This document sets forth the terms ("Terms") under which OCLC Online Computer Library Center, Inc. ("OCLC") may now or hereafter provide to the licensee ("Licensee") specified on an order form (or other OCLC-approved ordering document) that incorporates this document by reference (or references a previously executed order form that incorporates this document by reference) and is executed by OCLC and Licensee from time to time (an "Order Form") the following products and services: (i) a license to use the software programs and related products identified in the applicable Order Form ("OCLC Software"), (ii) the maintenance and support services described herein ("Support Services"), and/or (iii) technical and custom services ("Custom Services"), hosting services ("Hosting Services"), installation, and training services (collectively, along with the Support Services, the "Services"). Additional terms governing Support Services and Hosting Services are set forth in separate sections below, which are supplementary to Sections 1---10. References made herein to this "Agreement" include the Terms of this document (including the Sections entitled "Hosting Services" , "Support Services," "Custom Services," "Special Terms for International Licensees," "Special Terms for U.S. Government Licensees," and "Third Party Proprietary Notices Regarding the OCLC Software," as applicable) and any duly-executed Order Form. Each Order Form will be treated as separate and independent from other Order Forms except as otherwise provided therein. Pricing shall be OCLC's then-current pricing as of the date of order. OCLC or its affiliates, service providers or subcontractors may perform some or all of OCLC's services, duties and/or obligations hereunder and Licensee agrees to cooperate with those parties providing such services on OCLC's behalf.
Subject to the terms and conditions of this Agreement, OCLC hereby grants to Licensee a nonexclusive, nontransferable and nonassignable license to load and use in object code form only the OCLC Software described in the Order Form(s) executed by the parties from time to time for Licensee's internal, noncommercial purposes on a single computer system located at the installation address specified in the applicable Order Form(s) during the period (typically one (1) year) for which Licensee has paid the applicable OCLC Software annual license fee. Additional or different rights and/or restrictions may apply to certain OCLC Software programs as expressly set forth in each such applicable Order Form. Licensee may load and use the OCLC Software on multiple CPUs in the designated computer system, provided that each CPU must be located at the designated installation site. The OCLC Software will function only on the designated licensed computer system. Additional designated computer systems and designated sites may be added subject to additional license fees.
Licensee shall use the OCLC Software solely as authorized herein and shall not alter, modify, adapt, reverse engineer, decompile or reverse assemble said programs. Licensee may copy the OCLC Software only as necessary for its licensed use on the designated computer system and for back-up purposes. Except as expressly provided in the preceding sentence, Licensee shall not make, have made or permit to be made any copies of the OCLC Software, or any portion thereof, including related documentation. Each copy made as provided in this Section 2 shall contain the same copyright and/or proprietary right notices which appear on or in the program and/or material being copied. OCLC Software shall not be used by Licensee for commercial purposes.
A copy of the OCLC Software, in object code form and including its related documentation, shall be made available to Licensee upon payment and submission of the Order Form. Licensee shall have sole responsibility for the installation of the OCLC Software, unless Licensee has otherwise specified in the Order Form. Licensee shall be solely responsible for the selection, acquisition, installation and operability of the hardware and related software required to operate the OCLC Software.
In consideration of the license herein granted, Licensee shall pay OCLC the then-current annual license fee upon receipt of invoice following execution of this Order Form. Payments not received by the date due shall be subject to interest at the lesser of eighteen percent (18%) per annum, or the maximum legal rate. All payments to OCLC, pursuant to this Agreement, shall be made in U.S. dollars (or such other currency as may be specified in the Order Form) at the address stated in the Order Form. If Licensee has not specifically requested to be billed directly by OCLC, Licensee understands and agrees that it will be billed by its OCLC-affiliated regional network, if any, as specified on the Order Form, which shall serve as OCLC's billing agent. If Licensee submits its order through an international distributor (as designated on the Order Form), Licensee may be billed by such international distributor, which shall similarly serve as OCLC's billing agent. Licensee shall pay all taxes, including any sales or use tax, or value-added tax (and any related interest or penalty), however designated, imposed as a result of the existence or operation of this Agreement, except any income tax imposed upon OCLC by any governmental entity within the United States. Fees specified under this Agreement are exclusive of any taxes. If OCLC is required to collect a tax to be paid by Licensee, Licensee shall pay such tax to OCLC or its OCLC-affiliated regional network on demand or distributor on demand.
Support Services, including fixes, updates, improvements, modifications and revisions to the OCLC Software, shall be provided to Licensee as set forth below.
OCLC warrants to Licensee that it has the right to grant a license to use the OCLC Software free of claims of third-party copyright. In the event of any claim that such use by Licensee violates any third-party copyright, OCLC's liabilities and Licensee's remedies shall be only as provided in Section 7 below.
EXCEPT AS PROVIDED HEREIN AND IN SECTION 7 HEREOF, OCLC AND ITS LICENSORS DISCLAIM ALL WARRANTIES EXPRESS OR IMPLIED CONCERNING THE OCLC SOFTWARE AND THE SERVICES, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. THE EXPRESS OBLIGATIONS STATED IN THIS AGREEMENT ARE THE ONLY OBLIGATIONS ASSUMED IN RESPECT OF THE MATTERS DEALT WITH IN THIS AGREEMENT. LICENSEE AGREES THAT OCLC AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES HEREUNDER, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR INFORMATION OF ANY KIND OR LOST PROFITS, HOWEVER CAUSED, WHETHER CLAIMED UNDER CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT OCLC OR SUPPORT SERVICES PROVIDER IS MADE AWARE OF THE POSSIBILITY THEREOF. LICENSEE HEREBY WAIVES, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, ANY AND ALL CLAIMS FOR INCIDENTAL, EXEMPLARY AND CONSEQUENTIAL DAMAGES.
In no event shall OCLC's or its licensors' aggregate liability hereunder exceed the total fees paid to OCLC by Licensee pursuant to this Agreement with respect to the OCLC Software program or the Service causing the damage.
OCLC, at its own expense, shall defend any action brought against Licensee, to the extent that it is based on a claim that the OCLC Software used within the scope of the license infringes a United States copyright and shall hold Licensee harmless from any liability for damages, costs, interest, attorneys' fees, license 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 action (and all prior claims relating to such action) and OCLC has sole control of the defense and all negotiations for its settlement or compromise. Licensee shall have the right to appoint an attorney to participate in such defense 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 any OCLC Software becomes, or OCLC is advised by outside counsel that it is likely to become, the subject of an infringement claim, OCLC may at its option either secure Licensee's right to continue using such program, replace or modify it to make it noninfringing (in ways not materially adversely affecting the utility of the program to Licensee), or if none of the foregoing alternatives is reasonably available to OCLC, terminate this Agreement upon written notice to Licensee. In the event of such termination by OCLC, Licensee shall be entitled to a prorata refund of the annual license fee paid pursuant to Section 4. OCLC shall have no liability for any claim of infringement based on (a) use of other than the current unaltered release of the OCLC Software, if such infringement would have been avoided by the use of such current unaltered release or (b) use or combination of the OCLC Software with programs or data not supplied by OCLC to the extent such use or combination caused the infringement. THE FOREGOING STATES THE ENTIRE LIABILITY OF OCLC WITH RESPECT TO INFRINGEMENTS OF PROPRIETARY RIGHTS OF THIRD PARTIES BY THE OCLC SOFTWARE OR ANY PORTION(S) THEREOF.
This Agreement and the license grant set forth in Section 1 hereof shall continue for that period [typically one (1) year] for which Licensee has prepaid the applicable annual license fee, unless terminated by one of the parties in accordance with this Section 8.
Licensee may terminate its license with respect to any OCLC Software delivered hereunder, for any reason, within forty-five (45) days following the date of delivery of such OCLC Software, and shall be entitled to a full refund of license fees paid for such OCLC Software.
Thereafter, Licensee may terminate its rights under this Agreement at any time by notice to OCLC, provided that in the event of such termination, any license fees previously unpaid or other amounts due become immediately due and payable and Licensee shall not be entitled to a refund of any license fees or other amounts paid.
If Licensee fails to fulfill one or more of its obligations under this Agreement, OCLC may, upon its election and in addition to any other remedies that it may have, at any time terminate this Agreement or any or all of the rights granted by it hereunder by not less than thirty (30) days' prior notice to Licensee specifying any such breach, unless within the period of such notice all breaches specified therein shall have been remedied.
OCLC at its option may terminate this Agreement or any or all of the rights granted by it hereunder upon notice to Licensee if Licensee shall become bankrupt or shall assign its business for the benefit of creditors or if any receiver, trustee, or similar officer shall be appointed to take charge of Licensee's business or properties.
Notwithstanding anything in this Agreement to the contrary, OCLC may terminate this Agreement (or any portion hereof) and Licensee's rights corresponding thereto upon twenty (20) days prior notice due to conditions generally applicable to licensees of the OCLC Software. In such case and unless otherwise provided for by this Agreement, OCLC shall promptly refund to Licensee on a prorata basis fees previously paid by Licensee to OCLC which correspond to the terminated portion of this Agreement.
Upon any termination of this Agreement or rights granted hereunder as provided in this Section, Licensee shall immediately deinstall and discontinue use of the OCLC Software affected by such termination, and shall promptly certify that it has discontinued use of and returned or destroyed all copies of the affected OCLC Software then in its possession, including all documentation related thereto.
Licensee acknowledges that the OCLC Software are confidential information and trade secrets of OCLC and its third-party licensors. Except as expressly provided in Section 2 above, Licensee shall hold all portions of the OCLC Software, including without limitation, all code, functional specification, the methods and concepts utilized therein and the documentation related thereto, and the material terms of this Agreement, hereinafter collectively referred to as "Confidential Information", in confidence. Licensee further agrees that it shall not make any disclosure of any or all Confidential Information to anyone, except to employees of Licensee to whom such disclosure is necessary to the use for which rights are granted hereunder. Licensee shall appropriately notify each employee to whom any such disclosure is made that such disclosure is made in confidence and shall be kept in confidence by such employee. If any Confidential Information at any time becomes available without restriction to the general public by acts not attributable to Licensee or its employees or agents, Licensee's obligations under this Section shall not apply to such generally available information after such time. Licensee's obligations under this Section shall survive the termination of this Agreement for any reason and shall continue thereafter for a period of ten (10) years.
Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable, sublicensable or otherwise transferable by Licensee by operation of law or otherwise, and any purported assignment, sublicense or transfer shall be null and void. OCLC may transfer or assign this Agreement or any rights or obligations under this Agreement upon written notice to Licensee. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
The OCLC Software, including all documentation related thereto and all related software fixes, updates, improvements, modifications and revisions hereafter delivered to Licensee under this Agreement or as a part of Support Services provided hereunder and any copy of all or a portion thereof, are the property of OCLC (or its third-party licensors) and all rights, title and interest therein shall remain in OCLC (or its third-party licensors).
The Agreement, including any subsequent Order Form(s) executed by both parties, is 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. It is expressly agreed that all terms set forth on any Licensee purchase order or ordering document will not apply and are superseded by the terms of this Agreement. To expedite processing of this Order, OCLC may treat documents provided by Licensee to OCLC or its designee via Fax as originally-executed documents. Nevertheless, either party may require the other to exchange originally executed documents. 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.
This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, U.S.A. without regard to principles of conflicts of law. Any notice required or allowed under this Agreement shall be in writing, signed by the party giving notice, and shall be deemed properly given (a) upon actual delivery to an officer of the receiving party, if delivery is by hand, (b) upon receipt by the transmitting party of confirmation or answer back if delivery is by telex, telegram, facsimile, or electronic mail, (c) upon delivery into the mail of the country of the party giving notice, postage prepaid, registered or certified return-receipt-requested, or (d) 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 front of the Order Form.
Neither party shall be liable for any failure or delay in performance under this Agreement (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 this Agreement, 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. Dates by which performance obligations are scheduled to be met will be extended only for a period of time equal to the time lost directly due to any delay so caused.
The provisions of this Agreement are to be deemed severable, and the invalidity or unenforceability of any provision shall not affect or impair the remaining provisions which shall continue in full force and effect. 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.
If Licensee orders Hosting Services from OCLC and OCLC accepts Licensee's order, Hosting Services will be provided by OCLC. Hosting Services include the required server hardware and software to run the OCLC Software system, server installation, upgrades to OCLC Software and OCLC Software back-ups.
Support Services shall be provided by OCLC.
THIRD PARTY PROPRIETARY NOTICES REGARDING THE OCLC SOFTWARE