Category Archives: Agreement UM 4.4.8(b)(i)

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, Agreement UM 4.4.8(b), Argreement UM, Library Agreement | Comments closed