Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
CONTRACT 6514 Service Agreement
Agreement No. 6514 SOFTWARE SERVICES AGREEMENT BETWEEN THE CITY OF EL SEGUNDO AND OCLC, INC. THIS AGREEMENT, is entered into this 30th day of August, 2022, by and between CITY OF EL SEGUNDO, a municipal corporation ("CITY") and OCLC, INC., a OHIO Corporation ("CONSULTANT"). 1. CONSIDERATION. A. As partial consideration, CONSULTANT agrees to perform the scope of services attached as Exhibit "A," and incorporated by reference ("SERVICES"). The SERVICES include installing and maintaining a software program for various tasks associated with OCLC, INC. ("SOFTWARE"). B. As additional consideration, CONSULTANT and CITY agree to abide by the terms and conditions contained in this Agreement; C„ As additional consideration, CITY will pay CONSULTANT the compensation set forth in Exhibit A, but in no event more than TWENTY THOUSAND FIVE HUNDRED FOURTY dollars and THREE CENTS ($20,540.03). D. CITY will not be liable for any costs or expenses exceeding the sum paid to CONSULTANT pursuant to Section 1(C) unless otherwise agreed to by the Parties and by written amendment to this Agreement. 2. TERM. The term of this Agreement will be for one (1) year from July 01, 2022 to June 30, 2023. This Agreement will automatically renew, on an annual basis, on its anniversary date unless otherwise terminated. Unless otherwise determined by written amendment between the parties, this Agreement will terminate in the following instances: A. Completion of the work in Exhibit "A" and Exhibit "B"; B. Termination as stated in Section 7. 3. "SELF-HELP" AND "MALICIOUS" CODES PROHIBITED. A. CONSULTANT understands and agrees that CONSULTANT's use of any "self-help" or "malicious" codes, as defined by this Section, is prohibited and constitutes an "unfair business practice" as defined by California law. Notwithstanding any other provision of this Agreement that limits CONSULTANT's liability, CONSULTANT will be fully liable for all penalties Agreement No. 6514 and damages arising from use of a self-help or malicious code. B. "Self-help code" means any back -door, time -bomb, drop -dead, time-out, lock -up, slow -down, data freezing, logic bombs, or other software routine, code, devices, techniques intended to disable, slow, prevent operation of, or otherwise interfere with or change any operation of any computer system, software or other property automatically with the passage of time or under the prior instruction, triggering event or control of someone other than Client. C. "Malicious Code" means any virus, "spyware," "Trojan horse," "worm," "Easter egg," "cancelbot," "trapdoor," or other unapproved or malicious software routine, code, command, device, technique, or instruction or other contaminant intended to Permit unauthorized access to, detection of, modification of, or monitoring of any code, system, or data; Alter, supplement, disable, erase, limit, threaten, infect, assault, vandalize, defraud, disrupt, damage, disable, shut down or delete, threaten, slow or otherwise inhibit the functioning of, or otherwise harm any of the code, documentation or data or any computer system, software or other property; iii. Render any data irretrievable, modified, or disrupted so as to be unreliable in any regard; iv. Perform any other unauthorized action, or prevent, limit, condition or inhibit performance of authorized actions or any function including, without limitation, to its security or end user data. 4. LAWS AND REGULATIONS. CONSULTANT will be responsible for complying with any and all applicable Federal, State, County, and Municipal laws and regulations and the conditions of any required licenses and permits before entering into this Agreement. Such compliance will be at CONSULTANT's sole cost and without any increase in price or time on account of such compliance, regardless of whether compliance would require additional labor, equipment, and/or materials not expressly provided for in the Agreement or CONSULTANT's proposal. 5. INDEMNIFICATION. A. CONSULTANT agrees to the following: I. Indemnification for Professional Services. CONSULTANT will save harmless and indemnify and at CITY's request reimburse defense costs for CITY and all its officers, volunteers, Agreement No. 6514 employees and representatives from and against any and all suits, actions, or claims, of any character whatever, brought for, or on account of, any injuries or damages sustained by any person or property resulting or arising from any negligent or wrongful act, error or omission by CONSULTANT or any of CONSULTANT's officers, agents, employees, or representatives, in the performance of this Agreement, except for such loss or damage arising from CITY's sole negligence or willful misconduct. i. Indemnification for other Damages. CONSULTANT indemnifies and holds CITY harmless from and against any claim, action, damages, costs (including, without limitation, attorney's fees), injuries, or liability, arising out of this Agreement, or its performance, except for such loss or damage arising from CITY's sole negligence or willful misconduct. Should CITY be named in any suit, or should any claim be brought against it by suit or otherwise, whether the same be groundless or not, arising out of this Agreement, or its performance, CONSULTANT will defend CITY (at CITY's request and with counsel satisfactory to CITY) and will indemnify CITY for any judgment rendered against it or any sums paid out in settlement or otherwise. iii. Intellectual Property Infringement. Notwithstanding any provision to the contrary, CONSULTANT will, at its own expense, indemnify and defend CITY against any claim that CONSULTANT's services or work product furnished under this Agreement infringes a patent or copyright in the United States or Puerto Rico. In such event, CONSULTANT will pay all costs damages and attorney's fees that a court finally awards as a result of such claim. To qualify for such defense and payment, CITY must (a) give CONSULTANT prompt written notice of any such claim; and (b) allow CONSULTANT to control, and fully cooperate with CONSULTANT in the defense and all related settlement negotiations. CITY agrees that if the use of CONSULTANT's services or work product becomes, or CONSULTANT believes is likely to become, the subject of such an intellectual property claim, CITY will permit CONSULTANT, at its option and expense, either to secure the right for CITY to continue using CONSULTANT's services and work product or to replace it with comparable services and work product. B. For purposes of this section "CITY" includes CITY's elected and appointed officials, officers, employees, and volunteers. Agreement No. 6514 C. It is expressly understood and agreed that the foregoing provisions will survive termination of this Agreement. D. The requirements as to the types and limits of insurance coverage to be maintained by CONSULTANT as required by Section 6, and any approval of said insurance by CITY, are not intended to and will not in any manner limit or qualify the liabilities and obligations otherwise assumed by CONSULTANT pursuant to this Agreement, including, without limitation, to the provisions concerning indemnification. 6. INSURANCE. A. Before commencing performance under this Agreement, and at all other times this Agreement is effective, Consultant will procure and maintain the following types of insurance with coverage limits complying, at a minimum, with the limits set forth below: Type of Insurance Commercial general liability: Professional Liability Workers compensation Limits combined single) $1, 000,000 $1,000,000 Statutory requirement. B. Commercial general liability insurance will meet or exceed the requirements of the most current ISO-CGL Form. The amount of insurance set forth above will be a combined single limit per occurrence for bodily injury, personal injury, and property damage for the policy coverage. Liability policies will be endorsed to name City, its officials, and employees as "additional insureds" under said insurance coverage and to state that such insurance will be deemed "primary" such that any other insurance that may be carried by City will be excess thereto. Such insurance will be on an "occurrence," not a "claims made," basis and will not be cancelable or subject to reduction except upon thirty (30) days prior written notice to City. C. Professional liability coverage will be on an "occurrence basis" if such coverage is available, or on a "claims made" basis if not available. When coverage is provided on a "claims made basis," Consultant will continue to maintain the insurance in effect for a period of three (3) years after this Agreement expires or is terminated ("extended insurance"). Such extended insurance will have the same coverage and limits as the policy that was in effect during the term of this Agreement, and will cover Consultant for all claims made by City arising out of any errors or omissions of Consultant, or its officers, employees or agents during the time this Agreement was in effect. Agreement No. 6514 D. Consultant will furnish to City duly authenticated Certificates of Insurance evidencing maintenance of the insurance required under this Agreement, endorsements as required herein, and such other evidence of insurance or copies of policies as may be reasonably required by City from time to time. Insurance must be placed with insurers with a current A.M. Best Company Rating equivalent to at least a Rating of "A:VII." E. Should Consultant, for any reason, fail to obtain and maintain the insurance required by this Agreement, City may obtain such coverage at Consultant's expense and deduct the cost of such insurance from payments due to Consultant under this Agreement or terminate. 7. TERMINATION OF AGREEMENT A. During the term of this Agreement, CITY may, in its sole discretion, terminate this Agreement with or without cause by giving at least 30 days written notice to Consultant. The City Manager may exercise such right of termination on behalf of CITY. B. Except as otherwise provided, upon termination of this Agreement, CITY will be liable to CONSULTANT only for all work done by CONSULTANT up to and including the date of termination of this Agreement unless the termination is for cause, in which event CONSULTANT need be compensated only to the extent required by law. 8. NOTICES A. CONSULTANT will notify CITY of changes in address. All notices given or required to be given pursuant to this Agreement will be in writing and may be given by personal delivery or by mail. Notice sent by mail will be addressed as follows: To CITY: CITY OF EL SEGUNDO 350 MAIN STREET EL SEGUNDO, CA 90245-3813 To CONSULTANT: OCLC, INC. 6565 KILGOUR PL DUBLIN, OHIO 43017-3315 and, when addressed in accordance with this paragraph, will be deemed given upon deposit in the United States mail, postage prepaid. In all other instances, notices will be deemed given at the time of actual delivery. Agreement No. 6514 Changes may be made in the names or addresses of persons to whom notices are to be given by giving notice in the manner prescribed in this paragraph. 9. AUDIT AND ACCESS TO RECORDS. CONSULTANT, including CONSULTANT's subcontractors, will maintain records and other evidence of all expenses incurred in the performance of this Agreement for a period of three (3) years after completion. CITY or any of its duly authorized representatives will, for the purpose of audit and examination, have access to and be permitted to inspect such records and other evidence of expenses and costs charged to CITY and/or incurred for work related to SERVICES. For purposes of audit, the date of completion of the Agreement will be the date of CITY'S payment for CONSULTANT's final billing (so noted on invoice) under this Agreement. 10. NON -APPROPRIATION OF FUNDS. Payments due and payable to CONSULTANT for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of the CITY. In the event the CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this Agreement will cover only those costs incurred up to the conclusion of the current fiscal year. 11. INDEPENDENT CONTRACTOR. CONSULTANT, CONSULTANT's subconsultants, employees, agents, and representatives, will act as independent contractors while performing the SERVICES and will have control of CONSULTANT's work and the manner in which it is performed, except as is otherwise provided herein. CONSULTANT will be free to contract for other services performed during the term of this Agreement. CONSULTANT is not an agent or employee of CITY and is not entitled to participate in any pension plan, insurance, bonus or similar benefits CITY provides for its employees. 12. ASSIGNMENT. An essential element of this Agreement is the skill and creativity of CONSULTANT. CONSULTANT may not, therefore, assign the creative portions of the work to a third party for the production of the work without CiTY's prior written consent. Failure to conform to this provision may result in termination of the Agreement. 13.CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement takes precedence over the attached Exhibits; this Agreement supersedes any conflicting provisions. Any inconsistency between the Exhibits will be resolved in the order in which the Exhibits appear below: A. Exhibit A; RENEWAL ORDER #10000107754 B. Exhibit B; RENEWAL ORDER #10000114698 14. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets forth the Agreement No. 6514 Parties' entire understanding. There are no other understandings, terms or other agreements expressed or implied, oral or written. There are three (3) attachments to this Agreement. Except as otherwise provided, this Agreement will bind and inure to the benefit of the Parties to this Agreement and any subsequent successors and assigns. 15. MODIFICATION. No alteration, change or modification of the terms of the Agreement will be valid unless made in writing and signed by both Parties hereto and approved by appropriate action of CITY. The city manager may exercise this authority on behalf of CITY. 16. ELECTRONIC SIGNATURES FOR SUBSEQUENT AGREEMENTS. . This Agreement may be executed by the Parties on any number of separate counterparts, and all such counterparts so executed constitute one Agreement binding on all the Parties notwithstanding that all the Parties are not signatories to the same counterpart. In accordance with Government Code § 16.5, the Parties agree that this Agreement, Agreements ancillary to this Agreement, and related documents to be entered into in connection with this Agreement will be considered signed when the signature of a party is delivered by electronic transmission. Such electronic signature will be treated in all respects as having the same effect as an original signature. 17. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with CONSULTANT's Taxpayer Identification Number. 18. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT represents that CONSULTANT has demonstrated trustworthiness and possesses the quality, fitness, and capacity to perform the Agreement in a manner satisfactory to CITY. CONSULTANT represents that CONSULTANT's financial resources, surety and insurance experience, service experience, completion ability, personnel, current workload, experience in dealing with private parties, and experience in dealing with public agencies all suggest that CONSULTANT is capable of performing the proposed contract and has a demonstrated capacity to deal fairly and effectively with and to satisfy a public agency. 19. WAIVER. A waiver by CITY of any breach of any term, covenant, or condition contained in this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained in this Agreement whether of the same or different character. The payment or acceptance of fees for any period after a default will not be deemed a waiver of any right or acceptance of defective performance. 20. SEVERABILITY. if any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the extent necessary in the opinion of the court to render such portion enforceable and, as so modified, such portion and the balance of this Agreement will continue in full force and effect. Agreement No. 6514 21. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this Agreement. 22. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood, explosion, acts of terrorism, war, embargo, government action, civil or military authority, the natural elements, or other similar causes beyond the Parties' reasonable control, then the Agreement will immediately terminate without obligation of either party to the other. 23. INTERPRETATION; VENUE. This Agreement and its performance will be governed, interpreted, construed and regulated by the laws of the State of California. Exclusive venue for any action involving this Agreement will be in Los Angeles County. [SIGNATURES ON NEXT PAGE] Agreement No. 6514 IN WITNESS WHEREOF the parties hereto have executed this contract the day and year first hereinabove written. Director, Information Technology Services Department ATTE 'T r• "Tracy "Weaver, City Clerk APPROVED AS TO FORM: MARK D. HENSLEY, CITY ATTORNEY Jooaq,ui azquez, Deput. City Attorney Risk Management Bruce Crocco, Vice President Authorized signer Aporo,ep OCLC, INC. I bycecar w Agreement No. 6514 ocLc El Segundo Public Library Melissa McCollum Library Director 111 W Mariposa Ave El Segundo CA 90245 United States Item Code 3000030 3000065 OCLC Symbol CGE Customer ID 37359 Item Currency USD Renewal Period 7/01 /2022 to 6/30/2023 Cataloging and Metadata Subscription WorldShare ILL THIS IS NOTRN INVOICE, An invoice will follow in the usuol billing cycle Renewal Renewal Order #1000107754 4/03/2022 Participant Library El Segundo Public Library 111 W Mariposa Ave El Segundo CA 90245 United States Total USD Amount $17,413.26 $2,424.82 $19,838.08 We appreciate your subscription to OCLC services and hope you are pleased with the service and the support you have received during the past year.Your subscription(s) will automatically renew on 7/1/2022. If you wish to continue your subscription as is, with no changes, no action is required by you at this time. If you wish to change or cancel your subscription(s) please contact OCLC Order Services at m ders@cdc. cra. Your renewal order number is 1000107754. If your institution requires a PO, please provide the new details to OCLC prior to your renewal date. PLEASE MOTE: we require written confirmation for cancellation requests at least 30 days before your subscription renews on 7/112022. If you have any questions about this service or need help using it, please contact OCLC support in your region at http:/iOC.ICi suppart- Thank you OCLC Order Services " Please note prices are current as of the date of this notice and are subject to change. This transaction is subject to the relevant OCLC Framework Agreement ("FA") and the Schedules related to each product listed on this notice, found at: httFa;;,r..lc?.=.+_r,.ice �c;recrnents, unless a signed agreement governing the transaction has been entered into by the parties. 1 of 1 ��l Agreement No. 6514 EXIIIBrr-A OcL �; Renewal OCLC Symbol Currency Renewal Order CGE U5D #1000114698 Customer ID Renewal Period 6/01 /2022 37359 9101/2022to 8/31/2023 Participant Library El Segundo Public Library El Segundo Public Library Melissa McCollum Library Director 111 W Mariposa Ave 111 W Mariposa Ave El Segundo CA 90245 El Segundo CA 90245 United States United States Item Code Item Amount 3000085 EZproxy $701.95 Total USD $701.95 THIS 15 NOT AN INVOICE, An invoice will follow in the usual billing cycle We appreciate your subscription to OCLC services and hope you are pleased with the service and the support you have received during the past year. Your subscription(s) will automatically renew on 9/112022, If you wish to continue your subscription as is, with no changes, no action is required by you at this time. If you wish to change or cancel your subscription(s) please contact OCLC Order Services at f-;rd of seDocic.oro. Your renewal order number is 1000114698- If your institution requires a PO, please provide the new details to OCLC prior to your renewal date. PLEASE NOTE: we require written confirmation for cancellation requests at least 30 days before your subscription renews on 91112022. If you have any questions about this service or need help using it, please contact OCLC support in your region at h;tp:/ir. lei support- Thankyou OCLC Order Services ` Please note prices are current as of the date of this notice and are subject to change. This transaction is subject to the relevant OCLC Framework Agreement ("FA") and the Schedules related to each product listed on this notice, found at: i�tti.:i;.;C.i;:/s• nice ac;� c i :cs, unless a signed agreement governing the transaction has been entered into by the parties. I Of I Agreement No. 6514 M0 C LC Exhibit "B" Framework Agreement INSTITUTION NAME ("Institution") City of El Segundo LIBRARY NAME (if different from Institution) El Segundo Public Library OCLC SYMBOL (if any) CGE STREET ADDRESS I I I W. Mariposa Avenue CITY, STATE, ZIP/POSTAL CODE, COUNTRY mEl Segundo, CA 90245 ,. CONTACT PERSON, JOB TITLE Melissa McCollum Library y Services Director ...... _..._........._ TELEPHONE NUMBER, FAX, E-MAIL ADDRESS T: 310-524-2730 F:310-648-7560 E: MMcCOHL11id1(2�e[Segundo, or _ BILLING ADDRESS (IF DIFFERENT FROM ABOVE) STREET ADDRESS _. CITY, STATE, ZIP/POSTAL CODE, COUNTRY -.....-...._ ........... CONTACT PERSON, JOB TITLE TELEPHONE NUMBER, FAX, E-MAIL ADDRESS Is Institution considered exempt from tax in the country in which it is located? ❑ Yes ® No Signatures follow on next page Loc-US,EN-US, May 2021 Page I of 9 OCLC Framework Agreement Agreement No. 6514 SIGNATURES By signing below, Institution: (1) acknowledges that Institution has read and agrees that the terms of this Agreement, as defined herein, shall become effective upon full execution of the Agreement (" l fiective Datie ); (2) warrants that it has made no ,unil<aterA changes to the terms of the Agreement since last received from OCLC; (3) orders access to the Products and Services as specified in this Agreement; and (4) warrants that it has the authority to enter into this Agreement. Institution OCLC, Inc. Signature: Signature: Name: Name: Title Title: Date: Date: Notice Address for Institution Notice Address for OCLC: Name: Name: OCLC. Inc . Email: _ Email; e aljaocic.or Loc-US,EN-US, May 2021 Page 2 of 9 OCLC Framework Agreement Agreement No. 6514 Section I Schedules Incorporated By marking the box associated with the Products and Services to which this Agreement applies below, Institution hereby subscribes to those Products and Services selected, and agrees to the associated schedule set forth at the links below. institution may also subscribe to Products and Services by initialing an attached schedule for that Product or Service. Those schedules located at the links associated with the selected Products or Services in the table below and/or any schedules attached hereto are hereby incorporated into this Agreement (the "Schedule" or "Schedules"). Products and Services Provided _ Associated Schedule © VdorldShar e® Management Services Schedule I _WMS . _ ' ❑ M5 1�wSandbox .._,�..__.__._..�.....__ _._..__I Schedule I A„- WNIS Sandbox orldShare Metadata ! OCLC Cataloging Schedttic 7 i"oi IdSlaare 1etr7dta 9 d �uc�tatg _ . _._ . 7t °l�E C ut ult ❑ Grou Catalog 'Schedule 1 A - group -Catalog ❑ WorldCat8 Discovery Services - ShedWorldf Kit Disc,overy Services ❑ WorldCat® Discovery Services/FirstSearch Schedule 3.A -'i orldt at Discoven, Seryices.l hstSearch ❑ WorldShare License Manager Schedule - WgLI& bare License �I uuia�er ❑ WoridShare Collection Evaluation Schedule 1a�"rldShare�re� Collection ialuatsrt ❑ CONTENTdm® Schedule 6 - CONTENTdm � ® EZProxy® Scl�ueduLl 7 - E / ❑ WebDewey® ..... w.W �._.....__ Schedule S - WebDewev ❑ OCLC WebJunction® Schedule 9 - WebJunction ® WorldShare Interlibrary Loan Services ("ILL) Schedule 10 - WorldShare twgijibrarylo Services ❑ ILLiad Schedule 10.A - ILLiad Tiasa® Schedule: 10.13 - Ti asa ❑ WorldCat.org I -I- 11u'orldCat.- ❑ OCLC Wise ("Wise") Schedule 14 - Wise ❑ Ca iraMobileTM . Schedule I-� L"a jjLaNlobile ElCa iraReady TM m �� Schedule 16 m �Q&ijatteadj ❑ Ca�iraCurbsideTM _. `schedule 17 - CppLraC llrbside ❑ MuseumKeIT Sehc dizle l-'%1iust cxriul gy ❑ Len Schedulc19 - Le dingKey, Loc-US,EN-US, May 2021 Page 3 of 9 OCLC Framework. Agreement Agreement No. 6514 Section 2 Scope & Construction This "Agreement", including the Framework Agreement and the Schedule(s) selected in Section 1, establishes the general terms and conditions for the provision of Products and Services. In case of a conflict in terms between the Framework Agreement and any applicable Schedule, the terms and conditions of the Schedule shall prevail. If institution accepts or executes multiple agreements with OCLC for the same Products and/or Services, the order of precedence for the control of terms shall be (1) a negotiated Framework Agreement representing unique terns between OCLC and Institution, if one exists; (2) the most recently executed or accepted agreement. Section 3 Definitions In this Framework Agreement, except as otherwise provided, the following words and expressions shall have the meanings defined below: 3.1 Bibliographic Data means all the bibliographic data (including subject data, such as local key words and subject headings), descriptive metadata, relationship metadata and other metadata of the type stored in WorldCat. 3.2 Holdings Data means all the ownership and license data in relation to Institution's collection (including electronic resources). 3.3 Hosted Services means the hosted services made available by OCLC which Institution may access pursuant to this Agreement. The Hosted Services are described in detail in the applicable Product Descriptions but do not include services (including API's and the like) provided by third parties. 3.4 Institution Data means (i) the Holdings Data in relation to Institution's collection; (ii) all the data that forms part of the Iibrary process or the internal operations of the Institution, such as circulation, patron, and acquisition data; and (iii) all other data and content that is produced, sent or reproduced through the Services by the Institution or made available to OCLC in connection with the Services. 3.5 Internal Data means Institution Data intended exclusively for internal use by the Institution, subject to the rights granted to OCLC herein 3.6 Product Descriptions means the descriptions of the Products and Hosted Services as made available at www.ocle.org and as updated from time to time by OCLC. 3.7 Products mean the OCLC software, hardware. and other products licensed to Institution pursuant to this Agreement. The Products are described in detail in the applicable Product Descriptions but do not include products provided by third parties, 3.8 Professional Services means the services that OCLC provides to Institution under this Agreement in connection with the Products or Hosted Services, such as data migration, configuration, consultancy, support, and training. 3.9 Services mean the Hosted Services and Professional Services. 3.10 Shared Data means the Institution Data made available by Institution to the public or to third parties selected by the Institution (such as other participants or users) or that by its nature is intended for use outside the Institution's organization, such as Bibliographic Data, Holdings Data; and other data not considered Internal Data, 3.11 Systems mean the facilities, server(s), equipment, operating software, and connectivity used to provide the Services. 3.12 WorldCat means the databases of Bibliographic Data, Holdings Data, and related files maintained by OCLC. Section 4 Products and Services 4.1 General. OCLC will provide Institution those Products and Services to which it subscribes, in accordance with this Agreement and as described in the version of each Product or Service's respective Product Description. active on the Effective Date. Further information can be found at https://www.ocIc.org/en/ser-vices.htni1, Institution shall provide OCLC with the assistance and information OCLC reasonably needs to perform the Services properly or where OCLC otherwise reasonably requests. OCLC shall not be liable for any failure to perform its obligations arising from Institution's failure to provide such assistance or information. 4.2 Modifications. OCLC may change or modify a Product or Service from time to time in its discretion. OCLC shall notify Institution should there be any material changes to the respective Product or Service by such means as reasonably determined by OCLC. Any new Product or Service functionality made available by OCLC shall be subject to this Agreement. 4.3 Support. Support services will be provided in accordance with the support service description set forth in the relevant Schedule_ Further information is available at httpr ff ^wow^.oc,la rraIupi�allJzcxrze .eis.I�atrrt6,. 4.4 Limitations. Institution shall only use the Products and Services in accordance with the terms of this Agreement and for the purposes specified in the Product Descriptions. Loc-US,EN-US, May 2021 Page 4 of 9 OCLC Framework Agreement Agreement No. 6514 Section 5 Ownership and Licenses 5.1 Ownership a) OCLC Intellectual Property. OCLC and/or its licensors or suppliers are the exclusive owners of and retain all right, title, and interest (including all copyrights, trademarks, patents, and anv other proprietary rights) to the Products, Services, WorldCat, and all other materials produced or provided by OCLC. All rights not expressly granted by OCLC are reserved. b) Institution Data. Institution, and/or its suppliers and affiliates, retains all right, title and interest (including, without limitation, all proprietary rights) to Institution Data, except for rights granted to OCLC and its affiliates under this Agreement. Institution is solely responsible for the accuracy, completeness, and legality of Institution Data. Institution is responsible for obtaining all permission and other rights necessary to provide Institution Data to OCLC. Institution will not provide OCLC with Institution Data that Institution does not have the right to provide for use in connection with the Products or Services. 5.2 Licenses. a) Products and Services. Subject to the terms of this Agreement and the applicable Schedule(s), Institution's license to use the Products and Services identified in the executed Schedules may be pursuant to a hosted license (for Hosted Services) or a non -hosted license (for Products). For Products paid for by Institution, OCLC grants Institution a nonexclusive, nontransferable license to install and use the Product solely for the noncommercial purposes described in the Product Description and the applicable Schedule. For Hosted Services subscribed to by Institution, OCLC will provide access to the Hosted Service, and if applicable a license to install and use any local software components of the Hosted Service, all solely for the noncommercial purposes described in the Product Description and the applicable Schedule. b) Institution Data. Institution grants OCLC a global, nonexclusive, royalty -free, transferable and sub -licensable right to use the Internal Data to the extent necessary for the provision of the Products and Services. Institution grants OCLC, OCLC participants, non -participant users, and OCLC designees a global, perpetual, non-exclusive, royalty -free, transferable; and sub -licensable right to host, reproduce, transmit, store, publish, distribute, modify, create derivative works from, and otherwise use Shared Data. Institution Data shall be supplied to OCLC in a format compatible for use with the Products and Services. Section 6 Term and Termination 6.1 Term. This Agreement shall commence on the Effective Date and shall remain in full force and effect for the initial term specified in a pricing document, upon the expiration of which, the Agreement shall renew annually unless terminated according to Section 6.2. or if no such term is specified, the duration that Institution has access to the applicable Products or Services (the "Term"), subject to the earlier termination of this Agreement pursuant to Section 6.2 below. 6.2 Termination. This Agreement or individual Schedules may be terminated in one of the following ways: a) By either party, effective at the end of the initial subscription period, which shall be as set forth in the agreed upon pricing document, or any renewal period, as which shall be as set forth in any renewal notice issued pursuant to Section 7.2, by providing the other party with at least 30 days' prior written notice of its desire to not renew a Product or Service; b) By either party if the other party becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for all or a substantial part of its property, is subject to any proceeding under any bankruptcy or insolvency law, or has wound up or liquidated, voluntarily or otherwise; c) By the non -breaching party if a party commits a material breach of its obligations under this Agreement and has not cured such breach or failure within 30 days of receiving written notice from the non -breaching party. OCLC reserves the right, however, to immediately suspend Institution's access to the OCLC Services in the event of Institution's material breach until such time as the material breach is cured; or d) As otherwise explicitly provided in this Agreement. 6.3 Effect of Termination. Termination of this Agreement shall terminate all Schedules, termination of a Schedule will not terminate the Agreement or any other Schedule. Upon termination of this Agreement or any Schedule, the rights granted by OCLC in the applicable Schedule or Agreement are terminated unless otherwise provided in such Schedule. After termination and upon request, OCLC will promptly return or destroy all applicable Institution Data, except however, OCLC may retain Institution Data in back-up files provided that the confidentiality and security obligations contained herein shall apply. OCLC will provide Institution access to Institution Data for 90 days after the effective date of termination, after which, OCLC shall have no obligation to maintain any Institution Data. Loc-US,EN-US, May 2021 Page 5 of 9 OCLC Framework Agreement Agreement No. 6514 Section 7 Fees and Payment Terms 7.1 Fees. Institution shall pay the applicable charges based on their agreed upon pricing document. In the absence of an agreed upon pricing document, (i) OCLC's prevailing price for the Products and Services shall govern; and (ii) payments shall be made to OCLC annually; such annual payments will be billed upon the beginning of the applicable subscription period and shall be paid according to the terms stated on the invoice. Fees are exclusive of any taxes and shall be paid in the currency and to the address stated on the invoice. Institution shall pay such tax to OCLC or other entity, as appropriate. Institutions exempt from taxation shall supply a valid exemption certificate upon request. Institution's failure to fully pay any fees or taxes within 60 days after the applicable due date will be deemed a material breach of this Agreement, justifying OCLC's suspension of Products and Services. 7.2 Price Changes. OCLC reserves the right to change any price/fee, provided that OCLC provides Institution written notice of the change at least 60 days prior to the date the change is to become effective. Notwithstanding the foregoing, OCLC will not change any prices/fees contained in an agreed to price quote or renewal notice prior to the expiration of the quote or renewal notice. 7.3 Non-refundable. Institution will not be entitled to a refund of any implementation or pre -paid fees under this Agreement unless (i) OCLC terminates the Agreement or a Schedule pursuant to Section 6.2 (a), or (ii) institution terminates the Agreement or a Schedule pursuant to Section 6.2 (c); in which event, OCLC will refund that portion of fees pre -paid by Institution corresponding to the period after termination. 7.4 Proprietary Information. Institution agrees that OCLC's pricing information is proprietary to OCLC, and agrees to maintain confidentiality of such proprietary information, as well as any other information which OCLC communicates in writing to be proprietary or confidential, for 3 years from receipt by Institution. It shall not be a violation of this section to disclose information as required by applicable law (including public records acts), valid court order, or legal process. Section 8 Disclaimer EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS AND SERVICES ARE PROVIDED "AS IS" AND OCLC AND ITS THIRD PARTY SUPPLIERS DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PERFORMANCE OF THE PRODUCTS OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON -INFRINGEMENT OR ANY IMMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. OCLC MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE PRODUCTS AND SERVICES WILL ALWAYS BE ACCESSIBLE. FREE OF HARMFUL COMPONENTS, ACCURATE OR ERROR -FREE. INSTITUTION MAY INTEGRATE OCLC'S PRODUCTS AND SERVICES WITH THIRD PARTY PRODUCTS AND SERVICES. HOWEVER, IN NO EVENT WILL OCLC BE LIABLE FOR ANY LOSS ARISING OUT OF FAILURE OF SUCH THIRD PARTY PRODUCTS OR SERVICES OR OTHER EVENTS OUTSIDE OF OCLC'S REASONABLE CONTROL. ADDITIONALLY, UNDER NO CIRCUMSTANCES SHALL OCLC BE LIABLE FOR ANY LOSS ARISING OUT OF A DATA OR A SECURITY BREACH ORIGINATING FROM SUCH THIRD PARTY SOFTWARE. THIS SECTION WILL NOT APPLY TO DAMAGES THAT CANNOT BE EXCLUDED BY LAW (IN WHICH EVENT THE LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED). Section 9 Privacy and Security 9.1 Data Security. OCLC has implemented and shall maintain commercially appropriate, reasonable and customary controls to ensure the security, confidentiality, and protection against unauthorized access to, use, or disclosure of Internal Data. Institution shall obtain and maintain all necessary consents from all users for OCLC to provide the Products and Services and for Institution's and users' access, monitoring, use, disclosure, and transfer of Internal Data. 9.2 Audit. OCLC will (i) implement administrative, physical, and technical safeguards in accordance with accepted industry practices including conducting audits in accordance with the ISO/IEC 27001 standard (or subsequent comparable standard) and (ii) as reasonably requested by Institution, provide Institution with a copy of the certificate of registration for such standard. 9.3 Nondisclosure of Internal Data. OCLC shall hold all Internal Data in strict confidence and with the same standard of care it uses to protect its own information of a similar nature and shall not use Internal Data for any purpose other than to provide the Service or as may be authorized in writing by Institution. OCLC shall not disclose Internal Data to any other party except: (a) to OCLC employees, agents, subcontractors and service providers, to whom Internal Data needs to be disclosed for the purpose of providing the Service; (b) as required by law, or to respond to duly authorized information requests of police and governmental authorities or to comply with any facially valid subpoena or court order; (c) to protect the rights or property of OCLC or OCLC customers, including the enforcement of OCLC agreements or policies governing Institution's use of the Service; (d) to involve and cooperate with law enforcement or the appropriate legal authorities in investigations, and to protect Systems and OCLC's customers, or (e) as authorized by Institution in writing. Loc-US,EN-US. May 2021 Page 6 of 9 OCLC Framework Agreement Agreement No. 6514 9.4 Prohibitions. Institution expressly warrants that it will not enter, submit, transfer, or store in the Service any of the following types of information: Social Security Numbers (or other national identification numbers); financial account numbers, credit card or debit card numbers. OCLC will have no liability, and Institution expressly releases OCLC from any liability, associated with the loss, theft, disclosure or misuse of such information. 9.5 Unauthorized Disclosures. OCLC will promptly notify Institution in the event ofa verified breach of non-public personal data unless such breach is unlikely to result in material harm to Institution or the data subject, or as otherwise provided by law. Institution agrees that it shall be Institution's sole responsibility to determine whether a breach is subject to state, federal or national breach notification laws and requires breach notification CELC,A, 1. N'otifucatvon"). In the event that Institution determines that a breach requires Breach Notification, OCLC agrees that it will reasonably cooperate with Institution in regards to Institution's Breach Notification obligations as specified in the applicable law, including Institution's investigation, enforcement, monitoring, document preparation, Breach Notification requirements, and reporting. Institution shall be solely responsible for notifying all individuals, regulators; or other organizations subject to Breach Notification, however OCLC reserves the right to first review all notifications before they are sent. 9.6 Data Processing Agreement. To the extent Personal Data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by OCLC and/or its affiliates, the following shall apply: The terms of the Data Processing Agreement ("DPA") at Vtttlts://pc i�� dr r. wc6c tiara/ Lriy�a ' am,l?Q euau .-a re r ra lttw lilmI are hereby incorporated by reference and shall apply if and to the extent that Institution Data includes Personal Data, as defined in the DPA. To the extent Personal Data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by OCLC and/or its affiliates, the Standard Contractual Clauses shall apply, as further set forth in and defined by the DPA. For the purposes of the Standard Contractual Clauses, Institution and its applicable Affiliates, as defined by the DPA, are each the data exporter, and Institution's acceptance of this Agreement shall be treated as its execution of the Standard Contractual Clauses and Appendices. Section 10 Limitation of Liability OCLC WILL HAVE NO LIABILITY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT OR THE PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO ANY UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT, LOSS, INACCURACY, OR DESTRUCTION OF INFORMATION OR DATA COLLECTED. STORED, DISTRIBUTED, OR MADE AVAILABLE VIA THE PRODUCTS AND SERVICES, INSTITUTION'S USE OR INABILITY TO USE THE PRODUCTS AND SERVICES, ANY CHANGES TO OR INACCESSIBILITY OF THE PRODUCTS AND SERVICES, ANY DELAY OR FAILURE OF THE SERVICES, OR FOR LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF OCLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OCLC'S LIABILITY TO INSTITUTION FOR ANY REASON AND UPON ANY CAUSE OF ACTION EXCEED THE AMOUNT INSTITUTION ACTUALLY PAID OCLC FOR THE INDIVIDUAL IMPLICATED OCLC PRODUCTS OR SERVICES COVERED UNDER THIS AGREEMENT OVER THE 12 MONTHS PRIOR TO WHICH SUCH CLAIM AROSE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION'S, AND OTHER TORTS. FEES UNDER THIS AGREEMENT ARE BASED UPON THIS ALLOCATION OF RISK, THIS SECTION WILL NOT APPLY TO DAMAGES THAT CANNOT BE LIMITED OR EXCLUDED BY LAW (IN WHICH EVENT THE LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED). Section I1 Use of Products and Services 11.1 General. Institution agrees not to use, and not to allow third parties including users to use the Products or Services: (a) to distribute viruses, worms, Trojan horses, corrupted files, or other items of a destructive or deceptive nature; (b) to engage in or promote any unlawful, invasive, infringing, defamatory, or fraudulent activity; (c) to violate, or encourage the violation of, the legal rights of others; (d) to interfere with the use of a Product or Service, or the equipment used to provide Products or Services; (e) to use the Products or Services, or any part thereof, in a manner that violates the terms of service of any other Products or Services; (f) to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisings or other solicitations ("spam"); (g) to alter, reverse -engineer, interfere with, circumvent, copy, or create a derivative work of, any aspect of the Product or Service (except with the express, written consent of OCLC or applicable law specifically prohibits this restriction); (h) to omit, obscure or hide from any user any notice of a limitation of warranty, disclaimer, copyright, patent, trademark, trade secret or usage limitation or any splash screen or any other terms or conditions intended to be displayed to a user by OCLC or OCLC supplier; or (i) to post, send, or make available software or technical information in violation of applicable export controls laws. Institution agrees that OCLC is authorized to monitor communications into and out of the System to prevent the introduction of viruses or other hostile code, to prevent intrusions, provide support, and to otherwise enforce the terms of this Agreement. Institution agrees to reimburse OCLC Loc-US,EN-US, May 2021 Page 7 of 9 OCLC Framework Agreement Agreement No. 6514 for all reasonable and verifiable costs associated with OCLC's compliance with governmental requests relating to Institution or Institution Data, including, but not limited to, warrants, subpoenas, and judicial orders. Notwithstanding the foregoing and to the extent pennitted by law and law enforcement, OCLC will make reasonable efforts to notify Institution when a disclosure of Institution Data has or is to be made. 11.2 Credentials. Institution shall exercise all commercially reasonable efforts to prevent unauthorized use ofthe Products and Services and is solely responsible for any and all use, including unauthorized use, of the Products and Services initiated using Institution's API keys and/or credentials. Institution shall immediately notify OCLC of a suspected or actual loss, theft or disclosure of any credentials and of any unauthorized use of a Product or Service. Should OCLC become aware of unauthorized use of Institution's API keys or credentials or unauthorized access to a Product or Service, OCLC may notify Institution and deactivate affected credentials. OCLC will provide Institution with administrative credentials to access and use the applicable Product or Service. institution is responsible for authorizing user access to the Products or Services, assigning privileges, and creating, maintaining, and terminating accounts. 11.3 Enforcement by OCLC. OCLC reserves the right to: (i) investigate any violation of this Section or misuse of Products or Services; (ii) enforce this Section; and (iii) remove or disable access, screen, or edit any Institution Data that violates these provisions. Without limitation, OCLC also reserves the right to report any activity (including the disclosure of appropriate Institution Data) that it suspects violates any law or regulation to appropriate law enforcement, regulators, or other appropriate third parties. OCLC may cooperate with appropriate law enforcement by providing network and systems information related to allegedly illegal or harmful content. VIOLATION OF THIS SECTION MAY RESULT IN THE SUSPENSION OF OCLC SERVICES AND SUCH OTHER ACTION AS OCLC REASONABLY DEEMS APPROPRIATE. REPEATED OR WILLFUL VIOLATION OF THIS SECTION MAY, IN OCLC'S SOLE DISCRETION RESULT IN THE TERMINATION OF THE AGREEMENT, ANY SCHEDULE, OR OCLC SERVICE. Section 12 Warranties OCLC warrants that any Professional Services will be performed in a professional and workman -like manner and that, when operated in accordance with the Product Description, the Products and Hosted Services will be capable of performing substantially in accordance with the functional specifications set forth in such Product Description. If any Products or Services fail to comply with the warranty set forth above, OCLC will make reasonable efforts to correct the noncompliance provided that OCLC is given notice of the noncompliance within 30 days and OCLC is able to reproduce the noncompliance. If OCLC is unable to correct the noncompliance, Institution may terminate the Schedule for the relevant Product or Hosted Service in accordance with Section 6.2(c) and, as its sole remedy, will be entitled to a refund of an equitable portion of fees paid for the relevant Product or Hosted Service after such noncompliance was reported. OCLC and Institution each warrant that its entry into this Agreement does not violate any other agreement to which it is a party, and that its performance under this Agreement will be in conformance with all applicable laws and government rules and regulations_ Institution warrants that it possesses all rights necessary to enter into this Agreement and grants the rights described in this Agreement such that OCLC will not infringe upon or otherwise violate any intellectual property rights or other rights of a third party or violate any laws by exercising the rights and licenses granted under this Agreement. To the extent permitted by law, Institution hereby indemnifies OCLC from any such claims in this respect. Section 13 General 13.1 OCLC Membership. As a subscriber to OCLC's Services and Products as described in this Agreement, Institution — and each library owned or operated by Institution — may be eligible for membership in the OCLC cooperative. Membership qualifications for the OCLC cooperative can be found at it �`�!w �y vt"clitior �cont nt/danvocicfrlo axrla rs@tit�R" leenl r h CrAiewld B t° 'Cmfa (', If Institution's subscription qualifies it as a member, Institution permits OCLC Member Relations to contact its library staff directly in separate communications, to provide new member information regarding voting and updates, Member groups, councils, and events, for OCLC Global and Regional Councils specific to Institution's region. As a member, Institution agrees to abide by the requirements and policies applicable to OCLC members. 13.2 No Assignment. Institution may not assign, without the prior written consent of OCLC, any rights, duties, or obligations under this Agreement to any person or entity, in whole or in part. 13.3 Independent Contractors_ The relationship of the parties is that of independent contractors, and no agency, employment, partnership, joint venture, or any other relationship is created by this Agreement. 13.4 Force Majeure. Neither party shall be responsible for losses or damages to the other occasioned by delays in the performance or the non-performance of any of said party's obligations (other than the obligation to make payments when due) when caused by acts of God, acts of the other party or any other cause beyond the control of said party and without its fault or negligence. Loc-US,EN-US, May 2021 Page 8 of 9 OCLC Framework Agreement Agreement No. 6514 13.5 Non -Waiver. A failure or delay in enforcing an obligation under this Agreement does not prevent enforcement of the provision at a later date. A waiver of a breach of one obligation does not amount to a waiver of any other obligation, and it will not prevent a party from subsequently requiring compliance with that obligation. 13.6 Severability. If any provisions of this Agreement shall be found by any court of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement, 13.7 Entire Agreement. This Agreement and any Schedules constitute the complete agreement between the parties and supersedes and replaces all prior agreements, oral and written, between the parties relating to the subject matter of this .Agreement. If Institution's accounting representatives require the use of a purchase order to facilitate payment for Products and Services contemplated in this Agreement, Institution agrees any and all terms and conditions contained in such purchase order are null and void, and do not apply to this Agreement. OCLC will provide invoices in response to purchase orders solely to facilitate payment and for the convenience of Institution; in no case, however, will OCLC's issuance of an invoice constitute an acceptance of terms contained in a purchase order OCLC provides Services and Products to Institution solely pursuant to this Agreement; OCLC shall never provide Services or Products pursuant to, or as a result of, a purchase order. Except as otherwise provided herein, this Agreement may not be amended or supplemented except in a writing duly executed by both parties. 13.8 Notice. Except as stated elsewhere in the Agreement all notices shall be in writing and shall be deemed sufficient if received by a party via e-mail to the e-mail address for such party set forth in Section I , or by such other means as has been agreed by the parties in writing. 13,9 Counterparts and Signatures. This Agreement may be executed in counterparts and/or via facsimile transmission or electronic copy, any one or form of which will be deemed to constitute an original, but all of which will constitute one instrument. Any signature (including any electronic signature, symbol or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record) hereto or to any other contract, record, certificate, or other document related to this Agreement, and any contract formation or record - keeping through electronic means shall have the same legal validity and enforceability as a manually executed signature or use of a paper -based recordkeeping system. Section 14 Special Terms for Group Orders Only Where a lead institution in a consortium (the "Group Administrator") is ordering on behalf of itself and other consortium members, this Section applies: 14.1 Ordering. Group Administrator may order the Service on behalf of consortium members by completing the relevant portions of the agreed upon pricing or order document and agreeing to this Agreement. Group Administrator also orders and allocates authorizations and passwords for the Service on behalf of consortium members listed on the agreed upon pricing or order document. Group Administrator is not a buyer of the Service for resale. Any material change in group membership or group participation may result in commensurate changes in the fees for the applicable Service. 14.2 Consortium Member's Agreement. Group Administrator warrants, as the consortium agent, that it is authorized to and hereby binds consortium members to this Agreement and shall indemnify OCLC from all loss, expense and damage arising from a breach of such warranty. Group Administrator shall provide each consortium member with a copy of this Agreement prior to Product and Service activation. Each order for consortium members shall constitute a binding contract between OCLC and the consortium member. 14.3 Payment by Group Administrator. Group Administrator shall be liable for paying to OCLC all charges and applicable taxes for consortium members for the Products and Services in accordance with the tenns of this Agreement. 14.4 Non -exclusivity. Nothing herein shall limit OCLC's right to distribute any Products or Services independent of Group Administrator. Loc-US,EN-US, May 2021 Page 9 of 9 OCLC Framework Agreement