r
i
MIDWEST
TAPE
UBRARIANS
SOURCE
hoopla®
Service
Agreement
This
hoopla
Service
Agreement
(‘Agreement”)
is
made
as
of
this—
day
of
________,
201_
(“Effective
Date”)
by
and
between
Glendale
Public
Library
(the
“Library”),
and
Midwest
Tape,
LLC.
Whereas,
Midwest
Tape
offers
its
hoopla
digital
service
(“hoopla,”
the
“Service,”
or
the
“hoopla
Service”)
to
libraries
to
allow
authorized
library
patrons
to
access
digital
media
content
using
smart
phones,
tablets,
computers,
and
web
browsers;
Whereas,
the
Service
is
comprised
of
a
digital
media
platform
that
includes
content
in
multiple
formats
(e.g.,
movies,
television
programs,
music,
audiobooks,
eBooks,
and
comics)
and
is
designed
to
be
accessible
24/7
in
accordance
with
circulation
limits
(if
any)
and
other
settings
established
by
the
user’s
library
system;
andWhereas,
the
Library
wishes
to
make
hoopla
available
to
the
Library’s
authorized
users
(“Patrons”);
Now,
therefore,
in
consideration
of
the
promises
and
mutual
covenants
contained
in
this
Agreement,
and
for
good
and
valuable
consideration,
the
receipt
and
sufficiency
of
which
are
hereby
acknowledged,
the
Library
and
Midwest
Tape
(each
a
“Party”
and
collectively
the
“Parties”)
agree
as
follows:
DEFINITIONS.
The
following
definitions
apply
wherever
those
terms
appear
in
this
Agreement:
“Digital
Media
Application”
means
one
or
more
computer
programs
maintained,
owned,
and/or
used
by
Midwest
Tape
to
provide
access
for
limited
periods
to
Digital
Titles
(including
the
ability
to
browse,
borrow,
stream,
download,
and/or
return
such
titles)
using
certain
smart
phones,
computer
tablets,
and/or
other
mobile
devices.
The
Digital
Media
Application
currently
bears
the
name
“hoopla.”
“Digital
Media
Platform”
means
one
or
more
computer
programs
owned,
maintained,
and/or
used
by
Midwest
Tape
to
provide
access
to
Digital
Titles
and/or
to
allow
the
Library
to
manage
its
offering
and
Patron
use
of
Digital
Titles,
including
the
Digital
Media
Application,
hoopla
digital
Website,
and
hoopla
Library
Administration
Website.
“Digital
Titles”
means
any
and
all
movies,
television
programs,
music,
audiobooks,
eBooks,
comics,
and
other
audio
or
visual
works
that
Midwest
Tape
makes
available
to
the
Library
and
its
Patrons
via
the
Digital
Media
Platform
during
the
Term
of
this
Agreement.
“hoopla
Library
Administration
Website”
means
a
Midwest
Tape
website
that
may
be
accessed
and
utilized
by
the
Library
to
manage
content
available
to
Patrons
in
the
Digital
Media
Platform,
and
to
administer
Library
policies
in
regard
to
Patron
use
of
the
Service.
“hoopla
digital
Website”
means
a
Midwest
Tape
website
(currently
www.hoopladigital.com)
that
may
be
used
to
access,
browse,
borrow,
stream,
download,
and/or
return
Digital
Titles.
“Intellectual
Property
Rights”
means
all
rights
in
and
to
patents,
trademarks,
service
marks,
trade
names,
copyrights,
trade
secrets,
technology,
software,
designs,
algorithms,
know-hoW,
a
Well
as
rnorl
rights
and
all
other
intellectual
and
proprietary
rights
of
any
type
under
the
laws
of
any
governmental
authority.
“Library
Website”
means
a
website
owned,
maintained,
and/or
used
by
or
for
the
Library
for
the
purpose
of
providing
information
to
Patrons
and/or
the
general
public
about
the
Library
and
its
various
content
offerings,
policies,
objectives,
initiatives,
and
procedures.
1/2017
Page
1 Exhibit 1
()
MIDWHAP!
UBPARANSØMEDIASOURCE
“Marks”meansanytrademarks,servicemarks,tradenames,logos,designs,icons,characters,coverart, styles,andtradedressassociatedwithanyDigitalTitles,includingwithoutlimitationalltranslationsor transliterationsoftheforegoinginanylanguage,oranycolorableimitationsormodifiedversionsthereof. “MidwestTape”meansMidwestTape,LLCandanyofitsparents,subsidiaries,oraffiliatedentitiesthat areengagedinthebusinessofdistributingmediacontentindigitalformtolibrariesandlibraryusersviathe DigitalMediaPlatform.
“ServicePartners”meansanythirdpartiesthatprovidedigitalstorage,webhosting,ITservices,data analysisandprocessing,ordistributionorotherservicestoMidwestTapeinconnectionwiththeService. “TitleSummaryandPromotionalData”means,withrespecttoeachDigitalTitle,thefollowing informationanddatathatismadeavailabletoLibrarypursuanttothisAgreement:(i)title;(ii)author(s), publisher,illustrator(s),narrator(s),actor(s),director(s),producer(s),studio(s),andsimilardescriptive information;(iii)ifcommerciallyused,thedigitalobjectidentifier;(iv)narrativedescriptionorsummaryof thework;(v)coverartandimage,graphics,andotherimages;(vi)copyrightnotice;and(vii)anyother identifyinginformation.
“Vendor”meansanysuppliertoMidwestTapeof(i)DigitalTitle(s);(ii)TitleSummaryandPromotional Data;and/or(iii)technologyorservicesnecessaryforMidwestTapetoprovidetheServicetotheLibrary.
II.LIBRARYRIGHTS&OBLIGATIONS.
Rights.DuringtheTerm,andsubjecttoallthetermsandlimitationssetforthinthisAgreement,Midwest TapegrantstotheLibrarythenon-exclusiveandnon-transferrablerighttodisplayandaccesstheDigital MediaPlatformandTitleSummaryandPromotionalDataforthelimitedpurposeof:(a)allowingPatronsto access,view,andborrowDigitalTitlesthroughtheServiceandpursuanttothisAgreement;(b)promoting awarenessandauthorizeduseoftheService,includingviapostingsontheLibraryWebsite(s);and(c) establishingandimplementingLibrary-specificpoliciesinregardtouseoftheServicebytheLibraryand Patrons,consistentwiththisAgreementandtherequirementsoftheDigitalMediaPlatform.
Limitations.Exceptforthelimited,non-exclusive,non-transferrablerightsexpresslygrantedtotheLibrary aboveinthisSectionII,theLibraryshallhavenorightinorto,orownershipof,theService,DigitalTitles, DigitalMediaPlatform,hoopladigitalWebsite,hooplaLibraryAdministrationWebsite,DigitalMedia Application,Marks,TitleSummaryandPromotionalData,oranyotherartworkormaterialsdeliveredby MidwestTapeinconnectionwiththisAgreement.TheLibraryshallhavenorighttoaccess,use,modify, orreproduceanyportionofanysourcecoderelatingtotheServiceand/ortheDigitalMediaPlatform,orto make,sell,ordistributeanyvariationsorderivativeworksoftheServiceand/ortheDigitalMediaPlatform.
TheLibraryagreestothesupportandprotectionofIntellectualPropertyRights(includingbutnotlimitedto copyrightandtrademarkprotections),toprohibitPatronsfromengaginginactivitiesthatinfringeonthese rights,andtorefrainfromfacilitatingsuchactivities.Inaddition,theLibrarywillcomplywithallother requirementscommunicatedbyMidwestTapewithrespecttoanyIntellectualPropertyRightsandthe Marks.
NoPublicPerformanceRights.TheLibraryshallhavenopublicperformancerightsintheDigitalTitles.
Accordingly,theLibrarymaynotofferanyDigitalTitlesasaperformanceinordertoenticePatronsorthe generalpublictocometoanevent,sponsoredbytheLibraryorotherwise.
GeneralObligations.TofacilitatethesuccessfulintroductionoftheServiceto,anduseoftheServiceby, Patrons,theLibraryshall:(a)regularlycommunicatetostaff,Patrons,andthegeneralpublicservedthat theServiceisavailabletoPatrons;(b)providesuitabletrainingopportunitiestoappropriateLibrarystaff members,sothattheyunderstandtheServiceandcanassistinthepromotionandtheuseoftheService byPatrons;(c)regularlyfeatureprominentlinksandreferencestopopularDigitalTitlesandthehoopla 1/2017Page2
r
fl
MIDWEST
TAPE
Ll8RARANSØj1MEOlA
SOURCE
digital
Website
on
the
Library
Website’s
homepage;
(U)
incorporate
MARC
record
data
regarding
Digital
Titles
in
the
Library’s
catalog
to
enhance
the
discoverability
of
key
content
available
in
the
Service;
(e)
manage
all
funds
designated
or
appropriated
for
use
of
the
Service;
(f)
participate
in
the
implementation
of
the
Service
at
the
Library,
including
without
limitation
by
providing
Midwest
Tape
with
sufficient
and
accurate
information
to
identify
Patrons
of
the
Library
who
are
authorized
to
utilize
the
Service;
(g)
provide
Primary
Support,
as
defined
below;
(h)
perform
requested
linkage
between
the
Service
and
the
Library
Website,
as
well
as
reasonable
technical
services
to
support
and
maintain
the
Service
during
the
Term;
and
(i);
notify
Midwest
Tape
at
least
three
(3)
business
days
before
any
change
in
any
RSS
links,
ILS
configuration,
URL
updates,
or
other
equipment
or
technology
that
could
adversely
impact
the
Service
and/or
the
use
of
the
Service,
including
any
changes
that
could
impact
the
process
of
Patron
authentication.
Network
Connectivity.
The
Library
is
responsible
for
providing
a
suitable
network
and
Internet
system
for
integration
of
the
Service
into
the
Library
Website
or
other
systems.
Use
of
the
hoopla
Library
Administration
Website.
The
Library
agrees
that
it
is
solely
responsible
for
managing
its
use
of
the
hoopla
Library
Administration
Website
and
using
that
website
as
designed,
including
by
establishing,
verifying,
and
maintaining
any
settings
and
controls
regarding
use
of
the
Service
by
Patrons
(e.g.,
limitations
on
circulations,
content
restrictions,
reporting
preferences,
etc.).
Library
Website.
The
Library
is
solely
responsible
for
all
aspects
of
catalog
integration,
operation,
training,
support,
and/or
maintenance
necessary
for
the
operation
of
the
Library
Website.
This
may
include
obtaining
a
SIP2
or
similar
protocol
software
license(s)
from
a
third-party
vendor
in
order
to
support
direct
integration
of
the
Service
with
the
Library’s
own
Library
Website
or
other
systems,
as
well
as
the
cost
for
customized
MARC
records
it
may
obtain
from
a
third-party
supplier
such
as
OCLC.
The
Library
shall
keep
its
hoopla
account
information
current
with
Midwest
Tape
and
promptly
alert
Midwest
Tape
to
any
significant
changes
relating
to
the
Library
Website,
including
but
not
limited
to
changes
of
personnel
that
could
impact
the
support,
functionality,
and/or
performance
of
the
Service.
Primary
Support.
The
Library
is
responsible
for
providing
its
Patrons
with
‘Primary
Support,”
which
includes
assisting
Patrons
with
the
use
of
the
Service,
responding
to
Patron
questions
regarding
the
functionality
and
technical
requirements
of
the
hoopla
digital
Website
and
the
Digital
Media
Application,
and
helping
Patrons
with
the
process
of
communicating
with
Midwest
Tape
where
necessary
and
appropriate
to
obtain
additional
support
and
technical
assistance.
No
Warranties
or
Representations
to
Others.
The
Library
represents
and
agrees
that,
except
for
the
representations,
warranties,
and
promises
made
to
Midwest
Tape
in
this
Agreement,
neither
the
Library
nor
any
of
its
employees,
agents,
or
others
acting
under
its
direction
has
made
or
will
make
any
representations
or
warranties,
expressed
or
implied,
to
anyone
concerning
the
Service,
Digital
Titles,
Digital
Media
Application,
Digital
Media
Platform,
hoopla
digital
Website,
and/or
hoopla
Library
Administration
Website.Compliance
with
Applicable
Laws
and
Regulations.
The
Library
will,
at
its
own
expense,
comply
with
all
applicable
laws,
ordinances,
rules,
regulations,
and
other
legal
requirements
in
connection
with
the
Library’s
performance
under
this
Agreement.
Costs
and
Expenses.
The
Library
is
responsible
for
all
of
its
own
expenses
and
costs
related
to
its
performance
under
this
Agreement.
Midwest
Tape
has
no
obligation
to
reimburse
the
Library
for
any
expenses
or
costs
incurred
by
the
Library
related
to
this
Agreement
or
to
the
performance
of
the
Library’s
obligations,
including
but
not
limited
to
any
expenses
and
costs
incurred
in
the
preparation,
systems
integration,
or
use
of
the
Digital
Media
Platform,
hoopla
Library
Administration
Website,
hoopla
digital
Website,
and
Digital
Media
Application.
1/2017
Page
3 Q
MIDWEST
TAPE
LlBPARNSØj
tMEDIA
SObRCE
UI.
FEES,
PAYMENTS
&
REPoRTING.
Per
Circulation
Program.
The
Library
shall
pay
Midwest
Tape
a
Per
Circulation
Fee
for
each
Circulation
of
a
Digital
Title.
A
“Circulation”
occurs
when
the
Library
or
a
Patton
using
the
Service,
via
the
Digital
Media
Application
or
the
hoopla
digital
Website,
selects
‘borrow’
and
thereby
obtains
the
opportunity
to
access,
view,
stream,
or
temporarily
download
a
Digital
Title
for
a
specific
period
of
time
that
is
terminated
either
(i)
upon
expiration
of
the
applicable
borrowing
period
for
that
Digital
Title,
or
(ii)
when
the
Digital
Title
is
returned
before
the
end
of
the
applicable
borrowing
period
for
that
Digital
Title.
Midwest
Tape
shall
be
entitled
to
payment
of
afee
for
each
Circulation,
regardless
of
whether
the
Digital
Title
is
actually
accessed,
viewed,
streamed,
or
downloaded
during
that
circulation
period.
The
“Per
Circulation
Fees”
for
individual
Digital
Titles
are
listed
in
the
hoopla
Library
Administration
Website
and
are
subject
to
change
from
time
to
time.
The
Service
allows
for
an
unlimited
number
of
Circulations
of
each
of
the
Digital
Titles
that
are
available
to
the
Library’s
Patrons,
so
that
multiple
Patrons
may
access
the
same
Digital
Title(s)
simultaneously
via
multiple
transactions.
Invoicing
and
Payment.
Midwest
Tape
will
invoice
the
Library
by
Invoice
Period.
“Invoice
Period”
means
a
calendar
monthly
period,
recorded
in
UTC
time,
in
which
Circulations
occur.
Payment
of
each
invoice
will
be
due
within
thirty
(30)
days
from
the
date
of
the
invoice.
Reporting.
Through
the
hoopla
Library
Administration
Website,
the
Library
will
have
access
to
certain
reports
summarizing
Patron
usage,
circulation
data,
and
purchase
activity
for
the
Digital
Titles.
Taxes.
The
Library
is
required
to
provide
a
sales
tax
exemption
certificate,
ifapplicable,
to
Midwest
Tape
as
part
of
the
on-boarding
process.
If
the
Library
is
not
exempt
or
does
not
do
so,
Midwest
Tape
will
add
(and
collect)
sales
taxes
to
any
purchases
made
pursuant
to
this
Agreement.
IV.
TERM
AND
TERMINATION.
Term.
The
term
of
this
Agreement
(the
“Term”)
begins
on
the
Effective
Date
and
continues
for
a
period
of
24 months
thereafter.
Upon
expiration
of
the
Term,
this
Agreement
will
automatically
renew
and
the
Term
will
be
extended
for
successive
renewal
periods
of
12 months
(each
a
“Renewal
Term”),
unless
either
Party
has
provided
at
least
sixty
(60)
days’
advance
written
notice
of
non-renewal.
Termination.
This
Agreement
may
be
terminated
in
either
of
the
following
ways:
By
Notice.
Either
Party
may
terminate
this
Agreement,
with
or
without
cause,
by
providing
the
other
Party
with
sixty
(60)
days’
advance
written
notice.
Due
to
Breach.
Either
Party
may
suspend
its
performance
or,
at
that
Party’s
sole
option,
terminate
this
Agreement
by
providing
the
other
Party
with
written
notice
of
such
action
in
the
event
of
(i)
the
other
Party’s
material
breach
of
this
Agreement,
which
breach
continues
uncured
for
a
period
of
thirty
(30)
days
after
written
notice
of
such
breach;
or
(ii)
the
Library’s
failure
to
perform
its
payment
obligations
under
Section
III
of
this
Agreement
for
a
period
of
at
least
thirty
(30)
days.
Upon
termination
of
this
Agreement,
the
Library
shall
immediately
(i)
cease
distribution
and
use
of
the
Service,
Digital
Media
Application,
Digital
Media
Platform,
Digital
Titles,
Marks,
Metadata,
and
Promotional
Postings;
and
(ii)
pay
all
amounts
due
to
Midwest
Tape.
V.
MIDWEST
TAPE
RIGHTS
&
OBLIGATIONS.
The
hoopla
Service.
Midwest
Tape
and/or
its
Service
Partners
will:
(a)
host
and
support
the
Service
as
provided
in
this
Agreement;
(b)
designate
an
implementation
specialist
(“hoopla
Coordinator”)
to
be
1/2017
Page
4 c
MIDWEST
TAPE
SOURCE
available
for
customer
support
to
the
Library
in
connection
with
the
launch
and
implementation
of
the
Service;
and
(c)
provide
the
Library
with
access
to
the
hoopla
Library
Administration
Website,
which
offers
tools
to
enable
the
Library
to
manage
use
of
the
Service,
including
in
regard
to
Patron
borrowing
limits,
lending
policies,
title
blocking,
ratings-
and
user-advisory
settings,
usage
dashboard,
and
reporting.
Ownership
of
Vendors’s
Intellectual
Property.
Subject
to
the
provisions
of
this
Agreement,
Vendors
retain
all
of
their
Intellectual
Property
Rights
in
and
to
the
Vendor’s
Digital
Titles,
Metadata,
Marks,
and
Promotional
Postings,
artwork,
and
other
property
that
may
be
utilized
or
accessed
in
connection
with
the
Service.Ownership
of
Midwest
Tape’s
Intellectual
Property.
As
between
the
Parties,
Midwest
Tape
owns
and
retains
all
Intellectual
Property
Rights
in
and
to
the
Service,
Digital
Media
Platform,
Digital
Media
Application,
hoopla
digital
Website,
hoopla
Library
Administration
Website,
Midwest
Tape
and
hoopla
and
hoopla
digital
trademarks,
and
all
other
Midwest
Tape
intellectual
property,
including
but
not
limited
to
all
modifications,
updates,
or
improvements
made
thereto.
The
Library
acknowledges
Midwest
Tape’s
ownership
of
such
Intellectual
Property
Rights.
Modifications
to
Digital
Media
Platform.
Midwest
Tape
has
the
right
to
modify,
at
any
time,
the
Service,
Digital
Media
Platform,
Digital
Media
Application,
hoopla
digital
Website,
hoopla
Library
Administration
Website,
and
other
aspects
and
features
of
hoopla
in
Midwest
Tape’s
sole
discretion,
in
order
to
develop,
modify,
or
improve
operations,
performance,
or
functionality.
Addition,
Removal,
and
Modifications
of
Digital
Titles.
Midwest
Tape
has
the
right
to
take
any
or
all
of
the
following
actions
with
respect
to
any
Digital
Title(s)
at
any
time
and
in
its
sole
discretion:
(a)
add
or
remove
Digital
Titles
to
or
from
the
Service;
(b)
set
or
adjust
the
applicable
Per
Circulation
Fee(s);
(c)
replace
content
files,
Metadata,
and/or
Promotional
Postings;
and
(d)
edit
or
modify
editorial
content
or
designs.
The
Library
will
be
notified
by
email,
the
hoopla
Library
Administration
Website,
or
other
means
of
major
modifications
to
the
functionality
of
the
Service.
Promotion
of
the
Service.
Midwest
Tape
may,
at
its
own
expense
and
in
its
own
discretion,
publicize
the
Service
and
communicate
with
the
general
public
and
Patrons
regarding
the
availability,
features,
and
use
of
the
Service,
Digital
Titles,
Digital
Media
Platform,
and
Digital
Media
Application.
Support.
Midwest
Tape
will
support
the
Service
by
maintaining
help
files,
information,
and
other
appropriate
documentation
and
training
materials.
Midwest
Tape
will
undertake
reasonable
efforts
to
help
the
Library
perform
the
Library’s
obligation
to
provide
Primary
Support
to
Patrons,
including
by
offering
periodic
training
opportunities
to
Library
staff,
updating
the
Library
regarding
system
changes,
and
providing
the
Library
with
answers
to
“frequently
asked
questions”
related
to
the
Service.
Midwest
Tape
will
supply
activation
support,
including
assisting
with
the
implementation
of
any
software,
and
reasonable
levels
of
continuing
support
to
assist
the
Library
in
its
use
of
the
Service.
Midwest
Tape
will
make
technical
support
personnel
available
for
feedback,
problem-solving,
and/or
general
questions.
Technical
support
services
to
the
Library
include:
(i)
reasonable
efforts
to
identify,
correct,
and/or
circumvent
errors
in
the
System
Digital
Media
Platform
Digital
Media
Application
hoopla
digital
Wbsit
and
hoopla
Library
Administration
Website;
and
(ii)
supplying
updates,
enhancements,
and
new
versions
of
the
Service
as
they
become
available
(the
Secondary
Support”).
Midwest
Tape
has
no
obligation
to
provide
Primary
Support
to
Patrons
and
any
support
provided
by
Midwest
Tape
to
Patrons
will
be
in
Midwest
Tape’s
sole
discretion.
Midwest
Tape
will
use
reasonable
efforts
to
provide
continuous
service.
Permissible
down-time
includes
periodic
unavailability
due
to
matters
such
as:
maintenance
of
the
server(s);
installation
or
testing
of
software,
public
or
private
telecommunications
services,
or
internet
nodes
or
facilities;
and
failure
of
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MIDWESTTAPE
U8RARANSqJ[EDASOURCEi
equipmentorservicesoutsidethecontrolofMidwestTape.Scheduleddown-timewilloccurperiodically andattimesdesigned,inMidwestTape’ssolediscretion,tominimizeinconveniencetohooplausers.
VI.MIscELLANEous.
Indemnities.EachParty(“IndemnifyingParty”)agreestodefend,indemnify,andholdharmlesstheother PartyanditsServicePartnersfromandagainstanyandallthird-partyclaims,demands,suits,legal proceedings,andcausesofactionthatariseoutoforrelatetoanybreachbytheIndemnifyingPartyofany ofitsrepresentationsandwarrantiesasstatedinthisAgreement(collectively,“IndemnifiableClaims”), includingbutnotlimitedtoalldamages,costs,expenses,reasonableattorneys’fees,judgments,and settlementsresultingfromsuchIndemnifiableClaims;provided,however,thatnoIndemnifiableClaimmay besettledwithouttheexpresswrittenconsentoftheIndemnifyingParty.
IndemnityProcess.ThePartyseekingindemnificationmustprovidepromptwrittennoticetothe IndemnifyingPartyofanyIndemnifiableClaimforwhichindemnificationwillbesought.TheIndemnifying PartymayelecttocontrolthedefenseandsettlementofanyIndemnifiableClaimswithcounselofits choosing.ThePartyseekingindemnificationwillcooperatewiththeIndemnifyingParty’sdefenseagainst theIndemnifiableClaims.IfanyIndemnifiableClaimiscoveredinpartbutnotentirelybyaParty’s indemnificationobligationhereunder,theIndemnifyingPartywillonlyberesponsibleforcoststotheextent attributabletothecoveredportion.
DISCLAIMEROFWARRANTIES.EXCEPTFORANYWARRANTIESEXPRESSLYPROVIDEDBY
MIDWESTTAPEINTHISAGREEMENT,MIDWESTTAPEMAKESNOWARRANTIESOFANYKIND,
WHETHEREXPRESSORIMPLIED,INCLUDINGBUTNOTLIMITEDTOANYIMPLIEDWARRANTYOF MERCHANTABILITYORFITNESSFORAPARTICULARPURPOSE.
LIMITATIONOFLIABILITY.EXCEPTASEXPRESSLYPROVIDEDOTHERWISEINTHIS
AGREEMENT,INNOEVENTWILLEITHERPARTYBELIABLEFORANYINDIRECT,INCIDENTAL,
CONSEQUENTIAL,SPECIAL,EXEMPLARYORPUNITIVEDAMAGES,INCLUDINGBUTNOTLIMITED
TOLOSTPROFITSORLOSTBUSINESSOPPORTUNITY,ARISINGOUTOFORRELATINGTOTHIS
AGREEMENT,EVENIFSUCHDAMAGESAREFORESEEABLEANDREGARDLESSOFWHETHER SUCHPARTYHASBEENADVISEDOFTHEPOSSIBLITYTHEREOF.
ConfidentialInformation.“ConfidentialInformation”meansanynon-publicinformationofeitherPartythat isdisclosedtotheotherPartyinconnectionwiththisAgreementeitherdirectlyorindirectly,inwriting,orally, electronically,orbyinspectionoftangibleobjects,andthatisdesignatedinwritingas“Confidential”atthe timeofdisclosureorwithinfive(5)daysthereafter.ConfidentialInformationincludes,withoutlimitation,any andallnon-publicbusinessplans,customerinformation,pricing,contractterms,availablecontentand sales,marketingand/orfinancesofthedisclosingParty.EachPartyagreestoholdtheConfidential InformationoftheotherPartyinconfidenceandtorefrainfromdisclosingsuchConfidentialInformationto anythirdparty,excepttotheextentrequiredtobedisclosedpursuanttogovernmentalorjudicialprocess, providedthatnoticeofsuchprocessispromptlyprovidedtothedisclosingPartyinorderthatitmayhave everyopportunitytointercedeinsuchprocesstocontestsuchdisclosureorseekanappropriateprotective order.ConfidentialInformationisthepropertyofthedisclosingParty,andthereceivingPartywillnotbe deemedbyvirtueofitsaccesstoConfidentialInformationtohaveacquiredanyrightorinterestinortoany suchConfidentialInformation.ConfidentialdoesnotaffecteitherParty’srighttouseordiscloseinformation thatisnotConfidentialInformation,includinginformationthatisinthepublicdomainorthatthereceiving Partycanshowwasknowntoitwithoutanyconfidentialityobligationpriortothedisclosurebythedisclosing Party.
Assignment.Exceptasprovidedherein,neitherPartymay,byoperationoflaworotherwise,assign, sublicense,orotherwisetransferanyofitsrightsorobligationsunderthisAgreementwithouttheprior writtenconsentoftheotherParty,whichmaynotbeunreasonablywithheldordelayed.EitherPartymay 1/2017Page6
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assign,transfer,orotherwisedelegateanyorallofitsrightsandobligationsunderthisAgreementtoany successorcarryingonthatpartofthebusinesstowhichthisAgreementrelatesortoanypurchaserofall orsubstantiallyalloftheassetsorstockofsuchParty.EachPartymayappointcontractorstoperformpart ofitsobligationshereunder,providedthatthePartyremainsfullyresponsibleforsuchcontractors performance.ThisAgreementbinds,benefits,andisenforceablebyandagainstbothPartiesandtheir respectivesuccessorsandpermittedassigns.
Notices.NoticesrequiredbythisAgreementmustbesentbyUnitedStatesmail,aswellasbyelectronic mail(orbyfacsimile),directedasfollows:
MidwestTape,LLC:Library:
__________________________
6950HallStreet
_________________________________
Holland,Ohio43528
________________________________
infotmidwesttapes.com
_______________________________
1(800)875-2785
________________________________
Amendment.Noamendment,modification,addendum,orrevisiontothisAgreementisvalidunlessitis inwritingandsignedbyallPartiestothisAgreement.
Arms-LengthNegotiations.ThisAgreementwasnegotiatedatarm’slengthwitheachPartyreceiving advicefromindependentlegalcounsel,andhasbeenexecutedanddeliveredingoodfaith.Itistheintent ofthePartiesthatnopartofthisAgreementshouldbeconstruedagainstanyPartybecauseoftheidentity ofthedrafter.
Counterparts.ThisAgreementmaybeexecutedincounterparts,eachofwhichtakentogetherconstitutes onesingleAgreementbetweentheParties.
EntireAgreement.ThisAgreementisanintegratedAgreementcontainingtheentireunderstanding betweenthePartiesregardingthesubjectmatterofthisAgreement,and,exceptfortherepresentations, warranties,andpromisesexpresslysetforthinthisAgreement,norepresentations,warranties,orpromises havebeenmadeorrelieduponbyeitherPartyasaninducementtoenterintothisAgreement.This AgreementprevailsoverallpriorcommunicationsoragreementsbetweenthePartiesortheir representativesregardingthesubjectmatterhereof.
[Remainderofpageintentionallyleftblank.]
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MIDW.
.1
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Ll8RARiANSEOA
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Force
Majeure.
No
Party
may
be
considered
in
default
or
to
have
incurred
any
liability
hereunder
due
to
any
failure
to
perform
this
Agreement
should
such
failure
arise
out
of
causes
beyond
its
reasonable
control,
including,
without
limitation,
work
stoppages,
fires,
riots,
accidents,
floods,
storms,
unavailability
of
utilities
or
fuel,
Internet
or
other
communication
failures,
or
other
similar
failures
or
occurrences.
The
time
for
performance
will
be
extended
for
a
period
equal
to
the
duration
of
such
conditions.
IN
WITNESS
WHEREOF,
the
Parties
hereto
have
caused
this
Agreement
to
be
executed
by
their
duly
authorized
representatives
as
of
the
Effective
Date
first
written
above.
ACCEPTED
AND
AGREED
ACCEPTED
AND
AGREED
Name
of
ary
__________________
MIDWEST
TAPE,
LLC
By:
_____________________________
By:
Print
Name:
Print
Name:
%L2
Title:
Zy)t14/
4Xy
iAn—
Title:________________
Date
Signed:
_____________________
Date
Signed:
__________________
EASSenior
ia’Rity
Attort
/
DATE
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