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HomeMy WebLinkAboutAgenda - 12-20-94 - VIII-C 1 ORANGE COUNTY BOARD OF COMMISSIONERS Action Agenda Item No. VIM--t.„ ACTION AGENDA ITEM ABSTRACT Meeting Date: December 20, 1994 SUBJECT: Renewal of Publication and Distribution Agreement for the Department on Aging's Senior Times DEPARTMENT: Aging PUBLIC HEARING YES: NO: X ATTACHMENT(S) : INFORMATION CONTACT: Agreement Jerry M. Passmore, ext. 2009 TELEPHONE NUMBER- Hillsborough - 732-8181 Chapel Hill - 968-4501 Mebane - 227-2031 Durham - 688-7331 PURPOSE: Request to renew Agreement with the Durham Herald Company to publish and distribute the Department's bi-monthly Senior Times newspaper. In addition to mailing a Senior Times to the 5,000+ households on the Department on Aging's mailing list, the Herald will also insert the Senior Times into a Sunday edition of the Chapel Hill Herald. All costs incurred in the publication and distribution of the Senior Times will be paid by the Durham Herald Company. BACKGROUND: Since 1980 the Department on Aging had been publishing and distributing a newsletter to Orange County seniors who have applied for their Senior Tarheel Discount card and expressed interest in being placed on the mailing list. In 1993 the Department began to sell advertising to offset the increasing costs of this publication. Later that year the Durham Herald Company proposed to publish and mail the Senior Times for the Department in exchange for the exclusive right to sell the advertising. Additionally, the Senior Times would be inserted into a Sunday edition of the Chapel Hill Herald. This arrangement increased circulation while reducing county expense by almost $10,000 and eliminating staff time involved. The renewal Agreement is essentially the same as the previous one with the addition of the passage necessary to secure the trademark and copyright rights. RECOMMENDATION(S) : The Manager recommends approval to renew the Licensing Agreement between the County and the Durham Herald Company for the publishing and distribution of the Department on Aging's bi-monthly Senior Times newspaper. 2 THIS LICENSING AGREEMENT("Agreement")is made this 23rd day of November, 1994,between THE DURHAM HERALD COMPANY d/b/a The Herald-Sun and The Chapel Hill Herald ("the Publisher") and the Orange County Department on Aging ("the Partner") for the publication and distribution of Senior Times ("the Publication"). 1. EXCLUSIVITY- In exchange for the Publisher's distribution of the Publication and for other good and valuable consideration, the Partner grants to the Publisher the exclusive right and privilege, in all media now known and forever developed in the future, of publishing and distributing the Publication on the terms and conditions contained herein. 2. GRANT OF LICENSE- 2.1 As used in this Agreement, the following terms shall have the meanings indicated: (a) "Licensed Materials" means the editorial content provided by the Partner, including all languages, editions, issues, versions and updates published or otherwise made commercially available during the term of this Agreement. (b) "Permitted Uses" means products and services consisting of, or utilizing, electronic access, distribution, reproduction or use of information. Without limiting the generality of the foregoing, "Permitted Uses" includes products and services utilizing the following access, delivery or use technologies: online; local area network; wide area network; distributed media; electronic mail and massaging; facsimile transmission; audiotext; videotext; cable broadcast; satellite broadcast; radio and television broadcast; and information products and services based upon electronic access, distribution, reproduction or use technologies now known or hereafter developed. 2.2 The Partner hereby grants to the Publisher an exclusive license to use and authorize use of the Licensed Materials and any portion thereof in Permitted Uses, including rights to reproduce, display and distribute Licensed Materials in connection with producing, distributing and marketing Permitted Uses and rights to authorize third parties to reproduce, distribute and display Licensed Materials from or through Permitted Uses. 2.3 The rights granted to the Publisher encompass distribution by agents of the Publisher and other distributors. 2.4 The Partner represents and warrants that it is authorized to grant this license to the Publisher and covenants that the Publisher's exercise of this license will infringe no copyright or other right of any person or entity. 3 3. SPECIFICATIONS- In exchange for the right to sell advertising space in the Publication and other good and valuable consideration, the Publisher agrees to print the Publication to the following specifications: 3.1 Publication Dates. The Publication will be published bi-monthly on Sundays. 3.2 Distribution. Distribution of the publication will be as follows: a. Full run of The Chapel Hill Herald b. Approximately 5500 overruns for direct mail c. Approximately 3000 overruns for pick up d. e. 3.3 Format/Paper Stock. The Publication will be printed on a tabloid section of standard newsprint with a four-color cover and color on a space- available basis for editorial use on the inside. The Publisher reserves the right to limit the number of color separations per issue. 3.4 Production. The Publisher will, at its cost, provide turnkey coordination of all copy as provided by the Partner. This coordination will include typesetting, layout, color separations, plates, negatives and newsprint costs as related to the production of the sections. The Publisher will not charge any additional production costs to the Partner without the prior approval of the Partner. 3.5 Photography. A Herald-Sun freelance photographer will be provided to the Partner, subject to availability but at no cost to the Partner, on an as-needed basis for use related to the Publication. All coordination of assignments will be made through a Herald-Sun representative to be designated by the Publisher. The Publisher reserves the right to limit the number of assignments which will be performed by the Publisher. 3.6 Content. The content of the Publication will consist of copy provided by the Partner and any articles or feature stories which have been previously printed in a Durham Herald Company product. There will be no charge to the Partner for republication of Herald-Sun materials. The selection of copy will be at the discretion of the Partner and the editor of the Publication subject to the approval of the Publisher. Such approval shall not be withheld unreasonably. The Partner's failure to object not later than 24 hours prior to publication constitutes approval by the Partner. 3.7 Editorial Responsibility. The Partner reserves the right to approve all copy and design of the Publication prior to an assigned deadline. Inquiries concerning the editorial content of the magazine will be directed to the Partner. 4 Failure to object not later than 24 hours prior to publication constitutes approval by the Partner. 4. ADVERTISING - 4.1 The Publisher will not permit advertisements of the following products or services in the Publication: alcoholic beverages, including wine and beer; political, religious or sexually explicit materials; tobacco;gambling; or personal messages (including, but not limited to, individual birthdays, anniversaries, etc.). 4.2 The Publisher shall warrant that any content provided by the Publisher, including advertising, will not contain any libelous, obscene or otherwise unlawful matter, and that such content does not infringe upon the statutory or common law copyright or any other right of any person or property anywhere in the world. The Publisher will have the right to edit all contents of the publication, subject to the approval by the Partner. Such approval shall not be withheld unreasonably. The Partner's failure to object to advertising copy not later than 24 hours prior to publication constitutes approval by the Partner. The warranties and agreements given by the publisher shall survive the termination for any reason of this agreement. 4.3 The Publisher will respond to any and all complaints or negative feedback regarding the advertisements in the Publication and will relay to the Partner the circumstances of and response to any such complaint. 4.4 The Publisher will assume responsibility for sale to and service of all the Publication advertisers and shall have the right to accept or refuse advertising copy,based on the advertising guidelines specified in paragraph 4.1. The Publisher will retain all advertising revenue. The Partner will not be responsible for any financial loss incurred by the Publisher related to the production and distribution of the Publication. 5. INDEMNIFICATION- 5.1 It is the sole responsibility of the Partner to obtain the copyright and trademark licenses necessary for publication of all editorial content of the Publication. The Partner shall be responsible for the defense of any copyright or trademark infringement claim or suit, including the payment of all legal defense costs through one or more levels of appeal, arising out of the editorial content of the Publication and shall be liable for the satisfaction of any judgment entered for a copyright or trademark violation. 5.2 The Publisher shall indemnify and hold harmless the Partner, its affiliates and its directors, officers, employees, agents, successors, assigns, licensees and distributors against any and all claims or judgments (including the Publisher's payment of the Partner's attorney's fees through one or more levels of appeal incurred by the Partner)paid or incurred in connection with claims by any party which arise from use of materials originating with the Publisher. 5 5.3 The Partner shall indemnify and hold harmless the Publisher, its affiliates and its directors, officers, employees, agents, successors, assigns, licensees and distributors against any and all claims or judgments (including the Partner's payment of the Publisher's attorney's fees through one or more levels of appeal incurred by the Publisher) paid or incurred in connection with claims by any party which arise from use of materials originating with the Partner. 5.4 If any claim or action is instituted or threatened by a third party against a party to this Agreement for which it believes it has been indemnified pursuant to this Agreement, it shall promptly give notice thereof to the other party. 5.5 The Publisher shall not be liable for any loss or damage arising to the Partner, or any other party, by reason of non-publication, delay or interruption in publication due to circumstances beyond the control of the Publisher. The Publisher shall not be liable for incidental, consequential, punitive or lost-profit damages. 6. TERM- 6.1 This Agreement shall have an initial term of 2 years commencing on the Effective Date. 6.2 Upon acceptance of mutually agreed terms, this agreement may be renewed for successive one-year terms unless either party gives the other notice of termination at least six months prior to the expiration of the then-current term. 6 7. NOTICES- All notices required by this Agreement shall be in writing. Notices from the Partner to the Publisher shall be delivered or mailed to: Beth Deacon, General Manager, Special Publications 2828 Pickett Road Durham, North Carolina 27707 Notices from the Publisher to the Partner shall be delivered or mailed to: Jerry Passmore Executive Director Orange County Department on Aging 300 West Tryon Street Hillsborough, North Carolina 27278 Notice shall be deemed effective upon certified mailing or hand delivery. 8. WAIVERS- The failure of either party at any time to require performance of the other party of any provision hereof shall not in any way affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself or a waiver of the right to enforce that provision with respect to any future breach. 9. ASSIGNMENT- The Partner shall not assign (voluntarily, by operation of law or otherwise) this Agreement or any right, interest or benefit under this Agreement, without prior written consent of the Publisher. Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns. 10. SEVERABILITY- If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby. r 7 11. GOVERNING LAW;JURISDICTION- This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of North Carolina without regard to its conflicts or choice of law. In the event of any dispute arising hereunder, the parties agree to submit to the jurisdiction and venue of the appropriate state or federal courts located in Durham County, North Carolina. FOR ORANGE COUNTY DEPARTMENT ON AGING,THE PARTNER Jerry Passmore, Executive Director Date FOR THE DURHAM HERALD COMPANY: W.Toland Barfield • Date Director of Sales and Marketing