HomeMy WebLinkAboutContract 44738 CITY SECRUARY
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CENGAGE LEARNING INC.
LICENSE AGRFEMV',NT
ON-LINE LEARNING TOOLS
This LICENSE AGR-VEMENT ��1�_�1cerus ") is leads and entered into y and b twee the
CITY OF FORT WORTH (the, "City"), a home mle MUDi .i al corporation situated in
portions of arrant, Denton and Wise Countl , 1'e a , ,acting by and through Charles W.
Janie , its duly author a:7 ed Assistant City \Ma a r, and C N GA . E LEARNING, '[N'C.
("Cengage"), a, Delaware corporation and acting by and th-rough Jim Draper, its duly authorized
General .Manager, each Individually referred to a s a "party" and collectively referred to as the
44l arose.'
C NTRAc T DOCUMENTS.:
The Contract documents ,shall include the following:
1. Thi's License for PowerSpeak Languages, online l u g tool fear the City Library
2. Exhibit it — Subscription and Hosting Services
3. Exhibit B -- Licensed Content, Fees (Ind Subscription Period - PowerSpeal.
All Exhibits attached hereto are incorporated herein and made a p r�t of this License for all
purposes. In the evert of any conflict between the docu me t , the ternis tern and coriditions of this
License shall ontro�l
1. SCOPE OF SERVICES.,
,engage hereby agrees tea wide the City with subscription and hosting services the
City's licenses for Power pea Languages., Altar' ed hereto and incorporated for all
purposes 1 %dert hes l� en es d o t'p W
ServIces Agreement and Exhibits "B", Licensed Content, Fees and Subscription
Per'iod (Power Speak Languages) more specifically describing the services, fees and
subscription to be provided herCUnder..
2. TERM.
This License shall commence upon the date that both the City and Cergage have
exccu��ted' gals .keens ("F_.,ffectivc Date") and,shall continue ire full for�ee and effect from
the date last signed until October 1 , 2014 unless teniii.nated earlier in accordance with
the provisions of these Licenses. Following the n tia,t to erm, these Licenses shall be
renewable at the option of the City for two additional terms of one year earl (each a.
"Renewal' Te . "). Cengage shall provide City with notice of any increase in fees at
least sixty 60 da ys prior to the egin'ng of the renewal tuna. The City shall provide
Cerga e with written notice of its intent to renew at least -thirty 30, days prior to the
Cengage Learning,Inc. OFFICIAL RECORD
Pow CITY SECRETARY
AUG 2 12013
L M VPD,RTHi TX
end of each tent.
3. COM"'VENSATION.
T'he City shall pay C en ag,e an arnount not to exceed $12,264.21 accordance with the
provisions of these Licenses and the payment schedules contained ed M Exhibit " " which
is incorporated for all purposes herein. Cenga e shall not perf6m any additional services
for the City not specified by t.h s U, eense L nless the City regUests and approves in. writing
the additional casts 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
expanses in writing.
4. TERM4NATION.
4.1. Written Notice.
The City or Cerigage may terminate this License at ai-iy time and for any reason
by providing the Other party with 30 days' written notice of terrnin .t.io
Additional ten-ns c ire more particularly described in section 3.0 of xhl bit"A"..
4.2 Non-appropriation ol- FUnds.
In the event no Rinds or insufficient funds are appropriated by the C.4tv i n. any
fiscal period for any payments due herea.nder C7 ity will nc�tlf ����� of such
occurrence and these Licenses shall terminate an the lest day of the fiscal ferlec
for which appropriations were reeeivc d without penalty or expense to the City of
any kind whatsoever, except as to the portions of .tire payments ents herein agreed
an for which funds have been appropriated.
4.3 Duties and C lip: tions of the Parities.
In the event that this License is terminated prior to the Expiration Date, the City
shall pay .engage for services actually rendered l uT to the effective date of
termination and C engage shall continue to provide the City with services
requested by the -'ity and in accordance with this License up to the Offeetive
date of to ii.nat an, Additional tenns are provided in section 3 of Exhibit"A".
51 DISCLOSURE OF CONFLICTS ,.kND CONFIDENTIAL4 INFORMATION,
C'en a e hereby warrants to the City that Cengage has made full disclosure in writing of
any existing or potential conflicts of interest related to C en ge's services underthese
Licenses., In the event that any convicts of interest arise after the Effective Date of these
Licenses, Cengage hereby ag-rees Munediately to i ake AT disclosure! to the City in
writing,, Ce gage for itself and its officers, agents and employees, further agrees th�.t it
shall treat all information provided to it by the City as confidential and shall not
diselese any such infarniati.an to a third party without the prior written approval aft the
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City. Cengage shall store and maintain City Information in a, secure mariner and shall
not allow unauthorized users to ac,ce'ss,, modify, delete or otherwise corrupt City
Information in any Cengage shall notify the City i1nmediately if the security or
,integrity of any City information has 'been compromised or Is believed to have been
Compromised,
6- RIGHT TO AUDIT.
Ceng,age agrees that the City 'until the expiration of three (3�) years after final
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payment under this contract, or the final conclusion of any audit commenced during the
pad tluee years, have access to and the right to exam" irnes an i
al ine at reasonable t" y 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 neces,s,ary Cengage facilities and
shall be provided adequate and appropriate work space in order to conduct audits in
compliance with the provisions o f t his section. The City shall give Cengage reasonable
advance notice of intended audits, The City shall bear the costs related to conducting
7 6 rig the atid't group, travel expenses. and document mailings.
the audit includi I
7. INDEPENDENT CONTRACTOR,
it is expressly understood and agreed that Cengage shall operate as an independent
contractor as to all rights and privileges a nd work perfonned under these Lice n , 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 acknowiedges that the doctrine ofresponcleal superior shall
not apply as between the City, its officers, 'agents, servants and employees, and
Cengage, its officers, agerits, 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 l no way be considered a Co�-employer or, a Joint employer of Cengage
or any officers, agents, servants, emplc yees. 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 reportijag of taxcs, on behalf of itself,
and any ol'lts officers, agents, servants, employees or subconlractors.
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LIABILITY AND INDEMNIFIC ATIC .
CENGAGE SHALL INDEMNIFY, EFEND AND HOLD HARMLESS CLIENT
FROM AND AGA..INS"I' ANY AND ALL DAMAGES, TO THE EXTENT SUCH
DAMAGES S ARISE OUT OF OR REI,ATE TO THE FOLLOWING.-.- A THE
G S � C I EEC E OR WILLFUL MISCONDUCT OF CENGAGE O ITS
P �SENTATI VES, IN THE PERFORMANCE OF CENGAGE"S
OBLIGATIONS UNDER THIS (].' E ENT, OR B) ANY CLAIMS S THAN
CITY HAS VIOLATED OIL INFRING THE INTELLECTUAL LLECTUA PROPERTY
RIGHTS OF ANY THIRD PARTY IN TH E USE OF ANY PRODUCT PROVIDED
O CLIENT UNDER THIS AGREEMENT O�R IN THE US E OF ANY PRODUCT
AS PERMITTED BY TIIIS A GREEMENT.
CENGAGE AGREES TO DEFEND, SETTLE, OR PAY, AT ITS OWN COST
AND EXPENSE, ANY CLAIM OR ACTION' AGAINST CLIENT FOR
INFRINGEMENT F' ANY PATENT, COPYRIGHT, T DE SECRET,T, O
SIMILAR PROPERTY WIGHT ARISING FROM CLIENTS USE F THE
PRODUCTS IN' ACCORDANCE WITH THIS AGRE EMENT. CE"NG'AGE
SHALT HAVE THE SOLE RIG14T TO CONDUCT T14E DEFENSE OF: ANY
SUCH CLAIM OR ACTION AND ALL NEGOTIATIONS FOR, ITS
SETTLEMENT MEET R COMPROMISE, AND TO SETTLE OR COMPROMISE ANY
Sn T H CLAIM, AND CLT E T AGR-EES TO COOPERATE WITH IT IN DOING
INC
ANY _UCH CLAIM OR ACTION, WI 14 COPIES F ALL PAPERS CLIENT
MAY RE CEIVE RELATING THERErl"O, IF THE PRODUCTS OR ANY PART
THEREOF ARE HELD TO INFRINGE AND THE USE THEREOF IS
ENJOINED OR RKSTRAINED OR, IF AS A RESULT OF A SETTLEMENT OR
COMPROMISE, SIXII USE IS MATERIALLY ADVERSELY RESTRICTED,
CENGAGE SHALL, A'-.I' ITS OWN EXPENSE AND AS C ILIL TES SOLE
EMEDY, EITHER: A PROCURE FOR CLIENT TAE RIGHT TO CONTINUE
TO USE THE PRODUCTS; R B MODIFY THE PRODUCTS TO NIARTj
THEM NON-INFRINGING,INNING, LROIDED THAT SUCH MODIFICATION DOES
NOT MATERIALLY ADVERSELY AFFET CLIENT'S AU"FHORIZED USE OF
THE PRODUCTS; R (C), REPLACETHE ROD U "TS WITH EQUALLY
SUITABLE, CC: MPA TI3L , AND ;FUNCTIONALLY EQUIVALEN T NON—
INFRINGING PRODUCTS AT NO ADDITIONAL CHARGE TO CLIENT- OR
(D) IF NONE OF THE FOREGOING ALTERNATIVES IS REASONABLY
AVAILABLE TO CENGAGE, 'TERMINATE THISAGREEMENT AND REFUND
TO, CLIENT THE PAYMENTS AC TUALLY MADE T01 CENGAGE UN I E
THIS AGREEMENT.
Neither Cengage nor the City shall assig n or subcontract any of its duties, obligations, or
rights tinder this License witbout the other pay" 's prior written consent. If the non-
i �ee ����w execute � w
tten assig in party g an s consent o an assignment, he ass 1
ng ge Learning, tile.
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agreement with the City and Cengage under which the assignee agrees, to be bound by
thed-utles, and obligations of the assigru'rig party Linder this License. The assigning party
and Assignee shall be Jointly liable for all assigra*ng party's responsibilities 'Linder this
License prior to the effect i'Ne date of the assignment. If the non-assigning party grants,
consent to a subcontract, the subcontractor s,hall execute a written agreement with the
assigning party referencing thi s Vicei�se wider which the subcontractor shall agree to be
bound by the duties and obligations of the assigning party under this License cis stech
duties and obligations may apply. The assigning party s,hall 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 mintmum coverag.-Ye limits that are to be in effect prior to co enter
of any work pursuant to this License:
10.1 Coverage and Limits
(a) Commercial General Liability
$1,000,000 Each Occurrence
$1,0001,000 Aggregate
(bi) Automobile Liability
$1,000,000 Each,occurrence on a combined single limit basis
Coverage shall be on any vehicle LiSed by the, Cengage, its rnpl yee , agents,
reme"sen-tatives in the course of the providing services Linder this License,
"Any vehicle" shall be any vehicle owned, hired and non-owned
(c,) Worker's, Compensation - Statutory limits
Employer's liability 1
$100,0010 Each accident/occu-rence
000 Disease - per each employee
$1.00�1 01
$1500,000 Disease - policy 11mit
This coverage may he written as follows:
Workers' Compensation and Employers' [-,[ability coverage with limits
consistent with statutory beneflits outlined "In the Texas workers'
Compensation Act (Art. 8308 — 1.0] et seq. Tex. Rev. Civ. Stat.) and
Mini ,ur ' *lity o $10101,000 each
nin policy limils, fo r Employers' L*ab I I f
accident/occurrence, $500,000 bodily ilijury disie e policy limit and $1 ON)OO
per disease per employee
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(d) Technology Liability (E&O)
$1 000',000 Each Claim L'imit
$1,0'00,000 Aggregate Limit
Coverage shall include, but not be firrited to, the following.-
(i) F'aflure to prevent unauthorized access
(ii) Unauthorized disclosure of info rrnation
(iii) Implantation of malicious code or computer virus
(iv): FraLid, Dishonest or Intentional Acts with inert adjudication language
Technology coverage may be provided through an endorsement to the
Conu,nercial General Liability (Ct..L policy, or a separate policy specific to
Technology E&O. Ether is acceptable if' coverage meets all other
requirements. Any deductible will be the sole responsibility of the "r me
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 Req,uirements
(a) The commercial general liability and automobile liability policies shall name
the City as an additional 'Insured ther con, as its 'interests may appear. The
to City shall inclUde its employees, officers,, officials, agents,, and
vol.Linteers In respect to the contracted services.
(b) 'The workers' compensation policy shall include a Waiver of Subrogation
(1sight of Recovery) in favor of the City of Fort Worth.
(c) AnlilliMllfn Of Thirty (30) days notice of cancellation or redLICtion in limits, of
coverage shall be provided to the City. Ten (10) clays notice shall be
acceptable in the event of non-payment of premiLLM. Notice shall be sent to
the Risk, Manager, City of Fort Worth, 1.000 ThroclMorton, Fort, Worth,
Texas '761 02, with copies to the City Attorney at the same address.
(d,) The insurers for all policies niust be licensed and/or approved to do bUSiness
i.n the State of Texas. All insurers must have a nilaimum rating of A- V I t 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 Fisk Management is
required.
(e) Any failure on the part of the it to request required 'insurance
documentation shall n.ot constitute a waiver of the 'insurance requirement.
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Certificates Of IIISLwance evidencing that the Cengage has obtained ail
required insurance shall be delivered to the City prior to rye ngage proceeding,
with any work pursuant to this License,
11. NON-DISCMMINATION COVENANT4 0
Cengage, for itself, its pers()nal representatives, assigns, subcontractors and successor in
interest, as part of the consideration herein, agrees that in the performance of Cengage's
duties, and obligations here-under, I't shall not discriminate In the treatment or
employment, of any individual, or group of individuals on any basis prohibited by law. If
any cla*m ar'ses From an alleged v"olat'on of this non-dI' , * lati cveant
on on by
scri'mil
Cengage its personal representatives, assigns, Subcontractors or successors in interest,
Gale Group agrees To assurne such liability and to indernnify and defend the City and
hold the City, harmless from such claim.
U. NOTICES,
Notices required P ursuant to the provisions of Licenses these Linses, shall, be con clu sive ly
determined to have been delivered when (1) hand-defivBred to the other party, its,
agents, employees, servants or representatives, (2) delivered by facsimile with
electronic confer nation of the transmission, or (3) received by the other panty by United
States 'Mail, registered, return receipt requested, addressed as follows:
City of t"ort Worth Cengage Learning, Inc.,
Attn: Charles Daniels, Attn: Karen Balley,
Assistant City Manager Contract Adniin.
1000 Throckmorton 27500 Drake Road
Fort Worth TX 76 10,2-63 1, 11 F-arniington, Michigan, 48331-3535
Facsimile: (817) 392- 654 Yacsimile: (248) 699-8032
t3l. SOLICITATION OF EMPI-jOYEES.,
Neither the City nor Cengage shalt, during the to 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
c.mploycd by the other during the term of this agreement, without the prior written
consent of the person's einployer.
1
14. GOVERNMENTAL POWERS[IMM UNITIES
It is understood and agreed that by execution of these Licenses, the City does not waive
or,sua-render any of its goverrmicntal powers or linmunities.
1.5. NO WAIVER.
The failure of the City or Cengage to insi,st upon the performance of any to or
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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 I_Jcenses, are held to be in-valid, illegal or unenforceable, the
validity, legality and enforceability of the remairling provisions shall no( in any way be
affected or impaired.
17, FORCE MADE RE.
The City and eng age shall exercise their best efforts to rneeL their respective dUlies and
obligations as set forrh in 'these T.,iceiise, but shall not be held liable for any delay or
omiss,ion in performance dire to force majeure or other causes beyond their reasonable
Control,I including, but not limited to, compliance with any goveniment law, ordinance or
regulation, acts of God, acts of the pubtic enemy, fires, strikes, lockouts, natural
disasters, wars,, aorta, material or labor restrictions by, any goverrunental authority,
transportation problems and/or any other similar causes.
is. HEADING 1 011 CONTROLUNG.
Headings, and titles Lised in these Licenses are for reference purposes only, shall not be
deemed a part of Lhese Licenses, and are not intended to define or limit the scope of any
provision of this L'icense.
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.
214, ENTIRE'ry OF LICENSE.
I ts attached hereto and any documents
These l_j icenses� including the l
schedue of cxhlbi
0
incoi-porated herein by reference,, contains the entire u rider stand ing and Licenses
between the City and C'engage, their assigns, and successors in interest', as to the matters
contained herei-n. Any prior or contemporaneous oral or written Licenses are hereby
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declared ntill and void to the extent in conflict witl. any provision of these Licenses.
22. SK"rNATURIE AtJTHOIUTY,.
l"he person signing this 1-icense 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 atithority has been granted by proper order, resolution, ordinance or other
authorization of (lie entity. The other party is t"iAlly entitled to rely on t s warranty and
representation in entering into these 1,icenses.
23. COUNTERPAR"rs.
These Licenses may be k xecuted in o�ne or more counter-parts arid 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 set-vices will be of a professional quality and conforn'l to
generally prevailing industry standards., City must give written notice of any breach of
this wan anty 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 nonconforfining services for the unexpired terg i of these
Licenses.
25* PUBLIC INFORMATION ACT
Consultant understands, and acknowledges that the City is a pubtic entity under -the laws
of the State of Texas and as such, atl documents held by the City, are subject to disclosure
under Chapter 552 of the Texas Government Code. Clonst'iltarit shall clearly *Indicate to
the City what information it deems proprietary. If the City is required to disclose any
documents that may reveal arty Consultant Proprietary Information to third p<uties under
the Texas Govern-ment 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 docurnents,, and give ConsultkW,t the opportunity to submit reasons for objections to
disclosure. The City agrees to restrict access to Consultant's information to those persons
W*th,11 " f 'on who have a need to Imow for purposes of managen,ent of" this
i. i its orgaruzatt I
Contract, The City agrees to inforni its employees of the obligations under this paragraph
and to enforce rules and procedures that will prevent any unauthOTized disclosure or
transfer of information. The City will use its best efforts to secure and protect Cornpany's
infon-natton, in the same manner and to the same degree it protects its own proprietary
information; however', the City does, not guarc-antee that any infer -nation deemed
proprietary by Consultant will be protected from public disclostire if relcase 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.
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IN WITNESS WHEREOF, the parties liereto have executcd this License Agreement I'II
lest multip
1 =�Oay of'/,,/,/, 2013.
d
41 k C C'EPITED AND AG'iu_.ED*.
CITY OF FORT WOR"I'Wo CENGAGE LEAlkNING INC.
4
Bv:
arles Danlefis JiIjj per
As ' C Ity Manager General Manager
Date Date:L08 7/29/2013
2 --------------
ATTES "FTEST:
S
low
OWN", y
By.
lary J.1
(ary
City se�, Woo
PIF x
APPROVED AS TO FORM AND LEGALITY-.
By.
Charlene Sanders
Assistant CItyAttomey
CONTRACT AUTHORIZATION.
,M&C,,, None requ]"red
Date Approves #
OFFICIAL RECORD
CITY 35CRLITARY
Cengage Leaming,hi c. 174 WORT119 TX
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EXHIBIT"All
SUBSCRIPTION AND HOSTING SERVICE'S AGREEMENT
This License Agreement is made as of date of signature by Licensee is by and between Cengage Learning, Inc.
("Cengage"),a Delaware coirploration,with its principal office at 27500 Drake Rd., Farmington Hills, Ml.j USA
48331-3,535,and the following Licensee:
Name of Licensee: Fort Worth Publiic 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 maiking the seirvices available to
Authorized User's, the Authorized Users and the Licensee agree to comply with the folliowing terms and conditions.
For purposes of this Agreement "Authorized Sites,"are the Internet wpbsites or any other remote site operated by
Licensee with secure access from which Authorized Users can obtain access to en age'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 ("wal'k-ins") and persons remote ("'remote
users"") from Licensee's physical Iccation 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)
vial 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 cointeint pirovided by Cengage via the on-line, FT'P 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 l infringes copyright or is
defamatory, obscene, unlawful or otherwise objectionable.,
1.2 Limitation on Grant of Ri s. All rights in and to Licensed Con,tprt, 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
collectioins for the use by Authorized Users but not for printed (hard) copy versions of course, plaicks,
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 pubilisher. Course packs in non-
27500 Drake Road Farmington Hills,M1 48331-3535 248-699-4253;900-877-4253 www.gale.cengage.com
electronic non print perceptible form, suich, 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 lints to the Licensed Content from Licensee's web page(s). Cengage will
assilst Licensee upon request in creating such links effectively. Licensee shall make chainges in the
appearance of such links and/or statements accompan�ying 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 Cengagel, 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 iocation,
provided, that proper security procedures are,undertaken by the Licensee that will prevent remote access
by unauthorized users. Licensee shall talke 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.- ( ►) any loss or theft of the Licensee's, passwords(s); (b) any unauth�orizeld
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 becom� ing 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 c,opyrilght 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
21.0 Warranties.
A. Cengag,e 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 clue 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
serviices outside of control of Cengage. Cengage shall use reasonable efforts,to provide, an average,of 918% 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,, PUNiITIVE OR CONSEQUENTIAL DAMAGES
INCLUDING FOR LOST PROFITS, LOST DATA, OR OTHERWISE,
D. IN NO EVENT SHALL CENIGAGE 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 NATUR,E 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
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PROCESSING OR OTHERWISE TO THE MATERIAL PUBLISHED IN THE LICENSED CONTENT OR OTHERWISE MANNE
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
OTHE'R'WiSE EXCEED THE AI' 'NUAL FEE RECEIVED BY CEN'GAGE' 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 llimi:tation, 28 U.S.C. sec, 1498(b).
3.0 Termination
3.1 Either party may at any time(withou�t prejudice to its other rights or remedies)terminate this Agreement and
any order form hereunder or in coninection herewith (an "'order Form")with written notice to the other party
In the foillowing circurnstances:
a. With respect to the del�ivery of any pert of the Licensed Content from any third party (a "Source u pol n
request of such Source or immediately upon termination of Cengage's agreement with such Source.
b, If either party, commits a mialterial or persistent bireach, 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 m,aking 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(J) thirty (30) days following delivery of written notice
from, the Licensee to Cengag,e 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. It 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 Li,ceinsee provides Cengage with thirty
(30)days"advance written notice of the Licensees 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 avaiiable 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 Agreem,eint, (otherwise than as a result of notice being given by Cengage for breach
of contract)Cengage shall provide reason!able assistarce 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-RO 'Is 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
p:alild for continual or perpetUa] 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,, Ceingage may, in addition to its other legal rights and remedies, terminate the license
granted and capon written notice of such termlinatioln 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 Hirjn R and Ernplq_ ment. Cengag,e shall coryiply with all federal and
state laws, rules es and regulations promoting failr employment practice or prohibiting empiloyme,nt
discrimination and unfair labor practices and shall not discriminate in the hiring of any applicant for
employment nor shall any q+ alified 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,M1 48331-3535 248-699-4253;800-8-17-4253 www,,gale.cengage.coni
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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 ire dlividuai with respect to h�is or her
compensation, terms,conditions or privileges of employment or discriminate in any way that world deprive or
intend to deprive any individual of employment opportunities or otherwise aldversely affect his or her status
an employee because of such individlual'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 each licensors. Through this Agreement Licensee obtains certain limi'te'd
rights to the Licensed Content, but Licensee does not obtain or own any rights in the copyrights or any other
intellectual property rights that nay be associated with such Licensed Content. All such copyrights and
intellectual property rights remain,the property of Cengage and its licensors.
D. Confidep Licensee shall exet�CiSe due diligence to maintain all information in confidence and will use
the Information solely in connection with the purposes agreed upon between the parties., "Du,e 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
informaltioln and who have been iinformed of and agree to abide by the restrictions relating to, duplication,
disclosure, and use of all such data aindi/oir 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 Cengag,e prior to any disclosure under such circurnstances.
E., Survival.The provisions of sections 2 and 4 (1),shall survive the termination or expiration of this Agreement for
any reason.
27500 Drake Road Farmington Hills,Ml 48331-3535 248-699-42513-,8010-87 7-4253 www.gale.ceingagetorn
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EXHIBIT"El'"
LICENSED CONTENT, FEES,SUBSCRIPTION PERIOD
Bill to Contact: Fort Worth Public L,ibrary
i
Bill to,Addlressm. Soo w.Third Street
Fort Worth,TX 76102-7305
Product 4 of Sites #of'Users,/'Site Extended Price
Powerspeak LanguaSes 1 Unlimited" $121264.21
Subscription Term Dates., 07/01/2013—06,/,301 014 Total Subscription Amount: $12,264.,21
Term. This Agreement shall,commence for the Initial Term(the"Initial Term")and shall extend through the terry 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 Farrn,ington Hills,Ml 48331-3535 248-699-4253;800-877-4253 www'.g ail e.ceri,g,age.com
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