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 THE EZPROXY HOSTING SERVICE.
OCLC reserves the right to determine whether a party is eligible to make use of the EZproxy Hosting Service and to refuse access to the Hosting Service to any party for any reason in OCLC’s sole discretion.
1.1 General. OCLC will provide the hosting services set forth 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 OCLC's hosted EZproxy for institution’s content ("Institution’s Content"), and (c) secure and maintain connectivity with third-party telecommunication providers, all as necessary to host the Institution's Content via the Internet in accordance with this Agreement. Institution is responsible for securing and maintaining its own Internet connectivity to access the Services.
1.2 Domain Names. OCLC will provide and select the appropriate domain name for Institution ("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. 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. OCLC will not have any liability on account of any inability to use any Institution Domain.
1.3 IP Addresses. OCLC may assign, via a third party service provider, IP addresses to Institution as part of the Services. 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, attached hereto as Exhibit "A". 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. 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.
1.5 Bandwidth, Storage and Other Limits Usage. OCLC is not obligated to provide any certain amount of bandwidth, storage or other resources.
1.6 Modifications to Services. OCLC reserves the right to change or modify the Services, the terms and conditions of this Agreement, or any policy or guideline applicable to the Services, at any time in its sole discretion. 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, or any governing policy or guideline, Institution's sole remedy is to immediately terminate this Agreement. Institution's continued use of the Services following the effective date of any changes or modifications to this Agreement, or any policy or guideline will constitute Institution's acceptance of such changes or modifications.
1.7 Configuration of EZproxy: Existing Institutions may submit configurations to OCLC to make modifications of active configurations. There is no guarantee that OCLC can configure all electronic resources in a configuration file. New institutions may work with OCLC to create a configuration file, but again, there is no guarantee that all electronic resources may be configured. Institutions may also attempt to configure resources themselves and submit to OCLC for review. OCLC reserves the right to approve such configurations, in OCLC’s sole judgment and discretion. All configurations must be known working configurations, as determined by OCLC. There will be no access through standard UNIX utilities. A list of supported resources will be available on the OCLC website. As part of the initial configuration for the Services, Institutions may have up to ten (10) hours of configuration services provided by OCLC under this Agreement. If greater than ten (10) hours is required by the Institution, then OCLC will notify Institution and charge its standard consulting rate of one hundred fifty dollars ($150.00) per hour for those additional services, which will be directly billed to the Institution. There is no guarantee that all of the resources and authentication methods may be configured.
2. Institution Content; Acceptable Use.
2.1 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 B. 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.
2.2 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 users, 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. Institution agrees to reimburse OCLC for all costs associated with OCLC's compliance with all lawful governmental requests relating to Institution or Institution Content, including, but not limited to, warrants, subpoenas and judicial orders.
2.3 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 a 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; and (d) the Institution will comply with all applicable laws, rules and regulations (including, but not limited to, export control, decency, privacy and intellectual property laws).
3. Term of Service.
3.1 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 ninety (90) days prior written notice; provided that, OCLC may immediately terminate this Agreement for Institution's or its users' violation of the Acceptable Use Policy, or if the Hosting Service is discontinued by OCLC.
3.2 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.
4. Reservation of Rights.
4.1 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, and any know-how, methodologies, equipment, or processes used by OCLC to provide the Services to Institution (including, without limitation, the OCLC's Systems).
4.2 By Institution. Institution is the exclusive owner of and retains all right, title and interest (including, without limitation, all proprietary rights) to the Institution Content. In the event of a failure to renew or other termination of this Agreement, Institution may request the configuration files necessary to run EZproxy. Notwithstanding anything in these Terms to the contrary, if Institution fails to request the configuration files within 30 days after the expiration or the effective date of termination of this Agreement, OCLC may delete or remove these files from its systems without liability to Institution or any third-party.
5. Disclaimers and Limitations
5.1 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.
5.2 Limitation of Liability. OCLC WILL HAVE NO LIABILITY FOR ANY DIRECT, 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 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.
5.3 Force Majeure. OCLC 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.
6.1 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.
6.2 Independent Contractors. OCLC and its personnel, in performance of the Services, are acting as independent contractors and not as employees or agents of Institution.
6.3 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.
6.4 No Assignment. Institution may not assign, without the prior written consent of OCLC, 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.
6.5 Governing Law; Attorneys' Fees; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Ohio. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. Venue for any action or proceeding under this Agreement will be in a federal or state court of competent jurisdiction located in Franklin County, Ohio.
6.6 Headings. Headings herein are for convenience of reference only and will in no way affect interpretation of this Agreement.
6.7 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.
6.8 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.
6.9 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.
6.10 Subcontracting: OCLC reserves the right to subcontract, in whole or in part, the Services to be performed under these Terms, but should it elect to do so shall remain liable to Institution, pursuant to the terms of this Agreement, for the services to be performed under this Agreement.
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 99.8% of the time (the "Uptime Commitment"). The Uptime Commitment will be measured as follows:
Uptime Commitment= (T-P-D)/(T-P) * 100%
T=the total number of minutes in the respective month
P=planned outages (which will not exceed four (4) hours per month), telecommunications or power disruptions caused by third parties, any other causes beyond OCLC’s reasonable control, and excluding other times described herein.
D-the total number of minutes of unplanned downtime in the month.
OCLC agrees to notify Institution 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 or disruption in the Services.
Scheduled maintenance may occur any Sunday from 02:00 to 06:00 ET. Notice of scheduled maintenance shall occur 3 days prior to scheduled downtime. Other maintenance such as updating configurations will be scheduled with the institution.
In the event planned emergency maintenance is required, OCLC will make commercially reasonable efforts to notify Institution in advance.
In the event of a disaster at OCLC’s primary data center, OCLC will restore Services in its secondary center within 4 hours of disaster declaration.
Remediation: Post Mortem meetings are held as needed following any outages to identify root cause and specify corrective and/or preventive actions needed to prevent recurrence. Corrective and preventive action plans, as relevant, will be shared with Institution via email.
2. Response Time Commitment
2.1 Response Times. The Service shall provide the following:
95% of Transactions complete within three (3) seconds across ten (10) minute reporting windows during peak business hours (7am-9pm Eastern Time)
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
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 server monitoring and automated paging technology.
3.3 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 server, peripheral, operating system or database vendors regarding upgrades, defect patches or fixes.
4. Exclusive Remedy.
OCLC will use commercially reasonable efforts to correct any material problems in the Services, including any failure to satisfy the Uptime Commitment. In the event that OCLC fails to satisfy the Uptime Commitment for any two months in a rolling one year period and you provide written notice within thirty (30) days of the end of such month for each event, 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:
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.
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.oclc.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.
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, repuration, good will, other OCLC customers, or any third party.
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:
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 limited 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 information) 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 firstname.lastname@example.org.