9. 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