OCLC License Terms and Conditions

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.

HOSTING SERVICES
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.

1. Hosting Services. OCLC will host the OCLC Software for Licensee on the hardware and software described above and provide the Hosting Services support set forth in this Agreement. All other hardware and software, as defined in the OCLC ILLiad Administrative Suite Installation Guide shall be the responsibility of the Licensee. OCLC reserves the right to modify Hosting Services from time to time. If any such change has a material adverse affect on the functionality of the Hosting Services and OCLC fails to correct such material adverse affect within thirty (30) days after receipt of notice thereof from Licensee, Licensee may terminate Hosting Services.
2. Licensee Responsibilities. Licensee shall install and maintain the client portion of the OCLC Software and all additional client software specified by the then-current OCLC ILLiad system requirements on Licensee's Authorized Workstations. Licensee shall complete the ILLiad Installation Wizard which is provided as part of the OCLC Software installation packet. Licensee is responsible for establishing and maintaining its Internet connection necessary to access and use Hosting Services. Licensee agrees to defend, indemnify and hold harmless OCLC and its licensors from any losses, damages, costs, liabilities or expenses resulting from any third party claim or allegation arising out of, or relating to, use of Hosting Services in violation of this Agreement.
3. Technical Support. Licensee acknowledges that all support for the OCLC Software hosted on behalf of Licensee as part of Hosting Services shall be provided as defined by OCLC. Support shall be available via telephone and email during OCLC's basic service hours. In addition to telephone and email support, OCLC shall provide Licensee with consulting and technical services regarding installation, customization and setup of the OCLC Software on the server-side only per the order matrix or quote. Licensee acknowledges and agrees that OCLC will provide all server-side installation, customization, setup and support, and that neither Licensee nor any third party engaged by Licensee shall be permitted to provide such services.
4. Disclaimer. OCLC accepts no responsibility for the content, accuracy or quality of the information passing through OCLC Software hosted on OCLC's servers. Use of any such information is at Licensee's own risk.
5. Data Ownership; Loss. All data created or transmitted by Licensee and stored on OCLC servers as part of Hosting Services ("Licensee Data") shall at all times be owned by Licensee. Except as instructed by Licensee directly or through instructions provided to the servers through Licensee's use of the OCLC Software, OCLC shall treat Licensee Data as confidential information. Upon termination or cancellation of this Agreement for any reason, OCLC shall return all Licensee Data to Licensee in the file format used by the OCLC Software. As a convenience for Licensee, OCLC shall perform a regular backup of all Licensee Data, but OCLC shall in no event be liable to Licensee or any third party for loss, destruction or corruption of Licensee Data. Licensee agrees and acknowledges that it is in a better position to foresee and evaluate any potential damage or loss it may suffer in connection with loss of Licensee Data and that the fees payable under this Agreement have been calculated on the basis that OCLC shall exclude liability as provided in this Section.
6. Security. All access to Hosting Services shall be controlled by user names and passwords issued by OCLC to Licensee from time to time upon request by Licensee. Each user name and password will be unique to each staff member that Licensee designates as authorized to access Hosting Services. Licensee is solely responsible for the security of the user names and passwords issued to Licensee's staff members. Any access to Hosting Services using such user names and passwords will be deemed access by Licensee, except where access is the result of unauthorized disclosure of user names and passwords by the negligent or willful act of OCLC. Upon request by Licensee, OCLC will either (i) obtain (at Licensee's sole cost and expense) and install a digital secured server certificate for Licensee or (ii) install a digital secured server certificate provided by Licensee.

Support Services shall be provided by OCLC.

1. INITIAL TERM OF SUPPORT SERVICES.
   For each one (1) year period for which Licensee has prepaid the annual license fee, OCLC shall provide Support Services, as described herein, at no additional charge for initial licenses of OCLC Software by the Licensee, upon the effective date of the initial Order Form for such OCLC Software.
2. SUPPORT SERVICES TO BE PROVIDED.
   Support Services will be provided during OCLC's basic service hours and such Support Services shall be as described herein. OCLC shall provide Licensee with telephone assistance to Licensee telephone inquiries related to the reporting of errors or other problems with the OCLC Software. OCLC shall use its reasonably diligent efforts to identify problems, including isolation or replication of the problem either by reproduction at OCLC's facility or through remote access to Licensee's facility, as may be required to make an initial determination whether the problem source is in the OCLC Software. If the problem is determined to be in the OCLC Software and not user/procedural or hardware-related, OCLC shall proceed with problem resolution and shall use reasonable efforts to correct the error or other problem within a reasonable time. A problem, for the purposes of this Agreement, is defined as a failure to operate or function substantially in conformance with the then-current documentation for that OCLC Software program as provided to Licensee. If a problem is determined by the parties to be critical, OCLC shall endeavor to develop an emergency bypass or temporary workaround for use by Licensee until availability of a permanent solution in the form of a software fix, modification or revision as referred to below. Such software fixes, modifications and revisions shall be delivered in a manner to be agreed upon by the parties.
3. ON-SITE SUPPORT SERVICES.
   OCLC shall dispatch personnel to Licensee's facilities for on-site support only in emergency situations in which Licensee requests on-site service. On-site support shall be subject to availability of personnel. Licensee shall pay for all reasonable expenses incurred by personnel in connection with on-site support, including travel expenses, travel time to and from Licensee's site, and board and lodging. On-site support shall be billed at then-current hourly rates.
4. PROBLEM REPORTING.
   In addition to telephone support, Licensee may submit reports of problems, written suggestions, comments, and questions with respect to the OCLC Software to OCLC by mail or by Internet e-mail via the designated website. Licensee shall cooperate with OCLC to facilitate implementation of its automated problem-reporting process.
5. UPDATES.
   During the period for which Licensee has prepaid the OCLC Software license fee, OCLC shall make available to Licensee a copy in object code form of all fixes, updates, improvements, modifications and revisions to the OCLC Software, and related documentation, which OCLC makes generally available without additional charge to its Support Services customers for that OCLC Software program. Such updates shall not include updates of customized software components, unless otherwise specified. Unless otherwise agreed in a writing signed by both parties, all software and documentation furnished to Licensee, shall be provided to and received by Licensee subject to the terms and conditions of the Agreement.
6. LICENSEE'S DUTIES AND OBLIGATIONS.
   Licensee shall promptly report to OCLC all OCLC Software problems or errors, by telephone or electronic mail (as permitted by OCLC) and, at Licensee's option, by written report. Licensee shall provide OCLC with access to and use of all information and system facilities OCLC determines are reasonably necessary to provide timely services pursuant to this Agreement. OCLC agrees to use commercially reasonable efforts, and Licensee agrees to take necessary precautionary steps, to ensure integrity of Licensee's systems. Licensee shall take remedial corrective action, if necessary, under the direction of OCLC.
   
   Licensee shall read and follow the instructions set forth in the documentation for OCLC Software to the best of its abilities. Licensee shall install promptly fixes, updates, modifications and revisions of the OCLC Software made available by OCLC to Licensee. Licensee shall promptly destroy, or at OCLC's option return, all prior versions of the OCLC Software after new versions have been installed. If Licensee has not installed a currently supported major revision or upgrade of the OCLC Software made available to Licensee within ninety (90) days of the first date of such availability, then if Support Services are provided as described herein, it shall be paid at the then-current rate for such services, unless both parties have agreed in writing to a delay in installation.
7. SYSTEM ADMINISTRATOR.
   Licensee shall designate on the Order Form one of its employees to oversee and coordinate its use of the OCLC Software (the "System Administrator"). The designated employee shall act as Licensee's contact person for all communications with OCLC. All information, documentation, and materials provided to Licensee by OCLC pursuant to this Agreement shall be sent to System Administrator.
8. LIMITATIONS ON SUPPORT SERVICES.
   Licensee shall not be entitled to Support Services for (a) copies of the OCLC Software which have been altered or modified other than by OCLC; or (b) versions of the OCLC Software which do not include the fixes, updates, improvements, modifications and revisions made available to Licensee hereunder, within ninety (90) days following the first date of such availability. OCLC may discontinue Support Services with respect to one, any or all OCLC Software programs at any time in accordance with the termination provisions set forth herein.
   
   OCLC shall not be required to provide Support Services if Licensee has failed to follow the instructions and procedures for installing, using or maintaining the OCLC Software set forth in the documentation. OCLC shall not provide support if the OCLC Software is used other than in accordance with the Agreement, including operation of the OCLC Software on other than on the designated computer system or at the designated site, or for malfunctions caused by programs, products or data of Licensee used in conjunction with the OCLC Software. OCLC shall not provide support in connection with errors or other problems reported by Licensee if OCLC determines that the primary cause of the error or other problem is a malfunction or failure of any hardware or software not furnished by OCLC or not currently covered by this Agreement.
9. MISCELLANEOUS PROVISIONS
   Notwithstanding any provision of this Agreement, the obligations to provide Support Services hereunder with respect to any OCLC Software program shall terminate in the event Licensee's license to use such program is terminated; provided that, in the event of termination of such license by Licensee for breach of the Agreement by OCLC, Licensee shall be entitled to a pro rata refund of any prepaid fees. Licensee acknowledges that the OCLC Software is of such complexity that it may have inherent defects, and agrees that as OCLC's sole liability and Licensee's sole remedy hereunder in the event of errors, defects or limitations in the OCLC Software, OCLC shall provide the Support Services expressly provided for herein. In no event shall OCLC's aggregate liability hereunder exceed the total subscription fee paid to OCLC by Licensee during the immediately preceding twelve (12) calendar month period.
10. SPECIAL TERMS FOR INTERNATIONAL LICENSEES
    Licensee agrees that OCLC Software provided hereunder may not be used outside the territorial limits of the country in which the designated site is located, as indicated on the front of the Order Form. All use of OCLC Software shall be in full compliance with U.S. export regulations. Licensee shall serve as the importer and exporter of record for all OCLC Software, documentation, and other data delivered to it by OCLC outside the U.S., by electronic means or otherwise, and 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. Licensee shall indemnify OCLC and its licensors from all costs and damages arising from any failure to meet its obligations hereunder. OCLC's obligations hereunder are contingent upon necessary export licenses being obtained from federal agencies of the U.S. Use of all OCLC Software is governed solely by U.S. Copyright Law, and the laws of the State of Ohio, United States of America.
11. SPECIAL TERMS FOR U.S. GOVERNMENT LICENSEES
    If Licensee is an agency or representative of the U.S. federal government, the following additional terms and conditions shall apply:
    
    OCLC Software, documentation, Support Services, and all other data provided hereunder is subject to RESTRICTED RIGHTS. Use, duplication, and disclosure are subject to restrictions stated in this license Agreement with OCLC Online Computer Library Center, Inc. Unpublished: Rights reserved under the Copyright Laws of the United States.

1. Copyright and Proprietary Rights Notices. Licensee shall not modify or remove any copyright or other proprietary rights notices embedded in the OCLC Software and associated documentation and agrees that any copies of the OCLC Software and documentation made by Licensee as permitted under the Terms shall include all such copyright and proprietary rights notices, and License shall reproduce any such notices on the physical media on which the copies are stored.
2. Ownership.
   Licensee acknowledges that OCLC's licensors own all right, title and interest in and to the OCLC Software, including all copyrights and trade secrets. Licensee shall not copy, decompile or reverse engineer the OCLC Software, except that Licensee may make one (1) copy of the OCLC Software for backup purposes.
3. Confidentiality.
   Licensee shall maintain the confidentiality of the OCLC Software, all source and object code comprising the OCLC Software and the associated documentation, and shall not sell, transfer, publish, disclose, display or otherwise make the OCLC Software code or documentation available to others.
4. Modification of OCLC Software is Prohibited.
   Licensee shall not make modifications to or alter the performance of any portions of the OCLC Software. OCLC shall not be responsible for the performance of the OCLC Software in the event the OCLC Software is modified by the Licensee.