Subscriber may order the OCLC WorldCat Local Service (the "Service") by completing the relevant portions of the OCLC WorldCat Local Service Order Form (the "Order Form") and agreeing to these OCLC WorldCat Local Terms and Conditions (these "Terms" or, together with the Order Form, this "Agreement"). Subscriber's use of the Service shall be governed by these Terms. OCLC reserves the right, within its sole discretion, to determine eligibility to subscribe to the OCLC WorldCat Local Service.
A. "Service" means the OCLC WorldCat Local Service as made available by OCLC.
B. "WorldCat.org Services" means the Data and other services made available by OCLC through the Service.
C. "End-User" means: (i) an employee of Subscriber; and (ii) a patron to whom Subscriber makes its library services available.
D. "WorldCat" means the OCLC online union catalog, an electronic database of bibliographic records and other information maintained by OCLC
E. "WorldCat.org Terms" means the OCLC WorldCat.org Services Terms and Conditions which are available to End-Users via a link appearing on the Service interface.
F. "Schedule" means a mutually agreed upon schedule for Subscriber's performance of the responsibilities set forth in Section 3.A below.
G. "Specifications" means applicable Service documentation or, in the absence of such documentation, OCLC's then-current, published product descriptions for the Service.
H. "Data" means bibliographic data and other information (including, without limitation, text, images and other content contributed to WorldCat.org Services by users) made available by OCLC or its suppliers through WorldCat.org Services.
I. "Major Functionality" means the Service's ability to perform the following functions with a local library system which is compatible with and supported by the Service: (i) retrieve real-time availability from Subscriber's catalog; (ii) place holds in Subscriber's catalog; (iii) link to Subscriber's resource sharing solution; and (iv) link to Subscriber's full-text OpenURL resolver.
J. "Acceptance Test Period" means the period beginning on the date that OCLC makes the Service available to Subscriber and ending forty-five (45) days thereafter.
2. AVAILABILITY AND USE OF THE SERVICE
A. OCLC agrees to provide the Service substantially in accordance with Specifications.
B. OCLC may, within its sole discretion, determine, add to, delete from or change at any time the specifications, features and/or functionality of the Service and/or WorldCat.org Services. In the event any such determination, addition, deletion or change materially reduces Subscriber's rights with respect to the Service or WorldCat.org Services, OCLC will provide Subscriber with a refund of that portion of the subscription fee paid by Subscriber which is proportionate to the degree which Subscriber's rights have been reduced; provided Subscriber requests such a refund in writing within thirty (30) days after the effective date of such determination, addition, deletion or change and provides reasonable justification for such request. In the event any such determination, addition, deletion or change results in Subscriber's local library system no longer being compatible with or supported by the Service and such incompatibility or lack of support cannot be resolved through OCLC's commercially reasonable efforts, Subscriber shall have the termination rights set forth in Section 4.C below.
C. OCLC grants Subscriber a nonexclusive, nontransferable right to provide End-Users with access to WorldCat.org Services through Service interfaces. Use of WorldCat.org Services by End-Users is governed by the WorldCat.org Terms.
D. Subscriber shall provide OCLC with prompt written notice of any unauthorized use of WorldCat.org Services of which Subscriber becomes aware and provide OCLC with such assistance as is reasonably requested by OCLC to halt such unauthorized use.
3. SUBSCRIBER'S RESPONSIBILITIES
A. In preparation for activation of the Service and in support of the use of the Service and WorldCat.org Services during the term of this Agreement, Subscriber agrees to perform the following tasks in accordance with the Schedule:
(i) load Subscriber's records for its collections into WorldCat, including as applicable:
(ii) regularly synchronize Subscriber's online, offline and Cataloging Partners Program cataloging with WorldCat during the term of the Agreement no less frequently than is necessary to accurately represent Subscriber's holdings;
(iii) index OCLC numbers in Subscriber's local system to support links back to Subscriber's local system;
(iv) work with OCLC staff to configure and test interoperability with Subscriber's local delivery infrastructure, including but not limited to:
(v) work with OCLC staff to identify groups as part of the ranking algorithm, as applicable; and
(vi) Acquire and maintain Internet and other telecommunications connections, services, equipment and facilities necessary to exercise Subscriber's rights hereunder.
B. Subscriber may configure and test the Major Functionality during the Acceptance Test Period. If, during the Acceptance Test Period, OCLC receives notice from Subscriber of any failure of Major Functionality to conform with the Specifications in any material respect, OCLC shall use its reasonable efforts to resolve the nonconforming Major Functionality. Upon OCLC communicating to Subscriber that the nonconforming Major Functionality has been corrected, Subscriber shall have the remainder of the Acceptance Test Period to configure and test the revised Service, and to notify OCLC of any remaining nonconforming Major Functionality. (For example, if OCLC receives notice from Subscriber of nonconforming Major Functionality on the twentieth (20th) day of the Acceptance Test Period, Subscriber would have twenty-five (25) days after OCLC communicates to Subscriber that the nonconforming Major Functionality has been corrected to configure and test the revised Service and notify OCLC of any remaining nonconforming Major Functionality.) If OCLC does not receive notice from Subscriber of nonconforming Major Functionality during the Acceptance Test Period or during the remainder of the Acceptance Test Period after OCLC has provided the
revised Service in response to Subscriber's notice of nonconforming Major Functionality, then Subscriber shall be deemed to have accepted the Service and Major Functionality as of the expiration of the Acceptance Test Period. OCLC'S OBLIGATION TO EXERT ITS REASONABLE EFFORTS OVER A REASONABLE PERIOD OF TIME TO CORRECT NONCONFORMING MAJOR FUNCTIONALITY SHALL BE OCLC'S SOLE LIABILITY AND SUBSCRIBER'S SOLE REMEDY FOR FAILURE OF THE SERVICE AND/OR MAJOR FUNCTIONALITY TO PASS ACCEPTANCE TESTING.
C. Subscriber shall provide OCLC with such assistance and access to Subscriber's computer systems as is reasonably requested by OCLC to support the proper functioning of the Service and WorldCat.org Services, including, without limitation, permitting OCLC to run regular, automated scripts against Subscriber's local library system for purposes of determining that the Service and WorldCat.org Services are functioning properly. Subscriber is responsible for backing-up all existing data, software, and programs before receiving such support from OCLC.
D. Subscriber agrees that OCLC's obligations to provide the Service and WorldCat.org Services hereunder are expressly conditioned upon: (i) Subscriber's full performance of the responsibilities set forth in Section 3.A above in accordance with the Schedule; and (ii) Subscriber's timely cooperation and assistance as described in Section 3.B above. Subscriber's failure to so perform these responsibilities and/or provide this cooperation and assistance may result in OCLC's inability to provide the Service and WorldCat.org Services. OCLC shall have no liability as a result of its inability to provide the Service and/or WorldCat.org Services as a result of Subscriber's failure to perform its responsibilities in accordance with the Schedule or provide timely cooperation and assistance as required above.
4. SUBSCRIBER'S LOCAL LIBRARY SYSTEM
A. The Service and WorldCat.org Services function properly only when interacting with a local library system which is compatible with and supported by the Service. A list of local library systems which are compatible with and supported by the Service is available from OCLC. Prior to placing its order, Subscriber should verify that its local library system is compatible with and supported by the Service.
B. Subscriber agrees to provide OCLC with at least ninety (90) days prior written notice of any material changes to its local library system. Provided Subscriber has paid the system change fee referenced in Section 6.D below, OCLC will use its commercially reasonable efforts to accommodate such changes as they relate to delivery of the Service. Subject to OCLC's obligation to exert its commercially reasonable efforts pursuant to Section 2.B above and this Section 4.B, Subscriber agrees that OCLC's obligation to provide the Service and WorldCat.org Services hereunder is expressly conditioned upon Subscriber's ongoing use of a local library system that is compatible with and supported by the Service.
C. In the event Subscriber's local library system is or becomes incompatible with or unsupported by the Service at any time during the term of this Agreement (as a result of changes to Subscriber's local library system, the Service or otherwise) and OCLC's commercially reasonable efforts (if required) are insufficient to resolve the incompatibility or the lack of support, either OCLC or Subscriber may terminate this Agreement upon written notice to the other party. In the event of such termination, Subscriber shall be entitled to a prorata refund of the annual subscription fee it has paid for the Service. OCLC's obligation to issue such refund and Subscriber's right to receive such refund constitute OCLC's sole and exclusive liability and Subscriber's sole and exclusive remedy in connection with Subscriber's failure to receive the Service and/or WorldCat.org Services due to incompatibility or lack of support between the Service/WorldCat.org Services and Subscriber's local library system.
A. During preparation for implementation of the Service and for thirty (30) days after activation of the Service (i.e., the date on which WorldCat.org Services are first made available to End-Users through the Service), OCLC will provide Subscriber with reasonable levels of assistance to configure the Service. Thereafter, changes to Service configuration are limited to those that can be made by Subscriber using the administrative module provided by the Service. Subscriber may contact OCLC's Help Desk for assistance using the administrative module. Except to the extent Subscriber's employees are the recipients of the support described in this Section 5, WorldCat Local Terms and Conditions 20090413 3 of 4 OCLC has no obligation to provide support services to End-Users.
A. If Subscriber accepts the Service and Major Functionality on or prior to the fifteenth (15th) of the month, OCLC will invoice Subscriber for applicable fees as of the first (1st) of the month in which acceptance occurred. If Subscriber accepts the Service and Major Functionality after the fifteenth (15th) of the month, OCLC will invoice Subscriber for applicable fees as of the first (1st) of the month following the month in which acceptance occurred.
B. Within thirty (30) days after the date of invoice, Subscriber shall pay to OCLC (or, if applicable, Subscriber's regional service provider) the applicable annual subscription fee, implementation fee (if any) and system change fee (if any) for the Service. Fees are exclusive of taxes and Subscriber shall pay any such taxes invoiced from which Subscriber is not exempt 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. OCLC reserves the right to suspend availability of the Service and WorldCat.org Services to a delinquent account with prior notice. Payments shall be made in United States dollars unless otherwise required by OCLC for non-U.S. subscribers as indicated in invoices, price lists, or other written notices.
C. The implementation fee for the Service is a onetime fee provided Subscriber continues to renew its subscription to the Service annually without interruption. If the Subscriber fails to renew its subscription to the Service and re-subscribes at a later date, Subscriber will be obligated to pay an additional implementation fee in connection with the new subscription.
D. In cases where a change to Subscriber's local library system requires OCLC to perform services to accommodate the change in connection with delivery of the Service, OCLC may charge and Subscriber shall pay OCLC's then-current system change fee.
7. TERM AND TERMINATION
A. This Agreement for the Service shall commence on the date OCLC accepts Subscriber's order for the Service (or such other date indicated by OCLC in writing). Unless terminated in accordance with these Terms, this Agreement shall automatically renew annually and Subscriber shall be invoiced accordingly. [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 its subscription to the Service will automatically renew at the end of the then current annual subscription period and of the fees that will apply.] In addition to the termination rights granted elsewhere in these Terms, this Agreement may be terminated by Subscriber or OCLC as follows:
(i) effective at the end of the initial annual subscription period or any renewed annual subscription period upon OCLC or Subscriber providing the other with at least thirty (30) days prior written notice of its desire that the Agreement not renew;
(ii) when a party (i.e., OCLC or Subscriber) in material breach has not corrected the same within fifteen (15) days after notice of such breach from the non-breaching party; or
(iii) upon written notice in the event OCLC is unable to correct nonconforming Major Functionality within a reasonable period of time after receipt of notice thereof from Subscriber during the Acceptance Test Period.
B. In the event of termination by Subscriber due to OCLC's uncorrected material breach, Subscriber shall be entitled to a credit in an amount equal to the annual subscription fee paid for the Service prorated over the remainder of the then-current annual period. (Credits may be redeemed for OCLC products and services only and may be immediately applied by OCLC to amounts invoiced to Subscriber for other OCLC products and services.) In the event of termination by OCLC due to Subscriber's uncorrected material breach, Subscriber shall not receive any type of credit for or refund of fees paid for the Service.
C. Sections 8 and 9 of these Terms shall survive expiration of this Agreement or termination of this Agreement for any reason.
8. DISCLAIMERS AND LIMITATIONS OF LIABILITY
A. EXCEPT AS PROVIDED IN THE FIRST SENTENCE OF SECTION 2.A ABOVE, THE SERVICE AND WORLDCAT.ORG SERVICES ARE PROVIDED "AS IS". OCLC AND ITS SUPPLIERS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, CONCERNING THE SERVICE AND WORLDCAT.ORG SERVICES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE. DATA (IF ANY) RELATED TO THE COPYRIGHT STATUS OF A PUBLICATION OR OTHER ITEM FOR WHICH A RECORD IS AVAILABLE THROUGH WORLDCAT.ORG SERVICES: (i) IS COMPILED BY OCLC OR ITS SUPPLIERS USING REASONABLE EFFORTS; (ii) IS PRESENTED SOLELY FOR INFORMATIONAL PURPOSES; (iii) DOES NOT CONSTITUTE LEGAL ADVICE; AND (iv) IS NOT TO BE CONSIDERED OR RELIED UPON AS A SUBSTITUTE FOR INDEPENDENT VERIFICATION OF COPYRIGHT STATUS.
B. IN NO EVENT, EVEN IF THE FOREGOING LIMITATIONS ARE HELD TO BE UNENFORCEABLE, SHALL OCLC'S LIABILITY HEREUNDER EXCEED THE REFUND OF THE ANNUAL SUBSCRIPTION FEE PAID BY SUBSCRIBER HEREUNDER PRORATED FROM THE DATE OF THE EVENTS RESULTING IN SUCH LIABILITY.
C. Neither party shall have any liability or obligation to the other for indirect, incidental, consequential or exemplary damages (including, without limitation, lost profits or loss of business) whether based on contract, tort or any other legal theory and regardless of whether a WorldCat Local Terms and Conditions 20090413 4 of 4 party foresaw or was advised of the possibility of such damages.
A. OCLC may, without liability, determine, add to, delete from or change at any time (i) which Data and other services comprise WorldCat.org Services; and (ii) the functionality, specifications, form and/or formats of the Service and/or WorldCat.org Services. If OCLC materially reduces Subscriber's rights with respect to the Service or WorldCat.org Services as a result of any such revision, Subscriber may terminate this Agreement by giving written notice to OCLC within thirty (30) days after the revision. In such case, Subscriber shallreceive a prorata refund of the annual subscription fee it has paid.
B. "OCLC", "WorldCat", "WorldCat.org" and the WorldCat logo are trademarks/service marks of OCLC Online Computer Library Center, Inc. Third-party product, service and business names are trademarks/service marks of their respective owners. Subscriber shall not alter or obscure any trademark/service mark appearing in the Service or WorldCat.org Services, and shall do nothing to damage the goodwill embodied therein. OCLC and/or its suppliers own all rights, title and interest, including, without limitation, all intellectual property rights, in and to the Service and WorldCat.org Services. Except as expressly provided for in these Terms, Subscriber and End-Users acquire no rights in or to the Service or WorldCat.org Services.
C. 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 Subscriber submits shall apply to modify or supplement this Agreement. These Terms may be modified only by means of a written document executed by each of the parties.
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 their respective conflict of laws principles. The United Nations Convention on Contracts for the International Sales of Goods shall not apply.
E. Subscriber may not assign or otherwise transfer its rights or obligations under this Agreement without OCLC's prior written consent, which will not be unreasonably withheld. OCLC may assign its rights and/or delegate its obligations under this Agreement by providing Subscriber with written notice at least thirty (30) days prior to the effective date thereof.
F. OCLC and its suppliers shall not be liable for any failure or delay in 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, failure or other difficulties with telecommunications networks.
G. The Service and WorldCat.org Services may not be accessed or used by entities or individuals who are or become subject to United States trade restrictions. The Service andWorldCat.org Services may be used only in full compliance with U.S. export regulations. Subscriber shall be the exporter and importer of record in connection with the Service and WorldCat.org Services as delivered by OCLC to Subscriber outside the United States, and Subscriber 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. OCLC's obligations hereunder are contingent upon necessary export licenses being obtained from federal agencies of the United States.
H. Unless another method is expressly permitted by these Terms, any notices required to be given by either party pursuant to these Terms shall be in writing and shall be deemed sufficient if delivered by hand or sent by certified mail, return receipt requested, to the address of the other party as set forth on the Order Form.
I. Subscriber shall not omit, obscure or hide from any 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 End User by OCLC.
J. Any waiver of any provision of this Agreement must be in writing and signed by the party against whom the waiver is to be enforced.
K. 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.