CM-13-11-204ROUND ROCK TEXAS
PURPOSE. rit PROSPERITY
City of Round Rock
Agenda Item Summary
Agenda Number:
Title: Consider executing a Subscription Agreement with Library Ideas, LLC for
public access to their downloadable Music Service.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 11/1/2013
Dept Director: Michelle Cervantes
Cost: $10,150.00
Indexes: General Fund
Attachments: CMAF Freegal Music Sharing, Freegal Order Form with price -a, USA
Freegal subscription agreement -1
Text of Legislative File CM -13-11-204
Freegal is a downloadable music service which provides 3 free songs to Round Rock Library cardholders each
week. There is no software to download, and there are no digital rights management (DRM) restrictions. About
3 million songs, including Sony Music's catalog, are available.
Staff Approval
City of Round Rock Page 1 Printed on 10/31/2013
CONTRACT APPROVAL FORM FOR CITY MANAGER ACTION
Required for Submission of Specific City Manager Items
Department Name: Library
Project Name: Subscription Agreement
Project Mgr/Resource: Michelle Cervantes, Director ContractorNendor: Library Ideas, LLC
x❑City Manager Approval
CMA Wording
Consider executing a Subscription Agreement with Library Ideas, LLC for public access to their downloadable Music Service.
Approval
X❑ Employee EE Bowden Date October 25, 2013
Notes/Comments
USA FREEGAL MUSIC
SUBSCRIPTION AGREEMENT
THIS DOWNLOAD SUBSCRIPTION
AGREEMENT (this "Agreement") is made by
d betwee
n[a 1C 'w\OkiC Li , a
Tpxck5 state)Public Library maintdining a
physical address at
,110 1=. ka:,'n `D\reet- ,-18 L},
hereafter referred to as (the "Library") and
Library Ideas, LLC, a Delaware media company
located at P.O. Box 9, Vienna, Virginia 22183
USA, hereafter referred to as (the "Company").
All parties to this Agreement may, from time to
time, be referred to as (the "Parties").
RECITALS
WHEREAS Company has licenses for a
media service specifically targeted to public
libraries which provides the Patrons of these
institutions access to a site to download music
legally via Company's FreegalTM music (the
"Service").
WHEREAS Company wishes to sell a
subscription and include the right to use the
Service to the Library subject to the terms and
conditions described in this Agreement.
WHEREAS Library desires to purchase a
subscription and use the Service from Company
subject to the terms and conditions described in
this Agreement.
NOW THEREFORE in consideration of
the provisions contained in this Agreement and
for other good and valuable consideration, the
receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
ARTICLE I.
Definitions
Section 1.01 Definitions. The terms defined
within this Agreement have the respective
meanings attributed to them throughout this
Agreement or in this Article I. Any defined term
may be used in the singular and in the plural
forms, as appropriate in the context.
Library Agreement 2/12/2010 v Final
c.'�,k-12 1 -2 c'`�
Section 1.02. "Service(s)" refers to the
Company's downloadable music services known
as FreegalTM Music and is related to Library's
ongoing access to and use of such service via the
Internet.
Section 1.03. "Effective Date" Unless otherwise
agreed to in writing by the Parties, the "Effective
Date" of this Agreement means the date the
service is available for use by Library Patrons.
Section 1.04. "Subscription Agreement" means
the right to access Company's downloadable
Music Service ("Subscription Agreement Price")
expiring after a specified length of time
("Subscription Agreement Term").
Section 1.05. "Subscription Agreement Price"
means the price established for the Subscription
Agreement Term.
Section 1.06. "Subscription Agreement Term"
refers to the right to access Company's
downloadable Music Collection for a limited
period of time. Except as otherwise specifically
agreed to in writing by the Parties, the
"Subscription Agreement Term" of this
Agreement commences on the Effective Date and
continues in effect for one year.
Section 1.07. "Library's Website Portal" means
the Website operated by the Library and open to
its Patrons in order to access and use all materials
of the Library.
Section 1.08. "Company Website" means the
Website operated by Company and open to the
Library and its Patrons via the Library's own
website portal.
Section 1.09. "Patrons" mean Library's
registered, authenticated cardholders, and all
members of the public who have been issued a
library card, including onsite and offsite users.
Section 1.10. "License" means a revocable
permission to commit some act that would
otherwise be unlawful such as downloading the
copyrighted works of the rightful owner.
1016
Section 1.11. "Personal Use" is defined, for
purposes of this Agreement, as the use which is
of a personal nature and used only by the person
who is authorized to use such media, i.e. a
downloaded song, and prohibits the sharing of
said media with the public or placing such media
in the public domain, i.e sharing songs on the
Internet. This Agreement adopts the definitions
of "personal use" as established by the Courts
and U.S. Copyright laws.
ARTICLE II.
FreegalTM Music Services Terms and Conditions
Section 2.01. Subscription Agreement Price.
Company will charge Library a year's
Subscription Agreement Price for the right to
access the Company's Service unless otherwise
indicated. The price is described herein in
Schedule A.
Section 2.02. All Purchases are Final. All
purchases of subscriptions are final. No refunds
are allowed unless the product is not delivered.
Section 2.03. Payment Due Date. All fees and
charges are due and payable 30 days from the
date of the related invoice. The Company may
deny Library and its Patrons access to Library's
Company Website until the unpaid invoice is
paid in full.
Section 2.04. Limits on Music Downloads.
Registered Patrons of Library may each
download up to three (3) downloads per week.
Section 2.05. Termination.
Subsection 2.05.A. Termination by Expiration of
Term. This Agreement will terminate
automatically at the end of a one-year
Subscription Agreement Term unless otherwise
mentioned. on Schedule A. If Library wishes to
renew for an additional year, Library may contact
Company at any time during or after the end of
the current Subscription Agreement Term and
renegotiate a new Subscription Agreement Term.
Subsection 2.05.B. Termination for Breach of
this Agreement. Either party may terminate this
agreement for cause at any time by providing the
other party with prior written notice of the
occurrence of any of the following events: (1) a
party fails to timely pay any amounts due and
payable, provided that the nonpayment, is not
cured within 10 days of the notice; or (2) a party
breaches any Material provision of this
Agreement provided that the breach cannot be, or
is not, cured within 30 days of the notice.
Material terms of this Agreement are Sections
2.03, 2.05, 2.06, 2.07, 2.08, 2.09, 2.12, 3.01, and
3.02.
Section 2.06. Provision of Audio Services.
During the Subscription Agreement Term, the
Company will establish, host, and administer
Company's Website. Library and Patrons will
access Company's music collection through
Library's Website Portal. The Library and its
Patrons will access the Library's audio music
collection either inside the library (if allowed and
enabled) using the Library's own Internet
connection or remotely from within the United
States. Company will deny access to anyone
attempting to access Service from outside the
United States. Service will have reasonable
periods of scheduled maintenance in which the
Service is not available. Otherwise Service will
be available at commercially accepted standards
of operation.
Section 2.07. Library and Member Usage -
Limiting Access Measures. The Library will be
solely responsible for authenticating which
Patrons will have access to the Library's Website
under this Agreement. However, Library Ideas
will facilitate this process. Except for standard
fees charged by Library to its Patrons, the
Library will not charge any Patron for the use of
the Company's Website.
Section 2.08. Library's Company Website. The
use of the Company's Website by the Library and
its Patrons will be governed by the End User
Agreement. If Patrons violate the End User
Agreement, Company reserves the right, in its
sole discretion, to suspend the Library's or the
Patrons's access to and use of the Company's
Website. The Library acknowledges and agrees
that, in the case of repeated or persistent
violations, the Company may terminate this
Library Agreement 2/12/2010 v Final 2of 6
Agreement and issue a pro -rated refund for
unused service.
Section 2.09. Copyrighted Works. Library
acknowledges and agrees that the copyright to
each song is owned by the respective publisher
thereof. All Rights Reserved.
Section 2.10. No Copyright Conveyed Upon
signing this Agreement, Library will receive an
annual license to access the Company's Music
Collection via the Library's Website Portal and
download the music the Library has purchased
access to. Library will not acquire any other
rights in the Company or the Company's Music
Collection and/or its Service.
Section 2.11. Offensive Content. Company
makes no warranty and no representations against
claims of offensive content by Library Patrons
and does not have the ability to remove a song
for just one library and not all the libraries
participating in the Service.
Section 2.12. Publicity and Marketing. Library
agrees to use only the Publicity and Marketing
Material given to it by the Company unless
otherwise approved in writing by the Company.
The Company will send Library a template press
release and marketing kit in advance of the
Library going live with the Service. Library will
make no public statements on or off the record
regarding the financial terms of this service
unless required by law. The terms of this
Agreement are Confidential, except where
disclosure is required by law. The name of the
Service is the FreegalTMMusic Service, and the
Library will not promote the Service under any
other name.
ARTICLE III
Music Subscription Agreement Services
Section 3.01. Member Access & Clean Sweep
Protocols. For all Library computers capable of
accessing the Company's Website, Library will
implement a Clean Sweep or similar type
program which functions to log -out or wipe clean
the information existing on the computer screen
of the previous user.
Section 3.02. Reports. Payment of the
Subscription Agreement Fee entitles Library to
the standard reports offered by Company which
gauges the use of Company's Music Collection.
ARTICLE IV
General Provisions
Section 4.01. Governing Law. This Agreement
(and any dispute, controversy, proceedings or
claim of whatever nature arising out of this
Agreement or its formation) shall be governed by
and construed in accordance with the laws of the
State of Delaware.
Section 4.02. Notice to Parties. All notices from
either party to the other under this Agreement
shall be sent by telegram, overnight courier
service, or by registered or certified mail, return
receipt requested, or hand -delivered with signed
receipt. Whenever in this Agreement reference is
made to a Notice to be given, such Notice shall
be deemed to have been given when mailed,
wired, or hand -delivered to the proper notice
address of the party to be notified. Notices shall
be addressed in care of the individual
representatives identified herein and mailed to
the address designated for each Party and listed
in the Signature Page of this Agreement. Either
party may, from time to time, designate a
different address for receiving Notices by giving
the other party notice of the change of address in
the manner above specified.
Section 4.03. Assignment. Library may not sell,
assign, transfer or convey this Agreement or any
rights and obligations thereto. However,
Company may assign or transfer this Agreement
to an affiliated company or to a third party that
acquires substantially all of its assets upon
written notice to the Library.
Section 4.04. Successors & Assigns. This
Agreement shall be binding on and inure to the
benefit of and be binding upon the respective
heirs, executors, administrators, successors and
assigns.
Section 4.05. Section Partial Invalidity. If any
term, covenant, or condition of this Agreement or
the application thereof to any person or
circumstance shall, to any extent, be invalid or
Library Agreement 2/12/2010 v Final 3 of 6
unenforceable, the remainder of this Agreement,
or the application of such term, covenant, or
condition to persons or circumstances other than
those as to which it is held invalid or
unenforceable, shall not be affected thereby and
every other term, covenant, or condition of this
Agreement shall be valid and be enforced to the
fullest extent permitted by law.
Section 4.06. Separability. Each and every
covenant or understanding contained in this
Agreement shall, for all intents and purposes, be
construed as a separate and independent covenant
and agreement. If any term or provision of this
Agreement or the application thereof to any
person or circumstance shall to any extent be
found invalid and unenforceable by a court of
competent jurisdiction, the remainder of this
Agreement, or the application of such term or
provision to persons or circumstances other than
those to which it is valid or unenforceable, shall
not be affected thereby and each term and
provision of this Agreement shall be valid and
shall be enforced to the extent permitted by law.
It is the intention of the parties hereto that if any
provision of this Agreement is capable of two
constructions, one of which would render the
provision void and the other of which would
render the provision valid, then the provision
shall have the meaning which renders it valid.
Section 4.07. Headings. The headings to the
various paragraphs and/or Sections of this
Agreement have been inserted for reference only
and shall not to any extent have the effect of
modifying, amending or changing the expressed
terms and provisions of this Agreement.
Section 4.08. Limited Warranty. Company
warrants that Company has the necessary
authority to license the Music Collection to
Library and, if applicable, to provide Services to
Library. Company warrants that it will use its
commercially reasonable efforts to provide such
Services as described in this Agreement.
Section 4.09. Limitation on Liability. Neither
party will claim special, incidental, indirect, or
consequential damages; including lost profits for
breach of this Agreement. This limitation will
also apply to any claims brought against
Company's content providers. Remedies are
limited to claims for amounts due, for injunctive
relief only as provided, or for direct damages. A
party's aggregate liability for any and all claims,
losses, liabilities, and demands arising, whether
for breach of contract, in tort or otherwise, are
limited to the total amount of Subscription
Agreement Fees paid by Library to the Company
during the 12 month period immediately
preceding the date on which the claim first arose.
Section 4.10. Force Majeure. Neither party will
be liable for, or have the right to terminate this
Agreement as a result of, any delays or failures to
perform any of its obligations under the
Agreement to the extent that the delays or
failures are due to circumstances beyond its
reasonable control, including without limit acts
of God; strikes; riots; acts of war; power failures;
and functions or malfunctions of the Internet,
telecommunications services, firewalls,
encryption systems, and security devices; or
governmental regulations imposed after the
Effective Date.
IN WITNESS WHEREOF the parties
hereto by and through their authorized agents,
have duly affixed their signatures under seal as of
the date shown herein.
Library Agreement 2/12/2010 v Final 4of 6
[SIGNATURES TO FOLLOW]
Company:
LIBRARY IDEAS, LLC
Date: 1
3
Address:
P.O. Box 9
Vienna, Virginia 22183 USA
Library Agreement 2/12/2010 v Final $ of 6
Library:
3I.)01IC\ a 4\\CA �\OfCtiv
Name of Library
By: /<� �����.
Aut orized Ag Representative
Print Name
Date:
Address:
E E. S\YPet-
1
•
SCHEDULE A
Subscription Agreement Price
(Attach order form)
Library Agreement 2/12/2010 v Final hof 6
eega
4.0
Freegal Music 4.0 Includes:
• 7 million songs (by the end of 2013)
• 8,000 music videos
• Streaming Option at an extra cost
Library
IIlideas
P.O. Box 9
Vienna, VA 22180
Phone: 571.730.4300
Fax: 571.730.4305
Email: orders@libraryideas.com
www.Iibraryideas.com
Go Live Dates:
❑✓ As Soon As Possible:
0 No Later Than:
Setup Completion Date:
Complete the order form below and email to orders@libraryideas.com
Date: 10/11/2013
Sales Rep: ADAM CLAY
Contact Information:
1) Library Name Round Rock Public Library
Street Address* 216 E. Main St.
Round Rock TX 78664
City: State: __ Zip Code:
2) Business Contact: Theresa Faris Collection Development & Technical Services Manager
Email Address: tfaris@roundrocktexas.gov
Phone; (512) 218-3283
3) Technical Contact (Lk -4:1S Sat4c6
Email Address: CSauatt'C foL.t�d roc �,(S Jo I'
Phone 512-2-IF-i0L2L1
4) Bill To (if different):
Street Address:
City:
Purchase Order Number:
State: Zip Code:
co ✓❑ Subscription Plan Setup Fee f 150.00 Total: 0 Freegal Per Usage Setup Fee: 150 00
p Term/Length: 12MNT l Price. s 10,000 J S 10,150 Downloads: '# Price
EL
p Does the library allow non-residents to obtain library card/access: Category.
cf If Yes, describe under what conditions:
G
in ❑ Renewal
UA ONLY
Notes:
UA ONLY
0 Renewal
Total:
Authorized Signature: Date- 10' /C-/ 3
Printed Name: _f I h t(e 5A Ki n s
Title: Co it toy-) e ���rherl
Kokate-