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HomeMy WebLinkAboutC-4465 DocuSign Envelope ID:91376558-ADF4-4AE0-98AC-2CC9611EAA2D `.1111 \� � MANGO Mango Languages Library Edition Terms of Service These Terms of Service(this"Agreement")are made and entered into as of 01/20/2022 , (the "Effective Date") between Arcadia Public Library ("Library"), and Creative Empire LLC, d/b/a Mango Languages, a Michigan limited liability company("Mango"). 1. SERVICES; TERM. Subject to the satisfaction of the terms and conditions of this Agreement and solely during the Term and any Successor Term(s), if applicable, Mango shall provide Library access to certain services identified as Library Edition. Library Edition shall include the current version of Mango Conversations courses included in the Library Edition and all included supplemental content,activities, and exercises included in the Mango Conversations courses that are part of the Library Edition for all language offerings as of the Effective Date, and shall also include any new languages, courses or updates madeto Library Edition from time to time(collectively,"Services").The term of this Agreement shall commence on 05/01/2022 , and end on 04/30/2023 (the"Initial Term").The Initial Term shall automatically be extended for successive one (1) year terms (each, a "Successor Term") unless either party provides written notice to the other party not less than thirty (30) days prior to the end of the Initial Term or Successor Term, as applicable, of its intent not to extend the term. During any such Successor Terms, all terms and conditions of this Agreement shall remain in full force and effect unless modified in writing by the parties. 2. PAYMENT. Library shall pay Mango$ 4,018.00 for the Services during the Initial Term (the"Initial Payment Amount"). Library shall pay Mango the Initial Payment Amount within 30 days of Library's receipt or initial use of the Services. The Initial Payment Amount shall be payable by check, wire transfer, or other immediately available funds. Prior to the commencement of each Successor Term(s), Library and Mango shall agree upon the amount Library shall pay Mango for the upcoming Successor Term (the "Successor Payment Amount"), and Library shall pay Mango the Successor Payment Amount within 30 days of the date of Mango's invoice for the Services for the Successor Term. The Successor Payment Amount shall be payable by check, wire transfer, or other immediately available funds. 3. LIMITATION OF LIABILITY.TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW,THE SERVICES PURCHASED BY LIBRARY FROM MANGO ARE PROVIDED "AS IS". MANGO DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.To the maximum extent permitted by applicable law, neither Mango nor its licensors or distributors shall be liableto the Library for any lost profits, cost of substitute goods or services, or any form of indirect, special, incidental,consequential or punitive damages from any causes of action arising with respect to the Services that Library purchases from Mango, whether arising in tort (including negligence), contract, strict liability or otherwise, whether or not such party has been advised of the possibility of such damage. In no event shall Mango's aggregate liability under this Agreement exceed the amount actually paid by Library for the applicable Services. 4. WEB-SITE/SOFTWARE ACCESS. To the extent that any Services are accessed through Mango's website ("Website") or software programs(collectively"Website"), Mango hereby grants the Library's Authorized Users a limited license to access and make use of such Services."Authorized Users"means users who are registered borrowers of the Library, those that are walk- ins, and those who are remote users accessing the Services through the Library's website. Library will make reasonable efforts to protect Mango's proprietary information (including but not limited to Mango's intellectual property and other similar Content (as defined below)), and will promptly notify Mango if Library discovers there is unauthorized use of Mango's Services and will cooperate with Mango to mediate the situation. Mango Languages 130455 Northwestern Hwy, Suite 300 I Farmington, MI 48334 mangolanguages.com 1877-626-4611 i support@mangolanguagescom DocuSign Envelope ID:91376558-ADF4-4AE0-98AC-2CC9611 EAA2D siird MANGO Mango Languages Library Edition Terms of Service 5. WEB-SITE LICENSE AND CONDITIONS. As a condition of the Website license granted in paragraph 4 above, Library agrees: a. not to download or modify any part of the Website, except with the express and prior written consent of Mango; b. not to download or copy any account information for the benefit of another merchant; c. not to resell or make any commercial use of the Website or its Content; d. not to reproduce, duplicate,copy, sell, resell or otherwise exploit the Website for any commercial purpose without the express written consent of Mango; e. not to make any derivative use of the Website or its Content; f. not to frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Mango except for the purposes of this Agreement and for promoting the Services; g. not to use any meta tags or any other"hidden text"utilizing the Mango name or trademarks without the express written consent of Mango; h.While Mango attempts to insure that its Website is normally available 24 hours a day, Mango shall not be liable if for any reason its Website is unavailable at any time or for any period; provided however, that Mango shall use its best efforts to provide adequate capacity and bandwidth to support the Library's needs and provide service on a 24 hour basis except for routine maintenance(for which the Library is pre-notified). In the event that Mango fails to provide such service for five days within a 30 day period, Mango shall provide a pro rata refund for the 30 day period in question; i. Access to Mango's Website may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond Mango's control; j. Certain Content, including without limitation Mango Movies Library Edition, may be owned by Mango and/or its licensors. Library therefore acknowledges and agrees that such Content may be added, removed or unavailable from time to time during the Initial Term or any Successor Term (the"Unavailability"), and such Unavailability shall not be deemed breach of this agreement by Mango. k. Neither the Library nor any of its Authorized Users shall show any Content, including without limitation any video clips or movies which are included in the Contents,to any public group or other third parties who are not Authorized Users, and Library and its Authorized Users shall abide by all Movie Regulations listed at https://rnangolanguages.com/legal/rnovie-regulations.cfm; I. Both Library and its Authorized Users may deny or revoke their consent for Mango to use any of its/their Personal Data at any time as allowed by data protection law. However, Both Library and its Authorized Users acknowledge that any such denial or revocation of consent may materially degrade, or in some cases even entirely prevent, Library or Authorized Users'ability to access and/or use all of Mango's software, functions, or features; m. Any rights not expressly granted in these terms are reserved. 6. INDEMNIFICATION. Mango and the Library agree to indemnify, defend and hold one another, and all of their respective members, directors, officers, employees, attorneys and agents (collectively, "Agents") harmless from and against any loss, claim,judgment, liability, damage, action or cause of action (including reasonable attorneys'fees and court costs)arising out of or in connection with (a) a third party claim that the Library's possession and/or use of the Services infringe or misappropriate the patent, copyright, trademark or other intellectual property rights of a third party, or(b)the negligence or willful misconduct of either Mango or the Library or their respective Agents with respect to any obligation, term or condition of this Agreement. 7. SUPPORT. Mango shall support the Library by responding to emails and phone calls from the Library. Mango shall make reasonable efforts to respond to all customer support issues during normal business days between the hours of 9 a.m.and 7 p.m. Eastern Time, Monday through Thursday, and 9 a.m. and 5 p.m. Eastern Time on Fridays. Mango Languages i 30455 Northwestern Hwy,Suite 300 i Farmington, MI 48334 mangolanguages.com 1877-626-4611 I support©mangolanguages.com DocuSign Envelope ID:91376558-ADF4-4AE0-98AC-2CC9611 EAA2D III 1 MANGO Mango Languages Library Edition Terms of Service 8. UPDATES. Mango shall from time to time update Library Edition at Mango's sole and absolute discretion.The Library shall only receive updates to the Library Edition, and any changes or enhancements to Mango's consumer edition and/or other editions will not necessarily be made to the Library Edition. 9. ACCESS. Mango intends to provide Authorized Users unlimited access to the Mango Library Edition. In the event that the Library's Authorized Users exceed what Mango deems reasonable usage during the term of this Agreement (i.e., Mango determines that usage of the Website and Services is being excessively abused by a particular user id and password), Mango shall assume that either the number of cardholders in the Library was grossly underestimated or there is piracy of Mango's Service from outside sources. Under such circumstances, Mango reserves the right to restrict or limit access to the Services and/or the Website. In the event of such circumstances, Mango shall make every effort to provide notice to and cooperate with Library prior to Mango's restriction or limitation of access to its Website and Services. 10. INTELLECTUAL PROPERTY.All materials on the Mango Website or Services, including without limitation,text, images, logo, software, audio content and video clips, databases, e-mails, and posted comments and reviews (collectively, the "Content'") are owned or controlled by Mango and/or it licensors, who retain all right, title, and interest in and to the Content. The Website and Content are protected by the copyright and trademark laws of the United States and other countries, international conventions, and other applicable laws. Library shall use all reasonable efforts to ensure that all Authorized Users are appropriately notified of the importance of respecting Mango's intellectual property rights. 11. LICENSE OF LIBRARY'S TRADEMARKS. Library agrees to grant Mango a non-exclusive, non-transferable, royalty- free, right and license, solely during the Initial or any Successor Terms of the Agreement,to reproduce, display, and otherwise use the trademarks, service marks, logos, and trade names of Library solely in connection with the advertising and promotion of Mango's language learning business. 12. APPLICABLE LAW; JURISDICTION.This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding any conflicts of law provisions. The parties hereto agree to submit any suit arising under or relating to this Agreement to any state court of competent jurisdiction located in California, or in the United States District Court for the Central District of California, and the parties hereto waive any objection to submitting to the personal jurisdiction and venue therein. 13. FORCE MAJEURE. Neither party hereto shall be deemed in default of this Agreement to the extent that performance of its obligations under this Agreement (other than any payment obligations) are delayed or prevented solely by supervening conditions beyond a parry's reasonable control, including without limitation natural disasters, war, terrorism, strikes, power outages, internet connectivity outages, labor disputes, and government demands or requirements (each, a "Force Majeure"), provided that such party gives the other party written notice thereof within fifteen (15) days of its discovery of a Force Majeure that prevents the performance of its obligations under this Agreement (other than any payment obligations). The time for performance shall be extended for a period equal to the duration of the Force Majeure, not to exceed six(6) months. 14. TAXES. All prices for the Services and other amounts in this Agreement are exclusive of any applicable customs, duties, assessments, fees and taxes, including any applicable value added or any other sales taxes(collectively,"Taxes"). Library shall be responsible for payment of any and all applicable Taxes to the extent required under applicable law. 15. GENERAL.This Agreement constitutes the entire agreement between Mango and the Library regarding the subject matter hereof, supersedes all prior or contemporaneous agreements, understandings or negotiations between Mango and the Library, whether written or oral, regarding the subject matter hereof, and may be amended, modified or waived only by a writing Mango Languages 130455 Northwestern Hwy, Suite 300 I Farmington, MI 48334 mangolanguages.com 877-626-4611 I support©mangolanguages.com DocuSign Envelope ID:91376558-ADF4-4AE0-98AC-2CC9611 EAA2D MANGO Mango Languages Library Edition Terms of Service signed by Mango and Library. Mango explicitly disclaims and rejects any terms and conditions (including external links to terms and conditions) that may be included on a purchase order or similar document issued by Library and those terms shall have no effect on the parties. The parties hereto represent and warrant to the other party that they each have the right power, and authority to enter into and fully perform its obligations under this Agreement and have obtained all necessary licenses, permissions, and consents to fulfill their respective obligations under this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns, but only Mango may assign any of its rights or obligations under this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law. In the event that any provision of this Agreement shall be held to be void or unenforceable by any competent court or tribunal, the remaining provisions of this Agreement shall continue in full force and effect. No failure or delay by Mango in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right or power hereunder. This Agreement may be executed in counterparts (including counterparts delivered via facsimile or other electronic transmission), each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the date set forth above. Library: Mango: Arcadia Public Library Creative Empire LLC, d/b/a Mango Languages Signature: Nrcum,ryas, Signature: 8Zr' g Darlene Bradley Steve Perakis Name: Name: Title: Director Library & Museum services-ride: CFO Mango Languages 130455 Northwestern Hwy, Suite 300 I Farmington, MI 48334 mangolanguages.com 1877-626-4611 I support©mangolanguages.com DocuSign Certificate Of Completion Envelope Id:91376558ADF44AE098AC2CC9611 EAA2D Status:Completed Subject:Please DocuSign:Arcadia Public Library(Revised)Mango Agreement.pdf Source Envelope: Document Pages:4 Signatures:2 Envelope Originator: Certificate Pages:5 Initials:0 Toby Kovalivker AutoNav:Enabled 30445 Northwestern Hwy#300, Envelopeld Stamping:Enabled Farmington,,MI 48334 Time Zone:(UTC-08:00)Pacific Time(US&Canada) toby.kovalivker@mangolanguages.com IP Address: 131.226.33.171 Record Tracking Status:Original Holder:Toby Kovalivker Location:DocuSign 1/31/2022 8:59:41 AM toby.kovalivker@mangolanguages.com Signer Events Signature Timestamp Darlene Bradley av CDosedM_ Sent: 1/31/2022 9:06:55 AM dguerrero@arcadiaca.gov a'tU.tL tralthi Viewed:2/1/2022 8:04:40 AM Director Library&Museum Services 5CODB3AJ2388 4 B8 Signed:2/1/2022 8:05:57 AM Arcadia Public Library Security Level:Email,Account Authentication Signature Adoption:Pre-selected Style (None) Using IP Address: 107.142.8.212 Electronic Record and Signature Disclosure: Accepted:2/1/2022 8:04:40 AM ID:ff511472-027e-46d9-b02f-c7768da4c57c Steve Perakis e—DociBipwd°'° Sent:2/1/2022 8:05:58 AM steve.perakis@mangolanguages.com Ya Viewed:2/1/2022 8:11:22 AM s—F2eB88AFA748477... CFO Signed:2/1/2022 3:28:53 PM Mango Languages Signature Adoption:Drawn on Device Security Level:Email,Account Authentication (None) Using IP Address:216.11.223.133 Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Cruz Pardo COPIED Sent:2/1/2022 3:28:54 PM cruz.pardo@mangolanguages.com Mango Languages Security Level:Email,Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 1/31/2022 9:06:56 AM Certified Delivered Security Checked 2/1/2022 8:11:22 AM Signing Complete Security Checked 2/1/2022 3:28:53 PM Completed Security Checked 2/1/2022 3:28:54 PM Payment Events Status Timestamps Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on 2/1/2021 12:49:37 PM Parties agreed to:Darlene Bradley ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, Creative Empire, LLC (we,us or Company)may be required by law to provide to you certain written notices or disclosures. Described below are the terms and conditions for providing to you such notices and disclosures electronically through the DocuSign system. Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to this Electronic Record and Signature Disclosure(ERSD),please confirm your agreement by selecting the check-box next to `I agree to use electronic records and signatures' before clicking `CONTINUE' within the DocuSign system. Getting paper copies At any time, you may request from us a paper copy of any record provided or made available electronically to you by us. You will have the ability to download and print documents we send to you through the DocuSign system during and immediately after the signing session and, if you elect to create a DocuSign account, you may access the documents for a limited period of time (usually 30 days) after such documents are first sent to you. After such time, if you wish for us to send you paper copies of any such documents from our office to you, you will be charged a $0.00 per-page fee. You may request delivery of such paper copies from us by following the procedure described below. Withdrawing your consent If you decide to receive notices and disclosures from us electronically, you may at any time change your mind and tell us that thereafter you want to receive required notices and disclosures only in paper format. How you must inform us of your decision to receive future notices and disclosure in paper format and withdraw your consent to receive notices and disclosures electronically is described below. Consequences of changing your mind If you elect to receive required notices and disclosures only in paper format, it will slow the speed at which we can complete certain steps in transactions with you and delivering services to you because we will need first to send the required notices or disclosures to you in paper format, and then wait until we receive back from you your acknowledgment of your receipt of such paper notices or disclosures. Further, you will no longer be able to use the DocuSign system to receive required notices and consents electronically from us or to sign electronically documents from us. All notices and disclosures will be sent to you electronically Unless you tell us otherwise in accordance with the procedures described herein,we will provide electronically to you through the DocuSign system all required notices,disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure,we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process,please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us. How to contact Creative Empire,LLC: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: legal@mangolanguages.com To advise Creative Empire,LLC of your new email address To let us know of a change in your email address where we should send notices and disclosures electronically to you, you must send an email message to us at legal@mangolanguages.com and in the body of such request you must state: your previous email address, your new email address. We do not require any other information from you to change your email address. If you created a DocuSign account, you may update it with your new email address through your account preferences. To request paper copies from Creative Empire,LLC To request delivery from us of paper copies of the notices and disclosures previously provided by us to you electronically, you must send us an email to legal@mangolanguages.com and in the body of such request you must state your email address, full name,mailing address, and telephone number. We will bill you for any fees at that time,if any. To withdraw your consent with Creative Empire, LLC To inform us that you no longer wish to receive future notices and disclosures in electronic format you may: i. decline to sign a document from within your signing session, and on the subsequent page, select the check-box indicating you wish to withdraw your consent, or you may; ii. send us an email to legal@mangolanguages.com and in the body of such request you must state your email, full name, mailing address, and telephone number. We do not need any other information from you to withdraw consent.. The consequences of your withdrawing consent for online documents will be that transactions may take a longer time to process.. Required hardware and software The minimum system requirements for using the DocuSign system may change over time. The current system requirements are found here: https://support.docusign.com/guides/signer-guide- signing-system-requirements. Acknowledging your access and consent to receive and sign documents electronically To confirm to us that you can access this information electronically, which will be similar to other electronic notices and disclosures that we will provide to you,please confirm that you have read this ERSD, and(i)that you are able to print on paper or electronically save this ERSD for your future reference and access; or(ii)that you are able to email this ERSD to an email address where you will be able to print on paper or save it for your future reference and access. Further, if you consent to receiving notices and disclosures exclusively in electronic format as described herein, then select the check-box next to `I agree to use electronic records and signatures' before clicking `CONTINUE' within the DocuSign system. By selecting the check-box next to `I agree to use electronic records and signatures', you confirm that: • You can access and read this Electronic Record and Signature Disclosure; and • You can print on paper this Electronic Record and Signature Disclosure, or save or send this Electronic Record and Disclosure to a location where you can print it, for future reference and access; and • Until or unless you notify Creative Empire, LLC as described above, you consent to receive exclusively through electronic means all notices,disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you by Creative Empire, LLC during the course of your relationship with Creative Empire, LLC.