Category Archives: Agreement UM 4.4.8

L UM 04.4.08

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Institutional Subscription Terms and Subsidy.

Also posted in Agreement UM 4, Agreement UM 4.4, Argreement UM, Library Agreement | Comments closed

L UM 04.4.08.1

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(a) Discount. For a period of twenty-five (25) years from the date the full Institutional Subscription (whether such product is offered alone or in combination with other Google products) is first offered to Higher Education Institutions, Google shall provide a version of the Institutional Subscription product that is limited to all of the Books and Inserts contained in the Institutional Subscription Database to U of M without charge, provided: (i) U of M has made and is continuing to make all works in the Available Content accessible (or would have made such works available for Digitization but did not do so due to their condition, size, binding tightness, or other physical characteristics) to Google at a reasonable rate (the “reasonableness” of the rate will take into account the number of works remaining in the Available Content that Google desires to Digitize, Google’s then-current ability to process such works and any operational issues or issues beyond the reasonable control of U of M that may result in variations in the rate or delays) unless Google is not then acting in good faith in the performance of any material obligation under this Agreement (provided, however, that such condition in clause (i) shall continue in the event Google begins to act in good faith in the performance of such obligation again); (ii) U of M is not then in an uncured material breach of this Agreement unless Google is not then acting in good faith in the performance of any material obligation under this Agreement (provided, however, that such condition in clause (ii) shall continue in the event Google begins to act in good faith in the performance of such obligation again); and (iii) U of M’s FTEs are less than 60,000. Following such twenty-five (25)-year period, or earlier if any condition in (i), (ii), or (iii) is not met, Google shall provide to U of M a yearly subsidy credited against the annual subscription price of a version of the Institutional Subscription product that is limited to all of the Books and Inserts contained in the Institutional Subscription Database (or, if such Institutional Subscription product is offered in combination with other Google products, the portion of the total annual subscription price attributable to the Institutional Subscription product that is limited to all of the Books and Inserts contained in the Institutional Subscription Database) up to the full annual subscription price of such version of the Institutional Subscription equal to the price of one FTE for every fifty (50) Library Works that (A) were Digitized by Google from the Available Content or provided by U of M to Google in Digitized form under this Agreement and (B) are included in the Institutional Subscription Database. In the event Google prices the annual subscription to such version of the Institutional Subscription other than on an FTE-basis, Google shall provide an equivalent subsidy to U of M credited against such annual subscription price. The percentage discount computed pursuant to this paragraph (a) is referred to herein as the “Applicable Discount;” for clarification, the Applicable Discount would be 100% during any period that the first sentence of this paragraph (a) applies and results in no charge to U of M. The subsidy for any Institutional Subscription term shall be calculated once per year on the date of commencement of the Institutional Subscription term and on each yearly anniversary thereof. If Google is offering a version of the full Institutional Subscription product that does not contain advertising to Higher Education Institutions, it shall make such version available to U of M pursuant to this paragraph.

Also posted in Agreement UM 4, Agreement UM 4.4, Agreement UM 4.4.8(a), Argreement UM, Library Agreement | Comments closed

L UM 04.4.08.2

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(b) Non-Settlement Works.

Also posted in Agreement UM 4, Agreement UM 4.4, Agreement UM 4.4.8(b), Argreement UM, Library Agreement | Comments closed

L UM 04.4.08.2.1

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(i) Discount. If Google offers a subscription product or service in the United States that allows Higher Education Institutions access to and viewing of the full text of individual in-copyright works not subject to the Settlement Agreement for such institutions’ users in the United States (whether such product is offered alone or in combination with the Institutional Subscription) (the “Non-Settlement Subscription”), and provided that either (a) Google has Digitized or received from U of M in Digitized form at least five (5) million works from the Available Content, or (b)(1) Google has Digitized or received from U of M in Digitized form at least 3 million works from the Available Content, (2) U of M has made and is continuing to make all works in the Available Content accessible (or would have made such works available for Digitization but did not do so due to their condition, size, binding tightness, or other physical characteristics) to Google at a reasonable rate (the “reasonableness” of the rate will take into account the number of works remaining in the Available Content that Google desires to Digitize, Google’s then-current ability to process such works and any operational issues or issues beyond the reasonable control of U of M that may result in variations in the rate or delays) unless Google is not then acting in good faith in the performance of any material obligation under this Agreement (provided, however, that such condition in clause (2) shall continue in the event Google begins to act in good faith in the performance of such obligation again), and (3) U of M is not then in an uncured material breach of this Agreement unless Google is not then acting in good faith in the performance of any material obligation under this Agreement (provided, however, that such condition in clause (3) shall continue in the event Google begins to act in good faith in the performance of such obligation again); then Google shall offer to U of M the right to subscribe to, at U of M’s option, (1) such Non-Settlement Subscription at an annual subscription price equal to the annual subscription price of such Non- Settlement Subscription (or, if the Non-Settlement Subscription is offered in combination with the Institutional Subscription, the portion of the total annual subscription price attributable to the Non-Settlement Subscription) less: the Applicable Discount computed under clause (a) above for the comparable period, times the annual subscription price of such Non-Settlement Subscription (or, if the Non-Settlement Subscription is offered in combination with the Institutional Subscription, the portion of the total annual subscription price attributable to the Non-Settlement Subscription), and times a percentage to be mutually agreed by Google and U of M that will be based upon the percentage value provided by the Non-Settlement Works relative to the entire content in the Non-Settlement Subscription and which percentage may not be greater than the percentage that the number of works in the Non-Settlement Subscription that are Non-Settlement Works represents of the total number of works in the Non-Settlement Subscription. (For purposes of the Section, a “Non-Settlement Work” shall mean an in-copyright work not subject to the Settlement Agreement that (i) is contained in the Available Content and (ii) either (A) is published on or before January 5, 2009 and was Digitized from the collection of any Participating Library (and such Digital Copy is used to provide access to such work within the Non-Settlement Subscription) or (B) is published after January 5, 2009 and was Digitized from the Available Content (and such Digital Copy is used to provide access to such work within the Non-Settlement Subscription)); or (2) access through such Non-Settlement Subscription solely to such portion of the works in such Non-Settlement Subscription that are works in the Available Content at an annual subscription price equal to the annual subscription price of such Non-Settlement Subscription (or, if the Non-Settlement Subscription is offered in combination with the Institutional Subscription, the portion of the total annual subscription price attributable to the Non-Settlement Subscription), times a percentage to be mutually agreed by Google and U of M that will be based upon the percentage value provided by the Non-Settlement Works relative to the entire content in the Non-Settlement Subscription and which percentage may not be greater than the percentage that the number of works in the Non-Settlement Subscription that are Non-Settlement Works represents of the total number of works in the Non-Settlement Subscription, and times: 100% minus the Applicable Discount computed under clause (a) above for the comparable period. If Google is offering a version of the full Non-Settlement Subscription that does not contain advertising to Higher Education Institutions, it shall make such version available to U of M pursuant to this paragraph.

Also posted in Agreement UM 4, Agreement UM 4.4, Agreement UM 4.4.8(b), Agreement UM 4.4.8(b)(i), Argreement UM, Library Agreement | Comments closed

L UM 04.4.08.2.2

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(ii) Institutional Purchase. If Google offers a product or service that allows Higher Education Institutions to purchase for a fee Online access to and viewing of the full text of individual in-copyright works not subject to the Settlement Agreement for such institutions’ users in the United States (“Institutional Purchase”), for as long as Google is using a Digital Copy of any such work Digitized by Google from the Available Content or provided by U of M to Google in Digitized form to provide such Online access to such work within such Institutional Purchase and such work is not contained in the Non-Settlement Subscription, Google will provide U of M a yearly subsidy equal to the price of access to that work in the Institutional Purchase.

Also posted in Agreement UM 4, Agreement UM 4.4, Agreement UM 4.4.8(b), Agreement UM 4.4.8(b)(ii), Argreement UM, Library Agreement | Comments closed

L UM 04.4.08.2.3

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(iii) Foreign Uses. If Google, (A) to the extent authorized by the holder of relevant rights in a particular in-copyright work, includes such work in the Non-Settlement Subscription or uses such work in any other manner in which Protected content is displayed that generates any revenue to Google (other than any use in which such Protected content is provided to users free of charge), in either case in one or more countries other than the United States, and such holder has rights to authorize such uses both within the United States and in such other countries, and (B) such work set forth in (A) is a Non-Settlement Work, then Google will permit U of M, if a subscriber to the Non-Settlement Subscription (or the portion thereof comprising works in the Available Content) as provided in paragraph (i) and/or Institutional Purchase as provided in paragraph (ii), above, to have access to such work through the Non-Settlement Subscription and/or Institutional Purchase (as the case may be) for its users in such other countries (in addition to access for its United States users as contemplated by paragraphs (i) and (ii), above).

Also posted in Agreement UM 4, Agreement UM 4.4, Agreement UM 4.4.8(b), Agreement UM 4.4.8(b)(iii), Argreement UM, Library Agreement | Comments closed

L UM 04.4.08.3

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(c) Limited Subscription in Lieu of Discount. If at any time following the date Google or its licensee first makes the Institutional Subscription generally available to Higher Education Institutions, U of M chooses to forego the discount for the Institutional Subscription set forth in Paragraph (a) of this Section, then, for as long as Google or its licensee makes the Institutional Subscription generally available to Higher Education Institutions, Google will offer to U of M a limited subscription service allowing access to only those Books and Inserts contained in the Institutional Subscription Database for which Google or its licensee is using any portion of a Library Scan Digitized by Google from the Selected Content (or provided by U of M to Google) to make such Book or Insert available in the Institutional Subscription (the “Limited Subscription”). Google will offer the Limited Subscription to U of M without charge under terms materially similar to those under which it offers the Institutional Subscription to Higher Education Institutions.

Also posted in Agreement UM 4, Agreement UM 4.4, Agreement UM 4.4.8(c), Argreement UM, Library Agreement | Comments closed

L UM 04.4.08.4

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(d) Rightsholder Authorization. If, pursuant to authorization from a Rightsholder, Google or its licensee offers to users access to any portion of a Library Scan (other than where access is provided to users free of charge) of which U of M is the source prior to the Effective Date and the Book underlying such Library Scan is not Commercially Available, Google will require the applicable Rightsholder to authorize Google to provide U of M with access to such Library Scan without charge until the date Google makes the Institutional Subscription for Higher Education Institutions, or a beta product thereof, containing the Book on which such Library Scan is based available to U of M. Google shall provide U of M such access to such Library Scan pursuant to this paragraph and shall allow at least the uses and shall be subject to the restrictions set forth in Sections 4.1(d) through (f) of the Settlement Agreement.

Also posted in Agreement UM 4, Agreement UM 4.4, Agreement UM 4.4.8(d), Argreement UM, Library Agreement | Comments closed

L UM 04.4.08.5

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(e) Beta Product. Within six (6) months following the date Google or its licensee makes available a Consumer Purchase model or any other revenue model pursuant to the Settlement Agreement that allows access to any portion of any Library Scan of which U of M is the source (other than any model that allows access free of charge to the Book upon which such Library Scan is based), Google shall offer to U of M an Institutional Subscription beta product as authorized pursuant to Section 4.1(g) of the Settlement Agreement.

Also posted in Agreement UM 4, Agreement UM 4.4, Agreement UM 4.4.8(e), Argreement UM, Library Agreement | Comments closed

L UM 04.4.08.6

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(f) No Use If No Extension. In the event that:

Also posted in Agreement UM 4, Agreement UM 4.4, Agreement UM 4.4.8(f), Argreement UM, Library Agreement | Comments closed

L UM 04.4.08.6.1

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(1) Google does not make the Institutional Subscription offered to Higher Education Institutions generally available and in compliance with Section 7.2(e)(i)(2) of the Settlement Agreement within two (2) years following the date Google first made the Institutional Subscription beta product set forth in Section 4.1(g) of the Settlement Agreement available to any Fully Participating Library or Cooperating Library; and

Also posted in Agreement UM 4, Agreement UM 4.4, Agreement UM 4.4.8(f), Agreement UM 4.4.8(f)(1), Argreement UM, Library Agreement | Comments closed

L UM 04.4.08.6.2

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(2) (i) Google requests that the Registry extend the time of Google’s authorization to support an Institutional Subscription beta product for U of M pursuant to Section 4.1(g) of the Settlement Agreement, and the Registry does not grant such extension request; or (ii) Google makes no such extension request; then Google shall not use (or authorize any third party to use) any portion of a Library Scan of which U of M is a source as part of a Consumer Purchase or any other revenue model pursuant to the Settlement Agreement (other than any model that allows access free of charge to the Book upon which such Library Scan is based) if such Book is not Commercially Available (A) from the date two years following the date Google first made the Institutional Subscription beta product available to any Fully Participating Library or Cooperating Library, (B) until the earlier of (x) the date Google first makes the Institutional Subscription offered to Higher Education Institutions generally available and (y) the date the Registry grants any extension request from Google set forth in paragraph (2) and Google resumes providing the Institutional Subscription beta product, provided that Google will not thereafter cease to provide the Institutional Subscription beta product to U of M until such time as Google first makes the Institutional Subscription offered to Higher Education Institutions generally available.

Also posted in Agreement UM 4, Agreement UM 4.4, Agreement UM 4.4.8(f), Agreement UM 4.4.8(f)(2), Argreement UM, Library Agreement | Comments closed