HomeMy WebLinkAboutContract 40522 (3)CONTENTdm® END USER LICENSE AGREEMENT
IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY. YOUR USE OF THE SOFTWARE IS CONDITIONED
UPON YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, BY USING THIS
SOFTWARE, YOU ARE AGREEING TO BE LEGALLY BOUND BY ALL THE TERMS AND CONDITIONS OF THIS
AGREEMENT, IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT INSTALL OR USE THE
SOFTWARE,
THIS AGREEMENT SETS FORTH THE ENTIRE AGREEMENT AND SUPERSEDES ANY AND ALL PRIOR PURCHASE
ORDERS, ACKNOWLEDGMENTS, AGREEMENTS, AND ORAL OR WRITTEN COMMUNICATIONS OR
UNDERSTANDINGS OF THE PARTIES REGARDING THE USE OF CONTENTdm SOFTWARE. OCLC RESERVES
THE RIGHT TO MAKE CHANGES OR ADDITIONS TO THESE TERMS AT ANY TIME, AND SHALL NOTIFY LICENSEE
BY POSTING THE CHANGES ON THE OCLC WEBSITE, WWW.00LC.ORG, ANY SUCH CHANGES OR ADDITIONS
SHALL GOVERN OVER THE TERMS AND CONDITIONS OF THIS EULA.
1. DEFINITIONS.
A. "Software" means the suite of computer programs known
as CONTENTdm made by OCLC, together with embedded user
documentation, related documentation or other materials
delivered by OCLC to Licensee, and all error corrections,
enhancements, upgrades, and new or major releases to or of
such computer programs made available to Licensee by OCLC.
The term Software also includes Adobe products and related
documentation, and any upgrades, modified versions, updates,
additions, and copies thereof.
B. "Multi -Site Server" means the computer program known
as the CONTENTdm MUlti-Site Server made available by OCLC,
together with embedded user documentation, related
documentation or other materials, and all error corrections,
enhancements, upgrades and new or major releases to or of such
computer program made available to Licensee by OCLC.
C. "Licensee" refers to the individual or entity that obtains
the Software from OCLC. Licensee can install the Software on a
server owned or controlled by Licensee and can access the
Software from such server for purposes authorized by these
Terms. Licensee's Collections reside on the server owned or
controlled by Licensee and may be accessed from such server by
End Users to the extent authorized by Licensee. Licensee may
alternatively choose to obtain a hosted license, and in such case
the Software will reside on a server owned and controlled by
OCLC.
D. "Collections" means digital collections of Items.
E. "Item" means a single file in formats specified as
acceptable by OCLC which is described by one Collection
Record.
F. "Collection Metadata" means descriptive, administrative,
and technical information relating to an Item.
G. "Collection Record" means a set of Collection Metadata
elements presented in a format prescribed by OCLC that provides
information about an Item and a link to the relevant Item.
H. "Authorized User" means an employee, agent or
authorized representative of Licensee who is responsible for
undertaking activities related to Licensee's Collections
I. "Third -Party" means an organization which has
authorized Licensee to use the Software to access and display
the Third-Party's Collection(s) to End -Users.
J. "End -User" means any individual authorized by Licensee
to access, view and/or use Licensee's Collections and/or, if
applicable, Third -Party Collections�ORD
.:
CITY SECRETARY
ii �T. �11ORTH, TX
K. Licensee's use of the software it has licensed from
OCLC is subject to the following terms and conditions (the
"Terms"). OCLC reserves the right to determine whether a
prospective Licensee is eligible to make use of the Software and
to refuse to license such software to any party for any reason in
OCLC's sole discretion.
2. LICENSE TO USE THE SOFTWARE.
A. Subject to these Terms, OCLC grants Licensee a
nonexclusive, nontransferable license to install and/or use the
Software, in object code form only, solely for the following
noncommercial purposes: (i) preparing, creating, developing,
archiving, enabling access to, displaying, publishing, and
managing Collections and Collection Metadata; (ii) creating
Collection Records (or other acceptable metadata) for the Items
in Licensee's Collections; and (iii) providing End -Users with
access to Licensee's Collections and Collection Metadata for
searching, viewing, and use to the extent authorized by Licensee.
Use of the Software on behalf of Licensee is restricted to
Authorized Users.
B. OCLC grants Licensee the following rights to the
Software licensed by Licensee as indicated on the Order Form:
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(i) Software (Primary Server). Subject to these Terms
anA except as provided in Sections 2.0(ii) and 2.0(iii)
and 2.13 (v) below, OCLC grants Licensee a
nonexclusive, nontransferable license to install the
Software (Primary Server) on a single server owned or
controlled by Licensee or maintained by OCLC, or an
independent ISP and use the Software (Primary
Server), in object code form only, solely for the following
noncommercial purposes specified in Section 2.A(i), (ii)
and (iii) above. Use of the Software (Primary Server) on
behalf of Licensee is restricted to its Authorized Users.
Software (Development Server). Applies to licenses of
the Software designated on the Order Form as
Development Server licenses. Subject to these Terms,
OCLC grants Licensee a nonexclusive, nontransferable
license to install the Software (Development Server) on
a single server owned or controlled by Licensee or
maintained by OCLC, or an independent ISP and use
the Software (Development Server), in object code form
only, solely for the internal, noncommercial purposes of
creating and testing new Collections, interfaces and
web site functionality in preparation for making such
Collections, interfaces and functionality available to
End -Users. Use of the Software (Development Server)
on behalf of Licensee is restricted to its Authorized
Users, The Software (Development Server) may not be
06-�8-10 P03:Z0 IN
CONTENTdm® End User License Agreement
04/02/2009
accessible to End -Users. The Software (Development
Server) does not provide Licensee with additional
Project Clients.
Software (Cold Server). Applies to licenses of the
Software designated on the Order Form as Cold Server
licenses. Subject to these Terms, Licensee may install
the Software (Cold Server) on a single server owned or
controlled by Licensee or maintained by OCLC, or an
independent ISP but not available to any user on the
network unless there is a failure of the primary server
on which Licensee is running the Software. In the event
of such primary server failure, OCLC grants Licensee a
nonexclusive, nontransferable license to use the
Software (Cold Server) solely for the noncommercial
purposes specified in Section 2.A (i), (ii) and (iii) above.
The Software (Cold Server) may be used for such
purpose only for the duration of the failure of the primary
server on which Licensee was running the Software.
The Software (Cold Server) license does not authorize
use of the Software on the cold server when the
Software is capable of being run on Licensee's primary
server. Use of the Software (Cold Server) on behalf of
Licensee is restricted to its Authorized Users. The
Software (Cold Server) does not provide Licensee with
additional Project Clients.
(iv) Multi -Site Server. Subject to these Terms, OCLC
grants Licensee a nonexclusive, nontransferable license
to install the Multi -Site Server on a single server owned
or controlled by Licensee or maintained by OCLC, or an
independent ISP. Once installed, the Multi -Site Server
may be used by Licensee, in object code form only,
solely for the following non-commercial purposes: (i)
harvesting Licensee and Third -Party Collections and
associated Collection Records; and (ii) providing End -
Users with access to Licensee and Third -Party
Collections and associated Collection Records. Use of
the Multi -Site Server on behalf of Licensee is restricted
to its Authorized Users.
(v) Quick Start (Subscription License): Applies to
licenses as designated on the Order Form as Quick
Start Subscription Licenses, including the license
provided via the OCLC FirstSearch® Base Package
Subscription. Subject to these Terms, OCLC grants
Licensee a nonexclusive, nontransferable right to
subscribe to a hosted version of CONTENTdm. Quick
Start subscriptions will be hosted on a server owned
and maintained by OCLC. Under the Quick Start
Subscription license, Licensee is supported for up to
3,000 collection items hosted by OCLC, and permitted
to use up to three (3) Project Clients. Licensees
selecting the Quick Start Subscription Model must
renew the License annually or will have the option to
upgrade to another license level to accommodate its
needs. Quick Start Licensees do not acquire ownership
rights in the CONTENTdm Software,
C. Licensee acknowledges that use of certain future
Software functionality which is currently planned for development
may be conditioned upon its payment of additional fees,
submission of additional ordering information and/or agreement to
additional terms and conditions prescribed by OCLC.
D. Licensee's license to use the Software may be a Hosted
License or allon-Hosted License. Hosting Services provided by
OCLC (and additional terms and conditions applicable thereto)
are as set forth in a separate hosting agreement.
E. Licensee acknowledges that Adobe is the owner of
certain proprietary information and intellectual property rights
included in the Adobe Products and the Documentation. Adobe is
a third party beneficiary entitled to enforce OCLC's rights and
Licensee's obligations hereunder and to seek appropriate legal
and equitable remedies, including but not limited to, damages and
nctive relief, for Licensee's breach of such obligations.
3. USAGE RESTRICTIONS.
A. The Software (Primary Server) consists of the
applications listed below. As noted in Section 2 above, Software
(Development Server) licenses and Software (Cold Server)
licenses do not provide additional Project Clients.
(i) Server Sofiware. The Server Software is used for
preparing, creating, and developing Licensee's Collections and
for testing completed Collections prior to making them available
for access by End -Users. Licensee will make the Server
Software accessible only to Authorized Users. Licensees may
all the Server Software on only one (1) server.
(ii) Project Client Software.
(a) The Project Client Software includes the JPEG2000 Extension
and may be installed and used on the number of workstations as
permitted under the level of CONTENTdm license purchased by
Licensee (currently 3 for Quick Start, 50 for Level 1, 52 for Level
2, and 54 for Level 3 Licenses) and connected to the server on
which the Server Software has been installed.
(b) The Project Client Software with the OCR Extension /if
ordered by Licensee) may be installed and used on one (1)
workstation connected to the server on which the Server Software
has been installed per license purchased.
(iii) Collection Web Site. There is no limit as to the
number of concurrent users who may view Licensee's collections
via the Web interface.
B. OCLC and its licensors reserve all rights in and to the
Software not expressly granted to Licensee by these Terms. No
title to or ownership of the Software or any proprietary rights
related to the Software is transferred to Licensee by these Terms.
CONTENTdm is a registered trademark of OCLC Online
Computer Library Center, Inc. Adobe and Adobe PDF Library are
either registered trademarks or trademarks of Adobe Systems
Incorporated in the United States and/or other countries.
Licensee agrees not to (a) use the Software for any purpose or in
any manner other than authorized by these Terms; (b) host the
Software for a fee for any third -party without explicit permission
from OCLC; (c) distribute, lend, license, rent, or otherwise transfer
the Software; (d) reverse engineer, disassemble, or decompile
the Software or otherwise attempt to discover or recreate the
source code to the Software; (e) make any modification,
adaptation, improvement, enhancement, translation, or derivative
work of or to the Software; (g) remove, alter, or obscure any
proprietary notices (including copyright notices) of OCLC or its
licensors contained in the Software; (h) use the Software for
purposes for which it is not designed; and (i) exceed the
maximum number of Items in its Collections for which it has paid
the applicable license fee. Licensee shall comply with all
applicable laws, rules, regulations, orders, and other
requirements, including U.S. export control laws, in its use of the
Software.
4. ITEMS IN COLLECTIONS,
A. Licensee recognizes that Items may be subject to third -
party copyright and/or other proprietary rights, and will manage
End -User Access to such Items accordingly. Licensee agrees to
be responsible for complying with the requirements of all
applicable copyright laws and other laws applicable to any
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CONTENTdm@ End User License Agreement
04/02/2009
proprietary material contained in Items in Licensee's Collections
to the extent necessary for Licensee's lawful use of the Software.
By including an Item in its Collections, Licensee represents and
warrants to OCLC and its licensor that it has complied with the
foregoing sentence with respect to such Item. In the event of a
claim that any Item in Licensee's Collections violates any third -
party copyright or other proprietary right, Licensee agrees to
immediately suspend End -User Access to such Item pending
resolution of such claim. OCLC will promptly inform Licensee of
any claim of infringement related to an Item in Licensee's
Collections of which OCLC becomes aware.
B. Licensee hereby grants to OCLC the perpetual,
irrevocable, non-exclusive, royalty -free, sublicenseable,
transferable, world-wide right to use, copy, display, publish,
prepare derivative works from and distribute the Collection
Records and any Collection Metadata corresponding to Items in
Licensee's Collections and Third -Party Collections (if applicable)
(including derivative works made from each) when collections are
registered and harvested with WorldCat.
C. Notwithstanding any terms in this Section to the
contrary, Licensee and Third -Parties retain all respective
ownership and all other rights in and to the Items in their
respective Collections.
D. Licensee warrants that it has (and, for Third -Party
Collections made accessible after the effective date of this
Agreement, will promptly obtain from Third -Parties) the rights
necessary to make the license grants to OCLC set forth in this
Section 4.
5. DELIVERY OF OR ACCESS TO THE SOFTWARE.
A. The Software will be delivered to Licensee in CD-ROM
formatI or by direct network download.
B. Licensee is responsible for arranging for and providing, at its
expense, the Internet and telecommunications connections, computer
hardware and other equipment necessary to access and make use of
the Software.
6. MAINTENANCE AND SUPPORT SERVICES.
All commercial users of the Software shall pay the current
maintenance and support fees for the first one (1) year of service. All
non-profit users shall be provided with one (1) year of maintenance
and support services at no additional charge for initial license of the
Software beginning on the date OCLC delivers the Software to the
non-profit user. Thereafter, for both commercial and non-profit users,
maintenance and support services will automatically renew annually for
additional successive one (1) year terms at OCLC's then -current
maintenance and support fees, and Licensee will be invoiced
accordingly, unless either OCLC or Licensee terminates maintenance
and support services effective at the end of the then -current one-year
(1-year) term upon notice given not less than thirty (30) days prior
thereto or terminates this Agreement as permitted by its terms.
Maintenance and support services are further described in the Annual
Maintenance Agreement, which is hereby made a part of these Terms.
This Section 6 does not apply to Licensees who use a Quick Start
License provided in conjunction with a FirstSearch Base Package
Subscription, Base Package Subscribers wIl receive standard
maintenance and support services so long as the Subscriber maintains
a current FirstSearch Base Package Subscription,
7. FEES.
Within thirty (30) days after invoice, Licensee shall pay the
applicable license fees, maintenance and support fees and
Hosting Services fees for the Software. Such fees shall be paid
in U.S. dollars (or such other currency as OCLC may agree in
writing is acceptable) at the address stated on the invoice. Fees
specified under these Terms are exclusive of any taxes. If OCLC,
or the entity through which OCLC invoices Licensee, is required
to collect a tax payable by Licensee, Licensee shall pay such tax
to OCLC or such entity, as appropriate, on demand. Licensees
claiming exemption from taxation shall supply a valid exemption
certificate upon request. Licensee's failure to fully pay any fees
and taxes within thirty (30) days after the applicable due date will be
deemed a breach of this Agreement, justifying OCLC's suspension
of services for which payment is overdue. Accounts in default are
subject to an interest charge on the outstanding balance equal to
the lesser of 1.5% per month or the maximum rate permitted by
applicable law. This Section 7 does not apply to a Licensee that
obtains and uses a Quick Start License in conjunction with its
FirstSearch Base Package Subscription.
8. WARRANTIES AND LIMITATION OF LIABILITY.
A. OCLC warrants to Licensee that it possesses all rights
necessary to grant Licensee a license to use the Software in
accordance with these Terms and applicable documentation. In the
event of any daim that such use violates any third -party copyright or
other intellectual property right, OCLC's liabilities and Licensee's
remedies shall be as provided in Section 9 below.
B. OCLC warrants that, when operated in accordance with
the documentation accompanying the Software and other
instructions provided by OCLC, the Software will be capable of
performing substantially in accordance with the functional
specifications set forth in such documentation.
C. OCLC warrants that maintenance and support services
will be performed in a competent, workman -like manner.
D. If the Software fails to comply with the warranty set forth
in Section 8.B, OCLC will make reasonable efforts to correct the
noncompliance (e.g., by furnishing a correction, modification or
update); provided that: (a) OCLC is notified of the noncompliance
within thirty (30) days after the date OCLC delivers the
noncompliant Software to Licensee; and (b) OCLC is able to
reproduce the noncompliance. If, after the expenditure of
reasonable efforts, OCLC is unable to correct any such
noncompliance, OCLC will refund to Licensee all or an equitable
portion (based on the Licensee's actual use of the relevant
Software and other pertinent factors) of the license fees paid to
OCLC for the noncompliant Software in full satisfaction of claims
relating to such noncompliance. OCLC's sole liability and
Licensee's sole and exclusive remedies for breach of the
warranty in Section 8.6 above are as forth in this Section 8.D.
Except for the foregoing limited warranty, Adobe and its Suppliers
make no warranty, express or implied, as to merchantability, or
fitness for a particular purpose, or non -infringement. In no event
will Adobe or its Suppliers be liable to Licensee for any
consequential, incidental or special damages, including any lost
profits or savings, even if an Adobe representative has been
advised of the possibility of such damages, or for any claim by
any third party. Some state or jurisdictions do not allow the
exclusion or limitation of incidental, consequential or special
damages, or the exclusion of implied warranties, or limitations on
how long an implied warranty may last, so the above limitations
may not apply to Licensee. To the extent permissible, any
implied warranties are limited to thirty (30) days. This warranty
gives Licensee specific legal rights. Licensee may have other
rights which vary from state to state or jurisdiction to jurisdiction.
E. EXCEPT AS EXPRESSLY PROVIDED IN THESE
TERMS, OCLC DISCLAIMS ALL WARRANTIES, WHETHER
EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR ANY PARTICULAR
PURPOSE AND ANY IMPLIED WARRANTY ARISING FROM
COURSE OF PERFORMANCE, COURSE OF DEALING, OR
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CONTENTdm® End User License Agreement
04/02/2009
USAGE OF TRADE, AS TO: (A) THE SOFTWARE; (B) THE
SECURITY, CONTENT OR NONINFRINGEMENT OF ITEMS
CONTAINED IN COLLECTIONS; (C) THE RESULTS OF ANY
PROJECT UNDERTAKEN USING THE SOFTWARE; (D)
PEFORMANCE OF MAINTENANCE AND SUPPORT
SERVICES; AND (E) OCLC'S SYSTEMS AND PERFORMANCE
OF HOSTING SERVICES.
F. OCLC WILL HAVE NO LIABILITY (WHETHER IN
CONTRACT, WARRANTY, TORT, NEGLIGENCE, OR
OTHERWISE) FOR ANY DAMAGES ARISING FROM
LICENSEE'S USE OF THE SOFTWARE OTHER THAN AS
AUTHORIZED BY THESE TERMS, USE OF COLLECTIONS BY
END -USERS OR LICENSEE'S INABILITY TO ACCESS AND
USE THE SOFTWARE DUE TO CIRCUMSTANCES BEYOND
OCLC'S REASONABLE CONTROL. IN NO EVENT SHALL
OCLC BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, LOSS OF
DATA OR INFORMATION OF ANY KIND; LOST PROFITS,
SAVINGS OR BUSINESS; OR ANY COST OF PROCURING
SUBSTITUTE GOODS, HOWEVER CAUSED, WHETHER
CLAIMED UNDER CONTRACT, TORT OR ANY OTHER LEGAL
THEORY AND WHETHER OR NOT OCLC WAS AWARE OF
THE POSSIBILITY THEREOF, EXCEPT IN CONNECTION
WITH THEIR INDEMNITY OBLIGATIONS UNDER THESE
TERMS, IN NO EVENT WILL OCLC'S TOTAL AGGREGATE
LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE
SOFTWARE OR THIS AGREEMENT EXCEED THE LICENSE
FEES OR MAINTENANCE AND SUPPORT FEES FOR THE
RELEVANT SOFTWARE (WHICHEVER CORRESPONDS TO
THE SOURCE OF THE CLAIM) PAID BY LICENSEE UNDER
THIS AGREEMENT, THE FEES SET BY OCLC HEREUNDER
HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THE
ALLOCATION OF RISK REFLECTED IN THIS AGREEMENT,
G. Any disclaimers, releases, indemnities and other
provisions for the exclusion or limitation of OCLC's warranty and
other potential liabilities will likewise exclude or limit the potential
liabilities of its licensor, OCLC.
9. THIRD -PARTY CLAIMS,
A. OCLC, at its own expense, shall defend any action
brought against Licensee, to the extent that it is based on a claim
that use of the Software in accordance with these Terms and
applicable documentation infringes a United States copyright or
other United States intellectual property right and shall indemnify
and hold Licensee harmless from any liability for damages,
reasonable attorneys' fees and other payments ordered by a
court as a result of such a claim or resulting from the settlement
thereof, provided Licensee notifies OCLC promptly in writing of
the claim and OCLC has sole control of the defense of the claim
and all negotiations for its settlement or compromise. Licensee
shall have the right to appoint an attorney to participate in such
defense on behalf of Licensee, at Licensee's expense, provided
that such participation shall not derogate from OCLC'S sole
control of the defense and negotiations for settlement or
compromise of the claim. In the event that the Software
becomes, or OCLC is advised by counsel that it is likely to
become, the subject of an infringement claim, OCLC may, at
OCLC's option, either secure for Licensee the right to continue
using the Software, replace or modify the Software to make it
noninfringing, or if none of the foregoing alternatives is
reasonably available, discontinue provision of the potentially
infringing Software. In the event of such discontinuation,
Licensee shall be entitled to a prorata refund of the license fees
and maintenance and support fees paid, if any, for the
discontinued Software. OCLC shall not have any liability for any
claim of infringement to the extent based on the Items in
Collections or the unauthorized alteration of Software by
Licensee, a Third -Party or their respective agents or contractors.
THE FOREGOING STATES THE ENTIRE LIABILITY OF OCLC,
AND LICENSEE'S SOLE REMEDY WITH RESPECT TO
INFRINGEMENT OF RIGHTS BY THE SOFTWARE.
B. To the extent permitted by the laws of the State in which
Licensee is located, Licensee agrees to be responsible for all
claims, damages, liabilities, costs and expenses (including
reasonable attorneys' fees) and other payments arising or
resulting from: (i) Licensee's breach of its warranties made in
these Terms; (ii) Licensee's failure to comply with or fulfill its
obligations under these Terms; or (iii) Items in Licensee's or a
Third-Party's Collections, or their access or use by End -Users.
C. Notwithstanding anything in this Agreement to the
contrary, OCLC's obligation to indemnify Licensee shall not
extend to claims, damages, liabilities, costs and expenses
(including reasonable attorneys' fees) or other payments arising
or resulting from: (i) Licensee's breach of the warranties it has
made in these Terms; (ii) any failure of Licensee to fulfill its
obligations under these Terms; or (iii) Items in Licensee's or
Third -Party Collections, or their access or use by End -Users.
10. TERM AND TERMINATION.
A. Licenses will commence upon delivery of the
Software to Licensee and will continue indefinitely unless and
untiI terminated by Licensee or OCLC in accordance with this
Section 10.
B. Licensee may terminate its license rights under
these Terms, without cause, at any time by notice to OCLC,
provided that in the event of such termination, any license fees
previously unpaid or then owed shall become immediately due
and payable and Licensee shall not be entitled to a refund of any
license fees.
C. In the event of material breach of these Terms, the
nonbreaching party may, in addition to any other remedies that it
may have, at any time terminate this Agreement by at least thirty
(30) days prior notice to the breaching party specifying any such
breach, unless within the period of such notice all breaches
specified therein have been remedied.
D. In the event of a termination pursuant to this
Section 10, Licensee shall discontinue use of the Software and
destroy all originals and copies of the Software in its possession.
E. The following Sections of these Terms shall survive
expiration or termination for any reason: 4, 8, 9, 10.D, 10.E and
11.
11. MISCELLANEOUS PROVISIONS.
A,d SU.S. Government Rights. If acquired by an agency of the
Unitetates government, the Software is provided with Restricted
Rights, and use is subject to restridions as set forth in 48 CFR 52.227-
14, DFARS 252.227-7014, and other applicable clauses. The
contractor/manufacturer is OCLC Online Computer Library Center,
Inc., 6565 K ilgour Place, Dublin, OH 43017
B. Neither these Terms nor any rights hereunder, in whole or in
part, shall be assignable, sublicenseable or otherwise transferable by
Licensee by operation of law or otherwise, without the prior written
consent of OCLC. OCLC may transfer or assign this Agreement or any
rights or obligations under this Agreement to any of its affiliates or any
entity which gains a majority interest in its assets upon thirty (30) days'
written notice to Licensee. Any other transfer or assignment without
Licensee's written consent is prohibited. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
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CONTENTdm@ End User License Agreement 04/02/2009
C. These Terms, including all Attachments hereto, are the Package Subscription, shall be entitled to receive the maintenance
complete and exclusive statement of the agreement between the and support services described in Section 1 below, subject to the
parties concerning the subject matter hereof and may not be amended provisions of this Agreement and the maintenance and support -
except by the written agreement of the parties. Any terms set forth on related provisions of the OCLC CONTENTdm® End User License
any Licensee purchase order or ordering document will not apply and Agreement.
are superseded by these Terms.
D. No waiver of any right or consent to any breach hereunder 1 Maintenance and Support Services
shall be effective unless in writing and signed by the party claimed to A. E-Mail & Telephone Support. OCLC will provide basic
have waived or consented. No waiver of any right or consent to any e-mail and telephone support between the hours 8am to
breach shall constitute a waiver of any other right or consent to any 6pm Pacific Time, exclusive of weekends and OCLC-
other breach, recognized holidays, to permit the System Administrator
E. This Agreement shall be governed by and construed in to report Errors and seek assistance in the installation
accordance with the laws of the State of Texas and the United States and use of the Software. OCLC may (but is under no
of America without regard to principles of conflicts of law, and venue for obligation to) provide additional e-mail and telephone
support above the basic e-mail and telephone support
all actions shall lie in the state or district courts of Tarrant County, described in the foregoing sentence.
Texas. However, in any dispute in which Licensee deems Adobe a
properly named party, this Agreement will be governed by and B. Error Corrections. OCLC will use reasonable efforts to
construed in accordance with the substantive laws in force in the make Error Corrections in response to Errors reported to
state of California and the courts of Santa Clara County, OCLC by Licensee's System Administrator in
California shall have non-exclusive jurisdiction over any such accordance with this Agreement.
dispute. The United Nations Convention on Contracts for the C. Updates. OCLC may from time to time issue Updates.
International Sale of Goods or any successor thereto does not apply to OCLC will provide Licensee with one copy of each such
this Agreement.
Update free of charge for each copy of the Software
F. Any notice of breach or termination under this Agreement shall covered under this Agreement. OCLC will provide
be in writing, signed by the party giving notice, and shall be deemed reasonable assistance via basic e-mail and telephone
properly given three (3) days after delivery into the mail of the country support to help Licensee install and use each Update.
of the party giving notice, postage prepaid, registered or certified D. Extensions. OCLC may from time to time offer
return -receipt -requested, or next day upon delivery to an established Extensions. To the extent OCLC offers such Extensions,
international courier (i.e., Federal Express, DHL, UPS), with a signature Licensee may obtain one (1) copy of each Extension for
acknowledging receipt required, to the parties at the addresses set each copy of the Software covered under this
forth on the accompanying order form. Agreement at the then -current list price.
G. Neither party shall be liable for any failure or delay in
performance under this Agreement (other than a delay in the payment E. Additional Services. will provide Licensee with
of money due and payable hereunder) to the extent said failures or such additional servicess in n connection with the Software
delays are proximately caused (a) by causes beyond that party's to may be agreed upon in writing the parties, subject
reasonable control and occurring without its fault or negligence, or (b) to payment of OCLC
by the failure of the other party to substantially meet its performance services and reimbursement of OCLC's reasonable and
then-currentt fees for the relevant
obligations under this Agreement, provided that, as a condition to the necessary expenses incurred during performance
claim of nonliability, the party experiencing the difficulty shall give the thereof. Additional services may include design,
other party prompt written notice, specifying the cause of the delay, development, training, support, and consulting,
following the occurrence of the cause relied upon. 2. Licensee's Responsibilities
H. The provisions of this Agreement are to be deemed severable, A. Licensee shall read and follow the instructions set forth
and the invalidity or unenforceability of any provision shall not affect or in the documentation for the Software.
impair the validity of the remaining provisions. In substitution for any
provision held unlawful, there shall be substituted a provision of similar B. Except for maintenance and support services to which it is
import reflecting the original intent of the parties hereto to the extent entitled hereunder, Licensee will provide all hardware,
permissible under law. This Agreement shall not prejudice the software, services, and other items necessary to use the
statutory rights of any party dealing as a consumer. Software.
1. All use of the Software shall be in full compliance with U.S. C. Licensee shall designate an Authorized User to oversee and
export regulations. Licensee shall serve as the importer and exporter of coordinate its use of the Software who is knowledgeable
record for Software delivered to it by OCLC or accessed by it from about the Software and the hardware on which it is
outside the U.S., by electronic means or otherwise, and shall pay installed and running. The designated Authorized User (the
and/or comply with all applicable export and import laws, customs, "Primary Contact") shall act as Licensee's contact person for
regulations, tariffs, duties, and fees, and procurement, data and all communications with OCLC. All information, Error
technology transfer laws Corrections, Updates, Upgrades, documentation and
materials provided to Licensee by OCLC during the
performance of maintenance and support services under this
Agreement shall be sent to the Primary Contact. Licensee is
ANNUAL MAINTENANCE AGREEMENT responsible for supporting other Authorized Users (besides
TO the Primary Contact) and its End Users.
CONTENTdm® END USER LICENSE AGREEMENT D. Licensee will promptly report to OCLC all Software
problems or Errors, by telephone or e-mail (as permitted by
Licensees possessing CONTENTdm Licenses who have paid OCLC) and, at Licensee's option, by written report.
applicable maintenance and support fees, or are entitled to
maintenance and support as included under a FirstSearch Base
Page
5of7
CONTENTdm@ End User License Agreement
04/02/2009
E. In accordance with Licensee's System Access POlicy,
Licensee agrees to provide OCLC with access to and use of
all system facilities OCLC reasonably determines are
necessary to provide timely maintenance and support
services pursuant to this Agreement and will provide such
information and data as OCLC reasonably requests in
order to provide such services. OCLC agrees to use
commercially reasonable efforts, and Licensee agrees to
take necessary precautionary steps, to ensure the integrity of
Licensee's systems.
F. Licensee shall take remedial corrective action, if necessary,
upon recommendation of OCLC . Accordingly, Licensee
shall promptly install Error Corrections, Updates and
Upgrades delivered to Licensee.
G. Licensee shall promptly destroy, or at OCLC's option return,
all prior versions of the Software after new versions have
been installed.
3. Limitations
Unless otherwise agreed upon in writing by OCLC, maintenance
and support services will not include the following:
• Installation, relocation or removal of the Software at or
from Licensee's site;
• On -site services, except as otherwise requested
pursuant to Section 4 herein;
E-mail or telephone support outside of normal business
hours;
Electrical, mechanical, or other work involving
Licensee's hardware, accessories, or other devices
associated with the use of the Software;
• Any maintenance or support involving Licensee's
hardware or telecommunications network, or third -party
software; or
• Maintenance and support services to parties other than
Licensee.
In addition, OCLC shall not be obligated to provide
maintenance and support services in the event of:
• Misuse of the Software;
• Alterations or modifications to the Software which are
not made or authorized by OCLC;
• Use of the Software with items other than the hardware
anA operating system software with which the Software
is designed to be used as indicated in Software
documentation;
• Use of the Software other than as permitted by
Licensee's license agreement with OCLC;
• Errors or other problems whose primary cause is a
malfunction or failure of any hardware or software not
furnished by OCLC or not currently covered by this
Agreement;
• Errors, defects, deficiencies or malfunctions caused by
programs, products or data of Licensee used in conjunction
with the Software; or
• Licensee's failure to follow the instructions and procedures
for installing, using or maintaining the Software set forth in
Software documentation.
OCLC is not responsible for correcting Errors if Licensee fails to
implement any Error Corrections, Updates or Upgrades within
ninety (90) days after the same are delivered to Licensee.
4. On -Site Maintenance and Support
OCLC shall dispatch personnel to Licensee's facilities for on -site
support only in situations in which Licensee requests on -site
service and OCLC agrees to provide on -site support in a separate
written agreement. On -site support shall be subject to availability
of OCLC personnel. Licensee shall pay for all reasonable
expenses incurred by OCLC personnel in connection with on -site
support, including travel expenses, travel time to and from OCLC,
and board and lodging. On -site support shall be billed at OCLC's
then -current hourly rates. OCLC may also invoice Licensee monthly
for hourly charges and expense reimbursements due for the preceding
month.
5. Fees
As compensation for maintenance and support services provided
under this Agreement, Licensee shall pay the annual maintenance and
support fee in advance as invoiced, unless Licensee is entitled to
induded support and maintenance under a FirstSearch Base Package
Subscription. The Support Fee shall begin one (1) year following the
date OCLC delivers the Software to Licensee for all non-profit users. All
commercial users of the Software shall pay the current maintenance
and support fees, including for the first one (1) year of service. The
Support Fee may be increased by OCLC no more often than once per
annum, and each such increase shall not exceed the greater of: (a)
ten percent (10%) of the previous year's Support Fee, or (b) the
percentage increase in the U.S. Consumer Price Index for the prior
twelve-month (12-month) period. Increases in Support Fees shall be
effective for the following annual period. Other adjustments to Support
Fees necessitated by additional Software licenses ordered shall be
given effect on the first day of the month following the date the parties
agree to such addition, typically on the primary license anniversary
date.
6. Reinstatement of Maintenance and Support Services
In the event that OCLC elects, at its option, to honor Licensee's request
for reinstatement of maintenance and support services allowed to
lapse by Licensee or terminated by OCLC as permitted by this
Agreement, OCLC shall be entitled to a reinstatement fee to be
determined by OCLC, covering the entire period of lapsed or
terminated services, in order for the level of maintenance and support
services to be reinstated for Licensee. OCLC shall have no obligation
to reinstate lapsed maintenance and support services.
7. Renewal and Termination
A. Maintenance and support services for Licensees shall
automatically renew annually unless renewal is declined
by Licensee in accordance Wth Section 7.13 below or by
OCLC upon at least thirty (30) days prior written notice
to Licensee.
B. No less than sixty (60) days prior to the end of the
applicable annual maintenance and support period,
OCLC will notify each Licensee by electronic mail
message or regular mail that its maintenance and
support services will automatically renew at the end of
the current annual maintenance and support period. If
such a Licensee notifies OCLC, in writing, at least thirty
(30) days prior to the renewal date that it does not wish
to renew its maintenance and support services, the
Licensee's maintenance and support services will
terminate at the end of the current annual maintenance
and support period. If a Licensee does not provide
OCLC with such notice, the Licensee's maintenance and
support services will be renewed for a new annual
license period and the Licensee will be invoiced for then -
current applicable fees.
C. Should Licensee discontinue its support services within
thirty (30) days after its renewal date, OCLC will issue a
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CONTENTdm® End User License Agreement
04/02/2009
refund for the cancelled services. OCLC will not issue a
refund or credit for support services that are cancelled
more then thirty (30) days after Licensee's renewal date.
D. If either party fails to fulfill one or more of its obligations
under this Agreement, the nonbreaching party may,
upon its election and in addition to any other remedies
that it may have, at any time, terminate maintenance and
support services hereunder with at least thirty (30) days
notice to the breaching party. The notice must specify
the nature of the breach, unless within the period of such
notice all breaches specified therein shall have been
remedied. In the event of termination of maintenance
and support services by Licensee for breach of this
Agreement by OCLC, Licensee shall be entitled to a pro
rata refund of any prepaid Support Fees,
8. Definitions
A. "Error" means any failure of the Software to conform in
any material respect to its documentation, which failure
is verifiable and reproducible by OCLC.
FORT WORTH PUBLIC LIBRARY
By:
Title:
ASSISTANT CITY ATTORNEY
B. "Error Correction" means either a modification or
addition that, when made or added to the Software,
brings the Software into material conformity with its
documentation, or a procedure or routine that, when
observed in the regular operation of the Software, avoids
the practical adverse effect of such nonconformity.
C. "Update" means any modification, enhancement or
improvement to the Software that does not constitute
solely an Error Correction and is made generally
available by OCLC, without charge, under this
Agreement.
D. "Extensions" means any modification, enhancement or
improvement to the Software that does not constitute
solely an Error Correction and is made generally
available by OCLC, for an additional charge, under this
Agreement.
OCLC ONLINE COMPUTER LIBRARY CENTER, INC.
By:
Robin Murray
Vice President
Date: June 7, 2010
Page7of7
OCLC® Digital Archive Terms and Conditions
This order is subject to written acceptance by OCLC Online Computer Library Center, Inc. ("OCLC"). Subscriber's subscription
to the Archive is subject to the following terms and conditions (the "Terms") and the Documentation (as defined below). OCLC
reserves the right to determine whether a party submitting an order for a subscription to the Archive is eligible to make use of the
Archive, and to refuse to accept any such order for any reason in OCLC's sole discretion.
1. DEFINITIONS.
A. "Subscriber" means the library, information
agency (i.e., a historical society, archive,
museum or similar organization), publisher or
other institution subscribing to the Archive by
agreeing to these Terms, and submitting the
accompanying Order Form to OCLC.
B. "Authorized User" means an employee, agent or
authorized representative of Subscriber who is
responsible for undertaking activities related to
Subscriber's archiving of digital objects, or an
independent contractor retained by Subscriber
for such purpose who has agreed in a written
document provided to OCLC to be bound by
these Terms and to act in accordance with
Documentation.
Co "Archive Services" means the functionality,
services, processes and tools made available to
Subscriber hereunder by OCLC.
D. "Content Object" means one or more digital files
of determinate length.
E. "Subscriber's Content Objects" means those
Content Objects which Subscriber has selected
and submitted to the Archive through the use of
Archive Services. The term "Subscriber's
Content Objects" does not include those Content
Objects selected and submitted to the Archive
by other subscribers to the Archive.
F. "End -User" means any individual authorized by
Subscriber to view Subscriber's Content
Objects.
G. "Documentation" means information provided to
Subscriber from time to time by OCLC for
purposes of: (i) informing Subscriber about the
Archive and Archive Services, including
functionality, acceptable formats, applicable
procedures and other specifications; (ii)
instructing Subscriber regarding the use of the
Archive and Archive Services; and/or (iii)
establishing procedures and guidelines for the
use of the Archive and Archive Services, and the
orderly administration and operation of the
Archive.
H. "Ingest" means placing one or more of
Subscriber's Content Objects into the Archive.
I. "Dissemination" means making copies of
Subscriber's Content Objects and associated
metadata in the Archive available for use by
Subscriber and, to the extent determined by
Subscriber, End -Users.
J. "Bit Preservation" means the process of
maintaining Content Objects in the original
format in which they were Ingested into the
Archive.
2. RIGHT TO UTILIZE THE ARCHIVE.
A. Subject to these Terms, OCLC grants Subscriber
a nonexclusive, nontransferable and
nonassignable right to access and make use of
the Archive and Archive Services in accordance
with Documentation solely for the following non-
commercial purposes: (i) sending Content
Objects with associated manifests to OCLC for
Ingest and storage in the Archive, (ii) monitoring
the storage management of Subscriber's
Content Objects in the Archive by accessing
reports and requesting ad -hoc reports, (iii)
retrieving Subscriber's Content Objects from the
Archive (or otherwise enabling access to
Subscriber's Content Objects) via Dissemination
requests, and (iv) deleting Subscriber's Content
Objects from the Archive pursuant to deletion
requests to OCLC.
B. Use of Archive Services on behalf of Subscriber is
restricted to Authorized Users. Archive Services
will be made available to Subscriber as specified
in the Documentation and OCLC's then -current
published service descriptions applicable to the
Archive. Subscriber understands and agrees
that its access to and use of certain Archive
Services may be conditioned upon its payment
of additional fees, submission of additional
ordering information and/or agreement to
additional terms and conditions prescribed by
OCLC.
3. EVOLUTION OF THE ARCHIVE AND ARCHIVE
SERVICES.
A. For purposes of maintaining the integrity and
long-term accessibility of the Archive and
Subscriber's Content Objects stored therein,
OCLC will provide Bit Preservation services for
Subscriber's Content Objects in the Archive
upon Subscriber's payment of applicable service
fees. OCLC will take those measures
determined in OCLC's sole discretion to be
appropriate and practical to maintain
Subscriber's Content Objects in the original
format in which they were Ingested into the
Archive. Subscriber acknowledges that
Page 1 of 6
2008025
06-2$-10 P03:20 1N
maintaining Subscriber's Content Objects in the
igi
ornal format in which they were Ingested into
the Archive does not ensure that Subscriber's
Content Objects will remain able to be rendered
for viewing.
B. Subscriber understands that Archive Services
provide Subscriber with access to many
innovative processes and techniques. As such,
Archive Services may evolve over time.
Accordingly, OCLC may, within its sole
discretion: (i) modify, refine and/or change
Documentation and the specifications, features,
components and/or functionality of existing
Archive Services; (ii) make new Archive
Services available; and/or (iii) discontinue the
availability of Archive Services. OCLC shall
notify Subscriber of material modifications,
refinements and changes to Documentation and
Archive Services, new Archive Services and the
discontinuance of Archive Services by online
screen display, publication of revised
Documentation or service descriptions or by
such other means that OCLC determines is
reasonably appropriate to communicate the
changes to Subscriber. Any new Archive
Services made available by OCLC shall be
subject to these Terms and such additional
terms and conditions as OCLC may require. In
the event any such modification, refinement,
change or discontinuation materially reduces
Subscriber's rights with respect to the Archive,
OCLC will provide Subscriber with a prorata
refund of that portion of fees paid (excluding set-
up fees) allocable to the Archive Services so
affected that is proportionate to the degree
which Subscriber's rights therein have been
reduced; provided Subscriber requests such a
refund in writing within thirty (30) days after the
effective date of such modification, refinement or
change and provides reasonable justification for
such request.
L CONTENT OBJECTS.
A. Subscriber retains all ownership and (except for
the limited rights granted to OCLC by these
Terms) all other rights in and to Subscriber's
Content Objects.
B. Subscriber recognizes that Content Objects may
be subject to third -party copyright and/or other
proprietary rights, and will manage
Dissemination and End -User access to such
Content Objects accordingly. Subscriber agrees
to be responsible for complying with the
requirements of all applicable copyright laws and
other laws applicable to any proprietary material
contained in Subscriber's Content Objects to the
extent necessary for Subscriber's lawful use of
Archive Services. By submitting a Content
Object to the Archive, Subscriber represents and
warrants to OCLC that it has complied with the
foregoing sentence with respect to the Content
Object. In the event of a claim that any of
Subscriber's Content Objects violates any third -
party copyright or other proprietary right,
Subscriber agrees to immediately suspend
Dissemination and End -User access to such
Content Object pending resolution of such claim.
OCLC will promptly inform Subscriber of any
claim of infringement related to Subscriber's
Content Objects of which OCLC becomes
aware. In the event Subscriber does not fulfill its
obligation to suspend Dissemination and End -
User access to such Content Object within three
(3) days after learning of such a claim, OCLC
may block Dissemination and End -User access
to the relevant Content Object or remove it from
the Archive pending resolution of such claim,
out liability to Subscriber or any third -party,
and notwithstanding the procedures in the
Documentation. Subscriber agrees to attach
applicable copyright statements to Subscriber's
Content Objects made available to End -Users,
including any restrictions applicable to such
Content Objects which are different from or in
addition to those imposed by applicable
copyright law.
Solely for purposes of providing Archive
Services and Bit Preservation services to
Subscriber, Subscriber hereby grants to OCLC
the non-exclusive right to use, copy, display and
prepare derivative works from Subscriber's
Content Objects (including derivative works
made therefrom).
5. RESTRICTIONS ON USE OF THE ARCHIVE AND
ARCHIVE SERVICES.
A. Subscriber shall use the Archive and Archive
Services solely as authorized herein. Neither the
Archive nor any Archive Services may be
disclosed, reproduced, distributed or transmitted
in any form without the prior written consent of
OCLC except as expressly permitted by these
Terms. Neither the Archive nor any Archive
Services may be resold or transferred.
Subscriber shall not omit, obscure or hide from
any Authorized User or End -User any
disclaimers, proprietary rights notices or any
other terms and/or conditions intended to be
displayed to an Authorized User and/or End -
User by OCLC. Neither Subscriber nor
Authorized Users acquire ownership rights to the
Archive or the Archive Services.
B. Subscriber understands that the Archive is
maintained for the benefit of Archive users as a
whole with the goal of enhancing the long-term
accessibility of digital information. Accordingly,
Subscriber agrees to make only good faith use
of Archive Services in accordance with
Documentation and these Terms that
demonstrates respect for the rights of other
Archive users. Accordingly, Subscriber shall
Page 2 of 6
2008025
take no action or make any omission which one (1) terabyte of data within one (1) year
wastes, diminishes or causes harm to the from the date of Subscriber's initial Ingest
shared resources that make up the Archive. request. An additional Ingest fee is due for
6 AUTHORIZATIONS AND PASSWORDS. the right to Ingest each additional terabyte of
Upon acceptance of Subscriber's order, Subscriber will data and/or for the right to Ingest data in
be provided with an OCLC authorization number and each subsequent year. The Ingest fee also
password enabling Subscriber to access the Archive and includes the following services: (a) OCLC's
Archive Services. Subscriber is solely responsible for handling of incoming Subscriber's Content
maintaining the confidentiality of such authorization Objects; and (b) OCLC's monitoring of each
number and password, and for all use of the Archive batch of Subscriber's Content Objects
Services initiated by such authorization number and submitted for Ingest.
password. Subscriber shall promptly notify OCLC in (iii) Storage Fee: The storage fee is an annual
writing of lost or stolen passwords and authorization fee set at OCLC's then -current rates based
numbers. OCLC's sole obligation with respect to on the amount of data Subscriber stores in
passwords and authorization numbers shall be to exert the Archive. The storage fee includes
reasonable efforts to maintain the confidentiality of OCLC's ongoing maintenance and
Subscriber's passwords and authorization numbers in monitoring of the Archive and regular
OCLC's possession, and to terminate lost or stolen automated inspections of Subscriber's
passwords and authorization numbers upon receipt of Content Objects in the Archive. Reports of
Subscriber's notice. the results of the automated inspections of
7. FEES. Subscriber's Content Objects are
A. Subscriber shall pay to OCLC (or, if applicable, periodically made available to Subscriber.
Subscriber's regional service provider) the
applicable fees for Archive Services within thirty (iv) Dissemination Fee: Payment of the
(30) days after receipt of invoice. Fees shall be Dissemination fee gives Subscriber the right
paid in advance in U.S. dollars (or such other to request Dissemination of a maximum of
currency as OCLC may agree in writing is one (1) terabyte of data within one (1) year
acceptable) at the address stated on the invoice. from the date of Subscriber's initial
OCLC reserves the right to suspend availability Dissemination request. An additional
of the Archive and Archive Services to a Dissemination fee is due for the right to
delinquent account upon ten (10) days written request Dissemination of each additional
notice if such delinquency is not cured within the terabyte of data and/or for the right to
10 day cure period. Fees specified under these request Dissemination of data in each
Terms are exclusive of any taxes. If OCLC, subsequent year.
Subscriber's OCLC-affiliated regional service (v) Dissemination Media Fee: Subscriber is
provider or OCLC's authorized distributor is responsible for paying the cost of the disk
required to collect a tax payable by Subscriber,
Subscriber shall pay such tax to such party, as drive(s) that OCLC must purchase to fulfill
appropriate, on demand. Subscribers claiming Subscriber's Dissemination requests and
shipping the disk drive(s) to Subscriber.
exemption from taxation shall supply a valid
exemption certificate upon request. C. OCLC may increase or otherwise change the fees
B. Fees for Archive Services may include the payable by Subscriber for Archive Services
following: and/or modify the fee structure and/or the
methods of charging described above effective
(i) Set -Up Fee: Set-up includes creating a new for Subscriber's next annual renewal period
Subscriber account in the Digital Archive upon not less than sixty (60) days prior written
and working with the Subscriber to arrange notice to Subscriber. Such notice may be given
workflow details for packaging and delivery to Subscriber as a part of and by the same
of Subscriber's Content Objects for loading methods permitted for notice of renewal
to the Archive. The set-up fee for Archive provided to Subscriber under Section 10.A of
Services is a one-time fee provided these Terms.
Subscriber continues to renew its g, WARRANTIES AND LIMITATION OF LIABILITY.
subscription to the Archive and Archive
Services annually without interruption. If A. OCLC warrants to Subscriber that it possesses all
Subscriber fails to renew its subscription to rights necessary to grant Subscriber a license to
the Archive and Archive Services and re- use the Archive through the use of Archive
subscribes at a later date, Subscriber will be Services in accordance with these Terms and
obligated to pay an additional set-up fee in Documentation. In the event of any claim that
connection with the new subscription. such use by Subscriber violates any third -party
copyright or other intellectual property right,
(ii) Inaest Fee: Payment of the Ingest fee gives Subscriber the right to Ingest a maximum of OCLC's liabilities and Subscriber's remedies
Page 3 of 6 2008025
shall be solely as provided in Section 9 below.
B. Subscriber warrants that it will check Content
Objects for viruses at the time such Content
Objects are submitted to OCLC for Ingest using
available methods which are consistent with
then -current industry standards.
C. EXCEPT AS EXPRESSLY PROVIDED IN
THESE TERMS, OCLC MAKES NO
WARRANTIES, EITHER EXPRESS OR
IMPLIED, AND DISCLAIMS ALL SUCH
WARRANTIES, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR ANY
PARTICULAR PURPOSE AS TO: (A) THE
CONTENT OR NONINFRINGEMENT OF
CONTENT OBJECTS; (B) THE ARCHIVE OR
THE ARCHIVE SERVICES; OR (C) THE
RESULTS OBTAINED BY USING THE
ARCHIVE, THE ARCHIVE SERVICES OR
CONTENT OBJECTS ACCESSIBLE VIA THE
ARCHIVE. IN ADDITION, OCLC MAKES NO
WARRANTIES OR GUARANTEES, EITHER
EXPRESS OR IMPLIED, THAT CONTENT
OBJECTS WILL BE OR REMAIN VIRUS -FREE.
OCLC agrees to check Subscriber's Content
Objects for viruses at the time of Ingest into the
Archive and periodically while Subscriber's
Content Objects are in the Archive using
available methods which are consistent with
then -current industry standards.
D. OCLC SHALL HAVE NO LIABILITY FOR ANY
DOWNTIME OR UNAVAILABILITY OF THE
ARCHIVE OR THE ARCHIVE SERVICES DUE
TO CIRCUMSTANCES BEYOND ITS
REASONABLE CONTROL, OR ACTIONS
TAKEN BASED ON INSTRUCTIONS
RECEIVED FROM SUBSCRIBER IN
ACCORDANCE WITH DOCUMENTATION ON
WHICH OCLC REASONABLY RELIED. OCLC
SHALL NOT BE LIABLE FOR ANY INDIRECT,
-SPECIAL, INCIDENTAL, EXEMPLARY OR
CONSEQUENTIAL DAMAGES HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, LOSS OF
DATA OR INFORMATION OF ANY KIND OR
LOST PROFITS OR BUSINESS, HOWEVER
CAUSED, WHETHER CLAIMED UNDER
CONTRACT, TORT OR ANY OTHER LEGAL
THEORY AND WHETHER OR NOT OCLC IS
MADE AWARE OF THE POSSIBILITY
THEREOF. IN NO EVENT SHALL OCLC'S
AGGREGATE LIABILITY HEREUNDER
EXCEED THE FEES PAID TO OCLC BY
SUBSCRIBER PURSUANT TO THESE TERMS
FOR THE MOST RECENT SUBSCRIPTION
YEAR.
9. THIRD -PARTY CLAIMS.
A. OCLC, at its own expense, shall defend any
action brought against Subscriber, to the extent
that it is based on a claim that use of Archive
Services in accordance with these Terms and
Documentation infringes a United States
copyright or other intellectual property right and
shall hold Subscriber harmless from any liability
for damages, reasonable attorneys' fees and
other payments ordered by a court as a result of
such a claim or resulting from the settlement
thereof, provided Subscriber notifies OCLC
promptly in writing of the action and OCLC has
sole control of the defense and all negotiations
for its settlement or compromise. Subscriber
shA have the right to appoint an attorney to
participate in such defense at Subscriber's
expense, provided that such participation shall
not derogate from OCLC 's sole control of the
defense and negotiations for settlement or
compromise of the claim. In the event that the
Archive or Archive Services become, or OCLC is
advised by counsel that they are likely to
become, the subject of an infringement claim,
OCLC may at its option either secure
Subscriber's right to continue using the Archive
or the relevant Archive Service(s), replace or
modify the Archive or the relevant Archive
Services) to make it/them noninfringing, or if
none of the foregoing alternatives is reasonably
available to OCLC, discontinue the Archive
and/or the relevant Archive Service(s). In the
event of such discontinuation by OCLC,
Subscriber shall be entitled to a prorata refund
of the Annual Subscription Fee or the portion of
such Fee allocable to the discontinued Archive
Services) (as applicable). OCLC shall have no
liability for any claim of infringement to the
extent based on Subscriber's Content Objects or
the alteration of any Archive Service by
Subscriber. THE FOREGOING STATES THE
ENTIRE LIABILITY OF OCLC AND
SUBSCRIBER'S SOLE REMEDY WITH
RESPECT TO INFRINGEMENT OF THIRD -
PARTY PROPRIETARY RIGHTS BY THE
ARCHIVE, THE ARCHIVE SERVICES OR ANY
PORTIONS) THEREOF.
the extent permitted by the laws of the State
(or Country, if Subscriber is located outside of
the United States) in which Subscriber is
located, Subscriber agrees to be responsible for
all claims (including third -party claims),
damages, liabilities, costs and expenses
(including reasonable attorneys' fees) and other
payments arising or resulting from: (i)
Subscriber's breach of the warranties it has
made in these Terms; (ii) any failure of
Subscriber to comply with or fulfill its obligations
under these Terms; or (iii) Subscriber's Content
Objects, or their access or use by End -Users.
10. TERM AND TERMINATION.
A. Subscriber's subscription shall automatically
renew annually until terminated by Subscriber or
OCLC in accordance with this Section 10. No
less than sixty (60) days prior to the end of each
annual subscription period, OCLC will notify
Page 4 of 6 2008025
Subscriber by electronic mail message or
regular mail that Subscriber's subscription to the
Archive will automatically renew at the end of
the current annual subscription period. If
Subscriber notifies OCLC, in writing, at least
thirty (30) days prior to the renewal date that it
does not wish to renew its subscription to the
Archive, Subscriber's subscription will terminate
at the end of the current annual subscription
period. If Subscriber does not provide OCLC
with such notice, Subscriber's subscription to the
Archive will be renewed under these Terms for a
new annual subscription period.
B. Subscriber may terminate its rights under these
Terms, without cause, at any time by notice to
OCLC, provided that in the event of such
termination, any fees for Archive Services,
storage fees or other reasonable amounts due
shall become immediately due and payable and
Subscriber shall not be entitled to a refund of
any fees or other amounts paid.
C. In the event of material breach of these Terms,
the non -breaching parry may, in addition to any
other remedies that it may have, at any time
terminate these Terms by not less than twenty
(20) days prior notice to the breaching party
specifying any such breach, unless within the
period of such notice all breaches specified
therein have been remedied. In the event of
termination due to OCLC's uncured material
breach, Subscriber shall be entitled to a prorata
refund of fees paid pursuant to these Terms in
advance (excluding set-up fees) and not yet
earned by OCLC.
D. Notwithstanding anything in these Terms to the
contrary, OCLC reserves the right to terminate
the provision of the Archive to Subscriber for any
reason upon thirty (30) days written notice. In
the event the Archive becomes unavailable due
to such termination, OCLC will provide
Subscriber with digital copies of Subscriber's
Content Objects stored in the Archive in the
original format in which they were submitted to
OCLC for Ingest into the Archive and Subscriber
shall be entitled to a prorata refund of fees paid
pursuant to these Terms in advance (excluding
set-up fees) and not yet earned by OCLC.
E. In the event of a failure to renew or other
termination of Subscriber's subscription,
Subscriber may request a Dissemination of all of
Subscriber's Content Objects from the Archive.
The Dissemination will be provided by OCLC at
then -current fees. Notwithstanding anything in
these Terms to the contrary, if Subscriber fails to
request a Dissemination within 30 days after the
expiration or the effective date of termination of
Subscriber's subscription, OCLC may delete or
remove Subscriber's Content Objects from the
Archive and/or otherwise act in accordance with
then -current portions of Documentation
applicable to abandoned Content Objects,
out liability to Subscriber or any third -party.
11. MISCELLANEOUS PROVISIONS.
A. Neither these Terms nor any rights or obligations
hereunder, in whole or in part, shall be
assignable, sublicensable or otherwise
transferable by Subscriber by either party.
However, OCLC may transfer or assign this
Agreement or any rights or obligations under this
Agreement to any parry that obtains the
Intellectual Property rights for this Agreement
upon thirty (30) days' written notice to
Subscriber. This Agreement shall be binding
upon and inure to the benefit of the parties
hereto and their respective successors and
assigns.
B. These Terms and Documentation are the
complete and exclusive statement of the
agreement between the parties concerning the
subject matter hereof and may not be amended
except by the written agreement of the parties.
Any terms set forth on any Subscriber purchase
order or ordering document will not apply and
are superseded by these Terms and
Documentation. In the event of conflict between
these Terms and Documentation, such
documents will apply in the following order of
precedence: (i) these Terms and (ii)
Documentation.
C. No waiver of any right or consent to any breach
hereunder shall be effective unless in writing
and signed by the party claimed to have waived
or consented. No waiver of any right or consent
to any breach shall constitute a waiver of any
other right or consent to any other breach.
D. These Terms shall be governed by and construed
in accordance with the laws of the State of
Texas and the United States of America without
regard to principles of conflicts of law.
E. Any notice of breach or termination under these
Terms shall be in writing, signed by the party
giving notice, and shall be deemed properly
given upon delivery into the mail of the country
of the party giving notice, postage prepaid,
registered or certified return -receipt -requested,
or upon delivery to an established international
courier (i.e., Federal Express, DHL, UPS), with a
signature acknowledging receipt required, to the
parties at the addresses set forth on the
accompanying order form.
F. Neither party shall be liable for any failure or
delay in performance under these Terms (other
than a delay in the payment of money due and
payable hereunder) to the extent said failures or
delays are proximately caused (a) by causes
beyond that party's reasonable control and
occurring without its fault or negligence, or (b) by
the failure of the other party to substantially
meet its performance obligations under these
Page 5 of 6
2008025
Terms, provided that, as a condition to the claim
of nonliability, the party experiencing the
difficulty shall give the other party prompt written
notice, specifying the cause of the delay,
following the occurrence of the cause relied
upon.
G. up V a U"o of these Terms are to be deemed
severable, and the invalidity or unenforceability
of any provision shall not affect or impair the
validity of the remaining provisions. In
substitution for any provision held unlawful,
there shall be substituted a provision of similar
import reflecting the original intent of the parties
hereto to the extent permissible under law.
H. All use of the Archive and Archive Services shall
FORT WORTH PUBLIC LIBARY
By:
Title:
Date:
�S SIN t fir' .M.�/VA6cY,
A��l�T�NT �lTY ATT�RN�`r
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
be in full compliance with U.S. export
regulations. Subscriber shall serve as the
importer and exporter of record for Archive
Services delivered to it by OCLC outside the
U.S., by electronic means or otherwise, and
shall pay and/or comply with all applicable
export and import laws, customs, regulations,
tariffs, duties, and fees, and procurement, data
and technology transfer laws. OCLC's
obligations under these Terms are contingent
upon necessary export licenses being obtained
from federal agencies of the U.S.
The following Sections of these Terms shall
survive expiration or termination of these Terms
for any reason: 4, 8, 91 10. E and 11.
OCLC ONLINE COMPUTER LIBRARY CENTER, INC.
By:
Date:
Vice President
June 7, 2010
0
Hendrix, City
apo-
_n Q7`lE�..o
1V0 G RE�QUIIiED �'a'v.
Page 6 of 6 2008025
CONTENTdm HOSTING SERVICE TERMS AND CONDITIONS
IMPORTANT: PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY, YOUR USE OF THIS
SERVICE IS CONDITIONED UPON YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS, BY
USING THIS SERVICE, YOU ARE AGREEING TO BE LEGALLY BOUND BY ALL THE TERMS AND
CONDITIONS BELOW, IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT
USE THIS SERVICE,
THESE TERMS AND CONDITIONS SET FORTH THE ENTIRE AGREEMENT AND SUPERSEDES ANY AND
ALL PRIOR PURCHASE ORDERS, ACKNOWLEDGMENTS, AGREEMENTS, AND ORAL OR
WRITTEN COMMUNICATIONS OR UNDERSTANDINGS OF THE PARTIES REGARDING THE USE
OF CONTENTdm HOSTING SERVICE.
OCLC reserves the right to determine whether a party is eligible to make use of the CONTENTdm Hosting Service and to
refuse access to the Hosting Service to any party for any reason in OCLC's sole discretion.
1. Services.
1.1 General. OCLC will provide the hosting
services set forth in the Service Plan to the City of Fort Worth
("Institution") attached as Exhibit A (as the same may be changed
or modified in accordance with Agreement from time to time, the
"Service Plan") and other services specified in this Agreement
(the "Services"). As part of the Services, OCLC will (a)
configure, install, house, maintain, monitor and operate the
facilities, servers, equipment, operating software and network
(collectively, "OCLC's Systems"), (b) provide access to OCLC's
CONTENTdm and other application software specified in the
Service Plan (the "OCLC Applications") and (c) secure and
maintain connectivity with third -party telecommunication
providers, all as necessary to host the Institution's Content (as
defined below) via the Internet in accordance with the Service
Plan. Institution is responsible for securing and maintaining its
own Internet connectivity to access OCLC's Systems and the
OCLC Applications,
1.2 Domain Names. Institution will provide OCLC
with a registered domain name or, upon the request of Institution
and if available from a domain name registrar, OCLC will register
a domain name selected by Institution ("Institution Domain"). In
addition to any fees specified in the Service Plan, Institution will
reimburse OCLC for any fees paid by OCLC to the domain name
registrar with respect to the registration and maintenance of such
Institution Domain. OCLC will host the Institution Domain during
the term of this Agreement; provided that, such domain does not
violate any of registrar's policies or any applicable laws, rules,
regulations or other requirements of any governmental authority
having jurisdiction. Upon Institution's request, OCLC will transfer
to Institution any right that OCLC may have in the Institution
Domain. The Institution Domain will be hosted and administered
in accordance with terms of ICANN's then current domain name
dispute resolution policies and/or the policies of the registrar of
the Institution Domain. To the extent such policy sets forth a
dispute resolution procedure, in the event of a dispute, the
parties may first submit the dispute for non -binding
mediation in Tarrant County, Texas. The mediator shall be
agreed to by the parties. Each party shall be liable for its
own expenses, including attorney's fees; however, the
parties shall share equally in the costs of the mediation. In
the event mediation is not successful, the dispute may,
upon written consent of both parties, be submitted for
binding arbitration in accordance with the rules of the
American Arbitration Association. Each party shall be liable
for its own expenses, including attorney's fees; however,
the parties shall share equally in the costs of the
arbitration. In no event shall the City be required to submit
a dispute to binding mediation or arbitration without the
City's prior written consent. OCLC will not have any liability on
account of any inability to use any Institution Domain, and the
inability to use any Institution Domain or any other domain name
will not entitle Institution to any refund of any fees paid or
reimbursed under this Agreement.
1.3 IP Addresses. OCLC may assign IP
addresses to Institution as part of the Services. Any IP addresses
or other network numbers assigned to Institution by OCLC are
and will remain the property of OCLC. Upon any termination of
this Agreement or if OCLC ceases to provide domain name
services, OCLC may, in its sole discretion, reassign or reuse the
IP addresses. OCLC has sole discretion as to the Internet routing
of any OCLC network numbers.
1.4 Service Level. OCLC will use commercially
reasonable efforts to provide the Services and operate OCLC's
Systems in accordance with OCLC's standard Service Level
Agreement, a current version of which is available at
www.ocic.org. OCLC's obligations under the Service Level
Agreement are subject to materials and services provided by
equipment, telecommunications and/or other suppliers and to
delays by or actions of Institution or third parties. Institution
acknowledges that OCLC's Systems may be subject to temporary
shutdowns due to causes beyond OCLC reasonable control, and
such temporary shutdowns will not be deemed to be a breach of
any obligations under this Agreement or the Service Level
Agreement, unless otherwise agreed to by the parties.
INSTITUTION FURTHER ACKNOWLEDGES AND AGREES
THAT ITS SOLE AND EXCLUSIVE REMEDY FOR ANY
FAILURE OF OCLC TO PROVIDE THE SERVICES IN
ACCORDANCE WITH THE SERVICE LEVEL AGREEMENT IS
TO TERMINATE THIS AGREEMENT PURSUANT TO
SECTION 4.1.
20090402 Page 1 of 8 OCLC Hosting Terms and Conditions
1.5 Bandwidth, Storage and Other Limits Usage.
OCLC is not obligated to provide any bandwidth, storage or other
Services in excess of the limits set forth in the Service Plan. If
Institution uses any bandwidth, storage or other services in
excess of the limits set forth in the Service Plan, OCLC may, in its
sole discretion, assess Institution with additional charges,
suspend the performance of the Services, or terminate this
Agreement. In the event that OCLC elects to take any such
action, Institution will not be entitled to a refund of any unused
pre -paid fees.
1.6 Modifications to Services. OCLC reserves
the right to change or modify the Services, any Service Plan, the
terms and conditions of this Agreement, or any policy or guideline
applicable to the Services, at any time in its sole discretion.
OCLC will send a notice to Institution of any such changes.
Changes to this Agreement or a Service Plan will be effective
thirty (30) days after the date of such notice or such later date as
may be specified in the notice; provided, however, that any price
changes will be subject to the notice and other requirements of
Section 3.2. Changes to any policy or guidelines governing the
Services, including the Acceptable Use Policy, will be effective
upon Institution's receipt of notice or posting to the OCLC
website. If Institution does not agree to any change or
modification to this Agreement, the Service Plan, or any
governing policy or guideline, Institution's sole remedy is to
immediately terminate this Agreement pursuant to Section 4.1
(notwithstanding any notice period). Institution's continued use of
the Services following the effective date of any changes or
modifications to this Agreement, the Service Plan, or any policy or
guideline will constitute Institution's acceptance of such changes
or modifications.
2. Institution Content; Acceptable Use.
2.1 Institution Content. In addition to the license
granted to OCLC in Section 48 of the CONTENTdm End User
License Agreement, Institution hereby grants OCLC a non-
exclusive, royalty -free, non-sublicensable license to host,
reproduce, transmit, cache, store, display, publish, distribute,
perform, edit, adapt, modify, create derivative works from, and
otherwise use the Institution Content, all as reasonably necessary
to provide the Services for Institution. "Institution Content"
means all materials, code, data, text (whether or not perceptible
by users), audio, video, graphics, photographs, artwork, bulletin
board postings, or any other items or information of Institution or
any third party that are provided or permitted by Institution to
reside on OCLC's Systems.
2.2 Institution's Sole Responsibility. Institution
will be solely responsible for all Institution Content. Institution will
(a) be solely responsible for the creation, posting, updating and
maintenance of the Institution Content (including all content
provided by third parties) and (b) manage, renew, create, delete,
edit and otherwise control the editorial content of the Institution
Content. OCLC will not be responsible for reviewing the
Institution Content prior to its posting by Institution.
2.3 Compatibility. Institution is responsible for
ensuring that the Institution Content will be "server ready" and
otherwise remain fully compatible with OCLC's Systems
(including all software and operating systems). Institution
acknowledges that it is responsible for having the necessary
knowledge and expertise to maintain the Institution Content on
OCLC's Systems. OCLC reserves the right to remove any
Institution Content that is not compatible with OCLC's Systems.
Upon request from Institution, and at Institution's sole expense,
OCLC may assist Institution in resolving any compatibility
problems on a time and materials basis.
2.4 Acceptable Use Policy. Institution will at all
times adhere to all applicable laws, rules, regulations and other
requirements of any governmental authority having jurisdiction
and to OCLC's standard policies including, without limitation,
OCLC's Acceptable Use Policy, a current version of which is
attached as Exhibit C. OCLC may inspect the Institution Content
or investigate any alleged violation of this Agreement, OCLC's
policies or any third -party complaints. OCLC will not access or
review the contents of any e-mail or other stored electronic
communications, except as required or permitted by applicable
law or legal process. In the event that OCLC determines in its
sole and reasonable discretion that any Institution Content or
conduct or actions of Institution (including its employees and
users) are objectionable, unlawful, potentially infringing or
otherwise violate this Agreement, the Acceptable Use Policy or
any other applicable policy, OCLC may take any action that it
deems appropriate and reasonable under the circumstance to
protect its systems, facilities, subscribers and/or third parties.
Such corrective action includes, but is not limited to: (a) issuing a
warning; (b) immediately suspending or terminating the Services;
(c) restricting or prohibiting access to any Institution Content that
is objectionable or otherwise violates this Agreement or
applicable policy; and/or (d) disabling or removing hypertext links,
Institution Content or the content of any third party from OCLC's
Systems. Institution will not be entitled to a refund of any fees
paid or reimbursed on account of any such action by OCLC.
2.5 Disclosure Rights. If and to the extent
reasonably required to comply with applicable laws and lawful
governmental requests, to protect OCLC's Systems and OCLC's
customers, or to ensure the integrity and operation of OCLC's
business and systems, OCLC may access and disclose any
information it considers necessary or appropriate, including,
without limitation, user profile information (i.e., name, e-mail
address, etc.), IP addressing and traffic information, usage
history, and Institution Content residing on OCLC's Systems,
2.6 Warranties. Institution represents, warrants
and covenants to OCLC that: (a) the Institution Content and its
use will not violate, misappropriate or infringe any Proprietary
Rights or any other personal, privacy or moral right arising under
the laws of any jurisdiction of any person or entity, nor will same
constitute libel or defamation of any person or entity; (b) the
Institution Content will not contain any harmful components,
including, but not limited to, viruses, trap doors, hidden
sequences, hot keys, or time bombs; (c) Institution has all the
right, power and authority necessary to use the Institution Content
as described in this Agreement, as well as in the CONTENTdm
End User License Agreement; and (d) the Institution will comply
with all applicable laws, rules and regulations (including, but not
ted to, export control, decency, privacy and intellectual
property laws).
20090402 Page 2 of 8 OCLC Hosting Terms and Conditions
3. Fees and Payment Terms.
3.1 General. Institution will pay OCLC the fees,
charges and other amounts as mutually agreed upon by the
parties. Unless otherwise specified, the Institution will pay OCLC
any setup, installation and other one-time fees upon acceptance
of this Agreement. Institution will pay OCLC the monthly, annual
or other periodic fees for the first year of the term upon
acceptance of this Agreement and for any subsequent year upon
commencement of the applicable year. All fees will be billed by
OCLC in advance of providing the Services. Institution will pay all
applicable federal, state, and local sales, use, value added,
excise, duty and any other taxes assessed with respect to the
Services provided to Institution, other than taxes based on
OCLC's net income. Institution's failure to fully pay any fees and
taxes within thirty (30) days after the applicable due date will be
deemed a breach of this Agreement, justifying OCLC's suspension
of its performance of the Services and, in OCLC's sole discretion,
termination of this Agreement. Accounts in default are subject to
an interest charge on the outstanding balance equal to the lesser
of 1.5% per month or the maximum rate permitted by applicable
usury law. Any termination by OCLC for Institution's failure to pay
will not relieve Institution from paying past due fees plus interest.
This Section 3.1 does not apply to Institutions that have obtained the
Quick Start License provided in conjunction with a FirstSearch® Base
Package Subscription.
3.2 Price Changes. OCLC reserves the right to
change any hourly, monthly, annual or other periodic fees,
provided that: (a) OCLC will give Institution written notice of the
change at least thirty (30) days in advance of the first period for
which the change is to become effective; and (b) no such change
will be effective for any period within one year after the date of
this Agreement. If Institution does not agree to pay the new fees,
Institution may terminate this Agreement by providing written
notice to OCLC prior to the effective date of the change. This
Section 3.2 does not apply to Institutions that have obtained the
Quick Start License provided in conjunction with a FirstSearch Base
Package Subscription.
4. Term of Service.
4.1 Term and Cancellation Policy. The
Agreement will remain in full force and effect until terminated by
either party. Either party may terminate this Agreement for any
reason by providing the other party thirty (30) days prior written
notice; provided that, OCLC may immediately terminate this
Agreement for Institution's or its users' violation of the Acceptable
Use Policy. Upon any termination of this Agreement, Institution
will not be entitled to a refund of any fees paid or reimbursed
under this Agreement; provided that, if OCLC terminates this
Agreement for any reason other than breach, default of violation
by Institution or its users, then OCLC will promptly refund that
portion of any periodic fees pre -paid by Institution for any period
after the effective date of the termination.
4.2 Effect of Termination. Should this Agreement
be terminated for any reason, OCLC will not be liable to Institution
because of such termination for compensation, reimbursement or
damages on account of the loss of prospective profits, anticipated
sales, goodwill or on account of expenditures, investments,
leases or commitments in connection with Institution's business,
or for any other reason whatsoever flowing from such termination.
Institution is solely responsible for procuring any new or
replacement service upon termination. Any termination of this
Agreement will not relieve Institution of any obligations to pay any
fees and costs accrued prior to the termination date and any other
amounts owed by Institution to OCLC as provided in this
Agreement. Upon termination of this Agreement, the following
sections will survive and remain in effect in accordance with their
terms: Sections 4.2 and 5 through 9.
5. Reservation of Rights.
5.1 By OCLC. OCLC is the exclusive owner of and
retains all right, title and interest (including, without limitation to,
all copyrights, trademarks, patents, trade secrets, and any other
proprietary rights to all materials, including but not limited to any
computer software (in object code and source code form), data or
information developed or provided by OCLC or its suppliers
pursuant to this Agreement (including, without limitation, the
OCLC Applications), and any know-how, methodologies,
equipment, or processes used by OCLC to provide the Services
to Institution (including, without limitation, the OCLC's Systems).
5.2 By Institution. Institution is the exclusive
owner of and retains all right, title and interest (including, without
tation, all proprietary rights) to the Institution Content,
notwithstanding the license grant provided to OCLC pursuant to
Section 4B of the CONTENTdm EULA.
6. Disclaimers and Limitations
6.1 Disclaimer. OCLC exercises no control over,
and accepts no responsibility for, third -party content of the
information passing through OCLC's System, network hubs and
points of presence, or the Internet. INSTITUTION
ACKNOWLEDGES THAT OCLC'S SYSTEMS (INCLUDING ANY
SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED
BY OCLC IN CONNECTION WITH ANY SERVICES
HEREUNDER) ARE PROVIDED "AS IS." OCLC DOES NOT
MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE
PERFORMANCE OF THE SERVICES OR OCLC'S SYSTEMS,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR NON -INFRINGEMENT OR ANY
IMPLIED WARRANTY ARISING BY USAGE OF TRADE,
COURSE OF DEALING OR COURSE OF PERFORMANCE.
OCLC MAKES NO REPRESENTATIONS OR WARRANTIES
WHATSOEVER THAT THE SERVICES AND OCLC'S SYSTEMS
WILL BE UNINTERRUPTED, ALWAYS ACCESSIBLE, FREE OF
HARMFUL COMPONENTS, ACCURATE OR ERROR -FREE.
6.2 Limitation of Liability. OCLC WILL HAVE NO
LIABILITY FOR ANY CONSEQUENTIAL, EXEMPLARY,
SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF
OCLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT WILL OCLC HAVE ANY LIABILITY
FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT
OR DESTRUCTION OF INFORMATION DISTRIBUTED OR
MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES
THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES,
IN ANY EVENT, THE LIABILITY OF OCLC TO INSTITUTION
FOR ANY REASON AND UPON ANY CAUSE OF ACTION WILL
20090402 Page 3 of 8 OCLC Hosting Terms and Conditions
BE LIMITED TO THE AMOUNT ACTUALLY PAID TO OCLC BY
INSTITUTION UNDER THIS AGREEMENT DURING THE
THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE
ON WHICH SUCH CLAIM AROSE. THIS LIMITATION APPLIES
TO ALL CAUSES OF ACTION IN THE AGGREGATE,
INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT,
BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY,
MISREPRESENTATIONS, AND OTHER TORTS. THE FEES
FOR THE SERVICES SET BY OCLC HEREUNDER HAVE
BEEN AND WILL CONTINUE TO BE BASED UPON THIS
ALLOCATION OF RISK.
6.3 Force Majeure. Either party will be excused
from performance hereunder to the extent that performance is
prevented, delayed or obstructed by causes beyond its
reasonable control, including but not limited to, acts of God (fire,
storm, floods, earthquakes, etc.), civil disturbances, disruption of
telecommunications, power or other essential services, or
interruption or termination of service by the service provider being
used by OCLC to link its servers to the Internet, or any malicious
or unlawful acts of any third party.
7. Provisions
7.1 Identification. OCLC may, free of any
obligation to pay compensation, use Institution's name to identify
Institution as an OCLC client, in advertising, publicity, or similar
materials distributed or displayed to prospective clients, but shall
not depict Institution in a demeaning or derogatory manner.
Notwithstanding the foregoing, OCLC shall not use Institution's
logo without the express written consent of Institution.
7.2 Independent
personnelI in performance of
independent contractors and
of Institution.
Contractors. OCLC and its
the Services, are as
not as employees or agents
acting
7.3 Waiver; Amendment.
The failure of either
party to enforce its rights under this Agreement at any time for
any period will not be construed as a waiver of such rights.
FORT WORTH PUBLIC LIBRARY
By:
Title:
7A No Assignment. Neither- party may assign,
without the prior written consent of QGL- any rights, duties or
obligations under this Agreement to any person or entity, in whole
or in part, whether by assignment, merger, transfer of assets, sale
of stock, operation of law or otherwise, and any attempt to do so
will be void.
7.5 Governing Law; Attorneys' Fees; Venue.
This Agreement will be governed by and construed in accordance
with the laws of the State of Texas.
7.6 Headings. Headings herein are for
convenience of reference only and will in no way affect
interpretation of this Agreement.
7.7 Notice. All notices and other communications
required or permitted hereunder will be in writing and delivered in
person, by courier, prepaid certified or registered U.S. mail,
facsimile with confirmation, or e-mail with return receipt to the
parties at the addresses set forth in this Agreement. Notice will
be effective when received.
7.8 Counterparts. This Agreement may be
executed in counterparts and/or via facsimile transmission, any
one or form of which will be deemed an original, but all of which
will constitute one and the same instrument.
7.9 Entire Agreement; Severability. This
Agreement constitutes the complete and exclusive statement of
agreement between the parties, and supersedes and merges all
prior proposals and all other agreements, oral and written,
between the parties relating to the subject matter of this
Agreement. In the event that any provision of this Agreement will
be determined to be illegal or unenforceable, that provision will be
eliminated to the minimum extent necessary so that this
Agreement will otherwise remain in full force and effect and
enforceable.
OCLC ONLINE COMPUTER LIBRARY CENTER, INC.
By:
Date
Robin Murray
Vice President
June 7, 2010
■6•
,T
20090402 'ir�ylt:,'36��
�`�. �i���iTH►,1'X
.- •OCLC Hostin-
&C
REQUIRED
Exhibit A
Service Plan
ON I EN I am Hosting Services
CONTENTdm direct license purchase required.
Separate fees incurred for each of the services described below.
Initial setup of CONTENTdm instance — OCLC staff will set up your licensed copy of CONTENTdm in OCLC's
hosting operations center including disk allocation according to the CONTENTdm hosting level you've chosen.
They will initiate backup procedures, allocate 5 user accounts, and allow up to 300 collections per licensed
copy of CONTENTdm.
CONTENTdm Hosting Service — OCLC staff will maintain the operations of your server, actively monitor your
server for availability, provide regular back-ups of content, metadata, and user interface changes.
Additional collection storage (optional) —Should you fill up the storage initially allocated according to your
CONTENTdm hosting level you can add additional storage at then -current pricing.
Application support (optional) — OCLC can provide consulting on Web site development.
User account administration (optional) - OCLC can provide support to edit, add, or delete user accounts.
20090402 Page 5 of 8 OCLC Hosting Terms and Conditions
EXHIBIT B
SERVICE LEVEL AGREEMENT
This Service Level Agreement ("SLA") sets forth
the service level and performance objectives of OCLC
Online Computer Library Center, Inc. ("OCLC") in
providing hosting services (the "Services") to you. OCLC
will use commercially reasonable efforts to meet the
following service level and performance objectives to
support the operation of the facilities, server(s), computer
equipment, operating software and connectivity used to
provide the Services to you (collectively, "OCLC's
Systems").
1. Uptime Commitment
OCLC will use commercially reasonable efforts to
ensure OCLC's Systems are available 99% of the time
(the "Uptime Commitment"). All Uptime Commitment
will be measured within OCLC's System on a monthly
basis calculated to include twenty-four (24) hours per day
over each month, but excluding from the numerator and
denominator in the calculation the duration in time of any
temporary shutdowns due to scheduled maintenance
(which will not exceed in the aggregate sixteen (16) hours
per month), telecommunications or power disruptions
caused by third parties, and any other causes beyond
OCLC's reasonable control. OCLC agrees to notify you
promptly of any factor, occurrence, or event coming to its
attention that may affect OCLC's ability to meet the
Uptime Commitment, or that is likely to cause any
material interruption in the Services.
2. Exclusive Remedy.
OCLC will use commercially reasonable efforts to
correct any material problems in the Serices, including
any failure to satisfy the Uptime Commitment. In the
event that OCLC fails to satisfy the Uptime Commitment
for a given month and you provide written notice within
thirty (30) days of the end of such month, your sole and
exclusive remedy will be to receive a service credit equal
to the following percentage of the monthly fees for the
Services for the stated uptime:
97%
to
99%
15%
94%
to
96.9%
25%
92%
to
93.9%
50%
90%
to
91.9
75%
Below 90%
100%
In no event will the service credit exceed the monthly
fees paid by you for the Services. You acknowledge and
agree that if the remedies set forth in this section are
applied, any failure of OCLC to meet the requirements in
this SLA will not constitute a breach of the Hosting
Agreement,
3. Systems Management
3.1 Monitoring. OCLC will monitor and
maintain OCLC's Systems in working order each day (24
x 7). OCLC will proactively manage and monitor all
application server hardware devices and software to
ensure optimal performance and reliability as well as to
detect abnormal events or exceeded utilization or
performance thresholds. OCLC will proactively monitor
the status of the operating systems (e.g., CPU, disk 1/0,
memory, processes, etc.), critical application layer
daemons and processes and trigger appropriate event
notification alarms caused by errors, exceeded
thresholds, etc.
3.2 Maintenance. OCLC will operate,
monitor and administer all servers, applications and
networks supporting the Services. In order to provide
such coverage, OCLC may utilize a mixture of on -site
and on -call support staff, automated serer monitoring
and automated paging technology. OCLC's on -site
coverage is during OCLC's normal business hours,
Monday through Friday, excluding holidays recognized by
OCLC.
3.3 Scheduled Outages. Maintenance
outages, if necessary, will be conducted at a time and in
a manner to minimize adverse impacts on the Services.
Maintenance outages will include, but are not limited to
the installation of upgrades, service packs and routine
server or application configuration changes. Other
maintenance outages may be necessary from time to
time.
3.4 Change Control. OCLC will install new
equipment, software, releases, upgrades, fixes, patches
and other items necessary to maintain OCLC's Systems
to industry standards. OCLC will proactively gather
information from appropriate serer, peripheral, operating
system or database vendors regarding upgrades, defect
patches or fixes.
3.5 Notice. OCLC will use commercially
reasonable efforts to give you three (3) days notice prior
for all non -routine management, maintenance, change
control or other actions by OCLC that may material
impact the Service adversely.
20090402 Page 6 of 8 OCLC Hosting Terms and Conditions
■ 1 r
ACCEPTABLE USE POLICY
This Acceptable Use Policy ("AUP") describes
the proper kinds of conduct and prohibited uses of the
hosting and other services (the "Services") provided by
OCLC Online Computer Library Center, Inc. ("OCLC").
This AUP is not exhaustive and OCLC reserves the right
to modify it at any time, effective upon posting of the
modified version to <www.ocic.org or such other location
designated by OCLC. By using OCLC's Services, you
agree to abide by the then current version of this AUP.
ANY VIOLATION OF THIS AUP MAY RESULT
IN THE SUSPENSION OR TERMINATION OF THE
SERVICES AND SUCH ACTION AS OCLC DEEMS
APPROPRIATE AS FURTHER DESCRIBED IN THE
HOSTING AGREEMENT, ANY REPEATED VIOLATION
OF THIS AUP WILL RESULT IN THE TERMINATION OF
THE HOSTING AGREEMENT. INDIRECT OR
ATTEMPTED VIOLATIONS OF THIS AUP, AND
ACTUAL OR ATTEMPTED VIOLATIONS BY A THIRD
PARTY ON YOUR BEHALF, WILL BE CONSIDERED
VIOLATIONS OF THE AUP BY YOU.
General
OCLC's Services enable you to host and serve
your Web site and all related content, including, but not
limited to, programs, program scripts, e-mail, text, bulletin
board postings, hypertext links, meta tags, domain
names, pictures, graphics, forums, interactive media, and
audio/visual materials that you or a third party posts on
your Web site (collectively, "Subscriber Content") using
OCLC's facilities, services, equipment, operating software
and network (collectively, "OCLC's Systems").
Generally, OCLC does not actively monitor, censor, or
directly control any information that is stored on or
transmitted over OCLC's Systems. OCLC cannot and
does not warrant, verify or guarantee the quality,
accuracy, safety or integrity of your Subscriber Content or
other materials or information that you or a third party
may post or access through the Services. You are solely
responsible for all of the Subscriber Content and your
and your users' use of OCLC's Services and your Web
site.
No Illegal or Harmful Uses
OCLC's Services and Systems may be used only
for lawful purposes. Transmission, distribution or storage
of any material in violation of any applicable law or
regulation is strictly prohibited. The following non.
exhaustive list describes the kinds of illegal or harmful
conduct are prohibited. OCLC reserves the right to
restrict or prohibit any and all uses or content that it
determines in its sole discretion is harmful to its systems,
network, reputation, good will, other OCLC customers, or
any third party.
• Infringement. Infringement of intellectual
property rights or other proprietary rights
including, without limitation, material
protected by copyright, trademark, patent,
trade secret or other intellectual property
right used without proper authorization.
Infringement may result from the
unauthorized copying and posting of pictures,
logos, software, articles, musical works, and
videos.
• Offensive Materials. Disseminating or
hosting material that is unlawful, libelous,
defamatory, obscene, pornographic,
indecent, lewd, harassing, threatening,
harmful, invasive of privacy or publicity rights,
abusive, inflammatory or otherwise
objectionable.
• Harmful Content. Disseminating or hosting
harmful content including, without limitation,
viruses, Trojan horses, worms, time bombs,
cancelbots or any other computer
programming routines that may damage,
interfere with, surreptitiously intercept or
expropriate any system, program, data or
personal information.
• Fraudulent Conduct. Offering or
disseminating fraudulent goods, services,
schemes, or promotions (i.e., make money
fast schemes, chain letters, and pyramid
schemes); fraudulent submission or use of
personal or financial information; or engaging
in any practice that constitutes an unfair or
deceptive trade practice.
• Export Violations. Posting or sending of
software or technical information in violation
of U.S. export laws, including, without
limitation, the Export Administration
Regulations maintained by the Department of
Commerce.
• Privacy. Collecting, using and disclosing any
personally identifiable user information in
violation of any applicable law and/or stated
privacy policy.
Maintenance of Security and Integrity
Violations of system or network security are
prohibited, and may result in criminal and civil liability.
OCLC will investigate incidents involving such violations
and may involve and will cooperate with law enforcement
if a criminal violation is suspected. Examples of system
or network security violations include, without limitation,
the following:
20090402 Page 7 of 8 OCLC Hosting Terms and Conditions
Exhibit C
• Hacking. Unauthorized access to or use of
data, systems or networks, including any
attempt to probe, scan or test the
vulnerability of a system or network or to
breach security or authentication measures
without express authorization of the owner of
the system or network.
• Interception. Unauthorized monitoring of
data or traffic on any network or system of
OCLC or any third party.
• Intentional Interference. Interference with
service to any user, host or network
including, but not limited to, denial of service
attacks, mail bombing, news bombing, other
flooding techniques, deliberate attempts to
overload a system and broadcast attacks.
• Falsification of Origin. Forging of any TCP-IP
packet header, e-mail header or any part of a
message header. This prohibition does not
include the use of aliases or anonymous
remailers.
• Avoiding System Restrictions. Using manual
or electronic means to avoid any use
limitations placed on the Services such as
access and storage restrictions.
No E-Mail Abuses
You may not distribute, publish, send or incite
unsolicited mass e-mailings, promotions, advertising, or
solicitations (such as "spam"), including, without
limitation, commercial advertising, informational
announcements, and mail bombing. You may not use
OCLC's mail server or a third party mail server to relay
mail without the express permission of the account holder
or the third party site. Posting the same or similar
message to one or more newsgroups (including, but not
ted to, the use of chain letters, excessive cross -
postings or multiple -postings) is explicitly prohibited.
Enforcement by OCLC
OCLC reserves the right, but does not assume
the obligation, to investigate any violation of this AUP or
misuse of OCLC's Systems. As described in the Hosting
Agreement, OCLC reserves the right and has absolute
discretion to (a) enforce this AUP and the terms of the
Hosting Agreement and (b) remove or disable access,
screen or edit any Subscriber Content that violates these
provisions or is otherwise objectionable. Without
limitation, OCLC also reserves the right to report any
activity (including the disclosure of appropriate subscriber
inf)rmation) that it suspects violates any law or regulation
to appropriate law enforcement officials, regulators, or
other appropriate third parties. OCLC also may
cooperate with appropriate law enforcement agencies to
assist in the investigation and prosecution of any illegal
conduct by providing network and systems information
related to allegedly illegal, harmful or objectionable
content.
If you want to report any violations of this AUP,
please contact contentdmsupportCa�ocic.org.
20090402 Page 8 of 8 OCLC Hosting Terms and Conditions