Loading...
2011-51 Digital Library Services AgreementRESOLUTION 2011 -51 • A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA, AUTHORIZING THE VILLAGE LIBRARY TO PARTICIPATE IN A DIGITAL LIBRARY RESERVE SERVICES AGREEMENT BETWEEN THE SOUTHEAST FLORIDA MUNICIPAL LIBRARIES DIGITAL CONSORTIUM AND OVERDRIVE, INC. TO PROVIDE ELECTRONIC BOOKS TO PATRONS OF THE VILLAGE LIBRARY; AUTHORIZING THE. VILLAGE MANAGER AND MEMBERS OF VILLAGE ADMINISTRATION TO EXECUTE ALL DOCUMENTS AND TAKE ALL ACTIONS NECESSARY TO ENSURE PARTICIPATION; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, working in conjunction with the Southeast Florida Library Information Network ( "SEFLIN"), the Southeast Florida Municipal Libraries Digital Consortium ( "SFMLDC ") is entering into a Digital Library Reserve Services Agreement ( "Agreement ") with OverDrive, Inc., the premier provider of digital media technology services to libraries; and WHEREAS, although not a member of SEFLIN, the Village has an opportunity to participate in the Agreement through SFMLDC for an additional fee in order to provide a -books to patrons of the Village Library; and WHEREAS, because a stand -alone contract between the Village and OverDrive would be cost prohibitive, the Village Council determines that it is in the best interests of the Village and its residents to waive the Village's purchasing procedures and authorize participation in the Agreement between SFMLDC and OverDrive, Inc. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA, as follows: Section 1. The foregoing recitals are ratified as true and incorporated herein. Section 2. The Village Council hereby approves the Village's participation in the Digital Library Reserve Services Agreement between the Southeast Florida Municipal Libraries Digital Consortium and OverDrive, Inc. at a total cost of $3,150, broken down as follows: $1,000.00 toward the cost of the service platform; $2,000.00 in credit toward the purchase of titles; and a $150.00 service fee because the Village is not a member of SEFLIN. The Village Council further approves enrollment in the OverDrive Advantage 2.0 program in order to allow the Village to purchase additional titles separate from the Consortium at a total cost of $1,000, broken down as follows: $500 for the enrollment fee and a $500.00 credit toward the purchase of titles. The funds for this purchase in the total amount of $4,150.00 shall be expended utilizing budged funds from Account No. A7927 -35445 (Electronic Resources). Section 3. The Village Council hereby authorizes the Village Manager and members of Village Administration to execute all documents and take all actions necessary to secure • participation, including, but not limited to the execution of a Library Participation Form for the Digital Library Reserve Services Agreement and the OverDrive Advantage 2.0 Enrollment Form. Page 1 of 2 • • Section 4. This Resolution shall be effective immediately upon adoption. PASSED AND ADOPTED THIS 10th DAY OF NOVEMBER 2011. (Village Seal) 9 0 D ATTESTn „ VILLAGE CLERK Page 2 of 2 MAYOR Digital Library Reserve Application Services Agreement 1. INTRODUCTION This Agreement is made and entered into this 10th day of October 2011 by and between OverDrive, Inc., (hereinafter referred to as "OverDrive "), a Delaware corporation, Valley Tech Center, Suite N, 8555 Sweet Valley Drive, Cleveland, OH 44125 USA and the Participating Libraries that join the Southeast Florida Municipal Libraries Digital Consortium, or other name as determined by Participating Libraries (hereinafter referred to as "Participating Librar(ies) "): Attached and incorporated in this Agreement are the following Schedules: Attached and incorporated in this Agreement are the following Schedules: Schedule "A -1 "— Digital Library Reserve Application Services and Fee Schedule Schedule "A -2" — Consortium Participation Fees Schedule `B" — Consortium Website Guidelines Schedule "C" — Library Participation Form for Consortium WHEREAS, OverDrive, Inc. is the authorized provider of digital media technology and services to libraries including those related to the management and copyright protection of content in eBook, audio book, and media in digital formats; and, WHEREAS, Participating Libraries are seeking to provide such services; and, WHEREAS Participating Library seeks to license the use of and deploy software products, technology and services including those licensed to OverDrive by Microsoft° Corporation, Adobe°" Systems Inc. or other vendors of Digital Rights Management ( "DRM ") technologies. THEREFORE, the parties agree as follows: 2. DEFINITIONS As used in this Agreement, the following definitions shall apply: 2.1 "Agreement" shall mean this Agreement between OverDrive and Participating Library, and all Schedules and attachments. 2.2 "Application Services" or "Application(s)" shall mean the Digital Library Reserve, OverDrive, Microsoft° Corporation, Adobe°" Systems Incorporated, Adobe Benelux, B.V. and any other third party products or services identified in this Agreement or Schedules attached to the Agreement. 2.3 "Application Services Fees" or "Annual Fees" shall be the amounts payable by Participating Library to OverDrive in accordance with the terms of this Agreement and associated Schedules. 2.4 "Consortium" or "Library" shall mean all of the Participating Libraries, collectively. 2.5 "Consortium Website" shall mean the Internet -based application that provides Patrons access to Digital Products operated in association with Digital Library Reserve and as a component of the Consortium's website address (URL). 2.6 "Content" or "Digital Products" shall consist of licensed digital titles available for loan to Patrons at the Library Website distributed using the Application Services. 2.7 "Digital Library Reserve" shall mean the integrated digital book collection and lending services utilizing OverDrive, Microsoft, Adobe or other third party software applications and services that relate to the Consortium Website for managing the Digital Products. 2.8 "Digital Library Reserve Guidelines" shall mean the terms and conditions of utilizing the Digital Rights Management Application Services. Digital Library Reserve Application Services Agreement- Southeast Florida Municipal Libraries Digital Consortium (FL) 1 02011 OverDrive, Inc. 2.9 "Effective Date" shall mean the date upon which the Consortium Website goes live. 2.10 "OverDrive" shall mean: OverDrive, Inc., a Delaware Corporation. 2.11 "Participating Librar(ies)" shall mean those libraries identified in Schedule "C" attached to this Agreement. 2.12 "Patron(s)" shall mean those persons that Participating Library authorizes to access, use, and connect to the Consortium Website via the Internet, and download products from or otherwise utilize the Application Services and/or access Digital Products from the Participating Library using the Application Services. 2.13 "Primary Support" shall mean services provided by Participating Library to its Patrons for its day -to -day support, technical aid, help and other assistance for Patron's use of the Consortium Website, Applications or for any issues arising from the use of the Consortium Website. 2.14 "Secondary Support" shall mean technical support services to be provided by OverDrive to the Participating Libraries including reasonable efforts to assist Participating Libraries in providing Primary Support, reasonable efforts to correct, fix, or circumvent errors, provide updates, enhancements, and new versions of the Application Services. 3. DIGITAL LIBRARY RESERVE APPLICATION SERVICES 3.1 OverDrive shall provide the Digital Library Reserve Application Services to Participating Libraries under the terms and conditions of this Agreement and the associated license agreements from its Digital Rights Management (DRM) technology or Digital Product and Content suppliers. This right is non - transferable and applies solely to the server -based operation, management and use of the Digital Library Reserve applications in unaltered, object code form. Nothing under the terms and conditions of this Agreement, including any of the Attachments and Schedules, grant any right to Participating Libraries to the use of, or access to, any Application Services source code. This grant does not include any right to reproduce the Application Services, to distribute copies or versions of any modules of the Application Services to any third parties including its Patrons, or to make and/or sell variations or derivative works of the Application Services. Sole ownership of copyrights and other intellectual and proprietary rights to the Application Services shall remain solely with OverDrive or its suppliers. 3.2 Participating Library assumes responsibility for providing a suitable network and Internet system for integration of Application Services into the Consortium Website or other systems. All parties acknowledge that any expenditures or commitments are made at the risk of the party making such expenditures or commitments. Participating Library agrees that it shall be responsible for its own expenses and costs under this Agreement and that OverDrive shall have no obligation to reimburse Participating Library for any expenses or costs incurred by Library in the preparation, systems integration, use of the Application Services, or for any performance of Participating Library's duties hereunder. 3.3 OverDrive will create and implement a Consortium Website for Consortium and Participating Library's use of the Application Services as detailed in Schedule "A -1" that will include search function (by title category, author, keyword), multiple categories with multiple listing option, auditing and reporting functions and access to a protected web portal to manage the Consortium's catalog of Digital Product. Digital Products are licensed to Consortium and Participating Library and are not sold. Subject to OverDrive's approval, which shall not be unreasonably withheld, OverDrive will incorporate the Consortium's name, logos and trademarks in accordance with design suggestions as provided by Consortium. Consortium will have the ability to manage and promote Digital Products from a password protected Digital Library Reserve administrative web portal 3.4 OverDrive may include Consortium and Participating Library logos and colors on the Consortium Website. OverDrive reserves the right to display its branding, trademarks, logos, and/or other third party marketing or promotional materials related to the Application Services on the Library Website. OverDrive will implement an inventory management system to permit Participating Libraries to browse, select and license rights to Digital Products in supported formats and as permitted by OverDrive's publishers and suppliers. OverDrive will create the appropriate download links from the Consortium's Website for the secure delivery of Content to authorized Participating Library Patrons. All Content available at the Consortium Website shall have at least a seven (7) day lending period, or other minimum lending period as otherwise required by suppliers or publishers of Content. Digital Library Reserve Application Services Agreement- Southeast Florida Municipal Libraries Digital Consortium (FL) 2 02011 OverDrive, Inc. 3.5 Florida Public Libraries that are in the service area of the Southeast Florida Library Information Network with Legal Service Area Populations under 100,000 shall be eligible to join Consortium, on a quarterly basis. Any current OverDrive customer (standalone system) shall not be eligible to join Consortium. Notwithstanding the foregoing, OverDrive shall have sole discretion to approve any and all new libraries that seek to join Consortium. Non -SEFLIN Participating Libraries may be subject to an administrative fee levied by SEFLIN. 3.6 Digital Library Reserve is for remote use only (outside of the Participating Library). Without the use of OverDrive Download Station software, Patrons and all other users of DLR cannot download Digital Content to any Participating Library computers or devices. Participating Library shall have the option to purchase an OverDrive Download Station Software license for each of its public workstations at all of its branch locations. 4. FEES AND PAYMENT 4.1 Participating Libraries shall pay Annual Fee in accordance with Schedules "A -2" and "C ". Participating Libraries shall make payments to OverDrive in U.S. funds. During the term of this Agreement Participating Libraries may select titles and material subject to standard terms and pricing. Participating Libraries shall make payments to OverDrive for Content selections within thirty (30) days of presentation of invoice. 4.2 The payment obligations stated in this Section are exclusive of any federal, state, municipal or other governmental taxes, sales taxes, duties, excise taxes or tariffs now or hereafter imposed on the production, storage, sale, transportation, import, export, licensing or use of the Application Services or for operation or sales activity of the Consortium Website. Such charges, shall be paid by Participating Library or, in lieu of payment of any tax, Participating Library shall provide an exemption certificate acceptable to OverDrive and the applicable authority. 5. COPYRIGHT PROTECTION, PATRON AUTHENTICATION AND DATA SECURITY During the Agreement Term and any renewal periods, Participating Library will reasonably cooperate with OverDrive to achieve OverDrive's and its Publishers' and suppliers' objectives of protecting certain intellectual property interests relating to OverDrive supplied Digital Products and Content. Participating Library shall establish policies and procedures to abide by the Digital Library Reserve Guidelines as described in the attached Schedule `B ". Participating Library shall keep appropriate documentation and systems information and provide OverDrive access to systems to validate total number of downloads of Digital Products and Content. Participating Library shall provide OverDrive access to a test Patron account for purposes of validating the systems' performance relating to the Application Services. Participating Library will reasonably cooperate with OverDrive to correct or adjust systems as may be required to compensate for any errors or omissions disclosed by such test. Any such test will be conducted by OverDrive at its own expense and during regular business hours and in such a manner as not to interfere with Participating Library's normal activities. Nothing in this Section shall entitle OverDrive to any patron data or information relating to the identity of Patrons accessing any components of the Application Services. 6. RESPONSIBILITIES OF PARTICIPATING LIBRARIES 6.1 Consortium will assign personnel with appropriate skills and expertise in computer, data processing, and related services to enable operation of the Application Services and the Consortium Website and to provide Primary Support. Consortium will use reasonable efforts to operate its Digital Library Reserve and Consortium Website in compliance with the terms of this Agreement and all Schedules. Upon launch of the service, all Participating Libraries shall include a direct hyperlink and/or logo linked to the DLR service from Participating Libraries' home page and other appropriate sub - pages. Such link or logo shall be featured no less prominently than other electronic resources or services including but not limited to EBSCOhost, Recorded Books, Ingram and 3M. Each and every Participating Library shall be required to complete and return a Participation Form (attached hereto as Schedule "C ") to OverDrive. 6.2 With the exception of the Application Services configured and hosted by OverDrive, Consortium is solely responsible for all aspects of catalog integration, operation, training, support and/or maintenance necessary for the operation of the Consortium Website. This may include requiring a Participating Library to obtain at its own expense a SIP, SIP2 or other similar protocol software license from a third party vendor to support direct integration of the Application Services with their Integrated Library System (ILS) as well as the cost for customized MARC records it may obtain from a third party Digital Library Reserve Application Services Agreement- Southeast Florida Municipal Libraries Digital Consortium (FL) 3 02011 OverDrive, Inc. supplier such as OCLC. Participating Library shall keep its Digital Library Reserve Account information current and alert OverDrive of any changes in its operation of its Consortium Website including but not limited to changes of personnel. Participating Library will use reasonable efforts to ensure that information or data relevant to the operation of the Consortium Website will be treated as required by applicable law and reasonable and customary commercial practices. 6.3 Participating Library shall keep its Digital Library Reserve Account information current and alert OverDrive of any changes in the operation of Consortium Website including but not limited to changes of personnel. Participating Library will use reasonable efforts to ensure that information or data relevant to the operation of the Consortium Website will be treated as required by applicable law and reasonable and customary commercial practices. 6.4 Participating Library agrees to perform Primary Support for Patrons using the Consortium Website. Participating Libraries will perform requested installation, upgrade, and reasonable technical services for Primary Support of the Application Services pursuant to installation and support procedures and policies as developed by OverDrive and as modified from time -to -time. OverDrive will provide Participating Library with documentation regarding Primary Support and OverDrive support personnel will be available for Secondary Support by e-mail and phone. 6.5 Participating Library represents and agrees that it will not make any representations or create any warranties, expressed or implied, concerning the Application Services and products. Participating Library will take reasonable steps to insure that its employees, agents, and others under its direction, abide by the terms and conditions of this provision and this Agreement. Participating Library shall at its own expense comply with all applicable laws, ordinances, rules and regulations that may be required in any jurisdiction or administrative agency in connection with the use and/or operations of the Application Services. 7. OVERDRIVE'S OBLIGATIONS OverDrive will create a Consortium Website that will be in compliance with the requirements listed in the attachments. As part of the Application Services OverDrive will either implement the required services directly or oversee the necessary procedures to assure compliance with the Digital Library Reserve guidelines. OverDrive will use reasonable efforts to make the Application Services perform substantially in accordance with the product description, as it may exist from time to time. However, Participating Library acknowledges that inevitably some errors may exist in the Application Services, and the presence of such errors shall not be a breach of this provision. OverDrive's sole obligation with regard to such errors shall be to use commercially reasonable efforts to correct such errors and provide Secondary Support as stated in this Agreement. Such services will be provided by phone or email. Such services will be provided at such times as are mutually agreed upon by the parties. 8. OVERDRIVE'S OPTION TO MODIFY APPLICATION SERVICES OverDrive has the right, at any time, to make such modifications to the Application Services as it sees fit to the operation, performance, or functionality of the Application Services or as required by OverDrive's suppliers. 9. WARRANTY 9.1 OverDrive represents and warrants to. Participating Library that is has the necessary rights to enter into this Agreement and that it has the necessary ownership and intellectual property rights and licenses to the Application Services to grant the licenses herein. OverDrive warrants that the Application Services will operate as intended if properly used by Participating Library and Patron. If any errors are discovered, Participating Library shall promptly notify OverDrive in writing as to the description of the problem, whereupon OverDrive shall use reasonable efforts to correct such problems within a reasonable time thereafter. Corrections will be provided to Participating Library with instructions for implementation. The remedies set forth in this Agreement shall be Participating Library's sole remedies for breach of this Agreement. 9.2 THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE RIGHTS AND REMEDIES GRANTED TO PARTICIPATING LIBRARY AND ITS PATRONS UNDER THIS PARAGRAPH CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF PARTICIPATING LIBRARY AND ITS PATRONS AGAINST OVERDRIVE FOR BREACH OF WARRANTY, EXPRESS OR IMPLIED, OR FOR ANY Digital Library Reserve Application Services Agreement- Southeast Florida Municipal Libraries Digital Consortium (FL) 4 ©2011 OverDrive, Inc. ERRORS OR DEFECTS IN THE APPLICATION SERVICES. IN NO EVENT SHALL OVERDRIVE OR ITS SUPPLIERS BE LIABLE TO PARTICPATING LIBRARY OR ITS PATRONS FOR ANY DAMAGES ARISING FROM OR RELATED TO FAILURE OR INTERRUPTION OF THE APPLICATION SERVICES, OR FOR INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PROFIT OR OPPORTUNITY, LOSS OF USE OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE LICENSE, TRANSFER OR USE OF THE APPLICATION SERVICES. IN NO EVENT SHALL OVERDRIVE'S LIABILITY HEREUNDER EXCEED THE TOTAL AMOUNT RECEIVED BY OVERDRIVE UNDER THIS AGREEMENT. 10. INDEMNIFICATION 10.1 OverDrive agrees to indemnify Participating Library against liability and expense, including reasonable attorney fees, arising from any breach of OverDrive's warranty that it has the required rights to the Application Services and that the Application Services does not infringe any ownership or intellectual property right of a third party, provided that OverDrive: (1) is notified immediately after Participating Library receives notice of such claim (ii) is solely in charge of the defense of and any settlement negotiations with respect to such claim; (iii) received Participating Library's cooperation in the defense or settlement of such claim; (iv) has the right, upon either the occurrence of or the likelihood (in the opinion of OverDrive) of the occurrence of a finding of infringement, either to procure for Participating Libraries the right to continue use of the Application Services, or to replace the relevant portions of the Application Services with other equivalent, non - infringing portions. If OverDrive is unable to accomplish either of the options set forth in (iv) above, at OverDrive's option OverDrive shall either remove the portion of the Application Services in issue and refund to Participating Library the value of such portion, or remove the entire Application Services and refund to Library the entire amount paid pro -rata under this Agreement as it relates to the incident that gave rise to the claim. 10.2 OverDrive shall have no obligation to Participating Library to defend or satisfy any claims made against Participating Library that arise from use, marketing, licensing, or disposition of the Application Services by Participating Library other than as permitted by this Agreement. OverDrive shall not be responsible to indemnify Participating Library for claims arising from the use or license of third party software including DRM where OverDrive is not afforded such corresponding indemnification from said third party vendor. In the event a claim arises from use of non- OverDrive technology, where the vendor of such product or technology does not indemnify OverDrive, then OverDrive is not liable to extend indemnification under this section to Participating Libraries for any such claims. 11. TERM AND TERMINATION 11.1 This Agreement shall take effect on the Effective Date and, unless terminated sooner pursuant to the relevant provisions of this Agreement, shall have an initial term of two (2) years. The Parties shall have the option to renew for successive terms of twenty four (24) months upon written agreement between the Parties. 11.2 In the event of a filing by or against either party of a petition for relief under the United States Bankruptcy Code or any similar petition under the insolvency laws of any jurisdiction, where such filing is not dismissed within thirty (30) days after the date of the filing, or should Consortium discontinue the operations relevant to this Agreement, then the other party may immediately terminate this Agreement upon written notice. 11.3 In addition to provisions authorizing termination ,hereunder, either party shall have the right to terminate this Agreement as a result of a material breach of the Agreement by the other party that is not cured within thirty (30) days after written notice of such breach. 11.4 Upon termination and/or expiration of this Agreement, and except as otherwise provided in this Agreement, the license granted to Participating Library by this Agreement shall be terminated immediately; Participating Library shall make no further use of all or any part of the Application Services (including any and all Content) or any confidential information received from OverDrive. 12. GENERAL PROVISIONS 12.1 Independent Contractor. OverDrive and Participating Library are independent contractors under this Agreement and nothing in this Agreement authorizes either party to act as a legal representative or agent of the other for any purpose. It is expressly understood that this Agreement does not establish a franchise relationship, partnership, principal -agent relationship, Digital Library Reserve Application Services Agreement- Southeast Florida Municipal Libraries Digital Consortium (FL) 5 ©2011 OverDrive, Inc. or joint venture. Neither party shall have the power to bind the other with respect to any obligation to any third party. Each party is solely responsible for its employees, including terms of employment, wages, hours, required insurance, and daily direction and control. 12.2 Confidential Information. Both OverDrive and Participating Library acknowledges that each will receive confidential information from the other relating to technical, Application Services and operational affairs of the other. Each party agrees that all confidential information of the other party shall be held in confidence and shall not be disclosed, not withstanding any laws and regulations permitting public access to documents and information that are considered public. 12.3 No Waiver. The failure of either party to exercise any right or the waiver by either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same of any other term of the Agreement. 12.4 Notice. All notices, requests, demands or other communications required to be given pursuant to the Agreement shall be in writing and shall be deemed to have been given, if sent by U.S. mail, registered or certified mail, return receipt requested, postage prepaid, addressed to the parties at their place of business or to such other addresses as the parties direct in writing. Notice to OverDrive shall be addressed to OverDrive at the address provided in the Introduction or at its' current address as notified to Library, Attention: President or to such person or to such address as OverDrive may designate. Notice to Library shall be addressed to the address for Library in the Introduction to this Agreement, Attention to the individual signing on behalf of Library or to such person or to such address as Library may designate. 12.5 Force Majeure. Neither party shall be deemed in fault of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies, or any other causes beyond the control of such party provided that such party gives the other written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof and uses its best efforts to cure the delay. In the event of such Force Majeure, the time of performance or cure shall be extended for a period equal to the duration of the Force Majeure but in no event shall exceed three (3) months. 12.6 Assignment. OverDrive may assign this Agreement. This Agreement may not be assigned by Participating Library, nor any duty hereunder be delegated by Participating Library without the prior written consent of OverDrive. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective heirs, legal representatives, successors and permitted assigns. 12.7 Limitations of Liability. In the event of failure of either party to fulfill any of its obligations hereunder, the initial remedy of the other party under this Agreement shall be to request performance of such obligation. If such performance is not rendered, the other party may terminate the Agreement pursuant to Paragraph 11.3, and where appropriate, bring an action for any moneys due and payable hereunder for services rendered. However, either party shall be entitled to enforce its rights regarding patents, copyrights, trademarks, or trade names, by any appropriate action, including actions for damages and equitable relief. 12.8 Injunctive Relief. The parties to this Agreement recognize that a remedy at law for a breach of the provisions of this Agreement relating to trademark, copyright, and other intellectual property rights, will not be adequate for OverDrive's protection, and accordingly OverDrive shall have the right to obtain, in addition to any other relief and remedies available to it, injunctive relief to enforce the provisions of this Agreement. 12.9 Severability. In the event that a court of competent jurisdiction determines that any portion of the Agreement is unenforceable, void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect as though such invalid provisions were deleted. 12.10 All Disputes Arising From the Agreement. This Agreement shall be governed by the laws of the State of Ohio, without regard to any conflict of laws principles. Any dispute regarding this Agreement, the Agreement formation or the relationship that has been established by this Agreement shall be brought in the state or federal courts residing in the State of Ohio, United States of America, and the local laws of Ohio will apply to any such action related to the above without regard to any conflicts of laws principles. Any legal action brought concerning this Agreement or any dispute hereunder, including but not limited to an action to enforce or challenge an arbitration award, shall be brought only in the courts of the State of Ohio, USA, in the County of Cuyahoga, or in the federal courts located in such state (and county). Both parties submit to Digital Library Reserve Application Services Agreement- Southeast Florida Municipal Libraries Digital Consortium (FL) 6 02011 OverDrive, Inc. venue and jurisdiction in these courts. In the event that an action or claim arises outside of the exclusive jurisdiction specified herein which names OverDrive as a party, Library agrees to initiate, consent to and/or cooperate with any and all efforts to remove the matter to the exclusive jurisdiction named herein, or otherwise take any and all reasonable actions to achieve OverDrive's objectives of this provision. 12.11 Entire Agreement. This Agreement constitutes the entire Agreement and understanding of the parties and supersedes all prior and contemporaneous Agreements, understandings, negotiations and proposals, oral or written. Section headings are provided for convenience purposes only and do not provide any modifications or substantive meaning to the terms and conditions of this Agreement. This Agreement may be amended or modified only by a subsequent Agreement in writing signed by each of the parties and may not be modified by course of conduct. 12.12 Binding. This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors. In the event OverDrive enters into an agreement to sell substantially'all the assets of OverDrive, this agreement shall be binding upon the purchaser. Digital Library Reserve Application Services Agreement- Southeast Florida Municipal Libraries Digital Consortium (FL) 7 02011 OverDrive, Inc. Schedule "A -1" Digital Library Reserve Application Service and License Fee Schedule The following modules comprise Digital Library Reserve library services for library administration of a circulating digital content collection. All prices are in USD. Application Service Digital Library Reserve Server Sel-N ice 111formation DLR is the digital content repository and database established for each Animal Fee Per Schedule A -2 Application License and Hostin" Fee (DLR -S) library. Included is support for delivery and fulfillment of eBooks, digital audio books, download music and video. Includes associated copyright protection services (DRM). Included with this fee are all third party software and technology licenses. Services are hosted at the secure DLR hosting center. Access to library- managed services is accomplished via secure admin web services. The library utilizes a PC, Internet connection and Web browser (Internet Explorer 5.5 or higher) to administer its digital collection. No additional hardware or software is required by library. DLR Patron Website This is the patron facing website that incorporates the library's look - Included (DLR -PW) and -feel. The Patron Website is a complete digital book center providing browsing, searching, promotional and checkout services for patrons to explore and download digital media to their own PC or mobile devices. DLR Content Reserve This module enables the library collection staff to administer approval Included Collection Access plans and development profiles to aid in building its digital content (DLR -CRCA) collection from Digital Library Reserve. Each account has access-to eBooks, audio books, music and video from leading suppliers. Digital Library Reserve offers a large collection of best - selling popular, academic, business and educational titles. DLR Patron Authentication OverDrive personnel will work with library automation personnel to Integration of one Subsequent Integration integrate its existing patron authentication system. Will support present ILS included integrations (DLR-PAD library card, student ID, or other authentication to insure access of titles is subject to limited to library patrons. additional fees DLR OPAC Record Integration OverDrive will assist Library to coordinate access to MARC records for MARC Records available for purchase (DLR -OPAC) integration into the library catalog for patron searching and direct access from OCLC to eBook and audio book titles. Included in the record will be a direct link for patrons to view the eBook and audio book title and status for lending. MARC records are available for purchase by Library from OCLC. DLR Open Content Collection This module permits uploading and circulation of digital content from Included (DLR -OPC) local sources (i.e. community historical documents, materials, photographs and locally authored or produced texts, audio and video materials) not procured from a third party vendor into its collection. For all such materials uploaded via this module, Library will be responsible for obtaining the necessary rights and/or licenses prior to upload. DLR Windows Media Server Support for download or streaming of copyright protected digital audio Included* Increased (DLR -WMS) and video using Microsoft® Windows® Media Series 9 and up. * bandwidth subject OverDrive reserves the right to limit bandwidth and impose additional to additional hosting fee charges. charges Digital Library Reserve Application Services Agreement- Southeast Florida Municipal Libraries Digital Consortium (FL) 02011 OverDrive, Inc. Schedule "A -2" Digital Library Reserve Southeast Florida Municipal Libraries Digital Consortium Participation Fees 1. Annual Participation Fee: Participating Libraries shall pay OverDrive an Annual Participation Fee for joining and ongoing services provided to Consortium. The Participation Fee shall include any and all services relating to use of the Application Services including the DLR System License, configuration and customization of website services, third party software licenses, hosting, bandwidth, and maintenance of the application services and staff training. The Fee shall be based upon Participating Library's Legal Service Area Population as reported by the then current information available at the Institute of Museum and Library Services (htip://harvester.census.gov/imls/search/index.asp?&LibLaryNam . Tier 1 Legal Service Area Population up to 5,000 = $1,500 per year Tier 2 Legal Service Area Population of 5,001 — 35,000 = $3,000 per year Tier 3 Legal Service Area Population of 35,001 — 70,000 = $6,000 per year Tier 4 Legal Service Area Population of 70,001 — 100,000 = $9,000 per year After the initial term of two (2) years, the Annual Fee is subject to change. The Annual Fee shall be due and payable within thirty (30) days of receipt of invoice. 2. Allocation of Annual Participation Fee: The Annual Participation Fee collected during each year shall be allocated as follows: one -third (1/3) towards configuration, system fees, and maintenance, and two- thirds (2/3) toward selection of Content for the shared collection. At any time during the term of this Agreement, Consortium and/or Participating Libraries may select additional Content subject to standard terms and pricing. 3. Content Collection: Anytime during the term of this Agreement Consortium and/or Participating Libraries may select additional titles and material subject to standard terms and pricing. Consortium and/or Participating Libraries shall make payments directly to OverDrive for Content selections within 30 days of receipt of invoice. 4. Term: This Agreement shall take effect on the Effective Date and, unless terminated sooner pursuant to the relevant provisions of this Agreement, shall have an initial term of two (2) years. The Parties shall have the option to renew for successive terms of twenty four (24) months upon written agreement between the Parties. Digital Library Reserve Application Services Agreement- Southeast Florida Municipal Libraries Digital Consortium (FL) 9 02011 OverDrive, Inc. Schedule "B" Digital Library Reserve and Consortium Website Guidelines 1. Patron Support Resources Participating Library will provide Primary Support for its Patrons via e-mail and/or by phone in direct support of all Patron inquiries, issues, and problems relating to the Consortium Website. Consortium will post on the Consortium Website OverDrive supplied Frequently Asked Questions (FAQs) and other support information and links to assist with providing Patrons with answers to frequently asked questions. Participating Library will cooperate with OverDrive to implement practices as recommended by OverDrive to reduce the instances of Patron technical support issues. 2. Copyright Protection, Patron Authentication and Data Security Participating Library will take reasonable steps to cooperate with OverDrive to prevent unwarranted intrusion into data managed or maintained by OverDrive or on behalf of Consortium. This includes reasonable steps to protect its password and access to Library's administrative website for management of its Digital Library Reserve and Consortium Website. For Digital Products and Content which Participating Library acquires rights from OverDrive for re- distribution and lending to Patrons, Participating Library agrees to deploy the following practices and methods to respect the Copyright Protection and Patron Authentication terms of OverDrive's Publishers and suppliers: A. Participating Library will respect and deploy the DRM protection settings as designated by Publisher that may restrict copying, sharing and/or printing. B. Participating Library acknowledges that Digital Product titles selected will not entitle Participating Library to access a copy of the title, but will enable its Consortium Website the right to provide download access to the title for their Patrons as fulfilled through the Application Services after the DRM services have been applied. C. Participating Library is not granted any license to use titles for any "online" use, except for the display of Digital product cover art, excerpts and metadata as designated by Publisher and available from OverDrive. D. Participating Library will be allowed to loan to its patrons or "check -out" Digital Products or Content via a download link from the Consortium Website. Participating Library acknowledges that all circulating Digital Products will have a predetermined period for an automatic self - expiring use period or "time- out ", which shall not be less than seven (7) days or other minimum lending period as required by publishers and suppliers. E. A Digital Product in the Consortium's Website that is checked out by a Patron will not be available for another Patron to check out unless multiple copies of the title have been purchased, or until the expiration period of the first Patron's time period has expired. F. Participating Library will take reasonable measures to ensure that only authorized Patrons of their Library have access to the Consortium Website for access to Digital Products or Content. G. Access to the Application Services shall be limited to those patrons of the Library that have the required relation to the Library to receive a library card ( "Authorized Patrons "). Library shall not provide access to the Application Services to any end users who are not Authorized Patrons. Authorized Patrons shall be defined as individuals who can provide proof of residency, employment, or enrollment in school or similar institution in the Library's service area. Online library card applications and issuance, with or without any fees, that provide access to the Application Services without proof of the required library relation (as referenced in the foregoing sentence) shall not be permitted. OverDrive reserves the right to immediately terminate this Agreement if Library provides access to the Application Services to end users who are not Authorized Patrons. 3. Third Party Logo and Trademark Use Guidelines Participating Library acknowledges that the Consortium Website will utilize and rely upon third party software and technologies provided by Microsoft Corporation, Adobe Systems, Inc., and other technology suppliers. OverDrive shall provide to Participating Library the applicable guidelines for utilizing the registered trademarks, logos, and software products associated with the Consortium Website. Participating Library agrees to abide by the terms and conditions of these third party suppliers. OverDrive will provide to Participating Library all necessary links, art, logos and instructions to permit it to comply with this provision. Digital Library Reserve Application Services Agreement- Southeast Florida Municipal Libraries Digital Consortium (FL) 10 02011 OverDrive, Inc. Schedule "C" Library Participation Form — Southeast Florida Municipal Libraries Digital Consortium In consideration of participation in the Southeast Florida Municipal Libraries Digital Consortium ( "Consortium "), lending digital materials, Participating Library agrees to abide by the terms and conditions of the Agreement. 2. Participating Libraries shall pay OverDrive an Annual Participation Fee for joining and ongoing services provided to Consortium. The Participation Fee shall include any and all services relating to use of the Application Services including the Digital Library Reserve (DLR) System License, configuration and customization of website services, third party software licenses, hosting, bandwidth, and maintenance of the application services and staff training. The Annual Participation Fee shall be based upon Participating Library's Legal Service Area Population as reported by the then current information available at the Institute of Museum and Library Services (http://harvester.census.gov/imls/search/index.asp?&LibraryName . Annual Participation Fee for 2011- 2014* Please check one: Tier 1 Legal Service Area Population up to 5,000 $1,500 per year Tier 2 Legal Service Area Population of 5,001 — 35,000 $3,000 per year Tier 3 Legal Service Area Population of 35,001 — 70,000 $6,000 per year Tier 4 Legal Service Area Population of 70,001— 100,000 $9,000 per year *After the initial term of two (2) years, the Annual Fee is subject to change. The Annual Fee shall be due and payable within thirty (30) days of receipt of invoice. 3. Florida Public Libraries that are in the service area of the Southeast Florida Library Information Network ( "SEFLIN") with Legal Service Area Populations under 100,000 shall be eligible to join Consortium, on a quarterly basis. Any current OverDrive customer (standalone system) shall not be eligible to join Consortium. Notwithstanding the foregoing, OverDrive shall have sole discretion to approve any and all new libraries that seek to join Consortium. Non -SEFLIN Participating Libraries may be subject to an administrative fee levied by SEFLIN. 4. The Annual Participation Fee collected during each year shall be allocated as follows: one -third (1/3) towards configuration, system fees, and maintenance, and two - thirds (2/3) toward selection of Content for the shared collection. At any time during the term of this Agreement, Consortium and/or Participating Libraries may select additional Content subject to standard terms and pricing. Consortium and/or Participating Libraries shall make payments to OverDrive for Content selections within thirty (30) days of receipt of invoice. DLR is for remote use only (outside of the Participating Library). Without the use of OverDrive Download Station software, Patrons and all other users of DLR cannot download Digital Content to any Participating Library computers or devices. Participating Library shall have the option to purchase an OverDrive Download Station Software license for each of its public workstations at all of its branch locations. 6. Participating Library shall be eligible to enroll in the OverDrive Advantage program, at the then - current rate for enrollment. 6. Participating Library shall include a direct hyperlink and/or logo linked to the DLR service from Participating Library's home page and other appropriate sub - pages. Such link or logo shall be featured no less prominently than other electronic resources or services including but not limited to EBSCOhost, Recorded Books, Ingram and 3M. 7. Participating Library acknowledges it may incur additional license fees or costs related to MARC records, SIP or similar protocol for patron authentication. All such fees shall be at Participating Library's own expense, and are not included in the Participation Fee. Participating Library acknowledges that if Participating Library withdraws from Consortium prior to the expiration of Agreement with OverDrive, all content, products, and services that have been licensed with the Participating Library's monetary and in -kind contributions to Consortium shall remain with Consortium. [signature page follows] Digital Library Reserve Application Services Agreement- Southeast Florida Municipal Libraries Digital Consortium (FL) 11 ©2011 OverDrive, Inc. Accepted and agreed this 10th day of October 2011 by: North Palm Beach Library ("Participating Library ") Village of North Palm Beach By (signature): A AM 0 Q&A-" , Name (Print): Da 1 C. Aubre Title: Mayor Please fill out the following with the appropriate contacts: Attest: e Teal, 1 aae Clerk Billing Contact(s) Name(s), email address, and billing address of contacts to receive billing: Primary: Local Library: North Palm Beach Library Name: Jeannette Smithee Name: Betty Sammis Email: smitheena,seflin.org Address: SEFLIN, Office 452, WImberly Library, FAU 777 Glades Road Boca Raton, FL 33431 Phone: 561- 208 -0984 ext 226 Email: bsammisna,village= pb.org Address: 303 Anchorage Drive North Palm Beach FL 33408 ILS Change Contact(s) Names(s) and email address of contacts allowed to request ILS changes for your library: Name: Betty Sammis Email: bsammisAvillage =pb.org Name: Michael Applegate Email: mapplegate(avillage- npb.org Collection Contact(s) Name(s) and email address of contacts who will work on collection management: Name: Sue Holmes Email:. shohnes(a,villagenpb.org Name: Diana Kirby Email: dkirbyAvillage= nnpb.org Promotional Materials Contact(s) Name(s) and email address of contacts to work with our Partner Services Team on promotion: Name: Betty Sammis Name: Email: bsammis(a,village- ppb.org Email: Digital Library Reserve Application Services Agreement- Southeast Florida Municipal Libraries Digital Consortium (FL) 12 ©2011 OverDrive, Inc. Overdrive Consortial Pricing Information Southeast Florida Group - If Managed by SEFLIN SEFLIN Member Libraries Overdrive Library Service Area System Content SEFLIN Total Annual Tiers Library Service Area Fee Fee Fee Fees Tierl Legal Service Area $500 .$1,000 $1,500 Fee Population Tier1 Legal Service Area $500 $1,000 Under 5,000 $1,575 Population Tied Legal Service Area $1,000 $2,000 $3,000 Under 5,000 Population Tied 5,001- 35,000 $1,000 $2,000 $150 Tier 3 Legal Service Area $2,000 $4,000 $6,000 Population 5,001 -35,000 35,000 - 70,000 Titer 3 Legal Service Area Tier 4 Legal Service Area $3,000 $6,000 $9,000 Population Population 70,001 - 100,000 SEFLIN Non - member Libraries Overdrive Library Service Area System Content SEFLIN Total Annual Tiers Fee Fee Fee Fees Tier1 Legal Service Area $500 $1,000 $75 $1,575 Population Under 5,000 Tied Legal Service Area $1,000 $2,000 $150 $3,150 Population 5,001 -35,000 Titer 3 Legal Service Area $2,000 $4,000 $300 $6,300 Population 35,000 - 70,000 Tier 4 Legal Service Area $3,000 $6,000 $450 $9,450 Population 70,001 - 100,000 General Information from Overdrive '1/3 of fee supports the system 213 of fee supports content. $1500 one -time fee for new libraries to join after "go -live° date Overdrive marketing Information .htiol/www. overdrive .com /Sdutions/LibraCnes/Publid July 19, 2011 OverDrive Advantage 2.0 Enrollment Form OverDrive Shared Collection /Consortium Information Name of Shared Collection or Consortium: S D U'� t-i PJ4 T F fl Lt tJ tCi PA 14 - b L CV SZ) P-7- URL of Shared Collection or Consortium: Member Library Information Member library name: N©P-7- l ?AU-1, [3cr eat t�u8t�Cs Lt�►e rz Member Library Accounting Contact Name: 6EM N SiqmmiS Email: &S 0-M rn s v1 j Ic jQ es -n b . or Telephone: l- 3.7 3 Fax: a� / p p .� �j —7 5-4;, 1 O� O— OCO Address: erto mac. bp- City 5 to rte t�-t �igcf -1 ZIP �� 83 qD8 Member Library Collection Development Contact Name: �-N Jq �7Z8 Email: k- V 11 Inr Telep ne: j _S r Fax: 15 f Terms and Conditions: • Must be a current OverDrive customer and member of an OverDrive consortium or shared collection. • The ability to authenticate library patrons as part of an individual library separate from the consortium is required. • The Advantage member library must set up a separate account with OverDrive and will be invoiced separately for their titles and selections. • Library must pay a one -time enrollment fee of $1,000, which includes a collection credit of $500 (and access to purchase additional content at any time as long as account is in good standing). • Library acknowledges fees or costs related to MARC records, SIP or similar protocol for patron authentication are not included and shall be at Library's own expense. Acknowledgement and Acceptance: • Library will be invoiced in the amount of $1,000 for the OverDrive Advantage Member Enrollment Fee and agrees to be bound by the OverDrive Advantage Terms and conditions. • In addition to the $1,000 Enrollment Fee, Library requests to be invoiced in the amount of $ for a deposit on account with OverDrive for future content collection purchases. N- (Member Library Name) By Signature: Name (Print): ETTY 1 { . a mm1S Telephone: 37 Date: t b l . OCU L Title: 7a)/R-EC7 c:v\. Email: 1.50-M MI iJlt'!4 p - t),C�.0rj ©2011 OverDrive, Inc. 8555 Sweet Valley Dr., Suite N, Cleveland, OH 44125 Ph: +1216-573-6886 Fax: +1216-573-6888 Page 1 of 2 OverDrive Advantage Enrollment Form — Rev. January 2011 Please complete this Enrollment Form and return by fax or email: • Fax to OverDrive at +1216-573-6888 or • Email to sales @overdrive.com Description of OverDrive Advantage 2.0: • Custom collections for your library within the shared collection website. OverD rive Advantage is a program that enables members of OverDrive- powered shared collections or consortia to add a custom collection exclusively for their patrons. These individual libraries, upon enrolling in OverDrive Advantage, may purchase digital titles in formats that their shared collection supports (e.g., audiobooks, eBooks, music and /or video) and make them available to their patrons within their shared collection's OverDrive- powered "virtual branch" website. • Benefits. Advantage members may reduce waiting lists by purchasing additional copies of popular titles and making them available only to their patrons. Advantage members may also create custom collections by purchasing titles that are not in the shared collection but are of interest to their community. The Advantage member library's titles will appear on the same Over ©rive- powered website their patrons have always used, eliminating the need for additional URLs and links. • Advantage 2.0 Titles and Materials. All material purchased by participating Advantage library are for the exclusive use of the Advantage library patrons. Advantage materials will not be visible to other consortia members. Advantage library patrons will be asked to sign into their library accounts in order to see the additional titles and to check out advantage material. For more information on OverDrive Advantage, please visit: httP://www.overdrive.com/products/dlr/`advantage.asp ©2011 OverDrive, Inc. 8555 Sweet Valley Dr., Suite N, Cleveland, OH 44125 Ph: +1216-573-6886 Fax: +1216-573-6888 Page 2 of 2 OverDrive Advantage Enrollment Form —Rev. January 2011