HomeMy WebLinkAboutBLACKSTONE PUBLISHING (BLACKSTONE AUDIO, INC.) N-2024-226
110
• BLACKSTONE UNLIMITED
STONETONE
S AGREEMENT
LIBRARY
JUL 0 8 2024
INSURANCE NOT REQUIRED
WORK MMITI4O'GOPD1e anta Ana Public Library
CITY CLERKipping Address 26 Civic Center Plaza City,State,ZIP Santa Ana, CA 92701
DATE: Billing Address Same City, State, ZIP
o•, (S��15) 6
CC
\JrAa1M�
Main Contact Name Lynn Nguyen
Title Principal Librarian
Phone Number 714-647-5259 Email Address LNguyen@santa-ana.org
Billing Contact Name Maria Castro
Title
Phone Number 714-647-5325 Email Address mcastro@santa-ana.org
Tech Contact Name Anthony(Tony)Lam
Title Tech and Support Services
Phone Number 714-647-5259 Email Address alam@santa-ana.org
Library Digital Audiobook Platform Start Date End Date Order Term(months) Category List Price Total
Adult 4/15,2024 4/14/2025 12 20% discount $7,500 $6,000
Children's and Young Adult 4/15/2024 4/14/2025 12 20% discount $2,000 $1,600
$7,600
Authentication and General Setup Information—upon receipt of your signed order form,we will send you a Set-Up email requesting
information—If you do not want this sent to the primary contact, please provide the technical contact above.
The term of this agreement shall commence on the signature date and shall terminate one(1)year from the plan effective date.
The signatory is allowed to sign on behalf of the library.
BY SIGNING BELOW,SUBSCRIBER 1}INDICATES THAT IT HAS READ AND AGREES TO THE CURRENT VERSION OF THE BLACKSTONE UNLIMITED SERVICE TERMS AND LIBRARY LICENSE,2)AFFIRMS
THAT IT HAS MADE NO CHANGES TO THOSE TERMS AND LICENSE;3)AFFIRMS THAT ALL OF ITS INTERNAL REQUIREMENTS FOR ISSUANCE OF PAYMENT TO BLACKSTONE PUBLISHING HAVE BEEN
SATISFIED:4)AFFIRMS THAT BLACKSTONE UNUMITED TERMS AND LIBRARY LICENSE WILL GOVERN THIS ORDER AND ALL FUTURE ORDERS AND RENEWALS,UNLESS OTHERWISE NOTIFIED BY
BLACKSTONE PUBLISHING:AND 5)ORDERS BLACKSTONE UNLIMITED.
Printed Name See Attached Signature Page Signature
Contact us today for more information or to start your free trial
1-800-621-0182 I LibraryServices@BlackstoneAudio.com
BLACKSTONE PUBLISHING LICENSE AGREEMENT WITH LIBRARIES
Each Library Account acknowledges and agrees to the terms described herein and in the applicable
Digital Subscription Form at the subscription level set forth in such Subscription Form and agrees
to comply with the terms and conditions set forth in this License Agreement (the "License
Agreement"or"Agreement").
1. LICENSE
(a) Blackstone Audio, Inc. d/b/a Blackstone Publishing("Blackstone")grants to the institution
identified in the applicable subscription form (each a "Library Account") a nontransferable and
non-exclusive license (the `-`License") to use (i) the audiobooks or other publications/content (the
"Digital Content") made available through Blackstone's proprietary website identified as
blackstoneunlimited.com that host Digital Content for and on behalf of Blackstone for resale to
users either as individual titles or as collections and (ii) the digital service made available by
Blackstone (hereinafter referred to as "Blackstone Unlimited") in accordance with the terms of
this License Agreement and in the applicable subscription form(the"Subscription Form")entered
into in connection with Blackstone Unlimited and annual subscription purchased by Library
Account to receive the Blackstone Unlimited service on the terms described herein and in the
applicable Blackstone Unlimited Subscription Form at the subscription level set forth in such
Subscription Form. Library Accounts may not reproduce, distribute, display, modify, alter,
publish, exploit, transfer or transmit, in any form, or by any means, any Digital Content or any
portion of the Blackstone Unlimited service, other than in accordance with this License
Agreement, without the prior written consent of Blackstone.
(b) All use by Library Account or any of the Library Account's current employees,
representatives, faculty, students, staff, visiting scholars and patrons that the Library Account has
reasonably authorized to directly or remotely access the Library Account's systems and content
(each, an "End User") of any Digital Content selected by Library Account or otherwise accessed
by Library Account or End Users, including but not limited to any authorized trial periods, any
period for which a fee has been paid, and when updates and access to new Digital Content are
provided, is subject to the terms and conditions set forth in this License. Library Account shall be
responsible for ensuring that any End Users accessing applicable Blackstone site(s)are notified of,
and abide by,the terms of this License.
(c) Blackstone reserves the right to establish all pricing for its Digital Content distributed via
the Blackstone Unlimited service.All pricing, and pricing tiers,for Digital Content shall be subject
to yearly review and revision in Blackstone's sole discretion. Blackstone further reserves the right
to revise pricing tiers, at anytime, based on its review and analysis of the number of End Users'
usage of the of the Blackstone Unlimited service.
2. OWNERSHIP OF DIGITAL CONTENT AND TRADEMARKS
(a) Each Library Account acknowledges that(i) Blackstone has sole and exclusive ownership
of all right, title and interest in and to the Digital Content owned by Blackstone (the "Owned
Content"), and (ii) Blackstone is a licensee, lessee or otherwise has obtained the right to use
Page 1 of 6
the Digital Content for which Blackstone is a licensee, lessee or otherwise has obtained the right
to include such Licensed Content in the Digital Content(the "Licensed Content"). Each Library
Account further acknowledges and agrees that it has not acquired, and shall not acquire (whether
by operation of law, by this License Agreement, by downloading any Digital Content, or
otherwise),any right,title,interest or ownership in or to the Owned Content or the Licensed Content or
any part thereof.
(b) Each Library Account additionally acknowledges that (a) the Blackstone Unlimited
trademark is owned by Blackstone and that all trademarks, logos, and service marks displayed on
any Blackstone website are owned by Blackstone or the licensors of the Licensed Content
(collectively, the "Trademarks"), (b) all Trademarks are the property of their respective owners
and are used with permission, and (c) nothing in this License Agreement or contained on the
Blackstone Unlimited website may be construed as granting, by implication, estoppel, or
otherwise,any right or license to use any Trademark.
3. DISCLAIMER OF WARRANTY,LIMITATION OF LIABILITY AND
INDEMNITY
(a) BLACKSTONE DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE,
NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. BLACKSTONE
NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR
BLACKSTONE ANY OTHER LIABILITY IN CONNECTION WITH THE LICENSING OF
THE DIGITAL CONTENT AND THE BLACISTONE UNLIMITED SERVICE AND THEIR
USE BY ANY LIBRARY ACCOUNT.
(b) IN NO EVENT SHALL BLACKSTONE BE LIABLE TO LIBRARY ACCOUNT FOR
ANY DAMAGES ARISING FROM OR RELATED TO FAILURE OR INTERRUPTION OF
THE BLACKSTONE UNLIMITED SERVICE, OR FOR INCIDENTAL, INDIRECT, OR
CONSEQUENTIAL DAMAGES, OR FOR LOSS OF OPPORTUNITY, LOSS OF USE, OR
OTHER LOSS ARISING OUT OF OR IN CONNECTION WITH THE LICENSE, TRANSFER,
OR USE OF THE BLACKSTONE UNLIMITED SERVICE. IN NO EVENT SHALL
BLACKSTONE'S LIABILITY HEREUNDER EXCEED THE TOTAL AMOUNT RECEIVED
BY BLACKSTONE FROM LIBRARY ACCOUNT UP TO OCCURRENCE OF THE ACTION
GIVING RISE TO SUCH LIABILITY.
(c) EACH PARTY ("INDEMNIFYING PARTY") AGREES TO INDEMNIFY AND HOLD
HARMLESS THE OTHER PARTY AND ITS CITY COUNCIL, OFFICERS, OFFICIALS,
EMPLOYEES, AGENTS, VOLUNTEERS, BUSINESS PARTNERS, LICENSORS, AND
LICENSEES ("INDEMNIFIED PARTIES") FROM ANY DAMAGES, LIABILITIES, COSTS,
AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) ON ACCOUNT OF
ANY CLAIM, SUIT, ACTION, DEMAND, OR PROCEEDING MADE OR BROUGHT
AGAINST SUCH INDEMNIFIED PARTIES ON ACCOUNT OF THE INVESTIGATION,
DEFENSE,OR SETTLEMENT THEREOF,ARISING OUT OF ANY BREACH OR ALLEGED
BREACH OF ANY OBLIGATIONS SET FORTH HEREIN ("INDEMNIFIABLE CLAIM").
NOTICE TO THE INDEMNIFYING PARTY OF ANY INDEMNIFIABLE CLAIM FOR
WHICH INDEMNIFICATION WILL BE SOUGHT. THE INDEMNIFIED PARTIES SHALL
Page2of6
COOPERATE AS FULLY AS REASONABLY REQUIRED IN THE DEFENSE OF ANY
CLAIM. NO INDEMNIFIABLE CLAIM MAY BE SETTLED WITHOUT THE WRITTEN
CONSENT OF THE INDEMNIFIED PARTIES.
4. DATA SECURITY
Each Library Account will implement and maintain reasonable measures to ensure that only
authorized End Users have access to the Blackstone Unlimited service and Digital Content.
Each Library Account will take reasonable steps to prevent unwarranted intrusion into data
managed or maintained by Blackstone on behalf of such Library Account acquired in the course of
the operation of the Blackstone Unlimited service, including but not limited to reasonable steps to
protect such Library Account's password files and access to the administrative website for
management of the Blackstone Unlimited service.
5. TECHNICAL SUPPORT SERVICES
Blackstone agrees to provide technical support services by email and phone to each Library
Account, including but not limited to reasonable efforts to: (a) assist such Library Account in
providing support; (b) correct, fix, or circumvent errors; and (c) in the sole discretion of
Blackstone,provide updates,enhancements,and new versions of the Blackstone Unlimited service
("Support"). Blackstone shall provide such Support by email and phone during its normal business
hours of Monday- Friday 7:00 AM to 5:00 PM Pacific Standard Time. Each Library Account
acknowledges that errors in the Blackstone Unlimited service shall not be a breach of this License
Agreement.
6. CONFIDENTIALITY
Each Library Account agrees that, without the prior consent of Blackstone, such Library Account
will not disclose, divulge, reveal,report or use, for any purpose, any confidential information with
respect to the business of Blackstone that such Library Account has obtained. This obligation will
survive indefinitely upon termination of this License Agreement. The foregoing obligations of
nondisclosure shall not apply to any information that (a) has been disclosed in publicly available
sources; (b) is, through no fault of the Library Account, disclosed in a publicly available source;
(c) is in the rightful possession of Library Account without an obligation of confidentiality; (d) is
required to be disclosed by operation of law;or(e) is independently developed by Library Account
without reference to information disclosed by Blackstone.
7. PRIVACY POLICY AND TERMS OF USE
(a) Blackstone respects the privacy of visitors to its sites. The Blackstone's privacy policy
governing its operation of the Blackstone Unlimited service is available at
www.blackstoneunlimited.com/privacv-policv and is expressly incorporated herein by reference
and made a part of this License Agreement.
(b) The terms and conditions set forth by Blackstone governing the use of and access to the
Blackstone Unlimited service and the Digital Content, attached hereto as Exhibit A and are
Page 3 of 6
expressly incorporated herein by reference and made a part of this License Agreement.
8. TERM AND TERMINATION
(a) The term for each Library Account's access to the Blackstone Unlimited service shall be for
a period of twelve (12)months, unless otherwise agreed by Blackstone and such Library Account.
Such Library Account obtains certain rights and access to use the Digital Content and Blackstone
Unlimited service for the term of its agreement with Blackstone. The License granted to such
Library Account shall be terminated at the end of such term, unless renewed or extended by the
mutual agreement of Blackstone and such Library Account in a signed writing, along with such Library
Account's access to the Blackstone Unlimited service and any and all Digital Content,and such Library
Account shall make no further use of all or any part of the Digital Content and the Blackstone Unlimited
service.
(b) In the event of a breach of any of its obligations, including but not limited to non-payment
or late payment for services, each Library Account shall have thirty (30) days from the receipt of
written notice of such breach from Blackstone to cure such breach. If the Library Account fails to
remedy such breach within such 30-day period, Blackstone may, at its option and in its sole
discretion,terminate its agreement with such Library Account upon written notice to such Library
Account and/or temporarily or permanently suspend such Library Account's access to the
Blackstone Unlimited service.
(c) For avoidance of doubt, Blackstone, in its sole and absolute discretion, has the right to
modify,edit,change or remove any Digital Content available on the Blackstone Unlimited Service.
Blackstone shall provide Library Account with written notice of its intention to remove Digital
Content from the Blackstone Unlimited Service.
9. GENERAL PROVISIONS
(a) This Agreement shall be governed by the laws of the State of California without regard to
conflict of laws. The validity, interpretation,performance, and enforcement of any of the clauses
of this Agreement shall be determined and governed by the laws of the State of California. Both
parties further agree that Orange County, California, shall be the venue for any action or
proceeding that may be brought or arise out of, in connection with or by reason of this Agreement.
(b) In the event that there is a binding legal determination that any portion of this License
Agreement is unenforceable, void, invalid or inoperative, the remaining provisions of this License
Agreement shall not be affected and shall continue in effect as though such invalid provisions were
deleted.
(c) Neither Blackstone nor the licensors of the Licensed Content will be liable or deemed to
be in default of this License Agreement for any delays or failure in performance resulting directly
or indirectly from any cause or circumstance beyond its reasonable control, including but not
limited to acts of God, war, riot, embargoes, acts of civil or military authority, rain, fire, flood,
accidents, earthquake(s), strikes or labor shortages, transportation facility shortages, failures of
equipment, or failures of the Internet.
Page 4 of 6
(d) Blackstone should be notified of any claims of copyright infringement regarding materials
available or accessible on,through, or in connection with the Blackstone Unlimited service or the
associated websites.
(e) This License Agreement constitutes the entire Agreement and understanding of the parties.
This Agreement may be amended or modified by the parties in a signed writing upon written notice
to the parties at the addresses provided below.
(f) This License Agreement shall be binding and inure to the benefit of the parties hereto and
their respective successors. In the event Blackstone enters into an agreement to sell substantially
all the assets of Blackstone,this License Agreement shall be binding upon the purchaser.
(g) All notices between the parties pursuant to this Agreement (including without limitation,
questions, complaints, legal notices or copyright complaints) shall be sent (i) by courier or first-
class mail to the addresses set forth below or(ii)by facsimile or e-mail (in each case with express
confirmation of receipt by the receiving party in writing) to the facsimile number and e-mail
address set forth below:
To Blackstone:
Blackstone Audio,Inc.,
31 Mistletoe Road
Ashland, OR 97520
Phone: (541)488-6036
E-mail: libraryseivices(ablackstoneaudio.com
To City:
City Clerk
City of Santa Ana
20 Civic Center Plaza(M-30)
P.O. Box 1988
Santa Ana,CA 92702
Fax: 714-647-6956
With Courtesy Copies to:
Executive Director,
Library Services Agency
City of Santa Ana
20 Civic Center Plaza(M-75)
P.O. Box 1988
Santa Ana, CA 92702
[signature page,follows]
Page 5 of 6
SIGNATURE PAGE FOR
AGREEMENT BETWEEN THE CITY OF SANTA ANA AND BLACKSTONE AUDIO, INC.,
FOR BLACKSTONE UNLIMITED SERVICE
IN WITNESS WHEREOF,the parties hereto have executed this Agreement the date and year first above written.
AT ST: CITY OF SANTA ANA
O�
f
Y
,A A ti
sr r1
e • rL I '�°f9 Alvaro Nunez
City ler Acting City Manager
APPROVED AS TO FORM:
SONIA R. CARVALHO BLACKSTONE AUDIO,INC.
City Attorney
By: iZe —
Bn Salvatierra Name:Craig Mears
Deputy City Attorney Title: National Sales Manager
RECOMMENDED FOR APPROVAL:
Dnan Ste'nLe .:G,]OPa Iv:E I`DII
Brian Sternberg
Executive Director
Library Services Agency
Page 6 of 6
Agreement_Blackstone Unlimited Santa Ana
Public Library_FINAL_6.23.24_signed
Final Audit Report 2024-07-01
Created: 2024-07-01
By: Ella Sepulveda(msepulveda@santa-ana.org)
Status: Signed
Transaction ID: CBJCHBCAABAAeFtbXbfhwLKOggHF-ZFEC5LsFJpYBMEN
"Agreement_Blackstone Unlimited Santa Ana Public Library FIN
AL_6.23.24_signed" History
f'.� Document created by Ella Sepulveda (msepulveda@santa-ana.org)
2024-07-01 -7:07:56 PM GMT
E Document emailed to Craig Mears (craig.mears@blackstonepublishing.com)for signature
2024-07-01 -7:08:04 PM GMT
1 Email viewed by Craig Mears (craig.mears@blackstonepublishing.com)
2024-07-01 -7:09:20 PM GMT
u. Document e-signed by Craig Mears (craig.mears@blackstonepublishing.com)
Signature Date:2024-07-01 -7:29:22 PM GMT-Time Source:server
® Agreement completed.
2024-07-01 -7:29:22 PM GMT
0 Adobe Acrobat Sign
EXHIBIT A
BLACKSTONE UNLIMITED TERMS OF USE
BLACKSTONE AUDIO, INC. d/b/a BLACKSTONE PUBLISHING ("Blackstone") and/or its
licensors and service provider(s) provide the web site located at www.blackstoneunlimited.com
(collectively, with all of the associated web pages, the "Site"), the Site Content (as defined below)
and our digital content service (the "Service") to you, a representative of a library/school/company
subscribing to the Digital Service ("Library/School/Company"), subject to these Terms of Use
("Terms").
PLEASE READ THESE TERMS CAREFULLY, AS YOU ARE BOUND TO COMPLY WITH
THE PROVISIONS HEREIN.
THESE TERMS ARE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND
BLACKSTONE.
BLACKSTONE RESERVES THE RIGHT TO CHANGE OR MODIFY THESE TERMS AT ANY
TIME BY PROVIDING WRITTEN NOTICE PURSUANT TO SECTION 13(c) OF THIS
AGREEMENT. IT IS YOUR OBLIGATION TO REVIEW CHANGES IN THESE TERMS, AND
YOU AGREE THAT YOUR CONTINUED USE OF THE SITE, SHE CONTENT AND/OR
SERVICE AFTER THE RECEIPT OF ANY REVISED TERMS CONSTITUTES YOUR
AGREEMENT TO BE BOUND BY ANY SUCH REVISED TERMS. YOUR SOLE AND
EXCLUSIVE REMEDY FOR ANY DISSATISFACTION WITH ANY REVISIONS TO THESE
TERMS AND/OR THE SITE, SITE CONTENT AND/OR SERVICE IS TO CEASE USING THE
SITE, SITE CONTENT AND SERVICE.
1. OWNERSHIP: Except for the limited rights granted in Section 2 herein,Blackstone and/or
its licensors own and/or control all right, title and interest (including, without limitation, all
copyrights) in and to the Site, Site Content and Service. "Site Content" means any and all files, text,
graphics, hyperlinks, interlinks, search engines, images, software, illustrations, photos, animation,
video, audio, audiovisual works, designs or logos, information and other works of authorship made
available to you through the Site and/or Service. You understand and acknowledge that you shall
not acquire any ownership rights by accessing or using the Site, Site Content or Service. You
understand and agree that any modification of the Site Content by you or use of the Site Content for
any purposes other than those allowed hereunder shall be a violation of Blackstone's legal,copyright
and proprietary rights.
2. TRADEMARKS: The trademarks: "Blackstone;" "Blackstone Publishing;" "Blackstone
Unlimited;" `Blackstone Audio;" are each trademark of Blackstone. Other trademarks used or
displayed in connection with the Service may be owned by third parties, including, without
limitation, any of Library/School/Company trademarks. Third party trademarks used on the Site or
in connection with the Service are used with the permission of such trademark owners and all of their
rights are reserved. You shall have no right to use any of the foregoing without the prior written
approval of Blackstone or the owner(s) of such other trademarks. Any unauthorized use of the
Blackstone' trademarks or any third-party trademark is strictly prohibited.
Page 1 of 8
3. COPYRIGHT COMPLAINTS: (a) If you believe that your copyrightable work of
authorship has been copied and is being made accessible on the Site in such a way that would give
rise to a claim for copyright infringement, you must provide the following to the Agent for Claims
listed below:
(i) An electronic or physical signature of the person authorized to act on behalf of the
owner of the copyright interest;
(ii) A description of the copyrighted work that you claim has been infringed upon;
(iii) A description of where the material that you claim is infringing is located on the Site,
including,without limitation,any information,documentation or web address(es)which would assist
Blackstone in locating that material;
(iv) Your address,telephone number and e-mail address;
(v) A statement by you that you have a good faith belief that the disputed use is not
authorized by the copyright owner, its agent, or permissible by law;
(vi) A statement by you under the penalty of perjury that the information in your notice is
accurate that you are the copyright owner or authorized to act on the owner's behalf.
(b) Agent for Claims: Blackstone Audio,Inc.
31 Mistletoe Road
Ashland,OR 97520
Phone:.(541)488-6036
E-mail:piracy@blackstoneaudio.com
4. GRANT OF RIGHTS: Subject to these Terms, Blackstone grants to you a non-exclusive,
nontransferable, non-sublicensable, limited and revocable right to access, use and view the Site and
Site Content solely for your patrons' personal use or on your Library's premises.
5. NOTIFICATIONS. You may receive notifications regarding the Site, Site Content and/or
Service. The notifications will pertain only to the system functionality and the content you access.
6. STREAMING/DOWNLOADING OF SITE CONTENT: (a) Certain Site Content
may be available on a streaming basis and/or download basis, as determined by Blackstone in its
sole discretion.
(b) Download Restrictions. Blackstone may in its sole discretion make certain Site Content
available for your download to an Authorized Device (such Site Content, the "Download Content")
in accordance with the terms and conditions contained herein. If you choose to download the
Download Content, you may store and use such Download Content on an Authorized Device in
accordance with these Terms and the applicable Usage Rules during the period of time during which
you are expressly permitted by Blackstone to use such Download Content (such period, the "Use
Period"). Without limiting the provisions of any other applicable sections herein, you shall not, at
any time, copy, export or otherwise move the Download Content from its originally stored location
Page 2 of 8
on the Authorized Device to a different location on such Authorized Device or any other device. You
shall not access, use such Download Content upon or after the expiration of the Use Period and you
acknowledge that any expired Download Content will be automatically deleted from your or your
Library/School/Company's hard drive without further notice to you.
7. RESTRICTIONS ON YOUR USE OF THE SITE,SITE CONTENT AND SERVICE:
Except as set forth herein you shall not use or exploit any portion of the Site, Site Content or Service,
and any such usage or exploitation shall constitute an act of copyright infringement and you shall
not,by way of example,without limitation,take any of the following actions without the prior written
authorization of Blackstone, which authorization shall be granted in Blackstone' sole discretion:
(a) copy, reproduce, sublicense, alter, adapt, transmit (including, without limitation,
pursuant to a remote listening device), publicly perform or display, distribute, customize, modify,
translate, reverse engineer, decompile, disassemble, create derivative works based upon, add to or
delete from the Site or Site Content;
(b) sell, rent, lease, transfer or otherwise assign any rights to the Site, Site Content or
Service to any third party.
(c) publicly display, link, frame or forward any web address to the Site or any portion
thereof;
(d) copy or paste the Site Content or any portion thereof to any other website or web
page;
(e) remove any proprietary notices or labels on the Site or Site Content;
(t) use the Site, Site Content or Service, or any portion thereof, for any purposes which
are unlawful in any nation or jurisdiction in the world or for any commercial purpose whatsoever;
(g) use the Site, Site Content or Service in conjunction with any device or service
designed to circumvent technological measures employed to control access to, or the rights in, a
content file or other work protected by the copyright laws of any jurisdiction;
(h) use the Site or Service to invade the privacy of, or obtain personal information about,
any other user of the Site;
(i) use the Site, Site Content or Service to violate any legal right of any third party,
including, without limitation, any publicity or privacy right, copyright or other intellectual property
right, or to take any action that is harassing, libelous, defamatory, abusive, tortuous, threatening,
harmful or otherwise objectionable;
Q) use any metatags or any other"hidden text"utilizing Blackstone' name or trademarks;
(k) interrupt,or attempt to interrupt,the operation of the Site or Service in any way; or
Page 3 of 8
(1) permit unauthorized individuals to use or access the Site, Site Content or Service.
8. OTHER RESTRICTIONS AND LIMITATIONS:
(a) Security. You understand that digital rights management or other copyright
protection technologies or mechanisms may be embedded or associated with, or certain technology
and/or rules may alter, the Site Content (including, without limitation, the Download Content) in
order to protect digital information from access and use (collectively, the "Security Technologies")
and the Security Technologies may restrict your access to and usage of the Site Content in accordance with
usage rules established by Blackstone and/or its licensors from time to time ("Usage Rules"). You agree to
comply with such Usage Rules. Usage Rules may be controlled and monitored by Blackstone for
compliance purposes, and Blackstone reserves the right to modify and/or enforce the Usage Rules with
notice to you at any time. If you become aware of any unauthorized use of Site, Site Content or Service by
any person or entity, you shall immediately notify Blackstone and reasonably cooperate with Blackstone to
prevent further unauthorized use. YOU HEREBY ACKNOWLEDGE THAT THE SECURITY
TECHNOLOGIES ENABLE BLACKSTONE TO ENFORCE CERTAIN RESTRICTIONS RELATING TO
YOUR ACCESS TO AND USE OF THE SITE CONTENT (E.G., ENFORCEMENT OF THE USE
PERIOD AND RESTRICTIONS AGAINST COPYING) AND THAT SUCH SECURITY
TECHNOLOGIES MAY BE USED BY BLACKSTONE TO ENFORCE SUCH RESTRICTIONS.
(b) No Right to Continued Service. You acknowledge that Blackstone licenses some or all
of the Site Content under agreement(s) with third parties, and that Blackstone and its service
provider(s) are constantly administering the Site, including, without limitation, to comply with the
Usage Rules. Blackstone may add, delete, remove, modify, disable, suspend or restrict some or all
of the Site, Site Content and/or Service in its sole discretion with notice to you,and you acknowledge
that as a result of such actions: (i)you may no longer be able to use the Site, Site Content and/or Service
to the same extent, or at all, as prior to such actions, and (ii)that Blackstone shall have no liability to you or
any third party(ies)in such case.Blackstone shall not be liable in any event for the addition,deletion,removal,
modification, disabling, suspension or restriction of access to or use of any or all of the Site, Site Content
and/or the Service.
(c) Software. In order to access the Site and/or the Site Content, you may be required to
download, install and run certain software, and updates and upgrades thereto, owned or controlled
by Blackstone and/or its service provider(s). Such software shall be governed by the accompanying
software or end-user license agreement, and you shall comply with the terms thereof, the terms of
which are incorporated herein by reference.
(d) Age Restrictions. Certain Site Content may be appropriate only for persons over the
age of eighteen (18) years. Those persons who are younger than 18 years of age, or such other age
as may be required in your jurisdiction, are referred to herein as "Minors."Not all Site Content may
be appropriate for Minors. However, access to the site is not limited by age; therefore, monitoring of
a minor's use of the collection is the responsibility of the parent/guardian.
9. LINKS TO SITE: (a) You may not link to the Site from any pornographic, obscene,
profane, defamatory, libelous, threatening, unlawful or other website or material which could
constitute or encourage unlawful conduct that would be considered a criminal offense, give rise to
civil liability, or otherwise violate any law or regulation. Blackstone assumes no responsibility or
liability which may arise from any such content.
Page 4 of 8
(b) Links to Third Party Sites. Although the Site may link to other websites("External Sites"),
Blackstone is not, directly or indirectly, implying any approval, association, sponsorship,
endorsement, or affiliation with any External Site, unless otherwise specifically stated herein. By
entering the Site you acknowledge and agree that Blackstone has not reviewed the External Sites and
is not responsible for the content contained on any External Site. Your access and use of any External
Site is at your own risk.
(c) Third Party Postings. The Site may contain information or advertising for third parties.
Blackstone expressly denies any endorsement, sponsorship, approval, or agreement with any third
party communication made available via the Site. Blackstone shall not be deemed to have considered,
reviewed,screened or approved of any such third party communication.
10. DISCLAIMERS:
(a) Transmission of Information. As with any online interaction and electronic
communication, there is an inherent risk involved in transmitting any information via the Internet.
Blackstone does not and cannot guarantee that the system of Blackstone or its service provider(s) is
or will be free from hackers or viruses or that information provided by you or any other users to
Blackstone will not be stolen or otherwise surreptitiously obtained. Blackstone will take every
reasonable measure to ensure security of the user's information. Blackstone is not responsible or
liable to you or any third party for any infections or contamination of your system or delays,
inaccuracies, errors, or omissions arising out of your access to or use of the Site, Site Content or
Service.You hereby acknowledge and agree that such risk is inherent in interacting with any website,
content or service, including,without limitation,the Site, Site Content and Service,and you take full
responsibility for any harm, danger or damage that ensues due to any such breach in security.
Blackstone expressly disclaims any such liability. In addition, you agree to be responsible for
obtaining and maintaining all telephone, computer hardware and other equipment needed for access
to and use of the Site, Site Content or Service and you shall be responsible for all charges
related thereto.
(b) Information and Data. Blackstone offers access to the Site, Site Content and Service for
personal entertainment purposes only. Blackstone does not warrant the truth or validity of the
information contained on the Site. You acknowledge and understand the possibility of human and
mechanical error, mistakes or omissions in the data or information provided, delays or interruptions
of the data or information stream from any cause whatsoever. You further acknowledge and agree
that Blackstone is not responsible for errors in or omissions from the information contained in or
accessed through the Site, Site Content or Service.
(c) Objectionable Material. You understand that through your use of the Site, Site Content and
Service you may encounter content that may be deemed offensive, indecent,or objectionable,which
content may or may not be identified as such. You agree to use the Site, Site Content and Service at
your sole risk and that Blackstone shall have no liability to you for the type of content that you may
access,including,without limitation,content that you may find offensive,indecent, or objectionable.
11. DISCLAIMER OF WARRANTIES: THE SITE, SITE CONTENT AND SERVICE ARE
PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS.
SUBJECT TO THE PROVISIONS HEREIN,BLACKSTONE, ITS SERVICE PROVIDER(S)AND
LICENSORS DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND,
Page 5 of 8
EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (I)
REPRESENTATIONS OR WARRANTIES OF TITLE, MERCHANTABILITY, NON-
INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
SITE, THE SITE CONTENT, THE SERVICE, ANY GOODS OR SERVICES SOLD THROUGH
THE SITE OR THE CONTENT OF ANY THIRD PARTY SITE THAT MAY BE LINKED TO
THE SITE AND (II) ANY REPRESENTATION OR WARRANTY THAT THE SITE WILL BE
UNINTERRUPTED OR ERROR FREE, FREE FROM VIRUSES OR SECURITY BREACHES.
THE SITE CONTENT AND ANY INFORMATION CONTAINED ON THE SITE IS NOT
GUARANTEED TO BE ACCURATE, TIMELY OR VERIFIED. YOU EXPRESSLY AGREE
THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SITE AND
THE SERVICE, AND THE ACCURACY OR COMPLETENESS OF THE SITE CONTENT OR
INFORMATION MADE AVAILABLE VIA THE SITE OR THE SERVICE, IS ASSUMED
SOLELY BY YOU.
12. LIMITATION OF LIABILITY: IN NO EVENT SHALL BLACKSTONE, ITS SERVICE
PROVIDER(S) OR LICENSORS BE LIABLE HEREUNDER (WHETHER IN AN ACTION IN
NEGLIGENCE, CONTRACT OR TORT OR BASED ON A WARRANTY OR OTHERWISE)
FOR LOSS OF PROFITS OR REVENUE, LOSS OR INACCURACY OF DATA, OR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL
DAMAGES INCURRED BY YOU OR ANY THIRD PARTY, REGARDLESS OF WHETHER
BLACKSTONE, ITS SERVICE PROVIDER(S)AND/OR LICENSORS HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
CERTAIN LIMITATIONS: WITHOUT WAIVING ANY APPLICABLE SECTION CONTAINED
HEREIN, BLACKSTONE AND YOU EACH ACKNOWLEDGE THAT SOME JURISDICTIONS DO
NOT ALLOW EXCLUSIONS OF IMPLIED WARRANTIES OR LIMITATIONS OF LIABILITY FOR
CERTAIN TYPES OF DAMAGES. IN SUCH JURISDICTIONS, THE LIABILITY OF BLACKSTONE,
ITS SERVICE PROVIDER(S) AND/OR LICENSORS SHALL BE LIMITED TO THE GREATEST
EXTENT PERMITTED BY APPLICABLE LAW. NOTHING CONTAINED IN THESE TERMS SHALL
LIMIT OREXCLUDE OR PURPORT TO LIMIT OR EXCLUDE ANY LIABILITY WHERE SUCH
LIMITATION OR EXCLUSION IS VOID OR UNENFORCEABLE OR OTHERWISE NOT
PERMITTED UNDER APPLICABLE LAW.
13. GENERAL TERMS:
(a) Termination. If you should breach any portion of these Terms, in addition to any other rights
of the parties set forth herein,Blackstone may in its sole discretion restrict,suspend or terminate your
access to the Site, Site Content and Service, in whole or in part and without notice, even if your
Library/School/Company continues to offer access to the Site, Site Content and Service to its other
members or representatives. If Blackstone terminates your access to the Site, Site Content and/or
Service, Blackstone reserves the right to refuse to provide other services to you in the future, even if
your Library/School/Company subscribes to such services and offers the benefits of such
subscription to its other members or representatives. For the avoidance of doubt, upon any such
restriction, suspension or termination, the rights granted to you herein shall immediately terminate
(in the case of a restriction, to the extent of such restriction). Notwithstanding such restriction,
suspension or termination, the provisions set forth in Sections I, 2, 3, 4, 5, 6, and 9 shall remain in
full force and effect indefinitely.
Page 6of8
(b) Indemnification. Each party ("Indemnifying Party") agrees to indemnify, defend and hold
harmless the other party, its respective City Council, officers, officials, employees, agents,
volunteers, service provider(s) and its licensors and any of their respective officers,directors, agents
and employees (collectively, the "Indemnified Parties") from and against any and all liability and
costs (including, without limitation, attorneys' fees) incurred by any such Indemnified Parties with
respect to any claim arising out of any breach or alleged breach of any of obligations set forth herein
("Indemnifiable Claim"). The party seeking indemnification must provide prompt written notice,
pursuant to Section 13(c) of this Agreement, to the Indemnifying Party of any Indemnifiable Claim
for which indemnification will be sought. The Indemnified Parties shall cooperate as fully as
reasonably required in the defense of any claim. The Indemnified Parties reserve the right, at their
own expense, to assume the exclusive defense and control of any matter otherwise subject to
indemnification by the Indemnifying Party,provided however, that no Indemnifiable Claim may be
settled without the written consent of the Indemnified Parties.
(c) Notices. All notices between the parties pursuant to this Agreement (including, without
limitation, questions, complaints, legal notices or copyright complaints) shall be sent (i) by courier
or first-class mail to the addresses set forth below or (ii) by facsimile or e-mail (in each case with
express confirmation of receipt by the receiving party in writing)to the facsimile number and e-mail
address set forth below:
To Blackstone:
Blackstone Audio,Inc.31 Mistletoe Road
Ashland, OR 97520
Phone:(541)488-6036
E-mail: libraryservices@blackstoneaudio.com
To City:
City Clerk
City of Santa Ana
20 Civic Center Plaza(M-30)
P.O.Box 1988
Santa Ana, CA 92702
Fax: 714-647-6956
With Courtesy Copies to:
Executive Director,
Library Services Agency
City of Santa Ana
20 Civic Center Plaza(M-75)
P.O. Box 1988
Santa Ana, CA 92702
Governing Law. Forum Selection; No Export. These Terms shall be governed by the laws of the State of
California without regard to the principles of conflicts of law. The parties hereby expressly agree to submit
to the exclusive personal jurisdiction of the federal and state courts sitting in the State of California, County
of Orange and City of Santa Ana, and not elsewhere, for the purpose of resolving any dispute relating to
Page7of8
access to or use of the Site, Site Content and/or Service. The parties may seek injunctive or other appropriate
relief in any state or federal court in the State of California, and the parties consent to exclusive jurisdiction
and venue in such courts and not elsewhere. The parties agree not to assert, by way of motion, as a defense
or otherwise, in any such dispute,that such party is not subject personally to the jurisdiction of such court,that any
corresponding claim is brought in an inconvenient forum or the like, that the venue of the claim is improper or that
these Terms or the subject matter hereof may not be enforced in any such court.Any summons, order to show cause,
writ,judgment,decree or other process issued by such court may be served on the parties at the addresses provided in
Section 13(c)of this Agreement or personally outside the State of California,and when so served,the parties shall be
subject to the jurisdiction of such court as though the same had been served within the State of California.No software
from the Site, Site Content or Service may be downloaded, exported or re-exported by you into (or to a national or
resident of) any countries that are subject to U.S. export restrictions.
(d) Relationship Between the Parties. These Terms shall not be construed to create a
partnership,joint venture, agency or other legal relationship between Blackstone and you. Each of
Blackstone's licensors and content providers, together with their respective successors and assigns,
shall be an intended third-party beneficiary of these Terms and shall have the right to enforce any
and all obligations,restrictions and/or other terms and conditions imposed on you under these Terms
to the same extent as if such licensor or content provider were a party to these Terms. These Terms are fully
enforceable in every respect, at law or in equity, by each such licensor or content provider as an intended
third-party beneficiary hereunder.
(e) Severability. Whenever possible, each provision of these Terms shall be interpreted in such
a manner as to be effective and valid under applicable law, but if any provision of these Terms shall
be prohibited by or invalid under applicable law, such provisions shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of such provision or the
remaining provisions of these Terms. These Terms express the entire understanding of you and
Blackstone and supersede and replace all prior and contemporaneous agreements between you and
Blackstone with respect to the subject matter hereof. Further, these Terms shall govern your use of
the Site, Site Content and Service under any subscription level obtained by your
Library/School/Company.Any failure to exercise or delay in exercising any right,power or privilege
granted under these Terms shall not operate as a waiver by Blackstone of such right, power or
privilege or preclude any further exercise thereof or the exercise of any other right,power or privilege
by Blackstone.
(f) Enforceable Agreement. These Terms constitute an enforceable written agreement between
you and Blackstone.
(g) Injunctive Relief. You agree that a breach of any of the terms and conditions of these Terms
may result in irreparable harm and significant injury to Blackstone, which may be difficult to
ascertain. Accordingly, you agree that Blackstone shall be entitled to equitable relief, including,
without limitation, an immediate injunction enjoining any further breach, in addition to all other
remedies available to Blackstone at law or in equity.
Page 8 of 8