Category Archives: Attachment B2

SB2

Comments are closed.

FORM OF LIBRARY-REGISTRY (COOPERATING) AGREEMENT

Also posted in Definitions | Comments closed

SB2 0

Comments are closed.

This LIBRARY-REGISTRY (COOPERATING) AGREEMENT (with all of the exhibits hereto, the “Library Agreement”) is entered into by and between ______________, a ___________ with its principal offices at _____________________ (the “Registry”), on behalf of itself and all Rightsholders, and _____________________, with its principal offices at ____________________________________ (“Library”), is entered into as of _________________ and is effective on the later of such date or the Effective Date of the Settlement Agreement (the “Library Agreement Effective Date”). The Registry and Library are sometimes referred to hereinafter individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, pursuant to a Settlement Agreement between Google and Plaintiffs dated as of October 28, 2008, the Registry has been established as a clearinghouse for the administration of the rights of Rightsholders under the Settlement Agreement; and

WHEREAS, all of the Rightsholders, through the Settlement embodied in the Settlement Agreement, are deemed to have authorized the Registry to enter into this Library Agreement on their behalf; and

WHEREAS, Library desires to become a Cooperating Library under the Settlement Agreement.

NOW, THEREFORE, in consideration of the covenants and agreements set forth in this Library Agreement, Registry and Library hereby agree as follows:

Also posted in Section B2.0, Settlement | Comments closed

SB2 1

Comments are closed.

Definitions. Capitalized terms have the meanings ascribed to them Exhibit A (Settlement Agreement Definitions).

Also posted in Section B2.1, Settlement | Comments closed

SB2 2

Comments are closed.

Settlement Agreement Terms.

Also posted in Section B2.2, Settlement | Comments closed

SB2 2.1

Comments are closed.

(a) Authorizations of Library. As of the Effective Date, the Registry authorizes Library to engage in the activities, and only the activities, set forth in this Library Agreement, and only in accordance with such terms and conditions as are applicable to those activities.

Also posted in Section B2.2, Section B2.2(a), Settlement | Comments closed

SB2 2.2

Comments are closed.

(b) Non-Exclusive Digitization Rights. As of the Effective Date, in the United States, Library may provide Books and Inserts to Google in hard copy (including microform) format to be Digitized (or in a form Digitized by or for Library).

Also posted in Section B2.2, Section B2.2(b), Settlement | Comments closed

SB2 2.3

Comments are closed.

(c) No Digital Copies Returned. Library has a Digitization Agreement with Google and provides Books subject to the Settlement Agreement to Google for Digitization but agrees that Google will not provide to Library any Digital Copies of Books subject to the Settlement Agreement, unless authorized by the Rightsholder.

Also posted in Section B2.2, Section B2.2(c), Settlement | Comments closed

SB2 2.4

Comments are closed.

(d) Obligation to Delete. As of the Library Agreement Effective Date, Library hereby certifies that it has deleted or permanently rendered unusable any Digital Copies of Books provided by Google to Library prior to the Library Agreement Effective Date. If, after the Library Agreement Effective Date, Library discovers any such Digital Copies of Books or Google provides any Digital Copies of Books to Library, Library will delete or permanently render such Digital Copies unusable promptly upon discovery or receipt.

Also posted in Section B2.2, Section B2.2(d), Settlement | Comments closed

SB2 2.5

Comments are closed.

(e) Use of Research Corpus. The Registry, on behalf of itself and all Rightsholders, and Library agree to the terms and conditions set forth in Exhibit B (Research Corpus).

Also posted in Section B2.2, Section B2.2(e), Settlement | Comments closed

SB2 2.6

Comments are closed.

(f) Fully Participating Libraries’ and Cooperating Libraries’ Exercise of Collective Rights. In each case in which the Fully Participating Libraries and the Cooperating Libraries have the right as a group to exercise or waive a right or grant or withhold consent under certain sections of the Settlement Agreement, as set forth in Exhibit C (Exercise of Collective Rights), Library agrees to the terms of such Exhibit C (Exercise of Collective Rights) and to the terms of Attachment 1 (Selection of Designated Representative and Security Representatives and Establishment of Governance Rules) thereto.

Also posted in Section B2.2, Section B2.2(f), Settlement | Comments closed

SB2 3

Comments are closed.

Digital Copy of Excluded Books. In the event that Google excludes a Book from one or more Display Uses for editorial reasons, and provides to the Registry a Digital Copy of such Book pursuant to Section 3.7(e)(i) (Digital Copy of Excluded Books) of the Settlement Agreement, then the Registry may, subject to Section 3.5 (Right to Remove and Exclude) of the Settlement Agreement, engage, with the consent (not to be unreasonably withheld) of the Fully Participating Library or the Cooperating Library from which the Library Scan of such Book was made (including, if Google constructed a Digital Copy of a Book pursuant to Section 7.2(a)(i) (Fully Participating Library Collections) of the Settlement Agreement from one or more physical Books, all such libraries that were the source of such physical Books), a Third-Party Required Library Services Provider that, once engaged, may make available to users a Digital Copy of that Book for uses comparable to Display Uses and Non-Display Uses; provided that, if a Book is not then Commercially Available and the Third-Party Required Library Services Provider makes available the Book for a fee, then the Third-Party Required Library Services Provider must also offer the Required Library Services (Section 7.2(e) (Required Library Services Requirement) of the Settlement Agreement) for the Book to the extent required by such Fully Participating Library or Cooperating Library. Such Third-Party Required Library Services Provider is, in connection with any Claim arising out of its making available such Digital Copy of the Book, deemed to be a successor of Google for purposes of Section 10.1(g) (Google Releasees) of the Settlement Agreement.

Also posted in Section B2.3, Settlement | Comments closed

SB2 4

Comments are closed.

Term And Termination.

Also posted in Section B2.4, Settlement | Comments closed

SB2 4.1

Comments are closed.

(a) Effective Date. This Library Agreement, if not terminated pursuant to any provision hereof, shall become effective on the Library Agreement Effective Date.

Also posted in Section B2.4, Section B2.4(a), Settlement | Comments closed

SB2 4.2

Comments are closed.

(b) Term. This Library Agreement shall continue in full force and effect until the last to expire of the U.S. copyright in each Book and Insert, unless otherwise terminated at an earlier date pursuant to Section 4(c) (Termination if Settlement Agreement Not Final) or Section 4(d) (Termination by Library).

Also posted in Section B2.4, Section B2.4(b), Settlement | Comments closed

SB2 4.3

Comments are closed.

(c) Termination if Settlement Agreement Not Final. In the event that the Registry and Library agree that the Effective Date will never occur, this Library Agreement shall be null and void.

Also posted in Section B2.4, Section B2.4(c), Settlement | Comments closed

SB2 4.4

Comments are closed.

(d) Termination by Library. Library may terminate this Library Agreement at any time for any reason or for no reason, upon thirty (30) days’ notice to the Registry.

Also posted in Section B2.4, Section B2.4(d), Settlement | Comments closed

SB2 5

Comments are closed.

Representations, Disclaimer And Limitation Of Liability.

Also posted in Section B2.5, Settlement | Comments closed

SB2 5.1

Comments are closed.

(a) Mutual Warranties. Each Party represents and warrants to the other that (i) it has full power and authority to enter into this Library Agreement and to perform its obligations hereunder; and (ii) this Library Agreement constitutes its valid and binding obligation, enforceable against it in accordance with its terms.

Also posted in Section B2.5, Section B2.5(a), Settlement | Comments closed

SB2 5.2

Comments are closed.

(b) 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, with respect to the subject matter of this Library Agreement.

Also posted in Section B2.5, Section B2.5(b), Settlement | Comments closed

SB2 5.3

Comments are closed.

(c) Limitation of Liability. In no event will Library or the Registry be liable for lost profits or any form of indirect, special, incidental, consequential or punitive damages of any character from any claims arising out of this Library Agreement, whether based on breach of contract, tort (including negligence), or otherwise, and whether or not such Party has been advised of the possibility of such damage.

Also posted in Section B2.5, Section B2.5(c), Settlement | Comments closed

SB2 6

Comments are closed.

Releases.

Also posted in Section B2.6, Settlement | Comments closed

SB2 6.1

Comments are closed.

(a) Use of Digital Copies by Library. Pursuant to Section 10.2(a) (Release of Google Releasees, Fully Participating Library Releasees, Cooperating Library Releasees, Public Domain Releasees and Other Library Releasees) of the Settlement Agreement, as of the Effective Date, Library is released by Rightsholder Releasors from the Cooperating Library Released Claims. Such section is set forth in Exhibit D (Cooperating Library Releases).

Also posted in Section B2.6, Section B2.6(a), Settlement | Comments closed

SB2 6.2

Comments are closed.

(b) Library Releases of Rightsholders. Without further action by anyone, as of the Effective Date, Library, for good and sufficient consideration, the receipt and adequacy of which are hereby acknowledged, shall be deemed to have fully, finally and forever released, relinquished, settled, and discharged, each Rightsholder Releasor and Class Counsel, from any and all Claims that directly or indirectly relate to, are based upon or arise out of, the commencement, prosecution or settlement of the Action, or the negotiation or execution of this Library Agreement.

Also posted in Section B2.6, Section B2.6(b), Settlement | Comments closed

SB2 7

Comments are closed.

Third-Party Beneficiary.

Also posted in Section B2.7, Settlement | Comments closed

SB2 7.1

Comments are closed.

(a) Library. The Registry, on behalf of Rightsholders, acknowledges and agrees that Library is a third-party beneficiary of certain provisions of the Settlement Agreement, as set forth in and according to the terms of Exhibit E (Third-Party Beneficiary).

Also posted in Section B2.7, Section B2.7(a), Settlement | Comments closed

SB2 7.2

Comments are closed.

(b) Rightsholders. Library acknowledges and agrees that each Rightsholder is a third-party beneficiary of this Library Agreement, entitled to enforce it in accordance with Section 8.3 (Breaches – General Principles) of the Settlement Agreement as if such Rightsholder were a party hereto.

Also posted in Section B2.7, Section B2.7(b), Settlement | Comments closed

SB2 8

Comments are closed.

Dispute Resolution. Library hereby agrees that all disputes arising under this Library Agreement shall be subject to Exhibit F (Dispute Resolution). Except as provided in Exhibit F (Dispute Resolution), any claims, disputes or actions arising under or to enforce this Library Agreement shall be commenced and maintained only in the U.S. District Court for the Southern District of New York and all actions regarding the interpretation, implementation and enforcement of this Library Agreement shall be brought exclusively in such Court, with the Registry and Library submitting to the personal jurisdiction thereof, unless venue in the state in which Library is located is required by the law of such state.

Also posted in Section B2.8, Settlement | Comments closed

SB2 9

Comments are closed.

Miscellaneous Provisions.

Also posted in Section B2.9, Settlement | Comments closed

SB2 9.01

Comments are closed.

(a) Notices. Unless provided for to the contrary in this Library Agreement, any and all notices or other communications or deliveries required or permitted to be made under this Library Agreement shall be in writing and sent to the Parties at their addresses identified above (or as otherwise provided by notice given pursuant to this Section 9(a) (Notices)). Notice shall be deemed received (i) upon receipt when delivered personally, (ii) upon written verification of receipt from overnight courier, (iii) upon verification of receipt of registered or certified mail or (iv) upon verification of receipt via facsimile or electronic mail, provided that such notice is also sent simultaneously via first class mail. Contact information shall be updated in writing as necessary to ensure that each Party has current information regarding all such contacts.

Also posted in Section B2.9, Section B2.9(a), Settlement | Comments closed

SB2 9.02

Comments are closed.

(b) Governing Law. This Library Agreement shall be governed by and construed in accordance with the law of the State of _______________, without reference to principles of conflicts of laws. [Governing law to be specified in each Library-Registry Agreement. Governing law will be New York or the state in which Library is located if required by the law of such state.]

Also posted in Section B2.9, Section B2.9(b), Settlement | Comments closed

SB2 9.03

Comments are closed.

(c) Entire Agreement. This Library Agreement, including exhibits, sets forth the entire agreement between the Registry and Library with respect to its subject matter.

Also posted in Section B2.9, Section B2.9(c), Settlement | Comments closed

SB2 9.04

Comments are closed.

(d) Amendment. This Library Agreement may be amended by a written agreement signed by both Parties, only if such amendment does not impair the rights of Rightsholders under this Library Agreement.

Also posted in Section B2.9, Section B2.9(d), Settlement | Comments closed

SB2 9.05

Comments are closed.

(e) Assignment. Neither Party may assign any of its rights or delegate any of its duties under this Library Agreement without the prior written consent of the other Party, which shall not unreasonably be withheld or delayed. Any attempted assignment, delegation or transfer in derogation hereof shall be null and void. This Library Agreement shall be binding upon the successors and permitted assigns of both Parties.

Also posted in Section B2.9, Section B2.9(e), Settlement | Comments closed

SB2 9.06

Comments are closed.

(f) Severability. If any provision of this Library Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Library Agreement shall otherwise remain in full force and effect and remain enforceable between the Parties.

Also posted in Section B2.9, Section B2.9(f), Settlement | Comments closed

SB2 9.07

Comments are closed.

(g) No Waiver. The failure of either Party to act in the event of a breach of this Library Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.

Also posted in Section B2.9, Section B2.9(g), Settlement | Comments closed

SB2 9.08

Comments are closed.

(h) Interpretation. The interpretive provisions of Section 17.32 (Interpretation) of the Settlement Agreement apply to this Library Agreement.

Also posted in Section B2.9, Section B2.9(h), Settlement | Comments closed

SB2 9.09

Comments are closed.

(i) Compliance with Law. Notwithstanding any other provision of this Library Agreement, nothing in this Library Agreement requires Library or the Registry to take any action that would violate any applicable law and neither of them shall be held to have breached this Library Agreement by omitting to take any action that, if taken, would violate any applicable law.

Also posted in Section B2.9, Section B2.9(i), Settlement | Comments closed

SB2 9.10

Comments are closed.

(j) Counterparts. This Library Agreement may be signed in counterparts, each of which shall constitute a duplicate original. Execution by facsimile shall be fully and legally binding on a Party.

Also posted in Section B2.9, Section B2.9(j), Settlement | Comments closed

SB2 E

Comments are closed.

[The Exhibits of each Library-Registry (Cooperating ) Agreement will attach, or incorporate by reference, the following sections from the Settlement Agreement.]

Exhibit A: Settlement Agreement Definitions [Relevant definitions from the Settlement Agreement]

Exhibit B: Research Corpus [Section 7.2(d) (Research Corpus)]

Exhibit C: Exercise of Collective Rights [Section 7.4 (Fully Participating Libraries’ and Cooperating Libraries’ Exercise of Collective Rights) and Attachment 1 hereto]

Exhibit D: Cooperating Library Releases [Cooperating Library releases from Section 10.2 (Releases) and the related definitions from 10.1 (Definitions)]

Exhibit E: Third-Party Beneficiary [Section 7.2(f)(ii) and the sections to which it refers]

Exhibit F: Dispute Resolution [Article IX (Dispute Resolution)]

Also posted in Section B2.E, Settlement | Comments closed