Publisher Membership Agreement

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THIS AGREEMENT is entered into by and between PUBLISHER (info will auto-populate from the online form) and the Board of Regents of the University System of Georgia (“BOR”) by and on behalf of The Georgia Institute of Technology, AMAC Accessibility Solutions and Research Center (“AMAC”), with offices at 512 Means Street NW, Suite 250, Atlanta Georgia 30318.

WHEREAS, Publisher is engaged in educational publishing and is committed to serving the needs of the student population with print-related disabilities;

WHEREAS, Publisher supports the Association of American Publishers’ (“AAP”) creation of the concept and development of specifications for the AccessText Network;

WHEREAS, the AccessText Network is a web-based portal that, to the extent authorized by each participating publisher, facilitates the timely provision of educational materials upon request to post-secondary institutions;

WHEREAS, BOR is the governing body of the 35 member institutions in the University System of Georgia;

WHEREAS, AMAC is an organization with specific knowledge and expertise in the arena of print-related disabilities on the post-secondary level;

WHEREAS, BOR and AAP are parties to an agreement pursuant to which AMAC, is developing and maintaining the AccessText Network (the “AAP-BOR Agreement”);

WHEREAS, BOR has assigned AMAC for administrative purposes to the Georgia Institute of Technology, an institution in the University System of Georgia.

WHEREAS, subject to the terms and conditions of this Agreement, Publisher wishes to use the AccessText Network to facilitate distribution of educational materials for which it owns or controls the copyright to students with print-related disabilities;

NOW THEREFORE, in consideration of the mutual covenants and promises set forth herein, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Publisher and AMAC agree as follows:

1. Definitions.
(a) “AccessText Application” refers collectively to the website, database, search boxes, interactive forms, reports, notifications and procedures that constitute the system devised by AMAC for the purpose of improving and enhancing the process by which DSS Offices and Alternate Media Centers interact with Publisher for the purpose of providing Alternative Texts to Qualified Students.
(b) “Alternate Media Centers” refers to organizations that operate under the jurisdiction of a state education agency and provide Alternative Texts for multiple DSS Offices.
(c) “Alternative Text” refers to any Post-Production File or file scanned with Publisher permission and provided by a DSS Office in a format other than the commercially available print version of the material to one or more Qualified Students. Examples of alternative text formats include Braille transcription of printed materials, XML tagging of an electronic file, and conversion of a file to audio formats such as mp3 or wav.
(d) “Authorized Users” refers collectively to DSS Offices and Alternate Media Centers that are members in good standing of the AccessText Network.
(e) “Post-Production Files” refers to the file derived from a Publisher File that has been enhanced to provide an alternative text format, as described in Section 1(c) above, to a Qualified Student. A Publisher File may not need to be enhanced and may be suitable for use as a Post-Production File depending on the format of the File and the nature of the particular print-related disability.
(f) “DSS Offices” refers to Disability Service offices of institutions of higher education.
(g) “Publisher File” refers to an original file delivered to one or more Authorized Users by Publisher in response to a request made through the AccessText Application.
(h) “Qualified Student” refers to a student with a print-related disability that prevents the student from using standard print educational materials and who has purchased a copy or for whom a copy has been purchased of the commercially-available print version of the Alternative Text.

2. AMAC Responsibilities. AMAC, shall:
(a) Not distribute Publisher Files, Alternative Texts, or any modification thereof to anyone other than an Authorized User.
(b) Require all Authorized Users to sign and abide by the terms of the appropriate DSS Office or Alternate Media Center user membership agreement referred to in Section 1(a)(i) of the AAP-AMAC Agreement. It is understood that the standard user membership agreement may be modified from time to time, but only with the express written consent of AAP.
(c) Ensure that Authorized Users are provided with and agree to abide by the “Publisher Grant of Rights to Authorized Users” programmed into the AccessText Application.
(d) Incorporate data received from Publisher pursuant to Section 3 hereof (“Publisher Data”) into the AccessText Application.
(e) Remove or modify some or all Publisher Data from the AccessText Application as expeditiously as possible, but in any event within thirty (30) days, following receipt of a written request from Publisher to do so.
(f) Develop, maintain, and make available the AccessText Application to Publisher and to review in good faith any additions and modifications to the Application as suggested by Publisher, and reviewed by the Advisory Committee, to enhance the overall efficiency and effectiveness of the service.
(g) Provide the capability for Publisher to obtain reports on a monthly, quarterly, and year-to-date basis, as provided in Section 1(a)(v)(3) of the AAP-AMAC Agreement.
(h) Ensure that all interfaces and services offered by the AccessText Network and the www.accesstext.org web site are at all times “accessible” and “usable” according to prevailing best practices and conform to up-to-date standards for accessible websites (currently the W3C’s WCAG Guidelines &/or the requirements of Section 508).
(i) Operate the AccessText Network on a not-for-profit basis, and to the extent that revenues generated exceed operating costs, use such excess revenues solely to further the development of the AccessText Network.
(j) Maintain reasonable security for the AccessText Network to prevent unauthorized use of, or unauthorized access to the information in, the members-only area of the site by nonmembers.
(k) Maintain appropriate security and confidentiality of reports prepared for and delivered to Publisher and, except with respect to permitting normal access by Authorized Users, of Publisher Data. Nothing herein shall prevent AMAC from providing reports to AAP as required by Section 1(a) (v)(3) of the AAP-BOR Agreement or from complying with laws requiring disclosure.

3. Publisher Responsibilities.
(a) Provide to AMAC the following Publisher Data:
i. A list of Publisher’s imprints or other trade names (if Publisher has multiple imprints or trade names).
ii. A URL that connects to Publisher’s Rights and Permissions site (if one is maintained by Publisher).
iii. Contact information for representatives of Publisher in the following areas:
 One administrative contact;
 One rights and permissions contact; and
 One production/fulfillment contact.
iv. An electronic list of copyrighted textbooks and other print materials published by Publisher, together with additional metadata about such works as is requested by AMAC and Publisher maintains in the ordinary course of business and is reasonably able to provide. Nothing herein shall require Publisher to create an electronic list or metadata records that are not already or otherwise available.
v. An electronic list of Publisher Files (including the specific format and whether File is commercially available) available from Publisher, if Publisher maintains such a list.
vi. Publisher may update Publisher Data as needed, but shall not be required to update Publisher Data more than twice per calendar year.

(b) Consistent with the rights granted under Section 4, Publisher shall respond to requests from Authorized Users for Publisher Files in a timely manner not to exceed ten business days of receipt of the request by:
i. Fulfilling the request by notifying the requesting party of the fulfillment means i.e., through FTP server, by regular mail, etc.; or
ii. Notifying the requesting party that the File is available and will be provided at a later date; or
iii. Notifying the requesting party that the File is unavailable.
If Publisher does not respond to a request within ten business days of receipt of the request, AMAC will contact Publisher to request a response.

(c) If the metadata available through the AccessText Application for the Alternative Text indicates that a Publisher File is not available, the Authorized User may, consistent with the rights granted under Section 4, request permission to scan the print material in lieu of requesting a Publisher File.

(d) If Publisher does not have a Publisher File available for the requested title, or the requested materials are not otherwise commercially available from Publisher, Publisher shall advise the Authorized User through the AccessText Application with one of the following responses:
i. A Publisher File for the requested material is unavailable and the Authorized User may proceed with obtaining an Alternative Text through one of the other Authorized Users subject to the grant of rights in Exhibit A; or,
ii. A Publisher File for the requested material is unavailable and the Authorized User may proceed with scanning the print material subject to the grant of rights in Exhibit A; or,
iii. A Publisher File for the requested material is unavailable. Publisher does not hold the copyright for the text and cannot provide any further information about Alternative Texts at this time; or
iv. A complete Publisher File for the requested material is unavailable due to third-party copyright restrictions; however, the Authorized User may be permitted to obtain or scan specific portions of the requested material according to limitations set forth by Publisher and subject to the grant of rights in Exhibit A. If a partial permission is granted, the Authorized User must warn the Qualified Student that material may be missing from the Alternative Text; or
v. A Publisher File for the requested material is denied for another reason.

4. Grant of Rights. The grant of rights for use of each Publisher File and Alternative Text by Authorized Users is set forth in Exhibit A.

5. Term and Termination.
(a) The term of this Agreement shall commence as of the date hereof and continue in effect until terminated pursuant to one of the other provisions of this Section 5.
(b) In the case of material breach of any of the terms and conditions of this Agreement by either party, the other party may terminate this Agreement by giving thirty (30) days written notice, and this Agreement shall be terminated if the breaching party shall not have corrected such material breach within the notice period.
(c) This Agreement shall terminate upon the termination of the AAP-BOR Agreement.
(d) At any time, and for any reason, either party may give the other party ninety (90) days written notice of termination.
(e) Upon termination of this Agreement, AMAC shall permanently delete Publisher Data from its systems if requested to do so by Publisher.

6. Limitation of Liability. Publisher makes no representation or warranties with respect to Publisher Files, which are provided for use by Authorized Users “as is.” Publisher makes no representation or warranties with respect to any Alternative Text or the use of a Publisher File as an Alternative Text. Publisher disclaims the implied warranties of merchantability and fitness for a particular purpose with respect to any Publisher File. Publisher also makes no representations or warranties as to whether the information accessible via the AccessText Network, including but not limited to Publisher Data and Publisher Files, is accurate, complete, or current. AMAC assumes responsibility for establishing such procedures for data back up and viruses checking as are reasonably considered best practices for online services of this type.

7. Warranties; Representations.
(a) Publisher represents and warrants that:
(i) it is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it has been organized, and that it has the full rights, power, legal capacity and authority to enter into this Agreement;
(ii) this Agreement has been executed by its duly authorized representative(s); and
(iii) it will comply in all material respects with all applicable laws, statutes and regulations in performing its duties under this Agreement.

(b) AMAC represents that
(i) it has the full rights, power, legal capacity and authority to enter into this Agreement;
(ii) this Agreement has been executed by its duly authorized representative(s);
(iii) it will comply in all material respects with all applicable laws, statutes and regulations in performing its duties under this Agreement;
(iv) all material contributed by AMAC to the development of the AccessText Application is non-infringing of any third party rights; and
(v) the making of this Agreement does not and will not violate any agreement, right or obligation existing between any other person, firm, corporation or other entity.

8. Notice. Notices under this Agreement must be in writing and sent by United States Mail (postage prepaid), hand delivery, or overnight delivery services addressed as follows:

To AMAC:
The Board of Regents of the University System of Georgia
AMAC Accessibility Solutions and Research Center
512 Means Street NW, Suite 250
Atlanta, Georgia, 30318
Attention: Keith Harper, AMAC Senior Financial Accountant

To Publisher: Your information will be automatically populated here by the online form.

9. No Assignment or Transfer. This Agreement is solely between the parties as presently constituted and shall not be assigned or transferred without the prior written consent of the other party, except that Publisher may assign or transfer this Agreement to a parent, subsidiary, or other company under common control with Publisher. Any attempt to assign or transfer this Agreement without such prior consent is null and void.

10. Third Party Beneficiaries. The terms and provisions of this Agreement are intended solely for the benefit of AMAC and Publisher and their respective successors or permitted assigns, and it is not the intention of the parties to confer third-party beneficiary rights, and this Agreement does not confer any such rights, on any Authorized User or Qualified Student.

11. Relationship Between the Parties. AMAC is an independent contractor and its officers and employees shall be not deemed to be employed by Publisher. Nothing in this Agreement shall create any association, partnership or joint venture between the parties. Neither party shall have the power or authority to obligate or bind the other in any way.

12. Parties in Interest. This Agreement shall inure to the benefit of and be binding upon the parties hereto and on each of their respective successors and permitted assigns (if any) as provided in Section 9 of this Agreement.

13. Force Majeure. If either party’s performance of any part of this Agreement is prevented or delayed by reason of fire, governmental action, labor dispute, terrorism, act of God, or any other cause beyond the performing party’s reasonable control, then such party shall be excused from performance for the length of such prevention or delay, provided that such party gives the other party written notice thereof as soon as reasonably practicable.

14. Survival. The provisions of Sections 2(a), 2(e), 2(k), 6 and 7 shall survive the termination of this Agreement.

15. Other Matters.
(a) In case any term of this Agreement shall be held invalid, illegal, or unenforceable in whole or in part, neither the validity of the remaining part of such term nor the validity of any other term shall be in any way affected thereby. All remedies provided herein are cumulative and not exclusive of any remedies provided at equity or law.
(b) Each party’s waiver of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way effect, limit, or waive such party’s rights thereafter to enforce and compel strict compliance with every term and condition hereof.
(c) This Agreement constitutes the final expression of the understanding and agreement between the parties with respect to the subject matter hereof, is intended as a complete and exclusive statement of the terms of the parties’ agreement, supersedes and cancels all previous agreements and understandings, either oral or in writing, between the parties to this Agreement, and is not subject to or entered into on the basis of any oral or written terms or representations other than those contained herein. Any modification or amendment of the terms and conditions of this Agreement will only be binding upon the parties if expressly provided herein under Section 2(b) or if contained in writing and signed by or on behalf of both parties.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed by their duly authorized representatives.

The Board of Regents of the University System of Georgia
By and on behalf of The Georgia Institute of Technology,
AMAC Accessibility Solutions and Research Center

Publisher: Your information will be automatically populated here by the online form.


Exhibit A

Publisher Grant of Rights to Authorized Users

The grant of rights below shall apply to use of each Alternative Text and Publisher File provided to an Authorized User for a Qualified Student. This grant of rights is subject to any specific requirements agreed to by Publisher and programmed into the AccessText Application. The AccessText Application provides Publisher with the ability to adjust the following choices in each category at any time.

I. Use of Publisher Files Provided to DSS Offices

_____A. Publisher permits DSS Offices that receive a Publisher File requested from Publisher through the AccessText Application to use that File for the sole purpose of providing a Post-Production File at no additional cost to a Qualified Student within the DSS Office’s institution of higher education. DSS Offices may retain the Publisher File and/or Post-Production File to provide at no additional cost a Post-Production File to one or more additional Qualified Students within its institution, provided that the DSS Office provides the proper notification to Publisher using the AccessText Application before providing the Post-Production File to each additional Qualified Student.
Or:
_____ B. Publisher requires DSS Offices to submit a request and receive a non-automated authorization before a Publisher will send a Publisher File through the AccessText Application or directly to the DSS Office for the purpose of providing a Post-Production File at no additional cost to a Qualified Student within the DSS Office’s institution. DSS Offices may retain the Publisher File and/or Post-Production File, but must request and receive a non-automated permission from Publisher in order to provide at no additional cost a Post-Production File to each additional Qualified Student within its institution.

II. Use of Publisher Files Provided to Alternate Media Centers
_____ A. Publisher permits Alternate Media Centers that receive a Publisher File requested from Publisher through the AccessText Application to provide a Post-Production File to a DSS Office that is legally served by the Alternate Media Center for use, at no additional cost, by a Qualified Student, provided that the DSS Office abides by the terms set forth in Section I above. Alternate Media Centers may retain Publisher File and/or Post-Production File to provide a Post-Production File to additional DSS Offices that are members of the Alternate Media Center for use at no additional cost by one or more additional Qualified Students, provided that the Alternate Media Center provides the proper notification to Publisher using the AccessText Application before providing the Post-Production File to each additional DSS Office.
Or:
_____ B. Publisher requires Alternate Media Centers to submit a request and receive a non-automated authorization before a Publisher will send a Publisher File through the AccessText Application or directly to the Alternate Media Center for the purpose of providing a Post-Production File to a DSS Office that is legally served by the Alternate Media Center for use, at no additional cost, by a Qualified Student, provided that the DSS Office abides by the terms set forth in Section I above. Alternate Media Centers may retain the Publisher File and/or Post-Production File, but must request and receive a non-automated permission from Publisher in order to provide a Post-Production File to each additional DSS Offices that are members of the Alternate Media Center for use at no additional cost by one or more additional Qualified Students.

III. Use of Files Scanned by DSS Offices with Publisher Permission
_____A. Publisher permits DSS Offices that have received permission from Publisher through the AccessText Application, consistent with Sections 3(c) and (d)(ii)&(iv) of this Agreement, and scanned a file to use that file for the sole purpose of providing an Alternative Text derived from that file at no additional cost to a Qualified Student within the DSS Office’s institution of higher education. DSS Offices may retain the scanned file to provide at no additional cost an Alternative Text derived from that file to one or more additional Qualified Students within its institution, provided that the DSS Office provides the proper notification to Publisher using the AccessText Application before providing the Alternative Text to each additional Qualified Student.
Or:
_____B. Publisher permits DSS Offices that have received permission from Publisher through the AccessText Application, consistent with Sections 3(c) and (d)(ii)&(iv) of this Agreement, and scanned a file to use that file for the sole purpose of providing an Alternative Text derived from that file at no additional cost to a Qualified Student within the DSS Office’s institution of higher education. DSS Offices may retain the scanned file, but must request and receive a non-automated permission from Publisher in order to provide at no additional cost an Alternative Text derived from that file to each additional Qualified Student within its institution.

IV. Use of Files Scanned by Alternate Media Centers with Publisher Permission
_____ A. Publisher permits Alternate Media Centers that have received permission from Publisher through the AccessText Application, consistent with Sections 3(c) and (d)(ii)&(iv) of this Agreement, and scanned a file to use that file to provide an Alternative Text derived from that file to a DSS Office that is legally served by the Alternate Media Center for use, at no additional cost, by a Qualified Student, provided that the DSS Office abides by the terms of set forth in Section III above. Alternate Media Centers may retain the scanned file to provide an Alternative Text derived from that file to additional DSS Offices that are members of the Alternate Media Center for use at no additional cost by one or more additional Qualified Students, provided that the Alternate Media Center provides the proper notification to Publisher using the AccessText Application before providing the Alternative Text to each additional DSS Office.
Or:
_____ B. Publisher permits Alternate Media Centers that have received permission from Publisher through the AccessText Application, consistent with Sections 3(c) and (d)(ii)&(iv) of this Agreement, and scanned a file to use that file to provide an Alternative Text derived from that file to a DSS Office that is legally served by the Alternate Media Center for use, at no additional cost, by a Qualified Student, provided that the DSS Office abides by the terms of set forth in Section III above. Alternate Media Centers may retain the scanned file, but must request and receive a non-automated permission from Publisher in order to provide an Alternative Text derived from that file to additional DSS Offices that are members of the Alternate Media Center for use at no additional cost for each additional Qualified Student.

V. Sharing of Alternative Texts Between Authorized Users. The following rights may be granted, but will not be available until the AccessText Application contains the capability to facilitate publisher-approved sharing of files in Phase 3, as defined by Section 1(c) of the AAP-BOR Agreement.
_____ A. Publisher permits Authorized Users that have received Publisher Files, or scanning permission from Publisher via the AccessText Application, and created an Alternative Text to copy and distribute the Alternative Text to other Authorized Users for distribution, at no additional cost, to Qualified Students within the other Authorized User’s own institution only, provided that the Authorized User providing the Alternative Text to the other Authorized User first provides the proper notification to Publisher using the AccessText Application and that each other Authorized User agrees to abide by the terms set forth in Section I above. This permission does not permit the redistribution of Publisher Files that have not been enhanced by the post-production process or files that are commercially-obtained alternative formats.
Or:
_____ B. Publisher requires Authorized Users to submit a request and receive authorization using the AccessText Application before a Publisher will allow an Authorized User that has received Publisher Files, or scanning permission from Publisher via the AccessText Application, and created an Alternative Text to copy and distribute the Alternative Text to other Authorized Users for distribution, at no additional cost, to any additional Qualified Student within the other Authorized User’s own institution only, provided that each other Authorized User agrees to abide by the terms set forth in Section I above. This permission does not permit the redistribution of Publisher Files that have not been enhanced by the postproduction process or commercially-obtained alternative formats.
Or:
_____ C. Publisher does not permit Authorized Users to share Alternative Texts with other Authorized Users.

VI. Disposal of Files
Authorized Users must dispose promptly and securely of any Alternative Text at such time as the Authorized User is no longer authorized to operate under the jurisdiction of a college or university system or the Publisher revokes the grant of rights consistent with Section VII below.

VII. Right to Revoke Grant as to Certain Files
Publisher reserves the right to withdraw from the above grant of rights to any Alternative Text for which (i) Publisher has reasonable grounds to believe Publisher File contains material errors, or is or could be subject to a claim that it is defamatory, obscene, invades the right of privacy, or infringes the copyright or other rights of any person or entity; (ii) Publisher no longer retains the right to grant such rights; or (iii) a non-print version, suitable for use by students with print-related disabilities, is made commercially available by Publisher and identified as such in Publisher Data. Unless legally obligated to do so, Publisher shall not revoke permission relating to use of an Alternative Text by a Qualified Student who is still enrolled in the course for which it was provided.