HomeMy WebLinkAboutContract 41914-R1 CITY SECRRTAW I
CONTRACT NO. `tt
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SUBSCRIPTION PURCHASE AGREEMENT
THIS SUBSCRIPTION PURCHASE AGREEMENT (this"Agreement") is made by and between City
of Fort Worth, a Texas home-rule municipal corporation, hereafter referred to as(the"City")and Library
Ideas, LLC, a Delaware media company, hereafter referred to as (the"Company"). All parties to this
Agreement may, from time to time, be referred to as(the"Parties").
RECITALS
WHEREAS Company is the sole United States and Canadian distributor of an interactive, online
Language Learning Program called Rocket LanguagesTMto public libraries and aims to provide Patrons of
these institutions with access to a website allowing use of the language learning tool (the"Service").
WHEREAS Company wishes to sell the right to use the Service to the City subject to the terms
and conditions described in this Agreement.
WHEREAS City desires to purchase the right to use the Service from Company subject to the
terms and conditions described in this Agreement.
NOW THEREFORE in consideration of the provisions contained in this Agreement and for other
good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged, the Parties
agree as follows:
ARTICLE I.
Definitions
Section 1.01 Definitions. The terms defined within this Agreement have the respective meanings
attributed to them throughout this Agreement or in this Article I. Any defined term may be used in the
singular and in the plural forms, as appropriate in the context.
m-) Section 1.02. "Service(s)"refers to Rocket Language m and is related to City's ongoing access to and
M use of such service via the Internet.
M
Section 1.03. "Effective Date" Unless otherwise agreed to in writing by the Parties, the"Effective Date"
n of this Agreement means the first day the City's service"goes live"via the City site.
Section 1.04. "Purchase Agreement" means the right to access Company's online Language Learning
o Program Service for a specified price("Purchase Agreement Price")and expiring after a specified length
of time("Purchase Agreement Term").
Section 1.05. "Purchase Agreement Price" means the price established for access to the Service.
Section 1.06."Subscription Agreement Term"refers to the right to access Company Service for a limited
period of time. Except as otherwise specifically agreed to in writing by the Parties,the"Purchase
Agreement Term"of this Agreement commences on the Effective Date and continues in effect for one
year.
Section 1.07. "City's Website Portal'means the Website operated by the y aid open to itsPatronsin
order to access and use all materials of the City. OFFICIAL RECORD
CITY SECRETARY
FT.WORTH, TX
Rocket Languages Agreement Updated 1 of 1 1
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Section 1.08. "Company Website"means the Website operated by Company and open to the City and its
Patrons via the City's own website portal.
Section 1.09. "Patrons" mean City's registered, authenticated cardholders, and all members of the public
who have been issued a library card, including onsite and offsite users.
Section 1.10. "License"means a revocable permission given to an individual or entity which allows that
individual or entity the right to use or access the property of the rightful owner or legal Distributor of the
property.
Section 1.11. "Personal Use" is defined, for purposes of this Agreement,as the use which is of a personal
nature and used only by the person who is authorized to use such media, i.e. a downloaded audio file, and
prohibits the sharing of said media with the public or placing such media in the public domain, i.e.
sharing audio files on the internet. This Agreement adopts the definitions of"personal use"as established
by the Courts and U.S. Copyright laws.
ARTICLE II.
Rocket LanguagesTM Services Terms and Conditions
Section 2.0I.Purchase Agreement Price. Company will charge City a yearly Purchase Agreement Price
for the right to access the Company's Service. The price for the Language Program as described herein in
Schedule A.
Section 2.02.All Purchases are Final. All purchases of Service are final. For purposes of clarification,
City will not receive any refunds or credit if the library chooses not to continue with the Subscription for
the Subscription Term.
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 City and its Patrons access to City's Company Website until the
unpaid invoice is paid in full.
Section 2.041imitations on Use.City Patrons will be able to access the Service on a simultaneous basis,
and the cost to the library is specified in Schedule A and unrelated to usage. Company reserves the right
to put limits on simultaneous access to the Service if in its sole discretion it believes usage is suspiciously
high and due to a break of the attached EULA.
Section 2.05.Termination.
Subsection 2.05.A.Termination by Expiration of Term. This Agreement will terminate automatically at
the end of a one-year Purchase Agreement Term. If City wishes to renew for an additional year, City may
contact Company at any time during or after the end of the current Purchase Agreement Term and
negotiate a new Purchase Agreement Term.
Subsection 2.05.B.Termination for Breach of this 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, 3.01, and 3.02.
Subsection 2.05.C.Termination for Fiscal Funding Out. 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 Company
Rocket Languages Agreement Updated,:�l2faflTfs' 2 of 1 i
of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which
appropriations were received without penalty or expense to City of any knd whatsoever, except as to the
portions of the payments herein agreed upon for which funds have been appropriated.
Section 2.06.Provision of Audio Services. During the Purchase Agreement Term, the Company will
establish, host, and administer Company's Website. City and Patrons will access Company's Service
through City's Website Portal. The City and its Patrons will access the City's Language Programs either
inside the library(if allowed and enabled) using the City's own Internet connection or remotely. 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.City and Member Usage -Limiting Access Measures. The City will be solely responsible for
authenticating which Patrons will have access to the City's Website under this Agreement. Except for
standard fees charged by City to its Patrons,the City will not charge any Patron for the use of the
Company's Website.
Section 2.08.DELETED BY AGREEMENT OF THE PARTIES
Section 2.09.Copyrighted Works.City acknowledges and agrees that all Language Programs included in
the Service are copyrighted material. All Rights Reserved.
Section 2.IO.No Copyright Conveyed. Upon signing this Agreement, City will receive an annual license
to access the Company's Service via the City's Website Portal.City will not acquire any other rights in the
Company or the Company's Language Programs and/or its Service.
Section 2.1 1.Patron Privacy. While the Patron email is collected for purposes of establishing an account,
the email addresses are not used by the Company for any other purpose. The Company does not email
Patrons or disclose their email address to any third party.
Section 2.12.Right to Audit. Company agrees that City shall, until the expiration of three(3),years after
final payment under this Agreement, have access to and the right to examine at reasonable times any
directly pertinent books, documents, papers and records of Company involving transactions relating to
this Agreement at no additional cost to City. Company grees that City shall have access during normal
working hours to all necessary Company facilities and shall be provided adequate and appropriate work
space in order to conduct audits in compliance with the provisions of this section. Cit sy hall give
Company not less than 10 days written notice of any intended audits.
Company further agrees to include in all its subcontractor agreements hereunder a provision to
the effect that the subcontractor agrees that Cityshall, until expiration of three(3)years after final
payment of the subcontract, have access to and the right to examine at reasonable times any directly
pertinent books, documents, papers and records of such subcontractor involving transactions related to the
subcontract, and further that City shall have access during normal working hours to all subcontractor
facilities and shall be provided adequate and appropriate work space in order to conduct audits in
compliance with the provisions of this paragraph. City shall give subcontractor not less than 10 days
written notice of any intended audits.
Section 2.13.LIABILITY AND INDEMNIFICATION
SUBSECTI^vN 2.13.A.LIABILITY- COMPANY SHALL BE LIABLE AND RESPONSIBLE FOR
ANY AND ALL PROPERTY LOSS,PROPERTY DAMAGE AND/OR PERSONAL IN.IURY,
INCLUDING DEATH,TO ANY AND ALL PERSONS,OF ANY KIND OR CHARACTER,
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WHETHER REAL OR ASSERTED,TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S)
OR OMISSION(S),MALFEASANCE OR INTENTIONAL MISCONDUCT OF COMPANY,ITS
OFFICERS,AGENTS,SERVANTS OR EMPLOYEES.
SUBSECTION 2.13.B. INDEMNIFICATION-COMPANY HEREBY COVENANTS AND
AGREES TO INDEMNIFY,HOLD HARMLESS AND DEFEND CITY,ITS OFFICERS,
AGENTS,SERVANTS AND EMPLOYEES,FROM AND AGAINST ANY AND ALL CLAIMS
OR LAWSUITS OF ANY KIND OR CHARACTER,WHETHER REAL OR ASSERTED,FOR
EITHER PROPERTY DAMAGE OR LOSS(INCLUDING ALLEGED DAMAGE OR LOSS TO
COMPANY'S BUSINESS,AND ANY RESULTING LOST PROFITS)PERSONAL INJURY,
INCLUDING DEATH,TO ANY AND ALL PERSONS,AND DAMAGES FOR CLAIMS OF
INTELLECTUAL PROPERTY INFRINGEMENT,ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT,TO THE EXTENT CAUSED BY THE ACTS OR OMISSIONS OF
COMPANY,ITS OFFICERS,AGENTS,SUBCONTRACTORS,SERVANTS OR EMPLOYEES.
SUBSECTION 2.13.C.INTELLECTUAL PROPERTY INFRINGEMENT—(i) Company warrants
that all Deliverables,or any part thereof,furnished hereunder,including but not limited to:
programs,documentation,software,analyses,applications,methods,ways,and processes(in this
Section 2.13.0 each individually referred to as a"Deliverable"and collectively as the
"Deliverables.")do not infringe upon or violate any patent,copyrights,trademarks,service marks,
trade secrets,or any intellectual property rights or other third party proprietary rights,in the
performance of services under this Agreement.
(ii) Company shall be liable and responsible for any and all claims made against City for
infringement of any patent,copyright,trademark,service mark,trade secret,or other intellectual
property rights by the use of or supplying of any Deliverable(s)in the course of performance or
completion of,or in any way connected with providing the services,or City's continued use of the
Deliverable(s) hereunder.
(iii) Company agrees to indemnify,defend,settle,or pay,at its own cost and expense,including the
payment of attorney's fees,any claim or action against City for infringement of any patent,
copyright,trade mark,service mark,trade secret,or other intellectual property right arising from
Company's use of the Deliverable(s),or any part thereof, in accordance with this Agreement,it
being understood that this agreement to indemnify,defend,settle or pay shall not apply if City
modifies or misuses the Deliverable(s). So long as Comyany_bears the cost and expense of payment
for claims or actions against City pursuant to this section 2.13,Company shall have the 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; however,City shall have the riLyht to fully
participate in any and all such settlement,negotiations,or lawsuit as necessary to protect the City's
interest,and City agrees to cooperate with Company in doing so.In the event City.for whatever
reason,assumes the responsibility for payment of costs and expenses for any claim or action
brought against the City for infringement arising under this Agreement,the City shall 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; however,Company shall fully participate
and cooperate with the City in defense of such claim or action. City agrees to give Company timely
written notice of any such claim or action,with copies of all papers City may receive relating
thereto.Notwithstanding the foregoing,the City's assumption of payment of costs or expenses shall
not eliminate Company's duty to indemnify the City under this Agreement. If the Deliverable(s),or
any part thereof,is held to infringe and the use thereof is en'o� ined or restrained or,if as a result of
a settlement or compromise,such use is materially adversely restricted,Company shall,at its own
expense and as City's sole remedy,either: (a) procure for City the right to continue to use the
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Deliverable(s); or(b) modify the Deliverable(s)to make them/it non-infrinein2, provided that such
modification does not materially adversely affect City's authorized use of the Deliverable(s); or(c)
replace the Deliverable(s)with equally suitable,compatible,and functionally equivalent non-
infrinein2 Deliverable(s)at no additional charee to City, or(d)if none of the fore2oini!alternatives
is reasonably available to Company,terminate this Agreement,and refund all amounts paid to
Company by the City,subsequent to which termination City may seek any and all remedies
available to City under law. COMPANY'S OBLIGATIONS IIEREUNDER SHALL BE SECURED
BY THF.REOUISITE INSURANCE COVERAGE AND Aiv�OUNTS SET FORTH IN SECTION
10 OF THIS AGREEMENT.
ARTICLE III
Accessing Services and Reports
Section 3.01.DELETED BY AGREEMENT OF THE PARTIES
Section 3.02.Reports. Payment of the Subscription Agreement Fee entitles City to the standard reports
offered by Company, which gauges the use of Company's Service.
ARTICLE IV
General Provisions
Section 4.01.DELETED BY AGREEMENT OF THE PARTIES
Section 4.02. Notice to Parties. All notices from either party to the other under this Agreement shall be
sent by telegram, overnight courier service, or by registered or certified mail, return receipt requested, or
hand-delivered with signed receipt. Whenever in this Agreement reference is made to a Notice to be
given, such Notice shall be deemed to have been given when mailed, wired, or hand-delivered to the
proper notice address of the party to be notified. Notices shall be addressed in care of the individual
representatives identified herein and mailed to the address designated for each Party and listed in the
Signature Page of this Agreement. Either party may, from time to time, designate a different address for
receiving Notices by giving the other party notice of the change of address in the manner above specified.
Section 4.03.Assignment.City may not sell, assign, transfer or convey this Agreement or any rights and
obligations thereto. However, Company may assign or transfer this Agreement to an affiliated company
or to a third party that acquires substantially all of its assets upon 30 days written notice to the City. If for
some reason the City does not want to, or cannot transact with the new company, the City is entitled to a
pro-rated refund of the price based upon the time used.
Section 4.04.Successors &Assigns. This Agreement shall be binding on and inure to the benefit of and
be binding upon the respective heirs,executors,administrators,successors and assigns of City,and the
Company's successors and assigns.
Section 4.05.Section Partial Invalidity.If any term, covenant, or condition of this Agreement or the
application thereof to any person or circumstance shall,to any extent, be invalid or unenforceable,the
remainder of this Agreement, or the application of such term, covenant, or condition to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall not be affected
thereby and every other term, covenant, or condition of this Agreement shall be valid and be enforced to
the fullest extent permitted by law.
Section 4.06.Separability.Each and every covenant or understanding contained in this Agreement shall,
for all intents and purposes, be construed as a separate and independent covenant and agreement. If any
Rocket Lan-um es ngecment t_zpdated ; 010 5 �cl, 1 1
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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 is the legally authorized Distributor of
the Service offered and has the legal authority to offer access of such Service to City. Company warrants
that it will use its commercially reasonable efforts to provide such Services as described in this
Agreement. Company further warrants that all products supplied by Company shall be free of all defects
with respect to workmanship and material for a period of one year from the date of commencement of
Service and Company shall make good on such defects provided that:
(a) The alleged defect has been brought to the attention of Company within one year from the date of
Service Commencement;
(b) City and/or City Patron has used the product or service as Company and manufacturer intended it to
be used;
(c) City and/or City Patron has not carried out any unauthorized repairs, alterations and/or modifications
to the Product and Service;
(d) The defect was brought to the attention of Company within 30 days from the time City and/or City
Patron first noticed the defect.
Section 4.091imitation on Liability. Neither party will claim special, incidental, indirect, or consequential
damages; including lost profits for breach of this Agreement. This limitation will also apply to any claims
brought against Company's content providers. Remedies are limited to claims for amounts due, for
injunctive relief only as provided, or for direct damages. A party's aggregate liability for any and all
claims, losses, liabilities, and demands arising, whether for breach of contract, in tort or otherwise, are
limited to the total amount of Purchase Agreement Fees paid by City to the Company during the 12
month period immediately preceding the date on which the claim first arose.
Section 4.10.Force Majeure. Neither party will be liable for, or have the right to terminate this Agreement
as a result of, any delays or failures to perform any of its obligations under the Agreement to the extent
that the delays or failures are due to circumstances beyond its reasonable control, including without limit
acts of God; strikes; riots; acts of war; power failures; and functions or malfunctions of the Internet,
telecommunications services, firewalls, encryption systems, and security devices; or governmental
regulations imposed after the Effective Date.
Section 4.1 1.Governmental Powers.It is understood and agreed that by execution of this Agreement,the
City does not waive or surrender any of its governmental powers.
Rocket LangLtages Agreement (_lpdate 10 6 of 1 1
Section 4.12.Reporting Requirements.For purposes of this section, the words below shall have the
following meaning:
Child shall mean a person under the age of 18 years of age.
Child pornography means an image of a child engaging in sexual conduct or sexual performance as
defined by Section 43.25 of the Texas Penal Code.
Computer means an electronic, magnetic,optical, electrochemical, or other high-speed data processing
device that performs logical, arithmetic, or memory functions by the manipulations of electronic or
magnetic impulses and includes all input, output, processing, storage, or communication facilities that are
connected or related to the device.
Computer technician means an individual who, in the course and scope of employment or business,
installs, repairs, or otherwise services a computer for a fee. This shall include installation of software,
hardware, and maintenance services.
If Company meets the definition of Computer Technician as defined herein,and while providing services
pursuant to this Agreement, views an image on a computer that is or appears to be child pornography,
Company shall immediately report the discovery of the image to the City and to a local or state law
enforcement agency or the Cyber Tip Line at the National Center for Missing and Exploited Children.
The report must include the name and address of the owner or person claiming a right to possession of the
computer, if known, and as permitted by law. Failure by Company to make the report required herein may
result in criminal and/or civil penalties.
Section 4.13.Signature Authority.The person signing this agreement hereby warrants that he/she has the
legal authority to execute this 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. This
Agreement, and any amendment(s)hereto, may be executed by any authorized representative of Company
whose name,title and signature is affixed on the Verification of Signature Authority Form, which is
attached hereto as Exhibit 2 and incorporate herein by reference. Each party is fully entitled to rely on
these warranties and representations in entering into this Agreement or any amendment hereto.
IN WITNESS WHEREOF the parties hereto by and through their authorized agents, have duly
affixed their signatures under seal as of the date shown herein. All legal obligations under this Agreement
shall become binding upon the parties 30 days from the date the last party signs this Agreement.
Company:
LIBRARY IDEAS,LLC
By: J�
Address:
P.O. Box 9
Vienna, Virginia 22183 USA
City:
Rocket Languages A,,reement l)hdated 10 ] of I 1
L//�/`&".5-- 4_e(
Cijy of Fort Worth
Name of Library
By:_ ok� Date:
Authorized A en epresentative
Rudy Jackson
Print Name
� F01?r
Address: Qom° 00
1000 Throckmorton Street
Fort Worth TX 76102 °
APPROVED AS TO FORM AND LEGALITY: ATTE T:
By: By:
Paige Mebane M J.kayser
Assistant City Attorney Cihy Secretary
NO M&C REQUIRED
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
SCHEDULE A
Service Pricing Schedule
Service Name Term Pricirr Cardholder Limit
Rocket Languages 3/9/2015-3/8/2016 $4,550 Unlimited Access
Total: $4,550
Rocket Languages Agreement —Updatcd-;,-�010 9 of 1 1
EXHIBIT 2
VERIFICATION OF SIGNATURE AUTHORITY
Full Legal Name of Company: Library Ideas, LLC
Legal Address: P.O. Box 9, Vienna, VA 22183
Services to be provided: Rocket Languages
Execution of this Signature Verification Form ("Form") hereby certifies that the following
individuals and/or positions have the authority to legally bind the Company and to execute any
agreement, amendment or change order on behalf of Company. Such binding authority has been
granted by proper order, resolution, ordinance or other authorization of Company. The City is
fully entitled to rely on the warranty and representation set forth in this Form in entering into any
agreement or amendment with Company. Company will submit an updated Form within ten (10)
business days if there are any changes to the signatory authority. The City is entitled to rely on
any current executed Form until it receives a revised Form that has been properly executed by
the Company.
1. Name:
Position:
Signature
2. Name:
Position:
Signature
3. Name:
Position:
Signature
Name:
1
Signature of President/ CEO
Other Title:
Date:
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