Category Archives: Agreement UM Attachment

L UM 10.1.1

Comments are closed.

(a) General Indemnification. Google shall defend, indemnify, and hold harmless U of M, its affiliates, its and their Regents, trustees, officers, faculty, employees, students, and agents (each, a “U of M Indemnitee”) (provided, that Google shall not hold harmless a U of M Indemnitee for claims for which Google is not obligated to indemnify such U of M Indemnitee) against any third party claim (including without limitation any claim by a governmental entity) brought against any of them or against Google (or any of its directors, officers, employees, or agents) to the extent such claim is based on: (1) except as set forth herein, an allegation that any action of any U of M Indemnitee or any action of Google (or any of its officers, directors, employees, or agents) pursuant to this Agreement (including without limitation U of M’s provision of a work to Google for Digitization or U of M’s receipt of the U of M Digital Copy or any portion thereof), violates that third party’s copyrights or other legal rights; (2) except as set forth herein, any action taken by Google, any U of M Indemnitee, or any third party in connection with the act of negotiation and execution of (but excluding failure to comply with the terms of) the Settlement Agreement, the Library-Registry (Fully Participating) Agreement, any Hosting Addenda to any Library-Registry (Fully Participating) Agreements, any Host Site-Registry Agreement; (3) an allegation that the settlement as embodied in the Settlement Agreement and the agreements entered into as specifically contemplated by the Settlement Agreement violates any law; or (4) except as set forth herein, any other action taken by Google, any U of M Indemnitee, or any third party in support of the settlement embodied in the Settlement Agreement and the agreements entered into as specifically contemplated by the Settlement Agreement. For the avoidance of doubt, the foregoing indemnification includes without limitation the obligation of Google to pay reasonable costs or expenses (including without limitation attorneys’ fees and costs) incurred by any U of M Indemnitee necessary to comply with or respond to any third party subpoena or other discovery request made of such U of M Indemnitee in connection with any such indemnified third party claim, even if such claim is not made against such U of M Indemnitee. The foregoing indemnification excludes any third party claim to the extent it: (a) relates to U of M’s (or any U of M Indemnitee’s) use or distribution of the U of M Digital Copy; (b) arises from U of M’s (or any U of M Indemnitee’s) failure to comply with the terms of this Agreement (including without limitation Attachment A hereto); or (c) with respect to the indemnity under clause (4) only, arises from U of M’s (or any U of M Indemnitee’s) exercise of any right, performance of any act, or failure to comply with any obligation under the Library-Registry (Fully Participating) Agreement, Host Site-Registry Agreement, any agreement with Rightsholders or the Registry, any agreement with other Participating Libraries, or any other agreement relating to the Settlement.

Also posted in Agreement UM 10, Agreement UM 10.1, Agreement UM 10.1.a, Agreement UM Attachment 10, Agreement UM Attachment 10(a), Argreement UM, Library Agreement | Comments closed

L UM A

Comments are closed.

COLLECTIVE AND CERTAIN SETTLEMENT AGREEMENT RELATED TERMS

(Fully Participating Libraries)

Also posted in Argreement UM, Library Agreement | Comments closed

L UM A.0

Comments are closed.

This Attachment A (the “Collective Terms”) reflects provisions that supplement the Cooperative Agreement (the “Digitization Agreement”) between the Regents of the University of Michigan (the “Institution”) and Google Inc. (“Google”) dated June 15, 2005, as amended as of May ___, 2009, and has been created in contemplation of the settlement of certain litigation to which Google is a party, as reflected in that certain Settlement Agreement (the “Settlement Agreement”) in the form as filed with the United States District Court for the Southern District of New York on October 28, 2008 in connection with case number 05 CV 8136 between The Authors Guild Inc., et al. as Plaintiffs and Google as Defendant. Capitalized terms used in these Collective Terms that are not defined in these Collective Terms will have the meanings set forth in the Settlement Agreement or, if not defined therein, in the Digitization Agreement. The effectiveness of the provisions of these Collective Terms is conditioned upon the effectiveness of the Settlement Agreement. In the event the terms of the Settlement Agreement are amended and such amendment represents a material change of interest to the Institution and is not acceptable to the Institution, then the Institution may elect that these Collective Terms shall be void as between Google and the Institution. Google and the Institution acknowledge their mutual expectation that the Institution is a Fully Participating Library as defined by the Settlement Agreement. In the event of a conflict between these Collective Terms and other provisions of the Digitization Agreement, these Collective Terms will prevail as between Google and the Institution. In the event that compliance with these Collective Terms or the Digitization Agreement would cause Google to breach the Settlement Agreement or would cause the Institution to breach its Library-Registry (Fully Participating) Agreement, then such compliance with these Collective Terms or the Digitization Agreement will be excused, but only to the extent that such compliance would result in such a breach.

Also posted in Agreement UM Attachment 0, Argreement UM, Library Agreement | Comments closed

L UM A.01

Comments are closed.

Additional Defined Terms. The following capitalized terms, when used herein, will have the following meanings:

Also posted in Agreement UM Attachment 1, Argreement UM, Library Agreement | Comments closed

L UM A.01.1

Comments are closed.

a. “Institution Digital Copy” means the U of M Digital Copy.

Also posted in Agreement UM Attachment 1, Agreement UM Attachment 1(a), Argreement UM, Library Agreement | Comments closed

L UM A.01.2

Comments are closed.

b. “Institution Library Scan” means a Library Scan derived in whole or in part from all or part of an Institution Library Work.

Also posted in Agreement UM Attachemnt 1(b), Agreement UM Attachment 1, Argreement UM, Library Agreement | Comments closed

L UM A.01.3

Comments are closed.

c. “Institution Library Work” means a Book that the Institution previously has made or in the future makes available to Google as a Library Work.

Also posted in Agreement UM Attachment 1, Agreement UM Attachment 1(c), Argreement UM, Library Agreement | Comments closed

L UM A.01.4

Comments are closed.

d. “Interested Institution” means any library that (i) is either a party to an existing Digitization Agreement and has executed an amendment to that Digitization Agreement or a party to a new Digitization Agreement that contains terms substantially identical to these Collective Terms (in the case of a Fully Participating Library) or the parallel “Collective Terms” that apply to the Cooperating Libraries that comport with the terms hereof, as may be amended from time to time and (ii) has entered into a Library-Registry (Fully Participating) Agreement or Library-Registry (Cooperating) Agreement.

Also posted in Agreement UM Attachment 1(d), Argreement UM, Library Agreement | Comments closed

L UM A.02

Comments are closed.

Use Outside of Settlement.

Also posted in Agreement UM Attachment 2, Argreement UM, Library Agreement | Comments closed

L UM A.02.1

Comments are closed.

a. Google will not make use of any Institution Library Scan other than as authorized by the Settlement Agreement unless Google ensures that the releases, rights, and protections that otherwise would have applied under the Settlement Agreement and the coupling requirement set forth in Paragraphs 4(a) through 4(c) with respect to that Institution Library Scan apply.

Also posted in Agreement UM Attachment 2, Agreement UM Attachment 2(a), Argreement UM, Library Agreement | Comments closed

L UM A.02.2

Comments are closed.

b. If (i) a rightsholder opts out of the Settlement Agreement, (ii) Google makes an agreement with such rightsholder regarding the display of Protected content from any work, and (iii) Google makes any use pursuant to such agreement (other than any use whereby access is provided to users free of charge) of any digital copy of such work provided to it by any Interested Institution or made by Google from a copy of such work provided to it by any Interested Institution, then Google will offer to such rightsholder the opportunity to include such work in a service similar to the Public Access Service and, to the extent Google is offering a service similar to the Institutional Subscription for works not covered by the Settlement Agreement, in such service.

Also posted in Agreement UM Attachment 2, Agreement UM Attachment 2(b), Argreement UM, Library Agreement | Comments closed

L UM A.03

Comments are closed.

Institutional Subscription Offering, Public Access Service and Arbitration/Pricing.

Also posted in Agreement UM Attachment 3, Argreement UM, Library Agreement | Comments closed

L UM A.03.1

Comments are closed.

a. Availability of Institutional Subscription and Public Access Service. Google shall make the full Institutional Subscription offered to Higher Education Institutions and the Public Access Service generally available (including to the Institution with respect to such Institutional Subscription) within a reasonable period of time following the Effective Date, but in no event later than two (2) years following the Effective Date.

Also posted in Agreement UM Attachment 3, Agreement UM Attachment 3(a), Argreement UM, Library Agreement | Comments closed

L UM A.03.2

Comments are closed.

b. User Experience. Unless Google and the Institution agree otherwise, at a minimum, Google will provide the authorized users of the Institution (provided the Institution is a then current subscriber to the full Institutional Subscription offered to Higher Education Institutions) with First Class Access (as defined below) to the full Institutional Subscription offered to Higher Education Institutions. As used herein, “First Class Access” means a user experience consistent with Sections 4.1(d) through 4.1(f) of the Settlement Agreement, and that will always include the features set forth or referred to in the last sentence of Section 4.1(d) of the Settlement Agreement and in Sections 4.1(e)(2-4) and 4.1(f) of the Settlement Agreement.

Also posted in Agreement UM Attachment 3, Agreement UM Attachment 3(b), Argreement UM, Library Agreement | Comments closed

L UM A.03.3.1

Comments are closed.

(1) Initial Report. Sixty (60) days after the date Google first makes an Institutional Subscription generally available to Higher Education Institutions and every two years on the anniversary of such date thereafter (each a “Pricing Review Date”), any Interested Institution may request (each such Interested Institution, together with such other Interested Institutions that so request or join in any such request, an “Initiating Library,” and collectively the “Initiating Libraries”) a review of the pricing of the Institutional Subscription to determine whether the Pricing Categories of Institutional Subscriptions offered to Higher Education Institutions and the revenue models referred to under Paragraph 3(d) below (collectively, the “Reviewable Subscriptions”), are being priced in accordance with the objectives set forth in Section 4.1(a)(i) of the Settlement Agreement (a “Pricing Review”) by providing written notice to Google and all other Interested Institutions prior to such Pricing Review Date. All Interested Institutions together may initiate only one Pricing Review per Pricing Review Date. For purposes of this Paragraph, “Pricing Category” shall mean a category for which there is a discrete price for a set of Books offered to a class of Higher Education Institutions as part of an Institutional Subscription as contemplated by Section 4.1(a)(iv)(2) of the Settlement Agreement. The “Pricing Reviewer” will be an independent, qualified third party (independence and qualification determined in good faith by the Initiating Libraries) designated by the Initiating Libraries, acting through the Designated Representative consistent with Section 7.4 of the Settlement Agreement, subject to approval by Google (which approval shall not be unreasonably withheld). The Pricing Reviewer shall prepare a report of its findings (the “Pricing Review Report”) and shall provide such report to Google and all Interested Institutions. Google shall be responsible for the Pricing Reviewer’s reasonable fees and costs incurred in conducting the Pricing Review and preparing the Pricing Review Report, up to the Pricing Review Cap. For the purposes hereof, the Pricing Review Cap shall mean (a) $100,000 per Pricing Review for each of the first two possible Pricing Reviews; and (b) for each Pricing Review thereafter, the lesser of (i) $75,000 per Pricing Review, or (ii) $50,000 per Pricing Review plus one-half of such fees and costs that exceed $50,000 in such particular Pricing Review; provided, however, that such $100,000, $50,000 and $75,000 figures will be subject to adjustment based on changes in the Consumer Price Index, based on a 2008 base year. With respect to any Pricing Review, the Interested Institutions shall be responsible for the Pricing Reviewer’s fees and costs incurred in conducting the Pricing Review and preparing the Pricing Review Report in excess of the Pricing Review Cap. Google will provide or make available to the Pricing Reviewer the following information within a reasonable period of time following the written request of the Pricing Reviewer (the “Pricing Information”): (i) the number of postsecondary academic institutions that have Institutional Subscriptions offered to Higher Education Institutions as of the most recent anniversary of the Effective Date broken out by Pricing Category; (ii) a histogram showing the percentage of postsecondary academic institutions that pay each price within a Pricing Category; and (iii) Google’s list price for each Pricing Category in the Institutional Subscriptions offered to Higher Education Institutions, as well as comparable information related to any pricing model referred to in Paragraph 3(d) below. The Pricing Reviewer may request in writing additional information from Google necessary to render a determination as set forth in this Paragraph. Google will evaluate any such request and will provide such requested information unless it reasonably determines that such information is not necessary for the Pricing Reviewer to render a determination (such information shall also be considered Pricing Information). Pricing Information provided by Google: (1) will be subject to Google’s reasonable confidentiality and production requirements; (2) will be deemed Google’s confidential information; (3) may not be shared with any Fully Participating Library or Cooperating Library (except to the extent reflected in the Pricing Review Report as provided below) or other third party unless otherwise agreed to by Google or authorized in the non-disclosure agreement executed with Google by the Pricing Reviewer governing the Pricing Information; and (4) may be used by the Pricing Reviewer only for purposes described in this Paragraph. The Pricing Review Report shall not contain Pricing Information provided by Google unless Google otherwise agrees or the information is otherwise publicly available, but may contain conclusions based on such information that do not reveal the underlying information itself. The Pricing Reviewer shall execute a reasonable non-disclosure agreement provided by Google to govern the use and disclosure of the Pricing Information disclosed by Google.

For each of the first ten (10) Pricing Review Dates, if the Interested Institutions do not initiate a Pricing Review, Google shall donate to the National Federation for the Blind or similar non-profit charitable organization selected by Google and approved by the Interested Institutions acting through the Designated Representative, such approval not to be unreasonably withheld: (a) $100,000 in lieu of each of the first two possible Pricing Reviews; and (b) $50,000 in lieu of each of the subsequent Pricing Reviews; provided, however, that such $100,000 and $50,000 figures will be subject to adjustment based on changes in the Consumer Price Index, based on a 2008 base year.

Also posted in Agreement UM Attachment 3, Agreement UM Attachment 3(c), Agreement UM Attachment 3(c)(1), Argreement UM, Library Agreement | Comments closed

L UM A.03.3.2

Comments are closed.

(2) Possible Pricing Challenge. Any Initiating Library may initiate an arbitration pursuant to this Paragraph within ninety (90) days of receipt of a particular Pricing Review Report with respect to relevant Reviewable Subscriptions. Any such arbitration will be the exclusive mechanism to resolve disputes between Google and the Initiating Libraries with respect to whether Google is pricing the Reviewable Subscriptions in accordance with the objectives set forth in Section 4.1(a)(i) of the Settlement Agreement. The arbitration proceedings of all Initiating Libraries that submit requests for arbitration prior to the ninety (90) day deadline following the date the Pricing Review Report is provided to Initiating Libraries shall be combined into a single arbitration proceeding. No Initiating Library may initiate an additional, separate arbitration based on the same Pricing Review Report. The arbitration procedures shall be as set forth in the Library-Registry Agreement, except as explicitly set forth herein. Any decision of the arbitrator(s) shall be based on the objectives set forth in Section 4.1(a)(i) of the Settlement Agreement, and the arbitrator(s) will not be authorized to make any other findings or to award damages of any kind to either party. All arbitrating Initiating Libraries shall designate representatives (the “Arbitration Representatives”) who, along with the Arbitration Representatives’ legal counsel (provided such legal counsel are bound by or have been instructed by their clients, to Google’s reasonable satisfaction, to comply with the same terms as the Arbitration Representatives with respect to such Pricing Information set forth herein), may have access to the Pricing Information subject to the same use restrictions applicable to the Pricing Reviewer. The Pricing Information may not be disclosed to the Initiating Libraries in the arbitration other than to the Arbitration Representatives. The Arbitration Representatives shall not disclose the Pricing Information to anyone (other than the relevant arbitrator(s)) including any individual at such Arbitration Representatives’ Initiating Library (including, but not limited to, employees, executives, directors, trustees, regents, governors, contractors, and agents) without Google’s prior written consent, which consent is not to be unreasonably withheld. Following the decision in any arbitration pursuant to this Paragraph, the relevant such Arbitration Representatives may not be involved in negotiations, or decisions with respect to such negotiations, with Google on behalf of an Initiating Library regarding the future price of the subscription for that institution. Each party to the arbitration shall be responsible for its own costs and expenses incurred in the arbitration. (3) Pricing Adjustment. In the event any Initiating Library initiates an arbitration pursuant to Paragraph 3(c)(2) above, if the arbitrator(s) determine that the price of the relevant Reviewable Subscriptions should be lower than the existing price, then Google shall (1) adjust the price of each then-current relevant Reviewable Subscription by the Adjustment Amount (as defined in the following sentence) in the manner described below, and (2) charge no more than the arbitrator-determined pricing for any new or renewal relevant Reviewable Subscription for a period of at least two years following the date of the arbitrator(s)’ decision (with arbitrator approved price increases allowed within this two year period). The “Adjustment Amount” for each relevant Reviewable Subscription will be (x) the excess of the existing price of the relevant Reviewable Subscription over the arbitrator-determined price, calculated on a monthly basis, multiplied by (y) the number of months of the relevant Reviewable Subscription occurring after the date of the notice to Google of the initiation of the relevant arbitration pursuant to Paragraph 3(c)(2) above through the date of expiration of the relevant term thereof. Google and the Institution (to the extent actually participating in the arbitration) agree to cooperate in expediting the selection of an arbitrator and the commencement and proceedings under any such arbitration, with the goals of (i) commencing arbitration proceedings as promptly as is reasonably practicable and (ii) having the time period between the date that the relevant arbitrator(s) commences substantive proceedings in the arbitration and the date of rendering of the arbitrator(s)’ decision not be more than three months. If such time period exceeds three months (which the arbitrator(s) may increase in his, her or their discretion to up to six months), then the number of months referred to in clause (y) above will be decreased by such excess number of months to the extent corresponding to relevant months of the relevant Reviewable Subscription. The Adjustment Amount will be applied (in the form of a pro rata credit, discount or other equivalent method reasonably determined by Google) to reduce the balance remaining on the purchase price of such then-current relevant Reviewable Subscription for the period after the date of the arbitrator(s)’ decision or, if the Adjustment Amount exceeds the amount remaining due for that period, such excess amount shall be refunded in cash by Google to the subscribing institution. Google’s total liability in connection with the aggregate Adjustment Amounts for relevant Reviewable Subscriptions will not exceed Google’s Net Revenues from all Institutional Subscriptions offered to Higher Education Institutions current and existing as of the date of the decision by the arbitrator(s). “Net Revenues” means total gross revenues received by Google from all Institutional Subscriptions offered to Higher Education Institutions less (i) the amount of any discounts to the Interested Institutions (to the extent such amounts otherwise would be included in gross revenues) and (ii) any revenue share payments that are paid by Google to the Registry in respect of such gross revenues for that period. If the aggregate Adjustment Amounts exceed Google’s Adjustment Amount liability limit identified above, then the Adjustment Amount for each Reviewable Subscription subscriber will be adjusted on a pro rata basis (based on amounts paid by each institution) such that Google’s total cash refund liability will not exceed the limit identified above.

Also posted in Agreement UM Attachment 3, Agreement UM Attachment 3(c), Agreement UM Attachment 3(c)(2), Argreement UM, Library Agreement | Comments closed

L UM A.03.4

Comments are closed.

d. New Revenue Models. If (1) Google makes available any new revenue model pursuant to Section 4.7 of the Settlement Agreement, (2) such new revenue model includes the offering of access to any Library Scans, and (3) such new revenue model is offered to any Higher Education Institutions, then to the extent Google and/or the Registry sets such price, such new revenue model shall be priced (both as to initial pricing and pricing over time) in accordance with the objectives set forth in Section 4.1(a)(i) of the Settlement Agreement, and the provisions of Paragraph 3(c) above, will apply to such pricing.

Also posted in Agreement UM Attachment 3, Agreement UM Attachment 3(d), Argreement UM, Library Agreement | Comments closed

L UM A.04

Comments are closed.

Google Coupling.

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

L UM A.04.1

Comments are closed.

a. Coupling Relative to Consumer Purchase. If Google, to the extent authorized by the Rightsholder or the Settlement Agreement, uses any portion of a Library Scan within the United States in Consumer Purchases or Other Revenue Models (as defined below), then Google will provide the following services (the “Designated Services”) to United States users with respect to such Library Scan as follows:

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

L UM A.04.1.1

Comments are closed.

(1) Commencing upon the Effective Date, free search services Online through Google Products and Services (including Preview Use or Snippet Display to the extent permitted under the Settlement Agreement);

Also posted in Agreement UM Attachment 4, Agreement UM Attachment 4(a), Agreement UM Attachment 4(a)(1), Argreement UM, Library Agreement | Comments closed

L UM A.04.1.2

Comments are closed.

(2) Commencing upon the Effective Date, Library Links if there are online sources that can provide the information accessed through the Library Link free of charge to the user and without charge to Google;

Also posted in Agreement UM Attachement 4(a)(2), Agreement UM Attachment 4, Agreement UM Attachment 4(a), Argreement UM, Library Agreement | Comments closed

L UM A.04.1.3

Comments are closed.

(3) Commencing upon the initial public offering of the full Institutional Subscription, but not later than five (5) years from the Effective Date, inclusion of the Library Scan in Institutional Subscriptions offered to Higher Education Institutions (including in the Institutional Subscription referred to in Paragraph 3(a)) if authorized by the Rightsholder under the Settlement Agreement; and

Also posted in Agreement UM Attachment 4, Agreement UM Attachment 4(a), Agreement UM Attachment 4(a)(3), Argreement UM, Library Agreement | Comments closed

L UM A.04.1.4

Comments are closed.

(4) Commencing upon the public offering of the Public Access Service, but not later than five (5) years from the Effective Date, inclusion of the Library Scan in the Public Access Service if authorized by the Rightsholder under the Settlement Agreement.

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

L UM A.04.2

Comments are closed.

b. Worldwide Use. If Google, to the extent authorized by the Rightsholder or the Settlement Agreement, uses any Library Scan in Consumer Purchases, in any new revenue model that may be developed pursuant to Section 4.7 of the Settlement Agreement or 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 one or more countries other than the United States, and such Rightsholder has rights to authorize such uses both within the United States and in such other countries, then Google will permit Higher Education Institution subscribers to an Institutional Subscription that includes such Library Scan to make such Library Scan available through such Institutional Subscription to its users in the United States and such other countries.

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

L UM A.04.3

Comments are closed.

c. Effect of Failure to Satisfy Google Coupling. If Google and any Additional Contemplated Rightsholder Services Provider and/or Third-Party Required Library Services Provider collectively fail at any time to provide any of the Designated Services as to a particular Library Scan, then Google shall not use, nor authorize any third party to use, that Library Scan in Consumer Purchases or Other Revenue Models (as defined below) unless and until Google and/or any Additional Contemplated Rightsholder Services Provider and/or Third-Party Required Library subsequently provides such Designated Service(s) with respect to the relevant Library Scan. For purposes of this Paragraph 4, “Other Revenue Models” means business models that may be agreed to by the Registry and/or Google under Section 4.7 of the Settlement Agreement and that use Library Scans, except for any Google service in which access to a given Library Scan is provided to the public free of charge.

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

L UM A.04.4

Comments are closed.

d. Matters Related to Use of Digital Copies in Lieu of Library Scans. The provisions of this Paragraph 4(d) will apply to the Institution only if the Institution has provided to Google and/or Google has created not less than 50,000 Institution Library Scans from the Institution’s Selected Content. From and after the date that the number of Excluded Replaced Books first exceeds the lesser of (1) 200,000, or two percent (2%) of all Books that are not Commercially Available as to which Library Scans at any time were made by or for Google (the “Exclusion Threshold”), then Google will, for all Excluded Replaced Books as to which a Library Scan at any time was made by or for Google from the Institution’s Selected Content and which becomes an Excluded Replaced Book following the date the Exclusion Threshold is reached, obtain for and provide to the Institution rights and functionality with respect to such Excluded Replaced Books materially equivalent to the rights and functionality of an Institutional Subscription then held by the Institution (and subject to the terms and conditions thereof) had the Excluded Replaced Book been available as part of such Institutional Subscription. An “Excluded Replaced Book” is a Book as to which (i) a Library Scan at any time was made by or for Google; (ii) the Rightsholder has (x) Removed the Book (when it existed as a Library Scan) pursuant to Section 3.5(a) of the Settlement Agreement and subsequently restored such Book to the terms of the Settlement Agreement and Google has not made a Library Scan of such Book following such restoration, or (y) excluded a Book that is not Commercially Available from Institutional Subscriptions pursuant to Section 3.5(b) of the Settlement Agreement; (iii) a Digital Copy (other than a Library Scan) is made by or for Google subsequent or incident to such Removal or exclusion; and (iv) the Rightsholder has authorized and Google has offered, pursuant to the Settlement Agreement, Consumer Purchases or any Other Revenue Models for the Book.

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

L UM A.05

Comments are closed.

Research Corpus.

Also posted in Agreement UM Attachment 5, Argreement UM, Library Agreement | Comments closed

L UM A.05

Comments are closed.

Research Corpus.

Also posted in Agreement UM Attachment 5, Argreement UM, Library Agreement | Comments closed

L UM A.05.1

Comments are closed.

a. Cooperation in Research Corpus. Following the Effective Date, Google will exercise (when and if exercisable) all rights granted under Section 7.2(d) of the Settlement Agreement to enable the creation and implementation of the Research Corpus at Host Sites as determined and conditioned in accordance with such Section. Google will provide to each Host Site, in a manner to be mutually agreed upon by Google and the Host Site(s), a set of Digital Copies of all Books (other than Books that have been Removed by Rightsholders pursuant to Section 3.5 of the Settlement Agreement or Library Scans that have been withdrawn pursuant to Section 7.2(d)(iv) of the Settlement Agreement) and Digital Copies of public domain works Digitized in connection with the Google Library Project, unless restricted by the library that provided such works (provided that Google shall not cause or provide incentives to any library to impose any such restriction), to each of the Host Sites, subject to the Host Site(s) agreeing to the Host Site-Registry Agreement and a separate agreement with Google incorporating the terms of the Settlement Agreement governing the Research Corpus and restrictions on sharing the content. Google shall offer Google Partner Program publishers the ability to include their works in the Research Corpus.

Also posted in Agreement UM Attachment 5, Agreement UM Attachment 5(a), Argreement UM, Library Agreement | Comments closed

L UM A.05.2

Comments are closed.

b. Google Support. Google will make appropriate personnel reasonably available to provide, at no charge, up to 100 personnel hours per Host Site, per year for two years following the Effective Date consisting of technical start-up advice related to the creation and operation of the Research Corpus to each Host Site, subject to the Host Site(s) executing services agreements with Google containing Google’s customary terms and conditions for such services. In addition, Google shall provide not less than $5,000,000 in aggregate to be used at the direction of the Interested Institutions (acting through the Designated Representative in the manner set forth in Section 7.4 of the Settlement Agreement) for the development of one or more Host Sites (including Google as a Host Site), of which $500,000 will be deposited into an escrow account by Google after the execution by at least one Fully Participating Library or Cooperating Library of a Digitization Agreement or an amendment to a Digitization Agreement incorporating these Collective Terms within fifteen business days after written request by such Fully Participating Library or Cooperating Library, an additional $1,000,000 will be deposited into an escrow account by Google within fifteen business days after the last date of execution of Digitization Agreements and/or amendments to Digitization Agreements incorporating these Collective Terms by at least three Fully Participating Libraries and/or Cooperating Libraries (excluding the first Fully Participating or Cooperating Library that triggered the initial $500,000 payment), and the remainder will be deposited by Google into the escrow account within fifteen business days after the Effective Date. The escrow account will be set up by the Interested Institutions, acting through the Designated Representative in the manner set forth in Section 7.4 of the Settlement Agreement, with an independent third party approved by Google, such approval not to be unreasonably withheld. The costs for the creation and administration of the escrow account shall be paid out of the funds in escrow. The Interested Institutions may use the escrowed funds solely for the development of one or more Host Sites immediately upon their deposit into the escrow account by Google. Subject to the foregoing restriction, the Interested Institutions’ use of the escrowed funds in the development of the Host Site(s) shall be at their sole discretion. The Interested Institutions, acting though the Designated Representative in the manner set forth in Section 7.4 of the Settlement Agreement, shall designate a representative (which may be the Designated Representative) authorized to deal with Google with respect to the creation and administration of the escrow account, the deposit of the funds, and all other matters relating to the Host Site(s), and Google shall be obligated to deal only with such representative. The Interested Institutions shall be bound by the decision of such designated representative in the same manner as with respect to the Designated Representative under Section 7.4 of the Settlement Agreement.

Also posted in Agreement UM Attachment 5, Agreement UM Attachment 5(b), Argreement UM, Library Agreement | Comments closed

L UM A.05.3

Comments are closed.

c. Content Improvements and Delivery. After the initial delivery of the Research Corpus to a Host Site, within thirty (30) days after Google Digitizes a Book required to be in the Research Corpus or materially improves a Digital Copy of a Book contained in the Research Corpus, Google will provide or make available a copy of the file for each such Digital Copy to the Host Site. In addition, Google will provide each Host Site access to download a copy of the electronic file for each such Digital Copy of a Book each time an electronic file for that Book is improved by (i) any Fully Participating Library or Cooperating Library provided that such library makes the improved file available to Google, (ii) any third party that improves the quality of a Digital Copy of such Book to be used in the Accommodated Services under the terms of a Library-Registry (Fully Participating) Agreement, Library-Registry (Cooperating) Agreement, and/or the Settlement Agreement, provided that such third party makes the improved file available to Google, or (iii) any third party to the extent Google is so permitted under a contract with such third party and provided that such third party makes the improved file available to Google. If a Host Site elects to download a copy of the improved electronic file for any such Book, the Host Site may download only the most current version of such file. Google will make improved versions of the files available to each Host Site within a reasonable period of time after they are created by another party and provided to Google as contemplated by this Paragraph. If an Interested Institution improves a Digital Copy of a Book, a public domain work or other work contained in the Institution Digital Copy, it shall provide the improved file to Google within a reasonable period of time. In connection with the furnishing of required content, Google agrees from time to time to (x) use delivery methods to be mutually agreed upon between Google and the Host Site that are reasonably appropriate to timely delivery of the volume of content being delivered; (y) employ mutually agreed upon technologies that provide reasonably appropriate downloading and throughput speeds to each Host Site; and (z) make available servers (or use some other mutually agreed upon mechanism for delivery of data) that have reasonably appropriate capacity and rate of connectivity.

Also posted in Agreement UM Attachment 5, Agreement UM Attachment 5(c), Argreement UM, Library Agreement | Comments closed

L UM A.05.4

Comments are closed.

d. Technical Cooperation. Google will reasonably cooperate with each Host Site to establish mutually agreed communications and dispute resolution procedures with the goal that Host Site issues related to technical performance (e.g. related to download issues) be addressed expeditiously.

Also posted in Agreement UM Attachment 5, Agreement UM Attachment 5(d), Argreement UM, Library Agreement | Comments closed

L UM A.06

Comments are closed.

Accommodated Service.

Also posted in Agreement UM Attachment 6, Argreement UM, Library Agreement | Comments closed

L UM A.06.1

Comments are closed.

a. Availability of Accommodated Service. Google acknowledges its intent to make the Accommodated Service generally available within two (2) years following the Effective Date.

Also posted in Agreement UM Attachment 6, Agreement UM Attachment 6(a), Argreement UM, Library Agreement | Comments closed

L UM A.06.2

Comments are closed.

b. Reports and Notice. Following the Effective Date, Google will report, annually, to the Designated Representative on its progress to develop, provide, and maintain the Accommodated Service, including information about the time-frame in which Google believes that the Accommodated Service will be made available. Such reports will be considered Google’s confidential information, except that the Designated Representative can disclose the reports to other Interested Institutions under the same confidentiality restrictions as are applicable to the Interested Institution of the Designated Representative. If Google determines that it will not implement the Accommodated Service during the period referred to in Section 7.2(g)(ii)(2)(a) of the Settlement Agreement or not maintain it after its initial launch, it will promptly notify the Designated Representative (who may so notify the Interested Institutions).

Also posted in Agreement UM Attachment 6, Agreement UM Attachment 6(b), Argreement UM, Library Agreement | Comments closed

L UM A.06.3

Comments are closed.

c. Database. Following the initial public offering of the Accommodated Service, Google shall maintain an accessible, searchable, on-line database that will enable the public to determine which Library Works are currently accessible through the Accommodated Service.

Also posted in Agreement UM Attachment 6, Agreement UM Attachment 6(c), Argreement UM, Library Agreement | Comments closed

L UM A.07

Comments are closed.

Advertising and Institutional Subscription. The provisions of this Paragraph 7 will apply to the Institution only if the Institution has provided to Google and/or Google has Digitized not less than 50,000 Institution Library Scans from the Institution’s Selected Content. The Institution acknowledges that the Institutional Subscription offered to Higher Education Institutions may contain advertising as determined by Google. However, Google agrees that in the event it offers an Institutional Subscription that does not contain advertising to any Higher Education Institution, it will offer such Institutional Subscription that does not contain advertising to the Institution (Google reserves the right to price such Institutional Subscription differently than the Institutional Subscription that contains advertising).

Also posted in Agreement UM Attachment 7, Argreement UM, Library Agreement | Comments closed

L UM A.08

Comments are closed.

Commercial Availability and Classification by Google. Google will use the process set forth in Section 3.2(d) of the Settlement Agreement to classify each work as Commercially Available or not and to correct mistakes made in initially classifying a work as Commercially Available (including when notified in writing by a Fully Participating Library or a Cooperating Library of any purported misclassification) in accordance with the terms of the Settlement Agreement. If any Fully Participating Library or Cooperating Library notifies Google in writing that it believes in good faith that a work may have been mistakenly classified as Commercially Available, or that the work may no longer be Commercially Available, Google will evaluate such information and, if in its reasonable judgment it concurs, notify the Registry to properly classify such work.

Also posted in Agreement UM Attachment 8, Argreement UM, Library Agreement | Comments closed

L UM A.09

Comments are closed.

Certain Google Covenants.

Also posted in Agreement UM Attachment 9, Argreement UM, Library Agreement | Comments closed

L UM A.09.1

Comments are closed.

a. Exercise of Certain Rights. Google will exercise its rights under Section 3.5(b)(vi) of the Settlement Agreement to the extent necessary to fulfill any relevant obligations of Google to the Institution.

Also posted in Agreement UM Attachment 9, Agreement UM Attachment 9(a), Argreement UM, Library Agreement | Comments closed

L UM A.09.2

Comments are closed.

b. No Obligation to Collect. Google will not condition availability of the Public Access Service on the relevant library agreeing to collect for Google amounts referred to in Section 4.8(a)(ii) of the Settlement Agreement.

Also posted in Agreement UM Attachment 9, Agreement UM Attachment 9(b), Argreement UM, Library Agreement | Comments closed

L UM A.10

Comments are closed.

Information.

Also posted in Agreement UM Attachment 10, Argreement UM, Library Agreement | Comments closed

L UM A.10.1

Comments are closed.

a. Institution Digital Copy. For each work contained in the Institution Digital Copy and in the equivalent of the Institution Digital Copy of each other Interested Institution, Google shall use commercially reasonable efforts to make available to the Institution (which may be accomplished through delivery to the Designated Representative for distribution to the various Interested Institutions) access to the following information in a generally accepted electronic format: (i) a unique identifier number for the work; (ii) whether Google is treating the work as being in the public domain in the U.S., along with the factual basis for such determination (but not analysis or reasoning with respect to such determination); (iii) whether the Registry has objected to a book as being in the public domain pursuant to Section 3.2(d)(v) of the Settlement Agreement and the outcome of any dispute relating thereto; (iv) whether Google is treating the work as being a Government Work; (v) whether Google is treating the work as being subject to the Settlement Agreement; (vi) the status of the work with respect to its Commercially Available classification if such work is governed by the Settlement Agreement, including but not limited to any notices of suspected misclassification by the Registry pursuant to Section 3.2(d)(iii) of the Settlement Agreement and any corrections to such classification made by Google, whether or not in response thereto; (vii) whether Google is using any portion of the work in Consumer Purchases or in any Other Revenue Model; (viii) whether Google is including the work in any of the Required Library Services; (ix) with respect to works that are Government Works or Public Domain Books, whether Google has received a request from a Rightsholder of any Insert in any such Government Work or Public Domain Book to Exclude such Insert from Display Uses (including the identity of the Rightsholder and the relevant Insert), any determination by Google to accept or reject such request, and the resolution of any dispute relating thereto pursuant to Section 3.5(b)(vii) of the Settlement Agreement; and (x) whether, if Google is aware, the work has been registered with the United States Copyright Office.

Also posted in Agreement UM Attachment 10(a), Argreement UM, Library Agreement | Comments closed

L UM A.10.10

Comments are closed.

j. Enforcement by Google. Google hereby agrees to enforce for the benefit of the Institution the following provisions of the Settlement Agreement: Sections 6.5(b) (first sentence), 6.6(c), and 6.6(d), subject to any confidentiality and privacy restrictions.

Also posted in Agreement UM Attachment 10, Agreement UM Attachment 10(i), Argreement UM, Library Agreement | Comments closed

L UM A.10.11

Comments are closed.

j. Enforcement by Google. Google hereby agrees to enforce for the benefit of the Institution the following provisions of the Settlement Agreement: Sections 6.5(b) (first sentence), 6.6(c), and 6.6(d), subject to any confidentiality and privacy restrictions.

Also posted in Agreement UM Attachment 10, Agreement UM Attachment 10(j), Argreement UM, Library Agreement | Comments closed

L UM A.10.2

Comments are closed.

Information to Perform Obligations. Within a reasonable period following receipt of a written request from the Institution, Google shall provide to the Institution all data provided by the Registry to Google pursuant to Section 6.5(b) of the Settlement Agreement, including all updates, as is reasonably necessary for the Institution to perform its obligations under its Library-Registry Agreement.

Also posted in Agreement UM Attachment 10(b), Argreement UM, Library Agreement | Comments closed

L UM A.10.3

Comments are closed.

c. Public Disclosure of Public Domain Determinations. Google will make available to the general public the information described in Paragraph 10(a)(ii).

Also posted in Agreement UM Attachment 10, Agreement UM Attachment 10(c), Argreement UM, Library Agreement | Comments closed

L UM A.10.4

Comments are closed.

d. Pricing Strategy. Within a reasonable period following receipt of a written request, Google shall make available to the Designated Representative the initial Pricing Strategy and any subsequent Pricing Strategies relating to Institutional Subscriptions offered to Higher Education Institutions that are agreed upon by Google and the Registry pursuant to Section 4.1(a) of the Settlement Agreement. The Designated Representative may distribute such pricing strategies to Interested Institutions. Google will inform the Institution of any Google Products and Services that meet the definition of “Adjunct Product” in the Settlement Agreement and whether the Registry has elected to renegotiate under Section 4.1(a)(ix)(3) of the Settlement Agreement.

Also posted in Agreement UM Attachment 10, Agreement UM Attachment 10(d), Argreement UM, Library Agreement | Comments closed

L UM A.10.5

Comments are closed.

e. Google Exclusion Decisions. Within a reasonable period following receipt of a written request, Google will make available to the Designated Representative (who may then disclose same to the Interested Institutions): (i) a list of Books Google has Digitized or received Digital Copies of and a list of Books of which it is making Display Uses; and (ii) information concerning whether the exclusion of Books from one or more Display Uses was for editorial or non-editorial reasons, and if for non-editorial reasons, whether the exclusion was for quality, legal or technical concerns. For the avoidance of doubt, the Institution may publicly disclose the identity of Books excluded for editorial reasons at any time.

Also posted in Agreement UM Attachment 10, Agreement UM Attachment 10(d), Argreement UM, Library Agreement | Comments closed

L UM A.10.6

Comments are closed.

Required Library Services Information. Within a reasonable period following receipt of a written request, Google will disclose to the Designated Representative (who may then disclose same to the Interested Institutions) the following information to the extent reasonably necessary for the Institution to monitor and enforce Section 7.2(e) of the Settlement Agreement and Paragraph 4(d) of these Collective Terms, including without limitation: (i) the number of Library Scans made by or for Google at any time; (ii) the number of such Library Scans that are Commercially Available; (iii) the number of Excluded Replaced Books; (iv) the number of Not Counted Library Works; (v) the number of Display Books; (vi) the number of No Display Books; (vii) the number of Library Scans that are not authorized to be included in Institutional Subscriptions pursuant to the terms of the Settlement Agreement; (viii) the Required Library Services being provided for each of the Library Scans; and (ix) the number of Library Scans for which each of the Required Library Services is being provided. Google will identify, if requested by the Designated Representative, the relevant specific Books with respect to each category of information provided above, and the Designated Representative may request such additional information no more than once in any six month period.

Also posted in Agreement UM Attachment 10(f), Argreement UM, Library Agreement | Comments closed

L UM A.10.7

Comments are closed.

Confidentiality and Copying Restriction. The information made available by Google pursuant to Paragraphs 10(a)(iii), (vi) and (ix), 10(d), and 10(f) above may not be shared by the Institution with third parties as Confidential Information of Google pursuant to the confidentiality provisions of the Digitization Agreement, except as provided therein, as otherwise required by law, with prior written approval from Google, for disclosure to another Interested Institution or (except as to information provided pursuant to Paragraphs 10(d) and 10(f)) for relevant disclosure on a confidential basis to a third party that is hosting the Institution’s LDC. As to the information made available by Google pursuant to Paragraphs 10(a)(ii) (as to the factual basis information, but not Google’s analysis or reasoning, only), (iv), (v), (vii), (viii) and (x), the Institution is free to use same internally or disclose same to another Interested Institution, and Google acknowledges that such information is not subject to the confidentiality provisions of the Digitization Agreement; however the Institution agrees that it will not publicly disclose any copy (whether in hard copy or digitally) of all or any substantial portion of any particular database originally provided by Google pursuant to any such Paragraph so long as such database is not first publicly disclosed by Google or any other person, except as may be provided in the Digitization Agreement, as may be otherwise required by law, or with prior written approval from Google. With respect to the identification of any Book pursuant to this Section 10, Google shall provide at least one unique identifier number used by Google to identify such Book and the barcode or other identifier associated with the relevant Participating Library’s Book used when Digitizing the Book.

Also posted in Agreement UM Attachment 10(g), Argreement UM, Library Agreement | Comments closed

L UM A.10.8

Comments are closed.

h. Quarterly Updates. Except as otherwise set forth herein, following its initial provision, Google will update on a quarterly basis information provided pursuant to this Paragraph 10 that is required for the Interested Institution to meet its obligations with respect to the Collective Terms, Digitization Agreements, or Library-Registry Agreements. Except as otherwise set forth herein, within a reasonable period following receipt of a written request, Google will update the information provided by Google pursuant to this Paragraph 10 following its initial provision to the Institution, but in no event shall it be obligated to update such information more frequently than quarterly. The information provided under this Paragraph 10 shall be accurate as to Google’s knowledge at the time of its provision to the Designated Representative, the Institution or the public, as the case may be.

Also posted in Agreement UM Attachment 10(h), Argreement UM, Library Agreement | Comments closed

L UM A.10.9

Comments are closed.

i. Misclassification. If the Institution informs Google of any works that it believes have been misclassified as not in the public domain (or of a systematic misclassification of works) and provides supporting reasons and information, as well as information regarding the processes used to verify such information, then Google shall use commercially reasonable efforts to appropriately consider such information (and to remedy any such systematic misclassification Google determines to exist). To the extent Google determines that any work is in the public domain as a result of the foregoing, it shall treat such work as being in the public domain.

Also posted in Agreement UM Attachment 10, Agreement UM Attachment 10(i), Argreement UM, Library Agreement | Comments closed

L UM A.11

Comments are closed.

Designated Representative and Security Representatives Matters. The Institution agrees to select, give instructions to, and exercise or waive certain rights through, the Designated Representative and the Security Representatives, as set forth in Section 7.4 of the Settlement Agreement.

Also posted in Agreement UM Attachment 11, Argreement UM, Library Agreement | Comments closed

L UM A.12

Comments are closed.

Provisions of Digitization Agreements. Google will reflect, in each Digitization Agreement with a Fully Participating Library or Cooperating Library that such library will not have any rights to participate in the selection of, giving instructions to or exercising or waiving certain rights through the Designated Representative or the Security Representatives, as the case may be, unless such Fully Participating Library or Cooperating Library agrees to the terms of Section 7.4 of the Settlement Agreement and the then existing governance rules as established from time to time by the Fully Participating Libraries and the Cooperating Libraries (including any rules as to the sharing of fees and costs of the Designated Representative and the Security Representatives, as the case may be).

Also posted in Agreement UM Attachment 12, Argreement UM, Library Agreement | Comments closed

L UM A.13

Comments are closed.

References. All references herein to provisions of the Settlement Agreement are intended to mean and include, as reasonably appropriate, such provisions as incorporated into the Library-Registry Agreement (whether pursuant to an Exhibit thereto or otherwise) to which the Institution is a party.

Also posted in Agreement UM Attachment 13, Argreement UM, Library Agreement | Comments closed