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HomeMy WebLinkAbout1984-08-07; City Council; 3744-2; Renewal of Agreement with OCLCw n It '7 7 Hatt- 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. Z O a Z 0 'O V 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16' 17 18 19 20 21 22 23 24 25 26 27 28 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 I r AGIONKM BMWWI CITY OF CARLSBAD •M I 1 4, .61 • 1 1-4" .. .4 ra I 0 t7FP ARTICLE I ARTICLE II ARTICLE III A. B. C. D. E. F. +M 0 i ARTICLE V A. B. ARTICLE VI ARTICLE VII ARTICLE VIII ARTICLE IX A. ARTICLE X ARTICLE XI ARTICLE XII ARTICLE XIII Nmi OCLC840411:01 NFP 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 OCLC840411:01 Nr-D LxiLMi1/CLE ay��./+Q;\��*MT7��...�1*..1...................................... 20 yA�l�Y Ai4i MIX AEI �'li•TrC�LLAN :1 M A. Effect of Waiver .................................... 21 B. Readings ............................................ 21 C. Applicable law ...................................... 21 D. Originals ........................................... 21 E. Entire Agreement 21 f ii I a t i i Access to the OCLC dnl. System will be by (check as appropriate) / J Dial Access LV 'Dedicated 'Line OCLC840411:01 NFP 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 2 I P OCLC840411:01 NFP 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 3 i F i f' r r t i j • t A ,Auk OCLC840411:01 NFP 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. 7 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 i 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 4 OCLC840411:01 NFP 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 ' i provided by OCLC hereunder shall 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. B. Terminals 1. If access to the OCLC System is by dedicated line, then OCLC Terminals, together with the installation thereof, will be s i 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 f System and approved as such by OCLC ppon written request from Participant. I 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 5 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 t 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 i , telecommunication network furnished by OCLC shall include and terminate I 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 f a 6 I i i OCLC840411:01 NFP 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. 7 .r. OCLC840411:01 NFP 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. { 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 8 ti OCLC840411:01 NFP 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. 9 OCLC640411i01 NFP 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 I � 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 { i 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) r 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 ' t OCLC-assigned holdings symbol is attached to all such records in the OCLC f Online Union Catalog reasonably promptly after receipt by Participant of the newly acquired materials. 10 6 --%,OCLC84O411:O1 NFP 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 I 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 t 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 t 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 i i 11 -�1CLC840411:01 NFP 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. 12 OCLC840411:01 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 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 13 t i OCLC840411:01 NFP 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 14 5 • 1 i OCLC840411:01 NFP 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. 15 OCLC840411:01 NFP ARTICLE IX — INFRINGEMENT UNDERTAKINGS AND GRANT OF LICENSE. A. By OCLC s OCLC agrees to defend and assume all of Participant's y liability and costs for any suit or claim brought nr asserted against f Participant on the ground that the Online Processes, Offline Products or I Services, as furnished by OCLC, infringe any patent, copyright, trademark, secrecy or other proprietary interest of a third party, provided and upon i 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 { 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 i with exclusive authority to investigate, settle and defend such claim. ThE 2 a F v i 16 t e �OCLC840411:01 NFP 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 K 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 Z 0 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. 1 � t 5 � }