OCLC eBook Distribution Agreement

This OCLC eBook Distribution Agreement ("Agreement") sets forth the terms and conditions governing Company's provision of eBooks, related assets, and metadata to OCLC and OCLC's distribution, marketing, licensing, lending, resale, and delivery of such eBooks through OCLC services, platforms, and distribution channels. This Agreement is published by OCLC, Inc., an Ohio nonprofit corporation ("OCLC"), and applies to, and is incorporated into, each Schedule that references this Agreement. Together, this Agreement and the applicable Schedule constitute the complete agreement between OCLC and the entity identified in the applicable Schedule ("Company") (OCLC and Company are each a "Party" and, collectively, the "Parties") regarding the Works, territories, distribution rights, and commercial terms covered by that Schedule.

By executing a Schedule that references this Agreement, or by providing Works, Assets, or Metadata to OCLC pursuant to a Schedule, Company agrees to be bound by this Agreement. If the individual accepting a Schedule 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 Works to OCLC for distribution.

Section 1. Schedules

The Works, territories, term, availability dates, content formats, distribution rights, pricing, compensation, revenue sharing, and other commercial terms will be described in one or more schedules referencing this Agreement (each, a "Schedule"). This Agreement and each applicable Schedule will be construed together as a single agreement. In the event of a conflict between this Agreement and a Schedule, the Schedule controls solely with respect to that Schedule and only to the extent of the conflict, unless the Schedule 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 "Assets" means the digital files and materials for each Work specified in Schedule A or otherwise provided by Company, including master files, artwork, cover images, book trailers, and related materials.

2.3 "DRM Solution" means digital rights management, watermarking, encryption, access controls, and anti-fraud/anti-abuse technologies applied by OCLC to protect Works distributed through the Platform.

2.4 "Effective Date" means, with respect to Company, the date on which Company accepts this Agreement by executing, or otherwise agreeing to, a Schedule that references or incorporates it.

2.5 "End Users" means individual patrons or members who are authorized by a Library to access and use Works made available through the Platform in accordance with that Library's terms of use.

2.6 "Library" or "Libraries" means public libraries and other eligible library/institution customers of OCLC.

2.7 "Marketing Materials" means promotional and advertising materials made available by Company for a Work, including artwork, book trailers, copy, and logos.

2.8 "Metadata" means descriptive, technical, and other information about a Work provided by Company (or created/translated by OCLC as permitted), including title, contributors, language, territory, identifiers, synopsis, ratings, genres, and availability dates.

2.9 "Platform" means OCLC's CloudLibrary offering and related OCLC services through which OCLC distributes Works to Libraries and End Users.

2.10 "Proceeds" means amounts payable by OCLC to Company under Schedule A, if any, net of adjustments expressly permitted in Schedule A (e.g., credits, refunds, chargebacks, taxes collected and remitted, and amounts attributable to fraud/abuse).

2.11 "Removal Notice" means Company's written notice requesting removal of a Work from further distribution as of a specified date in accordance with Section 6.4.

2.12 "Territory" means the geographic territory for distribution of a Work as specified in Schedule A.

2.13 "Work" means an item of content licensed under this Agreement as specified in Schedule A, and "Works" means all such items collectively.

Section 3. Appointment and Distribution

3.1 Appointment. Company appoints OCLC as a non-exclusive distributor to make the Works available to Libraries and End Users through the Platform during the Term and in the Territory, subject to the terms of this Agreement and the applicable Schedules. The specific distribution model(s) (e.g., institutional license, resale, pay-per-use lending) will be identified in the applicable Schedule.

3.2 Authorized Distributor Statement. During the Term, OCLC may identify itself as an authorized distributor of Company and the Works for library distribution.

3.3 No Exclusivity. Nothing in this Agreement restricts Company from distributing Works through other channels or distributors, or restricts OCLC from offering other content. The rights and obligations of the Parties are non-exclusive and each may engage in transactions with third parties, or undertake its own activities, whether or not similar to the transactions described herein or competitive with the business, products, or services of the other Party.

3.4 Right to Reject Content; No Assurances. OCLC will have the right, in its sole discretion, to select those Works it wishes to distribute to Libraries. OCLC may, at any time and in its sole discretion, refuse to distribute any Work or remove any Work from distribution. Company acknowledges and agrees that OCLC is not making any assurance, and Company has no assurance, that OCLC will distribute or sell any number of Works under this Agreement.

3.5 Content Transfers. Upon expiration or termination of any agreement between a Library and another Company-authorized distributor of Works, Company grants OCLC the right, at no additional cost to OCLC, to transfer to the Platform Works previously purchased or licensed by the Library from such other distributor, in each case for the benefit of the Library and subject to the Library's consent and applicable license terms.

Section 4. License Grant

4.1 Content License. Company grants OCLC and its Affiliates a worldwide, non-exclusive, royalty-free, sublicensable (to Affiliates, service providers, and contractors to the extent reasonably necessary for Platform operation, hosting, processing, distribution, and related services) license during the Term to:

1. ingest, host, store, cache, index, reproduce, transcode, format-shift, encrypt, package, and otherwise technically process the Works and Assets as necessary to operate the Platform;
2. distribute, transmit, and display the Works to Libraries and End Users via download, lending, and/or resale, including temporary download and offline access where supported by the Platform and permitted by the applicable distribution model;
3. use, reproduce, display, and distribute Metadata and Marketing Materials to market and promote the Works, Company, the Platform, and Library availability;
4. authorize Libraries and End Users to access and use the Works through the Platform for personal, non-commercial, educational, or research use consistent with library services and the Platform's functionality; and
5. use Company name and logos solely to identify Company and the Works in the Platform and related marketing, subject to any reasonable brand guidelines provided by Company.

4.2 Previews and Sampling. Unless otherwise specified in the applicable Schedule, OCLC may offer free previews of up to 10% of the content of each Work online and in downloadable format to enable End Users to view, search, and browse Works. Accordingly, Company grants OCLC the non-exclusive right to display portions of each Work so that an End User may: (a) download up to 10% of the content for preview or sampling purposes; (b) view a limited number of pages within a Work during any single session; and/or (c) use queries to locate, select, and display excerpts that include the search term(s) for each occurrence of the search term(s) in the Work. The preview percentage may be modified in the applicable Schedule.

4.3 Other Technical Rights. Company further grants OCLC those rights necessary to technically effectuate the rights granted under this Agreement, including the right to reproduce, reformat, and adapt Works solely to perform OCLC's obligations hereunder (such as reformatting or caching to enable display on e-reading devices and services).

Section 5. Company Responsibilities

5.1 Delivery of Assets and Metadata. Company will deliver Assets and Metadata in accordance with the technical specifications and delivery instructions reasonably provided by OCLC (the "Tech Specs"). Tech Specs may be updated by OCLC from time to time; OCLC will provide reasonable notice of material changes. Unless otherwise specified in the applicable Schedule, Company will deliver complete Assets and Metadata no later than sixty (60) days prior to the applicable start date for the Work. If delivered Assets do not materially conform to the Tech Specs, Company will promptly provide corrected or replacement Assets at Company's cost. Company will promptly deliver updates to Assets and Metadata as they become available. Company will promptly provide corrected or replacement Assets at no additional charge if Company becomes aware that previously delivered Assets are corrupted, incomplete, materially inaccurate, or otherwise unsuitable for distribution through the Platform.

5.2 Marketing Materials. Company will provide available Marketing Materials reasonably requested by OCLC for marketing and promotion of the Works on the Platform and to Libraries, at no cost or charge to OCLC. Company will also provide information regarding its advertising and promotional efforts regarding the Works.

5.3 Cooperation. Company will reasonably cooperate with OCLC to support ingestion, availability, troubleshooting, and takedown/removal processes.

Section 6. OCLC Obligations

6.1 Platform Distribution. OCLC will use commercially reasonable efforts to promote, market, and make Works available through the Platform consistent with this Agreement and the applicable Schedules, and to promote the distribution of Works it has selected to distribute in the Territory.

6.2 DRM and Content Protection. OCLC will apply its DRM Solution to protect Works distributed through the Platform. If Company has reason to believe that Works distributed by OCLC are being misappropriated, including through failure of the DRM Solution, Company will notify OCLC in writing and the Parties will cooperate in good faith to determine whether such misappropriation is in fact occurring through or as a result of OCLC's distribution and to agree on necessary actions to promptly resolve the issue.

6.3 Distribution Restrictions. For Works distributed under a lending or resale model, OCLC will impose the following user limitations on each Library: (a) at any given time, a Library may lend only as many digital copies of a Work as it has actually purchased or licensed from OCLC; (b) once a designated copy is checked out by an End User, that copy may not be accessed by other End Users until the end of that End User's check-out period or earlier return; and (c) OCLC will use commercially reasonable efforts employing its DRM Solution to prevent End Users from copying Work files to external storage media or transmitting them to other End Users.

6.4 Removal of Works. Company may request removal of a Work by providing OCLC with a Removal Notice at least fourteen (14) days in advance (or such shorter period as specified in the applicable Schedule, but no less than seven (7) days). OCLC will use commercially reasonable efforts to stop making the Work available for new access and to cease marketing within the requested timeframe. Company acknowledges that (i) technical propagation delays may occur, (ii) Libraries or End Users may retain limited temporary/offline access consistent with Platform functionality for a reasonable period, and (iii) OCLC will have the right during the remainder of the Term to continue to host and transmit copies of Works previously purchased by Libraries under this Agreement.

6.5 Reporting. OCLC will provide usage and/or sales reporting as specified in Schedule A or the applicable model-specific Schedule.

6.6 Custom Reports. If Company requests custom reporting beyond that provided in Section 6.5, OCLC will provide Company with an estimate of its fees for the requested custom report. If Company elects to proceed, the details (including scope, timing, and cost) will be mutually agreed in writing.

6.7 Data Security. OCLC will maintain an information security program with administrative, technical, and physical safeguards designed to protect non-public Assets and Company Confidential Information.

Section 7. Content Handling

7.1 Metadata Enhancements; Translation. OCLC may normalize, edit, enhance, and translate Metadata as reasonably necessary for Platform operations, discoverability, accessibility, and quality control, provided OCLC will not intentionally misrepresent the Work. OCLC may share enhanced/translated Metadata back to Company upon request.

7.2 No Modification of Substantive Content. OCLC will not intentionally modify the substantive editorial content of a Work. Technical processing (e.g., transcoding, resolution changes, compression, packaging, watermarking, encryption) is permitted.

7.3 Reservation of Rights. Except as expressly granted, all rights are reserved by the granting Party.

Section 8. Fees and Payment Terms; Reporting

8.1 Fees and Proceeds. Commercial terms (including pricing models, revenue share, payout formulas, discount structures, minimums, maximums, platform fees, and other financial terms) will be set forth in Schedule A or the applicable model-specific Schedule. Unless otherwise specified in the applicable Schedule, Company will provide a suggested digital list price for each Work in each Territory (the "DLP"). OCLC will have sole discretion to establish the price at which Works are offered, licensed, distributed, or sold through the Platform. Unless otherwise specified in the applicable Schedule, OCLC will pay Company an amount equal to fifty percent (50%) of the applicable DLP for each Work sold through the Platform.

8.2 Reports; Payment Timing. Unless otherwise specified in the applicable Schedule, OCLC will provide Company reports on a monthly basis within thirty (30) days after the end of each calendar month. Each report will include, as applicable, Work identifiers, usage and/or sales data, pricing information, applicable Proceeds, and the Territory in which the Work was distributed. If Proceeds are payable and Company has provided complete payment and tax information, OCLC will remit undisputed Proceeds within thirty (30) days after issuing the applicable report.

8.3 Custom Reports. If Company requests reporting beyond that provided in Section 8.2, OCLC will provide Company with an estimate of any fees associated with the requested report. If Company elects to proceed, the Parties will mutually agree in writing on the scope, timing, and cost of the report. Until such agreement is reached, neither Party will have any obligation with respect to the requested report.

8.4 Taxes. Payments are exclusive of taxes. Each Party will be responsible for all taxes imposed on it as a result of the transactions under this Agreement. OCLC may withhold taxes as required by law. Company will provide forms reasonably requested to support withholding treatment.

8.5 Disputes. Company must notify OCLC of any good-faith dispute regarding a report or payment within ninety (90) days after the report is issued, together with reasonable supporting detail. The Parties will work in good faith to resolve any such dispute. Amounts not disputed within such period will be final.

Section 9. Intellectual Property Rights

9.1 Ownership. As between the Parties, Company retains all right, title, and interest in and to the Works, Assets, Metadata provided by Company, and Company trademarks and logos. OCLC retains all right, title, and interest in and to the Platform, OCLC services, and OCLC technology. Except as this Agreement specifically provides, neither Party will acquire any right to use, or any title or interest in, the other Party's intellectual property rights.

9.2 Trademarks. Neither Party shall use the other Party's trademarks, service marks, or logos without the other Party's prior written consent, except as expressly permitted under this Agreement.

9.3 Attribution. Where OCLC data is displayed or made available to End Users, Company shall provide clear, prominent attribution to OCLC and WorldCat as specified in the applicable Schedule.

9.4 Usage Data. OCLC may collect and use data relating to the provision and use of OCLC services for service improvement, security, operations, analytics, research, and development.

9.5 Reservation of Rights. Each Party reserves all rights not expressly granted in this Agreement.

Section 10. 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 11. Term and Termination

11.1 Term. This Agreement shall begin on the Effective Date and continue until terminated as provided herein (the "Term").

11.2 Termination. This Agreement may be terminated as follows:

1. Either Party may terminate this Agreement for convenience upon ninety (90) days' prior written 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.

11.3 Effect of Termination. Upon termination or expiration of this Agreement:

1. all rights and licenses granted under the terminated scope will cease except to the extent necessary to (i) wind down distribution, (ii) complete reporting and payment, (iii) support temporary/offline access already granted and existing library checkouts for a reasonable period, and (iv) comply with legal obligations;
2. OCLC will have the right during a reasonable wind-down period to continue to host and transmit copies of Works previously purchased by Libraries under this Agreement; and
3. rights and obligations that by their nature should survive will survive.

Section 12. 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 13. Warranties

13.1 By Company. Company represents and warrants that: (a) Company has all necessary right, power, and authority to enter into this Agreement and perform its obligations hereunder; (b) Company will comply with all applicable laws, rules, regulations, and orders of any governmental authority having jurisdiction over Company's performance hereunder; (c) Company owns or controls all rights necessary to grant the licenses herein for the Territory and Term, free and clear of any encumbrances, and this Agreement does not violate or conflict with any other agreements or arrangements with any third party; (d) Company has obtained all rights and permissions to grant the licenses granted hereunder; (e) the Works, Assets, Metadata, and Marketing Materials (and OCLC's authorized use thereof) do not infringe or misappropriate any third-party rights (including intellectual property, privacy, and publicity rights) and are not defamatory, libelous, obscene, or otherwise illegal; (f) Company has obtained all necessary guild/union, music, talent, and third-party clearances and will pay any amounts due to third parties arising from Company's exploitation and licensing of the Works (except to the extent expressly assumed by OCLC in the applicable Schedule); and (g) Metadata provided by Company is accurate in all material respects.

13.2 By OCLC. OCLC represents and warrants that: (a) OCLC has full power and authority to enter into this Agreement and to perform its obligations hereunder; (b) OCLC will comply with all applicable laws, rules, regulations, and orders of any governmental authority having jurisdiction over OCLC's performance hereunder; (c) OCLC will operate the Platform and perform its obligations in a professional and workmanlike manner; and (d) OCLC will not train artificial intelligence models on the content provided by Company, or knowingly permit any third party to do so.

Section 14. Disclaimer

EXCEPT AS EXPRESSLY SET FORTH IN SECTION 13, OCLC PROVIDES THE PLATFORM AND DISTRIBUTION SERVICES "AS IS" AND DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

Section 15. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR (A) A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 16, (B) A PARTY'S BREACH OF SECTION 12 (CONFIDENTIAL INFORMATION), (C) FRAUD OR WILLFUL MISCONDUCT, OR (D) COMPANY'S BREACH OF ITS REPRESENTATIONS IN SECTION 13.1 (COLLECTIVELY, "EXCLUDED CLAIMS"), NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS OR LOST REVENUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR EXCLUDED CLAIMS, OCLC'S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL PROCEEDS PAID BY OCLC TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Section 16. Indemnification

16.1 Company Indemnification. Company will defend, indemnify, and hold harmless OCLC, its Affiliates, and their respective officers, directors, employees, and agents from and against third-party claims, judgments, damages, and expenses (including reasonable attorneys' fees) ("Claims") arising out of or relating to: (a) the Works, Assets, Metadata, or Marketing Materials; (b) Company's breach of this Agreement; or (c) allegations that OCLC's authorized use of the Works infringes or violates third-party rights.

16.2 OCLC Indemnification. OCLC will defend, indemnify, and hold harmless Company from Claims alleging that OCLC's Platform technology (excluding third-party components and excluding the Works/Assets/Metadata) infringes a U.S. copyright or trademark, and will pay damages finally awarded, provided Company promptly notifies OCLC and allows OCLC sole control of defense and settlement. OCLC has no obligation to the extent the Claim arises from Company materials, requirements, or instructions.

16.3 Procedures. The indemnified Party will promptly notify the indemnifying Party of a Claim (provided that any delay in notification will not relieve the indemnifying Party of its obligations, except to the extent that the delay impairs the indemnifying Party's ability to defend), will permit the indemnifying Party to control the defense and settlement, and will cooperate with the indemnifying Party at the indemnifying Party's expense. The indemnified Party will have the right, at its own expense, to participate in the defense with counsel of its choosing. The indemnifying Party may not settle a Claim admitting fault or imposing non-monetary obligations on the indemnified Party without consent (not unreasonably withheld).

16.4 Potential Infringement. Company will immediately notify OCLC if Company has reason to believe that an infringement claim is likely to occur with respect to any Work, Metadata, or Marketing Material.

Section 17. Miscellaneous

17.1 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.

17.2 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 thirty (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.

17.3 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.

17.4 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.

17.5 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.

17.6 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.

17.7 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 Schedule, or to such other address as a Party may designate by written notice given in accordance with this Section.

17.8 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.

17.9 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.

17.10 Entire Agreement. This Agreement, any applicable Schedules, 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 supersedes and replaces 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 Schedules entered into after the revised version's effective date. The version in effect on the effective date of a Schedule will govern that Schedule during its term unless the Parties expressly agree otherwise.