OCLC, in coordination with ImagineEasy Solutions, LLC (Vendor") will provide access to the services known as EasyBib Library Edition and/or EasyBib School Edition (the"Service") to Subscriber under the terms and conditions specified herein (the"Subscriber Service Terms") and under the terms and conditions as agreed to by End Users in the Vendor Terms of Service. The Vendor Terms of Service are set forth in the online main menu of the Service. The Subscriber Service Terms and the Vendor's Terms of Service, together with the Order Form, represent the entire agreement for access to and use of the Service.
A."Authorized Users" are agents, staff or librarians of Subscriber authorized by Subscriber to use the Service.
B."Effective Date" means the date on which Subscriber has received access to the Service.
C."End Users" means students accredited to Subscriber whether full or part time, patrons of libraries or other institutions served by the libraries and other organizations that subscribe to the Service. End User access via a remote location may be initiated by an End User through Subscriber's online authentication system or, after End User has established a Service Account, through Service Account log-in verification.
D."Group" means the consortium of Group Members identified on the Order Form ordering the Service by executing the Order Form and submitting it to OCLC.
E."Group Administrator" means the lead institution in the Group as indicated on the Order Form. If receiving OCLC Group Services hereunder, the Group Administrator shall be included within the term"Group Member" for purposes of these Terms.
F."Group Member" means any Subscriber for which the Group Administrator has complied with Section 10 below for purposes of binding such library or information agency to these Terms.
G."Service" means the EasyBib Library Edition or EasyBib School Edition citation management service.
H."Subscriber" means libraries, library consortia and their affiliated member libraries, and other organizations that agree to certain terms and conditions and provide payment in exchange for their use of the Service or are otherwise authorized to use the Service, pursuant to agreements with Subscribers.
I."Users" means Authorized Users and End users collectively.
J."Web site" means all properties and services associated with Vendor and EasyBib.com
Participation in the Service is subject to written acceptance by OCLC Online Computer Library Center, Inc, ("OCLC"). OCLC's written acceptance may be indicated by activation of the Service as such Service is described in Vendor's prevailing, published product descriptions. The Service will be subject to the following terms and conditions ("Terms"). All substantial changes to license rights, obligations and rules or Terms of Service will be presented to Subscriber at least thirty (30) days in advance. Thereafter, Subscriber's continued use of the Service constitutes acceptance of any and all Terms of Service.
3. SUBSCRIBER PARTICIPATION
By submitting bibliographic and citation information ("User Submissions") to the Service, Users shall grant OCLC and Vendor a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the Service and Vendor's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service and Web site (and derivative works thereof) in any formats and through any channels. Users also grant each user of the Web site a non-exclusive license to access User Submissions through the Web site, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the Web site and under these Subscriber Service Terms and the Vendor Terms of Service. These licenses are perpetual and irrevocable. Subscriber may not resell or otherwise transfer the Service. Subscriber shall not omit, obscure or hide from any Authorized User or End User any notice of a limitation of warranty, disclaimer, copyright, patent, trademark, trade secret, usage limitation or any logo, splash screen or any other terms and/or conditions intended to be displayed to an Authorized User or End User of the Service by OCLC, Vendor or any involved third party service or provider.
4. USE OF SERVICE
The Service will be available to Subscriber based on an unlimited access model.Subscriber is solely responsible for all security for and all use, including unauthorized use, of the Service initiated through Subscriber's IP addresses, and shall promptly notify OCLC in writing of any unauthorized use discovered.
Subscriber shall work with OCLC and Vendor to terminate unauthorized use of the Service. Subscriber's obligations under this Section are material to this Agreement. Vendor'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 Vendor's possession and to terminate lost or stolen passwords and authorization numbers upon receipt of Subscriber's notice. Upon such termination, Vendor will issue new passwords and authorizations to Subscriber provided that Subscriber is in compliance with these Terms and the lost or stolen passwords or authorization numbers were initially provided Vendor.
Users will have access to the Service through IP Authentication, whereby Users will have immediate access to the Service from IP authenticated Subscriber computers or computers authenticated via the Subscriber's proxy server and can create premium accounts. Subscriber will provide OCLC with appropriate IP ranges in a timely manner.
Within thirty (30) days after the date of each OCLC invoice, Subscriber shall pay or prepay to OCLC the applicable OCLC charges for the Service selected by Subscriber. Charges are exclusive of taxes and Subscriber shall pay any applicable taxes invoiced other than taxes on OCLC's net income. Accounts not paid within thirty (30) days after the date of invoice shall be deemed delinquent and are subject thereafter to interest charges of twelve percent (12%) per annum on the unpaid balance. All payments shall be due and payable no later than thirty (30) days after Subscriber receives an invoice from OCLC. OCLC reserves the right to suspend availability of the Service to a delinquent account upon prior written notice. OCLC will notify Vendor of Subscriber's failure to make such payments. Payments shall be made in U.S. dollars unless otherwise required by OCLC for non-U.S. Subscribers as indicated in invoices, price lists, or other written notices. Unless expressly stated herein, all fees are non-refundable.
This Agreement shall remain in effect for one (1) year from the Effective Date of the Service, and shall be automatically renewed at the end of the current term for successive one (1) year terms unless either party gives written notice of its intention not to renew thirty (30) days before expiration of the current term.
OCLC and Vendor do not share personal information about individual users with any third party except to third parties involved with the provision of the Service, or as described below. If a User submitting their E-mail address or name is determined to be younger than 13 years of age, Vendor will delete this information from its records in accordance with the Children's Online Privacy Protection Act (15 U.S. Code, 6501 et seq.). OCLC or Vendor may use the personal data Subscriber provides online to send the Subscriber information about offers that may be of interest to the Subscriber. OCLC and Vendor require contractual obligations with third parties with which we exchange information as necessary to conduct our business which ensure safeguards for the privacy of the information that we may use. This is the same standard used for information supplied through other means. Only OCLC or Vendor will send Subscriber these direct mailings. In addition, OCLC or Vendor may provide aggregated, User-anonymized statistical data about use of the Service to other persons.
Regarding the use of the Service, Subscriber is subject to the Vendor's Terms of Service, found at http://www.easybib.com/company/terms: If there is any contradiction between the terms in this Agreement and those that are found on the Vendor site, this Agreement will govern.
8. WARRANTIES AND DISCLAIMERS
Vendor shall exert its reasonable best efforts to provide the Service in accordance with then-current published product descriptions. Subscriber shall notify OCLC of nonconformities between the Service and such descriptions, and of any errors or inaccuracies of which Subscriber becomes aware. It is understood that, while OCLC, its licensors and Vendor have attempted to minimize inaccuracies and defects in the data and services furnished, the data and services are provided AS IS. OCLC AND VENDOR MAKE NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE WITH RESPECT TO THE SERVICE OR ITS CONTENT. THE SERVICE AND ALL CONTENT ARE PROVIDED AS IS AND WITHOUT WARRANTY OF ANY KIND.
Neither OCLC, Vendor nor Subscriber shall be liable for any failure or delay in performance hereunder (other than of an obligation to pay money) due to any cause beyond its reasonable control including, but not limited to, acts of God or public enemy, fire, explosion, accident, strikes, governmental actions, delay or failure of suppliers, or delay or failure of the OCLC systems, Vendor Systems or carriers or other difficulties with telecommunications networks provided that the party so effected notifies the other promptly of the commencement, nature and estimated duration of the cause.
OCLC shall not be responsible for any technical support for the Service, but will provide basic customer service support. Except as otherwise expressly provided for herein: (a) neither OCLC and/or its licensors, nor Vendor shall be liable for any loss or damage, lost profits, loss of business, loss of or damage to data, downtime or unavailability, of or in connection with Subscriber's use of the Service and data available over the Service, or from lost or stolen passwords or authorization numbers; (b) OCLC, Vendor and/or their suppliers shall have no liability or obligation to Subscriber, and Subscriber shall have no liability or obligation to OCLC or Vendor hereunder 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; and (c) OCLC, Vendor and/or their licensors shall have no liability nor obligation with respect to the provision or use of the Service, including, without limitation, for any claims based on infringement of copyright, patent, trade secret or other right, libel, slander or invasion of privacy or claims based on errors, inaccuracies or omissions in or loss of the data. In no event, even if the foregoing limitations are held to be not enforceable, shall OCLC's or Vendor's liability hereunder exceed the subscription fees earned by OCLC and paid for by Subscriber for Services and data hereunder for the most recent year.Subscriber shall, to the fullest extent permitted under applicable law, indemnify and hold OCLC and Vendor harmless from all claims based upon or arising from the use of the Service associated with Subscriber's passwords or authorization numbers. Vendor shall indemnify and hold Subscriber harmless from all claims based upon the provision of the Service.
Subscriber represents and warrants that Subscriber understands that the Service allows downloading and storing of information from bibliographic databases and other sources that may be copyright protected. Subscriber should check with the appropriate database provider(s) to ensure compliance with any restrictions such provider(s) may impose. Subscriber shall indemnify and hold OCLC and Vendor harmless from any liability for damages arising from third party infringement claims.
9. GENERAL TERMS
Subscriber agrees to access and use the Service in accordance with the Vendors' Terms and Conditions. OCLC may suspend Subscriber's access to the Service upon written notice at any time that Subscriber is in breach of its material obligations under these Terms, provided that in the event that Subscriber cures such material breach within thirty (30) days, OCLC shall restore such access. In the event that Subscriber fails to cure the breach within thirty (30) days, OCLC may terminate this Agreement upon notice to Subscriber.
No purchase orders separately submitted by Subscriber shall apply to modify or supplement this Agreement. Subscriber may not assign its rights or obligations under these Terms. This Agreement shall be governed by the laws of the State of Ohio and the United States of America. The United Nations Convention on International Sales of Goods shall not apply.
Any notices desired or required to be given by either party pursuant to this Agreement shall be in writing and shall be deemed sufficient if delivered by hand or if sent by certified or registered mail, return receipt requested, to the address of the other party set forth below or to such other address as has been furnished by means of a notice given in accordance with this Section or via facsimile with a copy by U.S. mail:
If to OCLC:
OCLC Online Computer Library Center, Inc.
6565 Kilgour Place
Dublin, Ohio 43017-3395
Attention: Legal Department
If to Subscriber:
To the address provided by Subscriber on the Order Form.
If to Group Administrator, see address on the front of the Group Administrator Order Form.
This Subscriber Agreement is dependent upon the continued Agreement by and between OCLC and Vendor to make available the Service. Should the Agreement between OCLC and Vendor terminate for any reason, OCLC will notify Subscriber as early as possible prior to that termination in order for Subscriber to make other arrangements for access.
If applicable, this Subscriber Agreement is valid and enforceable only if sufficient funds are made available to the state or federal institutions by their respective legislatures for the purpose of this program. It is mutually agreed that if the legislature does not appropriate funds for the program, this Subscriber Agreement shall be terminated or amended to reflect any reduction of funds. The decision to continue with the agreement must be made not later than thirty (30) days after the new fiscal year affected by the legislature funding.
10. SPECIAL TERMS FOR GROUP ORDERS ONLY
Where a Group Administrator is ordering the Service on behalf of itself and Group Members, the below paragraphs apply.
Group Administrator may order the Service on behalf of Group Members by completing the relevant portions of the Order Form and agreeing to these Service Terms.
By placing a group order hereunder (and completing the Group Administrator Order Form), Group Administrator shall be licensed itself to use the Service, subject to the Terms set forth in this Agreement. Group Administrator also orders and allocates authorization for the Service on behalf of Group Members listed on the Group Order Form.
Group Member's Agreement. Group Administrator hereby agrees as agent for each Group Member that each Group Member shall comply with the Service Terms and Conditions. Group Administrator warrants that it is authorized to bind Group Members thereto and shall indemnify OCLC from all loss, expense and damage arising from a breach of such warranty, and Group Administrator shall provide each Group Member with a copy of this Section and the Service Terms and Conditions prior to OCLC activation of an authorization therefor. Group Administrator shall ensure that Group Members comply with such Terms and Conditions.
Where a Group Member is added to the Group subsequent to the Group Administrator's assent to these Service Terms, Group Administrator hereby agrees that as agent for the Group Member, Group Member shall comply with these Terms and Group Administrator will provide a copy of these Terms to Group Member upon becoming a Group Member.
Direct Contract. Subject to OCLC acceptance, each order for Group Members shall constitute a direct contract between OCLC and the Group Member.
Payment by Group Administrator. Group Administrator shall be liable for paying to OCLC all prevailing OCLC charges and applicable taxes for Group Members for the Service. Group Administrator shall not modify such OCLC charges. Accounts not paid within thirty (30) days after the date of invoice shall be deemed delinquent and are subject thereafter to interest charges of twelve percent (12%) per annum on the unpaid balance. All payments shall be due and payable no later than thirty (30) days after Group Administrator receives an invoice from OCLC. OCLC reserves the right to suspend availability of the Service to a delinquent account upon prior written notice. Payments shall be made in U.S. dollars unless otherwise required by OCLC as indicated in invoices, price lists, or other written notices.
Resale. Group Administrator is not a buyer of the Service for resale.
Relationship. The relationship of the parties hereunder is that of independent contractors, and not employee/employer, agent/principal, partners, joint venturers or franchisor/franchisee. Group Administrator is not authorized to make any representations or contract commitments on behalf of OCLC, nor to sign or negotiate any changes to any OCLC terms. Any modifications proposed by any Group Member to the applicable OCLC terms and conditions shall be submitted in writing to OCLC in advance for OCLC's prior written approval.
Non-exclusivity. OCLC's retention of Group Administrator's assistance in making the Service available hereunder shall be on a non-exclusive basis, and nothing herein shall limit OCLC's right to distribute services independent of Group Administrator, including to Group Members.
Other Terms. OCLC shall have the rights and the benefit of all terms set forth in the Service Terms and Conditions included in the Order Form, as amended by OCLC from time to time, with respect to this order as a whole and for Group Administrator and each Group Member individually.
Confidential Terms. Group Administrator agrees to keep the terms and prices of this order as confidential except as to Group Members, and to impose the same duty upon each Group Member.
OCLC ONLINE COMPUTER LIBRARY CENTER, INC.