MASTER AGREEMENT
Institution Name: Newport Beach Public Library Primary Contact: Melissa Hartson Address: 1000 Avocado Avenue
Newport Beach, CA 92660
Phone: 949-717-3810
Email: [email protected]
This Master Agreement is made and entered into as of the Effe ctive Date set forth below by and between Kanopy INC, a Delaware limited liability company with a place of business One OverDrive Way, Cleveland, OH 44125 (“Kanopy”), and the institution identified above (“Institution”).
Overview
Kanopy streams and makes available digital vi deo content, including associated audio, graphics, text, images and other data and content, to universities, colleges, schools, public libraries, corporations and other institutions for access and use pursuant to applicable access and license terms.
As permitted by an order between Kanopy and an institution, Kanopy may also host and stream di gital video content uploaded by t he institution where such institution holds all necessary rights and permissions to enable Kanopy to host and stream such content. Kanopy stre ams and makes digital video content available through vari ous platforms, including it s website at www.kanopy.com, the Kanopy iOS and Android mobile apps, the Kanopy channel on Roku, and other modes of access that are available now or may become available in the future.
Structure of Agreement and Order of Precedence
Kanopy and Institution may enter into one or more order forms under this Agreement (as defined below) for access to and use of digital content hosted or streamed by Kanopy. As appropriate, each or der form will specify the title(s), product(s), fees, period or te rm of access, and any special usage rights and/or restrictions and other terms relevant to the order. Each such order form will be governed by the terms and conditions of this Agreement.
This Master Agreement consists of: (a) the attached Terms and Conditions; (b) any order forms entered into hereunder between Kanopy and Institution; and (c) this signature page (collectively, the “Agreement”). In the event of any conflict between or among the various components of this Agreement, the terms and conditions of each component shall take precedence in the order listed above; provided, however, that any conflict with respect to restrictions on access to or us e of materials provided by Kanopy shall be resolved in the manner that gives broadest effect to such restrictions.
IN WITNESS WHEREOF , each of the parties has caused this Agreement to be executed as of the Effective Date by its duly authorized representative.
KANOPY INC APPROVED AS TO FORM:
CITY ATTORNEY’S OFFICE
By:
Name:
Title:
Date:
By:
Aaron C. Harp
City Attorney
CITY OF NEWPORT BEACH
a California municipal corporation
ATTEST:
Date:
By:
Joe Stapleton
Mayor
Date:
By:
Lena Shumway
City Clerk
ATTACHMENT A
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TERMS AND CONDITIONS
1. Definitions
(a) “Access Term” means the period of time set forth in each Order Form during which the Offerings or, as applicable, Institution Content covered by such Order Form will be hosted and streamed by Kanopy pursuant to this Agreement.
(b) “Credentials” means any user accounts, passwords
and other authentication credentials a ssociated with access to or use of the Service by Institution or End Users.
(c) “End User” means: (i) any student, teacher,
professor, patron, employee or staff member affiliated with Institution; (ii) any authorized visitor physically present at the facilities of Institution; and (iii) with respect to any Institution that is a library established for use by the general public and maintained primarily through public funds, any individual who is a member of such Institution.
(d) “Institution Content” means any content provided by Institution pursuant to this Agreement for hosting and streaming by Kanopy.
(e) “Institution Facilities” means Credentials and any
account, hardware, system or other facility within Institution’s custody or control.
(f) “Offering” means any Product or Title.
(g) “Order Form” means an order form, invoice or other
ordering document entered into between the parties pursuant to this Agreement specifying the Offerings, Institution Content, fees and payment terms, special usage rights and restrictions and other terms relevant to the order.
(h) “Product” means each product identified in an Order Form that Kanopy will make accessible to Institution pursuant to this Agreement, including: (i) any package or collection of titles or other content made accessible to Institution via subscription, patron-driven acquisition (PDA), pay-pe r-use (PPU) or other such models; and (ii) any other product that Kanopy may offer.
(i) “Service” means the service through which Kanopy
hosts and makes accessible Offerings and, as applicable, Institution Content.
(j) “Territory” means the geogra phical area designated as the Territory in an Order Form or, if no such area is designated in an Order Form, the country in which Institution is domiciled. (k) “Title” means each film, video or other content
(excluding Institution Content) identified in an Order Form that Kanopy will make accessible to Institution pursuant to this Agreement.
2. Grant of Rights and Restrictions
(a) Grant of Rights. During th e applicable Access Term and subject to Institution’s compliance in all material respects with the terms and conditions of this Agr eement, Kanopy hereby grants Institution a limited, non-exclusive, non-sublicensable right and license to allow End Users within the designated Territory to view Offerings and, as applicable, Institution Content in real-time within the Service. (b) Restrictions. All rights granted under this Agreement may only be exercised for non-commerc ial personal or educational use.
Institution shall not: (i) use, archive, capture, reproduce, modify, adapt, create derivative works from, pub licly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights to the Service or any Offering, except as expressly permitted under this Agreement; (ii) translate or re verse engineer, decompile, decode or otherwise attempt to derive the source code, architectural framework or data records of any software within or associated with the Service; (iii) frame or utilize any framing technique to enclose any content within the Service; (iv) access the Service fo r the purpose of benchmarking or developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Service or any products or services offered by Kanopy; (v) rent, lease, lend or sell the Service, or otherwise provide access to the Service as part of a service bureau or similar fee-for-service purpo se; (vi) make the Service or any Offering accessible to anyone who is not an End User; (vii) remove or obscure any proprietary no tice that appears within the Service or any Offering; or (viii) use the Service in any way that does not comply in all material respect with the terms and conditions of this Agreement and all applicable laws and regulations.
(c) Policies. In addition to the terms and conditions of this Agreement, access to and use of the Service shall comply with and be subject to any terms of service, acceptable use policy, privacy policy, end user license agreement and other guidelines instituted by Kanopy or its licensors or service providers.
(d) Technical Requirements. Institution and End Users
shall be solely responsible for obtaining, configuring and maintaining any hardware, network connectivity and third-party software required to access the Service, including computers, operating systems, web browsers and storage devices.
(e) Protection. Institution shall be solely responsible for protecting the confidentiality of Credentials and all activities undertaken using Institution Facilities. In the event that Institution becomes aware of any unauthorized use of the Servic e through Institution Facilities, Institution shall promptly give wr itten notice to Kanopy of such unauthorized use and make reasonable efforts to eliminate such unauthorized use. Institution shall implement and maintain appropriate security policies and procedures an d access control methodologies to safeguard access to the Service throug h Institution Facilities and to limit access to the Service to End Users.
3. Institution Content
(a) Grant of Rights. As specified in an applicable Order Form, Institution may upload Institution Content to the Service for hosting and streaming by Kanopy pursuant to this Agreement. During the applicable Access Term, Institution hereby grants Kanopy a limited, non- exclusive, non-sublicensable, roya lty-free right and license to host, stream, exhibit, transmit, reproduce, publicly perform, publicly display and project Institution Content as necessary to make Institution Content available for viewing by End Users within the Service.
(b) Assurances. Institution represents and warrants that:
(i) it holds all necessary rights (including all intellectual property rights) and permissions to grant the rights under this Section 3 to Kanopy; and (ii) Institution Content does not violate any applicable laws or any rights of another party, including any laws relating to defamation or indecency and any intellectual property or right of privacy or publicity. (c) Institution Ownership. Kanopy acknowledges and
agrees that, as between Institutio n and Kanopy, Institution (or its licensors) owns all rights, title and interest (including all intellectual property) in and to Institution Content.
4. Fees and Taxes
(a) Fees. Institution shall pay Kanopy the applicable fees set forth in each Order Form pursuan t to the payment terms therein. If an Order Form does not specify payment terms, then payments thereunder shall be due net thirty ( 30) days after invoice. Amounts not paid when due shall be subject to inte rest at the rate of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is less.
(b) Budget. Kanopy acknowledges that compensation
for each contract year of the Agreement, including all reimbursable items and fees, shall not exceed $75, 000 USD without a prior written amendment to this Agreement. Kanopy agrees to email Institution when Institution’s overall spend reac hes 70%, 80%, 90%, and 100% of the budget. Kanopy reserves the right to suspend or terminate Institution’s Kanopy platform upon depletion of Institution’s budget. 8-4
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(c) Taxes. Any and all amounts payable hereunder by
Institution are exclusive of any sales, use, value-added, excise or other similar taxes (collectively, “Taxes”). Institution shall be solely responsible for paying all applicable Taxes. If Kanopy has the legal obligation to collect any Taxes, Institution shall reimburse Kanopy upon invoice by Kanopy. If Institution is required by law to withhold any taxes from its payments to Kanopy, Institution shall provide Kanopy with an official tax receipt or other appropriate documentation to support such payments and take reasonable steps to minimize such payments.
5. Intellectual Property
(a) Kanopy Ownership. Institution acknowledges and
agrees that, as between Kanopy and Institution, Kanopy (or its licensors) owns all rights, title and interest (including all intellectual property) in and to the Service and Offerings. Kanopy reserves all rights not expressly granted under this Agreement.
(b) Suggestions. If Institution elects to provide or make available to Kanopy any suggestions, comments, ideas, improvements or other feedback relating to the Service or Offerings (“Suggestions”), Kanopy shall be free to use, disclo se, reproduce, have made, modify, license, transfer and otherwise utilize and distribute Suggestions in any manner, without credit or compensation to Institution.
6. Term and Termination
(a) Term. The term for this Agreement shall commence
on July 1, 2025 and continue in e ffect until June 30, 2030 unless earlier terminated by Kanopy or Institution in accordance with this Agreement. (b) Suspension. Kanopy reserves the right to suspend
Institution’s and any End User’s access to and use of the Service and Offerings in the event of any: (i) actual or reasonably suspected breach of Section 2 by Institution or any End User; provided, however, that Kanopy, where applicable, will use co mmercially reasonable efforts to limit suspension to each End User in breach of Section 2 or 3(b) and restore access upon elimination of the relevant breach; or (ii) failure by Institution to make any payment when due under this Agreement; provided, however, that Kanopy will restore access upon Institution’s payment of all outstanding fees.
(c) Termination. Notwithstanding anything to the
contrary, this Agreement may be terminated as follows: (i) by either party upon written notice to the other party; provided, however, that no Order Form is then in effect; (ii) upon a material breach of this Agreement by a party, which breach is not cured within thirty (30) days after receipt of written notice from the other party; or (iii) by either party in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business. (d) Survival. Any provision that, by its terms, is intended to survive the expiration or terminat ion of this Agreement shall survive such expiration or termination, in cluding Sections: 3(b)(Assurances); 4 (Fees and Taxes); 5 (Intellectual Property); 6(d) (Survival); 7 (Representations and Warranties); 8 (I ndemnification); 9 (Disclaimer of Warranties); 10 (Limitation of Liability); and 11 (Miscellaneous).
7. Representations and Warranties
Kanopy and Institution each represents and warrants to the other that: (a) it has the necessary power and authority to enter into this Agreement; (b) the execution and performance of this Agreement have been authorized by all necessary co rporate or institutional action; (c) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such party; (d) no action by any governmental entity is necessary to make this Agreement valid and binding upon such party; and (e) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement.
8. Indemnification
(a) Indemnification. To the extent permitted by
applicable law, each party agrees that the other party and its affiliates and licensors (collectively, “Indemnifie d Parties”) shall have no liability for, and each party shall indemnify, defend and hold the other party’s Indemnified Parties harmless against, any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement to the extent arising from any action or claim of a third party based upon a party’s breach of Section 2(b) or 3(b) or infringement of such third party’s copyright attributable to any materials provided by the party under this Agreement; provided, however, that Kanopy shall have no obligation to indemnify Institution from any loss, damage, cost, liability or expense to the extent it arises from: (i) access to or use of the Service or any Offering in a manner that does not comply in all material respects with the terms and conditions of this Agreement or applicable laws or regulations; (ii) use of the Service or any Offering in combination with any materials not provided or approved by Kanopy; or (iii) Institution Content. In the event that the Service or any Offering becomes the subject of an indemnified claim or Kanopy reasonably determines that any Offering is likely to become the subject of an indemnified claim, Kanopy may, at its sole discretion: (1) procure for Institution a license as necessary for Institution to exercise the rights granted by Kanopy under this Agreement; (2) modify or replace the Service or Offering to avoid infringement, provided, however, that the Service or Offering as modified or replaced remains materially the same; or (3) issue to Institution a pro-rata refund of fees paid by Institution for the Service or Offering based upon the remainder of the Access Term. (b) Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any indemnified claim; provided, however, that failure of the indemnified party to give such prompt written notice shall not relie ve the indemnifying party of any obligation to indemnify pursuant to this Section 8, except to the extent the indemnifying party has been prej udiced thereby; (ii) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any indemnified claim; and (iii) give the indemnifying party sole and complete control over the defense or settlement of any indemnified claim; provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified pa rty to make any payment or bear any obligation.
9. DISCLAIMER OF WARRANTIES
THE SERVICE, OFFERINGS AND ALL OTHER MATERIALS PROVIDED BY KANOPY UNDER THIS AGREEMENT (COLLECTIVELY, “KANOPY
MATERIALS”) ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” KANOPY, TO THE MAXIMUM EXTENT PERMITTED BY LAW,
EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS
(EXCEPT AS SET FORTH IN SECTION 7), EXPRESS OR IMPLIED, INCLUDING:
(A) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH RESPECT TO
THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE
KANOPY MATERIALS, OR THAT USE OF THE KANOPY MATERIALS WILL BE
ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET INSTITUTION’S OR END USERS’ REQUIREMENTS.
10. LIMITATION OF LIABILITY
OTHER THAN WITH RESPECT TO KANOPY’S INDEMNIFICATION
OBLIGATIONS UNDER SECTION 8(a): (A) IN NO EVENT SHALL KANOPY OR
ITS AFFILIATES AND LICENSORS BE LIABLE FOR ANY INCIDENTAL,
INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST
PROFITS OR COST OF COVER, ARIS ING FROM OR RELATING TO THIS
AGREEMENT, INCLUDING DAMAGES ARISING FROM ANY TYPE OR
MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED
BY OR RESULTING FROM ANY ACCESS TO OR USE OF OR INABILITY TO
ACCESS OR USE THE KANOPY MATERIALS, SUCH AS ANY MALFUNCTION,
DEFECT OR FAILURE OF ANY KANOPY MATERIALS, EVEN IF KANOPY HAD
ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH 8-5
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DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE
FORESEEABLE; AND (B) IN NO EVENT SHALL KANOPY’S AGGREGATE
LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES
RECEIVED BY KANOPY FROM INSTIT UTION UNDER THIS AGREEMENT IN THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENTS GIVING RISE TO LIABILITY AROSE.
11. Miscellaneous
(a) Independent Contractors. The relationship between
Kanopy and Institution established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party au thorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party.
(b) Notice. All notices, demands and other
communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and sent to the parties as follows: (i) if to Kanopy, at the address set forth for Kanopy in the signature page herein, Attn: Legal Department, or, if different, in the most recent Order Form; (ii) if to In stitution, at the address set forth for Institution in the signature page herein or, if different, in the most recent Order Form.
(c) Assignment. Institution may not assign this
Agreement, or assign or delegate an y right or obligation hereunder, by operation of law or otherwise without the prior written consent of Kanopy. This Agreement shall be bi nding upon and inure to the benefit of the parties hereto and their re spective successors and permitted assigns.
(d) No Third-Party Beneficiaries. Nothing in this
Agreement shall confer any rights upon any person or entity other than the parties hereto and their respective successors and permitted assigns. (e) Interpretation. For the purposes of this Agreement:
(i) the words “such as,” “include,” “includes” and “inc luding” shall be deemed to be followed by the words “without limitation;” (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpreta tion against the party drafting an instrument or causing any instrument to be drafted.
(f) Entire Agreement. This Agreement contains the
entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. (g) Amendment. This Agreement may not be amended
except in a writing executed by an authorized representative of each party.
(h) Severability. If any provision of this Agreement shall be held to be invalid or unenforceab le under applicable law, then such provision shall be construed, limited , modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement. (i) Governing Law. This Agreement shall be governed by
and construed and enforced, without regard to conflict of laws principles, in accordance with: (i) if Institution is domiciled in the United States or Canada, the laws of the state or province in which Institution is domiciled; or (ii) if Institution is domiciled outside the United States and Canada, the laws of the country in which Institution is domiciled. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
(j) No Waiver. The failure of either party to require strict performance by the other party of an y provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.
(k) U.S. Government Entities. This section applies to
access to or use of the Service by a branch or agency of the United States Government (“U.S. Government”). The Service includes “commercial computer software” and “commercial computer software
documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R.
12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The U.S. Government shall acquire only those rights set forth in this Agreement with respect to the such items, and any access to or use of the Service by the U.S. Government constitutes: (1) agreement by the U.S. Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (2) acce ptance of the rights and obligations herein.
(l) Force Majeure. Except with respect to payment
obligations under Section 4, neither party shall be liable for any failure to perform under this Agreement to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection or any other cause beyond the reasonable control of the party invoking this provision.
(m) Confidentiality. Each party acknowledges and agrees that it shall treat the terms and condi tions of this Agreement, including any pricing information, as confidential information and not disclose such information to any third party except to the extent required by applicable law. For the avoidance of doubt, the parties acknowledge and agree that Kanopy may identify Customer as a Kanopy customer, and Customer may identify Kanopy as a provider of content to Customer.
(n) Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
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