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HomeMy WebLinkAboutA8500 - KANOPY, INC CONTRACT ABSTRACT RECEIVED CITY OF PALM SPRINGS CONTRACT Company: Kanopy, Inc. 2020 MAR -4 PH 12: 16 nii Contact Name: Trent Sherman, Account Execu Mt OF Address: Level 4, 781 Beach Street San Francisco, CA 94109 Phone: 415-425-1155 Email: trent.sherman@kanopy.com summaryotservices: Kanopy streams and makes available digital video content to public libraries. Library users download content. Play per use agreement; $2 per user play credit. Maximum cost of $5 per play for Kanopy Kids. Budget: $10,000. Contract Price: $10,000 Funding Source: 0.01-2710-42580 Contract Term: 1-year, February 1 , 2020-February 1 , 2021 CONTRACT ADMINISTRATION Lead Dept: Library Contract Administrator: Jeannie Kays CONTRACT APPROVALS Council/Comm. Redevelopment Agency Approval Date: Council Approval? City Manager Approval? � Agenda Item No./Resolution No.: Agreement No. -6%0b CONTRACT COMPLIANCE Exhibits: Signatures: Insurance: Bonds: CONTRACT PREPARED BY: Library Name: Jeannie Kays 11L Phone Ext. 8375 Date Submitted: 3/4/20 kanopy Kanopy Inc. Order Form Order Date: 23 January 2020 Order Number: KS48548694 Billing Address: Paim Springs Public Library 300 S. Sunrise Way Palm Springs, CA 92262 Order Summary: This Order Form is entered into between Institution and Kanopy pursuant to the current Master Agreement between them.Any capitalized term not defined herein shall have the meaning ascribed to it in the Master Agreement. By issuing payment hereunder or accessing or using the Offerings identified herein,Institution agrees to be bound by this Order Form. Offering Pay Per Use (PPU) Program • set budget cap: USD $10,000 Annual Budget Cap: Feb 1, 2020 — Feb 1, 2021 Notes: • Access: Kanopy will provide access to its film database for access to Institution's End Users. Institution may adapt its content and collection selections at any time Caps: Institution may impose monthly user caps at or above 10 on users (with respect to the number of film"play credits"a End User may incur in a given month) and change these any time with written notice to Kanopy. Institution may also set in place program spend caps and change these at any time • Definition:As used herein, a"Play Credit"is incurred on a Title when an End User accesses the Title in and seeks to employ the Title for use. Once a user play credit is logged, the user has 3 full days(72 hours) to watch the film for unlimited uses. Kanopy Kids and pre-selected Series provide 30 days of unlimited use for either (1) the entirety of Kanopy Kids or(2) the pre-selected series. A user can track their existing and past play credits from their user dashboard Cost per play credit: A maximum cost per play of$2 per user play credit for individual films. A maximum cost of $5 per play for Kanopy Kids. Processing: Invoices for play credits will be processed periodically for the Institution (monthly). Institution will be notified and sent an invoice. Institution may request early processing of play credit invoices at any time Reports: Institution can monitor usage and budget live from their admin dashboard Budgeting: Institution may deposit non refundable funds for this program upfront, to be drawn upon by Kanopy for payment of future play credits, or pay for credits upon periodical invoice. Institution may set and adjust a fixed budget for this program ("Budget') in the Service at any time and adjust other settings within the Service for the purposes of monitoring its activity under this program and receipt of notifications and alerts regarding the status of the Budget and other information relating to this program. • Managing Program:Although Kanopy may send Institution alerts regarding the status of Budgets established, Institution's participation in this program will not be automatically turned off upon depletion of the Budget.To turn off participation,Institution must provide written notice to Kanopy requesting that Kanopy turn off participation and any specifics around that process (a specific date, etc). Kanopy will turn off Institution's participation according with the Institution's written notice, without regard to the amount remaining in the Budget. Institution shall solely be responsible for managing the Budget and payment of all play credit fees in excess of the Budget. In the event that Institution's participation is turned off, End Users will not be able to access any Titles under this program. t (+1) 415-513-1026 Kanopy Inc., EIN 99-0377373 Kanopy, Level 2, 781 Beach St, San Francisco 94109 USA www.kanoi)v.com MASTER AGREEMENT Institution Name: Palm Springs Public Library Institution Contact: Jeannie Kays Address: 300 S. Sunrise Way Phone: 760-322-8375 Palm Springs, CA 92262 Email: Jeannie.kays@palmspringsca.gov This Master Agreement is made and entered into as of the Effective Date set forth below by and between Kanopy INC,a Delaware limited liability company with a place of business Level 4, 781 Beach Street, San Francisco, CA 94109 ("Kanopy'), and the institution identified above ("Institution"). Overview Kanopy streams and makes available digital video 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 pursuantto applicable access and license terms. As permitted by an order between Kanopy and an institution, Kanopy may also host and stream digital video content uploaded by the institution where such institution holds all necessary rights and permissions to enable Kanopy to host and stream such content. Kanopy streams and makes digital video content available through various platforms,including its 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 order form will specify the title(s), product(s),fees, period or term 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 use 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. KANOPYINC INSTITUTION 1 By. By: Name: Name: Alper Tuken Title: Title:CFO Effective Date: i APPROVED AS TO FORM A ST: C ATT NEY Clerk APPROVED BY CITY M41AGER ���I0400D Page 1 of 4 r � � TERMS AND CONDITIONS 1. Definitions obscure any proprietary notice that appears within the Service or any (a) "Access Term'means the period of time set forth in each Order Offering;or(viii) use the Service in any way that does not comply in all Form during which the Offerings or, as applicable, Institution Content material respect with the terms and conditions of this Agreement and all covered by such Order Form will be hosted and streamed by Kanopy applicable laws and regulations. pursuant to this Agreement. (c) Policies. In addition to the terms and conditions of this (b) "Credentials" means any user accounts, passwords and other Agreement, access to and use of the Service shall comply with and be authentication credentials associated with access to or use of the Service subjectto any terms of service,acceptable use policy,privacy policy,end by Institution or End Users. user license agreement and other guidelines instituted by Kanopy or its (c) "End User' means: (i) any student, teacher, professor, patron, licensors or service providers. employee or staff member affiliated with Institution;(ii)any authorized (d) Technical Requirements.Institution and End Users shall be solely visitor physically present at the facilities of Institution; and (iii) with responsible for obtaining, configuring and maintaining any hardware, respect to any Institution that is a library established for use by the network connectivity and third-party software required to access the general public and maintained primarily through public funds, any Service, including computers, operating systems, web browsers and individual who is a member of such Institution. storage devices. (d) "Institution Content"means any content provided by Institution (e) Protection. Institution shall be solely responsible for protecting pursuant to this Agreement for hosting and streaming by Kanopy. the confidentiality of Credentials and all activities undertaken using (a) "Institution Facilities" means Credentials and any account, Institution Facilities.In the event that Institution becomes aware of any hardware,system or other facility within Institution's custody or control. unauthorized use of the Service through Institution Facilities,Institution (f) "Offering"means any Product or Title. shall promptly give written notice to Kanopy of such unauthorized use (g) "Order Form" means an order form, invoice or other ordering and make reasonable efforts to eliminate such unauthorized use. document entered into between the parties pursuant to this Agreement Institution shall implement and maintain appropriate security policies specifying the Offerings, Institution Content, fees and payment terms, and procedures and access control methodologies to safeguard access to special usage rights and restrictions and other terms relevant to the the Service through Institution Facilities and to limit access to the Service order. to End Users. (h) "Product" means each product identified in an Order Form that 3. Institution Content Kanopy will make accessible to Institution pursuant to this Agreement, (a) Grant of Rights. As specified in an applicable Order Form, including: (i) any package or collection of titles or other content made Institution may upload Institution Content to the Service for hosting and accessibleto Institution via subscription,patron-driven acquisition(PDA), streaming by Kanopy pursuant to this Agreement. During the applicable pay-per-use (PPU)or other such models;and (11)any other product that Access Term, Institution hereby grants Kanopy a limited, non-exclusive, Kanopy may offer. non-sublicensable,royalty-free right and license to host,stream,exhibit, (1) "Service" means the service through which Kanopy hosts and transmit, reproduce, publicly perform, publicly display and project makes accessible Offerings and,as applicable,Institution Content. Institution Content as necessaryto make Institution Content available for 0) 'Territory" means the geographical area designated as the viewing by End Users within the Service. Territory in an Order Form or,if no such area is designated in an Order (b) Assurances. Institution represents and warrants that: (i) it holds Form,the country in which Institution is domiciled. all necessary rights (including all intellectual property rights) and (k) 'Title" means each film, video or other content (excluding permissions to grant the rights under this Section 3 to Kanopy; and (ii) Institution Content) identified in an Order Form that Kanopy will make Institution Content does not violate any applicable laws or any rights of accessible to Institution pursuant to this Agreement. another party, including any laws relating to defamation or indecency 2. Grant of Rights and Restrictions and any intellectual property or right of privacy or publicity. (a) Grant of Rights.During the applicable Access Term and subject to (c) Institution Ownership.Kanopy acknowledges and agrees that,as Institution's compliance in all material respects with the terms and between Institution and Kanopy, Institution (or its licensors) owns all conditions of this Agreement,Kanopy hereby grants Institution a limited, rights, title and interest (including all intellectual property) in and to non-exclusive, non-sublicensable right and license to allow End Users Institution Content. within the designated Territory to view Offerings and, as applicable, 4. Fees and Taxes Institution Content in real-time within the Service. (a) Fees.Institution shall pay Kanopy the applicable fees set forth in (b) Restrictions.All rights granted under this Agreement may only be each Order Form pursuant to the payment terms therein. If an Order exercised for non-commercial personal or educational use. Institution Form does not specify"payment terms,then payments thereunder shall shall not: (i) use, archive, capture, reproduce, modify, adapt, create be due net thirty (30) days after invoice. Amounts not paid when due derivative works from, publicly perform, publicly display, distribute, shall be subject to interest at the rate of one and a half percent (1.5%) make, have made, assign, pledge, transfer or otherwise grant rights to per month or the maximum rate permitted by law,whichever is less. the Service or any Offering, except as expressly permitted under this (b) Taxes.Any and all amounts payable hereunder by Institution are Agreement; (ii) translate or reverse engineer, decompile, decode or exclusive of any sales, use, value-added, excise or other similar taxes otherwise attempt to derive the source code,architectural framework or (collectively,'Taxes").Institution shall be solely responsible for paying all data records of any software within or associated with the Service;(III) applicable Taxes.If Kanopy has the legal obligation to collect any Taxes, frame or utilize any framing technique to enclose any content within the Institution shall reimburse Kanopy upon invoice by Kanopy.If Institution Service; (iv) access the Service for the purpose of benchmarking or is required by law to withhold any taxes from its payments to Kanopy, developing,marketing,selling or distributing any product or service that Institution shall provide Kanopy with an official tax receipt or other competes with or includes features substantially similar to the Service or appropriate documentation to support such payments and take any products or services offered by Kanopy; (v) rent, lease, lend or sell reasonable steps to minimize such payments. the Service,or otherwise provide access to the Service as part of a service S. Intellectual Property bureau or similar fee-for-service purpose; (vi) make the Service or any (a) Kanopy Ownership.Institution acknowledges and agrees that,as Offering accessible to anyone who is not an End User; (vii) remove or between Kanopy and Institution,Kanopy(or its licensors)owns all rights, Page 2 of 4 title and interest(including all intellectual property)in and to the Service any Offering in combination with any materials not provided or approved and Offerings.Kanopy reserves all rights not expressly granted under this by Kanopy;or(III)Institution Content.In the event that the Service or any Agreement.Suggestions.If Institution elects to provide or make available Offering becomes the subject of an indemnified claim or Kanopy to Kanopy any suggestions, comments, ideas, improvements or other reasonably determines that any Offering is likely to become the subject feedback relating to the Service or Offerings ("Suggestions"), Kanopy of an indemnified claim, Kanopy may,at its sole discretion: (1) procure shall be free to use, disclose, reproduce, have made, modify, license, for Institution a license as necessary for Institution to exercise the rights transfer and otherwise utilize and distribute Suggestions in any manner, granted by Kanopy under this Agreement; (2) modify or replace the without credit or compensation to Institution. Service or Offering to avoid infringement, provided, however that the 6. Term and Termination Service or Offering as modified or replaced remains materially the same; (a) Term. The term for this Agreement shall commence on the or(3)issue to Institution a pro-rata refund of fees paid by Institution for Effective Date and continue for a twelve month period. the Service or Offering based upon the remainder of the Access Term. (b) Suspension. Kanopy reserves the right to suspend Institution's (b) Procedure.The indemnified party shall:(i)give the indemnifying and any End User's access to and use of the Service and Offerings in the party prompt written notice of any indemnified claim; provided, event of any: (i) actual or reasonably suspected breach of Section 2 by however that failure of the indemnified party to give such prompt Institution or any End User; provided, however that Kanopy, where written notice shall not relieve the indemnifying party of any obligation applicable,will use commercially reasonable efforts to limit suspension to indemnify pursuant to this Section 8, except to the extent the to each End User in breach of Section 2 or 3(b)and restore access upon indemnifying party has been prejudiced thereby;(if)cooperate fullywith elimination of the relevant breach;or(ii) failure by Institution to make the indemnifying party, at the indemnifying party's expense, in the any payment when due under this Agreement; provided,however,that defense or settlement of any indemnified claim; and (iii) give the Kanopy will restore access upon Institution's payment of all outstanding indemnifying party sole and complete control over the defense or fees. settlement of any indemnified claim; provided however that any (c) Termination. Notwithstanding anything to the contrary, this settlement must include a complete release of the indemnified party Agreement may be terminated as follows:(i)by either party upon written without requiring the indemnified party to make any payment or bear notice to the other party;provided however that no Order Form is then any obligation. in effect;(ii)upon a material breach of this Agreement by a party,which 9. DISCLAIMER OF WARRANTIES breach is not cured within thirty(30)days after receipt of written notice THE SERVICE,OFFERINGS AND ALL OTHER MATERIALS PROVIDED from the other party;or(III) by either party in the event the other party BY KANOPY UNDER THIS AGREEMENT (COLLECTIVELY, "KANOPY becomes insolvent or bankrupt;becomes the subject of any proceedings MATERIALS") ARE PROVIDED "AS IS," "AS AVAILABLE" AND "WITH ALL under bankruptcy, insolvency or debtor's relief law; has a receiver or FAULTS." KANOPY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, manager appointed;makes an assignment for the benefit of creditors;or EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS takes the benefit of any applicable law or statute in force for the winding (EXCEPT AS SET FORTH IN SECTION 7),EXPRESS OR IMPLIED,INCLUDING: up or liquidation of such party's business. (A)THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR (d) Survival. Any provision that, by its terms, is intended to survive A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH RESPECT TO the expiration or termination of this Agreement shall survive such THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE expiration or termination, including Sections: 3(b)(Assurances); 4 (Fees KANOPY MATERIALS,OR THAT USE OF THE KANOPY MATERIALS WILL BE and Taxes);5 (Intellectual Property); 6(d) (Survival);7 (Representations ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL and Warranties); 8 (Indemnification); 9 (Disclaimer of Warranties); 30 MEET INSTITUTION'S OR END USERS'REQUIREMENTS. (Limitation of Liability);and 11(Miscellaneous). 10. LIMITATION OF LIABILITY 7. Representations and Warranties OTHER THAN WITH RESPECT TO KANOPY'S INDEMNIFICATION Kanopy and Institution each represents and warrantsto the other OBLIGATIONS UNDER SECTION 8(a):(A)IN NO EVENT SHALL KANOPY OR that: (a) it has the necessary power and authority to enter into this ITS AFFILIATES AND LICENSORS BE LIABLE FOR ANY INCIDENTAL, Agreement; (b)the execution and performance of this Agreement have INDIRECT,SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST been authorized by all necessary corporate or institutional action; (c) PROFITS OR COST OF COVER, ARISING FROM OR RELATING TO THIS entry into and performance of this Agreement will not conflict with any AGREEMENT, INCLUDING DAMAGES ARISING FROM ANY TYPE OR provision of law orthe certificate of incorporation,bylaws orcomparable MANNER OF COMMERCIAL,BUSINESS OR FINANCIAL LOSS OCCASIONED organizational documents of such party; (d) no action by any BY OR RESULTING FROM ANY ACCESS TO OR USE OF OR INABILITY TO governmental entity is necessary to make this Agreement valid and ACCESS OR USE THE KANOPY MATERIALS,SUCH AS ANY MALFUNCTION, binding upon such party;and (e) it possesses all governmental licenses DEFECT OR FAILURE OF ANY KANOPY MATERIALS,EVEN IF KANOPY HAD and approvals necessaryto perform its obligations under this Agreement. ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH 8. Indemnification DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE (a) Indemnification.To the extent permitted by applicable law,each FORESEEABLE; AND (B) IN NO EVENT SHALL KANOPY'S AGGREGATE party agrees that the other party and its affiliates and licensors LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES (collectively, "Indemnified Parties") shall have no liability for, and each RECEIVED BY KANOPY FROM INSTITUTION UNDER THIS AGREEMENT IN party shall indemnify, defend and hold the other party's Indemnified THE TWELVE(12)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE Parties harmless against, any loss, damage, cost, liability and expense ON WHICH THE EVENTS GIVING RISETO LIABILITY AROSE. (including reasonable attorneys' fees) finally awarded by a court of 11. Miscellaneous competent jurisdiction or paid in settlement to the extent arising from (a) Independent Contractors.The relationship between Kanopy and anyaction orclaim of a third party based upon a party's breach of Section Institution established by this Agreement is solely that of independent 2(b) or 3(b) or infringement of such third party's copyright attributable contractors.Neither party is in any waythe partneror agent of the other, to any materials provided by the party under this Agreement; Provided nor is either party authorized or empowered to create or assume any however that Kanopy shall have no obligation to indemnify Institution obligation of any kind,implied or expressed,on behalf of the other party, from any loss, damage, cost, liability or expense to the extent it arises without the express prior written consent of such other party. from:(i)access to or use of the Service or any Offering in a manner that (b) Notice. All notices, demands and other communications to be does not comply in all material respects with the terms and conditions of given or delivered under or by reason of the provisions of this Agreement this Agreement or applicable laws or regulations;(ii)use of the Service or shall be in writing and sent to the parties as follows: (i)if to Kanopy,at Page 3 of 4 the address set forth for Kanopy in the signature page herein,Attn:Legal (I) Force Maieure.Except with respect to payment obligations under Department, or, if different, in the most recent Order Form; (ii) if to Section 4, neither party shall be liable for any failure to perform under Institution,at the address set forth for Institution in the signature page this Agreement to the extent due to any act of God,fire,casualty,flood, herein or,if different,in the most recent Order Form. war, strike, lock out, failure of public utilities, injunction or any act, (c) Assignment.Institution may not assign this Agreement,or assign exercise, assertion or requirement of any governmental authority, or delegate any right or obligation hereunder, by operation of law or epidemic,destruction of production facilities,insurrection or any other otherwise without the prior written consent of Kanopy.This Agreement cause beyond the reasonable control of the party invoking this provision. shall be binding upon and inure to the benefit of the parties hereto and (m)Confidentiality.Each party acknowledges and agrees that it shall their respective successors and permitted assigns. treat the terms and conditions of this Agreement, including any pricing (d) No Third-Party Beneficiaries. Nothing in this Agreement shall information, as confidential information and not disclose such confer any rights upon any person or entity other than the parties hereto information to any third party except to the extent required by applicable and their respective successors and permitted assigns. law.For the avoidance of doubt,the parties acknowledge and agree that (e) Interpretation.For the purposes of this Agreement:(!)the words Kanopy may identify Customer as a Kanopy customer,and Customer may "such as," "include,' "includes" and "including" shall be deemed to be identify Kanopy as a provider of content to Customer. followed by the words "without limitation;" (ii) the word "or" is not (n) Counterparts.This Agreement may be executed in one or more exclusive;and(iii)the words"herein,""hereof,""hereby, "hereto"and counterparts,each of which shall be deemed an original,but all of which "hereunder"refer to this Agreement as a whole.This Agreement shall be together shall constitute one and the same agreement. construed without regard to any presumption or rule requiring construction or interpretation 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 unenforceable 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. Q) No Waiver. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at anytime thereafter,nor sha II 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 polity 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)acceptance of the rights and obligations herein. Page 4 of 4