California enki eBook Network Partnership Agreement

 

  1. INTRODUCTION

This Agreement is entered into by and between the Califa Group, a not for profit membership cooperative serving libraries and information organizations in California, located at 2471 Flores St. San Mateo CA 94401 (referred to as “Califa”) and the subscribing library, referred to collectively as the “parties.”

  1. DEFINITIONS

Authorized or Authenticated Users: Persons affiliated with Partner. This includes persons with valid library cards and walk-ins. Walk-ins are patrons not affiliated with Partner who are physically present at Partner’s site. Full and part time students and employees (including faculty, staff, affiliated researchers and independent contractors) of Licensee and the institution of which it is a part, regardless of the physical location of such persons. Authorized Users shall be identified and authenticated by the use of Internet Protocol (“IP”) addresses provided by Partner to Califa. The use of proxy servers is permitted as long as any proxy server IP addresses provided limit remote access to Authorized Users.

Purchased Content files: The content provided under this agreement has been purchased, not licensed. A content file is analogous to an authorized copy of a hardback book.  Partners and users may use the content files pursuant to U.S. Copyright law.

            Shared Purchased Content:  Content purchased with grant funds or pooled use of partner funds. Content is available to partner users on a first-come first-serve basis.

            Partner Purchased Content: Content purchased or otherwise obtained by Partner. ENKI hosts this content. 

Licensed Content: Licensed content will be subject to the specific terms in the vendor contract.  Generally, licensed content is shared, is available on a first-come first-serve basis, and is not available to a partner that has terminated this agreement.

Partner:  Califa member that has signed this agreement to participate in the ENKI Librar

 

 

2.         GOVERNANCE

The ENKI Library is guided by:

  • An advisory board that advises on ongoing development of vision and goals. It also advises on Collection Development policies
    • Collection Development committee. Composed of partner representatives. All Califa Director of Development and Innovation appoints committee members.
  • Califa Executive Director is responsible for ongoing development of the eBook Network vision and goals, policy approval and oversight, approval of new Partners
  • Califa Director of Development and Innovation is responsible for day-to-day management

 

  1. PLATFORM, CONTENT AND SERVICES

The ENKI Library has a collection of eBooks shared by all participating Partners.  Its primary focus is on meeting the needs of public library patrons.

It aims to make files available to all devices. Future platform development plans include:

  • Partners will be able to add content for shared or exclusive use.  Partners may add any content that does not violate any law, including copyright, trademark, and libel laws.
  • An Acquisitions Catalog of publishers’ titles available for Partners’ to purchase directly.
  • eAudio capabilities
  • Support for Partner self-publishing.
  1. CONTENT ACCESS AND DELIVERY

Califa will provide Content in the following ways:

Network Access. Shared Content will be stored on an Adobe Content Server at one or more Califa locations in digital form accessible by telecommunications links between such locations and authorized networks of Partner.   Files owned by individual partners may also be stored on a Califa server, at the request of Partner, in order to be accessible through the eBook Network.

Physical Media. Copies of the purchased content files owned by Partner and public domain files will be provided to Partner on request on physical media for use on Partner’s network and workstations. Nominal fees will be charged to cover the cost of the physical media and the time to transfer the files.

File Transfer. Copies of the content files owned by Partner and public domain files will be provided to the Licensee through electronic transfer upon request at no charge.

5. PARTNER’S OBLIGATIONS

User Authentication and Security

The ENKI Library will be available to Partner’s authenticated users. Partners are expected to use reasonable efforts to secure their user authentication data.

Authorized Uses, Intellectual Property and Related Legal Issues

Partner and Authorized Users may make all use of the Content Files as consistent with U.S. Copyright Law. Nothing in this Agreement is intended to limit in any way whatsoever Partner’s or any Authorized User's rights under the Fair Use and other provisions of United States Copyright law.

Partners may not download or upload content in a manner that infringes Intellectual Property nor related laws such as defamation. In the event that content files are discovered to be infringing, the content files will be taken down as soon as possible and definitely within ten (10) days of notice of infringement. The takedown will be done by Califa, or by the Party if practicable. In the case that there is a dispute over the Intellectual Property status of any content, the notice and notification and developed under the DMCA Safe Harbor provisions will serve as guidance. See http://www.copyright.gov/onlinesp/

  

  1.  CALIFA’S OBLIGATIONS

Califa will be responsible for the technical development of the platform, coordinating any and all subcontracts for building, maintenance, enhancements etc. of the platform.

Califa will promote the ENKI Library and offer training and promotion materials to Partners.  Califa will include appropriate language and disclosures when IMLS funds are used.

Califa will ensure that Partners have an easy way to communicate problems and suggestions for future development.

Califa agrees to maintain the confidentiality of any data relating to the usage of the Content by Partner and its Authorized Users. Such data may be used solely for purposes directly related to the functioning of the network, and may only be provided to third parties in aggregate form. Raw usage data, including but not limited to information relating to the identity of specific users and/or uses, shall not be provided to any third party, except under process of law.  Califa subscribes to the ICOLC Privacy Guidelines, California library confidentiality law (Calif. Govt Code Sect. 6267) and the Reader Privacy Act (Calif. Civil Code Sect. 1798.90 et seq.).  http://help.enkilibrary.org/a.php?qid=1354901

  1. CALIFA’S OPTION TO MODIFY OR DISCONTINUE SERVICES

Califa has the right, at any time, to make such modifications to the ENKI Library as it sees fit to the operation, performance, or functionality of the Network or as required by Califa’s suppliers. If such a modification materially impairs the value of this Agreement to the Partner, the Partner shall have the option to terminate this Agreement and receive a pro-rata refund of any Fees paid.

  1. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT

Califa represents that its network is in compliance with Americans with Disabilities Act. Its network is compatible with assistive software or devices such as screen reading software, alternate keyboard or pointer interfaces in a manner consistent with the Web Accessibility Initiative Web Content Accessibility Guidelines, which may be found at http://www.w3.org/WAI/GL/#Publications .

  1. WARRANTY

Califa represents and warrants that it has the necessary rights to enter into this Agreement and that it has the necessary ownership and intellectual property rights and license to enable the functioning of the Network and its content.  Califa warrants that the Network will operate as intended if properly used by Partner and Partner’s users. If any errors are discovered, Partner shall promptly notify Califa in writing as to the description of the problem, whereupon Califa shall use reasonable effort to correct such problems within a reasonable time thereafter.

  1. LIMITATION OF LIABILITY

Neither party shall be liable for any indirect, special, incidental, punitive or consequential damages, including but not limited to loss of data, business interruption, or loss of profits, arising out of the use of or the inability to use the Content files.

  1. TERM AND TERMINATION

This Agreement shall take effect on the Effective Date and, unless terminated sooner pursuant to the relevant provisions of this Agreement or any other mutual agreement, shall have an initial term of twelve (12) months. Partner shall have the option to renew for additional terms of twelve (12) months. The Fees for renewal shall be as stated in Schedule A.

In the event of termination by Partner, Shared Content will no longer be accessible to Partner.  Partner Content files will be returned to Partner upon request.

In the event of a filing by or against either party of a petition for relief under the United States Bankruptcy Code or similar petition, where such filing is not dismissed within thirty (30) days after the date of filing, then the other party may immediately terminate this Agreement upon written notice.

In addition to provisions authorizing termination hereunder, either party shall have the right to terminate this Agreement as a result of a material breach by the other party that is not cured within thirty (30) days after written notice of such breach.

 

  1. ADDITIONAL PROVISIONS

14.1 Amendment. No modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Licensor and Licensee.

14.2  Assignment. Neither Califa Group nor Partner may assign or transfer this agreement, any interest therein or claim thereunder without the prior written approval of either party.

14.3 Confidential Information. This is an open source project used primarily by public institutions. Unless a specific transaction is marked CONFIDENTIAL, it is assumed that this contract and related transactions are subject to open records requests.  Personally identifiable information relating to patron transactions is confidential and governed by state laws and library policies.

14.4 Dispute Resolution. In the event any dispute or controversy arising out of or relating to this Agreement, the parties agree to exercise their best efforts to resolve the dispute as soon as possible. The parties shall, without delay, continue to perform their respective obligations under this Agreement, which are not affected by the dispute.

Mediation. In the event that the parties cannot by exercise of their best efforts resolve the dispute, they shall submit the dispute to Mediation.   Parties shall select by mutual agreement an impartial mediator. Parties shall, without delay, continue to perform their respective obligations under this Agreement, which are not affected by the dispute.

14.5 Entire Agreement. This Agreement constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter hereof, whether oral or written.

14.6 Force Majeure. Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected.

14.7 Governing Law and Venue. This Agreement shall be construed under, and the performance governed by, the laws and courts of the State of California without regard to principals governing conflict of laws.

14.8 Severability. In the event that a court of competent jurisdiction determines that any portion of the Agreement is unenforceable, void, invalid or inoperative, the remaining provisions