Data Acquisition Agreement

This Data Acquisition Agreement ("Agreement") sets forth the terms and conditions governing Company's provision of Company Data to OCLC and OCLC's use and incorporation of such data into OCLC Services, including WorldCat. This Agreement is published by OCLC, Inc., an Ohio nonprofit corporation ("OCLC"), and applies to, and is incorporated into, each Order Form that references this Agreement. Together, this Agreement and the applicable Order Form constitute the complete agreement between OCLC and the entity identified in the applicable Order Form ("Company") regarding the Company Data covered by that Order Form.

By executing an Order Form that references this Agreement, or by providing Company Data to OCLC pursuant to an Order Form, Company agrees to be bound by this Agreement. If the individual accepting an Order Form does so on behalf of a legal entity, that individual represents that they have authority to bind such entity to this Agreement. If Company does not agree to this Agreement, it may not provide Company Data to OCLC.

Section 1. Order Forms

The specific Company Data provided under this Agreement, together with any applicable delivery requirements, update frequencies, and other commercial terms, will be described in one or more Order Forms referencing this Agreement. This Agreement and each applicable Order Form will be construed together as a single agreement. In the event of a conflict between this Agreement and an Order Form, the Order Form controls solely with respect to that Order Form and only to the extent of the conflict, unless the Order Form expressly provides otherwise.

Section 2. Definitions

For purposes of this Agreement, the following capitalized terms have the meanings set forth below:

2.1 "Affiliate" means any legal entity that controls, is controlled by, or is under common control with a party, for so long as such control exists.

2.2 "Company Collection Data" means a listing of collections and titles available to Company Subscribers.

2.3 "Company Data" means any data, metadata, content, or information provided by Company to OCLC under this Agreement as further described in applicable Order Forms or other incorporated documents. Company Data may include Company Collection Data, Company Full Text Data, Company Metadata, and Holdings Information.

2.4 "Company Full Text Data" means Company's full text data which can include, but is not limited to, e-book data, chapter-level data, journal data, and article-level data.

2.5 "Company Metadata" means the bibliographic title and item-level metadata citations, cover image thumbnails, and abstract and indexing content provided by Company to OCLC.

2.6 "Company Subscribers" means libraries, institutions, or other entities with active subscriptions or authorized access to Company Data as confirmed by Company.

2.7 "Effective Date" means, with respect to Company, the date on which Company accepts this Agreement by executing, or otherwise agreeing to, an Order Form that references or incorporates it.

2.8 "Holdings Information" means any data provided by Company to OCLC, or made accessible by Company for retrieval by OCLC, to identify the specific content licensed by Company Subscribers.

2.9 "OCLC Data" means any data, content, records, metadata, identifiers, holdings, availability information, transaction data, and other information accessed, retrieved, received, or derived by Company through the OCLC Services.

2.10 "OCLC Data Specifications" means the technical requirements and standards for data format, delivery, and API integration as outlined by OCLC, available at: Data Specifications as may be updated from time to time.

2.11 "OCLC Services" means OCLC's hosted services, application programming interfaces (API), and non-API integration methods and protocols made available by OCLC.

2.12 "WorldCat" means OCLC's proprietary database and related systems through which OCLC aggregates, manages, and provides access to bibliographic records, holdings information, metadata, and related library data.

2.13 "WorldCat Data" means the subset of OCLC Data comprising metadata and related information contained in or obtained from WorldCat, generally in the form of bibliographic records and holdings data, including any copies, extracts, modifications, enhancements, or derivative works thereof.

Section 3. Grant of License

3.1 License Grant. Subject to the terms of this Agreement, Company grants OCLC and its Affiliates a worldwide, non-exclusive, royalty-free, transferable, and sub-licensable license to ingest, use, reproduce, process, adapt, and incorporate Company Data into OCLC Services, including WorldCat, and to display and make Company Data available through OCLC Services in each case solely as necessary to provide, maintain, and improve OCLC Services and related discovery, cataloging, and library services.

3.2 Reservation of Rights. Except for the rights expressly granted in this Section, Company retains all right, title, and interest in and to Company Data.

Section 4. Company Obligations

4.1 Initial Delivery; Format. Within thirty (30) days after the Effective Date, Company will at its expense and in a mutually agreed electronic format (which may include provision of an application programming interface (API)) make available to OCLC a complete, then‑current set of data licensed hereunder and related documentation, compliant with the OCLC Data Specifications. Company will provide at least ninety (90) days' prior written notice of any technology or format change that could reasonably impact OCLC's ability to process or provide access to the data. In the event Company transitions a delivery method (e.g., from file transfer to API or vice versa), Company will provide at least ninety (90) days' prior written notice and cooperate with OCLC to ensure continuity of data access during the transition.

4.2 Updates; Access to Holdings. At Company's expense and in a mutually agreed format, Company will provide or make available regular content updates reflecting additions, deletions, and modifications, conforming to the OCLC Data Specifications. Company will provide and maintain an API and hereby authorizes and grants OCLC, its members, customers, and authorized agents the right to access and retrieve Holdings Information from Company's platform using library authentication credentials for the purpose of automatically setting and updating holdings in WorldCat and other OCLC Services. Company will ensure such API remains available, adequately documented, and performing in accordance with commercially reasonable service levels. Company will give OCLC at least ninety (90) days' prior written notice before deprecating, materially modifying, or discontinuing any API.

4.3 Support. Company will provide reasonable telephone/email support at no additional charge to assist with loading and integrating data (including technical assistance to explain data structures and codes).

Section 5. Fees and Payment

Each Party will bear its own costs and expenses in connection with this Agreement. No fees or other compensation are payable by either Party unless expressly stated in this Agreement.

Section 6. Security and Data Protection

6.1 Security Safeguards. OCLC shall implement and maintain commercially reasonable safeguards designed to protect Company Data from unauthorized access, use, or disclosure. OCLC will notify Company without undue delay of any security incident affecting Company Data.

6.2 Linking and Testing. OCLC may create and display links to Company's website/platform to facilitate access to Company Data for authorized users, and the Parties will collaborate in reasonable testing of such links.

Section 7. Intellectual Property Rights

As between the Parties, Company retains all right, title, and interest in and to Company Data. OCLC retains all right, title, and interest in and to OCLC Services, WorldCat, and any systems, databases, or tools used to provide such services. Except for the rights expressly granted in this Agreement, no rights are transferred between the Parties.

Section 8. Publicity

Neither Party will issue press releases or public statements regarding this Agreement or use the other Party's name, trademarks, or logos in marketing or promotional materials without the other Party's prior written consent except as expressly permitted under this Agreement.

Section 9. Term and Termination

9.1 Term. This Agreement shall begin on the Effective Date and continue until terminated as provided herein.

9.2 Termination. This Agreement may be terminated in any of the following ways:

1. Either Party may terminate this Agreement for any reason upon 30 days' written notice to the other Party. Such termination will be effective on the date set forth in the termination notice.
2. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other 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.
3. Either Party may terminate this Agreement if the other Party becomes insolvent, makes a general assignment for the benefit of creditors, has a receiver appointed for all or a substantial part of its property, or becomes subject to any proceeding under any bankruptcy or insolvency law that is not dismissed within 60 days; or
4. As otherwise explicitly provided in this Agreement.

9.3 Effect of Termination. Upon termination or expiration of this Agreement, Company may cease providing new Company Data. OCLC's rights under Section 3 will survive with respect to all Company Data provided prior to termination.

Section 10. Confidential Information

The terms and conditions of this Agreement, as well as performance hereunder, shall be kept in confidence, and each Party agrees to protect the other Party's confidential information from disclosure to others and to use the same degree of care used to protect its own confidential or proprietary information, but in any case, no less than a reasonable degree of care. Information shall not be considered confidential information to the extent that the receiving Party can establish that such information (i) is or becomes generally known or available to the public through no fault of the receiving Party; (ii) was in the receiving Party's possession before receipt from the disclosing Party; (iii) is lawfully obtained from a third party who has the right to make such disclosure on a non-confidential basis; (iv) has been independently developed by one Party without reference to any confidential information of the other; or (v) is required to be disclosed by applicable law (e.g., public records acts) provided the receiving Party has promptly notified the disclosing Party of such requirement and allowed the disclosing Party a reasonable time to oppose such requirement.

Section 11. Warranties

Each Party represents and warrants that (a) it has full power and authority to enter into and perform this Agreement and (b) its performance under this Agreement will comply with applicable laws. Company represents and warrants that (a) it owns, or has obtained and will maintain, all rights necessary to provide Company Data to OCLC and to grant OCLC the rights set forth in this Agreement; (b) OCLC's use of such data as permitted herein will not infringe, misappropriate, or otherwise violate any third‑party intellectual property rights; (c) the data complies with all applicable laws, including privacy and data‑protection requirements; (d) the data does not contain viruses, malware, or other harmful code; and (e) Company has obtained all necessary consents for OCLC's use of the data as contemplated by this Agreement.

Section 12. Disclaimer

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OCLC SERVICES, OCLC DATA, AND ANY MATERIALS PROVIDED HEREUNDER ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, OCLC DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. OCLC DOES NOT WARRANT THAT THE SERVICES OR DATA WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS.

Section 13. Limitation of Liability

EXCEPT FOR (A) A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14; (B) A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; (C) FRAUD OR WILLFUL MISCONDUCT; AND (D) DAMAGES THAT CANNOT BE LIMITED BY APPLICABLE LAW (COLLECTIVELY, "EXCLUDED CLAIMS"), NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE LEGAL THEORY ASSERTED. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED FIFTY THOUSAND DOLLARS ($50,000). OCLC SHALL NOT BE LIABLE FOR THE USE, REUSE, DISTRIBUTION, REDISTRIBUTION, DISPLAY, OR OTHER USE OF COMPANY DATA BY OCLC MEMBERS, CUSTOMERS, AFFILIATES, SERVICE USERS, OR OTHER THIRD PARTIES IN ACCORDANCE WITH THIS AGREEMENT OR THE APPLICABLE ORDER FORM. THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

Section 14. Indemnification

Company will defend, indemnify, and hold harmless OCLC, its Affiliates, and each of their officers, directors, employees, and agents from and against any third-party claims, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to: (a) OCLC's use of Company Data as permitted by this Agreement; (b) any allegation that Company Data is inaccurate, misleading, defamatory, or violates privacy and data protection laws; and (c) any allegation that Company Data infringes or misappropriates any intellectual property, database, confidentiality, or other proprietary rights.

Section 15. Miscellaneous

15.1 Independent Contractor Status. 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.

15.2 Force Majeure. Neither Party shall be liable for a failure or delay of performance where such failure or delay is the result of any force majeure event, including an act of God or public enemy, pandemic, fire, explosion, accident, strike, governmental action, delay or failure of suppliers, failure of telecommunications networks, or any event similar to the foregoing (each a "Force Majeure Event"). Each Party shall use reasonable efforts to mitigate the effect of a Force Majeure Event. In the event a Force Majeure Event extends for a period in excess of 30 days in the aggregate and prevents a Party from performing its obligations under this Agreement, the other Party may in its discretion terminate this Agreement immediately upon written notice to the Party affected by the Force Majeure Event. Under no circumstance will a Force Majeure Event relieve a Party from its obligation to pay amounts for goods or services provided in accordance with stated payment terms.

15.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio and the United States of America without regard to principles of conflicts of laws. Any lawsuit or dispute arising under this Agreement shall be brought in state or federal court in Franklin County, Ohio and the Parties to this Agreement hereby consent to the jurisdiction of the state and federal courts located in Franklin County, Ohio.

15.4 Audit. Company agrees that OCLC shall have the right, from time to time, to conduct an investigation and/or an audit to verify Company's compliance with the provisions of this Agreement. Company agrees to cooperate fully with such investigation, the scope, method, nature, and duration of which shall be at the sole, reasonable discretion of OCLC.

15.5 Assignment. Company may not assign any rights, duties, or obligations under this Agreement to any person or entity in whole or in part without the prior written consent of OCLC.

15.6 Survival. Those rights and obligations of the Parties which by their nature should survive termination or expiration of this Agreement shall remain in full force and effect after termination or expiration.

15.7 Notices. Any notice or communication required or permitted under this Agreement will be in writing and delivered to OCLC at [email protected] and to Company at the legal contact (or, if none, the primary contact) identified in Company's most recent Order Form, or to such other address as a Party may designate by written notice given in accordance with this Section.

15.8 Non-Waiver. A failure or delay in enforcing an obligation of any provision under this Agreement shall not prevent enforcement of such provision at a later date. A waiver of a breach of one obligation shall not affect a waiver of any other obligation, and such waiver shall not prevent a Party from subsequently requiring compliance with any other obligation.

15.9 Severability. If any provision(s) of this Agreement should be found by any court of competent jurisdiction to be invalid, void, voidable, or unenforceable, such provision(s) shall not affect or impair the remaining provision(s) which shall continue in full force and effect. In substitution for any provision(s) held unlawful, there shall be substituted provision(s) of similar import reflecting the original intent of the Parties hereto to the extent permissible under law.

15.10 Entire Agreement. This Agreement, any applicable Order Forms, the documentation and any policies or guides referenced herein (including any accessible via a URL, as updated from time to time), and any attachments, schedules, addenda, and/or exhibits constitute the entire agreement between the Parties and supersede and replace all prior agreements, oral and written, between the Parties relating to the subject matter of this Agreement. OCLC may revise this Agreement from time to time by posting an updated version at the applicable URL. Unless otherwise stated, revisions apply only to Order Forms entered into after the revised version's effective date. The version in effect on the effective date of an Order Form will govern that Order Form during its term unless the Parties expressly agree otherwise.