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HomeMy WebLinkAboutC-4119 kanopy \\OO-ba MASTER AGREEMENT Institution Name: Arcadia Public Library Institution Contact: Danielle Guerrero Address: 20 W.Duarte Road Phone: (626)821-5572 Arcadia,California 91006 United States Email: dguerrero@arcadiaca.gov This Master Agreement is made and entered into as of the Effective Date set forth below by and between Kanopy LLC,a Delaware limited liability company with a place of business Level 4, 781 Beach Street, San Francisco, CA 94109 ("Kanopy"), and the institution identified above ("Institution"). Overview Kanopy streams and makes available digital video content,including associated audio,graphics,text,images and other data and content,to universities, colleges, schools, public libraries, corporations and other institutions for access and use pursuant to applicable access and license terms. As permitted by an order between Kanopy and an institution, Kanopy may also host and stream digital video content uploaded by the institution where such institution holds all necessary rights and permissions to enable Kanopy to host and stream such content. Kanopy streams and makes digital video content available through various platforms,including its website at www.kanopy.com,the Kanopy iOS and Android mobile apps,the Kanopy channel on Roku,and other modes of access that are available now or may become available in the future. Structure of Agreement and Order of Precedence Kanopy and Institution may enter into one or more order forms under this Agreement (as defined below) for access to and use of digital content hosted or streamed by Kanopy.As appropriate,each order form will specify the title(s), product(s),fees, period or term of access,and any special usage rights and/or restrictions and other terms relevant to the order. Each such order form will be governed by the terms and conditions of this Agreement. This Master Agreement consists of: (a) the attached Terms and Conditions; (b) any order forms entered into hereunder between Kanopy and Institution;and(c)this signature page(collectively,the"Agreement"). In the event of any conflict between or among the various components of this Agreement, the terms and conditions of each component shall take precedence in the order listed above; provided, however, that any conflict with respect to restrictions on access to or use of materials provided by Kanopy shall be resolved in the manner that gives broadest effect to such restrictions. IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed as of the Effective Date by its duly authorized representative. KANOPY LLC INSTITUTION (S:2,,,:71/j2/ ) By: AMP By: Name: Dominic Lazzaretto Name: OLIVIA HUMPHREY Title: City Manager Title:CEO Effective Date: April 10, 2018 APPROVED AS TO FORM: ill .---61" -1"-e- Stephe P. Deitsch City Attorney Page 1 of 4 kanopy TERMS AND CONDITIONS 1. Definitions (vi) make the Service or any Offering accessible to anyone who is not an (a) "Access Term" means the period of time set forth in each Order End User; (vii) remove or obscure any proprietary notice that appears Form during which the Offerings or, as applicable, Institution Content within the Service or any Offering; or (viii) use the Service in any way covered by such Order Form will be hosted and streamed by Kanopy that does not comply in all material respect with the terms and pursuant to this Agreement. conditions of this Agreement and all applicable laws and regulations. (b) "Credentials" means any user accounts, passwords and other (c) Policies. In addition to the terms and conditions of this authentication credentials associated with access to or use of the Agreement, access to and use of the Service shall comply with and be Service by Institution or End Users. subject to any terms of service, acceptable use policy, privacy policy, (c) "End User" means: (i) any student, teacher, professor, patron, end user license agreement and other guidelines instituted by Kanopy employee or staff member affiliated with Institution; (ii) any authorized or its licensors or service providers. visitor physically present at the facilities of Institution; and (iii) with (d) Technical Requirements. Institution and End Users shall be solely respect to any Institution that is a library established for use by the responsible for obtaining, configuring and maintaining any hardware, general public and maintained primarily through public funds, any network connectivity and third-party software required to access the individual who is a member of such Institution. Service, including computers, operating systems, web browsers and (d) "Institution Content" means any content provided by Institution storage devices. pursuant to this Agreement for hosting and streaming by Kanopy. (e) Protection. Institution shall be solely responsible for protecting (e) "Institution Facilities" means Credentials and any account, the confidentiality of Credentials and all activities undertaken using hardware, system or other facility within Institution's custody or Institution Facilities. In the event that Institution becomes aware of any control. unauthorized use of the Service through Institution Facilities, Institution (f) "Offering"means any Product or Title. shall promptly give written notice to Kanopy of such unauthorized use (g) "Order Form" means an order form, invoice or other ordering and make reasonable efforts to eliminate such unauthorized use. document entered into between the parties pursuant to this Agreement Institution shall implement and maintain appropriate security policies specifying the Offerings, Institution Content, fees and payment terms, and procedures and access control methodologies to safeguard access special usage rights and restrictions and other terms relevant to the to the Service through Institution Facilities and to limit access to the order. Service to End Users. (h) "Product" means each product identified in an Order Form that 3. Institution Content Kanopy will make accessible to Institution pursuant to this Agreement, (a) Grant of Rights. As specified in an applicable Order Form, including: (i) any package or collection of titles or other content made Institution may upload Institution Content to the Service for hosting and accessible to Institution via subscription, patron-driven acquisition streaming by Kanopy pursuant to this Agreement. During the applicable (PDA), pay-per-use (PPU) or other such models; and (ii) any other Access Term, Institution hereby grants Kanopy a limited, non-exclusive, product that Kanopy may offer. non-sublicensable, royalty-free right and license to host, stream, (i) "Service" means the service through which Kanopy hosts and exhibit, transmit, reproduce, publicly perform, publicly display and makes accessible Offerings and,as applicable,Institution Content. project Institution Content as necessary to make Institution Content (j) "Territory" means the geographical area designated as the available for viewing by End Users within the Service. Territory in an Order Form or, if no such area is designated in an Order (b) Assurances. Institution represents and warrants that: (i) it holds Form,the country in which Institution is domiciled. all necessary rights (including all intellectual property rights) and (k) "Title" means each film, video or other content (excluding permissions to grant the rights under this Section 3 to Kanopy; and (ii) Institution Content) identified in an Order Form that Kanopy will make Institution Content does not violate any applicable laws or any rights of accessible to Institution pursuant to this Agreement. another party, including any laws relating to defamation or indecency 2. Grant of Rights and Restrictions and any intellectual property or right of privacy or publicity. (a) Grant of Rights. During the applicable Access Term and subject (c) Institution Ownership. Kanopy acknowledges and agrees that,as to Institution's compliance in all material respects with the terms and between Institution and Kanopy, Institution (or its licensors) owns all conditions of this Agreement, Kanopy hereby grants Institution a rights, title and interest (including all intellectual property) in and to limited, non-exclusive, non-sublicensable right and license to allow End Institution Content. Users within the designated Territory to view Offerings and, as 4. Fees and Taxes applicable,Institution Content in real-time within the Service. (a) Fees. Institution shall pay Kanopy the applicable fees set forth in (b) Restrictions. All rights granted under this Agreement may only each Order Form pursuant to the payment terms therein. If an Order be exercised for non-commercial personal or educational use. Form does not specify payment terms,then payments thereunder shall Institution shall not: (i) use,archive,capture, reproduce, modify, adapt, be due net thirty (30) days after invoice. Amounts not paid when due create derivative works from, publicly perform, publicly display, shall be subject to interest at the rate of one and a half percent (1.5%) distribute, make,have made,assign, pledge,transfer or otherwise grant per month or the maximum rate permitted by law,whichever is less. rights to the Service or any Offering, except as expressly permitted (b) Taxes.Any and all amounts payable hereunder by Institution are under this Agreement; (ii) translate or reverse engineer, decompile, exclusive of any sales, use, value-added, excise or other similar taxes decode or otherwise attempt to derive the source code, architectural (collectively, "Taxes"). Institution shall be solely responsible for paying framework or data records of any software within or associated with all applicable Taxes. If Kanopy has the legal obligation to collect any the Service; (iii) frame or utilize any framing technique to enclose any Taxes, Institution shall reimburse Kanopy upon invoice by Kanopy. If content within the Service; (iv) access the Service for the purpose of Institution is required by law to withhold any taxes from its payments to benchmarking or developing, marketing, selling or distributing any Kanopy, Institution shall provide Kanopy with an official tax receipt or product or service that competes with or includes features substantially other appropriate documentation to support such payments and take similar to the Service or any products or services offered by Kanopy; (v) reasonable steps to minimize such payments. rent, lease, lend or sell the Service, or otherwise provide access to the Service as part of a service bureau or similar fee-for-service purpose; Page 2 of 4 5. Intellectual Property attributable to any materials provided by the party under this (a) Kanopy Ownership.Institution acknowledges and agrees that,as Agreement;provided, however,that Kanopy shall have no obligation to between Kanopy and Institution, Kanopy (or its licensors) owns all indemnify Institution from any loss,damage,cost, liability or expense to rights,title and interest(including all intellectual property)in and to the the extent it arises from: (i) access to or use of the Service or any Service and Offerings. Kanopy reserves all rights not expressly granted Offering in a manner that does not comply in all material respects with under this Agreement.Suggestions. If Institution elects to provide or the terms and conditions of this Agreement or applicable laws or make available to Kanopy any suggestions, comments, ideas, regulations; (ii) use of the Service or any Offering in combination with improvements or other feedback relating to the Service or Offerings any materials not provided or approved by Kanopy; or (iii) Institution ("Suggestions"), Kanopy shall be free to use, disclose, reproduce, have Content. In the event that the Service or any Offering becomes the made, modify, license, transfer and otherwise utilize and distribute subject of an indemnified claim or Kanopy reasonably determines that Suggestions in any manner, without credit or compensation to any Offering is likely to become the subject of an indemnified claim, Institution. Kanopy may,at its sole discretion:(1)procure for Institution a license as 6. Term and Termination necessary for Institution to exercise the rights granted by Kanopy under (a) Term. The term for this Agreement shall commence on the this Agreement; (2) modify or replace the Service or Offering to avoid Effective Date and continue in effect until terminated by Kanopy or infringement, provided, however, that the Service or Offering as Institution in accordance with this Agreement. modified or replaced remains materially the same; or (3) issue to (b) Suspension. Kanopy reserves the right to suspend Institution's Institution a pro-rata refund of fees paid by Institution for the Service or and any End User's access to and use of the Service and Offerings in the Offering based upon the remainder of the Access Term. event of any: (i) actual or reasonably suspected breach of Section 2 by (b) Procedure.The indemnified party shall: (i)give the indemnifying Institution or any End User; provided, however, that Kanopy, where party prompt written notice of any indemnified claim; provided, applicable, will use commercially reasonable efforts to limit suspension however, that failure of the indemnified party to give such prompt to each End User in breach of Section 2 or 3(b)and restore access upon written notice shall not relieve the indemnifying party of any obligation elimination of the relevant breach; or(H)failure by Institution to make to indemnify pursuant to this Section 8, except to the extent the any payment when due under this Agreement;provided, however,that indemnifying party has been prejudiced thereby; (H) cooperate fully Kanopy will restore access upon Institution's payment of all outstanding with the indemnifying party,at the indemnifying party's expense,in the fees. defense or settlement of any indemnified claim; and (iii) give the (c) Termination. Notwithstanding anything to the contrary, this indemnifying party sole and complete control over the defense or Agreement may be terminated as follows: (i) by either party upon settlement of any indemnified claim; provided, however, that any written notice to the other party; provided, however, that no Order settlement must include a complete release of the indemnified party Form is then in effect;(H)upon a material breach of this Agreement by a without requiring the indemnified party to make any payment or bear party, which breach is not cured within thirty (30) days after receipt of any obligation. written notice from the other party; or(iii) by either party in the event 9. DISCLAIMER OF WARRANTIES the other party becomes insolvent or bankrupt; becomes the subject of THE SERVICE,OFFERINGS AND ALL OTHER MATERIALS PROVIDED any proceedings under bankruptcy, insolvency or debtor's relief law; BY KANOPY UNDER THIS AGREEMENT (COLLECTIVELY, "KANOPY has a receiver or manager appointed; makes an assignment for the MATERIALS") ARE PROVIDED "AS IS," "AS AVAILABLE" AND "WITH ALL benefit of creditors;or takes the benefit of any applicable law or statute FAULTS." KANOPY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, in force for the winding up or liquidation of such party's business. EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (d) Survival. Any provision that, by its terms, is intended to survive (EXCEPT AS SET FORTH IN SECTION 7), EXPRESS OR IMPLIED, the expiration or termination of this Agreement shall survive such INCLUDING: (A)THE IMPLIED WARRANTIES OF MERCHANTABILITY AND expiration or termination, including Sections: 3(b)(Assurances); 4 (Fees FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH and Taxes); 5 (Intellectual Property); 6(d) (Survival); 7 (Representations RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS and Warranties); 8 (Indemnification); 9 (Disclaimer of Warranties); 10 OF THE KANOPY MATERIALS, OR THAT USE OF THE KANOPY MATERIALS (Limitation of Liability);and 11(Miscellaneous). WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES 7. Representations and Warranties OR WILL MEET INSTITUTION'S OR END USERS'REQUIREMENTS. Kanopy and Institution each represents and warrants to the 10. LIMITATION OF LIABILITY other that: (a) it has the necessary power and authority to enter into OTHER THAN WITH RESPECT TO KANOPY'S INDEMNIFICATION this Agreement; (b) the execution and performance of this Agreement OBLIGATIONS UNDER SECTION 8(a):(A)IN NO EVENT SHALL KANOPY OR have been authorized by all necessary corporate or institutional action; ITS AFFILIATES AND LICENSORS BE LIABLE FOR ANY INCIDENTAL, (c) entry into and performance of this Agreement will not conflict with INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST any provision of law or the certificate of incorporation, bylaws or PROFITS OR COST OF COVER, ARISING FROM OR RELATING TO THIS comparable organizational documents of such party; (d) no action by AGREEMENT, INCLUDING DAMAGES ARISING FROM ANY TYPE OR any governmental entity is necessary to make this Agreement valid and MANNER OF COMMERCIAL,BUSINESS OR FINANCIAL LOSS OCCASIONED binding upon such party; and (e) it possesses all governmental licenses BY OR RESULTING FROM ANY ACCESS TO OR USE OF OR INABILITY TO and approvals necessary to perform its obligations under this ACCESS OR USE THE KANOPY MATERIALS,SUCH AS ANY MALFUNCTION, Agreement. DEFECT OR FAILURE OF ANY KANOPY MATERIALS, EVEN IF KANOPY HAD 8. Indemnification ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH (a) Indemnification.To the extent permitted by applicable law,each DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE party agrees that the other party and its affiliates and licensors FORESEEABLE; AND (B) IN NO EVENT SHALL KANOPY'S AGGREGATE (collectively, "Indemnified Parties") shall have no liability for, and each LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES party shall indemnify, defend and hold the other party's Indemnified RECEIVED BY KANOPY FROM INSTITUTION UNDER THIS AGREEMENT IN Parties harmless against, any loss, damage, cost, liability and expense THE TWELVE(12)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE (including reasonable attorneys' fees) finally awarded by a court of ON WHICH THE EVENTS GIVING RISE TO LIABILITY AROSE. competent jurisdiction or paid in settlement to the extent arising from 11. Miscellaneous any action or claim of a third party based upon a party's breach of (a) Independent Contractors.The relationship between Kanopy and Section 2(b) or 3(b) or infringement of such third party's copyright Institution established by this Agreement is solely that of independent Page 3 of 4 contractors. Neither party is in any way the partner or agent of the forth in this Agreement with respect to the such items, and any access other, nor is either party authorized or empowered to create or assume to or use of the Service by the U.S. Government constitutes: (1) any obligation of any kind, implied or expressed,on behalf of the other agreement by the U.S. Government that that such items are party,without the express prior written consent of such other party. "commercial computer software" and "commercial computer software (b) Notice. All notices, demands and other communications to be documentation" as defined in this section; and (2) acceptance of the given or delivered under or by reason of the provisions of this rights and obligations herein. Agreement shall be in writing and sent to the parties as follows: (i) if to (I) Force Majeure. Except with respect to payment obligations Kanopy, at the address set forth for Kanopy in the signature page under Section 4, neither party shall be liable for any failure to perform herein,Attn:Legal Department,or,if different,in the most recent Order under this Agreement to the extent due to any act of God,fire,casualty, Form; (ii) if to Institution, at the address set forth for Institution in the flood, war, strike, lock out, failure of public utilities, injunction or any signature page herein or,if different,in the most recent Order Form. act, exercise, assertion or requirement of any governmental authority, (c) Assignment.Institution may not assign this Agreement,or assign epidemic, destruction of production facilities, insurrection or any other or delegate any right or obligation hereunder, by operation of law or cause beyond the reasonable control of the party invoking this otherwise without the prior written consent of Kanopy.This Agreement provision. shall be binding upon and inure to the benefit of the parties hereto and (m)Confidentiality. Each party acknowledges and agrees that it shall their respective successors and permitted assigns. treat the terms and conditions of this Agreement, including any pricing (d) No Third-Party Beneficiaries. Nothing in this Agreement shall information, as confidential information and not disclose such confer any rights upon any person or entity other than the parties information to any third party except to the extent required by hereto and their respective successors and permitted assigns. applicable law. For the avoidance of doubt, the parties acknowledge (e) Interpretation.For the purposes of this Agreement:(i)the words and agree that Kanopy may identify Customer as a Kanopy customer, "such as," "include," "includes" and "including" shall be deemed to be and Customer may identify Kanopy as a provider of content to followed by the words "without limitation;" (ii) the word "or" is not Customer. exclusive;and(iii)the words"herein,""hereof," "hereby,""hereto"and (n) Counterparts.This Agreement may be executed in one or more "hereunder" refer to this Agreement as a whole. This Agreement shall counterparts, each of which shall be deemed an original, but all of be construed without regard to any presumption or rule requiring which together shall constitute one and the same agreement. construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. (f) Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. (g) Amendment.This Agreement may not be amended except in a writing executed by an authorized representative of each party. (h) Severability. If any provision of this Agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement. (i) Governing Law. This Agreement shall be governed by and construed and enforced,without regard to conflict of laws principles, in accordance with: (i) if Institution is domiciled in the United States or Canada, the laws of the state or province in which Institution is domiciled;or(ii)if Institution is domiciled outside the United States and Canada, the laws of the country in which Institution is domiciled. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. (j) No Waiver. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced. (k) U.S.Government Entities.This section applies to access to or use of the Service by a branch or agency of the United States Government ("U.S. Government"). The Service includes "commercial computer software"and"commercial computer software documentation"as such terms are used in 48 C.F.R. 12.212 and qualifies as "commercial items" as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or(H) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The U.S. Government shall acquire only those rights set Page 4 of 4