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8. License
Agreement
1. THE PARTIES:
"Customer" means the person(s) and/or organization that have
ordered or are taking a trial of the Product(s) as listed in Appendix A.
The location listed in Appendix A is the "Site."
"ASP" means Alexander Street Press, LLC, whose registered
offices are situated at 3212 Duke Street, Alexandria, Virginia 22314.
"IP" means the owners of copyright in the original materials
that form part of the Product(s).
2. USER LICENSE: This Agreement
constitutes a non-exclusive, non-transferable license to use the
Product(s) listed in Appendix B. The Product(s) include(s) the data, any
accompanying search and retrieval software, the documentation, and any
accompanying tapes or disks.
3. AUTHORIZED USE: Subject to
the restrictions contained in Article 5 below, the Customer is hereby
granted a non-exclusive license to use the Product(s) in way that is
consistent with U.S. Fair Use Provisions and international law, and to
make limited numbers of hard or electronic copies for research,
education, or other non-commercial use only; for more extended use, the
Customer must obtain prior consent in writing from ASP or the relevant
IP.
The Customer's rights are limited to
itself alone and do not extend to subsidiary or parent corporations, or
to any other related or affiliated organizations. Any rights not
expressly granted in this license are reserved to ASP.
4. RESTRICTIONS: The Customer
may not decompile or reverse engineer the Product(s); modify or create a
derivative work; remove, obscure, or modify copyright notices; sell,
distribute or commercially exploit the Product(s); or transfer, assign
or sublicense this license.
5. AUTHORIZED USERS: Authorized
Users are the Customer's currently enrolled full- or part-time students,
employees, faculty, staff, affiliated researchers, distance learners,
visiting scholars, and walk-in patrons who are physically present at the
Site. The Product(s) may be used by the licensed number of simultaneous
users for which the Customer has paid.
6. DELIVERY / ACCESS: The
Product(s) will be stored at one or more locations in digital form. If
the Customer has paid for an annual Web subscription, Authorized Users
will be granted access to these location(s). If the Customer has
purchased perpetual access to the Product(s), ASP will provide the
Customer with the data contained in the Product(s) on a CD-ROM or
magnetic tape, which the Customer can either archive or load onto a
local server to be accessed by the Customer's search and retrieval
software.
7. CUSTOMER SUPPORT: ASP will
offer reasonable levels of continuing support via email, phone or fax,
during normal business hours, for feedback, problem-solving, or general
questions. Any technical assistance that ASP may provide to the Customer
is provided at the sole risk of the Customer. The Customer shall name
one (1) technical support staff person (listed in Appendix A).
8. PRICING AND TERM: The price
of the Product(s) and term of use are specified in a separate agreement
letter and may be renegotiated periodically. ASP will provide web access
at the start of the term for which the Customer has paid the initial
subscription fee. The term will be extended to all periods for which the
Customer has paid. In the event that ASP and the Customer mutually agree
to an updated version of this Agreement, the updated version shall
replace this version. ASP reserves the right to cease offering the
Customer the opportunity to renew a subscription.
9. PRODUCT UPDATES: The Customer
will receive updates to the Product(s) for which the appropriate fee has
been paid. If the Customer fails to comply with any of its
responsibilities under this Agreement, the Customer may be denied any
and all future updates, without precluding ASP from seeking any other
remedies.
10. PERFORMANCE: ASP will use
reasonable efforts to ensure that its servers have sufficient capacity
and rate of connectivity to provide the Customer with a quality of
service comparable to current standards in the online information
provision industry in the Customer's locale. ASP will use reasonable
efforts to provide continuous service with an average of 28 days of
up-time per month. Scheduled down-time will be performed at low-usage
times.
11. LIMITATION OF WARRANTIES AND
LIABILITY: ASP warrants that any tape or disk licensed hereunder is
free from defects in materials and workmanship under normal use. ASP
will replace defective tapes and disks free of charge upon their return
to ASP. This will be ASP's and the IP's entire liability with respect to
this license. ASP and the IPs warrant and represent that they have the
right to enter into this Agreement and to deliver the Product(s)
"as is."
These warranties are in lieu of any and
all other warranties, written or oral, express or implied, including
without limitation, warranties of merchantability of fitness for a
particular purpose, all of which ASP disclaims. In no event will ASP be
liable for more than the license fee paid (whether such liability arises
from breach of warranty, breach of this contract or otherwise, and
whether in contract or in tort, including negligence and strict
liability).
12. TERMINATION: If the Customer
breaches any term of this Agreement, ASP may, in addition to its other
legal rights and remedies, terminate this license on 7 days written
notice to Customer, if Customer has not remedied the breach within the 7
days. Upon any termination, the Customer will forthwith return to ASP
the Product(s) and all copies thereof, and will erase all electronic
storage of copies of the Product(s). Any termination, whether or not
pursuant to this Article 13, will not affect any obligation or liability
of a party arising prior to termination, and the provisions of Articles
12 will survive any termination.
13. FORCE MAJEURE: Neither ASP
nor the IP will be responsible for any delay or failure in performance
resulting from any cause beyond their control.
14. APPLICABLE LAW: This
Agreement will be governed by and construed in accordance with the laws
of Virginia without giving effect to the principles of conflict of laws
thereof, and to the extent permitted by applicable law, the Customer
consents to the jurisdiction of courts situated in Virginia in any
action arising under this Agreement.
15. DISPUTE RESOLUTION: If any
differences arise between the Customer and ASP relating to the meaning
of this Agreement, the parties agree to resolve such differences through
Arbitration or by any other means to which the two parties may agree.
16. INDEMNIFICATION: Each party
shall indemnify and hold the other harmless for any losses, claims,
damages, awards, penalties, or injuries incurred by any third party,
including reasonable attorney's fees, which arise from any alleged
breach of such indemnifying party's representations and warranties made
under this Agreement, provided that the indemnifying party is promptly
notified of any such claims. This indemnity shall survive the
termination of this Agreement.
17. ENTIRE UNDERSTANDING: This
Agreement constitutes the entire understanding of the parties and
supercedes all prior communications, understandings and agreements
relating to the subject matter hereof, whether oral or written.
18. AMENDMENT: No modification
or claimed waiver of any provision of this Agreement shall be valid
except by written amendment signed by authorized representatives of the
Customer and ASP.
19. ENFORCEABILITY BY IP: The IP
retains its rights to enforce its trademarks, copyrights, patents, trade
secrets and other rights against any violation thereof.
20. SEVERABILITY: If a term or
condition of this Agreement is invalid or unenforceable, the remaining
terms and conditions hereof shall remain in full force and effect and
shall be enforceable to the maximum extent permitted by law.
Appendix A
- The Customer is XXXX
- The Site is XXXXX
- Authorized Users are the Customer's
currently enrolled full-time or part-time students, employees,
faculty, staff, affiliated researchers, distance learners, visiting
scholars, and walk-in patrons who are physically present at the
Site.
- Nominated technical support staff is
XXXXX
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