HomeMy WebLinkAbout1984-08-07; City Council; 3744-2; Renewal of Agreement with OCLCw n It '7 7
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MTG. 8/7/84
DEPT._ L I B
CI1 `�,OF CARLSBAD -- AMU... BILL
IIIL�e: RENEWAL OF AGREEMENT WITH OCLC
RECOMMENDED ACTION:
1" _5-- (-)
DEPT. HD
CITY ATTY�
CITY MGR.
Adopt Resolution No.!Z70-0 approving and authorizing the Mayor to execute the new
agreement with OCLC.
ITEM EXPLANATION:
In August 1976 Council authorized the purchase of a computer terminal and entered
into an agreement with OCLC (Ohio College Library Center) for computerized
cataloging of library materials and catalog card production. Since that time a
number of changes have occurred in technological advances and services available
to customers. The new agreement addresses these changes and essentially codifies
the working arrangement and understanding which has evolved since 1976.
OCLC is an on-line bibliographic data base with over 10,000,000 individual records
which may be accessed by participating libraries. Cards for the catai'og are
automatically produced using a profile which formats the cards to the Carlsbad
Library specifications.
OCLC membership provides:
- rapid, accurate cataloging of library materials.
- accurate and speedy catalog card production (10-14 days, as opposed to one co
three months manually).
- a MARC tape of the Library's holdings
- the ability over the years of increasing the level of cataloging activity
without increasing full-time staff.
FISCAL IMPACT:
None for this action.
Initial start-up costs, including purchasing the computer were under $5,000. The
annual costs for cataloging and catalog card production is budgeted at $27,000.
EXHIBITS.
1. OCLC agreement.
2. Resolution No. 77Cya approving and authorizing the Mayor to execute the
new agreement with OCLC.
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RESOLUTION NO. 7700
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, APPROVING THE RENEWAL AGREEMENT WITH OCLC.
WHEREAS, City Council Resolution No. 3993 authorized the purchase
of an OCLC computer terminal and approved an agreement with OCLC August 17,
1976; and
WHEREAS, a number of changes have occurred in technological advances
and services available to customers, making it desirable to execute a new
agreement codifying the working arrangement and understanding which has evolved
since 1976;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Carlsbad, California, as follows:
1. That the above recitations are true and correct.
2. That the Mayor of the City of Carlsbad is authorized and directed
to execute the renewal agreement with OCLC.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad
City Council held on the 7th day of August , 1984, by the
following vote, to wit:
AYES: Council. Meyers Casler, Lewis, Kulchin, Chick and Prescott
NOES: None
ABSENT: None
ATTEST:
ALETHA L. RAUTENKRANZ, City Clerk
(SEAL)
MARY H. C LER, Mayor
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CITY OF CARLSBAD
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ARTICLE I
ARTICLE II
ARTICLE III
A.
B.
C.
D.
E.
F.
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ARTICLE V
A.
B.
ARTICLE VI
ARTICLE VII
ARTICLE VIII
ARTICLE IX
A.
ARTICLE X
ARTICLE XI
ARTICLE XII
ARTICLE XIII
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PFE MBLE............................................ 1
DEFINITIONS ......................................... 2
OCLC KDSMRSUP ..................................... 4
RESPONSIBILITIES OF OCLC
In General .......................................... 4
Terminals ........................................... 5
nlecomn nications.................................. 6
Technical Support to Participant .................... 7
OCIVmAAC Subscription Tapes ........................ 8
New Online Processes and Offline Products and services 8
RE.4PONSIBSLITIEs CF PARTICIPANT
standards ........................................... 8
Current Cataloging , ................................. 9
Non-Mmtber services ......................... 9
Site Preparation....••••••••060**............. 9
charges...........�`
..j.,.. ............................... 10
Terminal Printer Poi. ............................... 10
Attachments to and Use of the OCLC System .......... 11
OCLC CHARGES
Payments and Discounts .............................. 11
Lhiformity and Modification of Charges and Discounts. 12
TAXES............................................... 13
USE AND TRANSFER CF REOOFDS ..:...................... 13
WhRRjjnjES AND LIMITATIONS OF LIABILITY ............. 14
IWRINGEMFNP L'NDF.iEMNGS AND GRANT OF LICENSE
ByOCLC ..............................0.............0 16
By Participant ......... 16
License Grant ....................................... 17
RESPUNLSIBLEUSE....................................0 17
FORCE MAJEEME ....................................... 1e
TERM AND TEMNATION................................ 19
ASSIGUMV.......................................... 20
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ay��./+Q;\��*MT7��...�1*..1......................................
20
yA�l�Y
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�'li•TrC�LLAN :1 M
A.
Effect of Waiver ....................................
21
B.
Readings ............................................
21
C.
Applicable law ......................................
21
D.
Originals ...........................................
21
E.
Entire Agreement
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Access to the OCLC dnl. System
will be by (check as appropriate)
/ J Dial Access
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AGREEMENT BETWEEN
CITY OF CARLSBAD
and
OCLC ONLINE COMPUTER LIBRARY CENTER, INCORPORATED
THIS AGREEMENT ("Agreement") is made as of the date of last
signature below by and between CITY OF CARLSBAD
a
not -for -profit institution organized and existing under the laws of the
State of CALIFORNIA , hereinafter referred to for purposes of
this.Agreement as "Participant", and OCLC ONLINE COMPUTER LIBRARY CENTER,
INCORPORATED, a not -for -profit institution organized and existing under the
laws of the State of Ohio, hereinafter referred to for purposes of this
Agreement as "OCLC".
W I T N E S S E T H :
WHEREAS, OCLC is an organization of cooperating library members
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
OCLC840411:01 NFP
accessible primarily through on-line telecommunications forming a part of
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, products
and services deriving from or necessary to make use of the OCLC System; and
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, and
in connection therewith to acknowledge a public purpose to be served of
furthering ease of access to and use of worldwide scientific, literary and
educational knowledge and information;
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. "Current Cataloging" means all cataloging of
bibliographic materials first performed or obtained by Participant during
the term hereof, regardless of the date of acquisition or imprint of the
item cataloged, which cataloging is in alphabets capable of being processed
by the OCLC System; provided, however, that Current Cataloging will not
include the cataloging of materials to which Participant customarily giies
less than "V level cataloging as set forth in Online Systems Bibliographic
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Input Standards, Second Edition ('1982), 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 as
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 Name
Address Directory) maintained online in, and forming a part of, the OCLC
System.
D. "OCLC participants" means the genera-1 members of OCLC, as
defined in the OCLC Code of Regulations.
E. "OCLC Services" means personnel training services, and
field services such as services for the repair and maintenance of OCLC
Termi nals.
F. "OCLC System" means the system as defined on page 1 of
this Agreement.
G. "OCLC Terminals" means terminals designed by and/or
manufactured by or for OCLC for operation on the OCLC System.
H. "Offline Products" means M those OCLC products, which
are derived from Participant's use of Online Processes, including
cataloging products such as catalog cards and OCLC/MARL 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
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OCLC Online Union Catalog, including, but without limitation, cataloging,
catalog card production, interlibrary loan, acquisitions and serial s
control. }
J. "Shared Cataloging" means Participant's use of the OCLC
System to perform cataloging functions, online, from terminals and through
telecommunications, which functions include, without limitation, the
creation of catalog records and holdings information maintained within the
OCLC System, and the editing of copies of catalog records.
ARTI�CL_E II - OCLC MEMBERSHIP.
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Participant understands and agrees that by executing this
Agreement, it will become a participant in OCLC and as such will be a
general member thereof as provided in Article IV of the Code of Regulations
of OCLC.
ARTICLE III - RESPONSIBILITIES OF OCLC.
A. In General
OCLC shall, during the term hereof and subject to the
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terms and conditions of this Agreement, provide Participant (i) access to
the OCLC System for Use by Participant of the Online Processes set forth in
Appendix 1 hereto attached and (ii) Offline Products and Services set forth
in Appendix 1 hereto attached. OCLC reserves the right to revise Appendix
1 from time to time by adding items thereto, or on ninety (90) days prior
written notice, deleting items therefrom, provided that any such deletions
shall be applicable to OCLC participants generally. OCLC's obligations
under this Article III are subject to the prior receipt from Participant of
documentation which may be requested from time to time from -OCLC
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n -*iripants 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 6:00 a.m. and 10:00 p.m., Dublin,
Ohio local time, Monday through Friday, and between the hours of 8:00 a.m. ;
and 8:00 p.m., Dublin, Ohio local time on Saturday, except holidays F
observed by OCLC (and the day before or after when such holidays fall on
weekends). OCLC reserves the right to suspend availability of the OCLC
System for required repair or maintenance, and where periods of downtime
occur as a result of scheduled raintenance functions, OCLC shall provide
Participant with prior notice thereof. Access to the OCLC System to be '
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provided by OCLC hereunder shall be by either (i) dedicated, leased
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communication facilities or (ii) dial access"(either via public switched
network or value-added network) as indicated on page 1 hereof.
B. Terminals
1. If access to the OCLC System is by dedicated
line, then OCLC Terminals, together with the installation thereof, will be s
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offered for sale to Participant in accordance with the terms and conditions
set forth in the standard form of OCLC Terminal sale agreement in effect at
the date of the transaction, a copy of which will'be furnished to
Participant on request. Participant may use for such purpose any terminals }
not furnished by OCLC provided that the same are compatible with the OCLC
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System and approved as such by OCLC ppon written request from Participant.
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If access to the OCLC System is by dial access, then OCLC Terminals may be ;
offe•~ed for sale to Participant, or Participant may use any terminals not
furnished by OCLC. Requirements for compatibility of dial access terminals
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OCLC840411:01 NFP
with the OCLC System will be published from time to time by OCLC. In
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 Lease
Agreement in effect at the date of the transaction, a copy of which will be
furnished to Participant on request.
2. `
At the request of Participant, OCLC will provide
maintenance service for OCLC Terminals sold to Participant, which service
shall be in accordance with the terms and conditions set forth in the
then -current standard form of OCLC Terminal maintenance agreement, a copy
of which will be furnished to Participant on request.
C. Telecommunications
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1. OCLC shall arrange for and solely control a
? private telecommunication network between OCLC, Participant and other OCLC
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 sequence
of stations and the method for delivery of the Online Processes. The
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telecommunication network furnished by OCLC shall include and terminate
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with a required modem(s) on the premises of Participant. Such modem(s),
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
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Participant. Risk of loss or damage to modems will remain with OCLC except
for loss or damage resulting from willful acts or gross negligence by
Participant. Participant shall not make any changes or add any attachments
to the telecommunications system as arranged by OCLC.
2. OCLC will provide dial -up access to the OCLC
System through the public, switched networks, and, when in its opinion
practicable, will make arrangements 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 furnished hereunder.
2. All reasonable, continuing, technical assistance
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 OCLC
participants generally.
5. Assistance to Participant to assure the accuracy
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.
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E. OCLC/MARC Subscription 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.
New Online Processes and Offline Products an;: Services
F.
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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
i made available to Participant hereunder, by addition 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. Standards
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
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Online Processes adopted by OCLC from time to time for application to OCLC
Participants generally.
B. Current Cataloging
Participant agrees to search the OCLC Online Union
Catalog in connection with all of its Current Cataloging, determining which
of the catalog records required for Current Cataloging are available
therein, and to the extent not available therein, to create the records and
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 that
it will set its OCLC-assigned holdings symbol to all catalog records in the
OCLC Online Union Catalog required for Current Cataloging. Provided that
Participant has met its responsibilities 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 will
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 for
OCLC Terminals in accordance with specifications to be furnished by OCLC.
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E. Charges
Participant shall make payment of OCLC charges hereunder
in accordance with the requirements of Article V below.
F. Terminal Printer Port
Participant agrees that, except with OCLC's prior written i
consent, it will not obtain catalog records in machine—readable form, by
way of a terminal device or other device or means for accessing the OCLC
System, when Participant's OCLC-assigned holdings symbol has not been
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attached to such records in the OCLC Online Union Catalog, except in the j
following cases.
(i) Records required by Participant to carry uut
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 {
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made prior to attachment of said holdings symbol.
(ii) Records may be obtained and used by Participant
in connection with its acquisition of -new library materials provided (a)
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that the records are oot transferred or made available to third parties c
other than the publishers or suppliers to whom Participant's purchase
orders for such new materials are issued; and (b) that Participant's '
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OCLC-assigned holdings symbol is attached to all such records in the OCLC
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Online Union Catalog reasonably promptly after receipt by Participant of
the newly acquired materials.
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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
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same may be amended from time to time on ninety (90) days prior written r
notice by OCLC).
b. No application or use of the OCLC System or OCLC
Online Union Catalog not expressly permitted by this Agreement will be made
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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
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adverse effect on the System.
ARTICLE V - OCLC CHARGES.
A. Pa nents and Discounts
Participant will pay OCLC the aggregate charges and
rentals for Online Processes and Offline Products and Services furnished by
z 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.
Invoices based on actual usage of processes, and sales
i and rentals of products and services, wili be rendered to Participant
monthly. Statements will reflect the appropriate discount to which
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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 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 XII OCLC will refund to Participant any subscription payment in
excess of claims against such payments.
B. Uniformity and Modification 7of 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 Products and
Services. OCLC may reduce any charges provided for in this Agreement
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. When any modification in charges becomes effective pursuant
to notice given, Appendix 1 and/or 2 shall be deemed to be amended to
provide for those modifications.
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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 ano similar taxes which may be applicable
to the transactions dealt with in this Agreement, all of which taxes,
together with 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 may 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 all relevant information that is available to OCLC. Each party's
obligations under this Article VI shall survive the expiration or
termination of this Agreement.
B. Participant represents that it is exempt from the payment
of Federal income tax.
ARTICLE VII - USE AND TRANSFER OF RECORDS.
Participant shall be free, without restriction, to use, copy,
display and distribute, in any -canner 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
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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 to
said records or derivative works, where such vendors have first signed and
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 in
clause 10 i) above), subject to prior negotiation by OCLC and Participant of
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 Parti ci pant' promptly following its execution by the i
parties. Participant's rights and obligations under this Article VII shall
survive the expiration or termination of this Agreement and of any
OCLC/MARC subscription agreement between the parties.
ARTICLE VIII - WARRANTIES AND LIMITATIONS OF LIABILITY.
A. Catalog cards, OCLC/MARC subscription tapes 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 (66) 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 online
transactions by Participant with issuance of full credit. OCLC Terminals
sold to Participant hereunder are warranted as provided from time to time
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in the standard form of OCLC terminal sale agreement referred to in ARTICLE
III-B above. THE FOREGOING OBLIGATIONS AS SET FORTH OR REFERENCED IN THIS
ARTICLE VIII-A REPRESENT OCLC'S SOLE AND EXCLUSIVE LIABILITY FOR ANY DEFECT
OR FAILURE IN ONLINE PROCESSES, OFFLINE PRODUCTS AND SERVICES.
B. Immediately prior to the delivery of all Offline Products
sold or leased to Participant hereunder, OCLC will have good title thereto.
C. OCLC shall maintain the OCLC Online Union Catalog during
the term hereof, and shall exert continuing efforts to upgrade said Union
Catalog and to improve performance of the OCLC System.
D. Except for the express warranties stated above in this
Article .III 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 or
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 1T 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 of
action, shall not exceed the value of all transactions under this Agreement
for three-(3) months preceding the incident giving rise to such claim.
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ARTICLE IX — INFRINGEMENT UNDERTAKINGS AND GRANT OF LICENSE.
A. By OCLC
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OCLC agrees to defend and assume all of Participant's
y liability and costs for any suit or claim brought nr asserted against
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Participant on the ground that the Online Processes, Offline Products or
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Services, as furnished by OCLC, infringe any patent, copyright, trademark,
secrecy or other proprietary interest of a third party, provided and upon
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the conditions that Participant (i) promptly deliver to OCLC written notice
of any claim of such infringement together with all infringement notices
and other papers received by Participant and (ii) give OCLC all information
and assistance reasonably requested, together with exclusive authority to
investigate, settle and defend such claim. THE FOREGOING SETS FORTH OCLC'S
ENTIRE LIABILITY TO PARTICIPANT FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF
THE TYPES DEALT WITH IN THIS ARTICLE IX —A.
B. By Participant
Participant agrees to defend and assume all of OCLC'-s
liability, costs and expenses for any suit dr 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, provided
j and upon the conditions that OCLC (i ) promptly deliver to Participant
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written notice of any claim of such infringement, together with all
f infringement notices and other papers received by OCLC and (ii) give
Participant all information and assistance reasonably requested, together
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with exclusive authority to investigate, settle and defend such claim. ThE
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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-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 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. It is a duty of OCLC participants to
act cooperatively with each other and to avoid practices which have the
effect either of shifting the burden of payment for OCLC products and
sevavices away from those receiving the same, or manipulating use of the
'U^CLC System'in ways which unreasonably and adversely affect its
performance. The following practices are some examples of violations of
the duty of responsible use:
17
OCLC840411:01 NFP
0 ) 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.
0 i ) Permitting use of the OCLC System by or for entities ;
which are not general members of OCLC; provided, however, that such use for
non-members is permitteo (a) where it generates an interlibrary loan
s
request on the OCLC interlibrary loan -subsystem and (b) where an authorized
1
processing center participant carries out Current Cataloging on behalf of
a
its client users.
}
(iii) Use of the save file as an electronic mail system.
(iv) Doing Current Cataloging or reclassification cataloging under
a retrospective conversion authorization.
W 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 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
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OCLC840411:01 NFP
ARTICLE XII - 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. The
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 a
party in material breach has not corrected same or is not diligently taking
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 Agreement and under applicable law, which
relief includes, without limitation, termination of this Agreement by
written notice, without liability therefor.
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
OCLC840411:01 NFP
Agreement by notice in writing effective at any time after the end of those
ten (10) days and prior to receipt of the late payment, without liability
for such termination.
D. Whenever any material 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.other
party may give notice of termination of this Agreement, effective thirty
(30) days after such notice, unless by such date the cause of the delay has
been removed and performance of the delayed obligation has been resumed.
t
ARTICLE XIII - ASSIGNMENT.
This Agreement may not be assigned by either party, is 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 acquiring
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 and
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 mail, return
receipt requested, to the address of the other party set forth below or to
such other address as has been furnished by means of a notice given in
accordance with this Article:
20
If to OCLC:
If to Participant:
ARTICLE XV - MISCELLANEOUS.
ASWIN,
OCLC840411:01 NFP
President
OCLC Online Computer Library
Center, Incorporated
6565 Frantz Road
Dublin, Ohio 43017
Library Director
Carlsbad City Library
1250 Elm Avenue
Carlsbad, CA 92008
A. Effect of Waiver °u
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. Headings
Paragraph and Article headings are included in 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. Originals
This Agreement is executed in two (2) signed
counterparts, each of which is and shall constitute an original hereof.
E. Entire Agreement
This Agreement is the final, complete and exclusive
statement of the agreement of the parties with respect to the subject
21
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OLLC840411:01 NFP
matter hereof. No provision of this Agreement may be changed, modified, or
supplemented except by a writing signed by both parties, unless otherwise
provided for herein.
IN WITNESS WHEREOF, the undersigned, being duly authorized, on
behalf of the parties, their successors and assigns, have executed this
Agreement effective the last date below written.
WITNESS:
Date
OCLC ONLINE COMPUTER LIBRARY
CENTER, INCORPORATED
By ---
Title
WITNESS: (NAME OF PARTICIPANT) i
THE CITY OF auas3m, A Municipal Corporation
�-
/� BY �
Title
• 4
22
i.-PENDIX I
PACIFIC NETWORK CHARGES
Effective 1984 July 1
Online System
Product Code
Description
Charges
Cataloging
Produces/First Time Updates
250/255/330
Prime Time
$ 1.69 (2)(3)
251/256/331
Nonprime Time
1.47 (2)
Reclassification Produces/Updates
300/305
Prime Time
1.69 (3)
301/306
Nonprime Time
_
1.47
Retrospective Conversion
335
Prime Time
1.12 (3)
336
Nonprime Time
.28
350
Public Service Searches
.11 (23)
356
Display Holdings Use
.09
150
Accessions Lists
140 Items or Less
141 Items or More
151
Changes
100/101
Catalog Cards
102
Out -of -Warranty Card Rerun
OCLC-MARC Distribution Service
203
Sample Tape
201
Cost of tape and handling
Standard 1600 C.P.I.
800 C.P.I. Option
Credit for Returned Tapes
200
Copying Charge Per Record:
1-1,000 Logical Records
1,001-5,000 Logical Records
5,001-20,000 Logical Records
20,001-50,000 Logical Records
50,001-100,000 Logical Records
100,001-200,000 Logical Records
200,001 and Up Logical Records
204
Production Frequency Charges
Weekly
Biweekly
Monthly
Quarterly
Semi-annually
205
Changes in MARC Distribution Profile
raga Gue
Production
Products (1)
$ 22.40 minimum
. 17 per item
35.00 per incident
.067 per card
75.00 per incident
75.00
30.00 per tape
35.00 per tape
None
.05 per record
.032 per record
.021 per record
.017 per record
.014 per. record
.013 per record
.011 per record
12.00 per period
25.00 per period ;
55.0der perio-
150.00 p:r period
39� 0.00 per period
35.00 per inciden
(1) Postage billed separately.
(2) Includes retrospective conversion produces.
(3) Prime time hours: 6am - 2pm Pacific Time (Monday - Friday).
Nonprime hours: Sam - 6am, 2pm - 7pm Pacific Time (Monday - Fri=iy and all day Saturday
I
A
P
F
APPENDIX I Page Two
PACIFIC NETWORK CHARGES
Effective 1984 July 1
Online System
Production
Product Code
Description
Charges
Products (1)
Interlibrary Loan
450
Produces
$ 1.34
451
Referrals
1.34
358
Display Holdings Use
.09
453
Statistics Annual Fee
$ 150.00 _(5)
454
Statistics Reports Per Page
.13
361
UL Holdings Display
.09
Serials Control
400/406
Check-in/Updates
.07
407
Claiming
.54
408
LDR Creation
.45
409
Claims Forms
_.13
402
LDR Storage Per Year
.,�:_03(6)
Union List
410
Updates
.07
401
LDR Creation
.45
Start-up Fees
403
Minimum
340.00
/15 libraries (7)
403
Additional
15.00
/added
OCLC members-(8)
403
Additional
30.00
/added
non-OCLC members (8),
402
LDR Storage Per Year
.03
(6)
357
Display Holdings Use
•09
360
UL Holdings Display
_ .09
Offline Lists (Paper or Fiche) (9)
420
per title
_____ •02
421
per summary holdings statement
.OL
422
per copy -specific holdings
statement
._ •02..
423
per index entry
_.____01
424
per optional field or cross-
reference
.____ •001
425
per printed page
__.____ 06
435
per original fiche
...-4.50
436
per fiche copy
__.___...._..
• (1) Postage billed separately.
(5) Data is accumulated July -June fiscal year. Annual fee is a 12-month revolving charge,
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.
APPENDIX 1
PACIFIC NETWORK CHARGES
Effective 1984 July 1
Product Code
Description
Offline Lists (Tape) (9)
440
per title
441
per Summary holdings statement
442
per ropy -specific holdings
statement
445
per tape
Acquisitions
242
Produces/First Time Updates '
365
ACQ/CAT Combination Discount
230
Aztion Forms
231/232
Fund Reports (paper)
234/235
Fund Reports (fiche)
236/237
Fiche Copy
233
Fund Storage Per Year
359
Display Holdings Use
680
System Service Fee
1-1
Online System
Charges
Page Three
Production
Products (1)
$ .03
.01
.02
30.00
.13 per sheet i
_ .13 per sheet 1
7.00 per fiche
b 1 copy
.30 each added
fiche copy
.25 (11)
.09
26.50 /terminal/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 Codes
(250+255+251+256) plus original cataloging. Credited at fiscal year end.
(11) Billed semi-annually, September and March.
y
APPENDIX I
Page :'our
PACIFIC NETWORK CHARGES
Effective 1984 July 1
Terminal & Terminal
Product Code Description
Related Services
Terminal (12)
Terminal Maintenance Service
(per separate agreement)
700/701/702 Model 100/105/110
$ 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
696
Terminal Lease
170.00 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)
778
60 ft.
70.00 (14)
779
Special Length
(14)(15)
Telecommunications
611
Per OCLC Modem per Month
65.00
612
Per Terminal per Month
127.00
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
722
- 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)
Modem and Station Termination
Installation
475.00 (16)
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 hardware and
software purchase prices.
' (13)
See separate maintenance agreement for details of qualifying equipment.
(14)
Freight to be added.
(15)
$30 plus $1/ft. over 20 ft.
(16)
Subject to telecommunicaitons carrier rate changes.
(17)
Price per one service per call. Additional services
performed during the same call
will be priced at $995.00 per each additional terminal.
(18)
Billed on time and material basis. Freight to be added for parts necessary to bring
terminal to condition necessary for certification.
APPENDIX I
PACIFIC NENORK CHARGES
Effective 1984 July 1
Page Five
Online System
Product Code
Description
Charges
Access to OCLC System Via Tymnet/Telenet
600/606
Connect Charge Per Hour
(300 baud/1200 baud)
($.16/minute)
$ 9.60 per
hour (19) f
602/608
WATS Hourly Connect Charge
25.00 per
hour
Subscription Fee
601
Per Tymnet Password
4.00 per
month s
607
Per Telenet Password
4.00 per
month
Access to OCLC System Via
s
Direct Dial
(20)
605
Authorization for Dial Access
200.00 per
year (21) i
Miscellaneous Charges
} 900
Start-up instruction
?
Training and Follow-up
500.00 per
incident (22)
Support Services
103/104/452
Profile Processing
(Cataloging/Union List/
Interlibrary Loan)
37.0_ per
hour
902
Billing Tape
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.
(22) Plus travel
expenses.
(23) For public
service search terminals only.
M
APPENDIX II
OCLC, ONLINE COMPUTER LIBRARY CENTER, INC.
1984/85 SUBSCRIPTION DISCOUNT PROGRAM
Discount Percent
Annual
Number of Months
Day of Month
Percentage
Covered by Subscription
Payment Received by OCLC
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%
10
5.5 5.1
10%
11
6.0 5.5
10%
12
6.4 6.0
10%
Standard Payment Terra:
Net amounts payable 45 days from date of invoice.
Prompt Payment Terms:
Discount of .35% (.0035) (8% APR) credited for payments received within
one month from date of invoice.
Late Payment Term:
Late payment charge of 1% per month (12o APR) imposed on all outstanding
charges in excess of 2 months from date of invoice.
d
OCLC840411:01 NFP
APPENDIX 3
OCLC ATTACHMENTS POLICY
c
i
Except with the prior written consent of OCLC, no equipment or
I device may be directly or indirectly attached, linked or used with the OCLC
System except: `
I. Terminal devices furnished or approved in writing by OCLC
r expressly for use with said System (hereinafter ?
! "Terminals").
2. Any equipment or device which Library may elect, in its
sole discretion, to attach to Terminals.
Notwithstanding paragraph numbered "2" above, no equipment or device may be
attached M to the telecommunication line connecting OCLC to the site of
the said Terminal(s), or (ii) to the modem at the termination point of said
telecommunication line at the site of a Terminal, or (iii) to any
interconnecting cables between modem and Terminal or between Terminals. In
addition, no equipment or devices except other Terminals may be attached
directly or indirectly to the next -CRT -port on Terminals, or to any of the
circuitry associated with such port.
Attachment of any equipment or device to Terminals under
paragraph numbered "2" above shall be at the sole risk and expense of
Participant. OCLC does not warrant or provide any assurance that such
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.
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