectual property rights remain the property of Cengage and its licensors. D. Confidentiality. Licensee shall exercise due diligence to maintain all information in confidence and will use the Information solely in connection with the purposes agreed upon between the parties. "Due diligence" shall mean at least the same precautions and standard of care Licensee would use to safeguard proprietary information and financial terms of its own and other vendors. Notwithstanding the foregoing, the terms and conditions of this Agreement may be disclosed by Licensee as part of normal reporting and/or evaluation procedure to those persons within the recipient's organization who have a reasonable need to know the information and who have been informed of and agree to abide by the restrictions relating to duplication, disclosure, and use of all such data and/or information described herein. Cengage acknowledges that Licensee may be required to release information in response to a request under the Texas Public Information Act or in connection with other legal process, law, rule, or judicial order by a court of competent jurisdiction; Licensee agrees to utilize its best efforts to notify Cengage prior to any disclosure under such circumstances. E. Survival. The provisions of Sections 2 and 4 (I) shall survive the termination or expiration of this Agreement for any reason. 27500 Drake Road Farmington Hills, MI 48331-3535 248-699-4253; 800-877-4253 www.gale.cengage.com 4 EXHIBIT "B" LICENSED CONTENT, FEES, SUBSCRIPTION PERIOD Bill to Contact: Fort Worth Public Library Bill to Address: 500 W. Third Street Fort Worth, TX 76102-7305 Product Powerspeak Languages # of Sites # of Users/Site Extended Price 1 Unlimited Subscription Term Dates: 07/01/2013 — 06/30/2014 Total Subscription Amount: $12,264.21 $12,264.21 Term. This Agreement shall commence for the Initial Term (the "Initial Term") and shall extend through the term stated above and remain in effect unless earlier terminated or extended as provided for herein. Payment. All fees shall include applicable sales, use, excise, or similar taxes. The fee is due within thirty (30) days after invoice date. 27500 Drake Road Farmington Hills, MI 48331-3535 248-699-4253; 800-877-4253 www.gale.cengage,com 5