HomeMy WebLinkAboutContract 43324cmr SWWAR1rZ43` Al
CONTRACT NO.
USA FREEGAL MUSIC
SUBSCRIPTION AGREEMENT
THIS DOWNLOAD SUBSCRIPTION
AGREEMENT (this "Agreement") is made by
and between City of Fort Worth, Fort Worth
Library, a Texas Public Library maintaining a
physical address at 500 W. 3`d Street, Fort Worth
TX 76102, hereafter referred to as (the "Library")
and Library Ideas, LLC, a Delaware media
company located at 333 Maple Avenue East,
Suite 105, Vienna, Virginia 22180, 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 has licenses for a
media service specifically targeted to public
libraries which provides the Patrons of these
institutions access to a site to download music
legally via Company's Freegallm music (the
"Service").
WHEREAS Company wishes to sell a
subscription and include the right to use the
Service to the Library subject to the terms and
conditions described in this Agreement.
WHEREAS Library desires to purchase a
subscription and 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.
Library Agreement 2/21 /2010 v Final
0�,j-10-1 2 PO4: 35 1 N
Section 1.02. "Serviee(s)" refers to the
Company's downloadable music services known
as FreegalTM Music 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 date the
service is available for use by Library Patrons.
Section 1.04. "Subscription Agreement" means
the right to access Company's downloadable
Music Service ("Subscription Agreement Price")
expiring after a specified length of time
("Subscription Agreement Term").
Section 1.05. "Subscription Agreement Price"
means the price established for the Subscription
Agreement Term.
Section 1.06. "Subscription Agreement Term"
refers to the right to access Company's
downloadable Music Collection for a limited
period of time. Except as otherwise specifically
agreed to in writing by the Parties, the
"Subscription Agreement Term" of this
Agreement commences on the Effective Date and
continues in effect for one year.
Section 1.07. "Library's Website Portal" 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.
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 to commit some act that would
otherwise be unlawful such as downloading the
copyrighted works of the rightful owner.
Section 1.1 I. "Personal Use" is defined, for
purposes of this Agreement, as the use which is
I of 7 OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
of a personal nature and used only by the person
who is authorized to use such media, i.e. a
downloaded song, and prohibits the sharing of
said media with the public or placing such media
in the public domain, i.e sharing songs on the
internet. This Agreement adopts the definitions
of "personal use" as established by the Courts
and U.S. Copyright laws.
ARTICLE 11.
FreeiWTM Music Services Terms and Conditions
Section 2.01. Subscription Agreement Price.
Company will charge Library a year's
Subscription Agreement Price for the right to
access the Company's Service unless otherwise
indicated. The price is described herein in
Schedule A.
Section 2.02. All Purchases are Final. All
purchases of subscriptions are final. No refunds
are allowed unless the product is not delivered or
Service is terminated in accordance with Section
2.08 or Section 4.03.
Section 2.03. Payment 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. Limits on Music Downloads.
Registered Patrons of Library may each
download up to three (3) downloads per week.
Section 2.05. Termination.
Subsection 2.05.A. Termination by Expiration of
Term. This Agreement will terminate
automatically at the end of a one-year
Subscription Agreement Term unless otherwise
mentioned on Schedule A. If Library wishes to
renew for additional years, Library may renew
each year subject to standard rate increases which
shall not exceed 10% year to year, provided
Company still ofters service. Library may
contact Company at any time during or after the
end of the current Subscription Agreement Term
and renegotiate a new Subscription Agreement
Term.
Subsection 2.05.B. Termination for Breach of'
this Agreement. 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 10 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, 2.12, 3.01, and
3.02.
Section 2.06. Provision ofAudio Services.
During the Subscription Agreement Term, the
Company will establish, host, and administer
Company's Website. Library and Patrons will
access Company's music collection through
Library's Website Portal. The Library and its
Patrons will access the Library's audio music
collection either inside the library (if allowed and
enabled) using the Library's own Internet
connection or remotely from within the United
States. Company will deny access to anyone
attempting to access Service from outside the
United States. 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 -
LimitingAccess Measures. The Library will be
solely responsible for authenticating which
Patrons will have access to the Library's Website
under this Agreement. However, Library Ideas
will facilitate this process. 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. Library's Company Website. The
use of the Company's Website by the Library and
its Patrons will be governed by the End User
Agreement provided, however, that,
notwithstanding any language in the End User
Agreement to the contrary, (i) Library's
I.ibrarN Al rccmcnt 212112010 v Final 2of'7
permitting Patrons to use the Service in
accordance with this Agreement shall not be
considered a violation of the End User
Agreement by Library (Section 3, "Limitations
on Use"); and (ii) any reference in the End User
Agreement (including, but not limited to,
references in Section 3, "Limitations on Use")
stating or implying that Library assumes
responsibility for the conduct of its Patrons
and/or will not "allow" or "permit" any third
party to perform an action or engage in a course
of conduct shall be interpreted to mean that
Library will not "knowingly allow" or
"knowingly permit" such action or conduct, it
being the understanding and agreement of the
Parties that Library cannot prevent conduct of
which it has no knowledge. To the extent any
conflict should arise regarding the rights or
obligations of the Parties under this Agreement
and the End User License conflict, the terms of
this Agreement shall control. If Patrons violate
the End User Agreement, Company reserves the
right, in its sole discretion, to suspend the
Library's or the Patrons's access to and use of the
Company's Website. The Library acknowledges
and agrees that, in the case of repeated or
persistent violations, the Company may terminate
this Agreement and issue a pro -rated refund for
unused service.
Section 2.09. Copyrighted Works. Library
acknowledges and agrees that the copyright to
each song is owned by the respective publisher
thereof. All Rights Reserved.
Section 2.10. No Copyright Conveyed. Upon
signing this Agreement, Library will receive an
annual license to access the Company's Music
Collection via the Library's Website Portal and
download the music the Library has purchased
access to. Library will not acquire any other
rights in the Company or the Company's Music
Collection and/or its Service.
Section 2.11. Offensive Content. Company
makes no warranty and no representations against
claims of offensive content by Library Patrons
and does not have the ability to remove a song
forjust one library and not all the libraries
participating in the Service.
Section 2.12. Publicity and Marketing. Library
agrees to use only the Publicity and Marketing
Material given to it by the Company unless
otherwise approved in writing by the Company.
The Company will send Library a template press
release and marketing kit in advance of the
Library going live with the Service. Library will
make no public statements on or off the record
regarding the financial terms of this service
unless required by law. The terms of this
Agreement are Confidential, except where
disclosure is required by law. The name of the
Service is the FreegalTMMusic Service, and the
Library will not promote the Service under any
other name.
ARTICLE III
Music Subscription Aareement Services
Section 3.01. Member Access & Clean Sweep
Protocols. For all Library computers capable of
accessing the Company's Website, Library will
implement a Clean Sweep or similar type
program which functions to log -out or wipe clean
the information existing on the computer screen
of the previous user.
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 Music Collection.
ARTICLE IV
General Provisions
Section 4.01. Governing Law. This Agreement
(and any dispute, controversy, proceedings or
claim of whatever nature arising out of this
Agreement or its formation) shall be governed by
and construed in accordance with the laws of the
State of Texas.
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
Library Agreement 2/21 /2010 v Final 3 of 7
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 sixty
(60) days advance written notice to the Library.
In the event that Library is legally unable to
contract with Company's assignee, Library may
terminate this Agreement following ten (10)
days' written notice and shall be entitled to a pro-
rated refund for unused service.
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.
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 valid.
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 has the necessary
authority to license the Music Collection to
Library and, if applicable, to provide Services to
Library. Company warrants that it will use its
commercially reasonable efforts to provide such
Services as described in this Agreement.
Section 4.09. Limitation on Liability. Neither
party will claim special, incidental, indirect, or
consequential damages; including lost profits for
breach of this Agreement unless such damages
shall be alleged to have resulted from the gross
negligence or intentional misconduct of the other
party. 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 party's
aggregate liability to the other party 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
Subscription Agreement Fees paid by Library to
the Company during the 12 month period
immediately preceding the date on which the
claim first arose unless such liability is alleged to
have been the result of the gross negligence or
intentional misconduct.
Section 4.10. Force Majeure. Neither party will
be liable for, or have the right to terminate this
Agreement as a result of, any delays or failures to
Lilv,iry :\v'recmcill 2/21/2010 v l imil 4ul'7
perform any of its obligations under the
Address:
Agreement to the extent that the delays or
333 Maple Avenue East
failures are due to circumstances beyond its
Suite 105
reasonable control, including without limit acts
Vienna, Virginia 22180
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.
[SIGNATURES TO FOLLOW]
Company:
LIBRARY IDEAS, LLC
By:
Date:
library Agreement 2/21/2010 v Final 5 of 7
Library: Print Name
Fort Worth Library Date:
Na.r,*uthon
J Address:
By: G 500 W. 3rd Street
Agent/Representative Fort Worth, TX
76102
Charles W. Daniels
Assistant City Manager
APPROVED AS TO
FC71 A D LEGALITY:
ASSISTANT ITY ATTORNEY
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OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
SCHEDULE A
Subscription Agreement Price
(attach order form)
Library Agreement 2/21 /2010 v Final 7 of 7
ESE
Complete the order form below and fax or email to orders@libraryideas.com.
333 Maple Avenue East #105
Vienna, VA 22180
Phone: 571.730.4300
Fax: 571.730.4305
Email: orders@libraryideas.com
Office Use Only
I Account #: I Received Date:
Library Contact Information:
Date: May 29, 2012 Sales Rep: Petersen
Library: Fort Worth Public Library
Street Address: 500 West 3rd Street
City, State, Zip Code: Fort Worth, TX 76102
Business Contact: Deborah Duke
Email Address: dduke@fortworthlibrary.org
Phone: 817-392-7725
IT Contact: Sharon Walker
Email Address: sharon.walker@fortworthlibrary.org
Phone: 817-392-8961
Bill To: Fort Worth Library --Acquisitions Unit
Address (if different):
City, State, Zip Code (if different):
Purchase Order Number: TBD
TernVLength Price
Subscription to freegat11 year 1$58,000
Does the library allow non-residents to obtain library card/access: Yes but not for access
IfYes, describe under what conditions: NR cards are used only to check out physical materials, not to access e-se-cas
Initial set up fee (one time): $150.00
Grand Total: $58,150.00
Authorized Signature:
Library Printed Name: Deborah C Duke
ideas Title: Collection Management Administrator
Library Ideas, LLC Date: ____
McElroy, Denis C.
From: Jim Petersen <jimp@libraryideas.com>
Sent: Friday, June 15, 2012 10:42 AM
To: Duke, Deborah
Cc: McElroy, Denis C.; Orr, Paul
Subject: Re: Fort Worth Freegal
Attachments: Agreement Schedule A Freegal Subscription Order —Fort —Worth .pdf
HI Deborah,
Good to hear from you thanks for your email.
Library Ideas agrees to attach the attached Schedule A to the Fort Worth Public Library Agreement.
If there is anything else I can provide, please let me know.
Jim Petersen
Library Ideas, LLC
Cell: 630-297-3321
Office: 571-730-4300
Fax: 571-730-4305
IjMP librarvideas.com
From: "Duke, Deborah" <dduke@fortworthlibrarv.org>
Date: Thursday, June 14, 2012 9:29 AM
To: "Duke, Deborah" <dduke@fortworthlibrarv.org>, Jim Petersen <'im librarvideas.com>
Cc: "McElroy, Denis C." <Denis.McElrov@fortworthtexas.gov>, "Orr, Paul" <Paul.Orr@fortworthlibrarv.org>
Subject: RE: Fort Worth Freegal
Hi Jim,
I should have asked you to include Schedule A in the Agreements you signed. I can't move them forward for
signatureswithout it.
If you could send me an email stating Library Ideas agrees to add the attached Schedule A to the Agreement you signed,
that should be sufficient.
Once the PO is issued, I'll sign the form and return it to you. And we can finally get this show on the road!
Thanks,
Deborah
Deborah C. Duke
Collection Management Administrator
Fort Worth Library
500 W. 3rd Street
Fort Worth TX 76102
817-392-7725 (voice)
817-392-7734 (fax)
From: Duke, Deborah
Sent: Tuesday, May 29, 2012 3:45 PM
To: 'Jim Petersen'
Subject: Fort Worth Freegal
Hi Jim,
The M&C is scheduled for the June 121h Council meeting.
The final version of the agreement (from February 22... ) is attached. Could you send me 4 signed originals? Once
Councilapproves, I will get them signed on our end and send you one for your records. I cannot actually sign the
Subscription Order Form (Schedule A) until our Purchasing Department has issued a PO, which they won't do until
Council approves the agreement and the agreement is signed on our end. The attached order form has as much filled in
as I can right now.
I'd like to think that we could get the signatures on our end and the PO issued before the latest quote expires on June
151h. But it'll have about 5 desks to cross after the 121h before it lands back in Purchasing for them to do their final bits,
so would be very very very close. It might save a lot of grief if I could trouble you for one more quote extension. The
22"d would be good. The 29`h would be better.
I hope our next phone call is actually about making implementation plansH
Thanks,
Deborah
Deborah C. Duke
Collection Management Administrator
Fort Worth Library
500 W. 3rd Street
Fort Worth TX 76102
817-392-7725 (voice)
817-392-7734 (fax)
2
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 6/12/2012
DATE: Tuesday, June 12, 2012 REFERENCE NO.: **P-11391
LOG NAME: 13P12-0073 FREEGAL MUSIC SERVICE LSJ
SUBJECT:
Authorize Subscription Service Agreement with Library Ideas, LLC, in an Amount Up to $58,150.00 for
Web —Based Music Downloads for the Fort Worth Library (ALL COUNCIL DISTRICTS)
RECOMMENDATION:
It is recommended that the City Council authorize a subscription service Agreement with Library Ideas, LLC,
in an amount up to $58,150.00 for the first year for web —based music downloads for the Fort Worth Library.
DISCUSSION:
The Fort Worth Library (Library) will use this Agreement to purchase Freegal music subscription services
from Library Ideas, LLC, ( Library Ideas). Library Ideas will establish, host and administer a website that
will allow library patrons to access its music collection via the Library's website portal. Patrons with a valid
Fort Worth library card will be able to download up to three songs each week using the Library's internet
connection or remotely within the United States. Patrons may transfer songs from a computer to any device
that can play and store audio files.
The Library has well —established systems and procedures for authorizing cardholders remote access to its
licensed online databases, e—books, and other digital content. Library patrons have quickly adapted to using
these new formats, making them the fastest —growing service the Library offers. Freegal Music Service
provides nearly three million songs from over 12,000 music labels and thousands of artists from over 60
countries.
Library Ideas, LLC, is the documented sole distributor licensed to provide content from Sony Music
Entertainment in this manner to public libraries. Over 500 public library systems in the United States offer
Freegal Music Service to their customers. These include Denver, Indianapolis —Marion County, Las
Vegas —Clark County, Nashville, Seattle, and San Antonio.
PRICE ANALYSIS — The City has no recent purchase history for this type of services. The Library estimates
that $58,150.00 will be spent for subscription costs for the first year with a one time set—up fee of $150.00
the initial year. No guarantee was made that a specific amount of these products or services would be
purchased. The Library Department certifies that the prices are fair and reasonable.
AGREEMENT TERMS – Upon City Council's approval, the Agreement will begin June 13, 2012 and
expire June 12, 2013, respectively.
ADMINISTRATIVE CHANGE ORDER — An Administrative Change Order or increase may be made by the
City Manager in an amount up to $14,537.50.00 and does not require specific City Council approval as long
as sufficient funds have been appropriated..
RENEWAL OPTIONS – This Agreement may be renewed up to four additional one—year terms at the
City's option. The annnual subscription has a standard rate increase that shall not exceed 10 percent each year
provided Company still offers service. This action does not require specific City Council approval provided
that the City Council has appropriated sufficient funds to satisfy the City's obligations during the renewal
term.
MWWBE — A waiver of the goal for MWWBE subcontracting requirements was requested by the Purchasing
Division and approved by the MWWBE Office because the purchase of goods or services is from sources
where subcontracting or supplier opportunities are negligible
FISCAL INFORMATION:
The Financial Management Services Director certifies that funds are available in the current operating
budget, as appropriated, of the General Fund.
BQN\12-0073\LSJ
FUND CENTERS:
TO Fund/AccountICenters
CERTIFICATIONS:
Submitted for Citv Manager's Office bv:
Originating Department Head:
11. i J.1y11. MINIMPM
ATTACHMENTS
1. 12-0073 MWBE Waiver.ndf
2. Library Ideas LLC Sole Source.tndf
FROM Fund/Account/Centers
Susan Alanis (8180)
Lena Ellis (8517)
Jack Dale (8357)
LaKita Slack —Johnson (8314)