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 38 Alexander 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
