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COOPERATIVE AGREEMENT
This COOPERATIVE AGREEMENT (The "Agreement") is entered into
by and between Google Inc., a Delaware corporation with offices at
1600 Amphitheatre Parkway, Mountain View, California 94043
("Google") and The Regents of the University of California
on behalf of its California Digital Library with its principal
offices at 415 20th Street, 4th Floor, Oakland California, 94612
("University"), and is effective as of the last date this
Agreement is signed by the parties (the "Effective Date").
Google and University herein are sometimes referred to hereinafter
individually as a "Party" and collectively as the
"Parties".
RECITALS
WHEREAS, University is a leading academic institution and has
amassed an enormous collection of works in various media located at
various University Libraries;
WHEREAS, Google provides the public with access to web pages on the
Internet, among other products and services;
WHEREAS, Google and the University share a mutual interest in
making information available to the public; and
WHEREAS, Subject to the terms set forth herein, Google will
digitize works from the University Libraries' collection to include
them in Google's services, and provide access to the digitized
works to the University as described herein.
NOW THEREFORE, in consideration of the mutual covenants set forth
herein, Google and University hereby agree as follows:
DEFINITIONS
1. DEFINITIONS. Capitalized terms will have the
meanings set forth below:
1.1 "Available Content" means selections from
the University Libraries' holdings as identified by Google and the
University. Without limiting the foregoing, "Available Content"
also includes the University Libraries' Digital Content.
1.2 "Brand Features" means the trade names,
trademarks, service marks, logos, domain names, and other
distinctive brand features of each Party, respectively, as secured
by such Party from time to time.
1.3 "Digitize" means to convert content from a
tangible, analog form into a digital electronic representation of
that content. "Digitization", "Digitizing" and "Digitized" shall
have corresponding meanings.
1.4 "End User" means a person that accesses or
uses the Google Services.
1.5 "Google Digital Copy" means a digital copy
retained by Google of the Selected Content that is Digitized by
Google.
1.6 "Google Services" means Google's products
and services that are accessible through and otherwise provided by
various computer and electronic technologies, networks (syndicated
and otherwise) and systems, including without limitation, mobile
wireless services and Internet-based services accessible through
the Google Sites and any Google syndication partner sites.
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1.7 "Google Site" means any web site located
at a Google-owned domain, including all subdomains and directories
thereof, and all successor sites thereto.
1.8 "Hosted Solution" shall have the meaning
set forth in Section 4.6.
1.9 "Initial Term" shall have the meaning set
forth in Section 8.1.
1.10 "Other Library" means any library
(including any libraries affiliated or associated with any
university or other educational institution, other than University)
with which Google has an agreement as of the Effective Date
concerning Digitization by Google of content from that library.
1.11 "University Digital Copy" means the
Digitized copy of the Selected Content as specified in Section 4.7.
1.12 "University Libraries' Digital Content"
means content that University Libraries already have In their
possession in Digitized form, as of the Effective Date.
1.13 "University Libraries" means those
libraries of the ten campuses of the University of California set
forth on Exhibit A and the University's Office of the President's
California Digital Library.
1.14 "University Library Patrons" means the
sum total of all individuals and organizations that the University
Libraries serve from their websites.
1.15 "Project" means a project for Digitizing
certain Selected Content.
1.16 "Project Plan" means a written plan for
implementing a Project. The Project Plan shall include the
following: (1) timetable for Digitizing the Selected Content, (2)
instructions by University regarding how the Selected Content is to
be collected and returned by Google; (3) material handling
processes for the Selected Content, (4) if required, the amount of
time available to University for performing conservation efforts;
(5) the amount of time available to Google from receipt of the
Selected Content until it is due to be returned to University; and
(6) a budget for the Project.
1.17 "Renewal Term" shall have the meaning set
forth in Section 8.1.
1.18 "Selected Content" means the portion of
the Available Content that Google desires to Digitize or
incorporate Into the Google Services, both collectively and its
component parts, including any and all other works of authorship
included therein.
1.19 "Term" shall have the meaning set forth in
Section 8.1.
TERMS
2. DIGITIZATION OPERATIONS.
2.1 Locating the Digitization Operation.
Selected Content will be digitized at a designated Digitization
facility. The facility will be located at a site controlled by the
University or at one controlled by Google. Where the facility is
controlled by the University, the University shall provide Google
with adequate physical space to Digitize the Selected Content. If
University is unable to provide such space, University shall
cooperate with Google to identify and obtain space that Google can
use at reasonable rates. If the facility is provided by Google.
Google shall pay for any and all fees and costs associated with the
use of said space; University shall not be liable for any such fees
and costs. Where the facility is controlled by Google, then Google
may remove some or all of the Selected Content from University
premises to perform Digitization in its facilities. Site selection
will be agreed by both parties and specified in the "Project Plan".
2.2 Identifying and Collecting Content to be
Digitized. The Parties shall in good faith identify Available
Content that Google may elect to Digitize; provided that University
agrees to commit no less than two and a half million (2,500.000)
volumes to the Digitization efforts under this Agreement. In
addition, University agrees that for a period of sixty (60) days
from the Effective Date, University will provide or provide Google
with access to no less than six hundred (600) books of Selected
Content per
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day to Digitize. University will use reasonable efforts to provide
or provide Google with access to no less than three thousand
(3,000) books (or such amount that is mutually agreed to by the
Parties) of Selected Content per day to Digitize commencing on the
sixty-first (61st) day after the Effective Date but in no event
later than ninety (90) days from the Effective Date. The Parties
shall cooperate in good faith and with diligence to develop a
timetable for completing the Project Plan for Digitizing the
Selected Content.
2.3 Collecting the Selected Content. Where
Selected Content is Digitized in facilities controlled by the
University, the University shall be responsible for locating,
pulling and moving the Selected Content to and from the designated
Digitization facility as well as re-shelving the Selected Content
when the Digitization is complete. Where Selected Content is
Digitized in facilities controlled by Google, the University shall
be responsible for locating, pulling, and later reshelving the
Selected Content. If agreed upon by the Parties in a particular
Project Plan, the collection, pulling, moving, and reshelving
functions may be assigned to Google. Google will be responsible for
arranging and paying for any and all costs and fees associated with
transporting the Selected Content to and from University and
storing it during a Project. Google agrees that each Digitization
facility it controls will, at all times be reasonably clean, dry,
cool, protected from fire and secure against theft and vandalism
and at no time shall smoking be permitted in any Digitization
facility. Google personnel, agents, contractors and other
representatives involved in the Digitization and/or handling of the
Selected Content will satisfy and comply with the standards
mutually agreed by the Parties in the Project Plan. Upon
commencement of a Project, University shall at its sole discretion
perform any conservation efforts, at its expense, that it
determines are required and/or desirable for the Selected Content
prior to Digitization. On a rolling basis, as this conservation
effort is completed, University shall provide the conserved
Selected Content to Google for Digitizing.
2.4 Digitizing the Selected Content. Subject
to handling constraints or procedures specified in the Project
Plan, Google shall In its sole discretion determine how best to
Digitize the Selected Content. While the Selected Content is within
Google's possession, Google shall use commercially reasonable
efforts to minimize damage to the Selected Content, including
handling the Selected Content in accordance with handling
instructions set forth in the Project Plan, if any. If the
University establishes that Selected Content was not returned in
substantially the same condition, Google will, at Google's option
and the University's sole remedy, either replace the Selected
Content in question or pay the University for the repair or
replacement of such Selected Content up to a maximum as may be
specified in the Project Plan.
2.5 Return of the Selected Content. Google
shall return the Selected Content to the library from which
Google obtained it and in the like manner in which it was collected
after Google completes Digitizing the Selected Content. Google will
use reasonable commercial efforts to ensure that Selected Content
is returned within ten (10) business days of its being scanned or
after a determination is made by Google that Selected Content will
not be scanned. Notwithstanding the foregoing, Google agrees that
no materials in a Project will be off University's shelves for
longer than fifteen (15) business days or for a longer period as
may be specified In the Project Plan.
3. COSTS
3.1 Costs paid by University. In addition to
costs mutually agreed upon by the Parties, University shall be
responsible for the following costs: (a) those related to locating
and pulling the Selected Content as well as re-shelving the
Selected Content when the Digitization is complete, (b) those
related to University employees and agents whose participation is
contemplated by this Agreement, (c) network bandwidth and data
storage required by University to receive all of the University
Digital Copy, (d) existing bandwidth available for use by Google to
transfer Digitized files from University facilities to Google's
data centers to the extent that University provides the
Digitization facility, (e) University space that may be available
and acceptable to Google for the Digitization, (f) transportation
of Selected Content to and from the University facility in which
the Selected Content is normally kept to and from the Digitization
facility provided by the University, (g) any conservation efforts
that University elects to
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undertake on the Selected Content prior to Digitizing, and (h)
barcoding and associated data entry to barcode the Selected
Content.
3.2 Costs borne by Google. In addition to
costs mutually agreed upon by the Parties, Google shall be
responsible for the following costs: (a) those related to Google
employees whose participation is contemplated by this Agreement,
(b) hardware and software required to Digitize the Selected
Content, (c) space required to Digitize the Selected Content (to
the extent not provided by University), (d) transportation of
Selected Content from the University facility where the Selected
Content is normally kept to a Google designated facility (to the
extent not provided by University), and (e) all costs related to
barcoding and inventory record building for materials selected for
Digitizing that do not have a barcode when pulled from the shelf
("dumb barcoding"); provided that (i) Google will bear such
barcoding costs only if University personnel are unable to insert a
barcode from University records and, in such case, University
personnel will dumb barcode the work and the costs will be billed
to Google on a mutually agreed upon time and materials basis (such
agreement to be in writing and signed by both parties) not to
exceed $0.50 per work barcoded; and (ii) the Parties will determine
the appropriate flow of works so that University will barcode at
Google's expense not more than six (6) months ahead of the
Digitizing schedule for such works. University agrees to provide to
Google its current costs to barcode works.
3.3 Budgets. Notwithstanding the foregoing,
University and Google may jointly develop a budget for each Project
Plan, pursuant to which the Parties can allocate the cost of
researching and identifying the Selected Content and performing any
required copyright research and clearances, conservation, and
metadata development as may be required. My such budget will take
precedence over the provisions of Sections 3.1 and 3.2 above.
4. OWNERSHIP AND USE OF DIGITAL COPIES AND SERVICES
4.1 Copyright Status. The Parties understand
that the Selected Content may include some works that will be
treated hereunder as public domain works and some works that will
be treated hereunder as in-copyright works. Both Google and
University agree and intend to perform this Agreement in compliance
with copyright law. Each Party will be responsible for the
determination of how to treat a work for each jurisdiction at its
sole discretion. Notwithstanding such determination, if either
Party believes a work (or portion thereof) should be treated as an
in-copyright work in either the United States or another
jurisdiction, and so notifies the other Party, then, within
forty-eight (48) hours of such notice, such work (or portion
thereof) shall be treated as an in-copyright work for use in the
relevant country. In addition, Google will implement processes
whereby any person or entity can request Google not to Digitize any
Available Content or to cease the display or use of any Digitized
Selected Content which Google will comply with so long as Google
determines that the person or entity making the request is the
copyright holder or has apparent authority to act on behalf of the
copyright holder.
4.2 Ownership and use of Google Digital Copy.
As between Google and University and subject to the provisions in
this Section 4, Google shall own all rights, title, and interest in
and to the Google Digital Copy.
4.3 Google use of Google Digital Copy. Subject
to the restrictions set forth herein, Google may use the Google
Digital Copy, in whole or in part at Google's sole discretion,
subject to copyright law, as part of the Google Services. Google
agrees that to the extent that it or its successors use any
Digitized Selected Content in connection with any Google Services,
it shall provide a service at no cost to End Users (1) for both
search and display of search results and (2) for access to the
display of the full text of public domain works contained in the
Digitized Selected Content. To the extent portions of the Google
Digital Copy are either In the public domain or where Google has
otherwise obtained authorization, Google shall have the right, in
its sole discretion, among other things, to (a) index the full text
or content, (b) serve and display full-sized digital images
corresponding to those portions, (c) make available full text of
content for printing and/or download, and (d) make copies of such
portions of the Google Digital Copy and provide, license, or sell
such copies (including, without limitation, to its syndication
partners). For all
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other portions of the Google Digital Copy, Google may index the
full text or content but may not serve or display the full-sized
digital image or make available for printing, streaming and/or
download the full content unless Google has permission or license
from the copyright owner to do so; Google instead may serve and
display (1) an excerpt that Google reasonably determines would
constitute fair use under copyright law and (2) bibliographic
(e.g., title, author, date, etc) and other non-copyrighted
information. In the event that Google has received a license or
other permission from the applicable copyright holder to use
in-copyright works in the Google Digital Copy, Google may use those
works in any manner permitted under the terms of such license.
4.4 Security and Privacy Regarding Google's Use of
the Google Digital Copy. Google shall implement commercially
reasonable technological measures (e.g., through use of the
robots.txt protocol) to restrict automated access to any portion of
the Google Digital Copy that is in-copyright. Google agrees that
the security measures applied to in-copyright portions of the
Google Digital Copy will be the same or equivalent to those
employed to protect the information contained in Google's index. In
addition, Google shall maintain on its website a privacy policy
that governs collection and use of information that Google obtains
from End Users.
4.5 Ownership and Control of Google Services.
As between the Parties, the Google Services and all content therein
are, and at all times will remain the exclusive property of Google
or its partners; nothing in This Agreement implies any transfer to
University of any ownership interest in the Google Services.
University acknowledges and agrees that Google retains control of
the Google Services, and that the design, layout, content,
functions and features of the Google Services are at Google's
discretion. Notwithstanding anything to the contrary in this
Agreement, Google is not required to make any or all of the Google
Digital Copy available through the Google Services.
4.6 Hosted Solution. During the Term, Google
will provide searchable access to the Google Digital Copy at no
charge to University and to University Library patrons via a
website that will be hosted by Google (the "Hosted
Solution"). The design, layout, content, functions and features
of the Hosted Solution will be determined by Google but
substantially similar to that provided by Google to any Other
Library.
4.7 University Digital Copy. Unless otherwise
agreed by the Parties in writing, the "University Digital
Copy" means the digital copy of the Selected Content that is
Digitized by Google consisting of (a) a set of image and OCR files,
(b) associated meta-information about the files including
bibliographic information consisting of title and author of each
Digitized work and technical information consisting of the date of
scanning the work, information about which image files correspond
to what Digitized work, and information pertaining to the logical
order of image files that make up a Digitized work, (c) a list of
works that are supplied for Digitization but not actually
Digitized, and (d) the image coordinates for each Digitized Work
("Image Coordinates"); provided that Image Coordinates will
only be provided (i) so long as University complies with the volume
commitments set forth in Section 2.2 and (ii) pursuant to the
restrictions on University's use and distribution of such Image
Coordinates set forth in Section 4.10.
4.7.1 Google agrees to provide to
University access to one copy of all Digitized Selected Content
that has been "Successfully Processed" within thirty (30) days
after the Selected Content is Digitized, or in a timeframe mutually
agreed by the Parties. Selected Content is "Successfully
Processed" when Google determines it has satisfactorily gone
through all stages of Google's Digitization, post processing and
quality assurance procedures. In addition Google will provide the
University with the ability to sample the files for two hundred and
fifty (250) Digitized works per month to assess quality. Google
agrees that the quality and type of files provided to University in
the University Digital Copy will be substantially similar to the
quality and type of files provided to any Other Library. Further,
the quality and type of files supplied by Google to the University
will conform to a minimum specification established by Google in
consultation with the University and by those Other Libraries.
Google shall provide the University Digital Copy via a network
connection, or in any other manner mutually agreed upon by the
Parties. Notwithstanding anything to the contrary herein, Google
may withhold any works in dispute from
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the University Digital Copy and the University will delete any such
works that were previously provided to University as part of the
University Digital Copy.
4.8 Ownership and use of University Digital
Copy. As between Google and University and subject to The
restrictions in this Section 4, University shall own all rights,
title, and interest to the University Digital Copy. Without limiting
the foregoing, University shall not display or otherwise use the
University Digital Copy except as expressly permitted in this
Agreement.
4.9 Use of University Digital Copy.
University shall have the right to use The University Digital Copy,
in whole or in part at University's sole discretion, subject to
copyright law, as part of services offered to the University
Library Patrons. University may not charge, receive payment or
other consideration for the use of the University Digital Copy
except that University may charge for use of any services
supplemental to the original work that the University supplies that
add value to the University Digital Copy (for example, University
may charge University Library Patrons for access to annotations to
works from professors and scholars but the original work will
always be accessible without a fee), and to recover copying costs
actually incurred. University agrees that to the extent it makes
any portion of the University Digital Copy publicly available, that
it will identify the works, in a statement on a web page or other
access point to be mutually agreed to by the Parties, as "Digitized
by Google" or in a substantially similar manner. University shall
implement technological measures (e.g., through use of the
robots.txt protocol) to restrict automated access to any portion of
the University Digital Copy or the portions of the University
website on which any portion of the University Digital Copy is
available. University shall also prevent third parties from (a)
downloading or otherwise obtaining any portion of the University
Digital Copy for commercial purposes, (b) redistributing any
portions of the University Digital Copy, or (c) automated and
systematic downloading from its website image files from the
University Digital Copy. University shall develop methods and
systems for ensuring that substantial portions of the University
Digital Copy are not downloaded from the services offered on
University's website or otherwise disseminated to the public at
large. University shall also implement security and handling
procedures for the University Digital Copy which procedures shall
be mutually agreed by the Parties. Except as expressly allowed
herein, University will not share, provide, license, or sell the
University Digital Copy to any third party.
4.10 Distribution of the University Digital Copy.
(a) University shall not share, provide, license,
distribute or sell the Image Coordinates to any entity in any
manner. University may use the Image Coordinates only as part of
the University Digital Copy for the services provided to University
Library Patrons set forth in Section 4.9 above.
(b) Subject to the restrictions contained herein,
University shall have the right to distribute (1) no more than ten
percent (10%) of the University Digital Copy (but not any portion
of the Image Coordinates) to (i) other libraries and (ii)
educational institutions, in each case for non-commercial research,
scholarly or academic purposes and (2) all or any portion of public
domain works contained In the University Digital Copy (but not any
portion of the Image Coordinates) to research libraries for
research, scholarly and academic purposes by those libraries and
the faculty, students, scholars and staff authorized by said
libraries to access their commercially licensed electronic
information products. Any recipient of the University Digital Copy
under this Section 4.10 is referred to herein as a "Recipient
Institution." Prior to any distribution by University to a
Recipient Institution, Google and the Recipient Institution must
have entered into a written agreement on terms acceptable to Google
governing the use of the University Digital Copy and that, among
other things, provide an indemnity to Google. In addition, any
distribution by University to a Recipient Institution is subject to
a written agreement that (A) prohibits that Recipient Institution
from redistributing without first obtaining the prior written
consent of Google, (B) makes Google an express third party
beneficiary of such agreement, (C) provides an indemnity to Google
from the Recipient Institution for the Recipient Institution's use
of the Selected Content, (D) contains limitations at least as
restrictive as the restrictions on University set forth in Section
4.9, (E) contains limitations on the use of the University Digital
Copy consistent with copyright law and the limitations set forth in
clauses (1) and (2) above, and (E) requires each Recipient
Institution, to the extent it makes any
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portion of the University Digital Copy publicly available, to
identify the works, in a statement on the applicable web page or
other access point, as "Digitized by Google" or in a substantially
similar manner.
5. ACCESS, AUTHORIZATION AND SUPPORT
5.1 Access. Google shall have the right to
access Selected Content during University business/staff hours as
required to exercise its rights and perform its obligations
hereunder. If requested by Google, University shall provide Google
with access to Selected Content outside of University business
hours provided that Google notify University at least two (2) days
in advance of its intent to access such materials.
5.2 AuthorizatIon. The University program
manager responsible for the Selected Content involved in any
Project Plan shall have authority to agree with Google on the time
frames and procedures (e.g., collection, conservation, and
handling) associated with that Selected Content. If Google in good
faith believes that the time frames and procedures requested by the
University program manager are unreasonable, Google shall escalate
the matter to the University administrative contact In which case
Google, the University program manager, and the administrative
contact shall meet to resolve the issue.
5.3 Support from University. University shall
appoint one person to serve as the administrative contact for
Google, should administrative questions or issues arise during the
course of this Agreement. This administrative contact shall be
available during regular University business hours (9:00 a.m. to
5:00 p.m., Monday through Friday) at a telephone number and e-mail
address to be provided by University. University shall also appoint
one person to serve as the technical contact for Google, for
obtaining or regulating the use of the University Digital Copy.
This technical contact shall be available during regular University
business hours at a telephone number and e-mail address to be
provided by University. Upon execution of this contract, both
Google and University shall identify these individuals in writing,
which may be email.
5.4 Support from Google. Google will appoint
specific persons for technical and administrative contact purposes,
as identical to the conditions specified in 5.3 for University
contacts.
6. CONFIDENTIALITY
6.1 Confidentiality. By virtue of this
Agreement, each Party may have access to information of the other
Party which is considered confidential and proprietary, including
product plans, customer lists, and proprietary technology or
methods ("Confidential Information"), whether disclosed
in tangible or intangible form. Information disclosed in tangible
form will be considered Confidential Information if it is marked as
"Confidential". Information disclosed in intangible form will be
considered Confidential Information if the disclosing Party clearly
indicates that it is confidential at the time of disclosure.
6.2 Obligations. Each Party shall exercise at
least the same degree of care to avoid the publication or
dissemination of the Confidential Information of the other Party as
it affords to its own confidential information of a similar nature
which it desires not to be published or disseminated. The receiving
Party shall not use Confidential Information of the disclosing
Party except in connection with this Agreement and the matters
contemplated hereby. The obligation of the Parties not to disclose
Confidential Information survives termination or cancellation of
this Agreement.
6.3 Exceptions. Neither Party is obligated to
protect Confidential Information of the other Party that: (i) is
received by the receiving Party from a third party which is not
known to the receiving Party to be under a confidentiality
obligation to the disclosing Party, or (ii) is known to or
developed by the receiving Party independently without use of, or
reference to, the Confidential Information, or (iii) is or becomes
generally available to the public by other than a breach of duty
hereunder by the receiving Party, (iv) has been or is hereafter
furnished to others by the disclosing Party without restriction on
disclosure, or (v) is required to be disclosed by any law,
governmental authority or legal process
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("Process"); provided that (a) the Recipient shall promptly
notify the Discloser of such Process; and (b) the Recipient shall
not produce or disclose Confidential Information in response to the
Process unless the Discloser has (1) requested protection from the
appropriate court or other legal or governmental authority
requiring the Process and such request has been denied, (2)
consented in writing to the production or disclosure of the
Confidential Information in response to the Process, or (3) taken
no action to protect its interest in the Confidential Information
within fourteen (14) business days after the Recipient has given
notice of its obligation to produce or disclose Confidential
Information in response to the Process. The Discloser agrees that
it will indemnify, defend, and hold harmless the Recipient for all
damages, costs, liabilities, and fees, including reasonable
attorney's fees, arising out of any third party claims that the
failure to comply with the Process violates an applicable law,
provided that Recipient's failure to comply is a result of adhering
to the foregoing provisions; provided that the Recipient (i)
promptly notifies the Discloser of such claim, (ii) provides the
Discloser with reasonable information, assistance and cooperation
in defending the claim, lawsuit or proceeding, and (iii) gives the
Discloser full control and sole authority over the defense and
settlement of such claim. The Recipient may join in defense with
counsel of its choice at its own expense.
6.4 PR. Neither Party will issue any public
announcement regarding the existence or content of this Agreement
without the other Party's prior written approval. Google may
include the name "University of California" and the University
unofficial seal in lists of other partner libraries, subject to the
following: Google may use the University's name and unofficial seal
in presentations and promotional/marketing materials only with the
University's prior written permission. In lieu of submitting
individual requests prior to each such use, Google may submit a
plan for such presentations and promotional/marketing materials for
University's review and approval.
7. BRAND FEATURES
7.1 Ownership. Each Party shall own all right,
title and Interest relating to its Brand Features. Some, but not
all examples of Google Brand Features are located at:
http://www.google.com/permissions/trademarks.html (or such other
URLs Google may provide from time to time). Except to the limited
extent expressly provided in this Agreement, neither Party grants,
and the other Party shall not acquire, any right, title or interest
(including, without limitation, any implied license) in or to any
Brand Features of the first Party, and all rights not expressly
granted herein are deemed withheld. All use by Google of University
Brand Features (including any goodwill associated therewith) shall
inure to the benefit of University and all use by University of
Google Brand Features (including any goodwill associated therewith)
shall inure to the benefit of Google. No Party shall challenge or
assist others to challenge the Brand Features of the other Party
(except to protect such Party's rights with respect to its own
Brand Features) or the registration thereof by the other Party, nor
shall either Party attempt to register any Brand Features or domain
names that are confusingly similar to those of the other Party.
7.2 License to University Brand Features.
Subject to the terms and conditions of this Agreement, University
grants to Google a limited, nonexclusive and nonsublicensable
license during the Term to display those University Brand Features
expressly authorized for use in this Agreement, solely for the
purposes expressly set forth herein. Notwithstanding anything to
the contrary, University may revoke the license granted herein to
use University's Brand Features upon providing Google with written
notice thereof and a reasonable period of time to cease such usage.
8. TERM AND TERMINATION
8.1 Term. This Agreement is effective as of
the Effective Date and continues in full force and effect for a
period of six (6) years, unless earlier terminated as provided
herein (the "Initial Term"). Upon the expiration of the
Initial Term, this Agreement shell automatically renew for
additional one year terms (each a "Renewal Term") unless
either Party notifies the other Party to the contrary at least
thirty (30)
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days before the end of either the Initial Term or a Renewal Term.
The "Term" of this Agreement shall comprise the Initial Term
and any Renewal Terms.
8.2 Termination. Either Party may suspend
performance and/or terminate this Agreement (i) if the other Party
materially breaches any material term or condition of this
Agreement and fails to cure such breach within thirty (30) days
after receiving written notice thereof; or (ii) if the other Party
becomes insolvent or makes any assignment for the benefit of
creditors or similar transfer evidencing insolvency, or suffers or
permits the commencement of any form of insolvency or receivership
proceeding, or has any petition under bankruptcy law filed against
it, which petition is not dismissed within sixty (60) days of such
filing, or has a trustee, administrator or receiver appointed for
its business or assets or any part thereof.
8.3 Effect of Expiration or Termination. After
expiration or termination of this Agreement for any reason: (i)
each Party shall within thirty (30) days return to the other Party
(or, at that Party's request, destroy) any Confidential Information
of that Party that is in its possession, (ii) Google shall within
Thirty (30) days return to the University any Selected Content that
it has in Its possession or in transit at termination in a manner
specified in SectIon 2.5, (iii) the University shall within ninety
(90) days download any digitized Selected Content that has been
created by Google during the Term but not yet downloaded by the
University at termination, in a manner specified in Section 4.7.1.
The following sections survive expiration or termination of this
Agreement: 1, 2.4, 2.5, 4 (excluding Section 4.6), 6, 8.3, 9, 10
and 11.
9. DISCLAIMER OF WARRANTIES
9.1 Mutual Warranties. Each Party represents
and warrants to the other that (i) the individual who executes this
Agreement has full power and authority to do so; and (ii) this
Agreement constitutes its valid and binding obligation, enforceable
against it in accordance with its terms.
9.2 Disclaimer. THE WARRANTIES EXPLICITLY SET
FORTH ABOVE ARE THE ONLY WARRANTIES PROVIDED HEREIN AND ARE IN LIEU
OF ALL OTHER WARRANTIES BY THE PARTIES, EXPRESS OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, WITH RESPECT TO THE SUBJECT MATTER OF THIS
AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BOTH
PARTIES SPECIFICALLY DISCLAIM ANY WARRANTY REGARDING
NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY.
10. INDEMNIFICATION.
10.1 By Google. Google shall defend,
indemnify, and hold harmless University from and against any and
all liabilities, damages, charges, fees, including reasonable
attorneys' fees, costs, and expenses arising out of or in any way
related to a third party claim, lawsuit, and/or any other legal,
quasi-legal, or administrative proceeding alleging that any or all
of the following violate any applicable law, including, but not
limited to, an allegation of copyright infringement: University's
provision of Available Content to Google for digitization to the
extent such provision is alleged to be direct or secondary
copyright infringement; Google's Digitization of Available Content;
the use or distribution of Google Digital Copy(ies); and/or the use
of the Google Digital Copy in connection with Google Services. The
foregoing indemnification excludes any third party claim that
relates to University's use or distribution of the University
Digital Copy.
10.2 By University. University shall defend,
indemnify, and hold harmless Google from and against any and all
liabilities, damages, charges, fees, including reasonable
attorneys' fees, costs and expenses arising out of or in any way
related to a third party claim, lawsuit, and/or any other legal,
quasi-legal, or administrative proceeding alleging that any or all
of the following violate any applicable law including, but not
limited to, an allegation of copyright infringement: University's
use or University's distribution of the University Digital Copy.
The foregoing indemnification excludes any third party claim that
relates to University's provision of Available Content to Google
for digitization to the extent such
Page 10
provision is alleged to be direct or secondary copyright
infringement; Google's Digitization of Available Content; the
Google Digital Copy; the use or distribution of Google Digital
Copy(ies); and/or the use of the Google Digital Copy in connection
with Google Services.
10.3 General. The foregoing obligations shall
exist only if the Party seeking indemnification
("Indemnitee"): (i) promptly notifies the Indemnitor of such
claim, (ii) provides the Indemnitor with reasonable information,
assistance and cooperation in defending the claim, lawsuit or
proceeding, and (iii) gives the Indemnitor full control and sole
authority over the defense and settlement of such claim. The
Indemnitee may join in defense with counsel of its choice at its
own expense.
11. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST
PROFITS OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY CHARACTER FROM ANY CAUSES OF ACTION OF
ANY KIND WITH RESPECT TO THIS AGREEMENT, WHETHER BASED ON BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. AND WHETHER OR
NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE, AND (B) EACH PARTY'S LIABILITY UNDER THIS AGREEMENT SHALL
BE LIMITED TO ONE MILLION DOLLARS ($1,000,000). The Parties agree
that (i) the mutual agreements made in this Section 11 reflect a
reasonable allocation of risk, and (ii) that each Party would not
enter Into the Agreement without these limitations on liability.
The foregoing limitations, however, are not applicable to any
damages arising from a breach of Section 6, Confidentiality, to any
monetary obligations arising out of the indemnification obligations
in Section 10, Indemnification, including, but not limited to,
indemnification for allegations of copyright infringement, or to
any damages related to actions for personal injury or willful
misconduct.
12. GENERAL PROVISIONS
12.1 No Obligation. Notwithstanding the
foregoing, Google shall have no obligation to Digitize any portion
of the Available Content nor to use any portion of the Google
Digital Copy as part of the Google Services. Likewise,
notwithstanding anything in this Agreement to the contrary,
University shall not be obligated to participate in the
digitization program described in this Agreement with respect to
any or all of the Available Content. Furthermore, notwithstanding
anything in this Agreement to the contrary, if Google determines,
at its sole discretion, not to Digitize some or all Selected
Content in connection with one or more specific Projects, whether
due to cost issues, conservation concerns or otherwise, Google
shall have no obligation to the University with respect to
Digitizing or delivering the University Digital Copy with respect
to such Selected Content.
12.2 Miscellaneous. Neither Party may assign
any of its rights or delegate any of its duties under this
Agreement without the prior written consent of the other Party,
except that either Party may assign its rights and delegate its
duties under this Agreement upon written notice to the other Party
to a division or an affiliate thereof (that is not a competitor of
the non-assigning Party), provided such division or affiliate
agrees to be bound by all of the terms hereof. Any attempted
assignment, delegation or transfer in derogation hereof shall be
null and void. This Agreement shall be binding upon the successors
and permitted assigns of both Parties. Unless provided for to the
contrary in this Agreement, any and all notices or other
communications or deliveries required or permitted to be made under
this Agreement shall be sent to the respective party at the
respective address identified above. Notice shall be deemed
received (i) upon receipt when delivered personally or (ii) upon
verification of receipt of registered or certified mail, return
receipt requested. Contact information shall be updated in writing
as necessary to ensure that each Party has current information
regarding all such contacts. The Parties hereto are and shall
remain independent contractors, and nothing herein shall be deemed
to create an agency, partnership, or joint venture between the
Parties hereto. This Agreement does not affect any right that
either Party would have had, or shall have, independent of the
Agreement under applicable law. Neither
Page 11
Party shall be liable for failing or delaying performance of its
obligations resulting from any condition beyond its reasonable
control, including but not limited to, governmental action, acts of
terrorism, earthquake, fire, flood or other acts of God, labor
conditions, power failures, and Internet disturbances. If any
provision of this 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 Agreement shall otherwise remain in full
force and effect and remain enforceable between the Parties. The
failure of either Party to act in the event of a breach of this
Agreement by the other shall not be deemed a waiver of such breach
or a waiver of future breaches. No provision of this Agreement is
intended to confer any rights, benefits, remedies, obligations, or
liabilities hereunder upon any person or entity other than the
Parties and their respective successors and assigns. The section
and paragraph headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation
of this Agreement. This Agreement sets forth the entire
understanding and agreement between the Parties, supersedes any and
all previous agreements on the subject matter, whether written or
oral, and may be amended only in a writing signed by both Parties,
This Agreement shall be governed by the laws of the State of
California, without regard to its principles of conflicts of law.
Any litigation hereunder shall be brought in any state or federal
court of competent jurisdiction in Santa Clara or Alameda
County, California; the Parties agree that venue shall be proper
in, and consent to the personal jurisdiction of, such courts. This
Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which, when taken
together, shall constitute one and the same instrument.
[Rest of page left intentionally blank.]
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IN WITNESS WHEREOF, this Agreement has been executed by persons
duly authorized as of the "Effective Date", which shall be the date
written by Google below.
Google
By: /s/ David Eun
Print Name: David Eun
Title: VP, Content Partnerships
Date: Aug 3, 2006
The Regents of the University of California:
By: /s/ Robert Dynes
Print Name: Robert Dynes
Title: President U.C.
Date: July 27 / 06
[Signature Page to Cooperative Agreement]
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EXHIBIT A
University Library, UC Berkeley
University Library, UC Davis
University Library, UC Irvine
University Library, UCLA
University Library, UC Merced
University Library, UC Riverside
University Library, UC San Diego
University Library, UC San Francisco
University Library, UC Santa Barbara
University Library, UC Santa Cruz
California Digital Library