Libraries may order the WorldCat Knowledge Base Service and/or the OCLC WorldShare License Manager Service (which requires use of the WorldCat knowledge base) by completing the relevant ordering/profiling document(s) (the "Order Form") made available by OCLC Online Computer Library Center, Inc. ("OCLC") and agreeing to the terms and conditions set forth in these WorldCat® Knowledge Base & OCLC WorldShare® License Manager Service Terms (these "Terms" or this "Agreement"). These Terms (excluding Section C) shall also govern use of the WorldCat knowledge base through the OCLC WorldShare Metadata collection management service. (If Institution orders the OCLC WorldShare Metadata collection management service, the WorldCat knowledge base will be available to Institution through the collection management service interface.) OCLC reserves the right, within its sole discretion, to determine eligibility to subscribe to the WorldCat Knowledge Base Service or the OCLC WorldShare License Manager Service.
For the purposes of these Terms, the following definitions shall apply:
1. "E-Resource Management" means Institution's internal use of Rights Information for purposes of ascertaining the rights, obligations, terms and conditions that apply to the electronic resources in Institution's collections.
2. "Institution" means a library that: (i) orders the KB Service and/or the License Manager Service; or (ii) uses the KB Service through the OCLC WorldShare Metadata collection management service interface.
3. "Institution Rights Information" means Rights Information that Institution chooses to contribute to the License Manager Service.
4. "KB Service" means access to and use of the WorldCat knowledge base as described in these Terms as a stand-alone service, in conjunction with the License Manager Service or through the OCLC WorldShare collection management service interface.
5. "Library Profile Information" means information prescribed by OCLC and provided by Institution that describes or otherwise relates to the electronic resources to which Institution subscribes. Library Profile Information may be created by Institution and/or obtained by Institution from a third-party source.
6. "License Manager Service" means the OCLC WorldShare License Manager Service as made available by OCLC.
7. "Rights Information" means information accessible through the License Manager Service regarding electronic resources (including, without limitation, usage rights and restrictions and other applicable license terms and conditions).
8. "Services" means the KB Service and the License Manager Service, collectively.
B. THE KB SERVICE.
1. The KB Service delivered to Institution will be comprised of: (i) ingesting Library Profile Information into the WorldCat knowledge base; (ii) creating and maintaining for Institution in the WorldCat knowledge base a profile of the electronic resources to which Institution subscribes ("Institution's Profile"); and (iii) integrating Institution's Profile (to the extent appropriate as determined by OCLC) into OCLC's and its affiliates' services to which Institution subscribes for purposes of facilitating the delivery of those services to Institution. OCLC will provide the KB Service to Institution substantially in accordance with the Order Form, these Terms, applicable KB Service documentation and other directions agreed to in writing by the parties (collectively, the "Specifications"), according to OCLC-defined schedules which shall be communicated to Institution upon request.
2. Institution will provide Library Profile Information to OCLC as set forth in the Order Form submitted by Institution. All Library Profile Information submitted to OCLC shall conform to the Specifications.
3. Upon receipt of Library Profile Information from Institution, OCLC will: (i) test and evaluate Library Profile Information to verify that it conforms to Specifications; (ii) ingest Library Profile Information conforming to Specifications into the WorldCat knowledge base; (iii) create and maintain Institution's Profile in the WorldCat knowledge base; (iv) integrate Institution's Profile into OCLC's and its affiliates' services to which Institution subscribes for purposes of facilitating delivery of those services to Institution; and (v) distribute Institution's Profile (in whole or in part) to Institution as specified by Institution on the Order Form for use as authorized by these Terms.
4. Library Profile Information conforming to Specifications will be accepted by OCLC as provided by Institution, with no OCLC validation at the local level or during processing. Institution's Profile shall be distributed to Institution "AS IS" and based on Library Profile Information provided by Institution. OCLC will correct Institution's Profile containing inaccuracies when such inaccuracies are caused through the fault of OCLC, provided that Institution notifies OCLC of such inaccuracies. THE REPLACEMENT OF INSTITUTION'S PROFILE SHALL BE OCLC'S SOLE AND EXCLUSIVE LIABILITY AND INSTITUTION'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INACCURACIES IN INSTITUTION'S PROFILE.
5. Institution recognizes that Library Profile Information may be subject to copyright or other intellectual property rights protection and/or certain contractual restrictions. Institution is responsible for obtaining all permissions and other rights necessary to provide Library Profile Information to OCLC for use in the KB Service under these Terms. Institution will not provide OCLC with any Library Profile Information that Institution does not have the right to provide for use in connection with the KB Service under these Terms.
6. Institution and/or its suppliers retain all rights, title and interest in and to Library Profile Information provided to OCLC under these Terms, subject to the rights therein granted to OCLC by these Terms. Institution may use Institution's Profile distributed to Institution through the KB Service without restriction; except that, if Institution provided OCLC with Library Profile Information obtained from a third-party source, Institution may be required to comply with usage and other restrictions imposed by the third-party source.
7. Institution represents and warrants to OCLC that it has all rights necessary to provide Library Profile Information to OCLC for use in connection with the KB Service and as otherwise authorized by these Terms (collectively, the "Rights"). OCLC, its affiliates and those viewing Institution's Profile have the absolute right (without independent verification) to rely on the accuracy, completeness and currency of Library Profile Information contained or otherwise reflected in Institution's Profile when making use of Institution's Profile as authorized by these Terms, including, without limitation, when ascertaining Institution's rights in and to the electronic resources identified in Institution's Profile. NEITHER OCLC, ITS AFFILIATES NOR ANY OTHER PARTY SHALL HAVE ANY LIABILITY OF ANY KIND ARISING FROM ITS/THEIR RELIANCE ON LIBRARY PROFILE INFORMATION AS PROVIDED BY INSTITUTION.
8. In the event of unauthorized use of the electronic resources identified in Institution's Profile as a result of inaccurate, out-of-date, incomplete or otherwise defective Library Profile Information supplied to OCLC hereunder (other than such defects caused by OCLC or its affiliates), Institution shall be responsible for paying the relevant publisher or provider the applicable fees due as a result of such unauthorized use. To the extent permitted by applicable law, Institution agrees to defend, indemnify and hold OCLC harmless from all liabilities, damages, losses, costs and expenses (including attorneys' fees) incurred as a result of third-party claims: (i) alleging that Institution did not or does not possess the Rights; or (ii) arising from inaccurate, out-of-date, incomplete or otherwise defective Library Profile Information supplied to OCLC hereunder (other than such defects caused by OCLC or its affiliates).
9. Institution hereby grants to OCLC, its subsidiaries and affiliates and their respective members, non‑member users, designees and other authorized parties a perpetual, irrevocable, nonexclusive, royalty-free, sublicensable, transferable, world‑wide right to copy, display, modify, publish, prepare derivative works from, distribute and use (individually, in compilations and otherwise) all Library Profile Information supplied to OCLC by Institution (or any entity acting on its behalf) and/or Institution's Profile, in whole or in part.
10. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, OCLC DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, CONCERNING THE KB SERVICE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE.
C. THE LICENSE MANAGER SERVICE.
PLEASE NOTE: This Section C applies only if Institution orders the License Manager Service.
1. OCLC will provide the License Manager Service to Institution substantially in accordance with applicable License Manager Service documentation or, in the absence of such documentation, OCLC's then-current, published service descriptions for the License Manager Service.
2. Subject to these Terms, OCLC grants Institution a nonexclusive, nontransferable right and license to use the License Manager Service solely for E-Resource Management. Institution shall not (i) distribute, display or disclose Rights Information except to the extent reasonably necessary for E-Resource Management; or (ii) use or make the License Manager Service available to provide E-Resource Management for third-parties other than those individuals making use of the electronic resources in Institution's collections.
3. The License Manager Service affords Institution the opportunity to contribute Rights Information for use by other users of the License Manager Service. The following apply to Rights Information contributed by Institution (i.e., Institution Rights Information): (i) Institution is responsible for complying with the requirements of all applicable copyright laws and other laws applicable to Institution Rights Information; and (ii) neither Institution nor its staff may use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of Institution Rights Information. Institution Rights Information is permanently contributed to the License Manager Service for use by OCLC and others in accordance with these Terms. OCLC does not regularly review Institution Rights Information; however, OCLC reserves the right (but does not have the obligation) to remove, without liability, Institution Rights Information reasonably determined by OCLC to be inaccurate, misleading, out-of-date, incomplete, in violation of the above requirements or otherwise unsuitable for E-Resource Management. OCLC takes no responsibility and assumes no liability for or in connection with any Institution Rights Information or any OTHER Rights Information contributed by a user of the LICENSE MANAGER Service.
4. Institution hereby grants to OCLC (including its subsidiaries and affiliates) a perpetual, irrevocable, transferable, sublicensable, worldwide, royalty-free license to use, copy, reproduce, display and distribute Institution Rights Information. Institution also grants other users of the License Manager Service a perpetual, irrevocable and free of charge license to use Institution Rights Information as necessary for use of the License Manager Service. Subject to the foregoing license grants, Institution and/or its suppliers retain ownership of all rights, title and interest in and to Institution Rights Information.
5. Institution shall use its reasonable efforts to ensure that: (i) it has all rights necessary to contribute Institution Rights Information for use in the License Manager Service and as otherwise authorized by these Terms (collectively, the "Contribution Rights") ; and (ii) Institution Rights Information is not inaccurate, misleading, out-of-date, incomplete or in violation of these Terms.
6. In the event of unauthorized use of electronic resources as a result of inaccurate, misleading, out-of-date, incomplete or otherwise defective Institution Rights Information (other than such defects caused by OCLC or its affiliates), Institution shall be responsible for paying the relevant publisher or provider the applicable fees due as a result of such unauthorized use. To the extent permitted by applicable law, Institution agrees to defend, indemnify and hold OCLC harmless from all liabilities, damages, losses, costs and expenses (including attorneys' fees) incurred as a result of third-party claims: (i) alleging that Institution did not or does not possess the Contribution Rights; or (ii) arising from inaccurate, misleading, out-of-date, incomplete or otherwise defective Institution Rights Information (other than such defects caused by OCLC or its affiliates).
7. RIGHTS INFORMATION ACCESSIBLE THROUGH THE LICENSE MANAGER SERVICE IS SUPPLIED BY LIBRARIES USING THE LICENSE MANAGER SERVICE AND OTHER THIRD-PARTY SUPPLIERS. RIGHTS INFORMATION IS MADE AVAILABLE TO INSTITUTION ON AN "AS IS" BASIS. OCLC HAS NOT AND IS NOT OBLIGATED TO VERIFY RIGHTS INFORMATION. OCLC DOES NOT REPRESENT OR WARRANT THE COMPLETENESS OR ACCURACY OF RIGHTS INFORMATION OR THE RESULTS TO BE OBTAINED THROUGH USE OF OR RELIANCE ON RIGHTS INFORMATION. OCLC MAKES NO WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, AND DISCLAIMS ALL SUCH WARRANTIES AND REPRESENTATIONS WITH RESPECT TO RIGHTS INFORMATION, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
8. INSTITUTION ACKNOWLEDGES THAT NEITHER RIGHTS INFORMATION NOR THE LICENSE MANAGER SERVICE ARE TO BE REGARDED AS LEGAL ADVICE OF ANY TYPE OR AS RESULTING IN THE FORMATION OF ANY ATTORNEY/CLIENT RELATIONSHIP OR PRIVILEGE BETWEEN INSTITUTION OR ANY INSTITUTION STAFF MEMBER OR PATRON AND OCLC.
D. TERM AND TERMINATION.
1. With respect to the KB Service and the OCLC WorldShare Metadata collection management service, this Agreement shall commence on the start date(s) specified by OCLC and remain in effect until:
(i) terminated by either party entirely in its own discretion and for any reason whatsoever, upon not less than ninety (90) days' prior written notice to the other; or
(ii) termination or expiration of Institution's OCLC Cataloging Subscription; or
(iii) terminated by written notice when a party (i.e., OCLC or Institution) in material breach of this Agreement has not corrected the same within twenty (20) days after notice of such breach from the non-breaching party.
2. With respect to the License Manager Service, this Agreement shall commence on the start date(s) specified by OCLC and remain in effect for one (1) year. Thereafter, this Agreement as applicable to the License Manager Service shall automatically renew annually at applicable pricing unless terminated as permitted by this Section D.2. Institution's access to the License Manager Service under this Agreement shall terminate:
(i) upon OCLC or Institution providing the other with at least ninety (90) days prior written notice of its desire that Institution's access to the License Manager Service not renew; or
(ii) upon expiration or termination of Institution's OCLC Cataloging Subscription; or
(iii) when a party (i.e., OCLC or Institution) in material breach of this Agreement has not corrected the same within twenty (20) days after notice of such breach from the non-breaching party.
3. In the event of termination by Institution due to OCLC's uncorrected material breach, Institution shall be entitled to a prorata refund of fees paid for the Services terminated. In the event of termination by OCLC due to Institution's uncorrected material breach, Institution will not receive any type of refund of or credit for fees paid for the Services terminated.
E. GENERAL TERMS AND CONDITIONS.
1. OCLC may, without liability, determine, add to, delete from or change at any time: (i) the Rights Information available through the License Manager Service, and/or (ii) the technical and functional features, specifications, form and formats of the Services.
2. Institution is solely responsible for all security for and all use, including unauthorized use, of the Services initiated by Institution's user names and passwords, and shall promptly notify OCLC in writing of lost or stolen passwords and user names. OCLC's sole obligation with respect to passwords and user names shall be to exert reasonable efforts to maintain the confidentiality of Institution's passwords and user names in OCLC's possession and to terminate lost or stolen passwords and user names upon receipt of Institution's notice. Upon such termination, OCLC will issue new passwords and user names to Institution provided that Institution is in compliance with these Terms.
3. Within thirty (30) days after receipt of OCLC's invoice, Institution shall pay to OCLC, in United States Dollars, the applicable (if any) fees for the Services. Institution shall provide OCLC with a tax exemption certificate evidencing any claimed exemption. If Institution is or becomes nonexempt from any sales, use or similar tax on the transactions subject to this Agreement, Institution shall pay all such taxes, including as applicable, any penalties and/or interest due.
4. OCLC SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR EXEMPLARY DAMAGES, HOWEVER CAUSED, WHETHER BASED IN CONTRACT, TORT, OR OTHER LEGAL THEORY, AND REGARDLESS OF WHETHER OCLC HAD PRIOR KNOWLEDGE OF SUCH DAMAGES. IN NO EVENT (EVEN IF THE LIMITATIONS OF LIABILITY PROVIDED IN THIS AGREEMENT ARE HELD TO BE UNENFORCEABLE) SHALL OCLC'S CUMULATIVE LIABILITY WITH RESPECT TO THE SERVICES EXCEED THE REFUND OF CHARGES ACTUALLY PAID TO OCLC UNDER THESE TERMS FOR THE CURRENT ANNUAL PERIOD.
5. These Terms constitute the complete, final and exclusive statement of the parties' agreement with respect to the subject matter hereof and are not intended to confer upon any person other than the parties hereto any rights or remedies. No purchase orders or other forms submitted by Institution shall apply to modify or supplement these Terms. These Terms may be modified only by means of a written document executed by Institution and OCLC.
6. 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 their respective conflict of laws principles. The United Nations Convention on Contracts for the International Sales of Goods shall not apply.
7. Institution may not assign or otherwise transfer its rights or obligations under this Agreement. OCLC may assign or otherwise transfer this Agreement by providing Institution with written notice of such assignment or transfer.
8. OCLC and/or its suppliers shall not be liable for any failure or delay in its/their performance hereunder due to any cause beyond its/their 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 or other difficulties with telecommunications networks.
9. The Services may be used only in full compliance with U.S. export regulations. OCLC's obligations hereunder are contingent upon necessary export licenses being obtained from federal agencies of the United States.
10. Notices required to be given pursuant to these Terms may be provided: (i) to Institution, to an email address or mailing address provided by Institution on the Order Form; and (ii) to OCLC, to the following OCLC mailing address: OCLC Online Computer Library Center, Inc, 6565 Kilgour Place, Dublin, Ohio, USA 43017-3395, Attention: Legal Department.
11. Any waiver of any provision of these Terms must be in writing and signed by the party against whom the waiver is to be enforced.
12. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be deemed superseded by a valid enforceable provision that most closely matches the intent of the original provision and the remaining provisions shall be enforced.
13. The following Sections of these Terms shall survive expiration or termination of this Agreement for any reason: B.4, B.5, B.6, B.7, B.8, B.9, B.10, C.3, C.4, C.5, C.6, C.7, C.8, E.4, E.5, E.6, E.7, E.8, E.11, E.12 and E.13.