COOPERATIVE AGREEMENT
This COOPERATIVE AGREEMENT (the "Agreement") is entered into by and
between Google Inc., a Delaware corporation with offices at 1600
Amphitheatre Parkway, Mountain View, California 94043 (Google"),
and the Regents of the University of Michigan/University Library,
Ann Arbor Campus, with its principal offices at 818 Hatcher South,
Ann Arbor, MI 48109-1205 ("U of M"), and is effective on the date
of the execution of this Agreement (the "Effective Date"). Google
and U of M herein are sometimes referred to hereinafter
individually as a "Party" and collectively as the "Parties".
Background
1. U of M is a leading academic institution and has amassed an
enormous collection of works in various media.
2. Google is a leader in providing the public with access to
billions of web pages through a search engine that processes
requests in less than half a second, and responds to more than 150
million search queries per day.
3. Google and the U of M share a mutual interest in making
information available to the public. The Parties believe that
working collaboratively will create mutually beneficial knowledge
about standards and automated methods for organizing and indexing
digitized works and to refine standard requirements for
repositories of digital content.
4. Accordingly, the Parties desire to enter a nonexclusive
agreement whereby Google will digitize works from the U of M
collection to include them in Google's search services, and to make
them available to the University of Michigan for preservation,
archival or other purposes of its choosing (e.g., inclusion in
Michigan's search services).
Definitions
1. DEFINITIONS. Capitalized terms will have the meanings set
forth below unless defined elsewhere in the Agreement.
1.1 "Available Content" means the U of M print book and
journal Collection, but excludes Special Collections materials.
Available Content also includes U of M Digital Content in an amount
corresponding to the amount of digital content that Google provides
to U of M via the U of M Digital Copy.
1.2 "Brand Features" means trade names, trademarks,
service marks, logos, and other distinctive brand features, of
which Google's Brand Features include but are not limited to
Google, the Google logo, other marks that incorporate the word
"GOOGLE," PAGERANK, and of which U of M's brand features
include but are not limited to the University of Michigan name,
University of Michigan identification marks, and the University
Library name and logo.
1.3 "Digitize" means to convert content from a tangible,
analog form into a digital representation of that content.
1.4 "Distribution Price" means an amount equal to or
greater than a per-page amount multiplied by the number of
Digitized pages involved. The per-page amount shall be equal to the
amount charged by Google for distributing to the general public the
same Digitized pages ("Google Amount"). If there exists no Google
Amount for the same Digitized pages, the per-page amount shall be
the amount charged by Google for distributing to the general public
similar pages digitized pursuant to the same Project Plan ("Similar
Google Amount"). To the extent no Google Amount or Similar Google
Amount exists, the per-page amount shall be an amount mutually
agreed upon in good faith by Google and U of M.
1.5 "End User" means a person or entity that uses the
Services.
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1.6 "Enterprise Search Services" means the Search
Services provided by Google to companies for use by employees of
those companies and others.
1.7 "Google Digital Copy" means a digital copy retained
by Google of the Available Content that is Digitized by Google.
1.8 "Google Search Services" means the Search
Services provided by Google directly through the web sites located
at www.google.com and corresponding international and other
domains (e.g., www.google.de, www.google.info, etc).
1.9 "U of M Collection". means materials identified in
section 1.2 above.
1.10 "U of M Digital Copy" means a digital copy
transferred by Google to U of M of the Available Content that is
Digitized by Google.
1.11 "Partner Search Services" means the Search
Services provided by Google to an End User via a partner site that
has entered into an agreement with Google to provide some or all of
the Search Services through its own website.
1.12 "Pilot Project" means the onsite work at the
University of Michigan, beginning from the Effective Date of this
contract and ending on April 15, 2005.
1.13 "Project" means a project for Digitizing certain
Selected Content.
1.14 "Initial Term" means the first six years of the Project,
including the Pilot Project period.
1.15 "Project Form" means a form, pursuant to this
Agreement, that contains the details of a Project Plan, similar to
the sample attached as Exhibit A.
1.16 "Project Plan" means a plan for implementing a
Project. The Project Plan shall include the following: (1)
instructions by U of M regarding how the Selected Content is to be
collected and returned by Google; (2) if required, the amount of
time available to U of M for performing conservation efforts; (3)
the amount of time available to Google from receipt of the Selected
Content until it is due to be returned to U of M; and (4) a budget
for the Project.
1.17 "Requested Portion" means a portion of the U of M
Digital Copy requested by a third party.
1.18 "Search Services" means the search services
provided by Google to an End User pursuant to which the End User
can view, inter alia, content consisting of or derived from the
Google Digital Copy (subject to the restrictions set forth in this
Agreement) in response to search or browsing requests.
1.19 "Selected Content" means the portion of the
Available Content that Google desires to Digitize or incorporate
into the Services, both collectively and its component parts,
including any and all other works of authorship included
therein.
1.20 "Services" means collectively the Google Search
Services, the Partner Search Services, and the Enterprise Search
Services.
1.21 "U of M Digital Content" means content that U of M
already has in its possession in Digitized form, as of the
Effective Date.
1.22 "Website," 'World Wide Web," "the
Internet," and other technical terms in this Agreement and
project plans refers to the current common usage of such terms and
successor facilities of equal or greater capability.
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Terms
2. RESPONSIBILITIES
2.1 Identifying Content to be Digitized. The parties
shall cooperate to identify Available Content to be Digitized. Upon
agreeing to such Selected Content, the Parties shall cooperate in
good faith and with diligence to develop a timetable for completing
the Project Plan for the Selected Content. The Parties shall then
memorialize the Project Plan in a Project Form.
2.2 Collecting the Selected Content. Upon
commencement of a Project, U of M shall be responsible for
performing any conservation efforts that U of M determines are
required for the associated Selected Content. On a rolling basis,
as this conservation effort is completed, U of M shall provide the
conserved Selected Content to Google for Digitizing. If agreed upon
by the parties in a particular Project Plan, this collection
function may instead be assigned to Google.
2.3 Locating the Digitization Operation. For each
Project, U of M shall attempt in good faith to provide Google with
adequate physical space to Digitize the Selected Content. If U of M
is unable to provide such space, U of M shall cooperate with Google
to identify and obtain space that Google can use at reasonable
rates. The location of any such physical spaces shall be mutually
agreed upon by the parties.
2.3.1 Transporting and Storing the Selected Content.
On a Project-specific and material-specific basis, U of M may
authorize Google to remove some or all of the Selected Content from
U of M premises to perform digitization in facilities controlled by
Google. All risk of loss, damage, or destruction of the materials
will lie with Google from the time Google accepts possession of the
materials until such time as they are returned to U of M on U of M
premises. Google will carry reasonably sufficient insurance against
the risk of loss, damage or destruction of materials entrusted to
Google's custody. In general, for all materials, Google will
provide a transport method and temporary storage area that is
reasonably clean, dry, cool, free from insects and other pests,
protected from fire, and secure against theft and vandalism.
Because the value of the materials and the environmental conditions
necessary for transporting them and maintaining them in good
condition will vary based on the particular materials involved, U
of M will inform Google of the requirements for transport and
storage of particular materials on a Project-specific basis. For
insurance purposes, U of M (relying on guidelines from its Risk
Management office) will provide Google with a good faith estimate
of the value of any materials approved for removal from U of M
premises, and will provide Google with an itemized list of any such
materials.
2.3.2 On-Site (i.e., not transported) Conversion of
Selected Content. The terms in 2.3.1 regarding insurance,
accessibility to print materials for U of M users, and precautions
taken to ensure protection of the materials shall also apply to
materials digitized on-site in the Buhr storage facility.
2.4 Digitizing the Selected Content. Google will be
responsible for Digitizing the Selected Content. Subject to
handling constraints or procedures specified in the Project Plan,
Google shall at its sole discretion determine how best to Digitize
the Selected Content, so long as the resulting digital files meet
benchmarking guidelines agreed to by Google and U of M, and the U
of M Digital Copy can be provided to U of M in a format agreed to
by Google and U of M. U of M will engage in ongoing review (through
sampling) of the resulting digital files, and shall inform Google
of files that do not meet benchmarking guidelines or do not comply
with the agreed-upon format. Should U of M encounter a persistent
failure by Google to meet these guidelines or supply the
agreed-upon format, U of M may stop new work until this failure can
be rectified. Any restrictions on Google's discretion shall be
specified on a project-by-project basis via the corresponding
Project Form(s) or by amendment to this Agreement.
2.5 U of M Digital Copy. Google agrees to provide to
U of M a copy of all Digitized Selected Content that has been
"Successfully Processed" within thirty (30) days after the Selected
Content is Digitized, or in a timeframe mutually agreed by the
Parties. Digitized Selected Content is "Successfully Processed"
when Google determines it has satisfactorily gone through all
stages of Google's digitization, post processing and quality
assurance procedures (not to exceed thirty days for material
received by Google, unless otherwise agreed to by the parties).
Within thirty (30) days after the Selected Content is Digitized, or
in a timeframe mutually agreed by the Parties, Google shall provide
the U of M Digital Copy
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to the U of M. Unless otherwise agreed by the Parties in writing,
the U of M Digital Copy will consist of a set of image and OCR
files and associated information indicating at a minimum (1)
bibliographic information consisting of the title and author of
each Digitized work, (2) which image files correspond to that
Digitized work, and (3) the logical order of those image files.
Google shall provide the U of M Digital Copy via a network
connection, or in any other manner mutually agreed upon by the
Parties.
2.5.1 Google may delay transferring Digitized Selected Content to U
of M if it decides not to use that content due to a dispute with a
third-party. In this case, Google must inform U of M, in writing,
of the details of the dispute and the specific content to be
delayed. Google may delay transfer of this content until such time
as Google makes any use (including indexing) of that Digitized
content (or the same content acquired from another source, if that
Digitized content is in the public domain or out-of- print) beyond
storage in a dark archive.
2.5.2 Within 3 years of the time Google has transferred Digitized
Selected Content to U of M, if Google decides not to use that
content due to a dispute with a third-party, U of M will destroy
that content (so long as it is in print and protected by copyright)
from the U of M Digital Copy. In this case, Google must inform U of
M in writing of the details of the dispute and the specific content
to be destroyed. If, at any time, Google subsequently makes any use
(including indexing) of that Digitized content (or the same content
acquired from another source, if that Digitized content is in the
public domain or out-of- print) beyond storage in a dark archive,
Google will retransfer that Digitized Content to U of M.
2.6 Returning the Selected Content. Once completed
with the Digitizing process, Google will be responsible for
returning the Selected Content to the source from which Google
obtained it and in the like manner in which it was collected,
within three (3) weeks unless otherwise specified in the Project
Form or otherwise agreed upon by the parties. If Google reasonably
determines that it will require longer to Digitize some or all of
the Selected Content than the time frame set forth in the Project
Form, the Parties will discuss in good faith whether a time
extension is feasible. If the Parties agree upon an extension, they
shall record such agreement as an amendment to the Project Form. If
the Parties can not agree upon an extension, Google shall return
the Selected Content within the time frames set forth in the
Project Form.
2.7 Responsibility for damage to the Selected
Content. While certain Selected Content is within Google's
possession, Google shall make commercially reasonable efforts to
minimize damage to the Selected Content, including handling the
Selected Content in accordance with handling instructions set forth
in the Project Form, if any. If Google, due to its negligence,
damages certain Selected Content, Google shall, at its own cost,
have the damaged Selected Content restored to the condition in
which Google received it. Restoration of all materials must be
performed by or under the management of U of M Conservation
Services.
3. COSTS
3.1 Costs borne by U of M. U of M shall bear the
following costs: U of M employees (other than staff scanning
operators and staff employed to pull and return materials to the
shelves, including reshelving) whose participation is contemplated
by this Agreement (including all cost of U of M employees required
to provide Selected Content to Google as well as project management
costs incurred by U of M), network bandwidth and data storage
required by U of M to receive some or all of the U of M Digital
Copy or existing bandwidth available for use by Google to transfer
Digitized files from U of M facilities to Google's data centers and
U of M space that may be available to Google.
3.2 Costs borne by Google. Google shall bear the
following costs: Google employees or agents whose participation is
contemplated by this Agreement (including all cost of Google
employees required between receipt/collection of the Selected
Content from U of M and return of the Selected Content to U of M),
hardware and software required to Digitize the Selected Content,
space required to Digitize the Selected Content (to the extent not
provided by U of M), transportation of Selected Content from the U
of M facility in which the Selected Content is normally kept (if
required), and resolving copyright issues associated with Google's
use of the Google Digital Copy.
3.3 Budgets. Notwithstanding the foregoing, U of M
and Google may jointly develop a budget for each Project Plan,
pursuant to which the parties can allocate the cost of researching
and identifying the Selected Content, conducting conservation
assessments, performing conservation work, and
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performing any required copyright research and clearances. Any such
budget shall take precedence over the general obligations set forth
above in sections 3.1 and 3.2.
4. OWNERSHIP AND USE OF DIGITAL COPIES AND SERVICES
4.1 Copyright Law. Both Google and U of M agree and
intend to perform this Agreement pursuant to copyright law. If at
any time, either party becomes aware of copyright infringement
under this agreement, that party shall inform the other as quickly
as reasonably possible.
4.2 Copyright Status. As Selected Content is provided
by U of M to Google for Digitizing, U of M shall to the best of its
knowledge notify Google which portions of the Selected Content are
in the public domain and which portions may be subject to
copyright. Notwithstanding the foregoing, Google shall be
responsible for ensuring that Google's digitization and its use of
the Google Digital Copy is authorized by the relevant copyright
holders or by law. If either party reasonably determines that a
portion of the Selected Content that was previously thought to be
in the public domain is actually subject to copyright, that party
shall promptly notify the other party in a writing that
particularly identifies the portion(s) and provides an explanation
for why the portion(s) are believed to be subject to copyright.
4.3 Searching Free to the Public: Google agrees that
to the extent that it or its successors make Digitized Available
Content searchable via the Internet, it shall provide an interface
for both searching and a display of search results that shall have
no direct cost to end users. Violations of this subsection, 4.3,
not cured within thirty days of notification by U of M shall
terminate U of M's obligations under section 4.4.
4.4 Ownership and use of U of M Digital Copy. Neither
U of M nor Google shall have any ownership or license rights to the
Available Content that is Digitized (i.e., to the materials
underlying the digitization process), except where UM already has
such rights. As between Google and U of M and subject to the
provisions in this section 4, U of M shall own all rights, title,
and interest to the U of M Digital Copy.
4.4.1 Use of U of M Digital Copy on U of M Website. U
of M shall have the right to use the U of M Digital Copy, in whole
or in part at U of M's sole discretion, as part of services offered
on U of M's website. U of M shall implement technological measures
(e.g., through use of the robots.txt protocol) to restrict
automated access to any portion of the U of M Digital Copy or the
portions of the U of M website on which any portion of the U of M
Digital Copy is available. U of M shall also make reasonable
efforts (including but not limited to restrictions placed in Terms
of Use for the U of M website) to prevent third parties from (a)
downloading or otherwise obtaining any portion of the U of M
Digital Copy for commercial purposes, (b) redistributing any
portions of the U of M Digital Copy, or (c) automated and
systematic downloading from its website image files from the U of M
Digital Copy. U of M shall restrict access to the U of M Digital
Copy to those persons having a need to access such materials and
shall also cooperate in good faith with Google to mutually develop
methods and systems for ensuring that the substantial portions of
the U of M Digital Copy are not downloaded from the services
offered on U of M's website or otherwise disseminated to the public
at large.
4.4.2 Use of U of M Digital Copy in Cooperative
Web Services. Subject to the restrictions set forth in this
section, U of M shall have the right to use the U of M Digital
Copy, in whole or in part at U of M's sole discretion, as part of
services offered in cooperation with partner research libraries
such as the institutions in the Digital Library Federation. Before
making any such distribution, U of M shall enter into a written
agreement with the partner research library and shall provide a
copy of such agreement to Google, which agreement shall: (a)
contain limitations on the partner research library's use of the
materials that correspond to and are at least as restrictive as the
limitations placed on U of M's use of the U of M Digital Copy in
section 4.4.1; and (b) shall expressly name Google as a third party
beneficiary of that agreement, including the ability for Google to
enforce the restrictions against the partner research library.
4.5 Ownership and use of Google Digital Copy. Neither
U of M nor Google shall have any ownership or license rights to the
Available Content that is digitized (i.e., to the materials
underlying the digitization process), except where UM already owns
such rights. As between Google and U of M and subject to the
provisions in this section 4, Google shall own all rights, title,
and interest to the Google Digital Copy.
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4.5.1 Google use of Google Digital Copy. Subject to
the restrictions set forth in this section, Google may use the
Google Digital Copy, in whole or in part at Google's sole
discretion, as part of the Services. For portions of the Google
Digital Copy that correspond to works mutually identified as being
in the public domain or for which Google has obtained permission
from the relevant copyright owner(s), Google may among other things
index the full text and serve and display full-sized digital images
corresponding to those portions. For all other portions of the
Google Digital Copy, Google may index the full text but may not
serve or display the full-sized digital image unless Google has
appropriate legal authority to do so; Google instead may serve and
display (1) an excerpt that Google reasonably determines would
constitute fair use under copyright law and (2) bibliographic
(e.g., title, author, date, etc) and other non-copyrighted
information. If U of M discovers that digital images being served
and displayed full-size by Google are subject to copyright
restrictions, U of M shall notify Google in writing and Google
shall cease serving and displaying such images full-size.
Furthermore, to address situations where Google believed it had the
right to serve full-sized digital images but was incorrect in such
belief, Google shall implement processes (e.g., notice and
takedown) that facilitate the ability of copyright owners to
request removal of such digital images from the index.
4.5.2 Security and Privacy Regarding Google's Use of the
Google Digital Copy. Google shall implement technological
measures (e.g., through use of the robots.txt protocol) to restrict
automated access to any portion of the Google Digital Copy or the
portions of the Google website on which any portion of the Google
Digital Copy is available. In addition, Google shall maintain on
its website a privacy policy that governs collection and use of
information that Google obtains from a user of the Google Search
Services.
4.5.3 Distribution of Google Digital Copy. To the
extent portions of the Google Digital Copy are either in the public
domain or where Google has otherwise obtained authorization, Google
shall have the right, in its sole discretion, to make copies of
such portions of the Google Digital Copy and to provide, license,
or sell such copies to any party, subject to such copies being used
consistent with the copyright-related restrictions set forth in
section 4.5.1.
4.6 Ownership and Control of Services. As between the
parties, the Services and all content therein is, and at all times
will remain, the exclusive property of Google or its partners:
nothing in this Agreement implies any transfer to U of M of any
ownership interest in the Services. U of M acknowledges and agrees
that Google retains control of the Services, and that the design,
layout, content, functions and features of the Services are at
Google's discretion. Notwithstanding anything to the contrary in
this Agreement, Google is not required to make any or all of the
Google Digital Copy available through the Services.
4.7 No other rights. Except as set forth above,
nothing in this subsection shall be interpreted as a grant of right
from either party to the other party.
5. ACCESS. AUTHORIZATION. AND SUPPORT
5.1 Access. On a project-specific basis, Google shall
have the right to access Selected Content during U of M
business/staff hours (8:00am to 5:00pm, Monday through Friday)
without first being required to notify U of M. On a
project-specific basis, U of M may make reasonable efforts to
provide Google with access to Selected Content outside of U of M
business hours provided that Google notify U of M at least three
days in advance of its desire to access such materials.
5.2 Authorization. The U of M program manager
responsible for the Selected Content involved in any Project Plan
shall have authority to agree with Google on the time frames and
procedures (e.g., collection, conservation, handling) associated
with that Selected Content. If Google in good faith believes that
the time frames and procedures requested by the U of M program
manager are unreasonable, Google shall escalate the matter to the U
of M administrative contact; in which case Google, the U of M
program manager, and the administrative contact shall meet to
resolve the issue.
5.3 Support. U of M shall appoint one person to serve
as the administrative contact for Google, should administrative
questions or issues arise during the course of this Agreement. This
administrative contact shall be available during business hours at
a telephone number and e-mail address to be provided by U of M. U
of M shall also appoint one person to serve as the technical
contact for Google, for obtaining or regulating the use of the U of
M Digital Copy. This technical contact shall be available during
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regular U of M business hours (8:30 to 4:30, Monday through Friday)
at a telephone number and e-mail address to be provided by U of M.
Upon execution of this contract, both Google and U of M shall
identify these individuals in writing, and the resulting document
shall serve as an addendum to this contract.
6. CONFIDENTIALITY
6.1 Confidential Information. By virtue of this
Agreement, each Party may have access to information of the other
Party which is considered confidential and proprietary, including
the terms of this Agreement, Project Plan or Project Form, product
plans, customer lists, and proprietary technology or methods
("Confidential Information"), whether disclosed in tangible or
intangible form. Information disclosed in tangible form will be
considered Confidential Information if it is marked as
"Confidential" or a similar designation. Information disclosed in
intangible form will be considered Confidential Information if the
disclosing party clearly indicates that it is confidential at the
time of disclosure.
6.2 Obligations. Each Party shall exercise at least
the same degree of care to avoid the publication or dissemination
of the Confidential Information of the other Party as it affords to
its own confidential information of a similar nature which it
desires not to be published or disseminated. The receiving Party
shall not use Confidential Information of the disclosing Party
except in the furtherance of this Agreement or the performance of
its obligations hereunder. The obligation of the Parties not to
disclose Confidential Information survives expiration, termination
or cancellation of this Agreement.
6.3 Exceptions. Neither Party is obligated to protect
Confidential Information of the other Party that: (i) is rightfully
received by the receiving Party from another party without
restriction, or (ii) is known to or developed by the receiving
Party independently without use of, or reference to, the
Confidential Information, or (iii) is or becomes generally known to
the public by other than a breach of duty hereunder by the
receiving Party, (iv) has been or is hereafter furnished to others
by the disclosing Party without restriction on disclosure, or (v)
required to be disclosed by any governmental authority. Google
understands that U of M, as a public institution, is subject to the
Michigan Freedom of Information Act, and any disclosure of
Confidential Information required by that statute will not
constitute a breach of this agreement.
7. MARKETING
7.1 Press Releases or Announcements. Other than as
has been mutually agreed upon by the Parties, neither Party may
make any press announcements about the relationship or this
Agreement without the prior written approval of the other Party,
which will not be unreasonably withheld or delayed. U of M and
Google, as practicable, will coordinate regarding the timing of any
press release(s) and will mutually agree upon appropriate talking
points.
7.2 License to Marks. Each party will submit all
materials of any kind containing the other party's Brand Features
(other than its name in customer lists) to the other party for
approval prior to release to the public. Except as set forth in
this section, nothing in this Agreement shall be deemed to grant to
one party any right, title or interest in or to the other party's
Brand Features. All use by Google of U of M's Brand Features
(including any goodwill associated therewith) shall inure to the
benefit of U of M and all use by U of M of Google's Brand Features
(including any goodwill associated therewith) shall inure to the
benefit of Google. At no time during the Term shall one party
challenge or assist others to challenge the Brand Features of the
other party (except to the extent required to protect its own Brand
Features) or the registration thereof by the other party, nor shall
either party attempt to register any Brand Features or domain names
that are confusingly similar to those of the other party.
8. TERM AND TERMINATION
8.1 Term This Agreement is effective as of the
Effective Date and continues in full force and effect until April
30, 2009, unless earlier terminated as provided herein at the end
of the Pilot Project. Upon the expiration of the Initial Term, this
Agreement shall automatically renew for additional one year terms
(each a "Renewal Term") unless either Party notifies the other
Party to the contrary at least thirty (30) days before the end of
either the Pilot Project, the Initial Term or a Renewal Term. The
"Term" of this Agreement shall comprise the Initial Term and any
Renewal Terms.
8.2 Effect of Expiration or Termination. Within
thirty (30) days after expiration or termination of this Agreement
for any reason, each Party shall return to the other Party (or, at
that Party's request,
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destroy) any Confidential Information of that Party that is in its
possession. The following sections survive expiration or
termination of this Agreement: 1, 2.51, 2.5.2, 2.6, 2.7, 4.4 (so
long as Google or a successor continues to exist), 4.5, 4.7, 4.8,
6, 8.2, and 9-12.
9. WARRANTIES AND DISCLAIMER
9.1 Mutual Warranties. Each Party represents and
warrants to the other that (i) it has full right, power and
authority to enter into this Agreement and to perform all of its
obligation hereunder: (ii) this Agreement constitutes its valid and
binding obligation, enforceable against it in accordance with its
terms; and (iii) its execution, delivery and performance of this
Agreement will not result in a breach of any material agreement or
understanding to which it is a Party or by which it or any of its
material properties may be bound.
9.2 Disclaimer. THE WARRANTIES EXPLICITLY SET FORTH
ABOVE ARE THE ONLY WARRANTIES PROVIDED HEREIN AND ARE IN LIEU OF
ALL OTHER WARRANTIES BY THE PARTIES, EXPRESS OR IMPLIED, INCLUDING
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GOOGLE
SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING NON-INFRINGEMENT OF
THIRD PARTY INTELLECTUAL PROPERTY.
10. INDEMNIFICATION.
10.1 By Google. Google shall defend and indemnify the
U of M, its Regents, employees, and agents against any third party
claim based on an allegation that the U of M's (or its Regents',
employees', or agents') or Google's actions, pursuant to this
Agreement, violate that third party's copyrights or other legal
rights. The foregoing indemnification includes U of M's receipt of
the U of M Digital Copy, but excludes any third party claim that
relates to U of M's use or distribution of the U of M Digital Copy
or that arises from U of M's (or its Regents', employees' and
agents') negligence under this Agreement. Google shall select
counsel reasonably appropriate for such defense and shall pay for
all costs incurred by such counsel. In addition, Google shall pay
any damage awards or settlement costs that may be incurred. U of M
may participate in the defense with counsel of its own choice, at
its own expense.
10.2 By U of M. U of M shall defend and indemnify
Google, its employees and agents against any third party claim
based on an allegation that U of M's use or distribution of the U
of M Digital Copy violates third party copyrights or other legal
rights. U of M shall also defend and indemnify Google, its
employees and agents against any third party claim based on an
allegation that any third party's use or distribution of the U of M
Digital Copy violates third party copyrights or other legal rights.
U of M shall select counsel reasonably appropriate for such defense
and shall pay for all costs incurred by such counsel. In addition,
U of M shall pay any damage awards or settlement costs that may be
incurred. Google may participate in the defense with counsel of its
own choice, at its own expense.
10.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN
THIS SECTION 10, EACH PARTY EXPRESSLY DISCLAIMS ANY FURTHER
OBLIGATION TO INDEMNIFY, DEFEND OR HOLD HARMLESS THE OTHER PARTY
FROM ANY THIRD PARTY CLAIM OR ACTION. THE FOREGOING PROVISIONS OF
THIS SECTION 10 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF
INDEMNIFYING PARTY, AND THE EXCLUSIVE REMEDY OF INDEMNIFIED PARTY,
WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
11. LIMITATION OF LIABILITY
EXCEPT FOR DAMAGES ARISING FROM BREACH OF SECTION 6
(CONFIDENTIALITY) OR DAMAGES ARISING FROM BREACH OF SECTIONS 4.4 -
4.6 (AND ASSOCIATED SUBSECTIONS), IN NO EVENT WILL EITHER PARTY BE
LIABLE TO THE OTHER FOR LOST PROFITS OR ANY FORM OF INDIRECT.
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER FROM
ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS AGREEMENT,
WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
OR OTHERWISE, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT FOR DAMAGES ARISING FROM
BREACH OF SECTION 6 (CONFIDENTIALITY)
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OR DAMAGES ARISING FROM BREACH OF SECTIONS 4.4 - 4.6 (AND
ASSOCIATED SUBSECTIONS), EACH PARTY'S LIABILITY UNDER THIS
AGREEMENT SHALL BE LIMITED TO THE FEES EXPENDED BY THE OTHER PARTY
AS OF THE DATE OF SUCH CLAIM.
12. GENERAL PROVISIONS
12.1 No Obligation. Notwithstanding the foregoing,
Google shall have no obligation to Digitize any portion of the
Available Content nor to use any portion of the Google Digital Copy
as part of the Services. U of M shall not be obligated to
participate in any Project Plan to the extent U of M does not have
sufficient funds to perform its budgeted obligations under that
Project Plan. Furthermore, notwithstanding anything in this
Agreement to the contrary, in the event Google determines, at its
sole discretion, not to Digitize some or all Selected Content in
connection with one or more specific Projects, whether due to cost
issues, conservation concerns or otherwise, Google shall have no
obligation to the U of M with respect to digitizing or delivering
the U of M Digital Copy with respect to such Selected Content.
12.2 Assignment. Neither Party may assign this
Agreement without the other Party's prior written consent, which
consent shall not be unreasonably withheld. Any attempt to assign
this Agreement other than as permitted above will be null and void.
Subject to the foregoing, this Agreement is binding upon and shall
inure to the benefit of each of the Parties, and the successors and
permitted assigns of each.
12.3 Notices. Any notice required or permitted by
this Agreement will be deemed given if sent by facsimile or by
registered mail, postage prepaid, addressed to the other Party at
the address set forth at the top of this Agreement. Delivery will
be deemed effective upon transmission by facsimile (with receipt
acknowledgement) or three (3) days after deposit with postal
authorities. Unless otherwise specified by Google, notices directed
to Google shall be sent to Google Inc., Attn: General Counsel, 2400
Bayshore Pkwy, Mountain View, CA 94043, or via facsimile to Google
Inc., Attn: General Counsel, 650-618-1499. Unless otherwise
specified by U of M, notices directed to U of M shall be sent to
University Library, Attn: Associate University Librarian LIT,
University of Michigan, Ann Arbor, Ml 48109-1205.
12.4 Independent Contractors. The Parties to this
Agreement are independent Parties and nothing herein shall be
construed as creating an employment, agency, joint venture or
partnership relationship between the Parties. Neither Party shall
have any right, power or authority to enter into any agreement for
or on behalf of, or incur any obligation or liability, or to
otherwise bind, the other Party.
12.5 Severability. If any term or provision of this
Agreement is held to be invalid, illegal, or otherwise void against
public policy, such term or provision shall be stricken and shall
not affect the validity or enforceability of the remaining terms
and provisions of this Agreement.
12.6 Force Majeure. Performance by either party under
this Agreement shall be excused during the period such performance
is prevented or delayed by government restrictions, war or warlike
activity (e.g., acts of terrorism), insurrection or civil disorder,
labor disputes, or any other causes similarly or dissimilar to the
foregoing that are beyond the control of either party and are not
foreseeable at the time the Agreement (or relevant amendment) is
executed.
12.7 General. The Agreement shall be governed by
Federal law without giving effect to applicable conflict of laws
provisions. In the event of any dispute or litigation arising out
of or relating to this Agreement, each Party agrees that it shall
attempt to resolve such dispute in good faith. If such dispute
cannot be resolved within thirty days of being raised, the dispute
shall be elevated to the highest level at each Party. If the
dispute still cannot be resolved within an additional thirty days,
the aggrieved party may file a lawsuit in the state or federal
courts with jurisdiction to hear such suits in the State of
Michigan. This Agreement, including any Project Forms and attached
Exhibits, constitutes the entire understanding and agreement with
respect to its subject matter, and supersedes any and all prior or
contemporaneous representations, understandings and agreements
whether oral or written between the Parties relating to the subject
matter of this Agreement, all of which are merged in this
Agreement. For avoidance of doubt, as of the Effective Date, this
Agreement supersedes and replaces any other Cooperative Agreements
between the parties to the extent they exist. No modification of or
amendment to this Agreement, nor any waiver of any rights under
this Agreement, will be effective unless in writing signed by the
Party to be charged, and the waiver of any breach or default will
not constitute a waiver of any other right hereunder or any
subsequent breach or default. All amendments or modifications of
this
Page 10
Agreement shall be binding upon the Parties despite any lack of
consideration so long as such amendment or modifications are in
writing and executed by the Parties. If any provision of this
Agreement is found to be invalid or unenforceable pursuant to
judicial decree or decision, the remainder of this Agreement shall
remain valid and enforceable according to its terms. In such event,
the Parties agree to negotiate in good faith, a legal and
enforceable substitute provision which most nearly conforms to the
Parties' intention in entering into this Agreement. The section and
paragraph headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation
of this Agreement. This Agreement may be executed by exchange of
signature pages by facsimile and/or in any number of counterparts,
each of which shall be an original as against any Party whose
signature appears thereon and all of which together shall
constitute one and the same instrument.
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Accepted and Agreed:
Google Inc.
By:
(Authorized signature)
Name: David Drummond
Title: V.P., Corporate Development
On behalf of the Regents of the University of Michigan
By:
(Authorized signature)
Name: Timothy Slottow
Title: Executive Vice President and Chief Financial Officer
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EXHIBIT A
SAMPLE PROJECT FORM
Project Name:
Program Manager:
Estimated Start Date:
Estimated Completion Date:
Description of Works Involved:
Out-of-circulation Time:
Location of Works:
Conservation Requirements:
Collection Instructions:
Transportation Instructions:
Special Handling Instructions:
Infrastructure Requirements (e.g., space, power, scanner size and
quantity, environmental parameters, etc.):
Hours of Operation:
Known Copyright Restrictions:
Budget Allocations (if any):
Other comments: