PUBLICATION SERVICES AGREEMENT
January 26, 2016
The terms and conditions listed below govern access to, and use of: Publications and the Digital Library (if ordered) as supplied by us or our US affiliates (the “Publication Services”) and the materials and content available therein as supplied by us or our US affiliates (“Materials”), provided by LexisNexis, a division of RELX Inc. and its affiliated companies (collectively “LN”). The terms “you” and “your” in uppercase or lowercase shall mean the entity (e.g., company, corporation, partnership, sole proprietor, etc.) or government agency entering into these terms and conditions with LN. These terms and conditions, together with the Order Form and Additional Terms, and any digital rights management (“DRM”) included in the Electronic Publications, and terms posted within the Digital Library, constitute the entire agreement between you and us in relation to the provision of the Publication Services and the Materials (“this Agreement”).
The following are definitions for additional terms used below.
- (a) “Application Services” describes the digital content lending platform developed, managed and hosted by LN’s licensor, OverDrive, Inc.
- (b) “Digital Library” is the Application Services together with the Digital Library Publications.
- (c) “Digital Library Publications” are the Electronic Publications that are provided by LN through the Application Services.
- (d) “Publications” include Digital Library Publications and Non-Digital Library Publications.
- (e) “Non-Digital Library Publications” include print publications and Electronic Publications not distributed on the Application Services.
- (f) “Electronic Publications” include CD-ROM, DVD-ROM, flash drive, PDF, eBook, video, audio, or other publications distributed electronically, and other services distributing Publications electronically other than the Application Services.
- (g) “Updates” are any supplementation, release, replacement volume, new edition and/or updates to the Publication.
Clauses 1 and 2 only apply to the Digital Library and Electronic Publications.
1. GRANT OF LICENSE; RESTRICTIONS ON USE
1.1 You are granted, during the term of this Agreement, a nonexclusive, non-transferable, limited license to access and use the Digital Library and Electronic Publications and Materials from time to time made available by us to you only for the internal purposes of: (a) research or study; and (b) providing professional services to your clients. This license is a license for your Authorized Users (defined below) to use the Digital Library and Electronic Publications and the Materials only in the manner set out in this Agreement.
1.2 Using the commands of the Digital Library and Electronic Publications, you and your Authorized Users may:
- (a) search, view and electronically display Materials retrieved from the Digital Library and Electronic Publications for each such Authorized User’s individual use, which individual use excludes the display of Materials through any form of network communication;
- (b) email, download or make printouts of Materials (collectively, “Authorized Printouts”); and
- (c) electronically store a single copy of an insubstantial portion of those Materials included in any individually searchable content source to the extent the storage of those Materials is not further limited or prohibited by the Supplemental Terms (defined below). These storage rights are limited to 90 days primarily for each Authorized User’s exclusive use. Storage beyond 90 days is permitted only where: (i) Materials have been incorporated into advice provided to a specific client in respect of a specific matter; or (ii) Materials are required to be kept for some legal or regulatory or evidential requirement.
1.3 In addition to the rights to Materials set forth in Clause 1.2, and to the extent permitted by applicable copyright law and not further limited or prohibited by the Supplemental Terms, you and your Authorized Users may:
- (a) make a single printout of Materials using the printing commands of your web browser;
- (b) make and distribute copies of Authorized Printouts;
- (c) copy, revise, customize and use the forms, templates, checklists and precedents that form part of the Materials (“Forms”);
- (d) excerpt or quote insubstantial portions of Material in documents prepared in the ordinary course of your business; and
- (e) as it relates to Electronic Publications,
- (i) unless otherwise restricted by the embedded DRM (i.e., digital rights management), occasionally transfer the Electronic Publication from one Display Device to another so long as the Electronic Publication is displayed on only one Display Device at a time; and.
- (ii) remove, disable, or defeat any functionality in the Electronic Publication designed to limit or control access to or use of the Electronic Publication.
1.4 You and your Authorized Users may not:
- (a) create your own independently searchable database of Materials;
- (b) store, distribute or transmit any content through the Digital Library and Electronic Publications that: (i) is defamatory, libellous, pornographic or obscene (unless such content is reasonably related to professional responsibilities); or (ii) otherwise breaches any law, statute, regulation, standard, or code of practice of any relevant authority;
- (c) attempt to disassemble, reverse engineer or reverse compile any of the Digital Library and Electronic Publications and, with respect to technology related to the Digital Library and Electronic Publications, otherwise reduce to human-perceivable form;
- (d) use the Digital Library and Electronic Publications or Materials in any fashion that infringes the copyright or proprietary interests therein, including, but not limited to, exploiting the goodwill of LN, including its trademarks, service marks, or logos;
- (e) remove or obscure the copyright notices or other notices contained in Materials;
- (f) access or use the Digital Library and Electronic Publications via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Digital Library and Electronic Publications. Use of the Digital Library and Electronic Publications is permitted only via manually conducted, discrete, individual search and retrieval activities; or
- (g) offer any part of the Online Services or Materials for commercial resale or commercial redistribution in any medium or use the Digital Library and Electronic Publications or Materials to compete with the business of LN.
1.5 All right, title, and interest (including all copyrights and other intellectual property rights) in the Digital Library and Electronic Publications and Materials, regardless of the form of medium, belong to us or our third party suppliers. You acquire no ownership of copyright or other intellectual property rights or proprietary interest in the Digital Library and Electronic Publications, or copies thereof, except the limited rights granted herein.
1.6 The following terms also apply to the Digital Library:
- (a) Through the functionality of the Digital Library, you will have the right to provide access to eBook(s) on the Digital Library solely to Authorized Users using the Digital Library for a limited duration (“Lending Period”). You will establish the Lending Period, but in no case may the Lending Period extend beyond the Term or 365 days, whichever is less.
- (b) You will have the right to distribute the number of eBook(s) on the Digital Library to the number of Authorized Users indicated in or with the Order Form.
1.7 You will respect and deploy the DRM settings on the Digital Library and Electronic Publications as designated by LN that may restrict burning, copying, sharing and/or printing of the Digital Library and Electronic Publications. In the event LN learns of attempts to circumvent such DRM protections either by you or your Authorized Users, LN shall in its sole discretion, be permitted to temporarily suspend and/or permanently terminate Authorized User's and/or your access to the Digital Library and Electronic Publications.
2. ACCESS TO SERVICES
2.1 With respect to access to the Digital Library and Electronic Publications, you agree that:
- (a) only your employees, temporary employees, current students, faculty, partners, and contractors dedicated to performing work exclusively for you (to the extent those categories of persons are appropriate to your situation) that are also US-based are eligible to access and use the Digital Library and Electronic Publications and Materials (“Eligible Persons”). Without limitation, external professional service providers, such as attorneys, accountants, outsourcers and public relations firms, are specifically excluded from being Eligible Persons;
- (b) the term “Authorized User” means an Eligible Person to whom you have an LN identification number issued (or if, otherwise permitted, have permitted others to use the Digital Library and Electronic Publications ) (“LN ID”);
- (c) each LN ID may only be used by the Authorized User to whom LN assigns it and that such LN ID may not be shared with or used by any other person, including other Authorized Users;
- (d) you are responsible for managing your roster of Authorized Users and will promptly notify LN to deactivate an Authorized User’s LN ID if the Authorized User is no longer an Eligible Person or you otherwise wish to terminate the Authorized User’s access to the Digital Library and Electronic Publications; and
- (e) You are responsible for all use of the Digital Library and Electronic Publications accessed with LN IDs issued to your Authorized Users, including associated charges, whether by Authorized Users or others. You will use reasonable commercial efforts to prevent unauthorized use of LN IDs assigned to your Authorized Users and will promptly notify LN, in writing, if you suspect that an LN ID is lost, stolen, compromised or misused.
2.2 Except for use incidental to occasional, short-term travel, you may not use a LN ID to access the Digital Library and Electronic Publications and Materials from outside the country for which it was issued.
2.3 Your LN IDs may be restricted from accessing certain Materials otherwise available in the Digital Library and Electronic Publications based upon: (a) Materials you subscribe to; and (b) Materials your Authorized Users are qualified to access. Depending on several factors including the content ordered on each product or service, your subscriptions to any Publication Services Product may not mirror the Online Service subscription Materials.
2.4 Materials and features of the Digital Library and Electronic Publications may be added to, withdrawn from, or otherwise changed by LN without notice. In the event any such change results in the removal of a significant portion of the Digital Library eBook titles from the Digital Library, LN and you will negotiate in good faith to make an appropriate adjustment to the amounts payable under the Digital Library Order. If the parties are unable to agree upon an appropriate adjustment, then you may terminate this Agreement upon written notice to LN. Not all eBooks or other Electronic Publications are available in all eBook or other electronic formats.
2.5 Subject to Clause 2.4 above, the Digital Library and Electronic Publications may contain a feature that will allow your Authorized Users to upload documents to be used in the Digital Library and Electronic Publications (e.g., the Digital Library may allow you to upload your policies) (“Subscriber Documents”).
- (a) We represent and warrant that the Subscriber Documents will be under the exclusive control of your Authorized Users and we will not access or otherwise review the content of Folders without your authorization. Notwithstanding the foregoing, we may access or disclose the content of Subscriber Documents to the extent necessary to facilitate features and functions of the Digital Library and Electronic Publications and to comply with contractual and legal obligations including, but not limited to, an administrative or judicial proceeding;
- (b) You and your Authorized Users are solely responsible for the content of their respective Subscriber Documents. You represent and warrant that your Authorized Users have the right and authority to upload any and all content added as Subscriber Documents that is not provided by us. Authorized Users are prohibited from uploading content as Subscriber Documents that is defamatory, libelous, pornographic or obscene, unless such content is reasonably related to professional responsibilities; and
- (c) You agree to indemnify, defend, and hold us harmless for any and all claims, damages, costs, fines and expenses that we may incur as a result of any content uploaded as Subscriber Documents. Authorized Users are solely responsible for securing or saving the content of their respective Subscriber Documents before the expiration or termination of this Agreement, if desired. We have no obligation to provide the content of Subscriber Documents to you or your Authorized Users after the termination of this Agreement.
2.6 Materials and Digital Library and Electronic Publications are further limited by and subject to the Supplemental Terms for Specific Materials (“Supplemental Terms”), conditions published online, contained within a publication or product, online descriptions of files, online notices following file selection, and individual documents retrieved from the Digital Library and Electronic Publications (collectively, “Additional Terms”), all of which are incorporated by reference herein. Any conflict between the provisions of this Agreement and the Additional Terms will be resolved in accordance with Clause 6.13.
2.7 With respect to access to the Digital Library, contacts and support shall be as follows:
- (a) Development Site
- (i) Subscriber – You will select from your organization (i) a Digital Library Administrator (ideally, a librarian or collections specialist who will be assigned administrator access), and (ii) an IT Department Contact (a contact who will provide information and expertise on your IT system).
- (ii) LN and OverDrive – LN will designate to you (i) an LN Digital Library Specialist (LN’s designated primary contact for OverDrive and you throughout implementation, and (ii) an OverDrive Implementation Specialist (OverDrive’s designated project manager for your implementation).
- (b) Final Site
- (i) Subscriber – You will select from your organization a Digital Library Administrator (to provide first level support to Authorized Users at your organization).
- (ii) LN– LN Customer Support will provide second level support to your Digital Library Administrator(s) or IT Department, and is available at: (877) 516-8256 (8am-8pm M-F EST excluding holidays), or DigitalLibrarySupport@lexisnexis.com. Responses to your requests will be made within a commercially reasonable time period.
- (c) Implementation Services
- (i) Implementation Call –Scheduled by LN with your Digital Library Administrator and IT Department Contact to discuss the implementation timeline and requirements, and introduce the OverDrive Implementation Specialist.
- (ii) Informational Form – Required from Subscriber within 15 days of Agreement signature. LN will provide.
- (iii) Development Site – Provided to your Digital Library Administrator and IT Department Contact for confirmation of site design and proper content load. Within two weeks of access receipt, you will be expected to complete a full review of site content and functionality and provide any change requests to LN and OverDrive. Upon completion, LN and OverDrive will provide you with a tentative date for Full Site access.
- (iv) Final Site Review Call – Scheduled by LN with your Digital Library Administrator and IT Department Contact to secure approval of the Final Site (such date being the “Final Site Approval Date”). At such time the OverDrive Implementation Specialist’s role will conclude and ongoing support procedures will be reviewed.
- (v) Pre-Launch Training – “Basics”: LN or OD will provide a one-time overview of the Development Site as well as instructions on how to access the library, search, borrow and download eBooks. “OverDrive Marketplace”: LN or OD will provide a one-time overview of “library administration” functions such as how to run library usage statistics reports, the eBook pull-back function and how to license books from OverDrive.
- (vi) Post Launch Training – LN will provide one (1) optional live training webinar for each of the first four (4) weeks (up to 4 sessions in total) following the date the you are given access to the Final Site.
- (vii) Any delays related to matters described herein that are due to your failure to respond in a timely manner, requests for additional customizations or integration, or requests for additional training may require amendments or agreements with added expense.
2.8 For the Digital Library, any supported internet browser may be used at your discretion. However, full functionality may not be available if the most current version of mainstream internet browser is not used.
3. LIMITED WARRANTY
3.1 We represent and warrant that we have the right and authority to make the Publication Services and Materials available pursuant to the terms and conditions of this Agreement.
3.2 Materials are provided for reference purposes only and are not intended, nor should they be used, as a substitute for professional advice or judgment or to provide legal or medical advice with respect to particular circumstances.
3.3 EXCEPT AS OTHERWISE PROVIDED IN CLAUSE 3.1, THE PUBLICATION SERVICES AND MATERIALS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND LN AND EACH THIRD PARTY SUPPLIER OF MATERIALS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHNATABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4. LIMITATION OF LIABILITY
4.1 A Covered Party (as defined below) shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from: (a) any errors in or omissions from the Publication Services or any Materials available or not included therein; (b) the unavailability or interruption to the supply of the Publication Services or any features thereof or any Materials; (c) you or your Authorized User’s use or misuse of the Publication Services or Materials (regardless of whether you received any assistance from a Covered Party in using or misusing the Publication Services); (d) the loss or corruption of any data or equipment in connection with the Publication Services; (e) the content, accuracy, or completeness of Materials; (f) any delay or failure in performance beyond the reasonable control of a Covered Party; or (g) any content retrieved from the Internet even if retrieved or linked to from within the Publication Services, all regardless of whether you received assistance in the use of the Publication Services from a Covered Party.
4.2 “Covered Party” means: (a) us, our affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of us or our affiliates; and (b) each third party supplier of Materials, their affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of any third party supplier of Materials or any of their affiliates.
4.3 TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE COVERED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE PUBLICATION SERVICES OR MATERIALS SHALL NOT EXCEED THE LESSER OF YOUR ACTUAL DIRECT DAMAGES OR THE AMOUNT YOU PAID FOR THE PUBLICATION SERVICES IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST ANY COVERED PARTY WHETHER FOR BREACH OF THIS AGREEMENT OR IN TORT (INCLUDING NEGLIGENCE) OR FOR ANY OTHER COMMON LAW OR STATUTORY CAUSE OF ACTION.
WITH RESPECT TO A PUBLICATION, LN WARRANTS IT WILL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP FOR 30 DAYS. YOUR EXCLUSIVE REMEDY AND THE SOLE OBLIGATION OF LN FOR A DEFECTIVE PUBLICATION SHALL BE THAT LN SHALL PROVIDE A REPLACEMENT COPY OF A DEFECTIVE PUBLICATION OR REPAIR OR REPLACE THE SAME.
4.4 TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER YOU NOR THE COVERED PARTIES SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PROFITS, REVENUE, OR DATA, OR OF ANY KIND WHATSOEVER INCLUDING, WITHOUT LIMITATION, LEGAL FEES, IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE PUBLICATION SERVICES, MATERIALS, OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS, REGARDLESS OF ANY NEGLIGENCE OF ANY COVERED PARTY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO A COVERED PARTY’S INDEMNITY OBLIGATIONS OR YOUR (AND YOUR AUTHORIZED USERS’) INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO US OR OUR THIRD PARTY SUPPLIERS.
4.5 Notwithstanding anything to the contrary herein, if there is a breach of warranty in Clause 3.1, then we, at our option and expense, will either defend you or indemnify and hold you harmless against proceedings or damages based on a third party’s claim of patent, trademark, service mark, copyright or trade secret infringement related to the use of the Publication Services or Materials, provided: (a) the third party claim was not caused by your improper use of the Publication Services or Materials; (b) you give us prompt notice of such third party claim; (c) you give us the sole right to control and direct the investigation, defense and settlement of such claim; and (d) you, at our expense, reasonably cooperate with us in connection with the foregoing.
4.6 If the Online Services or the operation thereof become, or in the opinion of LN are likely to become, the subject of a claim of infringement, LN may, at its option and expense: (a) procure for you the right to continue using the Publication Services; (b) replace or modify the Publication Services so that they become non-infringing; or (c) terminate this Agreement on notice to you and grant you a pro-rata refund or credit (if either is applicable) for any fees or fixed charges you may have pre-paid.
4.7 The provisions of Clauses 4.5 and 4.6 shall constitute your sole and exclusive remedy for the respective matters specified therein.
5. SUBSCRIPTIONS; PRICING; TERM; TERMINATION; RENEWAL; RETURNS
5.1 The term of this Agreement begins upon the date noted in your billing account and continues until terminated.
5.2 Publications may be offered as one-time sales/licenses, subscriptions (either with or without auto-renewal), or subscriptions with multi-year offered multi-year pricing (“Multi-Year”) (either with or without auto-renewal at the end of the multi-year commitment). The following describes the types of subscriptions:
- (a) “S” Service Subscription -Price includes product and Updates published during the indicated service period (minimum 30 days) at no additional charge except tax, shipping and handling where applicable. Renewal options include:
- (i) “S/A” or “S/AR” Service Subscription with Automatic Renewal - If you select this option your subscription will be automatically renewed without any action on your part. Notification that the subscription is due to be renewed, and the price of renewal, will be sent to you 60 days prior to renewal (but if you are on a Multi-Year (see Clause 5.2(e)), you will be sent such a notice 60 days prior to the Renewal Term (see Clause 5.2(e)(i)) . Estimated prior-year prices and update frequency are shown with the description of each title.
- (ii) “S/N” or “S/AS” Service Subscription with Notification - Notification that the subscription is due to be renewed, and the price of renewal, will be sent to you 60 days prior to renewal. If you fail to act, your subscription will be canceled.
- (b) “N” Non-Service Subscription - Price includes product only, plus any Updates published within 30 days of purchase or as otherwise indicated. Subscription options include:
- (i) “NS/A” or “NS/AR” Non-Service Subscription with Automatic Renewal - If you select this option you will receive and be billed for future updates outside of the 30-day period without any action on your part. Estimated prior year prices and update frequency are shown with the description of each title. Non-Service Electronic Publications will be updated via automatic shipment to you, or by LN either pushing the Update to you electronically or notifying you than an Update is available for download.
- (ii) “NS/N” or “NS/AS” Non-Service Subscription with Notification - Notification that an update has been published, and the price of the update, will be sent to you. If you fail to act, you will not receive the update.
- (c) Additional pricing information for subscriptions:
- (i) Unless otherwise indicated, pricing (including any grand total, retail price, or other pricing, unless otherwise indicated) does not include tax or shipping and handling, which will be charged and due at the then current rates. Shipping and handling amounts will be invoiced separately and will be included in your final invoiced amount. If you have chosen a monthly billing option, shipping and handling charges will be prorated over the term of the subscription and billed accordingly.
- (ii) Advertised prices are subject to change without notice.
- (iii) By placing an order, you agree you have been advised of the number of Updates and the cost related to the Updates that were made to the Publications last year. Renewal and Update price estimates are based on prior year costs and do not reflect actual costs associated with future renewal and Updates, which will likely include an increase over prior year’s subscription price. The number of Updates and the upkeep costs may vary due to developments in the law and other publishing issues, but you may use this as a rough estimate of future shipments. You may call for Support at 800-833-9844 for additional information on Update frequency and price.
- (d) General (Non-Multi-Year) Cancellation and Return Information:
- (i) You may cancel any subscription at any time by calling Customer Support at 800.833.9844; emailing email@example.com; or returning an invoice or notification marked “CANCEL.” If you cancel a Subscription on any component of a product bundle or multi-media subscription, you will not be eligible for any of the discounts offered in connection with such order. You will receive a supplemental invoice for the remaining components of the product bundle or multi-media subscription order at their list price.
- (ii) Shipments must be returned within 30 days of receipt, at your expense, for full credit of the advertised price, less shipping and handling fees and any other discount credits. All returns must be returned unused in the same condition as received. A copy of the invoice received with the shipment should be included with your return. A return shipping label is not provided. You can send your return to the following address:
LexisNexis Matthew Bender
136 Carlin Road
Conklin, NY 13748-1531
- (iii) If you cancel a Service Subscription between 31 and 60 days after the invoice date and you return the product at your expense, you will receive a 5/6th credit of the price for the annual subscription. To receive any credit, you must return all product(s) shipped during the applicable subscription period at your expense within the applicable cancellation period listed above.
- (iv) If you return a Non-Service Subscription at your expense within 30 days of shipment, you will receive full credit for the purchase price. No credit will be given for returns more than 30 days after shipment. Return of a shipment, other than the initial purchase, will not cancel your subscription.
- (v) No credit will be given more than 60 days after the invoice date for shipments to the 48 contiguous United States. However, this period is expanded to 90 days after the invoice date for orders shipped to Canada, and 120 days after the invoice date for orders shipped to the Virgin Islands, Puerto Rico, Hawaii, Alaska, and Non-US shipments.
- (vi) All eBooks and CDs are non-cancellable and nonreturnable.
- (vii) For any returns, a 20% restocking fee may be charged.
- (viii) International and Book Store Sales. In addition to the refund/return rights listed in the Material Terms the following rights also apply:
Bookstores may return overstock of new, unmarked, and undamaged books in the original packaging within 12 months of the date of the original invoice or within 24 months of the date of the original invoice for Study Aids and receive 100% refund of the publication price. A copy of the original invoice must be included with the return. Shipping and handling fees are not a part of the publication price, are not refundable, and additional shipping and handling fees must be paid on returns.
- (e) Modification of Terms for Multi-Year- This Clause modifies the rest of 5.2 as it applies to Multi-Years, and will only apply if the Publication Service(s) you ordered were described as a Multi-Year, described as having an initial period of more than 12 months, or include a Multi-Year (such as the Digital Library & Multi-Year or the Multi-Year).
- (i) Notwithstanding anything to the contrary, you may not terminate this Agreement during the “Order Term” (e.g., the term of the Multi-Year before any auto-renewal periods begin) set forth in the ordering document (or online ordering system) for your subscription to the Publication Services (the “Order Form”) except as specifically provided in the Order Form or as set forth in this Clause 5.2(e). UPON EXPIRATION OF THE ORDER TERM, THIS AGREEMENT WILL AUTOMATICALLY RENEW FOR ADDITIONAL ONE-YEAR PERIODS (EACH A “RENEWAL TERM”) AT THE THEN-CURRENT LIST PRICES. The Order Term and any Renewal Terms will collectively be the “Term.” You may avoid entering into a Renewal Term by providing LN with at least 45 days prior written notice delivered to your LN account manager before the beginning of the next Renewal Term.
- (ii) During the Term, you may terminate this Agreement for a material breach by us that remains uncured for more than 30 days after we receive written notice from you identifying the specific breach.
- (iii) If this Agreement is properly terminated during a Term in which funds are due to LN, then LN will prorate annual commitment amounts for the affected Term with a date range of less than 11 months and one day. The proration basis shall be the number of full or partial months this Agreement is in effect divided by 12.
- (iv) If you have subscribed to a Multi-Year, you may only substitute or change the Publication Services once per subscription year (after the first year) upon 45 days prior written notice to LN to be effective as of the start of the next subscription year. If your total selections for such substitution or change would otherwise cause you to owe less, then you shall continue to pay the amount you were required to spend on the multi-year subscription you had subscribed to before the substitution or change. If your total selections for such substitution or change would otherwise cause you to owe more, then you shall also to pay the increased total amount over the amount you were required to spend on the multi-year subscription you had subscribed to before the substitution or change.
5.3 We may, without notice to you, suspend or terminate this Agreement: (a) if you breach this Agreement or otherwise infringe on any intellectual property rights granted herein; or (b) if you breach or otherwise fail to comply with any other obligation in this Agreement (including payment obligations). Without prejudice to the foregoing, if you fail to pay any sum properly due hereunder, we reserve the right to seek enforcement of the full contract sum as well as to seek recovery of our legal costs and other expenses incurred by us in connection with your breach.
5.4 On termination of this Agreement, any license granted under this Agreement terminates, and you agree to cease all use of the Electronic Publications and Digital Library (as applicable), and, from all Display Devices (whether such Display Devices are the property of you or personal Display Devices of Authorized Users), return or destroy all Electronic Publications and Digital Library eBooks and delete electronic or magnetic copies of the Electronic Publications and Digital Library eBooks and purge all downloaded (machine-readable/electronic) Materials. If the Electronic Publication has an expiration date, you will cease use of, and destroy the outdated Electronic Publication. LN disclaims any and all liability associated with use of outdated Electronic Publications or Electronic Publications beyond their expiration date, if any. Additionally, for CDs, we and our licensors retain outright ownership of all CD-ROM discs. We do not require return of the CD-ROM discs delivered to you either at the end of the subscription period covering the CD-ROM discs or upon receipt by you of replacement CD-ROM discs. Consequently, you will not be able to access CD-ROM discs delivered to you after their expiration date. After the expiration date of a CD-ROM or upon receipt of an updated CD-ROM, you will cease use of and destroy the previous or outdated CD-ROM.
6.1 Change to Number of Authorized Users. In the event of a change in Your organizational structure (i.e., mergers, acquisitions and divestitures), or there is organic growth within the organization, resulting in a significant change in the number of Authorized Users of the Publication Services and Materials, LN in good faith reserves the right to adjust the amounts payable under this Amendment to reflect the change in your use of the Selected Services.
6.2 License Terms. Effective upon notice to you, we may add, modify or otherwise change any rights to, or restrictions on, the use of the Publication Service and Materials as the same are currently set forth in this Agreement (the “License Terms”). If we exercise these rights, such changes will: (a) only be applied prospectively; and (b) not be specifically directed against you or your Authorized Users but will apply to all similarly situated LN customers using the Publication Services. If any changes made to the License Terms are unacceptable to you, you may terminate the Agreement upon 30 days’ written notice to us of the change that is unacceptable to you. For your termination to be effective under this Clause, we must receive your notice of termination within 90 days of the date of the change. Continued use of the Publication Services following the effective date of any change constitutes acceptance of the change but does not affect your other termination rights.
6.3 Confidential Information. This Agreement (including the parts, such as any Order Form related there to) contain confidential information, including pricing information, of LN (the “Confidential Information”). You understand that disclosure of the Confidential Information could cause competitive harm to LN. You agree to receive and maintain the Confidential Information in trust and confidence and to take reasonable precautions against its disclosure to any third person.
6.4 Notices. Except as otherwise provided herein, all notices and other communications to you hereunder shall be in writing or displayed electronically in the Publication Services by the provider thereof. Notices to you shall be deemed to have been properly given on the date mailed, if mailed; on the date first made available, if displayed in the Online Services; or on the date received, if delivered in any other manner. Notices to us should be sent to your account representative with a copy sent to LexisNexis, Attention: Chief Legal Officer, RE: Publication Services, 9443 Springboro Pike, Miamisburg, OH 45342.
6.5 Third Party Beneficiaries. Each third party supplier of Materials has the right to assert and enforce these provisions directly on its own behalf as a third party beneficiary. OverDrive is a third party beneficiary to this Agreement with regard to the Application Services only. The failure of us or any such third party beneficiary to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time. Subject to the Clause 6.6, this Agreement does not confer any rights on any person or party other than the parties to this Agreement.
6.6 Assignments. You may not assign or sublicense this Agreement or your rights or obligations hereunder, directly or indirectly, without our prior written consent, which consent shall not be unreasonably withheld. We may assign this Agreement to any successor to all or substantially all of our business or assets that relate to the subject matter of this Agreement whether by asset or stock acquisitions, merger, consolidation or otherwise.
6.7 Successors and Permitted Assigns. Subject to Clause 6.6, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
6.8 Force Majeure. Non-performance of either party shall be excused to the extent that performance is rendered impossible where failure to perform is a result of actions omissions or circumstances beyond the reasonable control of the non-performing party, such as fire, weather, civil disturbance, act of military or court or governmental authority, strike (provided such strike is not caused by that party’s employees), change in law or other governmental regulations or act of God.
6.9 Purchase Orders. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that you may use in connection with this Agreement will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure by us to object to such terms, provisions or conditions.
6.10 Governing Law. This Agreement and the Additional Terms shall be governed by and construed in accordance with the laws of Ohio regardless of the law that might otherwise apply under applicable principles of conflicts of law.
6.11 Limitation of Action. You may not bring a claim of action, regardless of form, arising out of or related to amounts billed or payments made under an Order Form more than 12 months after we first invoiced those amounts to you.
6.12 Order of Precedence. If there is a conflict between the terms and conditions of this Agreement, an Order Form, Additional Terms and any other document incorporated herein, the conflicting terms will be interpreted as narrowly as possible in the area of conflict and the conflict will be resolved by giving precedence in the following order: (a) the Additional Terms; (b) the terms of the Order Form; (c) the terms and conditions of this Agreement; and (d) the terms and conditions of any other document incorporated by reference herein.
6.13 Data and Privacy Laws. Our ability to provide Materials is subject to a variety of privacy, data protection and other laws in a variety of jurisdictions (“Data Laws” or “Privacy Laws” or both whichever is appropriate) and by the licenses under which it obtains Materials (“Licenses”).
6.14 Headings. The headings in the Agreement are for convenience only, and in no way affect the terms and conditions herein.
6.15 Amendments. Except in accordance with Clause 7.2, this Agreement may not be amended, except in writing executed by both parties.
6.16 Waiver. The waiver by either party of breach or default under this Agreement does not constitute the waiver of any subsequent breach or default. If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force and will be enforced to the maximum extent permissible by applicable law so as to effect the intent of the parties.
6.17 Trademarks. You grants to LN the limited right to use and display any trademarks, logos or service marks (collectively, “Subscriber Trademarks”) provided by you to LN for the express purpose of co-branding your customized adaptation of the Digital Library. LN shall not use the Subscriber Trademarks for any other purpose. You represent and warrant to LN that it is the owner of the Subscriber Trademarks and/or has all necessary rights to grant this license to LN.
6.18 Payment Options. Orders accompanied by full payment may be entitled to a discount. Subscription Service orders may be paid in full within 25 days from the date of your monthly statement or in equal monthly installments based on the subscription term. If payments are made in equal monthly installments, then LN or the applicable affiliated company will maintain a purchase money security interest in the product or publication until such time the outstanding charges are paid in full. All other invoices must be paid in full within 25 days from the date of your monthly statement.
6.19 Late Charges. Overdue amounts will be assessed a late payment charge that will be compounded at a monthly rate of 1.167% or the maximum provided by law, whichever is less. There is a minimum late payment charge of ten dollars ($10.00).
6.20 Credit Investigation. You hereby authorize us to make whatever credit investigation we deem appropriate in order to provide you with a Publication.
6.21 Collection Costs. In the event you fail to pay any amount when due, we reserve the right to terminate the Publication Service(s) and retain all sums paid by you. In addition, you are responsible for all collection costs incurred by us including, but not limited to, collection agency fees, reasonable attorneys’ fees and court costs. At our option, the entire amount due shall become due and payable upon your breach of any term, provision or condition of this Agreement. We retain a purchase money security interest in all publications and supplements until paid in full by you.