CM-2021-051 - 2/22/2021CITY OF ROUND ROCK AGREEMENT
FOR ELECTRONIC NEWSPAPER MATERIALS
WITH
PROOUEST LLC
THE STATE OF TEXAS §
CITY OF ROUND ROCK § KNOW ALL BY THESE PRESENTS:
COUNTY OF WILLIAMSON §
COUNTY OF TRAVIS §
THAT THIS AGREEMENT for the purchase of electronic newspaper materials for the
City's Public Library (referred t h rein as the "Agreement"), is made and entered into on this
the?�dy of the month of , 2021 by and between the CITY OF ROUND
ROCK, a Texas home -rule municipality, who a offices are located at 221 East Main Street,
Round Rock, Texas 78664-5299 (referred to herein as the "City"), and PROQUEST LLC, whose
offices are located at 789 East Eisenhower Parkway, Ann Arbor, Michigan 48108 (referred to
herein as "Vendor").
RECITALS:
WHEREAS, City desires to purchase a license to access and use electronic newspaper
materials for the City's Public Library; and
WHEREAS, expenditures that are for procurement of items from only one source,
including books, papers, and other library materials for a public library that are available only
from the persons holding exclusive distribution rights to the materials, are exempt from
competitive bidding requirements pursuant to Section 252.022 of the Texas Local Government
Code; and
WHEREAS, the City has determined that Vendor is a sole source provider for these
goods and services; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties, and obligations;
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NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is
mutually agreed between the parties as follows:
1.01 DEFINITIONS
A. Agreement means the binding legal contract between City and Vendor whereby
City is obligated to buy specified goods and services and Vendor is obligated to provide said
goods and services. The Agreement includes the attached exhibit.
B. City means the City of Round Rock, Williamson and Travis Counties, Texas.
C. Effective Date means the date upon which the binding signatures of both parties
to this Agreement are affixed.
D. Force Majeure means acts of God, strikes, lockouts, or other industrial
disturbances, acts of the public enemy, orders of any kind from the government of the United
States or the State of Texas or any civil or military authority, insurrections, riots, epidemics,
landslides, lightning, earthquakes, fires, hurricanes, storms, floods, restraint of the government
and the people, civil disturbances, explosions, or other causes not reasonably within the control
of the party claiming such inability.
E. Goods and services mean the specified services, supplies, materials,
commodities, or equipment.
F. Term means thirty-six (36) months commencing February 1, 2021.
2.01 EFFECTIVE DATE AND TERM
A. This Agreement shall be effective on the date this Agreement has been signed by
each party hereto, and shall remain in full force and effect unless and until it expires by operation
of the term indicated herein, or is terminated or extended as provided herein.
B. The term of this Agreement shall be for thirty-six (36) months commencing
February 1, 2021.
C. City reserves the right to review the relationship with Vendor at any time, and
may elect to terminate this Agreement with or without cause or may elect to continue.
3.01 CONTRACT DOCUMENTS AND EXHIBITS
The goods and services which are the subject of this Agreement are described in Exhibit
"A," attached hereto and incorporated herein by reference for all purposes. Exhibit "A," together
with this Agreement, comprise the total Agreement and they are fully a part of this Agreement as
if repeated herein in full.
4.01 SCOPE OF WORK
Vendor shall satisfactorily provide all services described under the attached Exhibit "A."
Vendor's undertakings shall be limited to performing services for the City and/or advising City
concerning those matters on which Vendor has been specifically engaged. Vendor shall perform
its services in accordance with this Agreement, in accordance with the appended exhibit, in
accordance with due care, and in accordance with prevailing industry standards for comparable
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5.01 CONTRACT AMOUNT
In consideration for the goods and related services set forth in the attached Exhibit "A,"
City agrees to pay Vendor a not -to -exceed amount of Twenty -Seven Thousand Eight Hundred
Ninety -One and 62/100 Dollars ($27,891.62) for the term of the Agreement.
6.01 INVOICES
All invoices shall include, at a minimum, the following information:
A. Name and address of Vendor;
B. Purchase Order Number;
C. Description and quantity of items received or services provided; and
D. Delivery or performance dates.
7.01 NON -APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of City's current revenues only. It is understood and
agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year
if the governing body of City does not appropriate funds sufficient to purchase the services as
determined by City's budget for the fiscal year in question. City may effect such termination by
giving Vendor a written notice of termination at the end of its then current fiscal year. Any early
termination due to non -appropriation of funds shall not obligate Vendor to refund any prepaid
fees.
8.01 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to
Vendor will be made within thirty (30) days of the day on which City receives the performance,
supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the day on
which the performance of services was complete, or within thirty (30) days of the day on which
City receives a correct invoice for the performance and/or deliverables or services, whichever is
later. Vendor may charge interest on an overdue payment at the "rate in effect" on September I
of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas
Government Code, Section 2251.025(b); however, this Policy does not apply to payments made
by City in the event:
A. There is a bona fide dispute between City and Vendor, a contractor, subcontractor
or supplier about the goods delivered or the service performed that cause the
payment to be late; or
B. The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds; or
C. There is a bona fide dispute between Vendor and a subcontractor or between a
subcontractor and its supplier about the goods delivered or the service performed
that causes the payment to be late; or
D. Invoices are not mailed to City in strict accordance with instructions, if any, on
the purchase order or the Agreement or other such contractual agreement.
9.01 GRATUITIES AND BRIBES
City may, by written notice to Vendor, cancel this Agreement without liability to Vendor
if it is determined by City that gratuities or bribes in the form of entertainment, gifts, or
otherwise were offered or given by Vendor or its agents or representatives to any City officer,
employee or elected representative with respect to the performance of this Agreement. In
addition, Vendor may be subject to penalties stated in Title 8 of the Texas Penal Code.
10.01 TAXES
City represents it is exempt from Federal Excise and State Sales Tax; therefore, tax shall
not be included in Vendor's charges. Upon Vendor's request, City shall provide evidence of tax
exempt status. If City does not provide requested evidence of tax exempt status upon Vendor's
request, taxes may be included in Vendor's charges.
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11.01 ORDERS PLACED WITH ALTERNATE SERVICES PROVIDERS
If Vendor cannot provide the goods as specified, City reserves the right and option to
obtain the products from another supplier or suppliers
12.01 CITY'S REPRESENTATIVE
City hereby designates the following representative authorized to act in its behalf with
regard to this Agreement:
Michelle Cervantes, Library Director
216 East Main Street
Round Rock, Texas 78664
(512) 218-7010
13.01 INSURANCE
Vendor shall meet all City of Round Rock Insurance Requirements as set forth at:
http://www.roundrocktexas.gov/wp-content/uploads/2014/12/corr insurance 07.20112.pdf
subject to the following modifications:
A. The language in subsection 1.5.2 is deleted in its entirety and replaced
with "Intentionally Omitted."
B. The language in subsection 1.5.6 is deleted in its entirety and replaced
with "Intentionally Omitted."
C. The language in Section 2.0 is deleted in its entirety and replaced with
"Intentionally Omitted."
14.01 RIGHT TO ASSURANCE
Whenever either party to this Agreement, in good faith, has reason to question the other
party's intent to perform hereunder, then demand may be made to the other party for written
assurance of the intent to perform. In the event that no written assurance is given within the
reasonable time specified when demand is made, then and in that event the demanding party may
treat such failure as an anticipatory repudiation of this Agreement.
15.01 DEFAULT
If Vendor abandons or defaults under this Agreement and is a cause of City purchasing
the specified goods elsewhere, Vendor agrees that it will not be considered in the re -
advertisement of the service and that it may not be considered in future bids for the same type of
work unless the scope of work is significantly changed.
5
Vendor shall be declared in default of this Agreement if it does any of the following:
A. Fails to fully, timely and faithfully perform any of its material obligations
under this Agreement;
B. Fails to provide adequate assurance of performance under the "Right to
Assurance" section herein; or
C. Becomes insolvent or seeks relief under the bankruptcy laws of the United
States.
16.01 TERMINATION AND SUSPENSION
A. In the event of default by Vendor as described in 15.01 above and not cured by
Vendor within thirty (30) days from the City's written notice, City has the right to immediately
terminate this Agreement for cause, in whole or in part as to the affected service.
B. Vendor has the right to terminate this Agreement only for cause, that being in the
event of a material and substantial breach by City as further described in the License Agreement,
or by mutual agreement to terminate evidenced in writing by and between the parties.
C. In the event City terminates under subsection (A) of this section, the following
shall apply: Vendor shall discontinue all services in connection with the performance of this
Agreement. Upon termination, Vendor shall issue City a pro-rata refund of prepaid fees
corresponding to the unused balance of the subscription term as its sole and exclusive remedy.
Upon termination, each party reserves the right to pursue all available legal remedies.
17.01 INDEMNIFICATION
Vendor shall indemnify and hold harmless from liability for all costs or damages incurred
by City in an action or threatened action for infringement of an intellectual property right of a
third party, relating to or caused by the Vendor's products and services ("Service") in the form in
which it is furnished hereunder, provided that City gives Vendor notice of any suit or threatened
suit for infringement brought within twenty (20) days of the day of service of the complaint upon
City or from the receipt by City of notice of a threatened suit and further provided that Vendor
shall control the defense of any such suit. Vendor shall not be liable hereunder if (1) any
infringement or violation claim is based solely upon the use of the Service in combination with
the programs, equipment or devises not of Vendor origin, design or selection; or (2) any
infringement or violation claim arises out of use of the Service in a manner contrary to the rights
granted in this Agreement, including use contrary to the Copyright Act of 1976, Title 17 U.S.C.
or other intellectual property law. Nothing herein shall be deemed to limit the rights of City or
Vendor (including, but not limited to the right to seek contribution) against any third parry who
may be liable for an indemnified claim.
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18.01 CONFIDENTIALITY
Each party agrees that it will not disclose to any third party or unauthorized personnel
any information concerning the customers, trade secrets, methods, processes, procedures or any
other confidential, financial or business information of the other party which it learns during the
course of its performance of this Agreement, without the prior consent of the other party unless
such disclosure is required by law. The parties recognize and understand that City is subject to the
Texas Public Information Act and its duties run in accordance therewith
19.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
A. Vendor, its agents, employees and subcontractors shall use best efforts to comply
with all applicable federal and state laws, the Charter and Ordinances of the City of Round Rock,
as amended, and with all applicable rules and regulations promulgated by local, state and
national boards, bureaus and agencies.
B. In accordance with Chapter 2270, Texas Government Code, a governmental entity
may not enter into a contract with a company for goods and services unless the contract contains
written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott
Israel during the term of this contract. The signatory executing this Agreement on behalf of
Vendor verifies Vendor does not boycott Israel and will not boycott Israel at any time during the
term of this Agreement.
20.01 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party shall
assign, sublet or transfer any interest in this Agreement without prior written authorization of the
other party except that Vendor may assign this Agreement in whole or in part as part of a
corporate reorganization, consolidation, merger or sale of substantially all of its assets related to
this Agreement without the City's prior consent.
21.01 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
1. When delivered personally to the recipient's address as stated in this Agreement;
or
2. Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
7
Notice to Vendor:
ProQuest LLC
789 East Eisenhower Parkway
Ann Arbor, MI 48108
Attn: Legal Department, General Counsel
Notice to City:
City Manager Stephen L. Sheets, City Attorney
221 East Main Street AND TO: 309 East Main Street
Round Rock, TX 78664 Round Rock, TX 78664
Nothing contained herein shall be construed to restrict the transmission of routine
communications between representatives of City and Vendor.
22.01 APPLICABLE LAW; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be
governed by and construed in accordance with the laws and court decisions of the State of Texas.
23.01 EXCLUSIVE AGREEMENT
This document, and all appended documents, including the License Agreement attached
as Exhibit "A," constitutes the entire Agreement between Vendor and City. This Agreement
may only be amended or supplemented by mutual agreement of the parties hereto in writing,
duly authorized by action of the City Manager or City Council.
24.01 DISPUTE RESOLUTION
City and Vendor hereby expressly agree that no claims or disputes between the parties
arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration
proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9
USC Section 1-14) or any applicable state arbitration statute.
25.01 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion or provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance of this Agreement
shall be construed and enforced as if this Agreement did not contain the particular portion or
provision held to be void. The parties further agree to amend this Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision. The provisions of this section shall not prevent this entire Agreement from
being void should a provision which is of the essence of this Agreement be determined void.
26.01 MISCELLANEOUS PROVISIONS
Standard of Care. Vendor represents that it employs trained, experienced and
competent persons to perform all of the services, responsibilities and duties specified herein and
that such services, responsibilities and duties shall be performed in a manner according to
generally accepted industry practices.
Time is of the Essence. Vendor understands and agrees that time is of the essence and
that any failure of Vendor to fulfill obligations for each portion of this Agreement within the
agreed timeframes will constitute a material breach of this Agreement. Vendor shall be fully
responsible for its delays or for failures to use best efforts in accordance with the terms of this
Agreement. Where damage is caused to City due to Vendor's failure to perform in these
circumstances, City may pursue any remedy available without waiver of any of City's additional
legal rights or remedies.
Force Majeure. Neither City nor Vendor shall be deemed in violation of this Agreement
if it is prevented from performing any of its obligations hereunder by reasons for which it is not
responsible as defined herein. However, notice of such impediment or delay in performance
must be timely given, and all reasonable efforts undertaken to mitigate its effects.
Multiple Counterparts. This Agreement may be executed in multiple counterparts, any
one of which shall be considered an original of this document; and all of which, when taken
together, shall constitute one and the same instrument.
[Signatures on the following page.]
9
IN WITNESS WHEREOF, City and Vendor have executed this Agreement on the dates
indicated.
City of ound Rock, Texas ProQuest LLC
c
Printed N m Printed Name:
Dawn DhectOl
Title: Title: i 1..1 'MnMe8nnamr r-eruine &
Date Signed: Date Signed: i;G i-nent Contracts
Attest:
By: W -
Sara L. White, City Clerk
For City, p oved as to For
By: <���,,o L
Stephan qSheets, City Attorney
10
Exhibit "A"
ProOuest Customer Order Form
Terms and Conditions 07/17/2017
Addenda (if applicable)
By signing this License Agreement ("Agreement") with your signature below, you agree to license the Service under these terms
and conditions below and you certify that you are authorized to enter into this Agreement on behalf of the Customer.
Customer: Round Rock Public Library
Authorization by Customer: Authorization by ProQuest LLC:
Signature: Signa +.i'l Qf .+ ✓�
Duly Authorized Signature
Name: Name:
Title: Title: Dawn BranMam, Director
Global Customer
Date Signed: Date Signed: US Government Contracts
Q-00446862
Product..•
Start
End Date
Price
Date
Newspapers.com -World Collection
NEWSCOMWC
2/1/2021
1/31/2022
9,113.72 USD
Newspapers.com - World Collection
NEWSCOMWC
2/1/2022
1/31/2023
9,295.99 USD
Newspapers.com - World Collection
NEWSCOMWC
2/1/2023
1/31/2024
9,481.91 USD
Total Price:
t
Additional. . .
3-year commitment - non cancellable
Discount dependent upon maintaining direct subscriptions w ProQuest for Ancestry and Fold3.
US2017 (rev. 7/17/2017) Page 1 of 8
Exhibit "A"
Electronic Invoice Recipient(s):
Electronic Renewal Recipient(s):
Rhonda Kuiper
Rhonda Kuiper
rkuiper@roundrocktexas.gov
rkuiper@roundrocktexas.gov
If your subscribing institution requires the use of Purchase
Tax Registration Number #
Orders, please indicate below.
If tax exempt, please include copy of supporting
Purchase Order #
documentation with signed agreement or email a copy to
taxinformation@REggi!est.com
Invoices will be emailed to the bill -to-
To sign up for our auto -renewal program as part of our go green' initiative. Your
contact and renewals will be emailed to
subscription to the service will automatically renew for successive 12 month
the ship -to -contact. If your institution is
periods at the rate set forth in the renewal invoice sent to the Customer, unless
unable to accept electronic invoices,
Customer sends written cancellation notice to ProQuest within 30-days of the
please check this box:
Customer's receipt of the renewal invoice, with such cancellation to be effective
as of the end of the current subscription period, please check this box:
Account Manager Information:
Dawn Ledwidge
i dawn.ledwidge@proquest.com
Terms and Conditions
1. License Grant. Subject to the terms of this Agreement, ProQuest LLC and its affiliates
("ProQuest") hereby grant to Customer a non-exclusive, non -transferable license (the "License")
for Customer and its Authorized Users to access and use the products and services listed on
Customer's approved Order Form (the "Service") solely at Customer's principal location and
those locations identified on the Order Form or a separate schedule ("Additional Sites").
Additional locations may be added as Additional Sites upon written notice to ProQuest and
payment of additional fees, if applicable. Access and use of the Service is only for the internal,
research purposes of Customer and/or its Authorized Users as further described in Exhibit A
(Permitted Uses). Customer does not acquire any intellectual property ownership in the Service
or any associated software, systems, documentation, content, other materials and/or
improvements made thereto, including improvements based upon customer feedback. All such
rights and interests remain in ProQuest and its licensors.
2. Authorized Users. Unless otherwise detailed on the Order Form, "Authorized User" means only:
(a) For public libraries: library staff, individual residents of Customer's reasonably defined
geographic area served, and walk-in patrons while they are on -site; (b) For schools and other
academic institutions: currently enrolled students, faculty, staff, and visiting scholars, as well as
US2017 (rev. 7/17/2017) Page 2 of 8
Exhibit "A"
independent contractors, while performing their work. Authorized Users excludes Customer's
corporate affiliates, academic bookstores, and alumni unless those users are expressly included
and reflected on the Order Form or Additional Sites Schedule.
3. Secure/Remote Access. All access and use of the Service must be made via a secure network
and secure authentication methods. Use of the Service by remote access is allowed unless
otherwise stated on the Order Form. Customer will strictly limit any remote access to its
Authorized Users through the use of secure methods of user verification. Customer will promptly
notify ProQuest if Customer believes security has been compromised. Posting or sharing of
passwords, or otherwise enabling access for the benefit of non -subscribing institutions or users,
is strictly prohibited.
4. Updates to the Service. ProQuest will provide reasonable notice of any substantial modifications
of information, databases, materials, capabilities, or services within the Service by email to
Customer's representatives who sign up to receive updates. These changes shall be subject to
the terms and conditions of this Agreement, and shall not materially alter use of the Service in
an adverse manner.
5. Supplemental Terms. Some content included in the Service has terms of use applicable solely
to such content. Content -specific terms are clearly displayed with the associated content or
embedded in the systems and technologies incorporated into the Service. Where third -party
databases or content are subject to supplemental terms, such terms shall be clearly referenced
on the Order Form. Such supplemental terms shall not materially alter use of the Service.
6. Variations in Content. The content provided as part of the Service is primarily owned and
supplied to ProQuest under agreement with third party licensors, and is subject to the
continuation and extent of the license granted under such agreements. ProQuest shall have the
right, in its reasonable and good faith discretion, to remove or modify materials in the Service
because (a) ProQuest's right to distribute such materials lapses, (b) such materials contain errors
or could be subject to an infringement or other adverse claim by a third party, or (c) particular
content collections have changed due to editorial selection, coordination, or arrangement of
materials.
7. Fees and Payments. Customer agrees to pay the fees for the Service shown on the Order Form
within 30 days of receipt of ProQuest's invoice unless otherwise specified on the Order Form.
Fees are based in part on Customer's population served, Authorized Users and Additional Sites
at the time of the order or such other license parameters as may be listed on the Order Form. If
any one or a combination of these elements materially increases (e.g., if the Customer acquires
a new affiliate), a fee increase commensurate with such change may be required before access
and use of the Service is provided to or for the benefit of the additional user population and/or
Additional Sites. Firm U.S. Government orders require a valid purchase order and advance
payment or payment in accordance with FAR 52.213.2.
8. U.S. Government Restricted Rights. Services include materials that are commercial technical
data and/or computer databases and/or commercial computer software, as applicable, which
were developed exclusively at private expense by ProQuest LLC, 789 E. Eisenhower Parkway,
Ann Arbor, MI 48108. U.S. Government rights to use, modify, reproduce, release, perform,
display, or disclose these technical data and/or computer databases and/or computer software
are subject to the limited rights restrictions of DFARS SUBPART 252.227-7202-3 (December
2011) Rights in Computer Software and Computer Software Documentation and/or subject to
the restrictions of DFARS 252.227-7019 (Sep 2011) Validation of Asserted Restrictions —
US2017 (rev. 7/17/2017) Page 3 of 8
Exhibit "A"
Computer Software, as applicable for U.S. Department of Defense procurements and the limited
rights restrictions of FAR 52.227-14 (December 2007) Rights in Data -General, FAR 52-227-
20(c)(2-3) (December 2007) Rights in Data-SBIR Program and/or subject to the restricted rights
provisions of FAR 52.227-15 (December 2007) Representation of Limited Rights Data and
Restricted Computer Software and FAR 52.227-19 (Dec 2007) Commercial Computer Software -
Restricted Rights, as applicable, and any applicable agency FAR Supplements, for non -
Department of Defense Federal procurement.
9. Term. Customer's access to a particular Service shall continue for the period on the Order Form,
plus any agreed renewal period(s). This Agreement shall continue in force for so long as
Customer subscribes to at least one Service. Thereafter, the following survive: Sections 9-11
and 13-16, and any perpetual archive licenses ("PAL") (subject to all relevant use restrictions
and security requirements).
10. Termination for Breach. If a party breaches a material term of this Agreement and does not cure
within 30 days from written notice, the other party may immediately terminate this Agreement in
whole or as to the affected Service. If this Agreement is terminated in whole or in part for
Customer's breach, (a) ProQuest shall disable access to any terminated Service, (b) Customer
shall destroy any files, information, data or software derived from any terminated Service in its
possession or control, and certify destruction upon request, and (c) ProQuest reserves the right
to pursue all available legal remedies.
11. Remedial Action. Without limiting the above, ProQuest may suspend delivery of the Service if it
reasonably determines that Customer's or an Authorized User's failure to comply with this
Agreement may cause irreparable harm to it or its licensors. If delivery is suspended, ProQuest
will work in good faith to restore Customer's access as soon as possible after the failure to
comply has been remedied in full.
12. Service Level. If the Service or content are hosted by ProQuest, ProQuest will use commercially
reasonable efforts to provide access to the Service on a continuous 24/7 basis (except for
regularly scheduled maintenance) and free from viruses or other harmful software. ProQuest
shall not be liable for any failure or delay or interruption in the Service or failure of any equipment
or telecommunications resulting from any cause beyond ProQuest's reasonable control.
Customer is responsible for providing all required information for account set up and activation,
and for its own telecommunications connections and related third -party charges.
13. Limited Warranty and Disclaimer of Warranty. ProQuest warrants that the Service will perform
substantially as documented on ProQuest's public websites (the "ProQuest Websites"). EXCEPT
AS EXPRESSLY WARRANTED HEREIN, THE SERVICE IS PROVIDED "AS IS" AND "AS
AVAILABLE." PROQUEST AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE PERTAINING TO:
MERCHANTABILITY, NON -INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE,
AVAILABILITY, ACCURACY, TIMELINESS, CORRECTNESS, RELIABILITY, CURRENCY, OR
COMPLETENESS OF THE SERVICE OR ANY INFORMATION OR RESULTS OBTAINED
THROUGH THE SERVICE, EVEN IF ASSISTED BY PROQUEST. PROQUEST SPECIFICALLY
DISCLAIMS ANY RESPONSIBILITY FOR DETERMINING THE COMPATIBILITY OF ANY
HARDWARE OR SOFTWARE NOT SUPPLIED BY PROQUEST WITH THE SERVICE AND
PROVIDES NO WARRANTY WITH RESPECT TO THE OPERATION OF SUCH HARDWARE
OR SOFTWARE WITH THE SERVICE.
14. Limitation of Liability. THE MAXIMUM AGGREGATE LIABILITY OF PROQUEST AND ITS
LICENSORS ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT
US2017 (rev. 7/17/2017) Page 4 of 8
Exhibit "A"
l IRAITCn;r1 TI..IC T TAI n�Al11 IAIT I1C CCCC CCf'C11/Cr% ITV DDQQI Ira
CUSTOMER FOR THE RELEVANT SERVICE IN THE 12 MONTHS IMMEDIATELY
PRECEDING THE EVENTS GIVING RISE TO THE CLAIMS. IN NO EVENT SHALL
PROQUEST OR ITS LICENSORS BE LIABLE TO CUSTOMER OR ITS AUTHORIZED USERS
FOR (a) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL
DAMAGES; OR (b) ANY CLAIM RELATED TO CUSTOMER'S OR ITS AUTHORIZED USERS'
USE OF COVER IMAGES OR USER -GENERATED CONTENT PROVIDED AS PART OF THE
SERVICE; OR (c) UNAUTHORIZED USE OF THE SERVICE.
15. Place. ProQuest's principal place of business, where this contract is formed and all services will
be deemed performed, is 789 E. Eisenhower Pkwy, Ann Arbor, MI 48108.
16. Entire Agreement. This Agreement consists of these Terms and Conditions, any applicable
Order Form referencing these Terms and Conditions, and any Exhibits or Addenda attached
hereto or referencing this Agreement (including the Exhibit A (Permitted Uses), and constitutes
the entire agreement between the parties hereto with respect to its subject matter and
supersedes all previous and contemporaneous agreements between the parties with respect to
the same subject matter and may not be amended, except in a writing signed by the parties. The
terms of Customer's purchase orders, if any, are for Customer's convenience and do not
supersede or supplement any term or condition of this Agreement.
US2017 (rev. 7/17/2017) Page 5 of 8
Exhibit "A"
Exhibit A: Permitted Uses
1. Online Research Services. Services designed to facilitate online research may be used for
Customer's internal research or educational purposes as outlined below provided that doing so does
not violate an express provision of this Agreement:
a) Research and Analysis. Customer and its Authorized Users are permitted to display and use
reasonable portions of information contained in the Service for educational or research
purposes, including illustration, explanation, example, comment, criticism, teaching, or
analysis.
b) Digital and Print Copies. Customer and its Authorized Users may download or create
printouts of a reasonable portion of articles or other works represented in the Service (i) for
its own internal or personal use as allowed under the doctrines of "fair use" and "fair dealing";
(ii) when required by law for use in legal proceedings or (iii) to furnish such information to a
third party for the purpose of, or in anticipation of, regulatory approval or purpose provided
that the recipient is advised that the copies are not for redistribution. All downloading, printing
and/or electronic storage of materials retrieved through the Service must be retrieved directly
from the on-line system for each and every print or digital copy.
c) Electronic Reserves, Coursepacks, and Intranet Use. Provided that Customer does not circumvent
any features or functionality of the Service, Customer may include durable links to articles or other
works (or portions thereof) contained in the Service in electronic reserves systems, online course
packs and/or intranet sites so long as access to such materials are limited to Authorized Users.
d) Fair Use/Fair Dealing. Customer and its Authorized Users may use the materials contained
within the Service consistent with the doctrines of "fair use" or "fair dealing" as defined under
the laws of the United States or England, respectively.
e) Academic Institutions. Schools, and Public Libraries. If Customer is an academic institution,
school, or public library:
i. Interlibrary Loan (ILL). Library Customer may loan digital or print copies of materials
retrieved from the Service to other libraries, provided that (i) loans are not done in a
manner or magnitude that would replace the receiving library's own subscription to the
Service or purchase of the underlying work (e.g., newspaper, magazine, book), (ii)
Customer complies with any special terms governing specific content or licensors as
described in this Agreement, (iii) with respect to ebooks, copying is limited to small
portions of a book, and (iv) Customer complies with all laws and regulations regarding
ILL.
ii. Scholarly Sharing. Customer and its Authorized Users may provide to a third party
colleague minimal, insubstantial amounts of materials retrieved from the Service for
personal use or scholarly, educational research use in hard copy or electronically,
provided that in no case is any such sharing done in a manner or magnitude as to act
as a replacement for the recipient's or recipient educational institution's own
subscription to either the Service or the purchase of the underlying work.
2. All Streaming Video and Audio Products. Audio and Video files are delivered to Customer and its
Authorized Users via streaming service over the Internet. Customer and its Authorized Users shall
not download or otherwise copy the streaming videos or audio contained in the Service. In the case
of content that can potentially be publicly performed, Customer must secure permission from
ProQuest's Licensor and/or the copyright holder for any public performance other than reasonable
classroom and educational uses.
US2017 (rev. 7/17/2017) Page 6 of 8
Exhibit "A"
or shared online catalog (e.g., WorldCat) unless otherwise specified on the Order Form with respect
to a particular Service.
4. Scholar/Researcher Profiles. The data contained within scholar profiles are for use in facilitating
research and collaboration amongst colleagues. Neither Customer nor its Authorized Users may
export or otherwise exploit the scholar profiles for mass mailings or similar marketing purposes.
5. Electronic Resource Discovery, Access, and Management. For electronic resource discovery (e.g.,
Summon, 360 Link), access and/or management services, the Customer reserves all right, title and
interest in all Customer specific data it contributes to the Service (which may include but is not limited
to Customer created metadata, bibliographic information, holdings and circulation data) and grants
ProQuest permission to use such data in raw form for the limited purpose of operating and improving
the Service and such information may only be provided to third parties in aggregate form. Raw usage
data containing information relating to the identity of specific users shall not be provided to any third
party without Customer's permission. Provided that such access, use, and/or sharing does not violate
an express provision of this Agreement, Customer and its Authorized Users are permitted to: (a)
access the Service and information derived from the Service in order to discover, manage and
provide access to library resources owned or licensed by Customer, (b) create, store and retain any
reports and lists delivered by the Service, (c) share data about Customer's own library holdings that
is retrieved from such Service with third party applications, so long as prior written notice is provided
to ProQuest and all pricing information is kept confidential to the fullest extent permitted by applicable
law; and (d) display metadata, bibliographic and holdings information in the library catalog available
on Customer's library website.
6. Library Catalog Enrichment Service. For library catalog enrichment Services (e.g., Syndetics),
Customer may use the enrichment elements for the sole purpose of augmenting Customer's own
library OPAC or website. Customer may not convert Service metadata records into MARC format,
nor distribute or display the enrichment elements in any third party applications, catalogs or websites.
7. Purchased Content. For perpetual archive licenses ("PAL") (as specified on the ProQuest Websites
or Order Form), Customer pays a one-time fee for a perpetual license to the designated materials
(the "Purchased Content"), and an annual "Continuing Service Fee."
a) Perpetual License. The License to Purchased Content and any updates Customer
receives is perpetual, and may only be revoked if Customer materially breaches this
Agreement, or if the licensed materials contain errors or could be subject to an
infringement or other adverse claim by a third party.
b) Continuing Services. In consideration of the Continuing Service Fee, ProQuest will
provide Customer and its Authorized Users with online access to the Purchased
Content, plus any included updates, on a proprietary platform designed to enhance the
research experience (a "ProQuest Platform"). ProQuest will maintain systems and
technology that help Customer comply with use restrictions and security standards
required by ProQuest's licensors.
c) File Delivery. If Customer loses the ability to access its Purchased Content online
through ProQuest (e.g., if ProQuest discontinues online access services), or if the
Purchased Content is otherwise eligible for local loading, Customer may obtain digital
copies upon certifying that it will secure and restrict use of the Purchased Content as
contemplated under this Agreement, using systems and technology at least as
protective as ProQuest's. In the case of Audio, any local access must be restricted by
DRM and be limited to one (1) simultaneous user (unless the Customer tracks the
necessary playbacks and makes all royalty payments to copyright holders for
US2017 (rev. 7/17/2017) Page 7 of 8
Exhibit "A"
mechanical and performance rights). All use of the materials delivered continue to be
subject to this Agreement. File transfer costs, if any, are Customer's responsibility.
d) Locally Loaded Purchased Content - Data Mining. Subject to any content -specific
restrictions, Customer and its Authorized Users may extract and compile data from
locally -loaded copies of the Purchased Content solely for Customer's teaching, learning,
and research purposes.
8. Acquisition Models. For certain Services, Customer may elect to have user activity trigger the
purchase of content. Purchase preferences and Service eligibility for these models are described on
the ProQuest Websites. Examples of these types of purchase models include Patron Driven
Acquisition (PDA), Demand Driven Acquisition (DDA), Evidenced Based Acquisition, Access -To -
Own (ATO), and Build By Choice.
9. Analytics. Some Services contain library collection analysis capabilities related to library holdings, or
functionality that allows Authorized Users to create reports, lists, or alerts. Customer and Authorized
Users may create, download, store and retain any such analytics or lists delivered by the Service.
ProQuest may use library holdings and other information in the Service for comparison and metrics
purposes and in order to better understand the customers' needs.
10. Restrictions. Except as expressly permitted above, Customer and its Authorized Users shall not:
a) Translate, reverse engineer, disassemble, decompile, discover, or modify ProQuest's
software;
b) Remove any copyright and other proprietary notices placed upon the Service or any
materials retrieved from the Service by ProQuest or its licensors;
c) Circumvent any use limitation or protection device contained in or placed upon the Service
or any materials retrieved from the Service;
d) Perform penetration tests or use the Service to execute denial of service attacks;
e) Perform automated searches against ProQuest's systems (except for non -burdensome
federated search services), including automated "bots," link checkers or other scripts;
f) Provide access to or use of the Services by or for the benefit of any unauthorized school,
library, organization, or user;
g) Publish, broadcast, sell, use or provide access to the Service or any materials retrieved from
the Service in any manner that will infringe the copyright or other proprietary rights of
ProQuest or its licensors;
h) Use the Service to create products or perform services which compete or interfere with those
of ProQuest or its licensors;
i) Text mine, data mine or harvest metadata from the Service;
j) Communicate or redistribute materials retrieved from the Service; or
k) Download all or parts of the Service in a systematic or regular manner or so as to create a
collection of materials comprising all or a material subset of the Service, in any form.
1) Store any information on the Service that violates applicable law or the rights of any third
party.
US2017 (rev, 7/17/2017) Page 8 of 8
ROUND ROCK
TEXAS
City of Round Rock
Agenda Item Summary
Agenda Number:
Title: Consider executing an Agreement with ProQuest LLC for the purchase of
electronic newspaper materials for the Library.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 2/12/2021
Dept Director: Michelle Cervantes, Director
Cost: $27,891.62
Indexes: General Fund
Attachments: ProQuest Newspapers 3 yrs 020521
Department: Library Department
Text of Legislative File CM-2021-051
Agreement with sole source provider, ProQuest LLC, for thirty-six (36) months for the purchase of
electronic newspaper materials for the Library. Agreement to commence on 2/1/2021.
Cost: $27,891.62, paid annually, yr 1, $9113.72; yr 2, $9295.99; yr 3, $9,481.91
Source of Funds: General Fund
City of Round Rock Page 1 of 1