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AGREEMENT TERMINATION
2001
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Please complete this form when the attached agreement is no longer in effect.
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Return form to the Sr. Deputy Clerk of the Council (M-30). Ca11647-523$ -f-you have any ~ `
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Revised 3-2-07
City of Santa Ana
Clerk of the Council
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THOMSON
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GALE
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N-2007-029
The Gale Group Subscription and License Agreement
The parties to this Subscription and License Agreement (the "Agreement") dated as
of 12/1/2006 is by and between The Gale Group, Inc. ("Gale"), a Delaware
corporation, with its principal office at 27500 Drake Rd., Farmington Hills, MI., USA
48331-3535 and the CITY OF SANTA ANA, ("Subscribing Institute") with principal
offices at 26 CIVIC CENTER PLZ, SANTA ANA, CA 927014010.
This agreement provides for the use by the Subscribing Institute of the "Licensed
Content" as defined below, and any and all enhancements, modifications or
alterations made thereto by Gale, and any written materials supplied by Gale under
this agreement ("Agreement").
In consideration of the mutual premises hereinafter set forth, as well as other good
and valuable consideration, Gale and Subscribing Institute agrees as follows:
1.0 Definitions
A. "Licensed Content" shall mean Gale's branded collections of content,
which may include Third Party content, as described in Addendum A.
B. "Authorized User" of the Licensed Contents are defined as:
. Persons affiliated with Customer. All currently enroiled full or part-time students;
currently employed faculty (whether on a permanent, temporary, contract or
visiting basis), teaching staff, administrators, staff, patrons and employees
regardless of the physical location of such persons. Subcontractors, affiliates and
other third party contacts of the Subscribing Institute are not defined as
Authorized Users under this license and as such are not granted access rights
without the prior written consent of Gale, except as specifically authorized in this
Agreement.
. Remote Patrons. Remote patrons whose access to the Licensed Content is
authenticated by a secure server or other system.
. Walk-ins. Patrons not affiliated with Subscribing Institute who are physically
present at Subscribing Institute's site(s) and are permitted by the Customer
under the terms of this Agreement to access the Licensed Content from
designated terminals.
C. Authorized Sites" shall mean any public library, public and private school,
academic institution and special library (defined in Addendum B) that at
any time during the term of this Agreement is authorized to access the
Licensed Content.
D. "Access Date" shall mean the date upon which Gale provides access to the
Licensed Content for the Subscribing Institute.
2.0 Scope Of License
27500 Drake Road Farmington Hills, MI 4833 I -3535,248-699-4253 800-877-GALE www.gale.com
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THOMSON
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GALE
2.1 Under the terms of this Agreement, Gale hereby grants Subscribing
Institute, the non-transferable, non-exclusive right to download,
display, view and print and/or make single paper or electronic copies
of citations, abstracts, full text or portions thereof of excerpts of
records contained in the Licensed Content for internal business
purposes and for their Authorized User's educational research or
personal non-commercial use only. Subscribing Institute may not use
any data or documentation received from the Licensed Content except
as expressly provided in this Agreement and except as permitted by
U.S. Copyright Law and CONTU guidelines, which law shall govern the
use of all data and documentation received from the Licensed Content.
Subscribing Institute agrees not to sell, exchange, barter or transfer,
rent, lease, loan, resell for profit, distribute or in any other manner
commercially exploit any data or documentation received from the
Licensed Content. Furthermore, Subscribing Institute will not use the
Licensed Content as a component of, or a basis for, a directory,
database, or other publication prepared for sale or for any other form
of distribution, and will neither duplicate nor alter the product in any
way. The aforesaid rights are to be exercised only at the Authorized
Site or remotely by logging on to a secure network. Use of the
Licensed Content will be limited to the Authorized User base of the
Subscribing Institute(s) licensing the product through this Agreement
as defined in Section 1.0 (8).
2.2 The term of this Agreement including database access will begin on the
date of contract signing and remain in effect unless earlier terminated
or extended as provided for herein. This Agreement will renew unless
either party provides written notice within thirty (30) days before end
of the then current term.
2.3 Subscribing Institute acknowledges that Gale and its third party data
providers own all content within the Licensed Content and all portions
thereof. Neither Gale nor its third party data Suppliers transfers any
ownership. Subscribing Institute and its Authorized Users may not
reproduce, transfer or transmit, in any form, or by any means, the
Licensed Content or any portion thereof without the prior written
consent of Gale, except as specifically authorized in this Agreement.
2.4 The Subscribing Institute shall use all reasonable efforts to restrict and
control unauthorized access to the Licensed Content. The Subscribing
Institute agrees to notify Gale if it becomes aware of any of the
following: (a) any loss or theft of the Subscribing Institute's
passwords(s); (b) any unauthorized use of any of the Subscribing
Institute's passwords(s) of the Licensed Content; or (c) any breach by
an Authorized User of the terms of this Agreement. Upon becoming
aware of any breach of the terms of this Agreement by an Authorized
User, the Subscribing Institute agrees to work with Gale to correct
such practices.
2.5 Third party data suppliers may provide additional terms and conditions
affecting the Subscribing Institute's use of the Licensed Content, which
will be appended to this Agreement. Such terms and conditions will
27500 Drake Road Farmington Hills, MI 48331-3535. 248.699-4253 800-877-GALE www.gale.com
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THOMSON
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GALE
prevail and control use of the relevant Licensed Content over any
conflicting terms contained herein. Subscribing Institute agrees that
this Agreement, to the extent it pertains to the Licensed Content
contained in the Product, may be enforced by the third party data
supplier.
2.6 Gale reserves the right at any time to withdraw from the Licensed
Content any item or part of an item for which it no longer retains the
right to publish, or which it has reasonable grounds to believe infringes
copyright or is defamatory, obscene, unlawful or otherwise
objectionable.
3.0 Remote Access
Subscribing Institute acknowledges and agrees that remote access is included
for all Licensed Content for the Subscribing Institute and its Authorized Users
licensing product through this Agreement. The Subscribing Institute agrees to
use reasonable efforts to inform its Authorized Users of the provisions listed
below and to use reasonable efforts to restrict and control unauthorized
access to the Licensed Content. Furthermore, the Subscribing Institute shall
not be liable for the actions of individual Authorized Users who act without the
knowledge and consent of the Subscribing Institute. The following terms
regarding remote access shall apply:
A. The Subscribing Institute and Authorized Sites are authorized to provide on-
site, walk-in access or remote access via computer to the Licensed Content to
their patrons.
B. Authorized Users who use remote access to access such Licensed Content
may do so from home or another location as long as the proper security
procedures are undertaken by the Subscribing Institute that will prevent
remote access by unauthorized users.
C. Remote access is included for all Licensed Content for the Subscribing
Institute and its Authorized Users licensing product through this Agreement,
except for the AncestryPlus Database. Access must be in library for this
single database.
4.0 Warranties.
4.1 Gale warrants to the Subscribing Institute and its Authorized Users,
that the Licensed Content used in accordance with this Agreement do
not infringe the copyright or any other proprietary or intellectual
property rights of any person.
4.2 Gale shall use commercialiy reasonable efforts to provide continuous
availability of the online Licensed Content, subject to periodic
unavailability due to maintenance of the server(s), the installation or
testing of software, the loading of data and downtime related to
equipment, the failure of communications networks, or services outside
of control of Gale. Gale shall use reasonable efforts to provide an
average of 98% up time per month. Scheduled downtime will be
27500 Drake Road Farmington Hills, MI 48331-3535, 248-699-4253 800-877-GALE www.gale.com
THOMSON
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GALE
performed at a time to minimize inconvenience to customers
worldwide.
4.3 Although Gale believes the Licensed Content to be reliable, Gale does
not guarantee or warrant any information or materials contained in or
produced by the Licensed Content or the accuracy, completeness or
reliability of the Licensed Content Any data or information contained in
or provided in connection with the Licensed Content may be incomplete
or condensed. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN
THIS AGREEMENT, GALE PROVIDES THE LICENSED CONTENT ON AN
"AS IS" BASISWITHOUT WARRANTY OF ANY KIND AND GALE
DISCLAIMS ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY OR FITNESS OR A PARTICULAR PURPOSE. IN NO
EVENT SHALL GALE BE LIABLE FOR: INDIRECT, SPECIAL, PUNITIVE
OR CONSEQUENTIAL DAMAGES INCLUDING FOR LOST PROFITS, LOST
DATA, OR OTHERWISE. IN NO EVENT SHALL GALE'S LIABILITY
HEREUNDER, WHETHER ARISING IN CONTRACT, TORT, STRICT
LIABILITY OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID
HEREUNDER FOR THE LICENSE OF THE LICENSED CONTENT.
4.4 IN NO EVENT SHALL GALE OR ANY THIRD PARTY DATA SUPPLIER BE
LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR
INABILITY TO USE THE LICENSED CONTENT OR FOR THE LOSS OR
DAMAGE OR CORRUPTION OF DATA, LOSS OF PROGRAMS, LOSS OF
BUSINESS OR GOODWILL, OR OTHER DAMAGES OR LOSSES OF ANY
NATURE ARISING OUT OF THE USE, OR INABILITY TO USE THE
Licensed CONTENT, INCLUDING WITHOUT LIMITATION LOSSES
ARISING FROM ANY ERRORS, OMISSIONS OR OTHER INACCURACIES
IN OR CORRUPTION CAUSED WHETHER BY TRANSMISSION
PROCESSING OR OTHERWISE TO THE MATERIAL PUBLISHED IN THE
LICENSED CONTENT OR OTHERWISE MADE ACCESSIBLE THROUGH
THE LICENSED CONTENT. IN NO EVENT SHALL GALE'S OR THIRD
PARTY DATA SUPPLIER'S LIABILITY UNDER THIS AGREEMENT EXCEED
THE ANNUAL SUBSCRIPTION FEE RECEIVED BY GALE FROM
SUBSCRIBING INSTITUTE.
5.0 Termination.
5.1 Gale may at any time (without prejudice to its other rights or
remedies) terminate this Agreement in whole or in part or suspend the
provision of some or all of the Licensed Content: (i) with respect to the
delivery of any part of the Licensed Content from any third party (a
"Source"), upon request of such Source or immediately upon
termination of Gale's agreement with such Source; (ii) upon thirty (30)
days prior written notice to Subscribing Institute in the event of the
breach of this Agreement by Subscribing Institute, uniess Subscribing
Institute cures such breach within such thirty (30) day period. In the
event this Agreement is terminated by Subscribing Institute due to a
breach by Gale prior to the expiration of the annual term of this
27500 Drake Road Farmington Hills. MI 48331 ~3535, 248-699-4253 800-877-GALE www.gale.com
THOMSON
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GALE
Agreement, Gale shall credit to Subscribing Institute all fees appiicable
to the unexpired term of this Agreement on a pro-rata basis.
5.2 Either party may terminate this Agreement by written notice stating
such party's intent to terminate, in the event the other party
materially breaches any provision of this Agreement in the
performance of any of its obligations hereunder, and such default or
breach shall have continued for thirty (30) days after such notice was
given. Either party may have the right to immediate termination in
the event of, but shall not be limited to, the filing by the party
receiving the notice of termination of a voluntary or invoiuntary
petition of bankruptcy, the making of such party of an assignment for
the benefit of creditors, the petitioning for the appointment of a
custodian, receiver or trustee for such party of all or substantially all of
such party's assets, or commencing of a proceeding for dissolution or
liquidation without a successor to such party's business.
5.3 Gale holds the right to terminate this Agreement if the Subscribing
Institute willingly defaults in making payment of the Fee as specified in
Section 6.1 of this Agreement and fails to remedy such default after
receiving thirty (30) days of notification in writing by Gale.
5.4 On termination of this Agreement by the Subscribing Institute for
cause, Gale shall forthwith credit the proportion of the Fee that
represents the paid but unexpired part of the Subscription Period.
6.0 Payment
6.1 As full consideration for Gale's performance of its obligations under
this Agreement, Subscribing Institute shall pay to Gale the
subscription fee specified in the Purchase Order and any applicable
sales, use, excise, or similar taxes. The fee is due within thirty (30)
days after invoice date.
6.2 Gale reserves the right to deny Subscribing Institute further access to
the Licensed Content in the event payment is not received by its due
date. Accounts not paid within thirty (30) days after invoice date shall
be deemed delinquent and are subject to be discontinued.
7.0 General
7.1 Entire Aoreement. This Agreement shall constitute the entire
Agreement between the Parties and supercedes all prior Agreements
and understandings oral or written relating to the subject matter
hereof. Alterations to this Agreement and to the Addendum to this
Agreement are only vaiid if they are recorded in writing and signed by
both parties.
7.2 Assionment. This License may not be assigned by either party to any
other person or organization, nor may either party sub-contract any of
its obligations, without the prior written consent of the other party;
provided however, Gale may assign to an affiliate this Agreement
27500 Drake Road Farmington Hills, MI 48331-3535,248-699-4253 800-877-GALE www.gale.com
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THOMSON
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GALE
without consent of the Subscribing Institute. The rights and
obligations of this Agreement shall bind and benefit any successors or
assigns of the parties. Any attempted assignment in violation of this
section is null and void.
7.3 Force Maieure Neither party's delay or failure to perform any provision
of this Agreement, as result of circumstances beyond its control
(including, without limitation, war, strikes, flood, governmental
restrictions, power, telecommunications or Internet failures, or
damage to or destruction of any network facilities) shall be deemed to
be, or to give rise to, a breach of this Agreement.
7.4 Notice. Any notice or other communication required or permitted in
this Agreement shall be in writing and shall be deemed to have been
duly given on the day of service if served personally or three (3) days
after mailing if mailed by First Class mail, registered or certified,
postage prepaid, or two days after mailing if mailed by commercial
overnight courier to such individual and address as may be specified in
a written notice by either party to the other.
7.5 Severabilitv. If any provision of this Agreement is invalid, illegal, or
unenforceable under any applicable statute or rule of law, the
provision shall be deemed omitted to the extent that it is invalid,
illegal, or unenforceable. In such a case, the remainder of the
Agreement shall be construed in a manner as to give greatest effect to
the original intention of the parties hereto.
7.6 Waiver. The waiver of any right or failure of either party to exercise in
any respect any right provided in this Agreement in any instance shall
not be deemed to be a waiver of such right in the future or a waiver of
any other right under this Agreement.
7.7 Headinos. The headings appearing at the beginning of the several
sections contained in this Agreement have been inserted for
identification and reference purposes only and shall not be used in the
construction and interpretation of this Agreement.
7.8 Relationship of the Parties. The relationship of the parties hereto shall
be that of independent contractors. Nothing herein shall be construed
to create any partnership, joint venture, or similar relationship or to
subject the parties to any implied duties or obligations respecting the
conduct of their affairs, which are not expressly stated herein. Neither
party shall have any right or authority to assume or create any
obligation or responsibility, either express or implied, on behalf of or in
the name of the other party, or to bind the other party in any matter
or thing whatsoever.
7.9 Governino Laws. This Agreement shall be governed by the laws of
State of Michigan without regard to its principles governing conflicts of
law.
27500 Drake Road Farmington Hills, MI48331-3535, 248-699-4253 800-877-GALE www.gale.com
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TH0N1S0N
GAl.-E
This document must be signed and returned to Gale. I understand that by signing
this I am bound by the terms and conditions herein.
ACCEPTED:
SANTA ANA PUBLIC LIBRARY - CA
Acct: 175143
MAIL OR FAX TO:
DAVID N. REAM
Thomson-Gale
Attn: Sales
Authorized
Support
27500 Drake Rd.
Farmington Hills, MI 48331
City Manager
Fax (800) 990-4253
Date
/
ATTEST: _ J ~
( P~~Ct~~E~~~f)
Clerk of the Council
AP~OVED ~~ TO FORM:
~,~~~~
JOSEPH W. FLETCH
City Attorney
27500 Drake Road Farmington Hills, Ml 48331-3535, 248-699-4253 800-877-GALE www.gale.com
> .
THOIVISON
GALE
ADDENDUM A
LICENSED CONTENT, SUBSCRIPTION PERIOD, ACCESS METHOD, FEE SCHEDULE
Annual subscription fee for the Subscribing Institute (as designated in Addendum B) for the following
Licensed Content for the 12-month subscription period of 1211/2006 through 11/30/2007
Product
# of Sites # of Users/Site Extended Price
INFORME
GENERAL REFERENCE CENTER
UNLIMITED
UNLIMITED
$3,433.51
$9,201.95
ADDENDUM B
AUTHORIZED LIST OF PARTICIPATING MEMBER LIBRARIES. WITH STREET ADDRESS
AND IP ADDRESS
Work Order #: I-MPFVV
Bill to Contact: HEATHER FOLMAR
Bill to Address: 26 CIVIC CENTER PLZ
SANTA ANA, CA 927014010
UNITED STATES
27500 Drake Road Farmington Hills, MI 48331-3535, 248-699-4253 800-877-GALE www.gale.com