AGREEMENT made as of this ________, 201_ by and between:
Verbundzentrale des GBV – ( Gemeinsamer Bibliotheksverbund)
with offices at
Platz der Göttinger Sieben 1
"Licensee", of the one part.
including its affiliates, hereinafter together referred to as "Licensor", of the other part,
a) Whereas, Licensor agrees to provide Content to Licensee, allowing Licensee access to pre-published or published information from the journals and books of Licensor and enabling Licensee to excerpt, abstract, index and extract Data as set forth hereunder;
b) Whereas, Licensee wishes to obtain specific rights in respect of Content, delivered by Licensor to Licensee in electronic files, as set forth hereunder.
Now, therefore, in consideration of the promises and agreements contained herein, the parties agree as follows:
ARTICLE 1 GRANT OF LICENCE
a1) "Authorised Users" as used in this Agreement, means employees of Licensee who are directly involved in the processing of Content solely for the purpose of creating the Product(s).
b) "Content" as used in this Agreement, means the Data from the journals or ebooks or other document types published by Licensor.
c) "Data" as used in this Agreement, means the index terms, bibliographic information, headers, digital object identifiers, footnotes, acknowledgements, keywords, author affiliation, and abstracts, or any other data when included, of Full Text Articles.
d) "Full Text Articles" as used in this Agreement, means a collection of individual scientific journal articles and other document types, such as book chapters, errata, editorials, and short communications.
e) “Index” as used in this Agreement, means the dataset maintained by search engine indexing
f) "License" as used in this Agreement, means a non-exclusive, non-transferable (except as expressly set forth herein), worldwide license.
g) "Product(s)" as used in this Agreement, means a back end (currently based on a) Solr index, The current product name for this index is K10plus-Zentral.
K10plus-Zentral content is used by various GBV and SWB member institutions and other scientific institutions without commercial interests for library resource discovery portals.
h) "PRODUCTNAME" as used in this Agreement, means ….
i) "Snippets" as used in this Agreement, means short contextually relevant query-dependent text or data which may include bibliographic metadata as well as a maximum of 120 words of query-dependent text from individual Full Text Articles.
j) "Term" as used in this Agreement, means the term as further set forth in Article 5.1 hereunder.
k) "Users" as used in this Agreement, means various GBV and SWB member institutions and other scientific institutions that use the backend service K10plus- Zentral.
GBV is the common library network of the seven German federal states Bremen, Hamburg, Mecklenburg-Western Pomerania, Lower Saxony, Saxony-Anhalt, Schleswig-Holstein, Thuringia and the Foundation of Prussian Cultural Heritage. A list of GBV member libraries with local library systems is available in annex G of the current VZG Annual Report (https://www.gbv.de/Verbundzentrale/Publikationen/06Publikationen_1544).
SWB is the library network of the German federal states Baden-Württemberg, Saarland, Saxony (https://www.bsz-bw.de/swbverbundsystem/index.html)
1.2 Grant and Undertaking
Subject to the terms and conditions set forth herein, Licensor grants to Licensee a License to do the following.
a) To load the Content on the secured servers of Licensee.
b) To assign index terms to and create Indexes based upon the Content. Such Indexes may include the Data but besides the Data no other parts of the Full Text Articles may be stored in the Indexes.
c) To manipulate and to adapt the Data in order to conform to the format(s) of Licensee.
d) To display Data in the user interface of the Product.
e) To include the Indexes created under subparagraph (1.2 b) in the Product(s) of Licensee.
For the avoidance of doubt, all acts of reproduction are permitted to the extent they are required in order to exercise the rights granted in this subparagraph 1.2. The rights granted in 1.2. a-e are granted to the Licensee in perpetuity.
In exercising its rights under the License granted above, Licensee shall have the following obligations:
f) To provide in the Product direct (DOI or URL) links to the article on PRODUCTNAME.
g) To remove from its index, upon Licensors request, links to illicit versions of Full Text Articles published by Licensor.
a) Except as expressly permitted under Article 1.2, Licensee shall not use, copy, reproduce, redistribute or make available to third parties any of the Content as provided by Licensor to Licensee.
a) Licensee acknowledges that Licensor owns all right, title and interest in the Content of Licensor.
b) Except for those rights specifically provided for in the License, Licensor retains all right, title and interest in and to the Content, and all other material and property provided by Licensor to Licensee.
ARTICLE 2 SUPPLY OF CONTENT
2.1 Licensor shall make available to Licensee, subject to the terms and conditions set forth herein, the Content in accordance with the publishing schedule of Licensor. The Content will be made available in XML format.
ARTICLE 3 FEES
3.1 Licensor agrees to provide the Content and the rights granted according to 1.2 to Licensee at no cost.
ARTICLE 4 REPRESENTATION, WARRANTIES, LIABILITIY
4.1. Licensor guarantees that the Content and all Intellectual Property Rights therein are owned by or licensed to the Licensor and that the Content used as contemplated in this Agreement does not infringe any Intellectual Property Rights of any natural or legal person.
4.2. Licensor agrees that the Licensee shall have no liability and the Licensor will indemnify, defend and hold the Licensee harmless against any and all damages, liabilities, claims, causes of action, legal fees and costs incurred by the Licensee in defending against any third party claim of Intellectual Property Rights infringements or threats of claims thereof with respect of the Licensee's use of the Content, provided that:
- The use of the content has been in full compliance with the terms and conditions of this Agreement;
- The Licensee provides the Licensor with prompt notice of any such claim or threat of claim;
- The Licensee co-operates fully with the Licensor in the defence or settlement of such claim; and
- The Licensor has sole and complete control over the defence or settlement of such claim.
4.3. Licensor reserves the right at any time to withdraw from the Content any material which it has reasonable grounds to believe infringes copyright or is defamatory, obscene, unlawful, or otherwise objectionable. Licensor shall give written notice to the Licensee of such withdrawal.
4.4. While the Licensor has no reason to believe that there are any inaccuracies or defects in the information contained in the Content, the Licensor makes no representation and gives no warranty, express or implied, with regard to the information contained in the Content including (without limitation) the fitness of such information or Part for any purposes whatsoever and the Licensor accepts no liability for loss suffered or incurred by the Licensee as a result of their reliance on the Content.
4.5. In no circumstances will the Licensor be liable to the Licensee for any loss resulting from a cause over which the Licensor does not have direct control, including but not limited to failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, unauthorised access, theft, or operator errors.
4.6. The Licensee shall notify the Licensor immediately, provide full particulars in the event that they become aware of any actual or threatened claims by any third party in connection with any part of the Content and do all things reasonably required to assist the Licensor in such claims. Upon such notification, or if the Licensor becomes aware of such a claim from other sources, the Licensor may remove such part from the Content as long as this claim persists. Failure to report knowledge of any actual or threatened claim by any third party shall be deemed a breach of this Agreement.
4.7. Save as provided for in § 4.2, neither the Licensee nor the Licensor shall be liable to the other in contract or negligence or otherwise for
- any special, indirect, incidental, punitive or consequential damages or
- loss of direct or indirect profits, business, contracts, revenue or anticipated savings or for any increased costs or expenses.
4.8. Save as provided for in § 4.2 the liability for damage from injury to life, body or health as well as the liability for damage caused intentionally or by gross negligence is unlimited. Apart from this neither party shall be liable to the other for slight or ordinary negligence, except in the event of negligence which leads to a breach of a contractual obligation, whose fulfillment is indispensable for the proper execution of the contract and on whose observance the contracting party may regularly rely (essential obligation). In case of slight or ordinary negligence which gives rise to a breach of a contractual obligation, however, the liability of all parties for breaching an essential obligation is limited to the damage which may be typically expected during the execution of this Agreement.
ARTICLE 5 TERM
5.1 This Agreement shall become effective as of the date of signature by both parties and, subject to earlier termination under Article 6, shall terminate on the first anniversary thereof, with an automatic renewal for subsequent one (1) year periods, except if either party to this Agreement gives notice in writing to the other party at least 90 (ninety) days prior to the expiration of the then current term.
ARTICLE 6 TERMINATION
6.1 Either party shall be entitled to terminate this Agreement for cause by giving notice in writing by registered mail to the other party, at the address first mentioned above, that the other party has failed to meet or is apparently unable or unwilling to meet one or more of the obligations of this Agreement. In such a case, the other party will have sixty (60) days to meet the stated obligation(s) and, if it does not do so, this Agreement will be terminated effective the last day of the sixty (60) day period, at the option of the non-infringing party.
6.2 After termination of this Agreement, Licensee will abstain from loading any new Content according to 1.2a . Licensee will preserve in perpetuity the Content received from Licensor during the term of this Agreement only for the purpose of recreating the dataset maintained by search engine indexing . For the avoidance of doubt, the Licensee shall not permit access to the Content to any other than Authorised Users. Indexes based upon the Content and created by the Licensee may be used by the Licensee in perpetuity irrespective of the termination of this Agreement. Licensor hereby acknowledges that any database rights created by the Licensee as a result of using the Content according to this Agreement shall be the property of the Licensee.
ARTICLE 7 ENTIRE AGREEMENT, AMENDMENT, NO ASSIGNMENT, WAIVER
7.1 This Agreement sets forth the entire understanding of the parties on the subject matter hereof, and supersedes all previous oral or written representations or agreements relating to the rights and duties provided for herein, and this Agreement may not be modified or amended except by written agreement of the parties. For clarity, nothing in this Agreement shall supersede, modify or otherwise affect any other agreement in effect between the parties or their affiliates, including, without limitation, other agreements for the provision or use of Data or Content, which Data or Content may also be subject to this Agreement.
7.2 This Agreement shall bind and inure to the benefit of Licensor, its successor and assigns.
7.3 All notices and other communications provided for in this Agreement (other than routine, in-the-course-of-business communications) shall be in writing and sent or delivered at the addresses set forth below or such other addresses as may be designated by either party in a written notice to the other party complying with the terms of this Article. All notices and communications will be effective, in the case of written notices, when delivered to the addressee.
Notices to Licensee shall be sent to:
Verbundzentrale des GBV (VZG)
Platz der Göttinger Sieben 1
D-37073 Göttingen, Germany
Notices to Licensor shall be sent to:
ARTICLE 8 GOVERNIN/G LAW AND JURISDICTION
8.1 Governing law
This Agreement shall be interpreted and construed according to and governed by the laws of the Federal Republic of Germany.
Exclusive place of jurisdiction for all disputes arising out of or in connection with this Agreement shall be the principal place of business of Licensee in Germany.
In witness whereof, the parties hereto have signed this Agreement
Verbundzentrale des GBV
Name: Reiner Diedrichs