CM-2023-122 - 6/2/2023Amended and Restated
hoopla° Digital Media Agreement z
This hoopla Digital Media Agreement ("Agreement') �s made as of this- day Q.
20,W("Effective Date") by and between i _ e "Library"), and
Midwest Tape, LLC � � 4
WHEREAS, Midwest Tape's hoopla Digital Media Platform ("hoopla," the "Platform," or the "hoopla
Platform") allows participating libraries to provide their users with access to digital media content using
smart phones, tablets, computers, streaming devices and web browsers, and
WHEREAS, the Platform is designed to be accessible 2417 and offers various licenses to media content
in multiple formats, including, without limitation, movies, television programs, music, audiobooks, eBooks,
and comics, subject to circulation limits (if any) and other settings established by the user's library system;
and
WHEREAS, the Library wishes to make hoopla available to its authorized users ("Patrons").,
NOW THEREFORE inconsideration of the promises and mutual covenants contained in this Agreement,
and for good and valuable consideration, the receipt and sufficiency of -which are hereby acknowledged,
the Library and Midwest Tape (each a "Party" and collectively the "Parties") agree as follows'.
D>a=iNinONs. The following definitions apply wherever these terms appear in this Agreement,
including the Appendices
1.1 "Digital Media Platform" means one or more computer programs or applications owned,
maintained, and/or used by Midwest Tape to provide access to Digital Titles and/or to allow the
Library to manage its offering and Patron use of Digital Titles, including the hoopla Application,
hoopla Website, and Library Administration Website.
1.2 "Digital Titles" means any and all digital media content that Midwest Tape makes
available to the Library and its Patrons via the Digital Media Platform during the Term of this
Agreement.
1.3 "Flex Borrow" or "Flex Circulation" means an OCOU Circulation, as defined in
Appendix 2 to this Agreement. As set forth in the attached Appendix 2. a Flex Borrow occurs
when a Patron uses the hoopla Application or hoopla Website to borrow a Digital Title that is at
that time available to that user in the form of a one-copy/one-user ("OCOU") license owned or
controlled by the Library.
1.4 "Flex License" means a cne-copy/une user license ("OCOU License"), as set forth in the
attached Appendix 2.
1.5 "hoopla Application" means one or more computer applications maintained, owned,
and/or used by Midwest Tape to provide access for limited periods to Digital Titles (including the
ability to browse, borrow, stream, download, and/or return such titles) using certain streaming
devices. smart phones, tablets, and/or other mobile devices.
1.6 "hoopla Website" means a Midwest Tape Website (currently www hoopladigital.com)
that may be used to access, browse, borrow, stream, and/or return Digital Titles
2oz3 � IZ.z
9/2022US PPU/OCOU Page 1
1.7 "Instant Borrow" or "Instant Circulation" means a PPU Circulation, as defined in
Appendix 2 to this Agreement Asset forth In the attached Appendix 2, an Instant Borrow occurs
when a Patron uses the hoopla Application or hoopla Website to borrow a Digital Title (or to obtain
access to a "Binge Pass') pursuant to a pay -per -use ("PPU') license that is paid for by the Library.
1.8 `Instant License" means a pay -per -use license ("PPU License'), as set forth in the
attached Appendix 2.
1.9 `Intellectual Property Rights" means all rights in and to patents, trademarks, service
marks, trade names, copyrights, trade secrets, technology. software, designs, algorithms, know-
how, as well as moral rights and all other intellectual and proprietary rights of any type under any
applicable laws.
1.10 "Library Administration Website" means one or more Midwest Tape website(s)
(currently available at www.midwesttapes.com) that may be accessed and utilized by the Library
to obtain OCOU Licenses, manage content available to Patrons in the Platform, and administer
Library policies in regard to Patron use of the Platform.
1.11 "Library Online Catalog" means the website(s) owned, maintained, and/or used by or
for the Library for the purpose of providing information to Patrons and/or the general public about
the Library and its various content offerings, policies, objectives, initiatives, and procedures.
1.12 "Marks" means any trademarks, service marks, trade names, logos, designs, icons,
characters, cover art, styles, trade dress, or other indicators of source associated with any Digital
Titles, Including without limitation all translations or transliterations of the foregoing in any
language, or any colorable imitations or modified versions thereof.
1.13 "Midwest Tape" means Midwest Tape, LLC and any of its parents, subsidiaries, or
affiliated entities that are engaged in the business of selling and distributing media content in
digital form to libraries and library users via the Platform.
1.14 "Pre -Owned Content" has the meaning set forth in Appendix 2.
1.16 "Service Partners" means any third parties that provide digital storage, webhosting, IT
services, data analysis and processing, or distribution or other services to Midwest Tape in
connection with the Platform.
1.16 "Title Summary and Promotional Data" means, with respect to each Digital Title, the
following information and data that is made available to Library pursuant to this Agreement: (i)
title; (ii) author(s), publisher, illustrator(s), narrator(s), actor(s), director(s), producer(s), studio(s),
and similar descriptive information; (III) if commercially used, the digital object identifier; (iv)
narrative description or summary of the work; (v) cover art and image, graphics, and other images;
(vi) copyright notice; and (vii) any other identifying information.
1.17 "Vendor" means any supplier to Midwest Tape of (1) Digital Title(s); (ii) Title Summary
and Promotional Data; and/or (iii) technology or services necessary for Midwest Tape to provide
the Platform to the Library.
2. Library RIGHTS & OBLIGATIONS.
9/2022US - PPU/OCOU Page 2
2.1 Rights. During the Term, and subject to all the terms and limitations set forth in this
Agreement, Midwest Tape grants to the Library the non-exclusive and non-transferrable right to
display and access the Platform and Title Summary and Promotional Data for the limited purpose
of: (a) allowing Patrons to access, view, and borrow Digital Titles through the Platform and
pursuant to this Agreement; (b) promoting awareness and authorized use of the Platform,
including via postings on the Library Online Catalog; and (c) establishing and implementing
Library -specific policies in regard to use of the Platform by the Library and Patrons, consistent
with this Agreement and the requirements of the Platform.
2.2 Limitations. Except for the limited, non-exclusive, non-transferrable rights expressly
granted to Library under this Agreement, Library shall have no right in or to, or ownership of, the
Platform, Digital Titles, hoopla Application, hoopla Website, Library Administration Website,
Marks, Title Summary and Promotional Data, or any other artwork or materials delivered by or on
behalf of Midwest Tape. The Library shall have no right to access, use, modify, or reproduce any
portion of any source code relating to the Platform, or to make, sell, or distribute any variations or
derivative works of the Platform. The Library agrees to the support and protection of Intellectual
Property Rights (including but not limited to copyright and trademark protections), to discourage
copyright or trademark infringement, to use its best efforts to prohibit Patrons or others from
engaging in such infringement (including by immediately notifying Midwest Tape of any known or
suspected violations of Intellectual Property Rights relating to mse of the Platform or the Digital
Titles), and to refrain from facilitating such activity. In addition, the Library will comply with all
other requirements communicated by or on behalf of Midwest Tape with respect to any Intellectual
Property Rights and the Marks.
2.3 No Public Performance Rights. The Library shall have no public performance rights in
the Digital Titles under the terms of this Agreement. Accordingly, the Library may not offer any
Digital Titles as a performance to Patrons or the general public, sponsored by the Library or
otherwise.
2.4 General Obligations. To facilitate the successful Introduction of the Platform to Patrons,
and the use of the Platform by Patrons, the Library shall: (a) regularly communicate to staff,
Patrons, and the general public served that the Platform is available to Patrons; (b) provide
suitable training opportunities to appropriate Library staff members, so that they understand the
Platform and can assist in the promotion and the use of the Platform by Patrons; (c) regularly
feature prominent links and references to popular Digital Titles and the hoopla Website on the
Library Online Catalog's homepage; (d) incorporate MARC record data regarding Digital Titles in
the Library's catalog to enhance the discoverability of key content available in the Platform; (e)
manage all funds designated or appropriated for use of the Platform; (f) participate in the
implementation of the Platform, including without limitation by providing Midwest Tape with
sufficient and accurate Information to identify Patrons of the Library who are authorized to utilize
the Platform; (g) provide Primary Support, as defined below; (h) perform requested linkage
between the Platform and the Library Online Catalog, as well as reasonable technical services to
support and maintain the Platform during the Term; and (i); notify Midwest Tape at least three (3)
business days before any change in any RSS links, ILS configuration, URL updates, or other
equipment or technology that could adversely impact the Platform and/or the use of the Platform,
including any changes that could Impact the process of Patron authentication.
2.5 Network Connectivity. The Library is responsible for providing a suitable network and
Internet system for integration of the Platform into the Library Online Catalog or other systems.
9/2022US - PPU/OCOU Page 3
2.6 Use of the Library Administration Website. The Library agrees that it is solely
responsible for managing its use of the Library Administration Website and using that website as
designed and in accordance with the Terms and Conditions posted on that website, including by
establishing, verifying, and maintaining any settings and controls regarding use of the Platform
by Patrons (e.g., limitations on circulations, content restrictions, reporting preferences, etc.).
2.7 Library Online Catalog. The Library is solely responsible for all aspects of catalog
integration, operation, training, support, and/or maintenance necessary for the operation of the
Library Online Catalog. This may include obtaining a SIP2 or similar protocol software license(s)
from a third -party vendor in order to support direct integration of the Platform with the Library's
own Library Online Catalog or other systems, as well as the cost for customized MARC records
it may obtain from a third -party supplier such as OCLC. The Library shall keep its hoopla account
information current with Midwest Tape and promptly alert Midwest Tape to any significant
changes relating to the Library Online Catalog, including but not limited to changes of personnel
that could impact the support, functionality, and/or performance of the Platform.
2.8 Primary Support. The Library is responsible for providing its Patrons with "Primary
Support," which includes assisting Patrons with the use of the Platform, responding to Patron
questions regarding the functionality and technical requirements of the hoopla Website and the
hoopla Application, and helping Patrons with the process of communicating with Midwest Tape
where necessary and appropriate to obtain additional support and technical assistance.
2.9 No Warranties or Representations to Others. The Library represents and agrees that,
except for the representations, warranties, and promises made to Midwest Tape in this Agreement
or under the Terms and Conditions applicable to the Library Administration Website, neither the
Library nor any of its employees, agents, or others acting under its direction has made or will
make any representations or warranties, express or implied, to anyone concerning the Platform,
Digital Titles, hoopla Application, hoopla Website, and/or Library Administration Website.
2.10 Compliance with Applicable Laws and Regulations. The Library will comply with all
applicable laws, ordinances, rules, regulations, and other legal requirements in connection with
its performance under this Agreement.
2.11 Costs and Expenses. The Library is responsible for all of its own expenses and costs
related to its performance under this Agreement. Midwest Tape has no obligation to reimburse
the Library for any expenses or costs incurred by the Library related to this Agreement or to the
performance of the Library's obligations, including but not limited to any expenses and costs
incurred in the preparation, systems integration, or use of the Digital Media Platform, Library
Administration Website, hoopla Website, and hoopla Application.
3. FEES, PAYMENTS & REPORTING.
3.1 Invoicing and Payment. Except for purchases of Flex Licenses (which will be invoiced
to the Library by Midwest Tape after each purchase), Midwest Tape will invoice the Library by
Invoice Period. "Invoice Period" means a calendar monthly period in which transactional activity
occurs. Payment of each invoice will be due within thirty (30) days from the date of the invoice.
During any period in which Midwest Tape is holding an Advance from the Library, Midwest Tape
will apply the Advance funds toward payment of the invoice upon issuance.
9/2022US - PPU/OCOU Page 4
3.2 Reporting, Through the Library Administration Website, the Library will have access to
certain reports summarizing Patron usage, circulation data, and purchase activity for the Digital
Titles.
3.3 Taxes. The Library is required to provide a sates tax exemption certificate, if applicable,
to Midwest Tape as part of the on -boarding process. If the Library is not exempt or does not do
so, Midwest Tape will add (and collect) sales taxes to any purchases made pursuant to this
Agreement.
4. TERM AND TERMINATION.
4.1 Term. The term of this Agreement (the "Term`) begins on the Effective Date and continues
for a period of 24 months thereafter. Upon expiration of the Term, this Agreement will
automatically renew and the Term will be extended for successive renewal periods of 12 months
(each a "Renewal Term"), unless either Party has provided written notice of non -renewal to the
other party at least sixty (60) days prior to the end of the Term.
4.2 Termination. This Agreement may be terminated in either of the following ways:
By Notice. Either Party may terminate this Agreement, with or without cause, at the end
of the Term by providing the other Party with sixty (60) days` advance written notice prior
to the end of the Term.
Due to Breach. Either Party may suspend its performance or, at that Party's sole option,
terminate this Agreement by providing the other Party with written notice of such action in
the event of (i) the other Party's material breach of this Agreement, which breach continues
uncured for a period of thirty (30) days after written notice of such breach; or (ii) the
Library's failure to perform its payment obligations under this Agreement for a period of at
least thirty (30) days. If any period of such suspension exceeds 30 days, the non -
breaching Party may terminate this Agreement by providing the other Party with written
notice of such action.
Upon termination of this Agreement, the Library shall immediately (i) cease distribution and use
of the Platform, hoopla Application, hoopla Website, Digital Titles, Marks, Title Summaries and
Promotional Data; and (ii) pay all amounts due to Midwest Tape. Once the Library satisfies these
obligations, any unapplied portion of an Advance payment will be refunded within thirty (30) days.
S. MIDWEST TAPE RIGHTS & OBUGATIONS.
5.1 The hoopla Platform. During the Term, Midwest Tape and/or its Service Partners will
provide for the following: (a) hosting of and support forthe Platform as provided in this Agreement;
(b) designation of an implementation specialist ("hoopla Coordinator') to be available for customer
support to the Library in connection with the launch and implementation of the Platform; and (c)
Library access to the Library Administration Website, which offers tools to enable the Library to
manage use of the Platform, including in regard to its inventory, Patron borrowing limits, lending
policies, title blocking, ratings and user -advisory settings, usage dashboard, and reporting.
5.2 Ownership of Vendors' Intellectual Property. Subject to the provisions of this
Agreement, hoopla Vendors retain all of their Intellectual Property Rights in and to their Digital
Titles, Metadata, Marks, and Promotional Postings, artwork, and other property that may be
utilized or accessed in connection with the Platform.
9/2022US — PPU/4CDU Page 5
6.3 Ownership of Midwest Tam's Intellectual Property. As between the Parties, Midwest
Tape owns and retains all Intellectual Property Rights in and to the Digital Media Platform, hoopla
Application, hoopla Website, Library Administration Website, Midwest Tape and hoopla and
hoopla digital trademarks, and all other Midwest Tape intellectual property, including but not
limited to all modifications, updates, or improvements made thereto. The Library acknowledges
Midwest Tape's ownership of such Intellectual Property Rights.
6.4 Modifications to DiQitaf Media Platform. The Platform, hoopla Application, hoopla
Website, Library Administration Website, and other aspects and features of hoopla may be
modified at any time by Midwest Tape in its sole discretion, including, without limitation, in order
to develop, modify, or improve operations, performance, or functionality.
5.5 Addition, Removal, and Modifications of Digital Titles. Midwest Tape has the right to
take any or all of the following actions with respect to any Digital Title(s) at any time and in its sole
discretion: (a) add or remove Digital Titles to or from the Platform; (b) set or adjust the applicable
fees and charges, including, without limitation, PPU Circulation Fee(s), OCOU License Fees,
and/or other charges relating to the Platform and/or the media content available on the Platform;
(c) replace content files, Metadata, and/or Promotional Postings; and (d) edit or modify editorial
content or designs. The Library will be notified by email, the Library Administration Website, or
other means of major modifications to the functionality of the Platform.
5.6 Promotion of the Platform. Midwest Tape may, at its own expense and in its own
discretion, publicize the Platform and communicate with the general public and Patrons regarding
the availability, features, and use of the Digital Titles, Digital Media Platform, hoopla Application,
and hoopla Website.
5.7 Su2aort. To support the Platform, Midwest Tape will (a) maintain help files, information,
and other appropriate documentation and training materials; (b) undertake reasonable efforts to
help the Library perform its obligation to provide Primary Support to Patrons, including by offering
periodic training opportunities to Library staff, updating the Library regarding system changes,
and providing the Library with answers to "frequently asked questions" related to the Platform; (c)
supply activation support, including assisting with the implementation of any software, and
reasonable levels of continuing support to assist the Library in its use of the Platform; and (d)
make technical support personnel available for feedback, problem solving, and/or general
questions. Technical support services to the Library include: (i) reasonable efforts to identify,
correct, and/or circumvent errors in the Platform, hoopla Application, hoopla Website, and Library
Administration Website; and (ii) supplying updates, enhancements, and new versions of the
Platform as they become available (the "Secondary Support"). It is acknowledged and agreed that
Midwest Tape has no obligation to provide Primary Support to Patrons and any support provided
to Patrons will be in its sole discretion.
During the Term, Midwest Tape will use reasonable efforts to provide continuous service.
Permissible down time includes periodic unavailability due to matters such as: maintenance of
the server(s); installation or testing of software, public or private telecommunications services, or
internet nodes or facilities; and failure of equipment or services outside its control. Scheduled
down time will occur periodically and at times designed, in Midwest Tape's sole discretion, to
minimize inconvenience to hoopla users.
S. MISCELLANEOUS.
9/2022US- PPU/OCOU Page 6
6.1 Indemnities. Each Party ("Indemnifying Party") agrees to defend, indemnify, and hold
harmless the other Party and its parents, subsidiaries, and Service Partners from and against any
and all third -party claims, demands, suits, legal proceedings, and causes of action that arise out
of or relate to any breach by the Indemnifying Party of any of its representations and warranties
as stated In this Agreement (collectively, "lndemnifiable Claims'), including but not limited to all
damages, costs, expenses, reasonable attorneys' fees, judgments, and settlements resulting
from such lndemnifiable Claims; provided, however, that no lndemnifiable Claim may be settled
without the express written consent of the Indemnifying Party.
6.2 Indemnity Process. The Party seeking indemnification must provide prompt written
notice to the Indemnifying Party of any lndemnifiable Claim for which indemnification will be
sought. The Indemnifying Party may elect to control the defense and settlement of any
lndemnifiable Claims with counsel of its choosing. The Party seeking indemnification will
cooperate with the Indemnifying Parry's defense against the lndemnifiable Claims. If any
lndemnifiable Claim is covered in part but not entirely by a Party's indemnification obligation
hereunder, the Indemnifying Party will only be responsible for costs to the extent attributable to
the covered portion.
6.3 DISCLAIMER OF WARRANTIES. MIDWEST TAPE MAKES NO WARRANTIES OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTY OF MERCHANTABILITY, NON -INFRINGEMENT, OR FITNESS FOR A
PARTICULAR PURPOSE.
6.4 LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN
THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL. SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES,
INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOST BUSINESS OPPORTUNITY,
ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SUCH DAMAGES ARE
FORESEEABLE AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY THEREOF. WITHOUT RESTRICTION OF THE FOREGOING, MIDWEST
TAPE'S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL
FEES PAID BY LIBRARY TO MIDWEST TAPE DURING THE TWELVE MONTHS PRIOR TO
THE DATE THAT ANY CLAIM ALLEGEDLY AROSE.
6.5 Confidential Information. "Confidential Information" means any non-public information
of either Party that is disclosed to the other Party in connection with this Agreement either directly
or indirectly, in writing, orally, electronically, or by inspection of tangible objects, and that is either;
(a) designated in writing as "Confidential' at the time of disclosure orwithin five (5) days thereafter;
or (b) confidential by its very nature or that the receiving Party reasonably should know to be
confidential. Confidential Information includes, without limitation, the terms of this Agreement, any
and all non-public business plans, customer information, pricing, contract terms, available content
and sales, marketing and/or finances of the disclosing Party. Each Party agrees to hold the
Confidential Information of the other Party in confidence and to refrain from disclosing such
Confidential Information to any third party, except: (i) to the extent required to be disclosed
pursuant to governmental or judicial process, provided that notice of such process is promptly
provided to the disclosing Party in order that it may have every opportunity 10 intercede in such
process to contest such disclosure or seek an appropriate protective order; or (ii) to the receiving
Party's professional advisors and contractors on a need to know basis, provided that such
advisors and contractors are under an obligation to maintain the confidentiality of the Confidential
Information. Confidential Information is the property of the disclosing Party, and the receiving
Party will not be deemed by virtue of its access to Confidential Information to have acquired any
9/2022US - PPU/OCOU Page 7
right or interest in or to any such Confidential Information. This Section 6.5 shall not affect either
Party's right to use or disclose information that is not Confidential Information, including
information that is in the public domain or that the receiving Party can show was known to it
without any confidentiality obligation prior to the disclosure by the disclosing Party.
6.6 Assignment. Except as provided herein, neither Party may, by operation of law or
otherwise, assign, sublicense, or otherwise transfer any of its rights or obligations under this
Agreement without the prior written consent of the other Party, which may not be unreasonably
withheld or delayed. Either Party may assign, transfer, or otherwise delegate any or all of its
rights and obligations under this Agreement to any parent or, subsidiary entity, any successor
carrying on that part of the business to which this Agreement relates, or any purchaser of all or
substantially all of the assets or stock of such Party. Each Party may appoint contractors to
perform part of its obligations hereunder, provided that the Party remains fully responsible for
such contractor's performance. This Agreement binds, benefits, and is enforceable by and
against both Parties and their respective successors and permitted assigns.
6.7 No ices. Notices required by this Agreement must be sent by United States mail, as well
as by electronic mail (or by facsimile), directed as follows:
To Midwest TBpe:
Midwest Tape, LLC:
TQ LibraN:
r j�
1417 Timberwolf Dr.
- 4-C _
Holland, Ohio 4352$
info@midwesttapes.com
1 (800) 875-2785
_ �..' Z - 2- 0 i
6.8 Amendment. No amendment, modification, addendum, or revision to this Agreement is
valid unless it is in writing and signed by all Parties to this Agreement.
6.9 Arms-Lenath Negotiations. This Agreement was negotiated at arm's length with each
Party receiving advice from independent legal counsel, and has been executed and delivered in
good faith. It is the intent of the Parties that no part of this Agreement should be construed against
any Party because of the identity of the drafter.
6.10 Counterparts. This Agreement may be executed in counterparts, each of which taken
together constitutes one single Agreement between the Parties.
6.11 Entire AgreementlNon -Reliance. This Agreement constitutes the sole and entire
agreement between the Parties and supersedes and merges all prior agreements, proposals,
negotiations, discussions, and understandings between the Parties relating to the subject matter
of this Agreement. No Party has relied or can rely on any statement or representation that is not
expressly contained in this Agreement as an inducement to enter into this Agreement.
6.12 Force Maleure. No Party may be considered in default or to have incurred any liability
hereunder due to any failure to perform this Agreement should such failure arise out of causes
beyond its reasonable control, including, without limitation, work stoppages, fires, riots, accidents,
floods, storms, unavailability of utilities or fuel, Internet or other communication failures, or other
similar failures or occurrences. The time for performance will be extended for a period equal to
the duration of such conditions.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly
authorized representatives as of the Effective Date first written above.
ACCEPTED AND AGREED ACCEPTED AND AGREED
(TYPE LIf3RA !NAME) IVIIDWES TA E, C
By. By . ------
V rn
Print Name: 4 —4z—U�7( y Print Name-,
Print Title: �C' Y �' kI C�� Print Title jY�_[ TTJIr DT" C Lid __ __
Date Signed: _ Date Signed: IS
9/2022US - PPU/OCOU Page 9
Appendix 2
hoopla Licenses and Distribution Models
The chart below describes the distribution models ;ncluded in Midwest Tape's hoopla offering as of the
Effective Date, inc;uding the digital media licenses that are available via the Digital Media Platform.
License type
Circulations /
Borrows
PPU Way -Per Use)
An Instant Title is a work that is
available for simultaneous access by
multiple users Instant Titles may be
accessed vier PPU Circulations,
otherwise referred to as Instant
Borrows, each of which allows a user to
stream, download, and/or access the
chosen Instant Title, or collection of
Titles (e.g , a "Binge Pass", described
below), for a limited time that
terminates upon the expiration of a
fixed period or earlier "return" by the
user. instant Borrows are available
regardless of whether another user has
borrowed the same title for use at the
same time For each Instant Borrow, the
Library purchases oiie Instant License to
authorize that particular borrow A
"Binge Pass" is an Instant Borrow that
provides the borrower access to a
collection of titles, either directly
through hoopla or through a third -party
website nr application
All formats lauthobooks, eBooks,
Available comics, movies, television, music, and
formats magazines) Binge Passes are available
only for select titles and may not be
available for all formats
i A PPU-Circulation Fee is charged for
Payment each Instant Borrow The fees, Mitch
obligations are listed on the Library Administration
Website, vary by titre and format, and
are subject to change from time to time.
The fee is charged i egardless of whether
OCOU (One-Copy/One-User)
A Flex Title is only available to one user at
a time, via a digital OCOU Circulation,
otherwise referred to as a Flex Borrow. If
the Library has an available Flex License to
a Flex Title, a Patron may activate a Flex
Borrow and that license is digitally
checked out and considered "in use. 1
Other users cannot access that title during 1
that borrow unless (i) the Library has
purchased additional Flex Licenses to the
same title, one of which is available at that
time, or (ii) the same title also is available ;
as an Instant Title. A Flex Borrow allows a
user to stream, download, and/or access
the title for a limited time that terminates
upon the expiration of a fixed period or
earlier "return" by the user.
Currently available only for audiobooks
and eBooks.
t
Where available, Flex Licenses may be
ordered via the hoopla Digital Library
Administration Website. The costs of
these licenses vary by title and format.
Fees for Flex Licenses are invoiced after
each purchase (typically daily).
i
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(continued)
Borrow
priority
Metering
restrictions
Pre -Owned
Content
the borrowed content is actually
accessed, viewed, streamed, or
downloaded by the user, Fees for
Instant Borrows are invoiced monthly,
To optimize Libraries' media purchases,
Flex Borrows are priont zed over Instant
Borrows of Instant i ides when possible.
Therefore, if a User requests an Instant
Title, and at that time a Flex License to
that title is available, the borrow will be
fulfilled as a Flex Borrow and no PPU-
Circulation Fee will apply (Mote that
this pr:r.rity does not apply to Instant
Borrows of Binge ('asses. Users may
borrow Binge Passes regardless of
whether select titles within the Binge
Pass may be available as Flex Licenses.)
Same. To optimize Libraries' purchases,
Flex Borrows are prioritized over Instant
Borrows of Instant Titles when possible.
A Flex License may be either perpetual, or
N/A "metered." Some publishers do not offer
perpetual licenses, but instead offer
metered licenses. Metered licenses are
limited by time period and/or number of
permitted borrows, as described In the
Library Administration Website.
If the Library has acquired OCOU Licenses
from another source {Pre -Owned
Content), Midwest Tape may be able to
include them as Flex Licenses on hoopla
for the Library's use hereunder. The
Library is responsible for (1) providing an
accurate list of Pre -Owned Content for
N/A Midwest Tape's review (consistent with
Appendix 3), and (2) notifying the owner
and/or licensor of such Pre -Owned
Content when the Pre -Owned Content is
to be removed. The format to be used for
listing the Library's Pre -Owned Content,
including the required certification, is set
forth on Schedule 1 to Appendix 3.
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Appendix
_3
Procedure for Pre -Owned Content ("POC')
1. Library to provide inventory of POC
Prompdy on or after the Effective Date, Library shall provide to Midwest Tape a written inventory of Pre -Owned Content (if
any) that the Library has obtained prior to the Effective Date or otherwise outside the scope of this Agreement,
2, format of Inventory and additional „m„iion(.:cardingPUC
The written inventory shall be provided in table format as set forth in Part 1 of Schedule 1, or In another mutually agreeable
format, and shall include the following information, for each license comprising Library's Pre -Owned Content:
(1) the title, format (eBook or Audlobook), author(s), street date, publisher, ISBN number;
Q) the date of purchase of the license. and the license type (e.g., Perpetual license, Limited Borrows license, Limited Time
Period license, Limited Borrows & Time Period license);
13) the rights that Library has to that copy of the work, Including the term and expiration date (if any) of the license and any
other metering or other limitations on the term of the license (e.g., borrow limit), including the amount of time and/or
number of borrows already used, as well as number of borrows remaining available, for the license as of the date of
transfer; and
(4) the name and contact Information of the company or other entity from which Library obtained the license (or, if the
Library owns the copyright in a work, a statement identifying Library's ownership of such work).
Library agrees to work In good faith to effectuate the assignment and transfer of Library's rights In such Pre -Owned Content
to Midwest Tape, Including, but not limited to notifying the owner and/or licensor of such Pre -Owned Content when the
content is transferred. Upon request, Library also shall provide Midwest Tape with copies of any licenses, purchase orders,
agreements, or any other documents reflecting Library's purchase or license of any Pre -Owned Content.
Warranty by Library regarding POC (tights. Library represents and warrants that It owns the rights and licenses In and to the
Pre -Owned Content set forth in Schedule 1 to Appendix 3, and that unless specifically stated in the Schedule, Library is
authorized to assign or otherwise transfer such Pre -Owned Content to Midwest Tape as provided for under the terms of this
Agreement.
3. Assignment by Library of Rir;iits in Pt
As set forth on Schedule 1 to this Appendix 3, to the extent that Library has licensed any Pre -Owned Content, Library assigns
and transfers its rights In or to such Pre -Owned Content to Midwest Tape for the purpose of allowing Midwest Tape to store,
display, reproduce, grant rights of access to, convert, encode, distribute or otherwise administer and make such Pre -Owned
Content available to Patrons via the hoopla Platform, Similarly, If and to the extent that Library owns the copyright to any
content that may be made available to Patrons via the Digital Media Platform, Library hereby grants Midwest Tape a fully paid,
royalty -free license to include such content in the Digital Media Platform and to make such content available via the Digital
Media Platform without charge, and Library represents and warrants that such content does not Infringe the copyright,
trademark, or other rights of any third party To the extent that Library cannot assign or otherwise transfer Its rights in or to
any Pre -Owned Content to Midwest Tape, Library grants Midwest Tape the exclusive right to negotiate with the owner and/or
licensor of such Pre -Owned Content an Libi ary's behalf, to obtain an assignment, transfer, license or any other rights necessary
to allow Midwest Tape to store, display, reproduce, grant rights of access to, convert, encode, distribute or otherwise
administer and make such Pre -Owned Content avai able to Patrons via the Digital Media Platform.
4. Efforts to Include POC On lhr !1ooplii' .,,tt, to to the extent po"ible-
Upon receipt of the Library's inventory of Pre -Owned Content, Midwest Tape will work to assess the extent to which it can
include some or all of the Pre.Owned Cup filer t via the Platformn L.brary acknowledges and agrees that: (1) Midwest Tape's
ability to offer Pre -Owned Coment on the Niatio, m depends upon factors outside of Midwest Tape's control, including without
limitation the scope and assignability of itte Pee -Owned Content, and (11) Midwest Tape does not represent or warrant that
any or all Pre -Owned Content can or will be made available through the Platform. If Midwest Tape determines, In its $ole
discretion, that any Pre -Owned Content may be inade available to Library's Patrons on the Platform, Midwest Tapp will arrange
to provide such Pre -Owned Content subject to the terms and conditions set forth in Library's existing licenses for such Pre -
Owned Content or on such other terms and conditions that Midwest Tape may obtain from the owner of such Pre -Owned
Content.
9/2022US - PPU/OCOU Page 12
Schedule 1 to Appendix 3 of hoopla° Digital Media Agreement
Certified List of ire -Owned Content to be Transferred to Midwest Tape
Par 1 - Lit Format: library to provide a table, in Excel or CSV format, listing each OCOU License to be
transferred to Midwest Tape as Pre -Owned Content. The table shall include the fields shown below:
Library Name
Book Title
Format (eBook, Audiobook)
Edition .......�..�.... ._— ._� _
Series Name til applicable)
Author/Creator 1 —
Author/Creator 2 (;! op;)hcdhle)
Street Date -
Publisher
Vendor Y
Vendor Content ID
ISBN
Bib ID
License Number
Date Purchased _
License Type: (Perpetual, t.imitcd Borrows. Limted T me Period; limited Borrows &, Time Period)
License Period Star: date )if applicabtef ,.
License Period C,i ir,ctian r(jrrtr. (ii oppl:cdblc;
Borrows Permitted (d dt,r. j•.. -'i
Borrows Used (if ,ipplicable)�- —
Borrows Remaining;ii ,rap rou G; T ,
Part 2 - Delivery of List: Library to complete the table below prior to email delivery of list to Midwest Tope:
Fifen,irne: exact filename,inctr:dray/lice :enscrr• f_xlsx,.[stq J
Sent From: sender's name & Cnienf
To: [designate email address for receipt of POC Lists)
Date & Time: I use format: Februn: y 12. 2022 of approximately 2 22 P&I
Port 3 - Certification: To be completed and signed by an authorized representative of Library. Attach a copy
of this completed and signed Schedule 1 to the email noted in Part 2, above.
The list provided as set forth at,ovu i. ; ai ;he Gate Sel 100h Iselow, ,i complete and accurate account of the Library's Pre- Owned Content
as defined herein With respect io hw ;l.,neti!_O."Wit•;?rov exec he a o, �ubsegcert'y added by mutual written consent of the Parties. the
Library hereby assigns and lransiers lu :•ti•,i•,;tal tjuie any are,! all nphl;, line, and interests -n the licenses necessary in order to enable
Midwest Tape to make the Pre-Ov:neei 'Lu<ricnt ,rvoil,iole :u O ,stPar` % Patrons via the hoapla Platform, including as set forth In Section
2 and/or Appcndix 3 of the Agreenic:G ; he wide• •.n;ned i yr wics that lovy ,ire a representat•ve of the Library and duly authorized to make
the foregoing representations oil ,ts ne W
Signature: Iiae
Print Na.ne: t].ite
Library Name-
9/2022US - PP11/000U - Page 3 3
ROUND ROCK
TEXAS
City of Round Rock
Agenda Item Summary
Agenda Number:
Title: Consider executing an Amended and Restated Digital Media Agreement with
Midwest Tape, LLC for the purchase of the "hoopla" Digital Media Platform.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 6/2/2023
Dept Director: Michelle Cervantes
Cost:
Indexes:
Attachments: LAF - Restated and Amended Agreement with Midwest Tape for Digital Media
Platform 05 22 23, Amended and Restated Agreement 2023
Department: Library
Text of Legislative File CM-2023-122
"hoopla" digital service is a Midwest Tape proprietary design which provides libraries the only true
patron -driven acquisition model in which all digital media content (Audiobooks, ebooks, Comics, Movies,
TV and music) are available under one log -in and to every patron.
City of Round Rock Page 1 of 1