RES 2011-0193 - Contract with LIbrary Ideas LLC for access to Freegal music database Su1SC/A 221. 11
215 S.15th St. I Omaha,NE 68102 I TEL 402.444.4800 I FAX 402.444.4504 I omahalibrary.org
' 1I "o Omaha •
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Public RECEDED
11. Library,�'�� Open Your World 1 1 FEB 16 PM 2. 15
Gary Wasdin
CITY CLERK Executive Director
O PI A H A,, N E B R A S K A Maggie Tarelli-Falcon
Assistant Director
•
Honorable President
and Members of the City Council,
The purpose of the attached Resolution is to approve a one year agreement between the Omaha
Public Library and Library Ideas, LLC for the provision of "Freegal", a downloadable music
database for the use of Library patrons. Library Ideas, LLC is a sole source vendor, and the cost
of such service is $37,650 which will be paid from the Library's General Fund 11111,
Organization 117016, Object Code 43416.
Your favorable consideration is requested.
Respectfully submitted, Referred to City Council of City of Omaha:
Gary din j 11.Date or's Office Date
Library Director
Pam Spaccarotella Date
Finance Director vT
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iele Geotech, Inc. up to
$250,000.00 from the City Street Maintenance Fund 12129, Residential Street Rehab
Organization 116161, year 2011 expenditure.
1125htp APPROVED AS TO FORM:
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By }_
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nit weight test $52.00 ea.
Exhibit E-5
uminous Surface Treatments (ASTM D1369)
3.1.1 Calculating mix proportions shall include aggregate unit weight
determination and bulk specific gravity,preparation of written
report,recommending type and grade of asphalt,job-mix formula,
and application rates of asphalt and aggregate $ 105.00 ea.
Exhibit E-3
ade Determination(AASHTO
R29, Section 6) $1320.00 ea.
Exhibit E-1
alifications of each person.
TABLE I
MINIMUM LEVELS OF CAPABILITY FOR PROJECT FUNCTIONS
LEVEL
Project Function L-I L-II L-III
Approve inspection and test procedures
(Project Manager) X
Implement inspection and test procedures
(Assistant Inspector) X
Evaluate and report inspection and test results
(Chief Inspector) X
Exhibit D-4
tion and measuring equipment calibration and control
Exhibit D-3
these activities shall be tested to demonstrate his
Exhibit D-2
have for other defaults under the Contract,under City of Omaha's
Contract Compliance Ordin ce otherwise. Additionally,the undersigned/contractor will be subject to the terms of any future
contract awards. •
Signature
Title Senior Vice President Date of Signing 1/27/11
Firm or Corporate Name Thiele Geotech, Inc.
Address 13478 Chandler Road, Omaha Telephone Number 4 0 2-5 5 6-2171
NE 68138 •
send to each labor union or representative of workers with which he
has a collective bargaining agreement or other contract or understanding a notice
advising the labor union or worker's representative of the contractor's commitments
under the equal employment opportunity clause of the city and shall post copies of the
notice in conspicuous places available to employees and applicants for employment.
USA FREEGAL MUSIC SUBSCRIPTION AGREEMENT
THIS DOWNLOAD SUBSCRIPTION AGREEMENT(this"Agreement")is made by and between
Omaha Public Library ,a public Library maintaining a physical address at
215 S. 15th Street, Omaha , NE ,hereafter referred to as(the"Library")and Library Ideas,
LLC, a Delaware media company located at 333 Maple Avenue East, Suite 105,Vienna,Virginia 22180,
hereafter referred to as(the"Company"). All parties to this Agreement may, from time to time, be referred
to as(the"Parties").
RECITALS
WHEREAS Company has licenses for a media service specifically targeted to public libraries
which provides the Patrons of these institutions access to a site to download music legally via Company's
FreegalTM music(the"Service").
WHEREAS Company wishes to sell a subscription and include the right to use the Service to the
Library subject to the terms and conditions described in this Agreement.
WHEREAS Library desires to purchase a subscription and use the Service from Company subject
to the terms and conditions described in this Agreement.
NOW THEREFORE in consideration of the provisions contained in this Agreement and for other
good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged,the Parties
agree as follows:
ARTICLE I.
Definitions
Section 1.01 Definitions. The terms defined within this Agreement have the respective meanings attributed
to them throughout this Agreement or in this Article I. Any defined term may be used in the singular and in
the plural forms,as appropriate in the context.
Section 1.02. "Service(s)"refers to the Company's downloadable music services known as FreegalTM
Music and is related to Library's ongoing access to and use of such service via the Internet.
Section 1.03. "Effective Date"Unless otherwise agreed to in writing by the Parties,the"Effective Date"of
this Agreement means the date the service is available for use by Library Patrons.
Section 1.04. "Subscription Agreement"means the right to access Company's downloadable Music Service
("Subscription Agreement Price")expiring after a specified length of time("Subscription Agreement
Term").
Section 1.05. "Subscription Agreement Price"means the price established for the Subscription Agreement
Term.
Section 1.06. "Subscription Agreement Term"refers to the right to access Company's downloadable Music
Collection for a limited period of time. Except as otherwise specifically agreed to in writing by the Parties,
the"Subscription Agreement Term"of this Agreement commences on the Effective Date and continues in
effect for one year.
Library Agreement 2/12/2010 v Final 1 of 6
X
Exhibit D-4
tion and measuring equipment calibration and control
Exhibit D-3
these activities shall be tested to demonstrate his
Exhibit D-2
have for other defaults under the Contract,under City of Omaha's
Contract Compliance Ordin ce otherwise. Additionally,the undersigned/contractor will be subject to the terms of any future
contract awards. •
Signature
Title Senior Vice President Date of Signing 1/27/11
Firm or Corporate Name Thiele Geotech, Inc.
Address 13478 Chandler Road, Omaha Telephone Number 4 0 2-5 5 6-2171
NE 68138 •
send to each labor union or representative of workers with which he
has a collective bargaining agreement or other contract or understanding a notice
advising the labor union or worker's representative of the contractor's commitments
under the equal employment opportunity clause of the city and shall post copies of the
notice in conspicuous places available to employees and applicants for employment.
Section 1.07. "Library's Website Portal"means the Website operated by the Library and open to its
Patrons in order to access and use all materials of the Library.
Section 1.08. "Company Website"means the Website operated by Company and open to the Library and
its Patrons via the Library's own website portal.
Section 1.09. "Patrons"mean Library's registered,authenticated cardholders, and all members of the
public who have been issued a library card, including onsite and offsite users.
Section 1.10. "License"means a revocable permission to commit some act that would otherwise be
unlawful such as downloading the copyrighted works of the rightful owner.
Section 1.11. "Personal Use"is defined, for purposes of this Agreement,as the use which is of a personal
nature and used only by the person who is authorized to use such media, i.e. a downloaded song, and
prohibits the sharing of said media with the public or placing such media in the public domain, i.e sharing
songs on the interne. This Agreement adopts the definitions of"personal use"as established by the Courts
and U.S. Copyright laws.
ARTICLE II.
FreegalTM Music Services Terms and Conditions
Section 2.01. Subscription Agreement Price. Company will charge Library a yearly Subscription
Agreement Price for the right to access the Company's Service. The price per download is described
herein in Schedule A.
Section 2.02. All Purchases are Final. All purchases of subscriptions are final. No refunds are allowed
unless the product is not delivered.
Section 2.03. Payment Due Date. All fees and charges are due and payable 30 days from the date of the
related invoice.The Company may deny Library and its Patrons access to Library's Company Website
until the unpaid invoice is paid in full.
Section 2.04. Limits on Music Downloads.Registered Patrons of Library may each download up to three
(3)downloads per week.
Section 2.05. Termination.
Subsection 2.05.A. Termination by Expiration of Term. This Agreement will terminate automatically at the
end of a one-year Subscription Agreement Term unless otherwise mentioned on Schedule A. If Library
wishes to renew for an additional year,Library may contact Company at any time during or after the end of
the current Subscription Agreement Term and renegotiate a new Subscription Agreement Term.
Subsection 2.05.B. Termination for Breach of this Agreement. Either party may terminate this agreement
for cause at any time by providing the other party with prior written notice of the occurrence of any of the
following events: (1)a party fails to timely pay any amounts due and payable,provided that the
nonpayment is not cured within 10 days of the notice; or(2) a party breaches any Material provision of this
Agreement provided that the breach cannot be,or is not, cured within 30 days of the notice. Material
terms of this Agreement are Sections 2.03, 2.05,2.06,2.07,2.08,2.09,2.12, 3.01,and 3.02.
Library Agreement 2/12/2010 v Final 2 of 6
Contract Compliance Ordin ce otherwise. Additionally,the undersigned/contractor will be subject to the terms of any future
contract awards. •
Signature
Title Senior Vice President Date of Signing 1/27/11
Firm or Corporate Name Thiele Geotech, Inc.
Address 13478 Chandler Road, Omaha Telephone Number 4 0 2-5 5 6-2171
NE 68138 •
send to each labor union or representative of workers with which he
has a collective bargaining agreement or other contract or understanding a notice
advising the labor union or worker's representative of the contractor's commitments
under the equal employment opportunity clause of the city and shall post copies of the
notice in conspicuous places available to employees and applicants for employment.
Section 2.06. Provision of Audio Services. During the Subscription Agreement Term,the Company will
• establish,host,and administer Company's Website. Library and Patrons will access Company's music
collection through Library's Website Portal. The Library and its Patrons will access the Library's audio
music collection either inside the library(if allowed and enabled)using the Library's own Internet
connection or remotely from within the United States. Company will deny access to anyone attempting to
access Service from outside the United States. Service will have reasonable periods of scheduled
maintenance in which the Service is not available. Otherwise Service will be available at commercially
accepted standards of operation.
Section 2.07. Library and Member Usage-Limiting Access Measures. The Library will be solely
responsible for authenticating which Patrons will have access to the Library's Website under this
Agreement. However, Library Ideas will facilitate this process. Except for standard fees charged by
Library to its Patrons,the Library will not charge any Patron for the use of the Company's Website.
Section 2.08. Library's Company Website. The use of the Company's Website by the Library and its
Patrons will be governed by the End User Agreement. If Patrons violate tiie End User Agreement,
Company reserves the right, in its sole discretion,to suspend the Library's or the Patrons's access to and
use of the Company's Website. The Library acknowledges and agrees that, in the case of repeated or
persistent violations,the Company may terminate this Agreement.
Section 2.09. Copyrighted Works. Library acknowledges and agrees that the copyright to each song is
owned by the respective publisher thereof.All Rights Reserved.
Section 2.10. No Copyright Conveyed. Upon signing this Agreement,Library will receive an annual
license to access the Company's Music Collection via the Library's Website Portal and download the music
the Library has purchased access to.Library will not acquire any other rights in the Company or the
Company's Music Collection and/or its Service.
Section 2.11. Offensive Content. Company makes no warranty and no representations against claims of
offensive content by Library Patrons and does not have the ability to remove a song for just one library and
not all the libraries participating in the Service.
Section 2.12. Publicity and Marketing. Library agrees to use only the rublicity and Marketing Material
given to it by the Company unless otherwise approved in writing by the Company. The Company will send
Library a template press release and marketing kit within 1.0 days of signing this Agreement. Library will
make no public statements on or off the record regarding the financial terms of this service. The terms of
this Agreement are Confidential,except where disclosure is required by law. Library will make Company
aware of such situations. (initial here acknowledging this paragraph)
ARTICLE III
Music Subscription Agreement Services
Section 3.01. Member Access&Clean Sweep Protocols. For all Library computers capable of accessing
the Company's Website,Library will implement a Clean Sweep or similar type program which functions to
log-out or wipe clean the information existing on the computer screen of the previous user.
Section 3.02. Reports. Payment of the Subscription Agreement Fee entitles Library to the standard reports
offered by Company which gauges the use of Company's Music Collection.
ARTICLE IV
General Provisions
Library Agreement 2/12/2010 v Final 3 of 6
on or worker's representative of the contractor's commitments
under the equal employment opportunity clause of the city and shall post copies of the
notice in conspicuous places available to employees and applicants for employment.
Section 4.01. Governing Law. This Agreement(and any dispute, controversy,proceedings or claim of
• whatever nature arising out of this Agreement or its formation) shall be governed by and construed in
accordance with the laws of the State of Delaware. The parties irrevocably submit to the exclusive
jurisdiction of the Courts of the State of Delaware.
Section 4.02. Notice to Parties. All notices from either party to the other under this Agreement shall be
sent by telegram, overnight courier service, or by registered or certified mail,return receipt requested, or
hand-delivered with signed receipt. Whenever in this Agreement reference is made to a Notice to be given,
such Notice shall be deemed to have been given when mailed,wired,or hand-delivered to the proper notice
address of the party to be notified. Notices shall be addressed in care of the individual representatives
identified herein and mailed to the address designated for each Party and listed in the Signature Page of this
Agreement. Either party may, from time to time, designate a different address for receiving Notices by
giving the other party notice of the change of address in the manner above specified.
Section 4.03. Assignment. Library may not sell,assign,transfer or convey this Agreement or any rights
and obligations thereto. However, Company may assign or transfer this Agreement to an affiliated
company or to a third party that acquires substantially all of its assets upon written notice to the Library.
Section 4.04. Successors&Assigns. This Agreement shall be binding on and inure to the benefit of and be
binding upon the respective heirs, executors, administrators, successors and assigns.
Section 4.05.Section Partial Invalidity. If any term, covenant, or condition of this Agreement or the
application thereof to any person or circumstance shall,to any extent,be invalid or unenforceable,the
remainder of this Agreement, or the application of such term,covenant, or condition to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby
and every other term, covenant, or condition of this Agreement shall be valid and be enforced to the fullest
extent permitted by law.
Section 4.06. Separability. Each and every covenant or understanding contained in this Agreement shall,
for all intensive purposes, be construed as a separate and independent covenant and agreement. If any term
or provision of this Agreement or the application thereof to any person or circumstance shall to any extent
be found invalid and unenforceable by a court of competent jurisdiction,the remainder of this Agreement,
or the application of such term or provision to persons or circumstances other than those to which it is valid
or unenforceable, shall not be affected thereby and each term and provision of this Agreement shall be
valid and shall be enforced to the extent permitted by law. It is the intention of the parties hereto that if any
provision of this Agreement is capable of two constructions,one of which would render the provision void
and the other of which would render the provision valid,then the provision shall have the meaning which
renders it valid.
Section 4.07. Headings. The headings to the various paragraphs and/or Sections of this Agreement have
been inserted for reference only and shall not to any extent have the effect of modifying, amending or
changing the expressed terms and provisions of this Agreement.
Section 4.08. Limited Warranty. Company warrants that Company has the necessary authority to license
the Music Collection to Library and,if applicable,to provide Services to Library. Company warrants that it
will use its commercially reasonable efforts to provide such Services as described in this Agreement.
Section 4.09. Limitation on Liability.Neither party will claim special, incidental, indirect,or consequential
damages; including lost profits for breach of this Agreement. This limitation will also apply to any claims
brought against Company's content providers. Remedies are limited to claims for amounts due, for
injunctive relief only as provided, or for direct damages.A parry's aggregate liability for any and all
claims, losses, liabilities,and demands arising,whether for breach of contract,in tort or otherwise, are
Library Agreement 2/12/2010 v Final 4 of 6
limited to the total amount of Subscription Agreement Fees paid by Library to the Company during the 12
• month period immediately preceding the date on which the claim first arose.
Section 4.10. Force Majeure. Neither party will be liable for,or have the right to terminate this Agreement
as a result of, any delays or failures to perform any of its obligations under the Agreement to the extent that
the delays or failures are due to circumstances beyond its reasonable control, including without limit acts of
God; strikes;riots; acts of war; power failures; and functions or malfunctions of the Internet,
telecommunications services, firewalls, encryption systems, and security devices;or governmental
regulations imposed after the Effective Date.
IN WITNESS WHEREOF the parties hereto by and through their authorized agents,have duly
affixed their signatures under seal as of the date shown herein.
[SIGNATURES TO FOLLOW]
�R•
ATTEST CITY OF OMAHA, a Municipal Corporation,
37„j By -.40C• 14(t —T"
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C Y CLE - MAY F THE CITY OF OMAHA
Company: Library:
LIBRARY IDEAS,LLC OMAN cal it L)\lr
Name of Library
By: By: el A
Autho ed •gen -. esentative
Date: a 7 7/ 6tq,jPrint Na
Address: Date: 2'12 l)
333 Maple Avenue East
Suite 105 Address:
Vienna,Virginia 22180 215 3. -j�" S'
•1,4 N'E t,tl.114
APPROVE TO F R
/, (j'y/i/Lfi g--/V/f
DEPUTY CITY ATTORNEY
Library Agreement 2/12/2010 v Final 5 of 6
on Partial Invalidity. If any term, covenant, or condition of this Agreement or the
application thereof to any person or circumstance shall,to any extent,be invalid or unenforceable,the
remainder of this Agreement, or the application of such term,covenant, or condition to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby
and every other term, covenant, or condition of this Agreement shall be valid and be enforced to the fullest
extent permitted by law.
Section 4.06. Separability. Each and every covenant or understanding contained in this Agreement shall,
for all intensive purposes, be construed as a separate and independent covenant and agreement. If any term
or provision of this Agreement or the application thereof to any person or circumstance shall to any extent
be found invalid and unenforceable by a court of competent jurisdiction,the remainder of this Agreement,
or the application of such term or provision to persons or circumstances other than those to which it is valid
or unenforceable, shall not be affected thereby and each term and provision of this Agreement shall be
valid and shall be enforced to the extent permitted by law. It is the intention of the parties hereto that if any
provision of this Agreement is capable of two constructions,one of which would render the provision void
and the other of which would render the provision valid,then the provision shall have the meaning which
renders it valid.
Section 4.07. Headings. The headings to the various paragraphs and/or Sections of this Agreement have
been inserted for reference only and shall not to any extent have the effect of modifying, amending or
changing the expressed terms and provisions of this Agreement.
Section 4.08. Limited Warranty. Company warrants that Company has the necessary authority to license
the Music Collection to Library and,if applicable,to provide Services to Library. Company warrants that it
will use its commercially reasonable efforts to provide such Services as described in this Agreement.
Section 4.09. Limitation on Liability.Neither party will claim special, incidental, indirect,or consequential
damages; including lost profits for breach of this Agreement. This limitation will also apply to any claims
brought against Company's content providers. Remedies are limited to claims for amounts due, for
injunctive relief only as provided, or for direct damages.A parry's aggregate liability for any and all
claims, losses, liabilities,and demands arising,whether for breach of contract,in tort or otherwise, are
Library Agreement 2/12/2010 v Final 4 of 6
SCHEDULE A
Subscription Agreement Price
(attach order form)
Library Agreement 2/12/2010 v Final 6 of 6
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f'regáiSUBSCRIPTION
music
Complete the order form below and fax or email to orders@libraryideas.com.
333 Maple Avenue East#105 Office Use Only
Vienna, VA 22180 Account#: Received Date:
Phone:571.730.4300
_ Fax: 571.730.4305
Email: orders@libraryideas.com
Library Contact Information:
Date: January 18, 2011 Sales Rep: Petersen
Library: Omaha Public Library •
Street Address: 215 S. 15th St. •
City, State, Zip Code: Omaha, NE 68102
Business Contact: Maggie Tarelli-Falcon
Email Address: mtarelli-falcon@omahalibrary.org
Phone: 402-444-4854
IT Contact:
Email Address:
Phone:
Bill To:
Address (if different):
City, State, Zip Code (if different):
Purchase Order Number:
APPROVED AS TO FORM:
f'reegJ Term/Length Price
�� r Subscription to1 year $37,500.
c
DEPUTY CITY ATTORNEY
Does the library allow non-resendents to obtain library card/access:
TaESTs, I; If Yes, describe under what conditions:
AInitial setup fee (one time): $150.00
sa47 .- 3/.0
Grand Tot $37,650.00
Bus ex Srowm, City Clerk `
Authorized Signature:
Libre Printed Name: Su..i"Ie
Illideas Title: /n /'}if D�e
Library Ideas,LLC Date: /?2QrCZ oi, Ad ll
•
DEPUTY CITY ATTORNEY
Library Agreement 2/12/2010 v Final 5 of 6
on Partial Invalidity. If any term, covenant, or condition of this Agreement or the
application thereof to any person or circumstance shall,to any extent,be invalid or unenforceable,the
remainder of this Agreement, or the application of such term,covenant, or condition to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby
and every other term, covenant, or condition of this Agreement shall be valid and be enforced to the fullest
extent permitted by law.
Section 4.06. Separability. Each and every covenant or understanding contained in this Agreement shall,
for all intensive purposes, be construed as a separate and independent covenant and agreement. If any term
or provision of this Agreement or the application thereof to any person or circumstance shall to any extent
be found invalid and unenforceable by a court of competent jurisdiction,the remainder of this Agreement,
or the application of such term or provision to persons or circumstances other than those to which it is valid
or unenforceable, shall not be affected thereby and each term and provision of this Agreement shall be
valid and shall be enforced to the extent permitted by law. It is the intention of the parties hereto that if any
provision of this Agreement is capable of two constructions,one of which would render the provision void
and the other of which would render the provision valid,then the provision shall have the meaning which
renders it valid.
Section 4.07. Headings. The headings to the various paragraphs and/or Sections of this Agreement have
been inserted for reference only and shall not to any extent have the effect of modifying, amending or
changing the expressed terms and provisions of this Agreement.
Section 4.08. Limited Warranty. Company warrants that Company has the necessary authority to license
the Music Collection to Library and,if applicable,to provide Services to Library. Company warrants that it
will use its commercially reasonable efforts to provide such Services as described in this Agreement.
Section 4.09. Limitation on Liability.Neither party will claim special, incidental, indirect,or consequential
damages; including lost profits for breach of this Agreement. This limitation will also apply to any claims
brought against Company's content providers. Remedies are limited to claims for amounts due, for
injunctive relief only as provided, or for direct damages.A parry's aggregate liability for any and all
claims, losses, liabilities,and demands arising,whether for breach of contract,in tort or otherwise, are
Library Agreement 2/12/2010 v Final 4 of 6
C-25A CITY OF OMAHA
LEGISLATIVE CHAMBER
Omaha,Nebraska
RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
WHEREAS, the Omaha Public Library desires to enter into an one.. year
agreement with Library Ideas, LLC for a downloadable music database named ':Freegal" to
provide Library patrons with access to a website to download music legally; and,
WHEREAS, attached hereto is a proposed agreement between Library Ideas,
LLC, the sole source vendor for such "Freegal" music database, and the Omaha Public Library
for the proposed services; and,
WHEREAS, as specified in the proposed agreement, the cost for such music
database service for one year is $37,650; and,
WHEREAS, it is in the best interests of the citizens of the City of Omaha to
approve this agreement and provide"Freegal" service to Library Patrons.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF OMAHA:
THAT, as recommended by the Mayor, the attached one year contract with
Library Ideas, LLC providing access to the "Freegal" music database in the amount of$37,650 is
hereby approved.
FURTHER THAT, the Finance Department is authorized to pay the $37,650 cost
thereof from the Library's General Fund 11111, Organization 117016, Object Code 43416, year
2011 expenditures.
APPROVED AS TO FORM:
C, 6t4A/C--
DEPUTY CITY ATTORNEY DATE
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on Partial Invalidity. If any term, covenant, or condition of this Agreement or the
application thereof to any person or circumstance shall,to any extent,be invalid or unenforceable,the
remainder of this Agreement, or the application of such term,covenant, or condition to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby
and every other term, covenant, or condition of this Agreement shall be valid and be enforced to the fullest
extent permitted by law.
Section 4.06. Separability. Each and every covenant or understanding contained in this Agreement shall,
for all intensive purposes, be construed as a separate and independent covenant and agreement. If any term
or provision of this Agreement or the application thereof to any person or circumstance shall to any extent
be found invalid and unenforceable by a court of competent jurisdiction,the remainder of this Agreement,
or the application of such term or provision to persons or circumstances other than those to which it is valid
or unenforceable, shall not be affected thereby and each term and provision of this Agreement shall be
valid and shall be enforced to the extent permitted by law. It is the intention of the parties hereto that if any
provision of this Agreement is capable of two constructions,one of which would render the provision void
and the other of which would render the provision valid,then the provision shall have the meaning which
renders it valid.
Section 4.07. Headings. The headings to the various paragraphs and/or Sections of this Agreement have
been inserted for reference only and shall not to any extent have the effect of modifying, amending or
changing the expressed terms and provisions of this Agreement.
Section 4.08. Limited Warranty. Company warrants that Company has the necessary authority to license
the Music Collection to Library and,if applicable,to provide Services to Library. Company warrants that it
will use its commercially reasonable efforts to provide such Services as described in this Agreement.
Section 4.09. Limitation on Liability.Neither party will claim special, incidental, indirect,or consequential
damages; including lost profits for breach of this Agreement. This limitation will also apply to any claims
brought against Company's content providers. Remedies are limited to claims for amounts due, for
injunctive relief only as provided, or for direct damages.A parry's aggregate liability for any and all
claims, losses, liabilities,and demands arising,whether for breach of contract,in tort or otherwise, are
Library Agreement 2/12/2010 v Final 4 of 6
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