Coast Pilot Agent Agreement V1 - 8.17.10.pdf

U.S. Department of Commerce National Oceanic and Atmospheric Administration

National Ocean Service

----- AGENT AGREEMENT -----

Terms and Conditions for

United States Coast Pilot® Publishing Agents

1) PURPOSE –

The Office of Coast Survey, National Ocean Service, NOAA compiles the official United States Coast Pilot®. Printed versions are used by regulated vessels for safe navigation and to comply with federal chart and publication carriage regulations, and they are widely used by others as an aid to navigation. As such, the Coast Pilots are an important contributor to the accomplishment of NOAA’s mission of supporting the nation’s commerce with information for safe, efficient, and environmentally sound marine transportation.

This Publishing Agent Agreement permits entities to receive official digital data files of the Coast Pilot from NOAA which, when printed according to the NOAA standards and the terms and conditions herein, produce official copies that meet federal chart and publication carriage regulations. This Agreement describes the conditions under which an authorized Agent agrees to print and sell such official Coast Pilot copies.

2) AUTHORITIES –

a) 33 U.S.C. 883b, which states:

“In order that full public benefit may be derived from the operations of the National Ocean Survey by the dissemination of data resulting from the activities herein authorized, and of related data from other sources, the Secretary of Commerce is authorized to conduct the following activities:

(1) Analysis and prediction of tide and current data;

(2) Processing and publication of data, information, compilations, and reports;

(3) Compilation and printing of nautical charts;

(4) Distribution of nautical charts and related navigational publications.”

b) 33 U.S.C. 883f, which states:

“The Secretary of Commerce is authorized to contract with qualified organizations for the performance of any part of the authorized functions of the National Ocean Survey when he deems such procedure to be in the public interests.”

c) 33 U.S.C. 892a(b)(2) which gives the Administrator the following authority:

“may enter into contracts and other agreements with qualified entities, consistent with subsection (a)(8) of this section, for the acquisition of hydrographic data and the provision of hydrographic services;”

The authority in 33 U.S.C. 883b(2) and (3) permits the compilation of the Coast Pilot.

The authority in 33 U.S.C. 883b(4) permits their distribution. The authorities in and 33 U.S.C. 883f and 33 U.S.C. 892a(b)(2) permits contracts such as this Agreement.

3) DEFINITIONS –

Authorized NOAA Coast Pilot Publishing Agent (hereinafter referred to as “Agent”) means an entity that has signed this Agreement, has had this Agreement cosigned by the Director, Office of Coast Survey, National Ocean Service, NOAA, and who is adhering to the terms and conditions herein while printing and distributing the United States Coast Pilot.

United States Coast Pilot means a printed version of NOAA’s Coast Pilot digital files, printed in conformance with NOAA specifications and standards, and adhering to the terms and conditions of this Agreement. The resulting Coast Pilot is an official NOAA Coast Pilot that may be used to meet federal chart and publication carriage regulations, NOAA Coast Pilot digital files means digital data provided by NOAA for the purpose of printing the Coast Pilot. These digital data, when printed in accordance with NOAA standards, produce a United States Coast Pilot.

4) METHOD OF APPLICATION TO BECOME A NOAA COAST PILOT

PUBLISHING AGENT – An entity may apply to become an Agent by agreeing to the terms herein, and submitting a signed copy of this Agreement to:

Director Office of Coast Survey, NOAA (N/CS) 1315 East West Highway Silver Spring, MD 20910

USA

This Agreement will become effective upon co-signing by the Director, Office of Coast Survey, NOAA, and acceptance by NOAA of an Agent-produced Coast Pilot product qualification sample demonstrating the Agent’s ability to meet the NOAA Specifications and Standards, and the other terms and conditions herein. NOAA has unilateral authority to accept or deny an applicant as an authorized Agent.

5) RESPONSIBILITIES OF A NOAA COAST PILOT PUBLISHING AGENT –

Agent agrees to:

a) Adhere to the terms and conditions of this Agreement.

b) Adhere to the standards of quality and service for Agent-published Coast Pilots, their delivery, and related matters as specified by NOAA and as demonstrated in the product qualification sample. Said standards are appended to this Agreement and are part of this Agreement.

c) Sell only Coast Pilots made from the most recent NOAA Coast Pilot digital files available to Agent in order to insure that mariners have the most up-to-date information. When notified that files have been updated or replaced, Agent shall begin processing the updated or replaced files for immediate use.

d) Retrieve the NOAA Coast Pilot digital files as produced by NOAA and in the manner specified by NOAA, e.g. download from a secure .FTP Internet site.

e) Perform any necessary file manipulation to produce a final Coast Pilot that complies with the NOAA standards and specifications and with this Agreement.

f) Perform quality control on NOAA Coast Pilot digital files with errors promptly reported back to NOAA for correction. This quality control shall be limited to items that would impact the Agent’s operations and responsibilities, and need not include the accuracy of the NOAA-compiled information.

g) Establish and operate a manufacturing, sales, and distribution operation following accepted industry practices to make and sell the Coast Pilots. Agent will furnish all equipment, materials, and management necessary for production and distribution. Agent will develop and maintain, at Agent expense, appropriate software to interface with NOAA, to perform the necessary order processing, file management, document composition, error checking, printing, and to perform all the associated business activities such as billing and shipping.

h) Submit initial product qualification samples to NOAA and submit product qualification samples for reacceptance after any significant change in Agent’s processes, equipment, or product.

i) Manufacture and offer for sale the entire suite of the Coast Pilots. This shall include all versions and customizations offered by NOAA now and in the future.

j) Make the Coast Pilots continuously available so long as this Agreement is in effect.

k) Make a good faith effort to print and ship Coast Pilots within 48 hours of receipt of an order.

l) Protect the digital files from corruption or theft using industry-standard computer security practices.

m) Protect the NOAA files from public release and use said files only in the production of the official Coast Pilots unless otherwise authorized by NOAA.

n) Make no advertising or claim that is inaccurate, misleading, which encourages an unsafe navigation practice, or which results in embarrassment to the Department of Commerce or to NOAA.

o) Sell Agent-produced copies of the Coast Pilots to the federal government at the lowest available wholesale price offered to any other entity.

6) RESPONSIBILITIES OF NOAA

a) Adhere to the terms and conditions of this Agreement.

b) Provide NOAA Coast Pilot digital files to Agent so long as this Agreement is in force. The files include those listed below. Note: NOAA may, with reasonable notice and recognition of the changes required by Agent, from time-to-time change the NOAA Coast Pilot digital files to accommodate evolution in technology.

i) Digital versions of each Coast Pilot text volume in XML format suitable for color printing.

ii) Digital versions of each Coast Pilot cover in Adobe .InDesign format suitable for color printing.

iii) Authority to print any copyrighted material on behalf of NOAA.

c) Notify the Agent each time a new edition of a Coast Pilot volume is issued.

d) Establish the official status of the resulting products for meeting chart and publication carriage regulations of the U.S.

e) Publicly recognize Agent’s compliant products as “official United States Coast

Pilots.”

f) Accept responsibility for the correctness of the NOAA Coast Pilot digital files provided to the Agent.

g) Establish a retail price cap on the Agent-published Coast Pilots.

h) Consult on selection of papers and bindings while maintaining as confidential the alternatives proposed by Agents.

i) Perform quality control on each initial qualification sample, new edition, and after substantive changes to software or processes, or explicitly waive such action.

j) Make a good-faith effort to keep all data files available at all times.

k) Notify Agent immediately of any known errors in the NOAA Coast Pilot digital files which result in corrective action taken by NOAA to assure that the Coast Pilots are correct and accurate and in compliance with federal chart and publication carriage regulations. Notify Agent of the source of the error, corrective action taken by NOAA, identify the NOAA Coast Pilot digital files affected, and specify date/time of the error. Communicate the correction to users.

l) Make statistics available concerning the quantity of Coast Pilots printed and sold by NOAA each month.

7) SALES PRICE – Agent agrees to limit the retail price of Coast Pilots he or his retailers, redistributors, remote printers, and subagents produce and/or sell to no more than $35 per volume. Shipping, handling, and taxes may be added to this amount.

NOAA shall have the authority to unilaterally change, with reasonable notice to Agents, this price cap at its discretion. This price cap will be increased to the extent of any increase in payments to NOAA under Section 8 herein.

8) PAYMENTS TO NOAA – Agent shall pay NOAA an amount equal to fifty cents

($0.50) per Coast Pilot volume sold by the Agent towards sums permitted or required to be collected by NOAA. With reasonable notice to Agents, NOAA shall have the right to reasonably change the amount of the payment as it deems appropriate or as it shall be required to do by law.

Said payment shall be calculated and paid within thirty (30) days after the end of each calendar quarter by check made payable to “U.S. Department of Commerce, NOAA,” at an address specified in paragraph 4. of this Agreement. Payment shall be accompanied by a report setting forth appropriate details for calculating the payment.

Said payment shall be waived for the first 90 days of the first Agent Agreement between NOAA and Agent. This waiver does not apply to renewals or subsequent Agent Agreements between NOAA and Agent for the purposes described in this Agreement.

9) VOLUME OF SALES – NOAA shall have the authority to establish a minimum annual number of NOAA Coast Pilots that Agent is required to sell. Failure to meet the minimum sales requirement shall be grounds for termination of this Agreement.

10) RETAILERS, REDISTRIBUTORS, REMOTE PRINTERS AND SUBAGENTS –

Agent may establish networks of retailers, redistributors, subagents, and/or remote printers. Agent may establish prices, and terms and conditions with these entities.

Agent shall insure that its retailers, redistributors, remote printers, and subagents adhere to the terms and conditions herein as applicable, and that they are only selling NOAA Coast Pilots made from the most recently available NOAA Coast Pilot digital files.

11) DURATION OF THE AGREEMENT AND RENEWAL – This Agreement shall be for a term of 3 years commencing from the date of the last signature. Agents may reapply for a new Agreement at the expiration, the acceptance of which shall be treated as a new application by NOAA.

12) TERMINATION –

a) NOAA may terminate an Agent’s Agreement, its access to NOAA Coast Pilot digital files, and its status as a United States Coast Pilot® Publishing Agents at any time and without prior notification if, in its sole judgment, public safety is adversely affected by actions or products of the Agent.

b) NOAA may terminate an Agent’s Agreement for cause and terminate Agent’s access to NOAA Coast Pilot digital files at any time by giving 30 days written notification. Said notification shall cite the specific reasons for which this Agreement is being terminated. Agent shall have said 30 days to remedy the cause for termination. Agents terminated for cause normally will not be considered for reinstatement for one year. Causes for termination are:

i) Failure to conform to the Terms and Conditions stated herein.

ii) Failure to make a reasonable commercial effort to make and sell Coast Pilots.

iii) Assignment of this Agreement to another entity except as permitted herein.

iv) Failure to consistently produce products that meet the Standards and

Specifications provided herein and subsequently promulgated by NOAA.

c) Either party may terminate this Agreement without cause at any time by giving 3 calendar months written notification.

d) In the event this Agreement ends for any reason, Agent shall return all data, digital files, and information provided by NOAA then in its possession. In addition, Agent shall cease to manufacture and/or sell NOAA Coast Pilots, and shall notify all retailers, redistributors, subagents, and/or remote printers in Agent’s networks for the distribution of its product that its certification has been terminated and that products being distributed by Agent may no longer be valid for all uses such as compliance with federal chart and publication carriage regulations.

e) NOAA participation in the provision of NOAA Coast Pilot digital files is subject to the availability of funds. NOAA shall promptly notify Agent of changes in the availability of funds that affect the provision of NOAA Coast Pilot digital files.

13) RECORD KEEPING –

a) Agent agrees to establish a reasonable means of communicating with recipients to whom it has distributed Coast Pilots. In the event NOAA finds it necessary to provide Coast Pilot users with information about the Coast Pilot, such as safety notifications, Agent agrees to use its reasonable efforts to notify the recipients of that information. Any records of said recipients provided to NOAA shall not be released by NOAA unless otherwise required by law, nor used for any other purpose.

b) Agent shall keep complete and accurate financial records of its Coast Pilot publishing business, and said records shall be made available to NOAA or its designated representative for audit upon 30 days notification. NOAA shall treat all such information as confidential unless required to disclosure such information by law.

c) Agent agrees to report quarterly to NOAA on the monthly quantity of each Coast Pilot volume distributed. Said report shall be provided within 30 days after the end of a calendar quarter.

14) AUDIT AND INSPECTION –

a) A representative of NOAA may audit, during business hours and with reasonable notification, the Agent’s compliance with this Agreement at any time.

b) A representative of NOAA may inspect, during business hours and with reasonable notification, an Agent’s Coast Pilots at any time. Agent shall supply a small quantity of Coast Pilots at no cost to NOAA upon request for this purpose.

Said quantity shall not exceed the number of new editions published per year.

c) Agent agrees to provide information reasonably requested by NOAA’s representative in the performance of an audit or inspection. NOAA shall treat all such information as confidential.

d) Agent agrees to take corrective action identified by NOAA from an audit or inspection as soon thereafter as is reasonably practical.

15) USE OF THE NOAA EMBLEM AND NAME – Agent, together with its retailers, redistributors, subagents, and remote printers may use the phrases “United States Coast

Pilot®”, “Authorized NOAA Coast Pilot Publishing Agent”, and the Authorized NOAA Coast Pilot Publishing Agent “Certificate of Authenticity” which includes the NOAA emblem, in correspondence and promotional materials. Other use of the NOAA emblem is prohibited without prior written consent from NOAA.

16) AGENT DISTRIBUTION RIGHTS – Agent does not have exclusive rights to publish and distribute NOAA Coast Pilots in any geographic area or to any group of consumers. NOAA reserves the right to determine the number of authorized Agents.

NOAA may choose to manufacture and distribute Coast Pilots itself in order to assure a reliable and broadly available Coast Pilot supply. NOAA agrees to promptly notify Agent of any decision to manufacture and/or distribute Coast Pilots itself.

17) INSURANCE – Agent agrees to carry insurance of a type and in an amount reasonably appropriate for the product being printed and sold.

18) LIABILITY – Subject to Section 6 of this agreement, Agent agrees to indemnify and hold harmless the U.S. Government for any loss, claim, damage, or liability of any kind, arising out of actions by the Agent, its employees, or any Party acting on its behalf or under its authorization, in performance of activities under this Agreement.

19) TRANSFER OF AGENCY – This Agency is not transferable except that the Agent may assign this Agreement to the successors or assignees of a substantial portion of the Agent’s business interest to which this Agreement directly pertains. A change in ownership, firm name, or address shall be reported immediately to the NOAA in writing.

20) CONFIDENTIALITY – Any Agent confidential information disclosed to NOAA by

Agent, and appropriately identified as confidential, shall be deemed confidential and proprietary to Agent. Confidential information shall include all data, materials, vendors, products, processes, techniques, technology, computer programs, specifications, manuals, business plans, software, marketing plans, financial information, pricing, personnel information, customer lists and other information disclosed or submitted, orally, in writing, or by any other media. Unless otherwise required by law, NOAA shall not reveal to any third party any confidential information so disclosed during the term of this Agreement.

21) AMENDMENT –

a) The Terms and Conditions herein may be amended unilaterally by NOAA if, in its sole judgment, public safety is adversely affected by actions or products produced under this Agreement. NOAA shall make reasonable recognition of the time required for Agent to accommodate said change.

b) The Terms and Conditions herein may be otherwise reasonably amended by NOAA upon giving Agent 30 calendar days notice and opportunity for comment;

provided that Agent may within 30 calendar days thereafter terminate this agreement.

c) NOAA may reasonably amend the NOAA Coast Pilot Specifications and Standards at any time in order to better fulfill its mission.

d) Amendments shall apply to all Agent Agreements including those already in effect in order that all Agents are subject to identical Agreements.

22) ACTIONS NOT EXPRESSLY PERMITTED – Actions not explicitly permitted to a

United States Coast Pilot® Publishing Agents by this Agreement, and which are related to the printing and distribution of NOAA Coast Pilots and the use of NOAA Coast Pilot digital files, are prohibited.

23) NOTIFICATION – NOAA intends to change its Coast Pilot maintenance practice from the annual changing of the NOAA Coast Pilot digital files to a weekly changing of the NOAA Coast Pilot digital files. Authorized United States Coast Pilot® Publishing Agents will be required to change along with NOAA. Said change will require Agents to download new NOAA Coast Pilot digital files before printing any copies, and to only print copies when orders are received in order that users are provided the most current information. Agents are advised to adopt printing technology that supports such a “print-on-demand” scenario.

24) INCLUSION OF ADDITIONAL PUBLICATIONS – NOAA publishes additional documents such as the “Distances Between U.S. Ports” which are related to navigation.

Should NOAA decide to distribute those documents through Publishing Agents, this Agreement is deemed to include the authority to publish said documents although additional or different technical specifications may apply.

ACCEPTANCE BY AGENT

I agree to become an authorized NOAA United States Coast Pilot® Publishing Agent, and accept and will adhere to the foregoing terms.

Signed (for the Agent) Date

Printed Name:

Business Name:

Address:

Phone: ___________________________ Fax: ________________________________ E-mail:___________________________ Website: ______________________________

ACCEPTANCE BY NOAA

_______________________________ is accepted as an authorized United States Coast Pilot® Publishing Agent.

Director, Office of Coast Survey, NOS, NOAA Date

Printed Name:

Address:

Phone: ___________________________ Fax:__________________________________ E-mail:____________________________________

NOAA Coast Pilot Publishing Specifications and Standards

A sample Coast Pilot may be obtained from NOAA for use as a comparison standard.

All Coast Pilots produced to meet these Standards and Specifications shall be comparable or better than this comparison standard, and in all respects shall be suitable for their intended purpose.

1) Manufacture the Coast Pilots by faithfully printing the NOAA Coast Pilot digital files exactly as they are provided by NOAA and without modification.

2) In the event that some assembly of Coast Pilot pieces is required, the assembly instructions provided by NOAA shall be followed exactly.

3) Only the most recent NOAA Coast Pilot digital files made available by NOAA shall be used to print Coast Pilots.

4) The NOAA Coast Pilots shall be printed on Agent-selected, NOAA-approved papers.

5) Coast Pilots shall be legible and readable by a person with normal vision under lighting conditions comparable to the bridge of a ship.

6) The colors shall be those specified or approved by NOAA and shall not be discernibly different from the colors in the NOAA-provided comparison standard.

7) Agent shall retrieve new NOAA Coast Pilot digital files from NOAA whenever copies are to be printed.

8) Updates to Coast Pilots provided by NOAA shall be made readily available to Agents’ customers in a timely manner.

9) Agent printing the Coast Pilot shall identify themselves and provide contact information on each volume printed.

10) Coast Pilots shall be shipped within two business days of receipt of an order.

11) Quality shall be suitable for the intended use and shall be comparable to the comparison standard provided by NOAA.