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HomeMy WebLinkAboutRES 84-033 � - 33 R E S O L U T I O N WHEREAS, bids were received for a computerized legal research system for the Legal Department; and, WHEREAS, Mead Data Central (Lexis) submitted a bid for such a system; and, WHEREAS, the City Council is of the opinion that the bid submitted by Mead Data Central is the lowest and best bid and should be accepted; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the bid of Mead Data Central for a computerized legal research system be accepted by the City of Beaumont, and that the City Manager be, and he is hereby , authorized to enter into a contract with Mead Data Central substantially in the form attached hereto as Exhibit "A" . PASSED BY THE CITY COUNCIL of the City of Beaumont this the day of 19 may# . Mayor - t� AGREEMENT FOR A SUBSCRIPTION TO THE LEXIS� COMPUTER-ASSISTED LEGAL RESEARCH SERVICE Date: , 19 MEAD DATA CENTRAL ("MDC"), a division of the Mead Corporation, with its principal office at 9333 Springboro Pike, Miamisburg, Ohio 45342 (Mailing Address: P.O. Box 933, Dayton, Ohio 45401), and ("Subscriber"), with its principal office at follows: agree as A. MDC will provide the LEXIS computer-assisted legal research service (the "Service") to Subscriber. In addition, as part of the Service, MDC will provide Subscriber with one or more of the libraries elected by Subscriber under Paragraph B (the "Supplementary Libraries") . All access to the Service under this Agreement will be pursuant to the terms and conditions herein. B. Subscriber elects to have access to the following library or libraries: NEXIS,, Auto-Cite® The National Automated Accounting Research System ("NAARS") The Encyclopaedia Britannica library Shepard's® Citations The Matthew Bender library The Associated Press ("AP") Political Service By signing in the spaces provided below, the parties indicate their agreement to the terms and conditions set forth in this Agreement. ATTEST: SUBSCRIBER ATTEST: MEAD DATA CENTRAL 011583LG f TERMS AND CONDITIONS FOR USE OF LEXIS� I . The Service; Charges 1 . 1 MDC will provide the Service, including cases, statutes, regulations, and other legal materials, to Subscriber. 1 .2 (a) MDC will install a research terminal (the "initial terminal") in Subscriber's offices to permit Subscriber to have access to the Service, and, at Subscriber's request, additional research terminals ("additional terminals") . (b) Subscriber will use the initial terminal and any additional terminals solely for performing research with the Service. (c) Subscriber may require MDC to remove any terminal upon three months' written notice to MDC. 1 .3 MDC will make the Service available to Subscriber during the following hours: Monday through Friday: 3:00 a.m. - 2:00 a.m. (Eastern Time) Saturday, Sunday, New Year's Day, and Christmas: 7:30 a.m. - 10:00 p.m. (Eastern Time) To provide necessary maintenance for MDC's computer system, MDC may, however, upon ten days' notice to Subscriber, designate up to two days in each calendar year on which the Service will not be available. 1 .4 (a) Subscriber will pay MDC the charges set forth in Paragraph XII, including the Use Charges set forth in the Schedule of Paragraph XII, for all use of the Service by Subscriber (i.e. , use by the employees of Subscriber in the ordinary course of performing their duties on behalf of Subscriber) . (b) Effective at the beginning of any calendar quarter, Subscriber may pay for Use Charges pursuant to the price schedule in Paragraph XII other than the one under which Subscriber is until then paying for Use Charges; provided, however, that Subscriber provides MDC with written notice of its election of such other price schedule at least 30 days before the beginning of the calendar quarter in which such other price schedule shall apply. 01 1583 LG 2 1 .5 For all use of the Service provided to others by Subscriber, Subscriber will pay MDC the charges and be governed by the terms and conditions set forth in the document Terms and Conditions for Use of the LEXIS Service Provided to Others Subscriber - Government Agencies. MDC will determine whether Subscriber's use of the Service will be governed by subparagraph 1 .4(a) or by this subparagraph 1 .5. 1 .6 Prior to installation of the initial terminal, MDC may require Subscriber to provide MDC with a credit guarantee acceptable to MDC. 1 .7 The charges set forth in this Agreement are exclusive of any state or local sales, use, or ad valorem taxes (including personal property taxes), or taxes of a similar nature. Any such taxes which may be applicable will be paid by Subscriber or by MDC for Subscriber's account. 1 .8 Subscriber will use the Service for research purposes only and will not publish, broadcast, or sell any material retrieved from the libraries of the Service in any manner whatsoever, nor will Subscriber use such materials in any other fashion that may infringe any copyrights or proprietary interests MDC or any third party may have in such materials. MDC does not indemnify Subscriber against any claim for copyright infringement which may result from Subscriber's use of the Service; provided, however, that Subscriber will be entitled to any indemnification extended to MDC's subscribers by any organization providing materials to MDC. 1 .9 MDC is the exclusive proprietor of the libraries of the Service and of all the copyrights and proprietary interests therein, except insofar as any third party (whose materials are made available in the libraries of the Service under license to MDC) possesses a copyright or proprietary interest in such materials. Subscriber will not by virtue of this Agreement acquire any proprietary interests in the libraries of the Service. In addition, except as authorized by MDC, Subscriber will not by any electronic, electrical, magnetic, optical, laser, acoustic, or similar means make or maintain a copy of any portion of the libraries of the Service for any purpose whatsoever. II . Billing and Payment Procedures 2. 1 Subscriber will authorize one or more individuals in its offices to use the Service and MDC will instruct such individuals in the use of the Service in accordance with the provisions of Note 16 of subparagraph 12.2. Upon such an individual's completion of the basic portion of such instruction, MDC will provide that individual with a unique billing number. Each individual authorized by Subscriber to use the Service will communicate his or her billing number to MDC with each use of the Service. Subscriber will pay for all use of the Service ordered through such billing number. 011583LG 10(W � 3 2.2 If Subscriber should at any time learn that the billing number assigned to an individual in its offices pursuant to subparagraph 2. 1 has been revealed to a person not authorized to order the use of the Service for Subscriber or for its account, or if Subscriber suspects for any reason that any unauthorized use is being made of a billing number assigned to an individual in its offices, Subscriber will notify MDC immediately by telephone and confirm such notice in writing. Upon receipt of such oral notice, MDC will immediately cancel such billing number and, upon receipt of such written confirmation, will assign a new billing number to the appropriate individual. If such unauthorized use was not the result, directly or indirectly, of neglect or failure by Subscriber or by any individual in Subscriber's offices authorized to use the Service, Subscriber will not be charged for such use. 2.3 Each month MDC will send to Subscriber an invoice for all charges incurred by Subscriber during the preceding month, subject to adjustments, if any, pursuant to subparagraphs 2.2, 4. 1 , and 4.2. Within ten days of receipt of any invoice, Subscriber will pay to MDC the full amount payable thereunder. If Subscriber does not make timely payment, MDC may terminate this Agreement and may cease to provide the Service to Subscriber until such time as Subscriber pays to MDC the full amount due to MDC, or may exercise any other remedies provided by law; in addition, MDC may, upon reasonable notice to Subscriber, charge Subscriber up to the maximum legal interest on its unpaid balance. III . Equipment Maintenance; Damage or Loss MDC will cause to be performed all services necessary to maintain in working order the initial and any additional terminals and will exercise its best efforts to expedite the performance of maintenance services by the local telephone company on the communications equipment which is associated with such terminals. Subscriber will not permit any of its agents or employees to attempt to repair or tamper with such terminals for any purpose whatsoever. Subscriber will be solely responsible for any damage to, or loss of, such terminals that is caused by the intentional acts or gross negligence of Subscriber, its employees, or agents. Subscriber will pay MDC for service or replacement of terminals necessitated by such damage or loss. Routine maintenance and service not necessitated by such damage or loss will be at no cost to Subscriber. IV. Limitation of Liability; Warranty 4. 1 MDC will make an appropriate adjustment to any amount paid or payable by Subscriber for any use of the Service which results in faulty retrieval, failure of retrieval, or loss of research, except that caused by improper use of the Service by Subscriber; provided, however, that Subscriber reports to MDC such faulty retrieval, failure of retrieval, or loss of research immediately upon discovering it by telephoning MDC's offices in Miami Township, Ohio. Any adjustments for connect-time charges 011583LG � -3-3 4 made under this subparagraph will be computed on the basis of the lowest connect-time charge to Subscriber during the month to which the adjustment is applied. 4.2 If Subscriber elects to pay for all use of the Service by Subscriber in accord with the Packet Schedule, and, if in any given month, the Service is unavailable to Subscriber (through any terminal installed in Subscriber's offices) during the hours of 9:00 A.M. to 6:00 P.M. , Monday through Friday, on scheduled days of operation, for more than "x" hours (where "x" equals six times the number of terminals in Subscriber's offices) , exclusive of acts of God, electrical "blackouts" or "brownouts," telephone communications difficulties outside the control of MDC, and unauthorized or improper operation of the terminal by Subscriber, Subscriber's minimum monthly commitment in Use Charges in such month will be reduced by "y" dollars (where "y" is a fraction whose numerator is the minimum monthly commitment in Use Charges in effect during such month and whose denominator is 200 times the number of terminals installed in Subscriber's offices) times the number of hours in which the Service is unavailable in excess of "x" hours. For purposes of this subparagraph, the hours of Service unavailability shall include (a) all time (during the hours of 9:00 A.M. to 6:00 P.M. , Monday through Friday, on scheduled days of operation) in which the Service is unavailable to Subscriber due to a malfunction at MDC's computer center, times the number of terminals installed in Subscriber's offices, minus "z" (where "z" equals two times the number of terminals installed in Subscriber's offices), and (b) all time in which one or more of Subscriber's terminals are not functioning because of an equipment problem during the hours of 9:00 A.M. to 6:00 P.M. , Monday through Friday, on scheduled days of operation. Such time shall begin from the time Subscriber makes an attempt to notify MDC of a terminal malfunction by telephoning (at MDC's expense) MDC's Customer Service Department in Miami Township, Ohio, until the malfunctioning terminal has been repaired or replaced. 4.3 Subscriber assumes sole responsibility for all use of the Service by Subscriber. 4.4 No MDC employees are authorized to assist Subscriber in framing a search request. If, notwithstanding this, Subscriber requests and receives assistance from MDC employees in framing a search request, such assistance will be at Subscriber's risk and MDC will not have any responsibility or liability arising therefrom. For the purposes of this Agreement, "framing a search request" shall mean the process by which a user identifies the research problem, selects the words, phrases, or numbers to be searched upon, and determines the relationship to each other of such words, phrases, and numbers and the order in which they are to be submitted. 01 1583L '.fie 5 4.5 The obligations set forth in subparagraphs 4. 1 and 4.2 are the full extent of MDC's responsibility to Subscriber for faulty retrieval, failure of retrieval, or loss of research, and in no event will MDC be liable to Subscriber for consequential, exemplary, or special damages resulting, in whole or in part, from Subscriber's use of the Service. 4.6 MDC warrants that, without the express consent of Subscriber, no MDC employee or agent will disclose to any third party any information regarding research performed through the use of the Service by any of Subscriber's authorized users. V. Term; Modification of Agreement 5. 1 This Agreement will become effective on the date the initial terminal is installed in Subscriber's offices and will continue in force until terminated by either party upon three months' written notice to the other party; provided, however, that it may not be terminated by MDC prior to one year after the date on which this Agreement first becomes effective. 5.2 MDC may, upon three months' written notice to Subscriber, modify any of the terms and conditions of this Agreement; provided, however, that MDC may not so modify this Agreement prior to one year after the date on which this Agreement first becomes effective. VI . Assignability This Agreement may not be assigned, in whole or in part, by Subscriber without the prior written approval of MDC, except that it may be assigned without such approval to any successor in interest to Subscriber. VII . Sole Agreement This Agreement contains the entire agreement of the parties and cannot be changed or modified orally or by any standard forms issued by Subscriber (e.g. , purchase orders or change orders) , notwithstanding MDC's acceptance, acknowledgment, or execution thereof, unless specifically negotiated and agreed upon by the parties. Vlll . Enforceability If any part of this Agreement shall be held unenforceable, the rest of this Agreement will nevertheless remain in full force and effect. 01 1583L 6 IX. Representation Subscriber represents that all its use of the Service will be use by its employees in the ordinary course of performing their duties on behalf of Subscriber (in accordance with subparagraph 1 .4) . Subscriber may, upon written notice to MDC, permit use of the Service by or for individuals or organizations other than Subscriber (in accordance with subparagraph 1 .5) . X. Sharing Subscribers Subscriber may share a subscription to the Service with other government agencies pursuant to the terms and conditions set forth in the document Addendum for Sha� a Subscription to LEXIS. XI . Supplementary Libraries 11 . 1 The Supplementary Libraries contain the following libraries: (a) The NEXIS computer-assisted information-retrieval service permits subscribers to perform research in leading newspapers, newsletters, magazines, and wire services. Various publishers and wire services have entered into agreements with MDC pursuant to which MDC now makes available in NEXIS materials published by these organizations. (b) Auto-Cite, made available in the Service by agreement with Lawyers Co-operative Publishing Company and its affiliate, Bancroft-Whitney, contains millions of federal and state case law citations, and offers an almost instantaneous check of the accuracy of citations and the validity of cited cases as precedent. Auto-Cite is available via a special Auto-Cite key on the LEXIS terminal. (c) NAARS, made available in the Service by agreement with the American Institute of Certified Public Accountants ("AICPA"), comprises accounting materials containing, inter alia, the annual reports of certain public corporations and selected accounting literature. (d) The Encyclopaedia Britannica library, made available in the Service by agreement with Encyclopaedia Britannica, Inc. , includes the Britannica 3, comprising the ten-volume Micropaedia and the 19-volume Macropaedia. (e) Shepard's Citations, made available in the Service by agreement with McGraw-Hill, Inc. , comprises case law citations from Shepard's federal, state, and National Reporter system citators. 01 1583 LG (f) The Matthew Bender library, made available in the Service by agreement with Matthew Bender & Company, Incorporated, includes various treatises, forms, and other legal publications. (g) The AP Political Service, made available in the Service by agreement with Press Association, Inc. ("PA"), contains information on election campaigns, political issues, and events relating to past, present, and future elections, including information on statewide referenda and propositions, candidates' positions, national polls, congressional ratings, historical data, and an election calendar. 11 .2 MDC may stop providing any of the materials in the Supplementary Libraries at any time upon 30 days' written notice to Subscriber. 11 .3 Except for Auto-Cite, the Supplementary Libraries are available during the same hours as the Service. Auto-Cite is not available on Sundays, New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas, and from midnight to 8:00 a.m. (Eastern Time) on weekdays, but is otherwise available during the same hours as the Service. 11 .4 Except for the Encyclopaedia Britannica library, Auto-Cite, and Shepard's Citations, the Supplementary Libraries will be available for post-instruction free use. 11 .5 Subscriber will use Shepard's Citations for research purposes only and will not publish, broadcast, or sell any materials in Shepard's Citations in any manner whatsoever. In addition, Subscriber will not reproduce any printed copy containing any such materials, except for Subscriber's personal or internal use, nor will Subscriber use such materials in any other fashion that may infringe McGraw-Hill, Inc. 's copyrights or proprietary interests in such materials. 11 .6 The organizations that compile and publish the materials included in the Supplementary Libraries are solely responsible for the contents of their libraries. These organizations employ the highest standards in maintaining their libraries. But since these organizations make no warranty as to the comprehensiveness, accuracy, or adequacy of their libraries for any particular use or purpose, MDC cannot make any such warranty. 11 .7 The materials in the Matthew Bender library are made available to assist members of the bar but not to provide legal advice to any person. Although Matthew Bender & Company, Incorporated believes that they are accurate, necessarily each user must exercise professional judgment when using them and take responsibility for their use, and MATTHEW BENDER DOES NOT MAKE, AND NO USER RECEIVES, ANY WARRANTY WHATSOEVER ' 01 1583L 8 WITH RESPECT TO THEM, PARTICULARLY NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. If copying or displaying these materials is claimed to infringe the copyright of any other person, Matthew Bender will defend against that claim in accordance with the provisions of an agreement with MDC. 11 .8 Hard-copy prints of materials in the Encyclopaedia Britannica library will be available only in the CITE and KWIC formats. 11 .9 Under MDC's agreement with Encyclopaedia Britannica, Inc. , if, at Subscriber's request, MDC should, at any time, install a terminal in a residential location or in certain types of libraries, the Encyclopaedia Britannica library will not be avail- able through that terminal. 11 . 10 Only subscribers in the United States and the United Kingdom may have access to the Encyclopaedia Britannica library. 11 . 11 Although PA uses its best efforts to insure accuracy of the materials included in the AP Political Service, PA does not guarantee the sequence, accuracy, or completeness of such materials. In addition, PA shall not be responsible for any liability or claim of any person that arises out of delays, inaccuracies, errors, or omissions in such materials or in the transmission or delivery of all or any part of such materials. 01 1583 LG ev 3 9