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HomeMy WebLinkAboutKANOPYINSURANCE NOT ON FILE WONTWIM N0 PROCEED RK WE, (6.SQ(/O" t-- CD N-2023-268 MASTER AGREEMENT Institution Name: City of Santa Ana Santa Ana Public Library Institution Contact: Lynn Nguyen Address: 20 Civic Center Plaza Santa Ana, California 92701 Phone: 714.647.5259 Email: LNguyen@santa-ana.org This Master Agreement is made and entered into as of September 26, 2023 by and between Kanopy INC, a Delaware corporation with a place of business 781 Beach Street, Suite 200, San Francisco, CA 94109 ("Kano ) and the institution identified above ("Institution'), and shall expire July 31, 2025. 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 pursuant to applicable access and license terms. Kanopy streams and makes digital video content available through various platforms, including its website at www.kanopy.com, the Kanopy IDS 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. During the term of this Agreement, the total approved budget for the order form(s) shall not exceed Seventeen Thousand Dollars and Zero Cents ($17,000). This Agreement contemplates payment for properly invoiced services beginning on August 1, 2023. This Master Agreement consists of: (a) the attached Terms and Conditions; (b) order form entered into hereunder between Kanopy and Institution, attached hereto as Exhibit A; 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, Institution has caused this Agreement to be executed as of the Effective Date by its duly authorized representative. KANOPY INC Name: Jason Tyrrell Title: General Manager Date: 10/3/23 APPROVED AS TO FORM: By, Bhrigon Salvatierra Deputy City Attorney RECOM NDED FOR APPROVAL BrianSternbeLibrary Services Di or Library Services CITY OF SANTA ANA Steven A. Mendoza Acting City Manager ATTEST: Jennifer L. II c Page 1 of 4 N-2023-268 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 associated 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 accessibleto Institution via subscription, patron -driven acquisition (PDA), pay -per -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. Q) "Territo means the geographical 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 the applicable Access Term and subject to Institution's compliance in all material respects with the terms and conditions of this Agreement, 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) Perpetual Licenses. A limited selection of Kanopy's Offerings may be available for Perpetual Archive Licenses ("PAL's"), in which Institution must pay a one-time fee, and an annual "Continuing Service Fee", in order to purchase a non-exclusive perpetual license for Institution and its Authorized Users to access the designated Offering on the Kanopy platform. PALS may only be revoked by Kanopy if Institution materially breaches this Agreement or if the licensed materials contain errors or could be subject to an infringement or other adverse claim by a third party. Kanopy reserves the right to suspend access to the Title(s) in question if Institution fails to pay the Continuing Service Fee. For the avoidance of doubt, the purchase of PAUs shall not entitle Institution to digital files or hard copies of the Title(s) unless Kanopy enters into bankruptcy or otherwise ceases operation. In the event that Kanopy provides Institution with a digital file relatingto a PAL, Institution shall be responsible for securing and restricting use of the Title as contemplated under this Agreement, using systems and technology at least as protective as Kanopy's. File transfer costs, if any, shall be paid by Institution. (c) Restrictions. All rights granted under this Agreement may only be exercised for non-commercial personal or educational use. Institution shall not: (i) use, archive, capture, reproduce, modify, adapt, create derivative works from, publicly 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 reverse 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 for 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 purpose; (vi) make the Service or any Offering accessible to anyone who is not an End User; (vii) remove or obscure any proprietary notice 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. (d) 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. (e) 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. (f) 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 Service through Institution Facilities, Institution shall promptly give written 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 and access control methodologies to safeguard access to the Service through Institution Facilities and to limit access to the Service to End Users. 3. Institution Content (a) Grant of Rights. Upon written request by Institution, and approval by Kanopy, Institution may upload Institution Content to the Service for hosting and streaming by Kanopy pursuant to this Agreement. If the parties agree to such an arrangement, during the applicable Access Term, Institution hereby grants Kanopy a limited, non-exclusive, non- sublicensable, royalty -free right and license to host, stream, exhibit, transmit, reproduce, publicly perform, publicly display and project Institution Content as necessaryto make Institution Content available for viewing by End Users within the Service. For the avoidance of doubt, Kanopy will have complete discretion in regard to whether or not it will host content on behalf of Institution, and may choose to reject a request for any reason, including but not limited to, internal Kanopy polices relating to hosting Institution Content. (b) Assurances. In the event that Kanopy agrees to host content on behalf of Institution, 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 Page 2 of 4 another party, including any laws relating to defamation or indecency and any intellectual property or right of privacy or publicity. (c) Institution Ownership. In the event that Kanopy agrees to host content on behalf on Institution, Kanopy acknowledges and agrees that, as between Institution 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 pursuant 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 interest at the rate of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is less. (b) 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 toKanopy, 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. S. 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. 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, disclose, 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 the Effective Date and continue in effect for two years from the effective date or until all content credit is exhausted, whichever occurs first. (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: (1) actual or reasonably suspected breach of Section 2 by Institution or any End User; provided, however that Kanopy, where applicable, will use commercially 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 termination of this Agreement shall survive such expiration or termination, including Sections: 3(b)(Assurances); 3 (Fees and Taxes); 5 (Intellectual Property); 6(d) (Survival); 7 (Representations and Warranties); 8 (Indemnification); 9 (Disclaimer of Warranties); 10 (Limitation of Liability); and 11 (Miscellaneous). PAL's shall also survive the expiration or termination of this Agreement, subject to payment of the Continuing Service Fee, as well as adherence to all relevant use restrictions. 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 corporate 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, "Indemnified 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(c) 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: (1) 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; (il) use of the Service or any Offering in combination with any materials not provided or approved by Kanopy; or (Ili) 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, providedhowever 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 relieve the indemnifying party of any obligation to indemnify pursuant to this Section 8, except to the extent the Indemnifying party has been prejudiced thereby; (ii) cooperate fully with the indemnifying party, at the indemnifying party's expense, in the defense or settlement of any indemnified claim; and (Ili) 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 party 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 (EXCEPTASSET FORTH IN SECTION 7), EXPRESSOR 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 Page 3 of 4 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, ARISING 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 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 INSTITUTION 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 authorized or empowered to create or assume any obligation of any kind, implied orexpressed, 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 Institution, 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 any right or obligation hereunder, by operation of law or otherwise without the prior written consent of Kanopy. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. (d) No Third -Party Beneficiaries. Nothing in this Agreement shall confer any rights upon any person orentity otherthanthe 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 "including" 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 interpretation against the party drafting an instrument or causing any instrumentto 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. (1) 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(li) 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 any provision hereof shall not affect the full right to require such performance at anytime 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: (1) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (11) 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. (1) Force Maieure. Except with respect to payment obligations under Section 3, 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 conditions 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. (o) Insurance Reaulrements. Kanopy shall procure and maintain for the duration of this Agreement, insurance requirements as detailed In Exhibit B, attached hereto and incorporated by reference to this Agreement. (p) Replacement of Prior Agreement. The parties acknowledge that the prior agreement (N-2022-007) between the parties, dated January 12, 2022, is hereby replaced in its entirety by this Agreement. This Agreement shall be effective, and the prior agreement shall be terminated, upon execution of this Agreement by the parties. Upon such execution, all provisions of the prior agreement are hereby superseded in their entirety. Payments made under the prior agreement shall be applied to the services contemplated by this Agreement. Page 4 of 4 EXHIBIT A Order Date: Order Number: Billing Address: Quote Summary: September 26th, 2023 KS84384838 Santa Ana Public Library 26 Civic Center Plaza Santa Ana, CA 92701-4010 Kanopy, Inc. 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: August 1,2023- July 31,2025 $17,000.00 (USD) 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 on users (with respect to the number of films "play credits" an 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. 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 $4 per user play credit for Individual films. A maximum cost of$5 per unlimited 30-day session for Kanopy Kids and pre -selected Series. • 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 nonrefundable funds for this program upfront, to be drawn upon by Kanopy forpayment 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: Kanopy may send Institution alerts regarding the status of Budgets established, and will pause Institution's participation in this program upon depletion of the Budget. Alternatively, Institution may elect to 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 to the Institution's written notice, without regard to the amount remaining in 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. On November 1. 2023: • Ticket Definition: On November 1, 2023, the use of Play Credits will be replaced with Tickets. As used herein, one or more Tickets will be incurred on a Title when an End User accesses the Title in and seeks to employ the Title for use. A user can track their existing and past tickets from their user dashboard. • Caps: Institution may impose monthly user caps on users (with respect to the number of Tickets an End User may incur within a month) and change these at any time with written notice to Kanopy. Institution may also set in place program spend caps and change these any time. • Cost Per Ticket: Each ticket used by Institution's End Users will represent $1 in cost, and each Title on the Kanopy platform will be clearly labeled with a ticket value and viewing window. The number of tickets required to view a Title will vary depending on the Title viewed. Individual films will have a maximum cost of $4 (4 tickets) and Series will have a maximum cost of $5 (5 tickets). • Processing: Invoices for Tickets will be processed periodically for the Institution (monthly). Institution will be notified and sent an invoice. Institution may request early processing of Ticket Invoices at any time. • Budgeting: Institution may deposit nonrefundable funds for this program upfront, to be drawn upon by Kanopy for payment of Tickets or pay for Tickets 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. • Kanopy Kids: For the avoidance of doubt, there will be no changes to Kanopy Kids on November 1, 2023. • Notwithstanding the foregoing, and for the avoidance of doubt, the sections above Titled "Access", "Reports", and "Managing Program" shall continue to remain valid and applicable after November 1, 2023. t (+1) 415-513-1026 Kanopy Inc., EIN 99-0377373 Kanopy, Level 2, 781 Beach St, San Francisco 94109 USA www.kanopy.com EXHIBIT B EXHIBT B — INSURANCE Prior to undertaking performance of work under this Agreement, Kanopy shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below for the duration of this Agreement: a. Minimum Scope and Limit of Insurance Coverage shall be at least as broad as: (1) Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregatelimit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. (2) Broader Coverage: if Kanopy maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Kanopy. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. b. Other Insurance Provisions (1) Additional Insured Status: The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Kanopy including materials, parts, or equipment furnished in connectionwith such work or operations. General liability coverage can be provided in the form of an endorsement to Kanopy's insurance (at least as broad as ISO Form CG 20 10 1185 or if notavailable, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 2037 if a later edition is used). (2) Primary Coverage: For any claims related to this contract, Kanopy's insurance coverage shall be primary coverage at least as broad as ISO CG 20 0104 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of Kanopy's insurance and shall not contribute with it. (3) Notice of Cancellation: Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City. (4) Waiver of Subrogation: Kanopy hereby grants to City a waiver of any right to subrogation that any insurer of Kanopy may acquire against the City by virtue of the payment of any loss under such insurance. Kanopy agrees to obtain any endorsement that may be necessary to affect this waiverof subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. (5) Self -Insured Retentions: Self -insured retentions must be declared to and approved by the City. The City may require Kanopy to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self - insured retention may be satisfied by either the named insured or City. (6) Acceptability of Ensurers: Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best's rating of no less than ANTI, unless otherwise acceptable to the City. (7) Verification of Coverage: copies of the applicable policy language effecting coverage requiredby this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing allpolicy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive Kanopy's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies,including endorsements required by these specifications, at any time. (8) Subcontractors: Kanopy shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Kanopy shall ensure that City is an additional insured on insurance required from subcontractors. (9) Special Risks or Circumstances: City reserves the right to modify these requirements, including limits, based on the nature of therisk, prior experience, insurer, coverage, or other special circumstances. NOTICE OF COMPLIANCE CITY STAFF: PRINT THIS PAGE AND INCLUDE WITH AGREEMENT TO THE CLERK OF THE COUNCIL Contractor Kanopy, Inc. Name: Project N-2023-268 Number: Project Kanopy Master Agreement Name: The Certificate of Insurance (COI) submitted indicates that the coverages are in compliance with the insurance requirements. No further action is required at this time. The compliant coverage(s) are: POLICY EXPIRATION TYPE OF INSURANCE COI DATE FILE NAME NUMBER DATE Kanopy Holdings Inc - City of Santa GENERAL LIABILITY 6080688803 06/09/2024 08/14/2023 Ana - 23081428029924 - 570101151041.pdf Thank you,