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hoopla® Digital Media Agreement
This hoopla Digital Media Agreement (“Agreement”) is made as of this 20th day of June, 2023 (“Effective Date”) by and between the City of Redondo Beach, a chartered municipal corporation (the “Library”), and Midwest Tape, LLC.
WHEREAS, Midwest Tape’s hoopla Digital Media Platform (“hoopla,” the “Platform,” or the “hoopla Platform”) allows participating libraries to provide their users with access to digital media content using smart phones, tablets, computers, streaming devices, and web browsers; and WHEREAS, the Platform is designed to be accessible 24/7 and offers various licenses to media content in multiple formats, including, without limitation, movies, television programs, music, audiobooks, eBooks, and comics, subject to circulation limits (if any) and other settings established by the user’s library system; and
WHEREAS, the Library wishes to make hoopla available to its 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:
1. DEFINITIONS. The following definitions apply wherever these terms appear in this Agreement, including the Appendices:
1.1 “Digital Media Platform” means one or more computer programs or applications 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 hoopla Application, hoopla Website, and Library Administration Website.
1.2 “Digital Titles” means any and all digital media content that Midwest Tape makes available to the Library and its Patrons via the Digital Media Platform during the Term of this Agreement.
1.3 “Flex Borrow” or “Flex Circulation” means an OCOU Circulation, as defined in Appendix 2 to this Agreement. As set forth in the attached Appendix 2, a Flex Borrow occurs when a Patron uses the hoopla Application or hoopla Website to borrow a Digital Title that is at that time available to that user in the form of a one-copy/one-user (“OCOU”) license owned or controlled by the Library.
1.4 “Flex License” means a one-copy/one user license (“OCOU License”), as set forth in the attached Appendix 2.
1.5 “hoopla Application” means one or more computer applications 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 streaming devices, smart phones, tablets, and/or other mobile devices.
1.6 “hoopla Website” means a Midwest Tape website (currently www.hoopladigital.com) that may be used to access, browse, borrow, stream, and/or return Digital Titles. 9/2022US – PPU/OCOU Page 2
1.7 “Instant Borrow” or “Instant Circulation” means a PPU Circulation, as defined in Appendix 2 to this Agreement. As set forth in the attached Appendix 2, an Instant Borrow occurs when a Patron uses the hoopla Application or hoopla Website to borrow a Digital Title (or to obtain access to a “Binge Pass”) pursuant to a pay-per-use (“PPU”) license that is paid for by the Library.
1.8 “Instant License” means a pay-per-use license (“PPU License”), as set forth in the attached Appendix 2.
1.9 “Intellectual Property Rights” means all rights in and to patents, trademarks, service marks, trade names, copyrights, trade secrets, technology, software, designs, algorithms, knowhow, as well as moral rights and all other intellectual and proprietary rights of any type under any applicable laws.
1.10 “Library Administration Website” means one or more Midwest Tape website(s) (currently available at www.midwesttapes.com) that may be accessed and utilized by the Library to obtain OCOU Licenses, manage content available to Patrons in the Platform, and administer Library policies in regard to Patron use of the Platform.
1.11 “Library Online Catalog” means the website(s) 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.
1.12 “Marks” means any trademarks, service marks, trade names, logos, designs, icons, characters, cover art, styles, trade dress, or other indicators of source associated with any Digital Titles, including without limitation all translations or transliterations of the foregoing in any language, or any colorable imitations or modified versions thereof.
1.13 “Midwest Tape” means Midwest Tape, LLC and any of its parents, subsidiaries, or affiliated entities that are engaged in the business of selling and distributing media content in digital form to libraries and library users via the Platform.
1.14 “Pre-Owned Content” has the meaning set forth in Appendix 2.
1.15 “Service Partners” means any third parties that provide digital storage, webhosting, IT services, data analysis and processing, or distribution or other services to Midwest Tape in connection with the Platform.
1.16 “Title Summary and Promotional Data” means, with respect to each Digital Title, the following information and data that is made available to Library pursuant to this Agreement: (i) title; (ii) author(s), publisher, illustrator(s), narrator(s), actor(s), director(s), producer(s), studio(s), and similar descriptive information; (iii) if commercially used, the digital object identifier; (iv) narrative description or summary of the work; (v) cover art and image, graphics, and other images; (vi) copyright notice; and (vii) any other identifying information.
1.17 “Vendor” means any supplier to Midwest Tape of (i) Digital Title(s); (ii) Title Summary and Promotional Data; and/or (iii) technology or services necessary for Midwest Tape to provide the Platform to the Library.
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2. Library RIGHTS & OBLIGATIONS.
2.1 Rights. During the Term, and subject to all the terms and limitations set forth in this Agreement, Midwest Tape grants to the Library the non-exclusive and non-transferrable right to display and access the Platform and Title Summary and Promotional Data for the limited purpose of: (a) allowing Patrons to access, view, and borrow Digital Titles through the Platform and pursuant to this Agreement; (b) promoting awareness and authorized use of the Platform, including via postings on the Library Online Catalog; and (c) establishing and implementing Library-specific policies in regard to use of the Platform by the Library and Patrons, consistent with this Agreement and the requirements of the Platform.
2.2 Limitations. Except for the limited, non-exclusive, non-transferrable rights expressly granted to Library under this Agreement, Library shall have no right in or to, or ownership of, the Platform, Digital Titles, hoopla Application, hoopla Website, Library Administration Website, Marks, Title Summary and Promotional Data, or any other artwork or materials delivered by or on behalf of Midwest Tape. The Library shall have no right to access, use, modify, or reproduce any portion of any source code relating to the Platform, or to make, sell, or distribute any variations or derivative works of the Platform. The Library agrees to the support and protection of Intellectual Property Rights (including but not limited to copyright and trademark protections), to discourage copyright or trademark infringement, to use its best efforts to prohibit Patrons or others from engaging in such infringement (including by immediately notifying Midwest Tape of any known or suspected violations of Intellectual Property Rights relating to use of the Platform or the Digital Titles), and to refrain from facilitating such activity. In addition, the Library will comply with all other requirements communicated by or on behalf of Midwest Tape with respect to any Intellectual Property Rights and the Marks.
2.3 No Public Performance Rights. The Library shall have no public performance rights in the Digital Titles under the terms of this Agreement. Accordingly, the Library may not offer any Digital Titles as a performance to Patrons or the general public, sponsored by the Library or otherwise.
2.4 General Obligations. To facilitate the successful introduction of the Platform to Patrons, and the use of the Platform by Patrons, the Library shall: (a) regularly communicate to staff, Patrons, and the general public served that the Platform is available to Patrons; (b) provide suitable training opportunities to appropriate Library staff members, so that they understand the Platform and can assist in the promotion and the use of the Platform by Patrons; (c) regularly feature prominent links and references to popular Digital Titles and the hoopla Website on the Library Online Catalog’s homepage; (d) incorporate MARC record data regarding Digital Titles in the Library’s catalog to enhance the discoverability of key content available in the Platform; (e) manage all funds designated or appropriated for use of the Platform; (f) participate in the implementation of the Platform, including without limitation by providing Midwest Tape with sufficient and accurate information to identify Patrons of the Library who are authorized to utilize the Platform; (g) provide Primary Support, as defined below; (h) perform requested linkage between the Platform and the Library Online Catalog, as well as reasonable technical services to support and maintain the Platform 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 Platform and/or the use of the Platform, including any changes that could impact the process of Patron authentication.
2.5 Network Connectivity. The Library is responsible for providing a suitable network and Internet system for integration of the Platform into the Library Online Catalog or other systems. 9/2022US – PPU/OCOU Page 4
2.6 Use of the Library Administration Website. The Library agrees that it is solely responsible for managing its use of the Library Administration Website and using that website as designed and in accordance with the Terms and Conditions posted on that website, including by establishing, verifying, and maintaining any settings and controls regarding use of the Platform by Patrons (e.g., limitations on circulations, content restrictions, reporting preferences, etc.).
2.7 Library Online Catalog. The Library is solely responsible for all aspects of catalog integration, operation, training, support, and/or maintenance necessary for the operation of the Library Online Catalog. 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 Platform with the Library’s own Library Online Catalog 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 Online Catalog, including but not limited to changes of personnel that could impact the support, functionality, and/or performance of the Platform.
2.8 Primary Support. The Library is responsible for providing its Patrons with “Primary Support,” which includes assisting Patrons with the use of the Platform, responding to Patron questions regarding the functionality and technical requirements of the hoopla Website and the hoopla Application, and helping Patrons with the process of communicating with Midwest Tape where necessary and appropriate to obtain additional support and technical assistance.
2.9 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 or under the Terms and Conditions applicable to the Library Administration Website, neither the Library nor any of its employees, agents, or others acting under its direction has made or will make any representations or warranties, express or implied, to anyone concerning the Platform, Digital Titles, hoopla Application, hoopla Website, and/or Library Administration Website.
2.10 Compliance with Applicable Laws and Regulations. The Library will comply with all applicable laws, ordinances, rules, regulations, and other legal requirements in connection with its performance under this Agreement.
2.11 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, Library Administration Website, hoopla Website, and hoopla Application.
3. FEES, PAYMENTS & REPORTING.
3.1 Invoicing and Payment. Except for purchases of Flex Licenses (which will be invoiced to the Library by Midwest Tape after each purchase), Midwest Tape will invoice the Library by Invoice Period. “Invoice Period” means a calendar monthly period in which transactional activity occurs. Payment of each invoice will be due within thirty (30) days from the receipt of the invoice.
During any period in which Midwest Tape is holding an Advance from the Library, Midwest Tape will apply the Advance funds toward payment of the invoice upon issuance. 9/2022US – PPU/OCOU Page 5
3.2 Reporting. Through the Library Administration Website, the Library will have access to certain reports summarizing Patron usage, circulation data, and purchase activity for the Digital Titles.
3.3 Taxes. The Library is required to provide a sales tax exemption certificate, if applicable, 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.
4. TERM AND TERMINATION.
4.1 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”) until June 19, 2027.
4.2 Termination. This Agreement may be terminated in either of the following ways:
By Notice. Either Party may terminate this Agreement, with or without cause, at the end of the Term by providing the other Party with sixty (60) days’ advance written notice prior to the termination date. All prepaid fees shall be refunded to the Library. .
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 this Agreement for a period of at least thirty (30) days. If any period of such suspension exceeds 30 days, the nonbreaching Party may terminate this Agreement by providing the other Party with written notice of such action.
Upon termination of this Agreement, the Library shall immediately (i) cease distribution and use of the Platform, hoopla Application, hoopla Website, Digital Titles, Marks, Title Summaries and Promotional Data; and (ii) pay all amounts due to Midwest Tape. Once the Library satisfies these obligations, any unapplied portion of an Advance payment will be refunded within thirty (30) days.
5. MIDWEST TAPE RIGHTS & OBLIGATIONS.
5.1 The hoopla Platform. During the Term, Midwest Tape and/or its Service Partners will provide for the following: (a) hosting of and support for the Platform as provided in this Agreement; (b) designation of an implementation specialist (“hoopla Coordinator”) to be available for customer support to the Library in connection with the launch and implementation of the Platform; and (c) Library access to the Library Administration Website, which offers tools to enable the Library to manage use of the Platform, including in regard to its inventory, Patron borrowing limits, lending policies, title blocking, ratings and user-advisory settings, usage dashboard, and reporting.
5.2 Ownership of Vendors’ Intellectual Property. Subject to the provisions of this Agreement, hoopla Vendors retain all of their Intellectual Property Rights in and to their Digital Titles, Metadata, Marks, and Promotional Postings, artwork, and other property that may be utilized or accessed in connection with the Platform.
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5.3 Ownership of Midwest Tape’s Intellectual Property. As between the Parties, Midwest Tape owns and retains all Intellectual Property Rights in and to the Digital Media Platform, hoopla Application, hoopla Website, 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.
5.4 Modifications to Digital Media Platform. The Platform, hoopla Application, hoopla Website, Library Administration Website, and other aspects and features of hoopla may be modified at any time by Midwest Tape in its sole discretion, including, without limitation, in order to develop, modify, or improve operations, performance, or functionality.
5.5 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 Platform; (b) set or adjust the applicable fees and charges, including, without limitation, PPU Circulation Fee(s), OCOU License Fees, and/or other charges relating to the Platform and/or the media content available on the Platform; (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 Library Administration Website, or other means of major modifications to the functionality of the Platform.
5.6 Promotion of the Platform. Midwest Tape may, at its own expense and in its own discretion, publicize the Platform and communicate with the general public and Patrons regarding the availability, features, and use of the Digital Titles, Digital Media Platform, hoopla Application, and hoopla Website.
5.7 Support. To support the Platform, Midwest Tape will (a) maintain help files, information, and other appropriate documentation and training materials; (b) undertake reasonable efforts to help the Library perform its 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 Platform; (c) 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 Platform; and (d) 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 Platform, hoopla Application, hoopla Website, and Library Administration Website; and (ii) supplying updates, enhancements, and new versions of the Platform as they become available (the “Secondary Support”). It is acknowledged and agreed that Midwest Tape has no obligation to provide Primary Support to Patrons and any support provided to Patrons will be in its sole discretion.
During the Term, 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 equipment or services outside its control. Scheduled down time will occur periodically and at times designed, in Midwest Tape’s sole discretion, to minimize inconvenience to hoopla users.
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6. MISCELLANEOUS.
6.1 Indemnities. Each Party (“Indemnifying Party”) agrees to defend, indemnify, and hold harmless the other Party and its parents, subsidiaries, and Service Partners from and against any and all third-party claims, demands, suits, legal proceedings, and causes of action that arise out of or relate to any breach by the Indemnifying Party of any of its representations and warranties as stated in this Agreement (collectively, “Indemnifiable Claims”), including but not limited to all damages, costs, expenses, reasonable attorneys’ fees, judgments, and settlements resulting from such Indemnifiable Claims; provided, however, that no Indemnifiable Claim may be settled without the express written consent of the Indemnifying Party.
6.2 Indemnity Process. The Party seeking indemnification must provide prompt written notice to the Indemnifying Party of any Indemnifiable Claim for which indemnification will be sought. The Indemnifying Party may elect to control the defense and settlement of any Indemnifiable Claims with counsel of its choosing. The Party seeking indemnification will cooperate with the Indemnifying Party’s defense against the Indemnifiable Claims. If any Indemnifiable Claim is covered in part but not entirely by a Party’s indemnification obligation hereunder, the Indemnifying Party will only be responsible for costs to the extent attributable to the covered portion.
6.3 DISCLAIMER OF WARRANTIES. MIDWEST TAPE MAKES NO WARRANTIES OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
6.4 LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN
THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES,
INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOST BUSINESS OPPORTUNITY,
ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SUCH DAMAGES ARE
FORESEEABLE AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. WITHOUT RESTRICTION OF THE FOREGOING, MIDWEST TAPE’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL
FEES PAID BY LIBRARY TO MIDWEST TAPE DURING THE TWELVE MONTHS PRIOR TO THE DATE THAT ANY CLAIM ALLEGEDLY AROSE.
6.5 Confidential Information. “Confidential Information” means any non-public information of either Party that is disclosed to the other Party in connection with this Agreement either directly or indirectly, in writing, orally, electronically, or by inspection of tangible objects, and that is either:
(a) designated in writing as “Confidential” at the time of disclosure or within five (5) days thereafter; or (b) confidential by its very nature or that the receiving Party reasonably should know to be confidential. Confidential Information includes, without limitation, the terms of this Agreement, any and all non-public business plans, customer information, pricing, contract terms, available content and sales, marketing and/or finances of the disclosing Party. Each Party agrees to hold the Confidential Information of the other Party in confidence and to refrain from disclosing such Confidential Information to any third party, except: (i) to the extent required to be disclosed pursuant to governmental or judicial process, provided that notice of such process is promptly provided to the disclosing Party in order that it may have every opportunity to intercede in such process to contest such disclosure or seek an appropriate protective order; or (ii) to the receiving Party’s professional advisors and contractors on a need to know basis, provided that such advisors and contractors are under an obligation to maintain the confidentiality of the Confidential Information. Confidential Information is the property of the disclosing Party, and the receiving 9/2022US – PPU/OCOU Page 8
Party will not be deemed by virtue of its access to Confidential Information to have acquired any right or interest in or to any such Confidential Information.
Furthermore, the parties agree that confidential or proprietary information does not include any information that is:
(a) already known to the receiving party at the time of disclosure hereunder (other than from the other party hereto) as demonstrated by its written records; (b) now or hereafter becomes publicly known other than through acts or omissions of the receiving party, or anyone to whom the receiving party disclosed such information; (c) disclosed to the receiving party, by a third party, under no obligation of confidentiality to the disclosing party or any other party;
(d) independently developed by the receiving party without reliance on the confidential information of the disclosing party as shown by its written records; (e) disclosed pursuant to law, including without limitation the California Public Records Act;
(f) disclosed due to any rule, order, referral, or request, including without limitation any rule, order, referral, or request of Library’s governing body; (g) disclosed as part of the Library’s customary contract approval process
6.6 Assignment. Except as provided herein, neither Party may, by operation of law or otherwise, assign, sublicense, or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party, which may not be unreasonably withheld or delayed. Either Party may assign, transfer, or otherwise delegate any or all of its rights and obligations under this Agreement to any parent or subsidiary entity, any successor carrying on that part of the business to which this Agreement relates, or any purchaser of all or substantially all of the assets or stock of such Party. Each Party may appoint contractors to perform part of its obligations hereunder, provided that the Party remains fully responsible for such contractor’s performance. This Agreement binds, benefits, and is enforceable by and against both Parties and their respective successors and permitted assigns.
6.7 Notices. Notices required by this Agreement must be sent by United States mail, as well as by electronic mail (or by facsimile), directed as follows:
To Midwest Tape: To Library:
Midwest Tape, LLC: Redondo Beach Public Library
1417 Timberwolf Dr. 303 N. Pacific Coast Hwy.
Holland, Ohio 43528 Redondo Beach, CA 90277
[email protected] [email protected]
1 (800) 875-2785 310-318-0674
6.8 Amendment. No amendment, modification, addendum, or revision to this Agreement is valid unless it is in writing and signed by all Parties to this Agreement.
6.9 Arms-Length Negotiations. This Agreement was negotiated at arm’s length with each Party receiving advice from independent legal counsel, and has been executed and delivered in good faith. It is the intent of the Parties that no part of this Agreement should be construed against any Party because of the identity of the drafter.
6.10 Counterparts. This Agreement may be executed in counterparts, each of which taken 9/2022US – PPU/OCOU Page 9
together constitutes one single Agreement between the Parties.
6.11 Entire Agreement/Non-Reliance. This Agreement constitutes the sole and entire agreement between the Parties and supersedes and merges all prior agreements, proposals, negotiations, discussions, and understandings between the Parties relating to the subject matter of this Agreement. No Party has relied or can rely on any statement or representation that is not expressly contained in this Agreement as an inducement to enter into this Agreement.
6.12 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.
[SIGNATURES ON NEXT PAGE]
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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
CITY OF REDONDO BEACH,
a chartered municipal corporation
MIDWEST TAPE, LLC
By: By:
Print Name: Print Name:
Print Title: Print Title:
Date Signed: Date Signed:
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Appendix 2
hoopla® Licenses and Distribution Models
The chart below describes the distribution models included in Midwest Tape’s hoopla offering as of the Effective Date, including the digital media licenses that are available via the Digital Media Platform.
Instant Borrows Flex Borrows
License type PPU (Pay-Per Use) OCOU (One-Copy/One-User) Circulations /
Borrows
An Instant Title is a work that is
available for simultaneous access by
multiple users. Instant Titles may be
accessed via PPU Circulations,
otherwise referred to as Instant
Borrows, each of which allows a user to
stream, download, and/or access the
chosen Instant Title, or collection of
Titles (e.g., a “Binge Pass”, described
below), for a limited time that
terminates upon the expiration of a
fixed period or earlier “return” by the
user. Instant Borrows are available
regardless of whether another user has
borrowed the same title for use at the
same time. For each Instant Borrow, the
Library purchases one Instant License to
authorize that particular borrow. A
“Binge Pass” is an Instant Borrow that
provides the borrower access to a
collection of titles, either directly
through hoopla or through a third-party
website or application.
A Flex Title is only available to one user at
a time, via a digital OCOU Circulation,
otherwise referred to as a Flex Borrow. If
the Library has an available Flex License to
a Flex Title, a Patron may activate a Flex
Borrow and that license is digitally
checked out and considered “in use.”
Other users cannot access that title during
that borrow unless (i) the Library has
purchased additional Flex Licenses to the
same title, one of which is available at that
time, or (ii) the same title also is available
as an Instant Title. A Flex Borrow allows a
user to stream, download, and/or access
the title for a limited time that terminates
upon the expiration of a fixed period or
earlier “return” by the user.
Available
formats
All formats (audiobooks, eBooks,
comics, movies, television, music, and
magazines). Binge Passes are available
only for select titles and may not be
available for all formats.
Currently available only for audiobooks
and eBooks.
Payment
obligations
A PPU-Circulation Fee is charged for
each Instant Borrow. The fees, which
are listed on the Library Administration
Website, vary by title and format, and
are subject to change from time to time.
The fee is charged regardless of whether
Where available, Flex Licenses may be
ordered via the hoopla Digital Library
Administration Website. The costs of
these licenses vary by title and format.
Fees for Flex Licenses are invoiced after
each purchase (typically daily).
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Instant Borrows Flex Borrows
(continued) the borrowed content is actually
accessed, viewed, streamed, or
downloaded by the user. Fees for
Instant Borrows are invoiced monthly.
Borrow
priority
To optimize Libraries’ media purchases,
Flex Borrows are prioritized over Instant
Borrows of Instant Titles when possible.
Therefore, if a user requests an Instant
Title, and at that time a Flex License to
that title is available, the borrow will be
fulfilled as a Flex Borrow and no PPUCirculation Fee will apply. (Note that this priority does not apply to Instant
Borrows of Binge Passes. Users may
borrow Binge Passes regardless of
whether select titles within the Binge
Pass may be available as Flex Licenses.)
Same. To optimize Libraries’ purchases,
Flex Borrows are prioritized over Instant
Borrows of Instant Titles when possible.
Metering
restrictions
N/A
A Flex License may be either perpetual, or
“metered.” Some publishers do not offer
perpetual licenses, but instead offer
metered licenses. Metered licenses are
limited by time period and/or number of
permitted borrows, as described in the
Library Administration Website.
Pre-Owned
Content
N/A
If the Library has acquired OCOU Licenses
from another source (Pre-Owned
Content), Midwest Tape may be able to
include them as Flex Licenses on hoopla
for the Library’s use hereunder. The
Library is responsible for (1) providing an
accurate list of Pre-Owned Content for
Midwest Tape’s review (consistent with
Appendix 3), and (2) notifying the owner
and/or licensor of such Pre-Owned
Content when the Pre-Owned Content is
to be removed. The format to be used for
listing the Library’s Pre-Owned Content,
including the required certification, is set
forth on Schedule 1 to Appendix 3.
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Appendix 3
Procedure for Pre-Owned Content (“POC”)
1. Library to provide inventory of POC.
Promptly on or after the Effective Date, Library shall provide to Midwest Tape a written inventory of Pre-Owned Content (if any) that the Library has obtained prior to the Effective Date or otherwise outside the scope of this Agreement.
2. Format of inventory and additional information regarding POC.
The written inventory shall be provided in table format as set forth in Part 1 of Schedule 1, or in another mutually agreeable format, and shall include the following information, for each license comprising Library’s Pre-Owned Content:
(1) the title, format (eBook or Audiobook), author(s), street date, publisher, ISBN number; (2) the date of purchase of the license, and the license type (e.g., Perpetual license, Limited Borrows license, Limited Time Period license, Limited Borrows & Time Period license); (3) the rights that Library has to that copy of the work, including the term and expiration date (if any) of the license and any other metering or other limitations on the term of the license (e.g., borrow limit), including the amount of time and/or number of borrows already used, as well as number of borrows remaining available, for the license as of the date of transfer; and
(4) the name and contact information of the company or other entity from which Library obtained the license (or, if the Library owns the copyright in a work, a statement identifying Library’s ownership of such work).
Library agrees to work in good faith to effectuate the assignment and transfer of Library’s rights in such Pre-Owned Content to Midwest Tape, including, but not limited to notifying the owner and/or licensor of such Pre-Owned Content when the content is transferred. Upon request, Library also shall provide Midwest Tape with copies of any licenses, purchase orders, agreements, or any other documents reflecting Library’s purchase or license of any Pre-Owned Content.
Warranty by Library regarding POC Rights: Library represents and warrants that it owns the rights and licenses in and to the Pre-Owned Content set forth in Schedule 1 to Appendix 3, and that unless specifically stated in the Schedule, Library is authorized to assign or otherwise transfer such Pre-Owned Content to Midwest Tape as provided for under the terms of this Agreement.
3. Assignment by Library of Rights in POC
As set forth on Schedule 1 to this Appendix 3, to the extent that Library has licensed any Pre-Owned Content, Library assigns and transfers its rights in or to such Pre-Owned Content to Midwest Tape for the purpose of allowing Midwest Tape to store, display, reproduce, grant rights of access to, convert, encode, distribute or otherwise administer and make such Pre-Owned Content available to Patrons via the hoopla Platform. Similarly, if and to the extent that Library owns the copyright to any content that may be made available to Patrons via the Digital Media Platform, Library hereby grants Midwest Tape a fully paid, royalty-free license to include such content in the Digital Media Platform and to make such content available via the Digital Media Platform without charge, and Library represents and warrants that such content does not infringe the copyright, trademark, or other rights of any third party. To the extent that Library cannot assign or otherwise transfer its rights in or to any Pre-Owned Content to Midwest Tape, Library grants Midwest Tape the exclusive right to negotiate with the owner and/or licensor ofsuch Pre-Owned Content on Library’s behalf, to obtain an assignment, transfer, license or any other rights necessary to allow Midwest Tape to store, display, reproduce, grant rights of access to, convert, encode, distribute or otherwise administer and make such Pre-Owned Content available to Patrons via the Digital Media Platform.
4. Efforts to include POC on the hoopla Platform to the extent possible.
Upon receipt of the Library’s inventory of Pre-Owned Content, Midwest Tape will work to assess the extent to which it can include some or all of the Pre-Owned Content via the Platform. Library acknowledges and agrees that: (i) Midwest Tape’s ability to offer Pre-Owned Content on the Platform depends upon factors outside of Midwest Tape’s control, including without limitation the scope and assignability of the Pre-Owned Content; and (ii) Midwest Tape does not represent or warrant that any or all Pre-Owned Content can or will be made available through the Platform. If Midwest Tape determines, in its sole discretion, that any Pre-Owned Content may be made available to Library’s Patrons on the Platform, Midwest Tape will arrange to provide such Pre-Owned Content subject to the terms and conditions set forth in Library’s existing licenses for such PreOwned Content or on such other terms and conditions that Midwest Tape may obtain from the owner of such Pre-Owned Content.
9/2022US – PPU/OCOU Page 14
Schedule 1 to Appendix 3 of hoopla® Digital Media Agreement Certified List of Pre-Owned Content to be Transferred to Midwest Tape Part 1 – List Format: Library to provide a table, in Excel or CSV format, listing each OCOU License to be transferred to Midwest Tape as Pre-Owned Content. The table shall include the fields shown below:
Field
Library Name
Book Title
Format (eBook, Audiobook)
Edition
Series Name (if applicable)
Author/Creator 1
Author/Creator 2 (if applicable)
Street Date
Publisher
Vendor
Vendor Content ID
ISBN
Bib ID
License Number
Date Purchased
License Type: (Perpetual; Limited Borrows; Limited Time Period; Limited Borrows & Time Period) License Period Start date (if applicable)
License Period Expiration Date (if applicable)
Borrows Permitted (if applicable)
Borrows Used (if applicable)
Borrows Remaining (if applicable)
Part 2 – Delivery of List: Library to complete the table below prior to email delivery of list to Midwest Tape:
Filename: exact filename, including file extension (.xlsx, .csv) Sent From: sender’s name & email
To: [designate email addressfor receipt of POC Lists]
Date & Time: use format: February 22, 2022 at approximately 2:22 PM Part 3 – Certification: To be completed and signed by an authorized representative of Library. Attach a copy of this completed and signed Schedule 1 to the email noted in Part 2, above:
The list provided as set forth above is, as of the date set forth below, a complete and accurate account of the Library’s Pre-Owned Content as defined herein. With respect to Pre-Owned Content provided here or subsequently added by mutual written consent of the Parties, the Library hereby assigns and transfers to Midwest Tape any and all rights, title, and interests in the licenses necessary in order to enable Midwest Tape to make the Pre-Owned Content available to the Library’s Patrons via the hoopla Platform, including as set forth in Section 2 and/or Appendix 3 of the Agreement. The undersigned certifiesthat they are a representative of the Library and duly authorized to make the foregoing representations on its behalf.
Signature: Title:
Print Name: Date:
Library Name: