This order is subject to written acceptance by OCLC Online Computer Library Center, Inc. ("OCLC"). OCLC's written acceptance may be indicated by the sending of an electronic message to Subscriber informing Subscriber that its subscription to the OCLC® Digital Archive (the "Archive") has commenced. 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.
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 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.
C. "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
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.
A. For purposes of maintaining the integrity and longterm 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 maintaining Subscriber's Content Objects in the original 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.
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, without 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.
C. (i) Solely for purposes of providing Archive Services and Bit Preservation services to Subscriber, Subscriber hereby grants to OCLC the nonexclusive right to use, copy, display and prepare derivative works from Subscriber's Content Objects (including derivative works made therefrom).
(ii) Subscriber hereby grants to OCLC and its affiliates the perpetual, irrevocable, non-exclusive, royalty-free, sublicenseable, transferable, worldwide right to use (in compilations and otherwise), copy, display, publish, prepare derivative works from and distribute metadata for Subscriber's Content Objects made available to OCLC by Subscriber (or another party acting on its behalf) under any copyright, patent, trade secret or other proprietary right therein owned or controlled by Subscriber.
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 take no action or make any omission which wastes, diminishes or causes harm to the shared resources that make up the Archive.
Upon acceptance of Subscriber's order, Subscriber will be provided with an OCLC authorization number and password enabling Subscriber to access the Archive and Archive Services. Subscriber is solely responsible for maintaining the confidentiality of such authorization number and password, and for all use of the Archive Services initiated by such authorization number and password. Subscriber shall promptly notify OCLC in writing of lost or stolen passwords and authorization numbers. OCLC's sole obligation with respect to passwords and authorization numbers shall be to exert reasonable efforts to maintain the confidentiality of Subscriber's passwords and authorization numbers in OCLC's possession, and to terminate lost or stolen passwords and authorization numbers upon receipt of Subscriber's notice.
A. Subscriber shall pay to OCLC (or, if applicable, Subscriber's regional service provider) the applicable fees for Archive Services within thirty (30) days after receipt of invoice. Fees shall be paid in advance in U.S. dollars (or such other currency as OCLC may agree in writing is acceptable) at the address stated on the invoice. OCLC reserves the right to suspend availability of the Archive and Archive Services to a delinquent account with prior notice. Fees specified under these Terms are exclusive of any taxes. If OCLC, Subscriber's OCLC-affiliated regional service provider or OCLC's authorized distributor is required to collect a tax payable by Subscriber, Subscriber shall pay such tax to such party, as appropriate, on demand. Subscribers claiming exemption from taxation shall supply a valid exemption certificate upon request.
B. Fees for Archive Services may include the following:
(i) Set-Up Fee: Set-up includes creating a new Subscriber account in the Digital Archive and working with the Subscriber to arrange workflow details for packaging and delivery of Subscriber's Content Objects for loading to the Archive. The set-up fee for Archive Services is a one-time fee provided Subscriber continues to renew its subscription to the Archive and Archive Services annually without interruption. If Subscriber fails to renew its subscription to the Archive and Archive Services and resubscribes at a later date, Subscriber will be obligated to pay an additional set-up fee in connection with the new subscription.
(ii) Ingest Fee: Payment of the Ingest fee gives Subscriber the right to Ingest a maximum of one (1) terabyte of data within one (1) year from the date of Subscriber's initial Ingest request. An additional Ingest fee is due for the right to Ingest each additional terabyte of data and/or for the right to Ingest data in each subsequent year. The Ingest fee also includes the following services: (a) OCLC's handling of incoming Subscriber's Content Objects; and (b) OCLC's monitoring of each batch of Subscriber's Content Objects submitted for Ingest.
(iii) Storage Fee: The storage fee is an annual fee set at OCLC's then-current rates based on the amount of data Subscriber stores in the Archive. The storage fee includes OCLC's ongoing maintenance and monitoring of the Archive and regular automated inspections of Subscriber's Content Objects in the Archive. Reports of the results of the automated inspections of Subscriber's Content Objects are periodically made available to Subscriber.
(iv) Dissemination Fee: Payment of the Dissemination fee gives Subscriber the right to request Dissemination of a maximum of one (1) terabyte of data within one (1) year from the date of Subscriber's initial Dissemination request. An additional Dissemination fee is due for the right to request Dissemination of each additional terabyte of data and/or for the right to request Dissemination of data in each subsequent year.
(v) Dissemination Media Fee: Subscriber is responsible for paying the cost of the disk drive(s) that OCLC must purchase to fulfill Subscriber's Dissemination requests and shipping the disk drive(s) to Subscriber.
C. OCLC may increase or otherwise change the fees payable by Subscriber for Archive Services and/or modify the fee structure and/or the methods of charging described above effective for Subscriber's next annual renewal period upon not less than sixty (60) days prior notice to Subscriber. Such notice may be given to Subscriber as a part of and by the same methods permitted for notice of renewal provided to Subscriber under Section 10.A of these Terms.
D. Neither party shall have any liability or obligation to the other for indirect, incidental, consequential or exemplary damages, whether based on contract, tort or any other legal theory and regardless of whether a party foresaw such damages.
A. OCLC warrants to Subscriber that it possesses all rights necessary to grant Subscriber a license to use the Archive through the use of Archive Services in accordance with these Terms and Documentation. In the event of any claim that such use by Subscriber violates any third-party copyright or other intellectual property right, OCLC's liabilities and Subscriber's remedies 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 thencurrent 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. Rather, 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.
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 shall 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 Service(s) 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 Service(s) (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 THIRDPARTY PROPRIETARY RIGHTS BY THE ARCHIVE, THE ARCHIVE SERVICES OR ANY PORTION(S) THEREOF.
B. To 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.
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 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 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 party 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 on conditions generally applicable to Archive subscribers. 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 setup 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 thencurrent 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 thencurrent portions of Documentation applicable to abandoned Content Objects, without liability to Subscriber or any third-party.
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 operation of law or otherwise. OCLC may transfer or assign this Agreement or any rights or obligations under 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 Ohio 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 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. The provisions 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 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. Subscriber shall be responsible to OCLC for all costs and damages arising from any failure to meet its obligations hereunder. OCLC's obligations under these Terms are contingent upon necessary export licenses being obtained from federal agencies of the U.S.
I. The following Sections of these Terms shall survive expiration or termination of these Terms for any reason: 4, 8, 9, 10.E and 11.