Loading...
HomeMy WebLinkAboutRecorded Books Inc; 2020-06-18;DocuSign Envelope ID: A64058B0-1133-4FB0-B7A9-86B29539D4CF City Attorney Approved Version 6/12/18 1 AGREEMENT FOR STREAMING SERVICES RECORDED BOOKS, INC. THIS AGREEMENT is made and entered into as of the 18th day of June , 2020, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and Recorded Books, Inc., a Delaware Corporation, ("Contractor"). RECITALS A. City requires the professional services of a web service company that is experienced in online digital streaming services. B. Contractor has the necessary experience in providing professional software services and has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A" and Exhibit “B”, which is incorporated by this reference in accordance with this Agreement’s terms and conditions. In the event of any inconsistency between the terms of this Agreement and the terms of any Exhibit, the terms of this Agreement shall prevail. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of one (1) year from the date first above written or when the total fee payable for Services, per section 5, infra, has been exhausted, whichever occurs first. The Agreement may be extended for three (3) additional one (1) year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be Thirty thousand dollars ($30,000). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. If the City elects to extend the Agreement, the amount shall not exceed Thirty thousand dollars ($30,000) per Agreement year. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". DocuSign Envelope ID: A64058B0-1133-4FB0-B7A9-86B29539D4CF City Attorney Approved Version 6/12/18 2 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. Incremental payments, if applicable, should be made as outlined in attached Exhibit “A”. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorney’s fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney’s fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City’s self-administered workers’ compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor’s agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California’s List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best’s Key Rating Guide of at least “A:X”; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the DocuSign Envelope ID: A64058B0-1133-4FB0-B7A9-86B29539D4CF City Attorney Approved Version 6/12/18 3 insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an “occurrence” basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $2,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Cyber Liability. With limits of not less than $1,000,000 per claim. 10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 10.2.2 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Not required for a software subscription company. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. DocuSign Envelope ID: A64058B0-1133-4FB0-B7A9-86B29539D4CF City Attorney Approved Version 6/12/18 4 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS Intentionally removed. 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City For Contractor Name Heather Pizzuto Name Jim Schmidt Title Library & Cultural Arts Director Title Vice-President of Sales Department Library & Cultural Arts Address 270 SkipJack Road City of Carlsbad Prince Frederick, MD 20678 Address 1775 Dove Lane Phone No. 877-732-2898 Carlsbad, CA 92011 Email jschmidt@recordedbooks.com Phone No. 760-602-2011 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories. Yes No 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. DocuSign Envelope ID: A64058B0-1133-4FB0-B7A9-86B29539D4CF City Attorney Approved Version 6/12/18 5 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of DocuSign Envelope ID: A64058B0-1133-4FB0-B7A9-86B29539D4CF City Attorney Approved Version 6/12/18 6 information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ DocuSign Envelope ID: A64058B0-1133-4FB0-B7A9-86B29539D4CF City Attorney Approved Version 6/12/18 7 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California By: By: (sign here) HEATHER PIZZUTO Library & Cultural Arts Director as authorized by the City Manager Tom Macisaac, Chief Executive Officer (print name/title) ATTEST: By: (sign here) For BARBARA ENGLESON Edward Longo, Secretary City Clerk (print name/title) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: For CELIA A. BREWER, City Attorney BY: Assistant City Attorney DocuSign Envelope ID: A64058B0-1133-4FB0-B7A9-86B29539D4CF City Attorney Approved Version 6/12/18 8 EXHIBIT “A” SCOPE OF SERVICES The Contractor will stream and make available digital video content, included associated audio, graphics, text, images and other data and content to the City for access and use pursuant to applicable access and license terms. As permitted by the agreement, the Contractor and the City, the Contractor may also host and stream digital video content uploaded by the City where such City holds all necessary rights and permission to enable Contractor to host and stream such content. End User: Is described as City of Carlsbad staff member or active library card user, which has been validated through the authentication software selected, employed and managed by City. City is responsible for ensuring that all End Users are bound by the terms and conditions set forth in this Agreement. Any breach of this Agreement by an End User will be deemed a breach by Contractor. The following information must be adhered to by the Contractor as a part of the Agreement. Product/Service Description: Access: Contractor will provide access to its digital streaming database for access to City’s End Users. The city may adapt its content and collection selections at any time. Fees/Invoicing: Platform Access Subscription: City will pay a one-time fee of $500 to Contractor. The app will deliver to the City RBvideo, comics, audiobooks, magazine, etc. The platform access fee will be paid upon execution of the agreement. EComics Usage Charge: Annual flat fee subscription of $2,500 allows all City End Users unlimited access to the entire RBdigital comics catalog. City will pay fee upon execution of the agreement. RB Digital Streaming Platform Usage Charge: Once an End User begins to play a video selection, the City will be charged $2.99, allowing the End User access to the channel, and it is 'unlocked' for that End User for seven days. The City's database administrator manages the channel menu selections. If the End User begins to play a video selected from another channel, then another $2.99 will be charged to the City for seven days usage period. The City has selected the following services; Acorn and Great Courses; however, the City database administrator has access to change selections through the Contractor's menu. RB Digital Streaming will provide the City monthly invoices based on usage. Monthly Budget Cap/Controls: The City’s database administrator has the ability to set monthly budget not-to-exceed caps to help manage the subscription throughout the agreement period. The City elects to begin with no limits; however, it may impose financial limits as needed. Annual Budget: See Compensation for all services, per section 5. Invoice Processing: The Contractor will provide monthly invoices for play credits to the City. The City may request early processing of play credit invoices at any time. Unless otherwise specified in the Agreement, payment terms for the products and services herein are net thirty (30) days from the invoice date. DocuSign Envelope ID: A64058B0-1133-4FB0-B7A9-86B29539D4CF City Attorney Approved Version 6/12/18 9 Reports: City’s database administrator can access and monitor usage electronically. Subscription Period: see Term for Services, per section 3. Managing Program: The City may turn off service by providing Contractor with thirty (30) day written notice requesting they turn off participation and any specifics around that process (a specific date, etc.). The Contractor will turn off City’s participation according to the City’s written notice. The City will be responsible solely for managing the payment of all play credit fees played prior to system turn off notice. In the event that the City’s participation is turned off, End Users will not be able to access any titles under this program. Ownership of Data: The Contractor shall provide access to and share any usage data and documents created under the Agreement with the City. Any data submitted by End Users to the service shall be the sole property of the End User, and the Contractor will ensure to provide End Users with the ability to request, manage, and delete any data provided at any time. Any data, information or material that is submitted to the Contractor by the City (“Customer Data”) shall be the sole property of The City. The City, not Contractor, shall have sole responsibility for accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Non-Disclosure: The Contractor will not use City’s Customer Data for purposes other than those necessary to directly further the purposes of the Agreement. Neither party will disclose to third parties Customer Data without the prior written consent of the non-disclosing party. Services: Contractor shall be responsible for securing, managing, scheduling, coordinating and supervising Contractor personnel, in performing any Services. Any change to the scope of Services must be in writing and signed by both parties. The proposed Software Services must be securely hosted, and hosting locations will be located in the United States. Privacy: No personally identifiable information will be disseminated by Contractor to any third parties, except as consented to by City, or as consented to by the person whose information is involved for the purposes of effectively providing the service under the Agreement, or required by law. If such dissemination is required by law, Contractor agrees to inform City before any such dissemination if permitted by law. Availability: The Contractor will use commercially reasonable efforts to ensure Contractor systems obtain an operational 99.8% uptime. Contractor agrees to notify City promptly of any factor, occurrence, or event coming to its attention that may materially affect uptime, or that is likely to cause any material interruption or disruption in services. Notice of scheduled maintenance shall occur three (3) days prior to scheduled downtime. In the event planned emergency maintenance is required, the Contractor will make commercially reasonable efforts to notify City in advance. In the event of a disaster of Contractor’s primary data center, Contractor will restore services in its secondary center within four (4) business hours of a disaster declaration. Post Mortem meeting will be held as needed following any outages to identify root cause and specify corrective and/or preventative actions required to prevent recurrence. Corrective and preventative action plans, as relevant, will be shared with City via email. DocuSign Envelope ID: A64058B0-1133-4FB0-B7A9-86B29539D4CF City Attorney Approved Version 6/12/18 10 EXHIBIT “B” RECORDED BOOKS, INC. LICENSE AGREEMENT THIS LICENSE AGREEMENT (“AGREEMENT”) GOVERNS YOUR (THE “LICENSEE”) ACQUISITION AND USE OF RECORDED BOOK’S SERVICES AND CONTENT (DEFINED BELOW). BY ENTERING INTO THIS AGREEMENT OR OTHERWISE ACCESSING RECORDED BOOKS’ SERVICE, LICENSEE AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL AGREEING TO THE SUBSCRIPTION TERMS (DEFINED BELOW) FOR LICENSEE IS DOING SO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY. Licensee’s use of, and participation in, certain Services and access to certain Content may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to Licensee for your acceptance when Licensee ordered the supplemental Service. This Agreement and any applicable Supplemental Terms are referred to herein as the “Agreement.” 1. SCOPE OF AGREEMENT. This Agreement governs Licensee’s use of Recorded Book’s online platform (“Platform”) and audiovisual or other digital content provided pursuant to a subscription order form (such content, “Content”). The Platform and the Content are collectively, the “Service.” The Content that Recorded Books will provide Licensee is as selected by Licensee on the subscription order form (the “Subscription Terms”), the terms of which are incorporated into this Agreement by reference. 2. PROPRIETARY RIGHTS (a) License to Platform. Subject to the terms and conditions of this Agreement, Recorded Books grants to Licensee a non-exclusive, non-transferable, non-sublicensable, license to access and use the Platform for the purposes of selecting and managing Licensee’s use (including any subscriptions) of Content. (b) License to Content. Subject to the terms and conditions of this Agreement, Recorded Books grants Licensee and its End Users (defined below) a limited, non-transferable, non- exclusive, non-sublicenseable, royalty-free, license to reproduce, display, perform and distribute the Content through the Platform (and supported devices) for End Users’ (defined below) personal and noncommercial use, in accordance with the Subscription Terms. Licensee acknowledges that the forgoing license is granted by Recorded Books on behalf of the individual publishers or other publishing bodies that have authorized Recorded Books to license Content to Licensee and End Users. In certain instances, the Content may be subject to separate terms. In such cases, those separate terms will be provided before such Content may be accessed. (c) Restrictions on Use of Services. In connection with Licensee’s use of the Service, Licensee will comply with all applicable laws, rules and regulations. Licensee will not, and will not permit any third party (including End Users) to: (i) reproduce, distribute, display, modify, alter, publish, exploit, transfer, transmit, translate, or create derivative works of any part of the Service except as expressly authorized in this Agreement; (ii) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of any part of the Service; (iii) lend, lease, offer for sale, sell or otherwise use the Service for the benefit of, or make available to, third parties (except End Users); (iv) attempt to circumvent any license, timing or use restrictions that are built into the Service; (v) you shall not use any metatags or other “hidden text” using Recorded Books’ name or trademarks; (vi) you DocuSign Envelope ID: A64058B0-1133-4FB0-B7A9-86B29539D4CF City Attorney Approved Version 6/12/18 11 shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Service; (vii) except as expressly stated herein, no Content may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (viii) Licensee shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Content or Services. (d) End Users. “End Users” means any of Licensee’s employees, representatives, faculty, students, staff, visiting scholars, patrons and members that Licensee authorizes to use the Content. Licensee is responsible for ensuring that all End Users are bound by the terms and conditions set forth in this Agreement. Any breach of this Agreement by an End User will be deemed a breach by Licensee. (e) Recorded Books Ownership of Service. Except for the rights granted in Section 2(a) above, as between Licensee and Recorded Books, Recorded Books retains all right, title and interest, including all intellectual property rights, in and to the Service. Licensee acknowledges that the Service include Recorded Books’ valuable trade secrets and improper use or disclosure would cause Recorded Books irreparable harm. Accordingly, Licensee agrees to use the Service solely as authorized in this Agreement. Licensee further acknowledges that the license granted pursuant to this Agreement is not a sale and does not transfer to Licensee title or ownership of the Service, but only a right of limited use. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO RECORDED BOOKS AND ITS CONTENT PROVIDERS. 3. USE OF THE SERVICE. Licensee will (a) be responsible for its (and its and End Users’) compliance with this Agreement, (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Recorded Books immediately of any such unauthorized access and/or use of which Licensee becomes aware, and (c) use the Service only in accordance with this Agreement and all applicable laws and government regulations. Licensee will not (i) interfere with or disrupt the integrity or performance of the Service or any third-party data contained on the Service, including any Content (and any digital rights management software included in the Content), or (ii) attempt to gain unauthorized access to the Service or their related systems or networks. Without limiting the foregoing, Licensee must ensure that all Content is provided to End Users pursuant to an agreement that is consistent with the terms of this Agreement in its protections of Recorded Books, including warranty disclaimers, limitations of liability, and confidentiality. 4. FEES (a) Fees. Licensee will pay Recorded Books the fees described in the Subscription Terms (the “Fees”). Except with respect to Per-Item Fees (defined below), all Fees are due in advance and are based on Content ordered rather than actual usage. Payment obligations are non- cancelable and non-refundable (subject to Section 7(d)). Fees for Content obtained other than on a subscription basis (“Per-Item Fees”) are due within thirty (30) days of the invoice date for such Per-Item Fees. (b) Payment Terms. For all Fees, Licensee shall provide Recorded Books with check, bank wire or valid credit card information based on preferred payment option. Licensee authorizes Recorded Books to charge Licensee’s credit card for the Fees on the date the Agreement renews (e.g., the anniversary date) for any subscription selected in the Subscription Terms for the Renewal Term. (c) Taxes. Licensee will be responsible for payment of all sales, use, property, value-added, withholding, or other federal, state or local taxes except for taxes based solely on Recorded Books’ net income. If Recorded Books is required to pay any such taxes based on the licenses DocuSign Envelope ID: A64058B0-1133-4FB0-B7A9-86B29539D4CF City Attorney Approved Version 6/12/18 12 granted in this Agreement or on Licensee’s use of the Service, then such taxes will be billed to and paid by Licensee. 5. CONFIDENTIAL INFORMATION; SECURITY (a) Confidentiality. “Confidential Information” means all confidential information disclosed by Recorded Books to Licensee, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes the non-public facing components of the Service (excluding Content, for clarity), technology and technical information, product plans and designs, pricing, and business processes. Licensee will not disclose any Confidential Information to anyone who does not have a “need to know” the Confidential Information, and will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) in protecting Confidential Information. (b) Access Control. Licensee will implement and maintain reasonable measures to ensure that only End Users have access to the Service. Licensee must take reasonable steps to prevent unwarranted intrusions into data managed or maintained by Recorded Books on Licensee’s behalf and acquired in the course of the operation of the Service. 6. SUPPORT. Recorded Books will use reasonable efforts to provide technical support services by email yoursupport@recordedbooks.com and phone 877-772-8346 to Licensee between 7:30am and 5:30pm, Eastern time, Monday through Friday. 7. REPRESENTATIONS AND WARRANTIES. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the right, power and authority to enter this Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate or organizational action of the party; (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; (e) it will abide by all applicable federal, state and local laws and regulations with respect to online activities, use of end user data and the products and services offered by each party in connection with this Agreement; and (f) the execution and performance of this Agreement will not violate any other contract to which that party is a party. 8. WARRANTY DISCLAIMER. THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. AND RECORDED BOOKS MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE, INCLUDING THEIR CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS. RECORDED BOOKS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER IMPLIED OR STATUTORY WARRANTIES, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE ABOVE. RECORDED BOOKS DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR THAT THE SERVICES WILL WORK WITHOUT INTERRUPTIONS. 9. MISCELLANEOUS (a) Electronic Communications. The communications between Licensee and Recorded Books may take place via electronic means. For contractual purposes, Licensee (a) consents DocuSign Envelope ID: A64058B0-1133-4FB0-B7A9-86B29539D4CF City Attorney Approved Version 6/12/18 13 to receive communications from Recorded Books in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Recorded Books provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights. (b) Assignment. Neither party may assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of the other party; provided, however, that Recorded Books may assign this Agreement to a parent, affiliate, subsidiary, or successor to its business, if any. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. Any attempted assignment in violation of this Section 12(a) will be null and void. (c) U.S. Government Rights. Recorded Books provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Recorded Books to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. (d) Export Regulations. Licensee will comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Specifically, Licensee covenants that it will not -- directly or indirectly -- sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Recorded Books under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. (e) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement will remain in full force and effect. (f) Modification and Waiver. No waiver or modification of this Agreement will be valid unless made in writing and signed by both parties. The waiver of a breach of any term hereof will in no way be construed as a waiver of any other term or breach hereof. (g) Entire Agreement. This Agreement, together with the Subscription Terms, embodies the entire understanding of the parties and supersedes any previous or contemporaneous communications, whether oral or written; and may be amended only by a writing signed by both parties. Holder Identifier : 7777777707070700077763616065553330763717546215456607762135770536110073761574146131100765342730065511007464036263015576072451546122356000766606153254552207142033772016710077727252025773110777777707000707007 6666666606060600062606466204446200622200406026002206222026062040020062000240622402000600220606226220006022004060262222062220062602620200622202604226002206022026262060000066646062240664440666666606000606006Certificate No :570081816111CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY) 05/20/2020 IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. PRODUCER Aon Risk Services Central, Inc. Philadelphia PA Office One Liberty Place 1650 Market Street Suite 1000 Philadelphia PA 19103 USA PHONE(A/C. No. Ext): E-MAILADDRESS: INSURER(S) AFFORDING COVERAGE NAIC # (866) 283-7122 INSURED 20478National Fire Ins. Co. of HartfordINSURER A: 35289The Continental Insurance CompanyINSURER B: 20427American Casualty Co. of Reading PAINSURER C: 36940Indian Harbor Insurance CompanyINSURER D: INSURER E: INSURER F: FAX(A/C. No.):(800) 363-0105 CONTACTNAME: Recorded Books, Inc. 270 Skipjack RoadPrince Frederick MD 20678-3410 USA COVERAGES CERTIFICATE NUMBER:570081816111 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.Limits shown are as requested POLICY EXP (MM/DD/YYYY)POLICY EFF (MM/DD/YYYY)SUBRWVDINSR LTR ADDL INSD POLICY NUMBER TYPE OF INSURANCE LIMITS COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR POLICY LOC EACH OCCURRENCE DAMAGE TO RENTED PREMISES (Ea occurrence) MED EXP (Any one person) PERSONAL & ADV INJURY GENERAL AGGREGATE PRODUCTS - COMP/OP AGG X X X GEN'L AGGREGATE LIMIT APPLIES PER: $1,000,000 $100,000 $15,000 $1,000,000 $2,000,000 $2,000,000 A 01/31/2020 01/31/20216080087522 PRO- JECT OTHER: AUTOMOBILE LIABILITY ANY AUTO OWNED AUTOS ONLY SCHEDULED AUTOS HIRED AUTOS ONLY NON-OWNED AUTOS ONLY BODILY INJURY ( Per person) PROPERTY DAMAGE (Per accident) BODILY INJURY (Per accident) COMBINED SINGLE LIMIT (Ea accident) EXCESS LIAB OCCUR CLAIMS-MADE AGGREGATE EACH OCCURRENCE DED UMBRELLA LIAB RETENTION E.L. DISEASE-EA EMPLOYEE E.L. DISEASE-POLICY LIMIT E.L. EACH ACCIDENT $1,000,000 X OTH-ERPER STATUTEB01/31/2020 01/31/2021 CA WC680085320C 01/31/2020 01/31/2021 $1,000,000 Y / N (Mandatory in NH) ANY PROPRIETOR / PARTNER / EXECUTIVE OFFICER/MEMBER EXCLUDED?N / AN AOS WORKERS COMPENSATION AND EMPLOYERS' LIABILITY If yes, describe under DESCRIPTION OF OPERATIONS below $1,000,000 WC680085916 Combined AggregateMTP904045701/31/2020 01/31/2021 E&O/ Prof/ Cyb-Claim Made $2,000,000Cyber Per Claim E&O/Prof Per Claim $2,000,000 Cyber LiabilityD SIR applies per policy terms & conditions $2,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) The City of Carlsbad (or if applicable - the City of Carlsbad Redevelopment Agency, Housing Authority or Carlsbad Municipal Water District) its officials, employees and volunteers are included as Additional Insured in accordance with the policy provisions of the General Liability policy. CANCELLATIONCERTIFICATE HOLDER AUTHORIZED REPRESENTATIVECarlsbad City Library 1775 Dove Lane Carlsbad CA 92011 USA ACORD 25 (2016/03) ©1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. CNA PARAMOUNT Technology General Liability Extension Endorsement 1.ADDITIONAL INSUREDS a.WHO IS AN INSURED is amended to include as an Insured any person or organization described in paragraphs A.through K.below whom a Named Insured is required to add as an additional insured on this Coverage Part under a written contract or written agreement,provided such contract or agreement: (1)is currently in effect or becomes effective during the term of this Coverage Part;and (2)was executed prior to: (a)the bodily injury or property damage;or (b)the offense that caused the personal and advertising injury, for which such additional insured seeks coverage. b.However,subject always to the terms and conditions of this policy,including the limits of insurance,the Insurer will not provide such additional insured with: (1)a higher limit of insurance than required by such contract or agreement;or (2)coverage broader than required by such contract or agreement,and in no event broader than that described by the applicable paragraph A.through K.below. Any coverage granted by this endorsement shall apply only to the extent permissible by law. A.Controlling Interest Any person or organization with a controlling interest in a Named Insured,but only with respect to such person or organization’s liability for bodily injury,property damage or personal and advertising injury arising out of: 1.such person or organization’s financial control of a Named Insured;or 2.premises such person or organization owns,maintains or controls while a Named Insured leases or occupies such premises; provided that the coverage granted by this paragraph does not apply to structural alterations,new construction or demolition operations performed by,on behalf of,or for such additional insured. B.Co-owner of Insured Premises A co-owner of a premises co-owned by a Named Insured and covered under this insurance but only with respect to such co-owner’s liability for bodily injury,property damage or personal and advertising injury as co-owner of such premises. C.Grantor of Franchise Any person or organization that has granted a franchise to a Named Insured,but only with respect to such person or organization’s liability for bodily injury,property damage or personal and advertising injury as grantor of a franchise to the Named Insured. D.Lessor of Equipment Any person or organization from whom a Named Insured leases equipment,but only with respect to liability for bodily injury,property damage or personal and advertising injury caused,in whole or in part,by the Named Insured’s maintenance,operation or use of such equipment,provided that the occurrence giving rise to such bodily injury,property damage or the offense giving rise to such personal and advertising injury takes place prior to the termination of such lease. 6080087522CNA74872XX(1-15)Policy No: 5Page2of14EndorsementNo: Nat'l Fire Ins Co of Hartford 01/31/2020EffectiveDate: RECORDED BOOKS,INCInsuredName: Copyright CNA All Rights Reserved.Includes copyrightedmaterial of Insurance Services Office,Inc.,with its permission.