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Home My WebLink AboutOCLC Pacific Network; 1984-10-01;BBllll PACIFIC 9 * NETWORK * ?AC-NEJ Str '3 1984 c RECEIVED e I 7 4) .I c + l/fl/ 9 A-- CITY OF CARLSBAD / ad acLc~m~~~(WLLw,I- I 0 OCI.C8404Ll:O ,' .I i- * L b TABll[eopa"rs PREAMBCE ............................................ mCrE I DEFINITIONS ......................................... ARTICLE I1 OCIX: MEmERmIP ..................................... AKrIm I11 RESPONSIBILITIES OF OCLL: A. In General .......................................... B. Terminals ........................................... C. Telecomications .................................. D. Technical Support to Participant .................... E. =MARC Subscription Tapes ........................ F. New Online Processes and Offline Products and Services ARTICLE IV RESFQNSIBILITIES Ol? PAHI?CIPANT A. Standards ........................................... C. Non+knber Senices ................................. D. Site Preparation .................................... F. Terminal Printer Port ............................... 1 G. Attachments to and Use of the OCIC System .......... 1 BO Current Cataloging .................................. E. Charges ............................................. 1 AIUTcLE V OCLC: CHARGES A. B. Payments and Discounts .............................. 1 lhiformity and Modification of Charges and Discounts. 1 ARrIcI;E VI TAXES ............................................... 1 maFI VI:1 USE ANI TRANSFEROF FBCORlS ......................... 1 AF€rIcLE m:1x -ES AND LIMITATIONS OF LIABILITY ............. 1 mcLE n: L INFRINCZPIEIW uN)mNGS ANI GRANT OF LICENSE A. By m ............................................. 1 ' B. . By Participant ...................................... 1 C. License Grant ....................................... 1 mcLE X REspONsIrn USE ..................................... I AKrICLE XI: FOFm MAJEURE ....................................... I AKlXcLE x12 TERM AN3 TERMINATION ................................ I ma3 XI11 ASs1- .......................................... s ., 0 ’ OCLC840411:Ol \ * % AR!rIcLE XIC’ mas ............................................. 20 ma xv MISCELIJINEOUS A. Effect of Waiver .................................... 21 B. Headings ............................................ 21 C. Applicable Law ...................................... 21 D. Originals ........................................... 21 E. Entire Agreement .................................... 21 % 'Access to the a ma system will be by (check as appropriate) OCLC840411:Ol NFP , \ , /T Dial Access - /x7 DedicatdLine - AGREEMENT BETWE EN CITY OF CARLSBAD and OCLC ONLINE COMPUTER LIBRARY CENTER, INCORPORATED THIS AGREEMENT ("Agreement") is made as of the date of last CITY OF CARLSBAD signature below by and between sa not-for-profit institution organized and existing under the laws of the , hereinafter referred to for purposes of State of this Agreement as "Participant", and OCLC ONLINE COMPUTER LIBRARY CENTER, INCORPORATED, a not-for-profi t institution organized and existing under the laws of the State of Ohio, hereinafter referred to for purposes of this Agreement as "OCLC". CALIFORNIA WITNESSETH: WHEREAS, OCLC is an organization of cooperating library ntembers which has developed, by means of their financial support, a computerized system for creating and maintaining a regularly updated database of bibliographic, holdings and other information supplied by such members and other parties, and for creating certain related products, which system is 0 OCLC840411:Ol 1 < accessible primarily through on-line telecommunications forming a part o the system (the "OCLC System"), and is engaged, as well, in research and development toward improvements therein; and WHEREAS, OCLC is engaged, among other activities, in making widely available to its members, by contract, certain processes, product and services deriving from or necessary to make use of the OCLC System; WHEREAS, Participant desires to be a general member of OCLC as defined in the OCLC Code of Regulations; and WHEREAS, the parties desire to contract as herein provided, an in connection therewith to acknowledge a public purpose to be served of furthering ease of access to and use of worldwide scientific, literary a educa ti ona 1 know1 edge and i nf orria ti on; NOW, THEREFORE, for and in consideration of the covenants and undertakings set forth herein, OCLC and Participant hereby agree as follows: ARTICLE: I - DEFINITIONS. - For purposes of this Agreement, the terms set forth below have the meanings indicated. A. Yurrent Cataloging" means all cataloging of bibliographic materials first performed or obtained by Participant durin the term hereof, regardless of the date of acquisition or imprint of the item cataloged, which cataloging is in alphabets capable of being proces by the OCLC System; provided, however, that Current Cataloging will not include the cataloging of materials to which Participant customarily giv less than "K" level cataloging as set forth in Online Systems Bibliograp 2 OCLC840411: 01 NFI .* 0 0 < Input Standards, Second Edition (19821, a copy of which has been furnished to Participant by OCLC prior to the effective date hereof, or such other minimal llevel of cataloging as OCLC may promulgate from time to time, or a: may be agreed to by the parties from time to time. B. "First-time Use" means Participant's initial use of a catalog record in the OCLC Online Catalog for cataloging, where the record is not input by the Participant. C. "OCLC Online Union Catalog" means the database of bibliographic records, library holdings information, indexes and related files of information (including Authority file, local data records and Nam Address Directory) maintained online in, and forming a part of, the OCLC System. D. "OCLC participants" means the general mernbers of OCLC, a defined in the OCLC Code of Regulations. E. "OCLC Servi ces" means personnel trai ni ng servi ces, and field services such as services for the repair and maintenance of OCLC Termi na 1 s . F. "OCLC System" means the system as defined on page 1 of this Agreement. G. "OCLC Terminalsn means terminals designed by and/or manufactured by or for OCLC for operation on the OCLC System. H. "Offline Products" means (i ) those OCLC products, which are derived from Participant's use of Online Processes, including cataloging products such as catalog cards and OCLC/MARC tapes, and (ii) OCLC Terminals for accessing the OCLC System. I. "Online Processes" means processes performed on and by means of connection to the OCLC System involving access to and use of the 3 OCLC840411: 0 1 \e 0 0 < OCLC Online Union Catalog, including, but without limi tatiori, cataloging catalog card production, interlibrary loan, acquisitions and serial control. J. "Shared Cataloging" means Participant's use of the OCL System to perform cataloging functions, online, from terminals and throu telecommunications, which functions include, without limitation, the creation of catalog records and holdings information maintained within t OCLC System, and the editing of copies of catalog records. ARTICLE. I1 - OCLC MEMBERSHIP. - Participant understands and agrees that by executing this Agreement, it *ijl7 become a participant in OCLC and as such will be a general member thereof as provided in Article 1V of the Code of Regulati of OCLC. ARTICLE 111 - RESPONSIBILITIES OF OCLC. A. In General - OCLC shall, during the term hereof and subject to the terms and conditions of this Agreement, provide Participant (i ) access tc the OCLC System for use by Participant of the Online Processes set forth Appendix 1 hereto attached and (ii ) Offline Products and Services set foi in Appendix 1 hereto attached. OCLC reserves the right to revise Append 1 from time to time by adding items thereto, or on ninety (90) days prior written notice, deleting i tems therefrom, provided that any such deletior shall be applicable to OCLC participants generally. under this Article I11 are subject to the prior receipt from Participant documentation which may be requested from time to time from OCLC OCLC's obligations 4 0 OCLC840411:Ol Nf * n -+i4pants generally, including separate or supplemental agreements for specific processes, products, services and modes of access to the OCLC System. OCLC shall exert its reasonable best efforts to make Online Processes available between the hours of 6:OO a.m. and 1O:OO p.m., Dublin, Ohio local tire, Monday through Friday, and between the hours of 8:OO a.m, and 8:OO p.m., Dublin, Ohio local time on Saturday, except holidays observed by OCLC (and the day before or after when such holidays fall on weekends 1. System for required repair or maintenance, and where periods of downtime occur as a result of scheduled mintenance functions, OCLC shall provide Participant with prior notice thereof. provided by OCLC hereunder shc.11 be by either (i ) dedicated, leased communication facilities or (ii) dial access (either via public switched network or value-added network) as indicated on page 1 hereof. OCLC reserves the right to suspend availability of the OCLC Access to the OCLC System to be 0. Termi na 1 s 1. If access to the OCLC System is by dedicated line, then OCLC Terminals, together with the installation thereof, will be offered for sale to Participant in accordance with the terms and condition set forth in the standard form of OCLC Terminal sale agreement in effect a the date of the transaction, a copy of which will 'be furnished to Participant on request. Participant may use for such purpose any terminal not furnished by OCLC provided that the same are compatible with the OCLC System arid approved as such by OCLC upon written request from Participant. If access to the OCLC System is by dial access, then OCLC Terminals may be offered lor sale to Participant, or Participant may use any terminals not furnished by OCLC. i .. Requirements for compatibility of dial access terminal. 5 5. 0 e OCLC840411:Ol I *. . 5 with the OCLC System will be published from time to time by OCLC. special situations, and subject to case-by-case approval by OCLC, OCLC Terminals may be offered for lease to Participant in accordance with the terms and conditions set forth in the standard form of OCLC Terminal Lea Agreement in effect at the date of the transaction, a copy of which will furnished to Participant on request. In 2. At the request of Participant, OCLC will prov rraintenance service for OCLC Terminals sold to Participant, which servic shall be in accordance with the terms and conditions set forth in the then-current standard form of OCLC Terminal maintenance agreement, a cop of which will be furnished to Participant on request. C. Telecommunications 1. OCLC shall arrange for and solely control a private telecommunication network between OCLC, Participant and other OC participants, to permit the delivery of Online Processes under this Agreement to terminals used to access the OCLC System by deaicated line. OCLC will, at all times, direct and control all aspects of network configurations, including, without limitation, the mode of telecommunication networking, the telecommunications carrier, the sequen of stations and the method for delivery of the Online Processes. The telecommunication network furnished by OCLC shall include and terminate with a required modem(s) on the premises of Participant. including all modem(s) installed by OCLC under any preceding agreement between Participant and OCLC, and still in place on the effective date hereof, are owned by OCLC. Upon expiration or termination of this Agreement for any reason, the modem(s) will be returned to OCLC by Such modem(s), 6 0 OCLC840411:Ol h Participant. Risk of loss or damge to modems will remain with OCLC exce for loss or damage resulting from willful acts or gross negligence by Participant. to the telecommunications system as arranged by OCLC. Participant shall not make any changes or add any attachmer 2. OCLC will provide dial-up access to the OCLC System through the public, switched networks, and, when in its opinion practicab?e, will make arrangenents for such dial-up through one or more value-added networks as well. D. Technical Support to Participant OCLC wi 11 provide: 1. Training of personnel in the operation of the Online Processes and Offline Products to be furnisiied hereunder. 2. All reasonable, continuing, technical assistan to Participant, including the provision of a convenient telephone contact within OCLC. 3. Field and workshop training of personnel of Participant in new subsystems. 4. Technical bulletins, instruction manuals, and other specialized documentation which OCLC makes available for use by OCLl participants general ly. 5. Assistance to Participant to assure the accura of all forms, purchase orders, contracts and other documents required by OCLC to initiate and provide Online Processes and Offline Products and Services hereunder, including a catalog profile and pack definition table for Participant. 7 0 OCLC840411:Ol NFP 0 <I E. OCLC/MARC Subscrip ti on Tapes. During the term hereof, OCLC will make available to Participant upon a subscription basis with orders placed in advance, and upon a schedule applicable to all OCLC participants, copies in OCLC/MARC format, on magnetic tapes, of the cata’n- records of Participant which it has added to the OCLC Online Union Catalog, or to which it has attached its OCLC-assigned holdings symbol, during the term hereof. OCLC will also make available to Participant, during the term hereof, copies of the machine-readable records of other OCLC participants who have given their written consent to OCLC. F. New Online Processes and Offline Products ?n: Services OCLC agrees that as soon as it has completed development and testing, and is ready to release to its participants generally, new or enhanced Online Processes, Offline Products and Services, the same will be mde available to Participant hereunder, by add< tion to Appendix 1 hereto attached. The charges, terms and conditions for such new and enhanced processes, products and services will be determined and equitably applied by OCLC and may be the subject of separate or supplementary agreements between the parties. ARTICLE IV - RESPONSIBILITIES OF PARTICIPANT. A. Stan da rds When accessing the OCLC System, Participant shall abide by standards set forth in Online System Bibliographic Input Standards, Second Edition (1982), as the same may be amended from time to time, and by other standards regarding use and operation of the OCLC System and/or the 8 0 OCLC840411:Ol N 0 Online F'rocesses adopted by OCLC from time to time for application to OCL participants generally. 8. Current Cataloging Participant agrees to search the OCLC Online Union Catalog in connection with all of its Current Cataloging, determining whi of the catalog records required for Current Cataloging are available therein, and to the extent not available therein, to create the records a insert them into the said Union Catalog by means of Shared Cataloging. Whether such catalog records are already available in the said Union Catalog or are created and inserted by Participant, Participant agrees th it will set its OCLC-assigned holdings symbol to all catalog records in tl OCLC Online Union Catalog required for Current Cataloging. Provided that Participant has met its responsibilities under this Paragraph 6, nothing herein shall prevent Participant from also carrying out cataloging activities by any other means it may elect. Participant will at all time: during the term of this Agreement maintain its holdings information in thc OCLC Online Union Catalog in an accurate and up-to-date condition, and wil inform OCLC promptly of any errors in catalog entries in the said Union Catalog which Participant is unable to correct online. C. Non-Member Services Participant agrees that it will not access -the OCLC System to perform services or provide assistance for or on behalf of any non-OCLC member except with the prior written consent of OCLC. D. Site Preparation Participant shall be responsible for site preparation fc OCLC Terminals in accordance with specifications to be furnished by OCLC. 9 0 0 OCLC840411: 0 1 h . E. Charge s Participant shall make payment of OCLC charges hereundc in accoi-dance with the requirements of Article V below. F. Terminal Printer Port Participant agrees that, except with OCLC's prior writ1 consent, it will not obtain catalog records in machine-readable form, by way of ti terminal device or other device or means for accessing the OCLC System, when Participant 's OCLC-assigned holdings symbol has not been attached to such records in the OCLC Online Union Catalog, except in the following cases. (i) Records required by Participant to carry out Current Cataloging or authorized retrospective conversion acti vi ties hereunder may be stored temporarily, prior to attachment of Participant'! holdings symbol, as required by Participant's established work flow procedures; but no other use or transfer of such stored records shall be made prior to attachment of said holdings symbol. (ii ) Records may be obtained and used by Participar in connection with it5 acquisition of-new library materials provided (a) that the records are not transferred or made available to third parties other than the publishers or suppliers to whom Participant's purchase orders for such new ma?erials are issued; and (b) that Participant's OCLC-assigned holdings symbol is attached to all such records in the OCLl Online Union Catalog reasonably promptly after receipt by Participant of the newly acquired materials. 10 0 OCLC840411:Ol NFF 0 * G. Attachments to and Use of the OCLC System a. Except as permitted in a separate agreement entered into between Participant and OCLC, Participant will not cause or permit any equipment or device to be directly or indirectly attached, linked or used with the OCLC System except equipment and devices permitted under the OCLC Attachments Policy attached hereto as Appendix 3 (as the same may be amended from time to time on ninety (90) days prior written notice by OCLC) . b. No application or use of the OCLC Systerr; or OCL( Online Union Catalog not expressly permitted by this Agreement will be mad€ by Participant without the prior written consent of OCLC. C. Any computer facilities or software programs provided by Participant for use with the OCLC System shall be without adverse effect on the System. ARTICLE V - OCLC CHARGES. A. Payments and Discounts Participant will pay OCLC the aggregate charges and rentals for Online Processes and Offline Products and Services furnished bj OCLC under this Agreement, all as provided in Appendix 1 hereto attached. Participant will be entitled to participate in the OCLC Subscription Discount Program as set forth in Appendix 2 hereto attached, earning trhe discounts referred to therein. L \ Invoices based on actual usage of processes, and sales and rentals of products and servi cess will be rendered to Participant monthly. Statements will reflect the appropriate discount to which 11 WCLC840411:Ol NFP 0 %a c Participant; is entitled by virtue of its participation in the aforesaid Net amounts due to OCLC after crediting Subscription Discount Program. subscription discount payments will be payable in accordance with the terms set forth iin Appendix 1 and/or 2 hereto, and will include a late payment service charge, computed at the percentage rate shown therein, for amounts paid beyond stated terms. Any subscription discount payment not credited against monthly invoices, shall, at Participant's option, be refunded to Participant in cash on thirty (30) days prior written notice to OCLC. In the event of termination of this Agreement pursuant to Article XI1 OCLC will refund to Participant any subscription payment in excess of lclaims against such payments. iB Uniformity and Modification of Charges and Discounts OCLC agrees that (i) all charges before discounts as detailed in Appendix 1 hereto (except charges identified in said Appendix as variablie), (ii ) the discount schedule in Appendix 2 hereto and/or (iii) all charging policies, shall be of uniform applicability among Participant and the other OCLC participants in the United States with which OCLC is in contract for the supply of Online Processes and Offline Products and Services. effective at any time, and may increase or add new such charges for existing processes, products and services, or change the form or method of charging, upon sixty-five (65) calendar days prior written notice to Participant. to notice given, Appendix 1 and/or 2 shall be deemed to be amended to provi de for those modi f i ca ti ons . OCLC may reduce any charges provided for in this Agreement When any modification in charges becomes effective pursuant 12 OCLC840411:Ol NFP ., 0 0 . If new Online Processes and/or Offline Products and Services are added to Appendix 1 to this Agreement, the charges applicable thereto will be deemed added at the same time to Appendix 1, and will be subject to the foregoing uniformi ty policy. ARTICLE VI - TAXES. .- A. All charges set forth on Appendix 1 to this Agreemnt are exclusive of sales, use, excise ana similar taxes which may be applicable to the transactions dealt with in this Agreerent, all of which taxes, together with interest and penalties thereon shall be for the account of Participant and reimbursed to OCLC. assessments could be mde against OCLC may be added to invoices to Participants unless a valid exemption certificate has been furnished to OCLC by Participant. Participant my, at its own expense and in OCLC's name, challenge or seek abatement or refund of taxes for which it is liable hereunder. OCLC shall cooperate with Participant in that regard by providing all relevant information that is available to OCLC. obligations under this Article VI shall survive the expiration or termination of this Agreement. Such taxes for which claim or Each party's B. of Federal income tax. Participant represents that it is exempt from the payment ARTICLE VI1 - - USE AND TRANSFER OF RECORDS. Participant shall be free, without restriction, to use, copy, display and distribute, in any manner it may elect, copies of all catalog records received or obtained by it under this or any preceding agreement with OCLC and derived from the OCLC Online Union Catalog, and of all 13 OCLC840411:Ol NI 0 a derivative works made therefrom, except that Participant agrees that it will not transfer or otherwise make available, in machine-readable form, copies of said catalog records or derivative works to third parties other than (i ) OCLC participants; (ii) vendors from whom Participant acquires goods or services in transactions requiring such vendors to have access tc said records or derivative works, where such vendors have first signed anr delivered to Participant an agreement in the form shown on Appendix 4 hereto attached, restricting the subsequent use and transfer of such records; and (iii) non-OCLC participants (other than vendors referred to . clause (ii) above), subject to prior negotiation by OCLC and Participant ( mutually agreed terms and conditions.. A copy of each agreement between Participant and its vendors, required by clause (ii) above, shall be furnished to OCLC by Participant' prorrptly following its execution by the parties. survive the expiration or termination of this Agreement and of any OCLC/MARC subscription agreement between the parties. Participant's rights and obligations under this Article VI1 sha ARTICLE - VI11 - WARRANTIES AND LIMITATIONS OF LIABILITY. A. Catalog cards, OCLC/MARC subscription tapes and other Offline Products, except OCLC Terminals, will, at the delivery thereof, bc free of errors or defects caused by OCLC. If any such products prove, within sixty (60) days after delivery to have been defective or to have contained errors upon delivery, OCLC will either replace the item by reproducing it free of charge or, at OCLC's option, by requiring new onlii transactions by Participant with issuance of full credi t. OCLC Terminals sold to Participant hereunder are warranted as provided from time to tin;e 14 .. a 0 OCLC840411:Ol N c in the standard form of OCLC terminal sale agreement referred to in ARTIC 111-B above. THE FOREGOING OBLIGATIONS AS SET FORTH OR REFERENCED IN THI ARTICLE VIII-A REPRESENT OCLC'S SOLE AND EXCLUSIVE LIABILITY FOR ANY DEFE OR FAILURE IN ONLINE PROCESSES, OFFLINE PRODUCTS AND SERVICES. B. Immediately prior to the delivery of all Offline Produc, sold or leased to Participant hereunder, OCLC will have good title thereti OCLC shall raintain the OCLC Online Union Catalog durini the term hereof, and shall exert continuing efforts to upgrade said Union Catalog and to improve performance of the OCLC Systerri. C. D. Except for the express warranties stated above in this Article I11 and the undertakings in Article IX below, OCLC makes no express or implied representations or warranties with respect to Online Processes, including the time of their availability, or Offline Products ( Services. All other warranties, including the WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE ARE HEREBY DISCLAIMED. OCLC SHALL NOT BE LIABLE FOR INCIGENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE FORH OF ACTION, NOR SHALL IT BE LIABLE FOR EXEMPLARY DAMAGES OR LOST REVENUES. In the event that the exclusivity or limitation of liability or remedy set forth above is held to be unenforceable for any reason, then OCLC's total liability to Participant in respect of any claim, regardless -of the form o action, !;hall not exceed the value of all transactions under this Agreemen for three (3) months preceding the incident giving rise to such claim. 15 OCLC840411:Ol NF 0 0 L ARTICLE IX - INFRINGEMENT UhDERTAKINGS AND GRANT OF LICENSE. .- A. By OCLC OCLC agrees to defend and assume all of Participant's liability and costs for any suit or claim brought or asserted against Participant on the ground that the Online Processes, Offline Products or Services, as furnished by OCLC, infringe any patent, copyright, trademark, secrecy or other proprietary interest of a third party, provided and upon the conditions that Participant (i) promptly deliver to OCLC written notic of any claim of such infringement together with all infringement notices and other papers received by Participant and (ii) give OCLC all informtio and assistance reasonably requested, together with exclusive authority to investigate, settle and defend such claim. ENTIRE LIABILITY TO PARTICIPANT FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF THE TYPES DEALT WITH IN THIS ARTICLE IX-A. 8. By Participant THE FOREGOING SETS FORTH OCLC' Participant agrees to defend and assume all of OCLC's liability, costs and expenses for any suit o'r claim brought or asserted against OCLC on the ground that any information or data entered into the OCLC Online Union Catalog by Participant, including any use, reproduction or transfer thereof by OCLCC or its designees, infringes any copyright, trademark, secrecy or other proprietary interest of third parties, provide and upon the conditions that OCLC (i) promptly deliver to Participant written notice of any claim of such infringement, together with all infringement notices and other papers received by OCLC and (ii) give Participant a1 1 i nf orna ti on and assistance reasonably requested, together with exclusive authority to investigate, settle and defend such claim. TH 16 OCLC840411:Ol NFI 0 0 FOREGOING SETS FORTH PARTICIPANT'S ENTIRE LIABILITY TO OCLC FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF THE TYPES DEALT WITH IN THIS ARTICLE IX-B. C. License Grant Participant hereby grants to OCLC, other OCLC participants, non-participant users and designees a perpetual, non-exclusi ve, royal ty-f ree, transferrable, world-wide right to copy, display, publish, prepare derivative works from, distribute and use (including, without limitation, use in forming new compilations of i nf orma ti on ) a 11 bi bl i ograp hi c records, hol di ngs and other i nf orma ti on supplied to OCLC during the term of this Agreement by Participant or any entity acting on its behalf, under any copyright, patent, secrecy or other proprietary right therein owned or control led by Participant. ARTICLE X - RESPONSIBLE USE. Participant agrees to comply with any code of responsible use adopted by OCLC for OCLC participants upon the recommendation of the OCLC Users Council, and to act in the use of the OCLC System, the Online Processes and Offline Products with good faith and loyalty to all other OCLC participants, doing nothing to waste, diminish or cause harm to their shared beneficial interest in OCLC. act cooperatively with each other and to avoid practices which have the effect either of shifting the burden of payment for OCLC products and services away from those receiving the same, or manipulating use of the OCLC System'in ways which unreasonably and adversely affect its performance. the duty of responsible use: It is a duty of OCLC participants to L .. The following practices are some examples of violations of 17 OCLC840411:Ol NF .* 0 0 c (i 1 Creating duplicate records in the OCLC Online Catalog, whether as a result of failing to search fully before doing original inpul in order to reflect local bibliographic information, in order to avoid the First Tim Use charge, or otherwise. (ii) Permitting use of the OCLC System by or for entities which are not general members of OCLC; provided, however, that such use fc nonmembers is permi ttea (a) where it generates an interlibrary loan request on the OCLC interlibrary loan subsystem and (b) where an authorize processing center participant carries out Current Cataloging on behalf of its client users. (iii) (iv) Use of the save file as an electronic mail system. Doing Current Cataloging or reclassification cataloging a retrospective conversion authorization. (V 1 Placing multiple interlibrary loan requests on one interlibrary loan work form. ARTICLE XI - - FORCE MAJEURE. Neither party shall be liable for any failure or delay in performance hereunder (other than of an obligation to pay money) due to 01 resulting from any cause beyond its reasonable control including, but not limited 'to acts of God, strikes, shortage of materials, actions of government, fire, adverse weather conditions or operational failure, provided that the party so affected notifies the other promptly of the commenceinent, nature and estimated duration of the cause. * 18 OCLC840411:Ol NF 0 0 c ARTICLE XI1 - - TERM AND TERMINATION. A. Subject to the balance of this Article XII, this Agreement: shall remain in effect indefinitely, until terminated by either party entirely in its own discretion and for any reason whatsoever, upon not less than ninety (90) day's prior written notice to the other. B. Whenever either party believes that the other has committed a breach of any material obligation under this Agreement, it may give the other notice to that effect with reasonable specificity. other party shall use its best efforts promptly to remedy any breach and shall keep the party giving notice informed of the nature of the remedial action planned and taken, or will respond to the notice, with an explanation of the reasons it believes that no breach has occurred. When party in material breach has not corrected same or is not diligently takin necessary corrective action within twenty (20) days after notice of such breach, which action will enable the party to cure the breach within a reasonable time, or if the party becomes insolvent, 4s the Subject of a petition filed under any chapter of the Bankruptcy Act and not withdrawn within sixty (60) days or if a receiver is appointed for all or part of a party's property, then the other party shall be entitled to seek appropriate relief under this Agreerent and under applicable law, which relief includes, without limitation, termination of this Agreement by written notice, without liability therefor. The C. Notwithstanding the provisions of Paragraph 8 above, if Participant fails to issue payment within ten (10) business days after receipt oif notice from OCLC of non-payment of charges due and payable undei this Agreement and not reasonably in dispute, OCLC may terminate the 19 OCLC840411:Ol NF 0 0 > . Agreement by notice in writing effective at any time after the end of thos ten (10) days and prior to receipt of the late payment, without liability for such termination. D. Whenever any raterial obligation of either party under this Agreement is postponed or delayed pursuant to the provisions of Article XI above for more than ninety (90) consecutive days, then the othc party may give notice of termination of this Agreement, effective thirty (30) day:: after such notice, unless by such date the cause of the delay hz been removed and performance of the delayed obligation has been resumed. ARTICLE XI I I - ASSIGNMENT. - This Agreement may not be assigned by either party, -;.I whole or in part, without the express, prior, written consent of the other, except that assiignment may be made, without such consent, to any entity acqufring all or substantially all of the business or assets of the assigning party, provided that the assignee affirmatively undertakes to the other party hereto to comply with all obligations of the assignor hereunder. Subject to the foregoing sentence, this Agreement shall inure to the benefit of ar be binding upon the successors and assigns of each party hereto. ARTICLE XIV - NOTICES. Any notices, desired or required to be given by either party - pursuant to this Agreement, shall be in writing and shall be deemed sufficient if delivered by hand or if sent by certified mil, return receipt requested, to the address of the other party set forth below or tc such other address as has been furnished by means of a notice given in accordance with this Article: 20 OCLC840411: 0 1 NFP .. e e L If to OCLC: President OCLC Online Computer Library 6565 Frantz Road Dublin, Ohio 43017 Library Di rector Carlsbad City Library 1250 Elm Avenue Carlsbad, CA 92008 Center, Incorporated If to Participant: ARTICLE XV - MISCELLANEOUS. A. Effect of Waiver The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further or future right under this Agreement. B. Headi ngs Paragraph and Article headi ngs are i ncl uded i n this Agreement for convenience only and are not deemed to be a part of this Agreement. C. Applicable Law This Agreement shall be governed by, subject to, and construed according to the laws of the State of Ohio. D. Ori gi na Is This Agreement is executed in two (2) signea counterparts, each of which is and shall constitute an origi nal hereof. E. Enti re Agreement This Agreement is the final, complete and exclusive statement of the agreement of the parties with respect to the subject 21 OLLC840411:Ol NFI .. .. * 0 matter hereof. supplemented except by a writing signed by both parties, unless otherwise provi ded for herein. No provision of this Agreement may be changed, modified, 01 IN WITNESS WHEREOF, the undersigned, being duly authorized, on behalf of the parties, their successcrs and assigns, have executed this Agreement effective the last date below written. W I TN ES S : OCLC ONLINE COMPUTER LIBRARY CENTER, INCORPORATED BY Title Senior Vice President - WI TN ESS : (NAME OF PARTICIPANT) THE CITY OF CAFCSBAD, A Municipal --lu&?L.L Qy Dat ”% d -2. F / 29 rv 22 840726 NEfTWORK .. , . .. e m APPENDIX I Page PACIFIC NETWORK CMRGES Effective 1984 July 1 Online System Produc tic Product Code Description Charges - Pro duc t s Cataloging Produces/First Time Updates 250/255/330 Prime Time $ 1.69 (2)(3) 25112561331 Nonprime Time 1.47 (2) 3001305 Prime Time - 1.69 (3) 3011306 Nonprime Time 1.47 Retrospective Conversion 336 Nonprime Time .28 350 Public Service Searches -11 (23) Reclassification Produces/Updates 335 Prime Time 1.12 (3) 356 Display Holdings Use .09 150 Accessions Lists 140 Items or Less 141 Items or More .17 151 Changes 35.00 1001101 Catalog Cards .06 10 2 Out-of-Warranty Card Rerun 75.00 203 Sample Tape 75.00 201 Cost of tape and handling Standard 1600 C.P.I. 30.00 s2- 2.40 OCLC-MARC Distribution Service 800 C.P.I. Option 35.00 Credit for Returned Tapes None 200 Copying Charge Per Record: 1-1,000 Logical Records .05 1,001-5,000 Logical Records .03 5,001-20,000 Logical Records .02 20,001-50,000 Logical Records . 01 50,001-100,000 Logical Records .01 100,001-200,000 Logical Records .01 200,001 and Up Logical Records Weekly 12.00 .01 2 04 Production Frequency Charges Biweekly 25. OC Monthly 55. OC Quarterly 150. OC Semi- annual ly 390. OC 205 Changes in MARC Distribution Profile 35 .OC (1) Postage billed separately. (2) Includes retrospective conversion produces. (3) Prime time hours: 6am - 2pm Pacific Time (Monday - Friday). Nonprime hours: 3am - 6am, 2pm - 7pm Pacific Time (Monday - Friday and all *. ., 0 0 c APPENDIX I Page PACIFIC NETWORK CHARGES Effective 1984 July 1 Online System Produc tio Product Code Description Charges - Products Interlibrary Loan 450 Produces $ 1.34 451 Referrals 1.34 358 Display Holdings Use .09 453 Statistics Annual Fee $ 150.00 4 54 Statistics Reports Per Page .13 361 UL Holdings Display .09 Serials Control 400/406 Check-in/Updates .07 407 Claiming .54 4 08 LDR Creation .45 409 Claims Forms .13 402 LDR Storage Per Year .03 (6) Union List 4 10 Updates .07 401 LDR Creation .45 403 Minimum 340.00 /.L5 libraries (7) 403 Additional 15.00 /added OCLC member 403 Additional 30.00 /added non-OCLC me 402 LDR Storage Per Year .03 (16) Start-up Fees 357 Display Holdings Use .09 360 UL Holdings Display .09 420 per title .02 421 per summary holdings statement .01 stat emen t .02 42 3 per index entry .01 425 per printed page .06 Offline Lists (Paper or Fiche) (9) 422 per copy-specific holdings 424 per optional field or cross- r e f er enc e .001 435 per original fiche 4.50 436 per fiche copy .30 (1) Postage billed separately. (5) Data is accumulated July-June fiscal year. Annual fee is a 12-month revolv: regardless of subscription sign-up. (6) Billed semi-annually, October and April. (7) First 15 members will be taken as OCLC members. First-year charge only. (8) After start-up, billed whenever new members are added. (9) See Serials Union List Criteria document for approved uses of products. 0 0 *. -s APPENDIX I Page PACIFIC NETWORK CHARGES Effective 1984 July 1 .1 Online System Produc tioi Product Code Description Charges - Products Offline Lists (Tape) (9) 44 0 per title $ .03 44 2 per copy-specific holdings 44 5 per tape 44 1 per summary holdings statement .01 stat emen t .02 30.00 -- Acquisitions 242 Produces/First Time Updates $ 1.10 36 5 ACQ/CAT Combination Discount .15 (10) 230 Action Forms .13 231/232 Fund Reports (paper) .13 234/235 Fund Reports (fiche) 7.00 2'51237 Fiche Copy .30 233 Fund Storage Per Year .25 (11) 359 Display Holdings Use .09 680 System Service Fee 26.50 /t.erminal/month (1) Postage billed separately. (9) See Serials Union List Criteria document for approved uses of products. (10) Applicable on the lesser of annual Product Code 242 or the sum of Product Co (250+255+251+256) plus original cataloging. Credited at fiscal year end. (11) Billed semi-annually, September and March. .. 0 0 c APPENDIX I Pagc PACIFIC NETWORK CHARGES Effective 1984 July 1 Terminal & Terminal Product Code Description Re1 a ted Services Terminal (12) Terminal Maintenance Service (per separate agreement) Mod el 100 / 105 / 11 0 $ 43.00 per month 951 Model 300 (13) 43.00 per month 7 00/701/702 - Other Model 300 Equipment Maintenance Service (13) 955 Expansion Chassis - 15.00 per month 69 0 Terminal Lease - 1.70.00 per month Cables - Data & Chaining (Purchases in addition to cable provided with terminal) 776 20 ft. - 30.00 (14) 777 30 ft. - 40.00 (14) - 70.00 (14) 778 60 ft. 779 Special Length - (14) (15) Telecommunications 65.00 612 Per Terminal per Month - IL27.00 6 11 Per OCLC Modem per Month _. Terminal Non-Maintenance Service Charge (17) 720 Baud Rate Change - 168.00 720 Terminal - Installation - 168.00 720 - Removal - 168.00 720 Relocation - Within Same Building - 168.00 7 22 - To Different Building - 336.00 720 Readdress - 168.00 720 Replacement - 168.00 719 Certification - (18) 612 Data Set Move - Within Same Building - 310.00 (16) - To Different Building - 450.00 (16) Installation - 475.00 (16) Modem and Station Termination Billable Service Call 710 - No Parts Replaced - 168.00 711 - Some Parts Replaced - 336.00 (12) See Microcomputer Products price schedule for Model 300 and related hardwa~ (13) See separate maintenance agreement for details of qualifying equipment. (14) Freight to be added. (15) $30 plus $l/ft. over 20 ft. (16) Subject to telecommunicaitons carrier rate changes. (17) Price per one service per call. will be priced at $95.00 per each additional terminal. (18) Billed 3n time and material basis. software purchase prices. Additional services perfcirmed during the Freight to be added for parts necessar tnrminnl trr ,-nnai+inn nppp~~~~v for pertifieation, 1. e 0 c APPENDIX I Page PACIFIC NETdORK CHARGES Effective 1984 July 1 Online System Product Code Descr ip t ion - Charges Access to OCLC System Via Tymnet/Telenet 600/ 606 Connect Charge Per Hour (300 baud/1200 baud) $ 9.60 per hour ( ($.16/minute) - 602/608 WATS Hourly Connect Charge - 25.00 per hour Subscription Fee 4.00 per month 4.00 per month - 601 Per Tymnet Password 607 Per Telenet Password - Access to OCLC System Via Direct Dial - (20) 200.00 per year ( 6 05 Authorization for Dial Access - Miscellaneous Charges 9 00 Start-up instruction 500.00 per incide Training and Follow-up - Support Services 103 /lo4 /452 Profile Processing (Cataloging/Union List/ In t e rl ibrary Loan) 9 02 Billing Tape - 37.00 per hour 30.00 - (19) Within the continental United Stapes. (20) User/partic:ipant pays telecommunication cost directly to telephone company. (21) Per institution via Tymnet, Telenet, or direct dial access. (22) Plus travel. expenses. (23) For public service search terminals only. 0 0 .. * APPENDIX 2 m, mINE CWUIER LIBRARY CENTER, INC. 1984/85 SUBSCRIE*rION DISCOUNT PIEOGRAM Discount Percent Annual IUmber of Ybnths Day of mnth Percentage Covered by Subscription Payment Received by OCLX: Rate Payment - 15th - Last 1 1.7 1.3 10% 2 2.1 1.7 10% 3 2.5 2.1 10% 4 2.9 2.5 10% 5 3.4 2.9 10% 6 3.8 3.4 10% 7 4.2 3.8 10% 8 4.7 4.2 10% 9 5.1 4.7 10% 5.5 5.1 10% 6.0 5.5 10% 12 6.4 6.0 10% 10 11 Standard Paymmt Terms : Net munts payable 45 days fran date of invoice. prarrpt Payment Tenns: Discount of -35% ( -0035) (8% APR) credited for payments received within one mnthi frm date of invoice. Late Payment Terms: Late paynlent charge of 1% per mnth (U% APR) inposed on all outstanding cbarges in excess of 2 months fran date of invoioe. a. 0 0 t OCLC, Online Computer Library Center 1984/85 Discount Program Description i 2 Types of Discounts Offered: Subscription Discount at 10% APR Applied to payments received during the first month covered by the subscription payment. Prompt I?ayment Discount at 8% APR App:Lied to payments received within one month from the invoice date. Products ElLigible for Discount All OCLC processes, products and services on Appendix I, including Telecommunications will be eligible for discount. Subscription Psriods Available Subscription periods from 1 to 12 months are available. Subscription payments will be accepted at any time during the year. t Determination of Period Covered by Subscription Payment A "mont:hly standard" based on the library's total dollar activit<y for fiscal year 83/84 will be jointly established April 30, 1984 and in effect for all of FY 84/85. The monthly standard will be the basis for determining the number of months covered by the subscription payment. Calculation of Discount The discount percentage from Appendix I1 will be applied to the net subscription payment based on the number of months covered and the receipt date. All prompt payments will receive a discount of .35%, which is equivalent to an 8% annual percentage rate. All subscription payments will receive a discount which is equivalent to a 10% annual percentage rate. All valid unpaid amounts in excess of 1 month from the invoice date will be deducted from subscription or prompt payments before calculating discount. an - Accounts Receivable wee Example of Discxunt Calcu a+ o Asscprpticms: - mnthly Standard: $2OO,OOO - Balance lhe CCLC at July 31: $200,000 (represents July charges) 0 Facts: - Paynlent of $2,000,000 received by OCLC on August 311. Discount -0rrlPt Subscription Payment Papnt o Discount Calculation Payment Amunt: $2,000,000 Less: Invoices over 1 mnth -0- Balance Available for Discount $2,000,000 $200,000 $ 1,800,000 Discount Rate . 35% 4.7% (1) Discount $ 700 $ 84,600 (1) Subscriptnon Payment = Nunber of months covered by Subscriiption Payment. Monthly Standard $ 1,800,000 = 9 mnths (rate from Appendix 11 = 4.7%) Example of Discount Calculation - Subscription Mode 200,000 0 Ass~tions: - Fbrithly Standard: $ 200,000 - Subscription mney at OCIX: on July 31- $ 200,000 0 Fact: - Payment of $2,000,000 received by OCZX: on August 311. o Subscri]?tion Discount Calculation: Subscription payment remaining at OCLX: $ 200,000 Add new mney received $ 2,000,000 Total Eligible for Discount Calculation $ 2,200,000 (1 a' 0 e J OCLC840411:Ol NF APPENDIX 3 OCLC ATTACHMENTS POLICY Except with the prior written consent of OCLC, in0 equipment or device may be directly or indirectly attached, linked or used with the OCL System except: 1. Terminal devices furnished or approved -in writing by OCL expressly for use with said System (hereinafter "Terminals"). Any equipment or device which Library may elect, in its sole discretion, to attach to Terminals. 2. Notwithstanding paragraph number( d "2" above, no equipment or device may b attached (i) to the telecommunication line connecting OCLC to the site of the said Terminal(s), or (ii) to the modem at the termination point of sai telecommunication line at the site of a Terminal, or (iii) to any interconnecting cables between modem and Terminal or between Terminals. I addition, no equipment or devices except other Terminals rnay be attached directly or indirectly to the next-CRT-port on Terminals, or to any of the circuitry associated with such port. paragraph, numbered "2" above shall be at the sole risk and expense of Participant. equipment or device will function properly or as desired, or that it will not cause harm to the Terminals to which attached, unless the equipment or device is furnished or approved in writing by OCLC. Attachment of any equipme-nt or device to Termi nals under OCLC does not warrant or provide any assurance that such 1 -. e %C840411:01 NFP .* I w APPENDIX 4 AG RE ENE NT This agreement ("Agreement"), effective as of the date on which executed by both parties hereto, by and bebeen a not-for-profit institution organized and existing under the laws of the State of - , hereinafter referred to as "Library", and a corporation organized and existing under the laws of the Star* , hereinafter referred to as "Vendor". WHEREAS, Library and Vendor have, prior hereto or contemporaneously herewith, entered into arrangements and/or contracts for the supply of goods and/or services by Vendor to Library, and may- hereafter enter into a,ddi tional such arrangements and/or contracts, in connection with which, Library has made or will hereafter make available to Vendor copies in machine-readable form of bibliographic, library holdings and other infornation derived from the online database of such information maintained by OCLC Online Computer Library Center, Incorporated ("OCLC"), which arrangements and contracts between Library and Vendor are hereinafter referred to as "Contracts"; and WHEREAS, in order to continue making available to Vendor said bibliographic, library holdings and other information derived from the OCLC online database (hereinafter 'OCLC Records" 1, it is necessary to provide assurances concerning the protection of OCLC Records. NOW, THEREFORE, in consideration of the promises hereinafter made and other good and valuable consideration, receipt of which is hereby acknowledged, Library and Vendor hereby agree as follows: 1 *I A1 1 present, executory Contracts between library and Vendor will be deemed amended to include the terms of this Agreement, and all future Contracts between them which are executed while this Agreement remains in effect will be deemed to include such terms. Vendor will make no copies of the OCLC Records nor cause OCLC Records to be transferred to other stora~e media, except as essential to carry out the Contracts. Vendor will make no use of the OCLC Recordls except to carry out the Contracts, and acknowledges that delivery of the OCLC Records to Vendor does not represent a transfer of ownership thereto. 2 a 3 I, <' 0 @CLC840411:01 NFP 1 s I 4. Vendor agrees that it will not transfer OCLC Records or . copies thereof to any third party, and will promptly return to Library all OCLC Records received in connection wSth each Contract, upon completion thereof, and all copies of such Records. This Agreement 5s terminable by Vendor at any time, with or without cause, by thirty (30) days prior written notices sent by prepaid registered or certified first-class mail, with return receipt requested, to: 5. L (Library ) - Ir - At ten ti on : and to OCLC Online Computer Library 6565 Frantz Road At tent ion : Center, Incorporated Dublin, Ohio 43017 Corporate Counse 1 Any such address may be changed by Librarjr and by OCLC by written notice to Vendor sent by prepaid registered or certified first-class mail, with return receipt requested, to: ( Vendor) . . At tent i on : . All notices given in accordance wSth this Section 5 shall be deemed given on the date of proper deposit in the U.S. mail. It is agreed that OCLC shall be deemed a third party beneficiary of this Agreement entitled to seek, in its own name, all available legal and equitzble remedies against Vendor (including the remedy of irijunction) if hereunder within twenty (20) days after written notice thereof given by Library or OCLC. 6, . Vendor fails to remedy any violation of Its obligations t e (bCLC840411: 01 tiFP .- e .I * w 7 0 - Vendor's obligations under this Agreement, as they affect any Contract which has become effective prior to the termination hereof, shall survive any such termination. This Agreement is the entire Agreement between Library and Vendor with respect to the subject matter hereof, and may not be terminated (other than as provided in Section 5 above), modified, amended, rescinded or cancelled except by a writing signed by both parties; hereto and, as a condition precedent to the effectiveness thereof, with a copy thereof furnished by Library to 0CL.C by the same means and at the same address as provided in Section 5 above. No waiver of any provision of this Agreement or of any right hereunder shall be deemed a waiver of any other provision hereof or any other right hereunder. 8 ,, It4 WITNESS WHEREOF, the parties have executed this Agreement as ( Library 1 of the date!; indicated below. - Date: - 8Y: Title: - (Vendor) By: Title: - Date: .. 0 0 hWRITE IT-DON’T SAY IT INTER-DEPARTMENT MEW TO Bobbie Haler DATE 8-13 19 84 Re: OCLCAcjreemnt Per instructions fran Lee, I am sending you both of the signed agreements. After they are fully executed, please see that one of the originals is returned to this office. Thanks, Karen r REPLY ON THIS SHEET FROM H -MER JIRWCE UNE STANDARD INTER DEPT. M ~ ’ : 0 a 6. A-REWEEN CITY OF CARLSBAD arl ocI1: m15e oMpm!Ez rJBRARY CZNLW, 1HJQRI- @ OCX8404Ll:O: .. . -< 'wB[[EmooMEMs PRJiaMFU ............................................ : ma3 I DEFINITIOW ......................................... : AKrIcLFl I1 OCLL: MplBERsHIP ...................................... ma3 11:c RESPONSIBILITIES OF' ocI% A. In General ........................................... Terminals I B. ............................................ C. Telecoxrttunications .................................. ( D. Technical Support to Participant ..................... E. WW Subscription "apes ........................ I F. New Online Processes and Offline Products and Services I AKI?cIE IV FSSPONSIBILITIES (X' PAKI?CIPANT A. Standards ........................................... I BO Current Cataloging ( C. Non-er Services .................................. D. Site Preparation ( E. Charges ............................................. 1I F. Terminal Printer Port ............................... 1( G. Attachments to and Use of the OCX System .......... 1: ................................... ( ..................................... ma V ocrr= CHARaS A. B. Payrents and Discounts .............................. 1 thifodty and Modification of Charges and Discounts. 1: mcLE VI TAXES ............................................... 1: mcLE VII USE AN> "SFEROE' REKDmS ......................... 1: ma VI:n WIRI)3.WITfES AM) LIMITATIONS OF LIABILITY' ............. 1d ARrIcLE Ix A. 6 IWFUN- UNlERIYXINGS AID GRANT OE' LICEXSZ By OCIL: .................... .*.........,.............. 1( ' B. . By Participant ...................................... I( C. License Grant ....................................... 1 mcLE X REspoNsIBJJ3 us3 ..................................... Y AKrIaE XI FORE MAJEURE .................... ....~,.............. 1 ma XI:[ TEIiM AN) lxRMIm0N ................................ 1 AKLlIcLE XIII ASSI- ........................................... 21 e 0 OCIC840411:Ol *. ... ARTICLE XIV ARTIW xv MISCELUIINEOUS NYrIcEs .................... ......................... 20 A. Effect of Waiver .................................... 21 B. Headings ............................................ 21 D. Originals ........................................... 21 E. Entire Agreement .................................... 21 C. Applicable Law ...................................... 21 OCLC840411:01 NFP ' .+~ccess to the = onla system will be by (check as appropriate) - /T Dial .Access * 1. - /v DedicatedLine AGREEMENT BETWEEN CITY OF CARLSBAD and OCLC ONLINE COMPUTER LIBRARY CENTER, INCORPORATED - THIS AGREEMENT ("Agreement") is made as of the date of last ClTY OF CARLSBAD signature below by and between sa not-for-profi t institution organized and existing under the laws of the , hereinafter referred to foir purposes of State of this Agreement as "Participant", and OCLC ONLINE COMPUTER LIBRARY CENTER, INCORPORATED, a not-for-prof i t institution organized and existing under the laws of the State of Ohio, hereinafter referred to for purposes of this Agreement as "OCLC". CALI FORN I A - WITNESSETH: WHEREAS, OCLC is an organization of cooperating library ntembers which has developed, by means of their financial support, a computerized system for creating and maintaining a regularly updated database of bibliographic, holdings and other informtion supplied by such members and other parl:ies, and for creating certain related products, which system is 0 0 OCLC840411:Ol I 5. . +. accessible primari ly through on-line telecommunications forming a part 01 the systen (the "OCLC System"), and is engaged, as well, in research and development toward improvements therein; and WHEREAS, OCLC is engaged, among other activities, in making widely (available to its members, by contract, certain processes, product. and services deriving from or necessary to make use of the OCLC System; l WHEREAS, Participant desires to be a general member of OCLC as defined in the OCLC Code of Regulations; and WHEREAS, the parties desire to contract as herein provided, ani in connection therewith to acknowledge a public purpose to be served of furthering ease of access to and use of worldwide scient.ific, literary a educational knowledge and information; NOW, THEREFORE, for and in consideration of the covenants and undertakings set forth herein, OCLC and Participant hereby agree as f 01 1 ows: ARTICLE I - DEFINITIONS. Ir For purposes of this Agreement, the terms set forth below have the meani ngs i ndi cated. A. "Current Cataloging" means all cataloging of bibliographic materials first performed or obtained by Participant durin the term hereof, regardless of the date of acquisition or imprint of the i tern cataloged, which cataloging is in alphabets capable of being proces by the OCLC System; provided, however, that Current Cataloging wi 11 not include the cataloging of materials to which Participant customarily gi i less than "K" level cataloging as set forth in Online Systems Bibliograp 2 OCLC840411:Ol NFI e .. 1. Input Standards, Second Edition (19821, a copy of which has been furnished to Participant by OCLC prior to the effective date hereof, or such other minimal level of cataloging as OCLC may promulgate from time to time, or a: may be agreed to by the parties from time to time. B. "First-time Use" means Participant's initial use of a catalog record in the OCLC Online Catalog for cataloging, where the record is not inlput by the Participant. C. "OCLC Online Union Catalog" means the database of bibliogralphic records, library holdings information, indexes and related files of information (including Authority file, local data records and Nam Address Directory) maintained online in, and forming a part of, the OCLC Sy s tem. D. "OCLC participants" means the general members of OCLC, a defined in the OCLC Code of Regulations. E. "OCLC Services" means personnel training servi cess and field services such as services for the repair and maintenance of OCLC Terminals. F. "OCLC System" means the system as defined on page 1 of this Agreiement. G. "OCLC Terminals" mans termi nals designed by and/or manufactured by or for OCLC for operation on the OCLC System. H. "Offline Products" means (i ) those OCLC products, which are derived from Participant's use of Online Processes, including cataloging products such as catalog cards and OCLC/MARC tapes, and (ii ) OCLC Terminals for accessing the OCLC System. 1. "Online Processes'' means processes performed on and by means of connection to the OCLC System involving access to and use of the 3 e OCLC840411:Ol *. OCLC Online Union Catalog, including, but without limi tatiorl, cataloging catalog card production, interlibrary loan, acquisitions and serial control . 3. "Shared Cataloging" means Participant's use of the OCLi Systen; to perform cataloging functions, online, from terminals and throu telecomimunications, which functions include, without limitation, the creation of catalog records and holdings information maintained within t OCLC System, and the editing of copies of catalog records. ARTICLE I1 - OCLC MEMBERSHIP. - Participant understands and agrees that by executing this Agreement, it ;djl1 become a participant in OCLC and as such will be a general member thereof as provided in Article IV of the Code of Regulatic of OCLC. ARTICLE 111 - RESPONSIBILITIES OF OCLC. A. In General - OCLC shall, during the term hereof and subject to the terms arid conditions of this Agreement, provide Participant (i) access tc the OCLC System for u3e by Participant of the Online Processes set forth Appendix 1 hereto attached and (ii ) Offline Products and Services set for in Appendix 1 hereto attached. OCLC reserves the right to revise Appendi 1 from :time to time by adding items thereto, or on ninety (90) days prior written notice, deleting i terns therefrom, provided that any such deletion shall be applicable to OCLC participants generally. under this Article I11 are subject to the prior receipt from Participant documentation which may be requested from time to time from OCLC OCLC's obligations 4 e 0 OCLC840411:Ol NF a. ,. n -+:ripants generally, including separate or supplemental agreements for specific processes, products, services and modes of access to the OCLC System. OCLC shall exert its reasonable best efforts to make Online Processes available between the hours of 6:OO a.m. and 1O::OO p.m., Dublin, Ohio local tire, Monday through Friday, and between the hours of 8:OO a.m. and 8:OO p.m., Dublin, Ohio local time on Saturday, except holidays observed by OCLC (and the day before or after when such holidays fall on weekends). System for required repair or maintenance, and where periods of downtime occur as a result of scheduled rraintenance functions, OCLC shall provide Participant with prior notice thereof. provided by OCLC hereunder shcll be by either (i ) dedicated, leased communication facilities or (ii) dial access (either via public switched network or value-added network) as indicated on page 1 hereof. OCLC reserves the right to suspend availabililty of the OCLC Access to the OCLC System to be B. Termi na 1 s 1. If access to the OCLC System is by dedicated line, then OCLC Terminals, together with the installation thereof, will be offered for sale to Participant in accordance with the terms and condition set forth in the standard form of OCLC Terminal sale agreement in effect a the date of the transaction, a copy of which will be furniished to Participant on request. Participant may use for such purpose any terminal not furnished by OCLC provided that the same are compatible with the OCLC System and approved as such by OCLC upon written request from Participant. If access to the OCLC System is by dial access, then OCLC Terminals may be offered for sale to Participant, or Participant may use aiiy terminals not furnished by OCLC. c \ Requirements for compatibility of dial access terminal 5 0 OCLC840411:Ol 1 a. I. with the OCLC System will be published from time to time by OCLC. special situations, and subject to case-by-case approval by OCLC, OCLC Terminals may be offered for lease to Participant in accordance with the terms aind conditions set forth in the standard form of OCLC Terminal Lea! Agreement in effect at the date of the transaction, a copy of which will furnished to Participant on request. In 2. At the request of Participant, OCLC will prov. rrainteniince service for OCLC Terminals sold to Participant, which servicc shall be in accordance with the terms and conditions set forth in the then-current standard form of OCLC Terminal maintenance agreement, a copj of which will be furnished to Participant on request. C. Telecommunications 1. OCLC shall arrange for and solely control a private telecommunication network between OCLC, Participant and other OCL participants, to permit the delivery of Online Processes under this Agreement to terminals used to access the OCLC System by deaicated line. OCLC will, at all times, direct and control all aspects of network configurations, including, without limitation, the mode of te lecomrnu ni ca ti on network i ng , the tele communi ca ti ons ca rri er , the sequenc of stations and the method for delivery of the Online Processes. The telecomrnunication network furnished by OCLC shall include and terminate with a required modem(s) on the premises of Participant. including all modem(s) installed by OCLC under any preceding agreement between Participant and OCLC, and still in place on the effective date hereof, are owned by OCLC. Upon expiration or termination of this Agreement for any reason, the modem(s) will be returned to OCLC by Such modem(s), 6 e @ OCLC840411:Ol N L. Participant. for loss or damage resulting from willful acts or gross negligence by Participant. to the telecommunications system as arranged by OCLC. Risk of loss or damage to modems will remain with OCLC exce Participant shall not make any changes or add any attachmen 2. OCLC will provide dial-up access to the OCLC System through the public, switched networks, and, when iin its opinion practicable, will make arrangemnts for such dial-up through one or more value-added networks as well. D. Technical Support to Participant OCLC will provide: 1. Training of personnel in the operation of the Online Processes and Offline Products to be furnisried hereunder. A1 1 reasonab 1 e, con ti nu i ng , tech ni ca 1 a s s i s tan to Participant, including the provision of a convenient telephone contact within OCLC. 2. 3. Field and workshop training of personnel of Participant in new subsystems. 4. Technical bulletins, instruction manuals, and other specialized documentation which OCLC makes available for use by OCL participants generally. 5. Assistance to Participant to assure the accura of all forms, purchase orders, contracts and other documents required by OCLC to initiate and provide Online Processes and Offline Products and Services hereunder, including a catalog profile and pack definition table for Participant. 7 OCL C8404 11 : 01 NFP 0 e I’ E. OCLC/MARC Subscrip ti on Tapes. During the term hereof, OCLC will make available to Participant upon a subscription basis with orders placed in advance, and upon a schedule applicable to all OCLC participants, copies in OCLC/MARC format, on magnetic tapes, of the cata’n- records of Participant which it has added to the OCLC Online Union Catalog, or to which it has attached its OCLC-assigned holdings symbol, during the term hereof. 0CL.C will also nuke available to Participant, during the term hereof, copies of the machine-readable records of other OCLC participants who have given their written consent to OCLC. F. New Online Processes and Offline Products an(’ Services OCLC agrees that as soon as it has completed development and testing, and is ready to release to its participants generally, new or enhanced Online Processes, Offline Products and Services, the same will be made available to Participant hereunder, by addition to Appendix 1 hereto attached. The charges, terms and conditions for such new a,nd enhanced processes, products and services will be determined and equitably applied by OCLC and MY be the subject of separate or supplementary agreements between the parties. ARTICLE IV - RESPONSIBILITIES OF PARTICIPANT. A. St a n da rds When accessing the OCLC System, Participant shall abide by standards set forth in Online System Bibliographic Inpul: Standards, Second Edition (1982), as the same may be amended from time to time, and by other standards regarding use and operation of the OCLC System and/or the 8 OCLC840411:Ol N 0 e Online Processes adopted by OCLC from time to time for application to OCLl parti ciplants generally. B. Current Cataloging Participant agrees to search the OCLC Online Union Catalog ,in connection with all of its Current Cataloging, determining whit of the catalog records required for Current Cataloging are available therein, and to the extent not available therein, to create the records at insert them into the said Union Catalog by means of Shared Cataloging. Whether !jUCh catalog records are already available in the said Union Catalog or are created and inserted by Participant, Participant agrees thi it will set its OCLC-assigned holdings symbol to all catalog records in tt OCLC Onl-i ne Union Catalog required for Current Cataloging. Provided that Participant has met its responsibi li ties under this Paragraph B, nothing herein shall prevent Participant from also carrying out cataloging activities by any other means it may elect. Participant will at all times during the term of this Agreement maintain its holdings information in the OCLC Online Union Catalog in an accurate and up-to-date condition, and wil inform OCLC promptly of any errors in catalog entries in the said Union Catalog which Participant is unable to correct online. . C. Non-Member Services Participant agrees that it will not access -the OCLC System to perform services or provide assistance for or on behalf of any non-OCLC member except with the prior written consent of OCLC. D. Site Preparation Participant shall be responsible for site preparation fo OCLC Tern:inals in accordance with specifications to be fuirnished by OCLC. 9 0 0 OCLC840411:Ol N E. Charge s Participant shall make payment of OCLC charges hereunde in accordance with the requirements of Article V below. F. Termi nal Printer Port Participant agrees that, except with OCLC's prior writt consent, it will not obtain catalug records in machine-readable form, by way of a terminal device or other device or means for accessing the OCLC System, when Participant Is OCLC-assigned holdings symbol has not been attached to such records in the OCLC Online Union Catalog, except in the following cases. (i) Records required by Participant to carry out Current Cataloging or authorized retrospective conversion activities hereunder may be stored temporarily, prior to attachment of Participant 's holdings symbol, as required by Participant's established work flow procedures; but no other use or transfer of such stored records shall be made prior to attachment of said holdings symbol. (ii) Records my be obtained and used by Participan in connection with it5 acquisition of -new library materials provided (a) that the records are not transferred or made available to third parties other than the publishers or suppliers to whom Participant's purchase orders for such new ma?erials are issued; and (b) that Participant's OCLC-assigned holdings symbol is attached to a71 such records in the OCLC Online Union Catalog reasonably promptly after receipt by Participant of the newly acquired materials. 10 OCLC840411:Ol NFF 0 0 Attachments to and Use of the OCLC System a. - G. Except as permitted in a separate agreement entered into between Participant and OCLC, Participant will not cause or permit any equipment or device to be directly or indirect1.y attached, linked or used with the OCLC System except equipment and devices permitted under the OCLC Attachments Policy attached hereto as Appendix 3 (as the same may tie amended from time to time on ninety (90) days prior written notice by OCLC) , b. No application or use of the OCLC System or OCL( Online Un-ion Catalog not expressly permitted by this Agreement will be mad€ by Participant without the prior written consent of OCLC. C. Any computer facilities or software programs provided by Participant for use with the OCLC System shall be without adverse effect on the System. ARTICLE V - OCLC CHARGES. A. Payments and Discounts Participant will pay OCLC the aggregate charges and rentals for Online Processes and Offline Products and Services furnished bj OCLC under this Agreement, all as provided in Appendix 1 hereto attached, Participant will be entitled to participate in the OCLC Subscription Discount Program as set forth in Appendix 2 hereto attached, earning the discounts referred to therein. L , Invoices based on actual usage of processes, and sales and rentals of products and services, will be rendered to Participant monthly. Statements will reflect the appropriate discount to which 11 LiW4U4ff :Uf NtP 0 (Iy Participant is entitled by virtue of its participation in the aforesaid Subscription Discount Program. Net amounts due to OCLC after crediting subscription discount payments will be payable in accordance with the terms set forth in Appendix 1 and/or 2 hereto, and will include a late payment service charge, computed at the percentage rate shown there-in, for amounts paid beyond, stated terms. Any subscription discount payment not credited against monthly invoices, shall, at Participant's option, be refunded to Participant: in cash on thirty (30) days prior written notice to OCLC. In the event of termination of this Agreement pursuant to Article XI]: OCLC will refund to Participant any subscription payment in excess of claims against such payments. E3 . Uniformity and Modification -of Charges and Discounts OCLC agrees that (i) all charges before discounts as detailed in Appendix 1 hereto (except charges identified in said Appendix as variable), (ii) the discount schedule in Appendix 2 hereto and/or (iii) all charging policies, shall be of uniform applicability among Participant and the other OCLC participants in the United States with which OCLC is in contract for the supply of Online Processes and Offline Prolducts and Services. effective at any time, and may increase or add new such charges for existing processes, products and services, or change the form or method of charging, upon sixty-five (65) calendar days prior written notice to Participant. to notice Siven, Appendix 1 and/or 2 shall be deemed to be amended to provi de for those modi f ica ti ons. OCLC may reduce any charges provided for in this Agreement When any modification in charges becomes effective pursuant 12 0 oOCLC840411:01 NFP If new Online Processes and/or Offline Products and Services are added to Appendix 1 to this Agreement, the charges applicable thereto will be deemed added at the same time to Appendix 1, and will be subject to the foregoing uniformity policy. ARTICLE VI - TAXES. - A. All charges set forth on Appendix 1 to this Agreement are exclusive of sales, use, excise ana similar taxes which may be applicable to the transactions dealt with in this Agreement, all of which taxes, together wiith interest and penalties thereon shall be for the account of Participant and reimbursed to OCLC. Such taxes for which claims or assessments could be made against OCLC my be added to invoices to Participants unless a valid exemption certificate has been furnished to OCLC by Participant. Participant may, at its own expense and in OCLC's name, challenge or seek abatement or refund of taxes for which it is liable hereunder. OCLC shall cooperate with Participant in that regard by providing it11 relevant information that is available to OCLC. obligations under this Article VI shall survive the expiration or termination of this Agreement. Each party's 13 . nf Federal income tax. Participant represents that it is exempt fron; the payment ARTICLE VI1 - USE AND TRANSFER OF RECORDS. - Participant shall be free, without restriction, to use, copy, display and distribute, in any manner it may elect, copies of all catalog records received or obtained by it under this or any preceding agreement with OCLC and derived from the OCLC Online Union Catalog, and of all 13 0 0 OCLC840411:Ol NI derivative works made therefrom, except that Participant agrees that it will not transfer or otherwise make available, in machine-readable form, copies 01' said catalog records or derivative works to third parties other than (i) OCLC participants; (ii) vendors from whom Participant acquires goods or services in transactions requiring such vendors to have access tc said records or derivative works, where such vendors have first signed ant delivered to Participant an agreement in the form shown on Appendix 4 hereto attached, restricting the subsequent use and transfer of such records; and (iii) non-OCLC participants (other than vendors referred to i clause (ii) above), subject to prior negotiation by OCLC and Participant c mutually agreed terms and conditions. Participant and its venaors, required by clause (ii) above, shall be furnished to OCLC by Participant' prorrrptly following its execution by the parties. survive the expiration or termination of this Agreement alnd of any OCLC/MARC; subscripti on agreement between the parties. A copy of each agrleement between Participant's rights and obligations under this Article VI1 shal ARTICLE VI11 - - WARRANTIES AND LIMITATIONS OF LIABILITY. A. Catalog cards, OCLC/MARC subscription ttipes and other Offline Products, except OCLC Terminals, will, at the delivery thereof, be free of errors or defects caused by OCLC. If any such products prove, within sixty (60) days after delivery to have been defective or to have contained errors upon delivery, OCLC will either replace the item by reproducing it free of charge or, at OCLC's option, by requiring new onlin( transactions by Participant with issuance of full credi t. OCLC Termi nals sold to Participant hereunder are warranted as provided from time to tire 14 0 * OCLC840411:Ol NI in the standard form of OCLC terminal sale agreement referred to in ARTICI 111-B above. THE FOREGOING OBLIGATIONS AS SET FORTH OR REFERENCED IN THI! ARTICLE VIII-A REPRESENT OCLC'S SOLE AND EXCLUSIVE LIABILITY FOR ANY DEFE( OR FAILURE IN ONLINE PROCESSES, OFFLINE PRODUCTS AND SERVICES. B. Immediately prior to the delivery of all Offline Product sold or Iteased to Participant hereunder, OCLC will have good title theretc OCLC shall rraintain the OCLC Online Union Catalog durinc C. the term hereof, and shall exert continuing efforts to uplgrade said Union Catalog a,nd to improve performance of the OCLC Systen;. D. Except for the express warranties stated above in this Article .I11 and the undertakings in Article IX below, OCLC makes no express or implied representations or warranties with respect to Online Processes, including the time of their availability, or Offline Products o Services. All other warranties, including the WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE ARE HEREBY DISCLAIMED. OCLC SHALL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE FORM OF ACTION, NOR SHALL IT BE LIABLE FOR EXEMPLARY DAMAGES OR LOST REVENUES. In the event that the exclusivity or limitation of liability or remedy set forth above is held to be unenforceable for any reason, then OCLC's total liability to Participant in respect of any claim, regardless -of the form o action, shall not exceed the value of all transactions under this Agreemn for three- (3) months preceding the incident giving rise to such claim. 15 a OCLC840411:Ol NFI ARTICLE IX - INFRINGEMENT UkDERTAKINGS AND GRANT OF LICENSE. w - A. By OCLC OCLC agrees to defend and assume all of Participant's liability and costs for any suit or claim brought or asserted against Participant on the ground that the Online Processes, Offline Products or Services, as furnished by OCLC, infringe any patent, copyright, trademark, secrecy or other proprietary interest of a third party, provided and upon the conditions that Participant (i ) promptly deliver to OCLC written notict of any claim of such infringement together with all infringement notices and other papers received by Participant and (ii) give OCLC all informtior and assistance reasonably requested, together with exclusive authority to investigate, settle and defend such claim. ENTIRE LIABILITY TO PARTICIPANT FOR ANY ACTUAL OR ALLEGED INFRINGEKENT OF THE TYPES DEALT WITH IN THIS ARTICLE IX-A. B. By Participant THE FOREGOING SETS FORTH OCLC'! Participant agrees to defend and assume all of OCLC's liability, costs and expenses for any suit 0.r claim brought or asserted against OCLC on the ground that any information or data entered into the OCLC Online Union Catalog by Participant, including any use, reproduction or transfer thereof by OCLCC or its designees, infringes any copyright, trademark,, secrecy or other proprietary interest of third parties, provide( and upon the conditions that OCLC (i) promptly deliver to Participant written notice of any claim of such infringement, together with all infringement notices and other papers received by OCLC and (ii) give Participant a1 1 i nf orma ti on and assistance reasonably requested, together with exclusive authority to investigate, settle and defend such claim. THf 16 0 OCLC840411:Ol NFF FOREGOING SETS FORTH PARTICIPANT'S ENTIRE LIABILITY TO OCLC FOR ANY ACTUAL OR ALLEGEUl INFRINGEMENT OF THE TYPES DEALT WITH IN THIS ARTICLE 1X-8. C. License Grant Participant hereby grants to OCLC, other OCLC participants, non-participant users and designees a perpetual, non-exclusive, royalty-free, transferrable, world-wide right to copy, display, publish, prepare derivative works from, distribute and use (including, without limitation, use in forming new compilations of information) all bibliographic records, holdings and other information supplied to OCLC during the term of this Agreement by Participant or any entity acting on its behalf, under any copyright, patent, secrecy or other proprietary right therein owned or controlled by Participant. ARTICLE X - RESPONSIBLE USE. Participant agrees to comply with any code of responsible use adopted by OCLC for OCLC participants upon the recommendaticn of the OCLC Users Council, and to act in the use of the OCLC System, the Online Processes and Offline Products with good faith and loyalty to all other OCLC participants, doing nothing to waste, diminish or cause harm to their shared beneficial interest in OCLC. act cooperatively with each other and to avoid practices which have the effect either of shifting the burden of payment for OCLC products and services away from those receiving the same, or manipulating use of the OCLC Systeim 'in ways which unreasonably and adversely affect. its performance. the duty of responsible use: It is a duty -of OCLC participants to . The following practices are some examples of violations of 17 o OCLC840411:Ol NF 0 (i 1 Creating duplicate records in the OCLC Online Catalog, whether as a result of failing to search fully before doing original input in order to reflect local bibliographic information, in order to avoid the First Time Use charge, or otherwise. (ii) Permitting use of the OCLC System by or for entities which are not general members of OCLC; provided, however, that such use fo non-members is permittea (a) where it generates an interlibrary loan request on the OCLC interlibrary loan subsystem and (b) where an authorize processing center participant carries out Current Catalog'i ng on behalf of its client users. (iii) (iv) Use of the save file as an electronic mail system. Doing Current Cataloging or reclassificittion cataloging a retrospective conversion authorization. (V 1 Placing mu1 tiple interlibrary loan requests on one interlibrary loan work form. ARTICLE XI - FORCE MAJEURE. - Neither party shall be liable for any failure or delay in performance hereunder (other than of an obligation to pay money) due to or resulting from any cause beyond its reasonable control including, but not limited to acts of God, strikes, shortage of materials, actions of government, fire, adverse weather conditions or operational failure, provided that the party so affected notifies the other promptly of the commencement, nature and estimated duration of the cause. 18 0 e OCLC840411:Ol NF L. ARTICLE XI1 - - TERM AND TERMINATION. A. Subject to the balance of this Article XII, this Agreement shall remain in effect indefinitely, until terminated by either party entirely in its own discretion and for any reason whatsoever, upon not less than ninety (90) day's prior written notice to the other. B. Whenever either party believes that the other has committed a breach of any material obligation under this Agreement, it may give the other notice to that effect with reasonable specificity. other party shall use its best efforts promptly to remedy any breach and shall keep the party giving notice informed of the nature of the remedial action planned and taken, or will respond to the notice, with an . explanation of the reasons it believes that no breach has occurred. When i party in material breach has not corrected same or is not diligently takin! necessary corrective action within twenty (20) days after notice of such breach, which action will enable the party to cure the breach within a reasonable time, or if the party becomes insolvent, is the subject of a petition filed under any chapter of the Bankruptcy Act and not withdrawn within sixty (60) days or if a receiver is appointed for all or part of a party's property, then the other party shall be entitled to seek appropriate relief under this Agreerrent and under applicahlt law, which relief includes, without limitation, termination of this Agreement by written notice, without liability therefor. The c. Notwithstanding the provisions of Paragraph B above, if Participant fails to issue payment within ten (10) business days after receipt of notice from OCLC of non-payment of charges due and payable under this Agreement and not reasonably in dispute, OCLC may terminate the 19 OCLC840411:Ol NF e 0 Agreement by notice in writing effective at any time after the end of thos ten (10) days and prior to receipt of the late payment, without liability for such termination. D. Whenever any rraterial obligation of either party under this Agreement is postponed or delayed pursuant to the provisions of Article XI above for more than ninety (90) consecutive days, then the othe party MY give notice of termination of this Agreement, effective thirty (30) days after such notice, unless by such date the cause of the delay ha been removed and performance of the delayed obligation has been resumed. ARTICLE XI11 - ASSIGNMENT. - This Agreement may not be assigned by either party, i,i whole or in part, without the express, prior, written consent of the other, except that assignment may be made, without such consent, to any entity acqutring all or substantially all of the business or assets of the assigning party, provided that the assignee affirmatively undertakes to the other party hereto to comply with all obligations of the assignor hereunder. to the foregoing sentence, this Agreement shall inure to 1:he benefit of an be binding upon the successors and assigns of each party hereto. ARTICLE XIV - NOTICES. Any notices, desired or required to be given by either party Subject - pursuant to this Agreement, shall be in writing and shall be deemed sufficient if delivered by hand or if sent by certified mil, return receipt requested, to the address of the other party set l'orth below or to such other address as has been furnished by means of a notice given in accordance with this Article: 20 0 .O CL C8 4 04 1 1 : 0 1 N FP If to OCLC: President OCLC Online Conputer Library 6565 Frantz Road Dublin, Ohio 43017 Center, I ncorpor'ated If to Participant: Library Director Carlsbad City Library 1250 Elm Avenue Car 1 sbad, CA 92008 ARTICLE XV - MISCELLANEOUS. A . Effect of Waiver The waiver or failure of 'either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of iiny further or future right under this Agreement. 13 . Headings Paragraph and Arti cle headi ngs are i ncl uded i n this Agreement for convenience only and are not deemed to be a part of this Agreeme n t . c . Appl i cable Law This Agreement shall be governed by, subject to, and construed according to the laws of the State of Ohio. 11 . Ori gi na Is This Agreement is executed in two (2) signea counterparts, each of which is and shall constitute an original hereof. IE . Enti re Agreement This Agreement is the final, complete and exclusive statement (of the agreement of the parties with respect to tphe subject 21 OLLC840411: 0 1 NFF 0 0 matter hereof. supplemented except by a writing signed by both parties, unless otherwise provi ded for herein. No provision of this Agreement my be changed, modified, or IN WITNESS WHEREOF, the undersigned, being duly authorized, on behalf of the parties, their successm-s and assigns, have executed this Agreement effective the last date below written. WITNESS: OCLC ONLINE COMPUTER LIBRARY CENTER, INCORPORATED BY Title - Date WI TN ESS : Dat 7 -2, 0 F j9d-y By?!zzLLL Title (NAME OF PARTICIPANT) THE CITY OF CAIILSBAD, A Municipal u+Ip Qa- I 22 0 0 APPENDIX I Page PACIFIC NETWORK CEiARGES Effective 1984 July 1 Online System Produc tia Product Code Description Charges - Products Cataloging ProducesIFirst Time Updates 250/255 I330 Prime Time $ 1.69 (2)(3) 25112561331 Nonprime Time 1.47 (2) Reclassification Produces/Updates 3001305 Prime Time - 1.69 (3) 3011306 Nonprime Time 1.47 Retrospective Conversion 335 Prime Time 1.12 (3) 336 Nonprime Time .28 356 Display Holdings Use .09 350 Public Service Searches -11 (23) 150 Accessions Lists 2.40 .17 151 Changes 35.00 Catalog Cards .06 100/101 75.00 10 2 Out-of-Warranty Card Rerun OCLC-MARC Distribution Service 203 Sample Tape 201 Cost of tape and handling 140 Items or Less s2- 141 Items or More 75.00 30.00 35.00 None Standard 1600 C.P.I. 800 C.P.I. Optton Credit for Returned Tapes Copying Charge Per Record: 1-1,000 Logical Records 1,001-5,000 Logical Records 5,001-20,000 Logical Records .05 .03 .02 200 20,001-50,000 Logical Records .01 50,001-100,000 Logical Records .01 .01 100,001-200,000 Logical Records .01 200,001 and Up Logical Records 2 04 Production Frequency Charges 12. oc Weekly 25.0C Biweekly 55.0( Monthly Quarterly 150.0( Semi-annually 390.01 35.0( 205 Changes in MARC Distribution Profile (1) Postage billed separately. (2) Includes retrospective conversion produces. (3) Prime time hours: 6am - 2pm Pacific Time (Monday - Friday). Nonprime hours: 3am - 6am, 2pm - 7pm Pacific Time (Monday - Fri'iy and all 0 0 APPENDIX I Page PACIFIC NETWORK CHARGES Effective 1984 July 1 Online System Produc tior Products ( - Product Code Description Charges Interlibrary Loan 450 Produces $ 1.34 451 Referrals 1.34 358 Display Holdings Use .09 453 Statistics Annual Fee $ 150.00- 4 54 Statistics Reports Per Page .13 361 UL Holdings Display .09 Serials Control 400/406 Check-in/Updates .07 4 07 Claiming .54 4 08 LDR Creation .45 409 Claims Forms ' .13 402 LDR Storage Per Year .03 (6) Union List 4 10 Updates .07 401 LDR Creation .45 403 Minimum 340.00 /I5 libraries (7) 403 Add i t ional 15.00 /added OCLC member 403 Additional 30.00 /added non-OCLC me 402 LDR Storage Per Year .03 (6) 357 Display Holdings Use .09 360 LJL Holdings Display .09 4 20 per title .02 421 per summary holdings statement .01 statement .02 423 per index entry .01 reference .oo: 425 per printed page .06 Start-up Fees Offline Lists (Paper or Fiche) (9) 422 per copy-specific holdings 424 per optional field or cross- 435 per original fiche 4.50 436 per fiche copy .30 (1) Postage billed separately. (5) Data is accumulated July-June fiscal year. Annual fee is a 12-month revolv: regardless of subscription sign-up. (6) Billed semi-annually, October and April. (7) First 15 members will be taken as OCLC members. (8) (9) First-year charge only. After start:-up, billed whenever new members are added. See Serials Union List Criteria document for approved uses of products. 0 0 APPENDIX I Page PACIFIC NETWORK CHARGES Effective 1984 July 1 On1 ine Sys tem Produc ti01 Products 1 Product Code Des cr ip ti on Charges - Offline Lists (Tape) (9) 44 0 per title $ .03 44 2 per copy-specif ic holdings 44 5 per tape 44 1 per summary holdings statement .01 statement .02 30.00 -- Acquisitions 242 Produces/First Time Updates ' $ 1.10 365 ACQ/CAT Combination Discount .15 (LO) 230 Action Forms .13 231/232 Fund Reports (paper) .13 2341 235 Fund Reports (fiche) 7.00 2?5/237 Fiche Copy .30 233 Fund Storage Per Year .25 (1.1) 359 Display Holdings Use .09 680 System Service Fee 26.50 /t:erminal/month (1) Postage billed separately. (9) See Serials Union List Criteria document for approved uses of products. (10) Applicable on the lesser of annual Product Code 242 or the sum of Product Co (11) Billed semi-annually, September and March. (250+255+251+256) plus original cataloging. Credited at fiscal year end. 0 0 APPENDIX I Page PACIFIC NETWORK CHARGES Effective 1984 July 1 TerminaIl & Terminal Product Code Description Related Services Terminal (12) Terminal Maintenance Service (per separate agreement) 7 00/701/702 Model 100 /lo5 / 110 - $ 43.00 per month 951 Model 300 (13) - 43.00 per month Other Model 300 Equipment Maintenance Service (13) 955 Expansion Chassis - 15.00 per month 69 0 Terminal Lease - 170.00 per month Cables - Data 6 Chaining (Purchases in addition to cable provided with terminal ) 776 20 ft. 30.00 (14) 777 30 ft. - 40.00 (14) 778 60 ft. - 70.00 (14) 779 Special Length - (14) (15) Telecommunications 65.00 6 11 Per OCLC Modem per Month - 1-27.00 612 Per Terminal per Month - Terminal Non-Maintenance Service Charge (17) lL68.00 720 Baud Rate Change - l68.00 720 Terminal - Installation - l68.00 720 - Removal - 720 Relocation - Within Same Building 1L68.00 336.00 7 22 - To Different Building - ,168.00 720 Readdress - i168.00 720 Rep lac emen t - 719 Certification - (18) 612 Data Set Move - Within Same Building 310.00 (16) - To Different Building - 450.00 (16) Installation 475.00 (16) Modem and Station Termination Billable Service Call 168.00 336.00 710 - No Parts Replaced - 711 - Some Parts Replaced - (12) See Microcomputer Products price schedule for Model 300 and related hardwa~ (13) See separate maintenance agreement for details of qualifying equipment. (14) Freight to be added. (15) $30 plus $l/ft. over 20 ft. (16) Subject to telecommunicaitons carrier rate changes. (17) Price per one service per call. will be priced at $95.00 per each additional terminal. (18) Billed 3n time and material basis. terminal 1-0 condition necessary for certification. software purchase prices. Additional services performed during the I Freight to be added for parts necessar. e APPENDIX I Page PACIFIC NETdORK CHARGES Effective 1984 July 1 Online System Product Code Description Charges Access to OCLC System Via Tymnet/Telenet 6 00 / 6 06 Connect Charge Per Hour (300 baud/1200 baud) ($.16/minute) $ 9.60 per hour ( WATS Hourly Connect Charge 25.00 per hour Subscription Fee 602/608 601 Per Tymnet Password 607 Per Telenet Password 4.00 per month 4.00 per month -- -- Access to OCLC System Via Direct Dial - (20) 200.00 per year ( 6 05 Authorization for Dial Access - Miscellaneous Charges 9 00 Start-up ins truc tion 500.00 per incide Training and Follow-up - Support Services 103 /lo4 /452 Profile Processing (Cataloging/Union List/ Interlibrary Loan) - 9 02 Billing Tape - 37.00 per hour :30.00 (19) Within the continental United States. (20) User/participant pays telecommunication cost directly to telephone company. (21) Per institution via Tymnet, Telenet, or direct dial access. (23) For public service search terminals only. . (22) Plus travel expenses. e 6 .- APPENDIX I1 OCLC, ONLINE COMPUTER LIBRARY CENTER, INC. 1984/85 SUBSCRIPTION DISCOUNT PROGRAM Discount Percent Annual Nurrber of Wnths Day of Fbnth Percentage Covered by Subscription Payment Received by OCLC Rate Last -- Payment 15th - 1 1.7 1.3 10% 2 2.1 1.7 10% 3 2.5 2.1 10% 4 2.9 2.5 10% 5 3.4 2.9 10% 6 3.8 3.4 10% 7 4.2 3.8 10% 8 4.7 4.2 108 9 5.1 4.7 10% 10 5.5 5.1 . 10% 11 6.0 5.5 10% 12 6.4 6.0 10% Standard Payment Terms : Net amounts payable 45 days from date of invoice. Pronpt Payment Terms : Discount of .35% (-0035) (8% APR) credited for payments received within one mnth from date of invoice. Late Payment 'Terms: Late paymtnt charge of 1% per mnth (12% APR) lmposed on all outstanding charges in excess of 2 mnths from date of invoice. z OCLC840411:01 NFI 0 e APPENDIX 3 OCLC ATTACHMENTS POLICY Except with the prior written consent of OCLC, no equipment or device may be directly or indirectly attached, linked or used with the OCLl System except: 1. Terminal devices furnished or approved iin writing by OCLl expressly for use with said System (hereinafter "Terminals"). Any equipment or device which Library mziy elect, in its sole discretion, to attach to Terminals. 2. Notwithstanding paragraph numbercd "2" above, no equipment or device may b attached (i) to the telecommunication line connecting OCLC to the site of the said Terminal(s), or (ii) to the modem at the termination point of sai telecommunication line at the site of a Terminal, or (iii) to any interconnecting cables between modem and Terminal or between Terminals. I addition, no equipment or devices except other Terminals my be attached directly or indirectly to the next-CRT-port on Terminals, or to any of the circuitry associated with such port. paragraph numbered "2" above shall be at the sole risk and expense of Participamt. equipment. or device will function properly or as desired, or that it will not cause harm to the Terminals to which attached, unless the equipment or device is furnished or approved in writing by OCLC. Attachment of any equipment or device to Terminals under OCLC does not warrant or provide any assurance that such L -. hx- --$ a 0 1. - - - e.’ % AG R E EM EN T 3 Ell! E E N CITY OF CARLSBAD, CALIFORfdIA API u OCLC, TNC. 1 1 ’> e 0 % TABLE OF CONTEXTS . Page .... n-.-L. I Ecscri;ti-;z Zr,f~Z.2”, lex CG-2 2czlzrztisn of :Purpose .................. 1 . Part XI Definitions .................. 3 Part I11 Terms of OCLC System Availability ...... 4 32 . Standards 5 33 . Implementation ............ 6 34 . Terminals .............. 6 35 . Telecommunication 8 ‘and Products ........... 8 ... t Sec .............. . 31 . Access 4 ............. .. .......... 36 . Support and New Processes ................... . Park IV Charges 9 Sec. . 41 . General ........ I ..... 9 42 . Modification of Charges and Charging Methods ......... 11 43 . Taxes. ............... 12 Sec. . 51 . filarranties of the Parties ..... 12 . Part V Warranties, Rights and Cooperative Efforts . 12 52 . Copies of Catalog Records of Library ............ 14 53 . Conflicts and Uniformity ..... 14 54 . Cooperati-ve Efforts ........ 15 Part VI General Provisions ............. 15 Sec . 61 . Excusable Delays ......... 15 and Termination .......... 16 62 . Corrective and Xernedial Pleasures ', . SL 0 0 ? 63. Assignncnt . . . , * . .. . . 17 64. Notices, . e . . . . (. . a . . . 17 65. Miscellaneous, e . , . , . a 18 .*-4 .. \ * *\ .. .. \ 1’ e 0 . APPENDICES OCLC Level I and Leve Input Standards 1.9 7 7 November Schedule I3 1 Appendix I Schedule! of OCLC ’ ’ Charges OCLC First Time Use Payment Option Purchase. Appendix I1 Appendix 111 Terms for Tefminal - 0 1 e ;' \ IMDEX OF DEFINITIONS -- - Paragraph Reference A+-ea,enl-, Cats Section 21.i Firs t-Time Use Section 21.2 Notices % Section 64 OCLC Part I OCLC Maintenance Service - Sections 34.2 and 34 OCI,C 0n-L.ine Catalog Section 21.4 OCLC System Section 21.3 OCLC Termj-nal Section 34 .l Off-Line Products Section 2!le 5 (b) Shared Cataloging Section 21.5 TeLecomunication Section 35 Term of the Agreement Section 21.6 Union Catalog Section 21.7 .1 I' 0 e AGREEMENT BETWEEN AND WLUL, IXC. nm- n d THIS AGFSEMENT is made, effective as of the /$ day of & l 1978, by and between City of Carlsbad, Califorr I a corporation not for profit organized and existiing under the Laws of the State of California , referred to .for purposes of this Aqreement'as the Library, and OCLC, Znc., a corporation not for profit organized and existing under the Laws of the State of Ohio, referred to for purposes of this Agreement as OCLC. WITNESSETH: In consideration of the mutual covenants and undertakings described herein, the parties agree as follows: PART I DESCRIPTIVE INFOFCYL?~TION AND DECLARATION OF PURPOSE OCLC is a cooperative library system having develop for its members through means of their financial support an operating computerized system of on-line union catalog and shared cataloging activities and catalog production, and is engaged ais well in research toward additional sqrstems. OCLC, hawing the capability of operating a nationwide, on- line, computerized library network, has offered extension of its processes, products and expertise to librarries and I -1- \ \ 0 0 library rcgions, pursuant to contract, providing access and input to its on-line union catalog, use of its shared catalog process, and production of catalog products, together with the benei.zts or' research toward additional systems to be made available as they are financed, developed and irnplemente with tEid objective of making its prccesses, proelucts and expertise widely available. and libraries with which it has contracted acknowledge a fundamental public, scientific, and educational purpose to be ser'ved, and recognize that utilizing Computerized data processing, aEd sharing of data, serves to reduce costs while promoting education and providing expanded access by the library user to the ever-growfng body of wo:rldwide information. OCLC has adopted a policy of making its procesi products, and expertise ltvailable through agreements designec to afford continuity of use of the OCLC system by libraries and networks 02 libraries, at charges uniformly applicable but subject to change to meet financial requiremenks for continued operation of OCLC. OCLC and the several networks . The Library desires to take advantase of this policy of OCLC, with the realization by the Library that once it does adopt the use of the computerized system of QCLC, it will require continuity of the system, because it will not be able, readily and without substantial advance planning, to perform, or obtain by itself the processes and products available through the OCLC system. Y 2.- 'I t l e e PART I1 Definitions. Section 21-; For purposes of this Agreement, the t-,errris ~c'fi Cxt5 bc:c;:r 3.x~ t?,e r,zxhcj i'idLic~L~3i:: Section 21.1, date of this Agreement. "Agreement Date" means the effective .. Section 21.2. "First-time Use" means each initial use by the Library of a catalog record in the OCLC On-Line Catalog for catiilog production where the record was not input by the Library. Section 21.3. "OCLC System" means a system, operated by OCLC, for maintaining in digital form, by means of electronic data processing equipnent, a regular1y.u~- dated file of library catalog information supplied by librarl primarily through on-line telecommunication, and accessible to them. - Section 21.4. - "OCLC On-line Catalog" means the 4 file or data base oE bibliographic records, indexes, and related files of information on-line in the OCLC System. Section 21.5. - "Shared Cataloging" comprises the following proce- ases : (a} The utilieation of the OCLC System in a manner such that the Library can perform cataloging by mans af it, on-line, from terminals and through telecommunication, which functions include, without limitation, the creation of ar. on-line catalog or data base maintained within'the OCLC System and the editing of copies of catalog records, and . 7-3- 1 , m a- (b) the furnishing by OCLC of printed catalog cards and such other "Off-line Products" as printed lists of the particular Library's own accessions, and magnetic tapes in QCLC/fLii-?'I fsrxt sf -52 rcczr% in kk~ iht~ 5z.52 uL .-lLu OCLC System which the Library has created or used for catalog production. n.c LL-q Section 21.6. I "Tern of the Agreement" means the period of time that commences on the Agreement Date and con- tinues for. an initial term of two (2) sooner'pursu'ank to Sections 62 (a) through 62 (dl of this Agreement, and continuing thereafker, unless and until terminated pursuant to Section 62 (e). year(s) # unless terminate Section 21.7. "Union Catalog" means that within & the location inzorxtation which tells the user the names of those libraries, if any, which possess the particular material described by the recard. OCLC On-line Catalog each catalog record may contain Section 22. The following terms are defhed, for purposes of this Agreement, elsewhere in this Agreement: "OCLC Terminal" Section 34.1 "OCLC blaintenance Service" Sections 34.2 and "Not i c e s " Section 64. '' Te 1 e commun i c at i on '' Section 35: 34.3 PART I11 TERMS OF OCLC SYSTEII AVAILABILTTY Section 31. Access. - Section 31.1. During the Term of the Agreement the Library shall be entitled to make use of Shared CatalogiI -4" l 3 a 0 > and may access the Union Catalog on the terms arid subject to the conditions set forth in this Agreement, at the charges provided for, and to such full extent as is shared by all ?crticipaiLts in ijc:~~:. Section 31.2. The Library may. do those things referred to in Section 31.1 between the hours of 7:OO A.M. and 1O:OO P.M., Columbus, Ohio local time, Monday through Friday, and between the hours of 8:OO A.M. and 8:OO P.M., Columbus, Ohio local time, on Saturday, except brew Yearss Day, Independence Day,. Labor Day, Thanksgiving Day, and Christmas Day. If any of these holidays fall on Sunday, the succeeding >Ionday will also be observed. .. Section 31.2.1. On occasion, it may be necessary t~ tcrnporzily suspend system availability because of cjperati requirements. In such an instznce, OCLC will provide the Library with prior notice of system unavailabili.ty. Such suspension shall be deerned not an unreasonable prevention, postponement or delay pursuant to Section 62(c). c Section 31.3. CCLC shall furnish printed catalog cards in accordance with its regular daily schedule. It will render other Off-lins Products to the Library at frequer selected by the Library, from schedules provided by OCLC. Section 32. Standards. In the use arid operation of the OCLC System, the parties shall abide by standards set forth in attached Schedule B, as it may be amended from tim'e ' to time, or any other appropriate current standayds which have been adopted by OCLC, and as such standards zre amended from time to time. .. I I % 0 c__ Section 3 3. Imp]-ementation. Section 33.1 profilinq. The Library shall furnish to OCLC completed catalog profile information in a format designated by OCLC, for the creation of profiles @-or to the time at which the Library may start to use the Shared Cataloginy. subsequent profile modifications by OCLC. "I, The Library may obtain from time to time, s 7 Section 33.2 Scheduling. The parties shall -. cooperate, from time to time, in establishing schedules after which OCLC will carry out those activities, fOr which it is responsible, such as terminal acquisition and installat telecommunication procurencnt, profiling, and training. Generally, OCLC will schedule these activities i.n the sequenc in which it receives purchase orders, instructions, or their equivalent. Section 33.3 Inserti-on of Cataloging,, The Library agrees to insert within the OCLC On-Line Catalog all of its current cataloging which the OCLC Systen! is capable of processing and not already in the OCLC On-Line Cataloy;. Section 34. Terminals. Section 31 o 1 OCLC 'iewminal. (a) OCLC will sell to the Library OCLC terminals, designed by and/or manufactured for OCLC, for operation on the OCLC System, as they are developed or offered by OCLC. (b) OCLC terminals will be installed by OCLC or its designated representative €or the charge referred to "6- 3 t 0 e in Section 41.3 of this Ayxeemcnt. (c) OCLC shall not be responsible for any loss of, or damage to, any terminal, except any that occurs 1s a result cf ~zrk perforxed in the d.eI.iver27 and installation of any terminals furnished by it or of the rendering of OCLC Maintenaqcs Service. -. Section 34 c 2 Terminal Maintenance Service. _I Mainten and repair of all terminals purchased from OCLC i.s the responz of the Library and may be handled in either of the following ways: - . (a) The Library may order standard OCLC ldaintc: Service. This service is described in the standard OCLC Terr Service Aqreement, reference. A copy of this agreement is attached for (b) The Library may provide- its own maintenan and repair of the terminals in accordance with the November 1 1976 “OCLC Policy Statement On Terminal Service Controlled By Networks and Non-Network Affiliated Institutions”. A copy of this statement is attached for reference. Section 34.3 Other Terminals. The Library may use any other terminals not furnished by OCLC that are com- patible with the OCLC Systen. Library must request in writi and obtain OCLC approval of said terninal(s) prior to use of said t:erminal(s) in the OCLC System. The Library will provide maintenance and repair of such terrnirials pursuant tc ’ paragraph (b; of Section 34.2. OCLC has no responsibility for installing or providing OCLC Maintenance Service for an1 -7-. t I * 0 1 ,. 3'. .. , of those other terminals, unless and until it exp~rzssly assuines tha.t responsibility in writing. - Section 34.4 Site Preparation. CI The Library shall bp r-snnne; r .. .a.i A SI2 f=r ctka ;rqr,_zj-isii f~z all ",yr,i;iais. shall furni.sh the Library with site prepar,$tion specif icatians applicable to termj-nals furnished by OCLC. CCbC' - Section '34 ..5 Recommended Terminal' Acasisition. To make ful.1 use of the Union Catalog arid Shared Gatalogingj .. in academic: libraries, the minimum terminal requirement is one terfninal for every 11,000 (or fraction thereof) of all annual First-time Uses, together with first-time use of catalog records inserted into the OCLC On-line eatal-og by the bibrary;' in public 1ibraries.the minimum requirement is one teLmina1 for 15,000 books (or fraction thereof), includin.g copies, cataloged annually using the OCLC Shared Cataloging System. acquisition it will. adhere as closely as practica.ble to the , Therefore, the Libfrary agrees that in terminal . above formula. .- Section 35. Telecoxnunication. In order to meet the objectives of this Agreement, OCLC shall arrange €or teleconununication between OCLC and the Library, which shall be dedicated, multiple line I multi-party synchronous' transmiss circuits. communication networking, the telecormunication carrier; the sequence .of stations and the method for delivery of the OCLC. processes. . OCLC will, at all times, direct the mode of .. .. Sectian 36. Sunport' and New Processes and .Products. -_ .. -8- ' ,. , I h 0 a Section 36. L Support hy OCLC. _” (a) Upon request of the Library, from time to timz, OCLC shall provide the start-up Instruction Training to persons desLqxitd 5y *,he L%r?-q? referred to in Section 41-5 of this Agreement. 1, (b) OCLC will arrange for instructional manuals to he available to the Library. Section 36.2 New Processes and Products. - OCLC agrees that as other processes, procluc‘cs and services are developed by OCLC, they will be made available to the Library The charges, terms and conditions for such processes, product and services will be determined and equitably applied by . OCLC, and may be the subjects of amendments to thi.s agreement PART IV CHARGES - c * - Sectj.on 41. GeRerai. The Library will pay OCLC the aggregate charges for the various processes ajnd products provided the Library pursuant to this Agreement, in accordanc with Appendix I, OCLC Charges , including the following: Section 41.1 First-time Use. The OCLC charge foe Shared Cataloging (other than Catalog Cards and Off-line Products) includes all charges for telecomiiunicat.ion and support services. lit is currently based upon First-time use. Billings vi11 be rendered by OCLC to the Library monthly, or upon a subscription basis quarterly, semi- * annually, or annually in advance, at the respective discounts for each option in accordance with the schedule iiesignated -9- I, L 0 e # as. Appendix 11, OCLC First Time Use Payment Options. A3.1. monthly payments, and the billings. upon sums representing the excess of actual.o'ver estimated billings, wiI1 be due 30 d~ys Erorn date GLC invoice. de^ the aLbsc:cipi5<;n --,:Lb-3 IlrLLALuu ur n.t quarterly, semi-annual, ox annual advance I* paymen-t options, the OCLC~bilLings for such a'period will be made initially upon estimates of the number of First-time Uses (of the Library taken from the then best evidence available as to . what the prospective experience may be, provided that when the subscription amounts shall have had credited to them sufficient First-tiIile Use charges in the aggregate to equal, any such advance, then OCLC will institute month1.y billings until such time as Library shall elect to enter a new discoun subscription with WLC. ., Section 41 p 1.1. Any unexpended Library subscriptic payment remaining with OCLC at the close or' the fiscal year shall be credited and. accorded the discount option selected by Library €or the following 1 fiscal year, Section 41.1.2. In the event of termination of this agreement pursuant to Section 62, OCLC will refund to Library any unexpended scbscription payzent. _I Section 4L. 2. The .OCLC charge for catalog cards produced is based upon the number of cards produced times the OCLC charging rate for single card producti.on. Section 41.3. The purchase of OCLC terminals ' shall irlclude delivery and freight, installation, and 90-da~ warranty, (see Ap2endi.x 111) . -10- *. . 4 0 0 '1 b' - Section 41.4. Use by the Library of OCLC Mainte Service in the event the Library elects to execute an OCLC Terminal Service Agreement. Section 42.5. Section 41.6. Processing of Catalog Profile and S~~~~-~~ Izstrcc5io2 T,"ininq. -4 t changes thereto. Section 41.7. Other Off-line Products., Section 42. Mzthods. A11 charges referred to in Part IV, shall be of uni€orm applicability among the participating libraries using the OCLC system and OCLC On-line Catalog. reduce any charges provided for in this Agreement effectiv at any the and may increase any such charges at: any time provided only that increases shall become effective sixty- five (6511 calendar days after notice to the Library. When any modifications in charges become effective, AFpendix I shall. be deeneci to be amended to provide for those modific Modification _I__ of Charges and Charcjin - * OCLC may It is recognized that processes and infornation addition to those contempleted by this Agreement are avail through access to and use of the OCLC On-line Catalog. In orcfer to maintain the OCLC System, develop T;ew processes a products ar?d afford fair and even-handed charges for the actual uses to which the System is put, the right to deter the method o€ charging will. remain in OCLC. The creation new, ad.ditionql. or substitute charges, from time to time, any, wi.11 be made upon consultation with the Library and other libraries and library regions using the OCLC System, -11- b '0 e ,I 'but will be dct.ernined by OCLC and will be of uni.fom applicab to the various networks and participating 1ibrari.es served by OCLC. _. SPC+Z.OTI 43. T?.X2S. . (a.) The Library may be exempt from the .. .. .__.I . . -- . payment of sales, use and other taxes normally applicable to the produc:ts and services obtained ur.der this Agreement. (b) OCLC shall ' notify the Library promptly. of the assessment of any tax. that is, in the view of OCLC, the obligation of the Library nc-twithstanding subparagraph (a) of'thiis paragraph. and in OCLC'S name, challenge, or seek abatement of, any such tax, and OCLC shall cooperate with the Library in that regard. The Library may, at its lotm expense (c) If the Library and OCLC, in the exercise of their respective judpents, deem it to be advantageous to either party from the tax point of view that the charges be itemized in a manner different from that set forth in attache Appendix I, each party shall negotiate with the other in good faith with respect to such itemization and any change agreed upon in writing shall be deemed to be a.n amendinent to .this Agreement, provided only that su'ch changes are not in conflict or modifications of other OCLC regionalt agreements. PART V kJARRAWTIES, RIGEITS AND COOPEMTXVE EFFORTS Section 51. Warranties of the Parties. - Section 51.1. ' .In addition to any warranties or , , -12- L 0' 0 rcpresentations set forth elsewhere in this Agreement, OCLC warrants to the Library as follows: e. (a) OCLC shall. operate the OCLC System duri.r,g the entire Yer~ 2f t>.,z ?A.;x~a-i2zt 2zzi~~ vhLck thc OCLC System shall have a capacity sufficient for the Library- -_ s (b) The OCLC On-line Catalog and software programs of OCLC shall be suitable and proper for the opexz'cic of the OCLC System. (c) OCLC has the full right to the OCLC On- line Cata3og and the programs developed and acquired by OCLC, to carry out this Agreement and like agreements wj.th other participants, and OCLC has the full right to make the use of the OCLC On-line Catalog and software programs availab through the QCLC System, to receive catztlog records inserted OK used-by it for catalog production from OCLC in digital form to the extent provided in Section 52, all without infringement upon, or violation of, the r.iyhts of any other person. The Library shall have the right Section 51,2. In addition to any warranties or representations set forth elsewhere in this Agreement, the Library warrants to OCLC as follows: (a) No application of the OCLC System or On- line Catalog not expressly described in this Agreement will be made by the Library without the written consent of OCLC. i (b) Any computer facilities or software ' procjrams provided by the Library for-use with the OCLC System shall he suitable and proper for its operation and .-1 3- %I ,i I 0 e I .* .. without-, adverse effect on the OCLC System. - Section 52. Copies of Catalog Records - of The Library CI- (a). OCLC will make available to the Library . upon a suSscripti~z basis ~ith orJ,2.rs ;;=lzcrcr? in &va~c, mi! upon an OCLC schedule applicable to all. libraries .. the catalog records of the Library, which it has wed or inserted within the OCLC On-Line Catalog, on magnetic tape, copies of I.. .. . .. in OCLC/MARC format. . .. . (b) OCLC will make available to Library upon request -a copy or copies on magnetic tapes in OCLC:/filARC format, of catalog records with local call numbers and locations; derived from the OCLC On-Line Catalog and used or inserted by the requesting Library, -at a charge to be determinc by OCLC. .(c) This covenant is for the.'benefit of the Library which has contributed to the OCLC On-Line Catalo'g, and is not intended to be an agreexent to permit the Library .to obtain upon request any parts or' the OCLC On-Line-Catalog not theretcifoKe contributed or used by the Library. Section 53. Conflicts and Uniformity. When engaged in cooperative projects with library networks and individual Libraries, OCLC .trill endeavor to advance the ' purposes of the respective parties with which it carries out projects, while, at the same time, protecting the full integrity and rights of every other network or library. , In * negotiatiny agreements with library networks and ind'ividual libraries, OCLC will make every effort to avoid any covenant .. -14-e -1 . + $7 I l' 0 0 which conflicts with a covenant or provision in any other such agreement. and pricing, the policy of OCLC is to maintain uniformity among networks and individual libraries. in this section should be construed as a /- guarantee as to any of the fpregoing, except that OCLC has adopted arid will maintaj-n schedules of stated OCLC Charges which, although subject to change, will apply uniformly- With regard to products, processes, prices However, nothing Section 54. Cooperative Efforts. (a) Each party shall report to the other, in sufficient: detail and with sufficient frequency 'to apprise each othel: of incidents, difficulties and prob1.e~~ and in a continuing effort to provide the best performance possible for the Ll,brary and other regions and libraries. (b) The parties shall undertake such joint developnei1t projects as are proposed by either, from tine to tine, insofar as the objectives of each party are consistent and are promoted thereby and insofar as both parties can commit adequate resources thereto in a consistent and timely manner. (c) Representatives of the Library may participate on appropriate conrnittecs and task forces of OCLC. in similar groups of the Library. OCLC representatives have the same right of participat PART VI GENERAL PROVISIONS Section 61. Excusable Delays. Except as provided -15- ‘4 I P. 0 .. otherwise in this Agreement expressly, dates and times by which the respective parties are required to render per- formance under this Agreement (except for an obligation to pzy rnorey) sfiz?l be p~--’s+p~?r?.~d cr pytpndeC3 atif’omati.c:aLXy to the exkent that the particular party is preventcd 7. meeting tl~em by any cause beyond its reasonable control, such as acts of God, strikes, work stoppages, shortage of material, hSLndrance by third parties, action of a governnent, or operational failure, in situations of which it notifies the other promptly of the commencement, nature, -and projected termination of the cause. from ., -..- Section 62. Corrective and Remedial Measures and Termination. (a) Whenever either party believes, that the other has committed a remediable breach of any mat-erial obligation set forth in this Agreenent, it may give the other notice to that effect vith reasonable specificity. The other party shall us2 its best efforts promp’i:Ly to remedy the breach an2 shall inform the party so g:iving notice, from tine to time, of the nature of the remedial action planned and taken or will respond to any such notice, with an explanation that sets forth reasonabie cause for the breach. within a reasonable time after the other party receives notice of it, the party giving the notice shall be entitled . to seek appropriate relief under this Agreement or-otherwise When a breach does exist that will not be remedi.ed under the law, which inclodes, without limitation, termination . -L6- . 1 88 4. 0 of the terns of the Agreement for cause and wj.tkout 1iabili.ty E or that termination. (b) Notwithstanding the provisiclns of subpara .- -.. !a) I if ths L5;rciry 5ailz to issue pdyiaei~t, withiri ten \iuj bcasincss days after the receipt of notice --_ of non-payment from OCQC, of charges due and payable under this Agreement and not rcasonahly in dispute, OCLC may terminate the Agreeme effective at any time after the end of those ten (10) days and without liability for that termination. * (c) Whenever any naterial obligacion of either party under this Agreenent is postpone6 or delayed pursuant to the provisions of Section 61 above with the resu.lt that the Library %ill be prevented to any unreasonablE extent from using the OCLC System, the Library or OCLC may terminate the Agreement by giving to the other a sixty (60) day notice in writing. (d) The remedies set forth in this Agreement are not exclusive and are in addition to other remedies available by statute, at law, or in equity. (e) Either party may terminate the Agreement entirely in its own discretion, effective at -the end of the initial kern or at the end of any calendar month thereafter, with, however, at least sixty (6O&.ys prior notice. Section 63. Assignment. - This Agreement may not be assigned by either party, in whole or in part, without . the express prior written consent of the other. . Section 64. Notices. Any "notices" desired or - -17- f e 0 7, <r *' 8 'I required by either party pursuant to this Agreement shall b .in writing and shall be deerned sufficient if delivered by hand 'or by certiified .mhiL, return receipt requested, to the aZz,r--ss cf t-,hc eth~y ssr-y szk 5~;r-h k.pl.gi- 9: k3 s.;l;ch then- current address as has been changed by a notice: . .- . 1. .. Executj-ve Director OCLC, Inc. 1125 Kinnear Hoad Coluinbus, Ohio 43212 ---..-- City of Carls'bad 1250 Elm Avenue Carl sbad, Cal i fornia 92008 Section 65. Miscellaneous. I_ Section 65.1, -Effect of Wai.ver. The. waiver or --- failure of either party to exercise in any respect any righ psovided'for in this Agreement shall not be deeined a waiver of any further or.future righ.2; under this Agreenent. Secki.cn 65.2.. Headinqs. Paragrzph headings are included in this Agreement for convenience only and are not deerned to be part of this Agreement. Section 65.3. i?,pplicable - Law. This Ayrceriient shall be governed by, subject .to, and construed according t the Laws of the State of Ohio. Section 65.4. Originals. - This Agreement is executed in two (2) si<ned c.ounterparts, each of which is and shall constitute an original hereof. Section 65-5. Complete Agrccnent. This Agrement is the exclusive statement oE the -18- 9 0 0 .r b\ ,I agrcenent of the parties with respect to its subject matte' and as of its date. No 2rovision of this Agreement may be changed, modified, or supplemented except by a writing signed by both parties, unless otherwise provided for hcre- IN WITNESS I?iiE*PEOF, the undersigned, being duly i authorized, on behalE of the parties, and their successors . and assigns, have duly signed and seabed this Aqreernent , 19 78, effective the day and year first - Augu s t 11. above written. * kl I T M E S S S D E'( : OCLC, INC. *' a p; h$ !(. L p& d @- 44b By 9/&L&,Ga* L +\-L Y J J President and Title - Execut'ive Director ATTEST : CITY OF CARLSBAD, a Nunicipal Corpori BY W& RONALD C. PACKARD Titie - MaAor -19- i 1 1 -, I f 9 0 0 ULLL Lllf\t\ULJ twtJtrwiK i --- EFFECTIVE 1978 JAN. 1 I' I*. &% St IARED CATALOG I NG ._- --- A. Fjrst-TinIe Use (Includes Telecoinniunications): $ 1.84 per use a, Paid after use . -_I- b. Plith 6% discount for prepayment $-- 1.73 per use B. Catalog Ca.rd Production $--...- 0.033 per card C. OCLC 100 Display Terminal Maintenance per Separata Agreement $ 133.00 per month -___I . .: START UP -- D. OCLC 100 Display Terminal : a. Purchase 53,700.00 each 148.00 per modem b. t4odern Instal lation 4- E. Processing Catalog Profile and Pack Definition Tabl e i Standard catalog profile and catalog card forniat $ -__- .29.CO per profi' for each holding lib: Non-standard catalog profile and catalog card format .$ 29.00 per staff -(average totl (No charge for corrections for 30 days after initial start up for standard or non-standard) F. Start-up Instruction Training $ I_ 19.00 per hour travel ex OTHER G. Changes to Catalog Profile and/or Pack Definition Tabl e $ - 29.00 per staff $ 11 .OO per manua $-4.oOT per manua $- - 7.50 per manua I. Serials Check-In $ - 0.053 per issuc J. Reclassification Project ' $ I 1.24 per use K. Off-Line Services H. Instruction Manuals: 1. On-Line Cataloqi~q 2. Dcsiqn of Format,s & Packs of Cataloq Cards 3. OCLC-MARC Subscription Scrvi ce Docunientation . -_-_._ _--i ---- -.-.-- ___ -___ - -- - -4 - $ 12.00 minimum 1. Accessions Listings: 140 item or less 141 items or more $- 0.086 per item Changes in selected items $-TTO- - per chant Cost of tape, hand1 i ng , and del ivery $ 23.00 per tape $-7Z@F per tape Credit for returned tapes ---- Copying charge per record: 1 - 1,000 Logical Records $ 0.035 per reco $--O.olZ It $~0.0ol 'I 2. OCLC-MARC Subscription Service: It I1 II . $-TOT " - !I 1,001 - 5,000' I' 5.,001 - 50,000 " It II 50,000 -.and up . .If % OP '1 I Ob[ DISCOUNT ALLOWED - (I Annual-in-advance 6% Semi-~nhual~ in 4.5% advance Quarterly 3% in advance Monthly-af tcr- None the- f ac t I - L- PAYMENT DUE DATES - August 15 August 15 January 1 August 15 October 1 January 1 April 1 30 days EOM 1 0 APPENDIX I11 m I .I *,; ;, ' TEiWS FOR TEPJIINAL PURCHASE The purchase, sale, installation and implementatio of OCLC terrninalts), provided for in the Terminals - provision of the preceding Cooperative Agreement, shall be subject to the f ol.?-owing terms : Section - 1. Section - 1.1. Description. OCLC terninal(s). Section - 1.2. Unit Price. See Appendix I to OCLC 4.- Terminal - Purchase. Coopxative Agreement. Section - 1.3. Payment. - Payment may be made pursua to one of the following options: 1. Net 30 days fro= date of invoice, or 2. Prepayment option with discount of one percent per month calculated from date monies are received by OCLC to date of terminal installation authorization; maximurn discount of six percent. Section 1.4. Price Components. Unit price includ actual terminal cost, freight, installation, warranty, and OCLC ove.rhe+d costs. Section 1.5. Purchase Order. Library or third party may at its opkion order desired terminal(s) by presenting its own purchase order therefor, which will serve as acceptance of these terms. Provisions of purchase orders adding to, modifying, or inconsistent with or in ' addition to express terms of this Appendix and/'or the OCLC e rn .I I i‘ *“ * Cooperative Rgrceimnt shall not: be controlling 0.r binding Section. - 2. Warranty. Section - 2.1. Ninety Day Terninal Warranty. --_c_ OCLc ngj:cees that all terminal (s) purchased under this aqrcement wi.11 be free from defects in materials and -. workmanship for a pe:riod of 90 days from the time of installation. si:oility of OCLC under this agreement is limited to neces- sary adjustments, repairs, and replccement of any defective parts. spare parts for terminal(s), except as specified in S2ction --- 2.5, shall be covered by the Unit Price provided in - Section -- 1.2. The respon- The cost of all laborf repairs, and replacement of Rbpl.aced parts shall become the property of OCLC. Section -- 2.2. LINITED WARRANTY. I_ OCLC GIVES NO OTHER I.fARX4rJXY f EXPmSS OR IZJPLIED p IXCLUDIXG SPECIFICALLY BCrT NOT LIMITED TO THE k:hRXZilu’TY OF PIERCHANTABILITY f RESPSCTI;! TE:PJ?T:NAL (S) , SZRVICE 03 PARTS. FOR ANY IXCIDENTU OR COXSZQUENTIAL DI”lGXS OF TJHATEVER OCLC WILL NOT BE RESPONSIBLE NATURE AFXSIXG FROM LIBRAXY ‘S OR THIRD PARTY’S USE e OR OPERAT’LCN OF ’i’EX*IIIJAL (S) . - Section -- 2.3, Notice. -- The aSove warranty shall apply only with respect to C7.efects of which Library OY third party notified OCLC within the 90 day period descril above, 07: 10 days thereafter. Section - 2.4. Right To - Replace. OCLC reserves the right to replace any terminal, due to an unusually hish szr-Jice :rate, with a substitute terminal while comprehensive * - 2;- e < .” 4 Y‘ ’* tests and repairs are being performed on the replaced tcrinina x11 costs associated with such procedure will be borne by OCLC, except as specified in Section 2.5. - Seccion 2.5. Scope Of Warranty. The warranty’ - L_ provided in Section 2.1 does not cover service, parts, or parts repair required by causes other than normal use, and OCLC will not be responsible for failures of equipment due to damage of a terminal by negligence or purposeful acts of‘ any persons other than authorized representatives of OCLC. -- - , .. Library or third party will be billed at a rate determined by CCLC, and equivalent to the special call charge in Section 4 I General of the “OCLC Terminal Service Agreement *’ in effeck at khe ‘time of purchase, for any maintenance service call made due to the above, which charge shall cover the cost 02 all labor, repairs, replacement of spare parts, travel and other incidental expenses for such service call. -- - a Negligence or purposeful acts include buk are not limited to the following instances of improper Library or third party operation of a terminal: 1. Terminal(s) not plugged into proper receptacles; no power in ’ihe electrical outlet; or power co:rds danaged ; . 2, Data cables damaged, or not plugged into proper receptacles; 3. Test buttons on data sets pushed in, or a loopback switch thrown at times other than when requested by ’ -3- 0 I -6 ”, )‘ad u r the Center or by the telephone company; 4. Control switches for Reverse Video, Blank, Brightness, Contrast, or Green not in proper operating pos i ti ons ; 5. Library or third party does not J call OCLC to cancel the service call where the trouble clears up subsequent to the initial request for service. OCLC will not be responsible for failuize to render service due to strikes, shortages, fire, floods, or other causes -beyond its control; Section I- 3. Terminal Maintenance. Library ox third party is responsible Cor maintaining all terminals purchased, as required by the _I_-I__ Terminal Maintenance I provision of the GZLC Cooperative Agxeexcnt. or third party elects to enter into a Terminal fi1aintcnaEce . Aqccement with OCLC, said nainkenance agreement shall become effectj-ve the 91st day from the date of installation of said texminal. In the evsnt that Library Section 4. Risk and Title. Library o:c __I_I_ - third party takes title to purchased terrninal(s) on the date of installation, and assunes thcreefter all risks of loss or danage to purchased terrninal(s.) , or arising from the use or operation of terminal(s), subject to the terms of the Limited Warranty provided in Section - 2. Section 5. Indennification. OCLC agrees to -- - ’ indemnify and hold Library or third party harmless -4- 9 e - I 'I ''& ' $ram all :loss and iability caused by damag- to prope.rty and/or to person resulting from the fault or neg:Lect of OCLC, its employees, agents, or subcontractors, arising from the sale or installation of terrninal(s1 t or by dg3fects in materials or workmanship in terminal (s) t provided such damages are incurred within 90 days of terminal installation. 1 Library or third party agrees to incicmnify and hold OCLC harmless from all loss and liability caused by damage to property and/or to person resulting from the fault 01: negligence of Library or-third party, its ernpl-oyees or agents, arising from its use, operation or control of teminal(s), provided such damages are incurred within 90 dzys of terminal ins tallation. This section is subject to the requirement of - Section ~ -- 2.3, Notice. Section - 6. Third Parties. In the event that a third party, other than Library executing the OCLC Cooperativ Agreement. to which this Appendix is attached, desires to pxrchase a display terminal pursuant to Library's Cooperative Aqreement: with OCLC, Library agrees to require said third party to do so in compliance with the terns hereof. Section - 7. Supplementation - of Maim - Agreement. _- P:rovisions of this Appendix are in addition to and in no way change the responsibility of Library or third party to comply with all the provisions of the OCLC Cooperative Agreement. -5- r e 0 .. -, OCLC LIEFSIRY AGFEEMEIJT - ------- -__ -____ -- - - --__ - I__-- City of Carlsbad - - Ii250 Elm Avenue - ____ - ~__--__~--______ Carlsbad, California ____ 92008 Date August 17, 197t Agreement between The Ohio College Library Center, an corporation not for profit ("OCLC") and -the City of Carlsbad, California, a municipal corporation, hereinafter referred to as ("The Library") . WITNESSETH: IN CONSIDERATION of the mutual convenants and undertak described Yerein, the parties agree as follows: I RECITALS ._~__ OCLC is serving as a cooperative regional library systl within the State of Ohio, having developed for its members th r;leans of their financial support an operating computerized sy of on-line union catalog and shared cataloging activites and duction of catalog cards, and is engaged, as welll, in researc' toiGard further systems. OCLC has offered extensj-on of its se to libraries and library-regions outside Ohio, parsuant to co providing access and input to its on-line union catalog and s' cataloging activities and productcon of catalog cards, togeth with -the benefits of research toward further systems to be ma' available as they are financed, developed and irnplsnented- 0 e . *I I1 COVENANTS OF OCLC (1) Pursuant to the terms of this Agreement, OCLC will provide the Library access and input to the OCLC data base, ma available for purchase a display terminal or terminals and est lishing communication lines affording from the OCLC data base on-line union catalog and shared cataloging activity and machi readable cataloging records on-line and producing and furnishi catalog cdrd production services. (2:) OCLC will determine communication carriers, meetin the requirements of the Library, OCLC directing at all times, mode, method, and sequence of stations for communications doin1 upon the most feasible basis. All of the costs incurred by OC1 for communication as well as support service in connection the! with which may be incurred 'by OCLC will be billed to the Libra1 and paid by it as hereinafter provided. (3)) OCLC will sell the Library OCLC Model 100 Display terminals or the equivalent, or the Library may acquire or use ow.? form of terminal, provided that the Library apply to OCLC 5 writing for such a substitute and that any terminal or end use attachment other than the OCLC 100 Display or equivalent provic by OCLC shall be subject to OCLC approval in writing- (4) OCLC will make available to the Librajny maintenance and service for OCLC terminals as set forth in paragraph III(4) heineof . -2- 0 0 *. (5) OCLC will make available, upon an applicable OCLC schedule, to the Library, copies of the records it has used anc input within the OCLC data base, on magnetic tape, in MARC forn This convenant is for the benefit of individual libraries whicl- have contributed to the data base, and is not intjended to be ar agreement to permit any library to obtain upon request any part of the data base not theretofore contributed or used by said library . (6) OCLC will arrange for instructional manuals to be available to the Library. (7) OCLC agrees to instruct and train personnel and wi: provide follow-up support services 5.n the use of the OCLC systc (8) OCLC agrees that as other services are satisfactor: developed by OCLC, they will be made available to the Library upon terms and conditions of OCLC as are then applicable. (9) OCLC agrees with the Library as follows: (a) OCLC assures the Library of computer capacity and of continued operation during the life of this Agreement. (b) OCLC warrants that its data base and programs are suitable and proper for the purposes of this Agree- ment. (c) OCLC warrants that it has the full right to use the data, and the programs developed and acquired by OCLC, to carry out this Agreement without infringeme upon, nor violation of the rights of others and with fu -3- 0 0 *. right to return to the Library in machine readable form, copies of its own input and of other catalog records used by the Library for catalog production. - (10) OCLC agrees to operate its on-line s7ystem from 7:O o'clock A.M. to 7:OO o'clock P.M., Monday through Friday, local time, except for the following national holidays: New Year's 1 Independence Day, Labor Day, Thanksgiving, and Christmas. (I]!) The parties recognize that preparation and plannir is required on the part of both OCLC and all participating libraries in scheduling installation of terminals, testing and startup. Whenever possible scheduling shall be made by OCLC 01 the basis of the date of receipt at OCLC of an acceptable pack definition table form from the Library, providing that OCLC ha: previously received a purchase order for a terminal or termina' OCLC will install terminals not requiring a catalog profile an( pack definition table form as soon as possible after receipt o purchase order. (12) The Library will be responsible €or any sales, us or' other taxes, fees or assessments levied by the states or ot governmental entities to which the Library may be subject upon any use or product contemplated by this Agreement:. 111 OBLIGATIONS OF THE LIBRARY (1) The Library shall submit catalog profile questionr arid pack der'initifon table forms to OCLC. -4- 0 a (2) The Library agrees that it will prepare the sites terminals purchased from OCLC. (3) The Library agrees that it will input: all of its current cataloging which is in Roman alphabets. In academic libraries, ternha1 requirement is one terminal f’or every 11,O (or fraction thereof) of all annual first-time uses, as define in paragraph III(5)(a), together with first-time use of catalc records input by the Library; for public libraries the require is one terminal for 15,000 books (or fraction thereof), includ copies, cataloged annually on the OCLC system. Therefore , the Liibrary agrees tha-t in terminal acquisition it wrill adhere as closely 2.s possible to the above formulas. (4) The Library will be responsible for maintenance an service for all terminals purchased by it. The Library will F vide its own service for and maintenance of the terminals or r obtain through OCLC such service and maintenance on a per-calI basis, or’ may order OCLC maintenance service in accordance wit t’qe standard OCLC Terminal Service Agreement, a copy of which attached hereto for reference. Should the Library desire to 2 itself of the OCLC Terminal Service Agreement, it may do so UI execution of the said Agreement returning the same to OCLC fa approval ‘. (!S) The Library will pay rhe OCLC charges for the var services provided for in this Agreement in accordance with Appendix I, OCLC charges, including the following: -5- a 0 (a> The OCLC charge for on-line catalog productio which is currently based upon first-time use defined as the initial use of a cataloging record in the OCLC data base for catalog production where the record was not in by the participating library. i. Billings will be rendered by OCLC to the Library monthly, or upon a subscription basis quarterly in advance, semi-annually i.n advance, or annually in advance, at the respective discounts for each option in accordance with the schedule designated as Appendix I(a>, OCLC Payment Options. All monthly payments, and the billings upon sums representing the excess of actual over estimated billings, will be due 30 days from date. Under tk subscription method of quarterly, semi-annual, or annual advance payment options , the OCLC billings such a period will be made initially upon estimate of the number of basic first-time uses of the Lib1 taken from the then best evidence available as to what the prospective experience may 'be, provided 1 when the subscription amounts shall have had cred to them first-time-use charges sufficient in the aggregate to equal any such advance, then OCLC wi institute monthly billings until such time as the LiSrary shall elect to enter a new discount subsc tion with OCLC. -6- 0 0 *. .. 11. It is recognized by both parties that se vices in addition to cataloging are available thro access to and use of the OCLC data base. In order maintain services, develop new services and afford fair and even handed charges for the actual uses t which the system is put, the right to determine th method of charging will remain in OCLC. The creat of new, additional or substitute char.ges, from tirn to time, if any, will be made upon consultation wi various library regions using OCLC services, but k be determined by OCLC. (b) The OCLC charge for catalog card production u the basis of the number of cards produced times the OCL charging rate for card production. (c) The purchase and installation of OCLC 100 Dis terminals - (d) The aggregate charges arising from utilizatic the Library of OCLC Terminal Maintenance Sin the event t Library elects to execute a terminal service agreement. (e) Start-up Instruction Training and Follow-up Support Services. (f) Search-Key Search charge for usage of public terminals. (g) Processing of Catalog Profile and Pack Defin: Table forms . (h) Off-line Services. -7- 0 0 *. (6) In addition to the charges of OCLC referred to in graph III(5) the Library will pay the costs of communication 1 modem and other support costs in whatever form arid as charged the selected carrier, :.e. ATIT, Tymnet, etc. All direct cost will be billed through to the Library and will be payable upon receipt. OCLC reserves the right, if necessary, to add a char for its own support services respecting configuration or any unusual circumstance arising from determination of routing or cerning a particular selected carrier. IV TERM The Library and OCLC agree that this Agreement shall be - August 17, 1976 and continue for a full term of two years shall be extended thereafter on a year-to-year basis, unless E p<wty shall notify the other party of its election that such E nent shall not be extended, such notice to be made in writing days prior to termination of the original term or any extensic term . V MUTUAL UNDERSTANDINGS It is understood and agreed that standards of library < loging, uniform in nature, applicable to OCLC and libraries sc by OCLC, are an important aspect of the cooperative effort ex] in this Agreemen%. Therefore, Exhibit "B" attached hereto wi: aldhered to by OCLC and the Library. -8- a 0 *. VI GENERAL PRO VIS IONS (1) This written Agreement constitutes the entire unde standing between the parties and no other undertaking inconsis herewith, or otherwise, by either party shall be of any force I effect. (2) Neither this Agreement nor any part hereof may be assigned by OCLC or the Library without the express written co of- the other. It is further understood and agreed that this A ment may be assigned, notwithstanding the foregoing, in any me 01’ reorganization of either party, or sale of substantially a1 the assets of either party, provided that the survivor of a me 017 the person or entity acquiring assets, or the reorganized e shall expressly assume in writing the obligations and duties o piqedecessor under this Agreement, and further provided that if party to this Agreement shall survive such merger or reorgan:;; 01- shall remain in existence after a sale of assets, such pari shall remain primarily liable to the other notwithstanding SUC merger , r>eorganizat ion or sale. (3) OCLC will not be liable for delay or damages arts5 f-rom or growing out of this Agreement by reason of acts of Goc strikes, work stoppages, shortages of material, :hindrance by i parties, action of government or downtime due to operational : beyond the control of OCLC. -9- 0 0 .” -I (4) Any notices desired or required by either party pu suant to this Agreement shall be in writing and shall be deeme sufficient if delivered by hand or mailed to the respective pa as follows: The Ohio College Library Center City of Cai-lsbad 1125 Kinnear Road 1250 Elm Avenue Columbus, Ohio 43212 _____ Carlsbad ., (alifornia 920 The parties may give written notice of address changes. (5) This Agreement shall be construed in accordance wi the laws of the State of Ohio and any provision hereof, void o voidable by reason of law, shall not invalidate the other prov of this Agreement. This Agreement is executed in two signed counterparts, of which is and shall constitute an original hereof- IN WITNESS WHEREOF, the undersigned, being duly author: on behalf of the parties, and their successors and assigns, ha duly signed and sealed this Agreement upon the day and year fi above written. B 2, Chairman of \\ As Board of Trustees Cor p o ir a t i on CITY OF CAIILSBAD, a Muni WSTNESS: &* BY-.----.--- 222bvsL%*/ 9 41.1 1 ROBERT C. FRAZEE &Mayo &$ Ld/&bdF . MARGAF&T E. ADAM3, City Clerk v As -10- c. 0 0 .. APPENDIX I OCLC CHARGES EFFECTIVE 1 JULY 1976 BASIC PLAN A. First-time Use: Basic first-time use (without communications, terminal lease and service 1 $ 1.18 per B. Catalog Card Production $ - -039 per C. OCLC 100 Display Terminal: Purlchase $3,700.00 eac Terminal Installation: / Basic, Plan (ATIT) $ 147.85 D. OCLC 100 Display Terminal Maintenance Per Separate Agreement Follow-up SupDort Services $ 18.30 per tra E. Start-up Instruction, Training and F. Search-Key Search, Public Use Termhals Annual Charge (maximum per terminal $2,280.00) $ -022 per G. Processing of Catalog Profile and Pack Definition Table: Initial start-up: Standard catalog profile and Non-standard catalog profile catalog card format $ 28.75 per and catalog card format 5; 28.75 per (No charge for corrections for 30 days after initial start-up) Changes to catalog profile and/or pack definition table $ 28.75 per -’ AP’PENIIT X I 0 e ?aE OCLC CHARGES - BASIC PLAN Effective 1 July 1976 H. Off-Line Services: 1. Accessions listings: 140 items or less $ 11-50 mi1 1.41 items or more $--- -086 pel $ -cT7’-.-2T p e 1 Changes in selected options -__- 2. Magnetic tape, MARC I1 format of i.nstitutions catalog records : Cost of tape, handling & delivery $ 23.00 pel Credit for returned tapes $ 5.75 pel Copying charge per record : 1-1,000 Logical Records $ .035 5,001-50,000 Logical Records $ .OOQ 50,001 and up Logical Records $- -001 * 012 ~~__ 1,001-5,000 Logical Records $ I. Access 110 OCLC Systems via TYMNET: $ -50 pe Lo>, 7-on Connect Charge $__ 12.00 pe J. Serials Check-In: Peii serial $ .034 Pe:r request $ K. Interlibrary Loan: -42 -- L. Acquisitions: -___ Basic first-time order $ 1.18 $ -15 14. Purchase Order Charge The charges made and prices quoted are subject to change by OCLC time and purchase orders forwarded to OCLC will not: be valid exc acceptance by OCLC in writing. . I OCLC PAYPIENT OPTIONS __j OPT I ON DISCOUNT ALLOWED , PAMEVT DUE DATES Annual- in- advance 6% August 15 5,emi-hnual in 4.5% August 15 advance January 1 August 15 Quarterly 3% October 1 in advance January I April I Monthly- a€ t er - the-fact __---- None 30 days EON