This Annual Authorizations Service Repertory License Agreement is effective as of _______________ and is made between Copyright Clearance Center, Inc., a New York not-for-profit corporation ("CCC"), and the following government entity ("User"):
Capitalized terms not defined elsewhere in this Agreement are defined in Section H.
Grant of License.
CCC, as agent for the Rightsholders, grants to User the non-exclusive right to create Hard Copies of Works in the United States, its territories and protectorates, for use and distribution by User for User's Internal Purposes.
The rights granted hereunder do not include any right to Photocopy all or substantially all of a Work (except as provided in the last sentence of Section H.11). Further, the rights granted hereunder do not extend to User's request for or receipt of Photocopies from Other Persons.
The rights granted to User hereunder are expressly limited to those described above.
Upon User's adherence to the terms and conditions of this Agreement during the Initial Term, and upon payment by User of the License Fee for the first Renewal Term, any and all of Rightholders' unasserted prior claims for copyright infringement of Works falling within the scope of the rights granted under Section A.1 hereof shall be automatically waived.
Term and Termination.
This Agreement shall be in effect during the Initial Term and shall continue thereafter for one (1) Renewal Term, unless terminated earlier as provided below; provided, however, that it shall be a condition to commencement of any Renewal Term tha User shall have paid to CCC the amount determined by CCC to be the License Fee due for such Renewal Term no later than the first day of such Renewal Term.
User may terminate this Agreement at any time upon written notice to CCC, effective as of the end of the existing Term.
CCC may terminate this Agreement at any time upon written notice to User in the event that User breaches its obligations under this Agreement and such breach is not cured within thirty (30) days after User is notified in writing of the nature of the breach, but no such termination shall entitle User to a refund of any License Fees previously paid.
CCC may terminate this Agreement without cause, effective as of the end of a Term upon no less than one (1) year's prior written notice to User.
Upon execution of this Agreement, User shall pay to CCC a License Fee for the Initial Term equal to the total amount indeitified below, based upon a cost for each Professional Employee determined according to the User's Agency Fee Category (below). the License Fee constitutes a royalty for User's access to, and use of, the Works, plus a General and Administrative charge, which royalty and charges are also identified below . User represents and warrants that the total number of Professional Employees (as defined in Section H.6) on which the License Fee is based is identified below.
CCC shall notify User of the amount of the License Fee for a Renewal Term at least sixty (60) days prior to the beginning of such Renewal Term, provided that CCC has received from User, at least fifteen (15) days prior thereto, the User-specific information required to complete such calculations. The License Fee for each Renewal Term shall be due and payable no later than the first day of such Renewal Term.
Because they are based on access to the CCC Annual Authorizations Service repertory, the License Fees set forth herein are net of all factors that might otherwise be considered deductions therefrom, including fair use and Photocopying of User's own works that may be included in such repertory.
User will notify CCC promptly of any changes in numbers of User's employees (in total or in Professional Employees) that might reasonably be expected significantly to affect User's copying activities.
Copying Data and Confidentiality..
User agrees to cooperate with CCC in conducting a set of surveys of User's Photocopying activities of sixty (60) days' duration, at up to two (2) User locations which are mutually agreed upon by the parties, to commence within a reasonable time after notice thereof by CCC. Timely completion of such surveys is a material term of this Agreement. CCC will determine survey frequency for entities reasonably congruent to User, which frequency will be no greater than one (1) set of surveys in every two (2) consecutive Terms (of this or substantially similar Agreements), and CCC agrees that User will not be required to conduct surveys more frequently than the frequency set for user's congruent industries. Notwithstanding the foregoing, the parties agree that a particular set of surveys may have to be redone if CCC determines that the survey(s) conducted did not comply with CCC's standard procedures then in effect.
Each of the Rightsholders whose Works are licensed hereunder has agreed with CCC to rely upon the results of surveys for computing the distribution among them of the License Fees collected from User and other users. User represents to CCC and to such Rightsholders that it will conduct any surveys in compliance with CCC's then-standard procedures. User also agrees to permit CCC, subject to reasonable confidentiality agreements if requested by User, to participate on its premises during survey periods to the extent CCC feels it necessary to verify the accuracy of User's surveys.
CCC shall keep confidential and shall not disclose to Rightsholders or to anyone else, except pursuant to court process or order, any of the information User supplies to it concerning specific User copying transactions. Notwithstanding the foregoing, CCC may provide to Rightholders the identities of Users licensed under CCC's Annual Authorizations Service, as well as aggregated information that does not specifically identify any individual User's Photocopying of any individual Work, and CCC may retain information relating to User's Photocopying as part of the databases of survey results required to administer both the collection and distribution of royalties under the Annual Authorizations Service. In the event of court process of order requiring production of information, CCC shall provide timely notification to User but shall not be required to actively oppose providing the information sought.
Representations and Warranties of CCC and Rightsholders.
CCC represents and warrants that it is authorized to act as agent of the Rightsholders in granting this license on the terms set forth herein.
CCC represents and warrants that Rightsholders have warranted to CCC that they are authorized to license the rights to the Works which are granted to User hereunder.
Except as provided in Sections B and F, Rightsholders make no representations or warranties hereunder.
This Agreement shall be governed by and construed under the laws of the United States and the State of New York, without regard to the principles thereof of conflicts of law. Any case, controversy, suit, action or proceeding arising out of, in connection with, or related to this Agreement shall be brought in any federal court located in the County of New York, State of New York. User and CCC expressly submit to the personal jurisdiction and venue of any federal court located in the County of New York, State of New York.
This Agreement and the Basic Ordering Agreement between CCC and the Library of Congress / Contracts and Logistics Service effective through September 30, ________ , constitute the entire agreement between the parties with respect to the subject matter hereof and may not be modified except in accordance with such Basic Ordering Agreement. In the event of any conflict in provisions between this Agreement and the Basic Ordering Agreement, the latter will control.
Neither party to this Agreement shall have the right to assign or sublicense any of its rights or obligations hereunder without the prior written consent of the other party, and any unauthorized assignment or sublicense shall be void and of no force or effect.
The following words shall have the following meanings when used in this Agreement:
Hard Copy shall mean a reproduction, created by Photocopying, of a portion of a Work on paper or a paper equivalent (for example, film or acetate).
Initial Term shall mean the period beginning on the date set forth at the top of this Agreement and ending on the first anniversary thereof.
Internal Purposes shall mean the ordinary business purposes of User; provided, however, that Internal Purposes shall not include: (i) fee-for-service copying, (ii) the sale of copies, (iii) the systematic reproduction and distribution of copies to Other Persons, including inter-library loans, or (iv) the bulk reproduction and distribution of copies to Other Persons.
Other Persons shall mean all persons other than the User.
Photocopying or To Photocopy shall mean the creation of a Hard Copy by any existing or subsequently developed means of reprography analogous to, or performing the function of, photocopying, whether electrostatic, photographic, electronic, or otherwise; provided, however, that Photocopying shall not include the right:
to input or to store a Work in electronic/digital form, with the potential for later retrieval or reproduction, except for a transitory electronic/digital copy that may be required in the process of producing a Hard Copy;
to access a Work by display on a screen or other viewing method;
to alter or manipulate a Work in any way; or
to reproduce any Work onto a second electronic or digital storage medium for purposes of redistribution, except incidentally in connection with a licensed use, such as in facsimile transmission for Internal Purposes.
Professional Employees shall mean the sum, for all establishments of User, of (i) the "overall totals" of persons identified by the Office of Personnel Management of the United States Government ("OPM") as being Professional employees or Administrative employees of User; plus (ii) all those persons whom User can effectively control and compel to comply with the terms of this Agreement and who would otherwise be Professional employees or Administrative employees within the definitions used by OPM but for the fact that they are under such control of User not as employees by through contracts of other arrangements between User and an Other Person (such as through "outsourcing" arrangements or where User is engaged to operate a facility for such Other Person).
Renewal Term shall mean each successive one-year period of this Agreement beginning on the first anniversary hereof.
Rightsholders shall mean those entities or individuals who have granted CCC authority to license any of the rights described in Section A of this Agreement.
Term shall mean either the Initial Term or a Renewal Term, as required by the context.
User shall mean the entity named at the top of this Agreement, together with its employees and Other Persons who User can effectively control and compel to comply with the terms of this Agreement (and which controlled Other Persons User has identified to CCC).
Works shall mean any publication listed in CCC's repertory for its Annual Authorizations Service, as such repertory may be published and/or supplemented by CCC from time to time. Each Work in such repertory has been placed there with the authorization of one or more Rightsholders. The repertory shall be available in publicly-accessible electronic form and any Work listed therein on the first day of a Term of this Agreement, together with any Work added during such Term, shall be licensed hereunder from the day it is first listed until the end of such Term (even if it is removed during such Term). Photographs, illustrations, graphs and similar materials which are identified as included in a Work by permission may not be Photocopied except in the context of the Work. For purposes of this Agreement, each issue of a journal or a periodical shall be considered a separate Work; provided, however, that the prohibition hereunder against Photocopying all or substantially all of a Work shall not extend to any Work that is a portion of a larger work (such as where the work is an article in a journal issue containing many articles).
Copyright Clearance Center, Inc.
222 Rosewood Drive
Danvers, Massachusetts 01923