The School Account and End Users agree to comply with the following terms and conditions (the "Access Agreement" or "Agreement").
OverDrive grants to the School Account a nontransferable and non-exclusive license to use the Digital Content and the CDL Service made available by OverDrive in accordance with the terms of this Agreement. The Digital Content and CDL Service made available to End Users are the subject of copyright protection, and the original copyright owner (OverDrive or its licensors) retains the ownership of the Digital Content and CDL Service. OverDrive does not transfer any ownership, and the School Account may not reproduce, distribute, display, modify, alter, publish, exploit, transfer or transmit, in any form, or by any means, any Digital Content or any portion of the CDL Service without the prior written consent of OverDrive and its suppliers and publishers. You may not download Digital Content to any school media center or library Device or any other school-issued Device that allows for access by multiple users. Digital Content may be used on school-issued Devices that are issued to students under a one-to-one device program where each Device is assigned for the exclusive use by a single student.
End Users shall only use the Digital Content (including but not limited to digital audio materials in the MP3 format in the event content in MP3 format is made available through the CDL Service) for their own personal, non-commercial use. End Users shall not sell, distribute, broadcast, rent, share, lend, modify, adapt, edit, or sub-license the Digital Content. All rights, titles, and interest in the Digital Content are reserved, and End Users do not acquire any ownership rights in the Digital Content as a result of downloading the Digital Content. The license granted to End Users to use the Digital Content is for a one-time limited right to borrow the Digital Content for a specific, school designated, limited duration ("Lending Period"). End Users agree and acknowledge that at the end of the Lending Period all rights to access the Digital Content expire and terminate. At the end of the Lending Period, End Users agree to delete and/or destroy any and all copies of the Digital Content, including any copies that may have been transferred to, or created on portable devices, storage media, removable drives, CDs & DVDs. In the event the School Account, OverDrive, or a rights holder determine End Users of the CDL Service are violating the terms of this Access Agreement, the School Account and/or OverDrive reserves the right to suspend or terminate End Users' ability to use the CDL Service and to borrow Digital Content.
OverDrive creates a single CDL Website for School Account's use of the CDL Service. End Users will have the ability to search the Digital Content by title category, author, keyword, or any other appropriate means. School Account shall have access to reporting functions and access to a protected web portal to manage the Digital Content.
School Account will implement and maintain reasonable measures to ensure that only authorized End Users have access to the CDL Service and Digital Content.
OVERDRIVE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. OVERDRIVE NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR OVERDRIVE ANY OTHER LIABILITY IN CONNECTION WITH THE LICENSING OF THE DIGITAL CONTENT AND CDL SERVICE AND THEIR USE BY THE SCHOOL ACCOUNT AND END USERS.
IN NO EVENT SHALL OVERDRIVE BE LIABLE TO SCHOOL ACCOUNT OR END USERS FOR ANY DAMAGES ARISING FROM OR RELATED TO FAILURE OR INTERRUPTION OF THE CDL SERVICE, OR FOR INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF OPPORTUNITY, LOSS OF USE, OR OTHER LOSS ARISING OUT OF OR IN CONNECTION WITH THE LICENSE, TRANSFER, OR USE OF THE CDL SERVICE. IN NO EVENT SHALL OVERDRIVE'S LIABILITY HEREUNDER EXCEED THE TOTAL AMOUNT RECEIVED BY OVERDRIVE FROM SCHOOL ACCOUNT UP TO THE TIME THE CAUSE OF ACTION GIVING RISE TO SUCH LIABILITY OCCURRED. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS OVERDRIVE AND ITS OFFICERS, EMPLOYEES, AGENTS, BUSINESS PARTNERS, LICENSORS, AND LICENSEES FROM ANY DAMAGES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) ON ACCOUNT OF ANY CLAIM, SUIT, ACTION, DEMAND, OR PROCEEDING MADE OR BROUGHT AGAINST ANY SUCH PARTY, OR ON ACCOUNT OF THE INVESTIGATION, DEFENSE, OR SETTLEMENT THEREOF, ARISING IN CONNECTION WITH YOUR USE OF THE CDL SERVICE.
OverDrive is a distributor of content supplied by third parties including publishers and others. Accordingly, any opinions, advice, statements, offers, services, or other information or content expressed by third parties are those of the respective author(s) and not OverDrive. OverDrive neither endorses nor is responsible for the accuracy or reliability of information on the CDL Websites made by anyone other than authorized OverDrive employee spokespersons acting in their official capacities.
School Account will take reasonable steps to prevent unwarranted intrusion into data managed or maintained by OverDrive on behalf of School Account acquired in the course of the operation of the CDL Service. This includes reasonable steps to protect its password and access to the administrative website for management of the CDL Service.
School Account will respect and deploy the Digital Rights Management ("DRM") settings on the Digital Content as designated by publishers that may restrict burning, copying, sharing and/or printing of the materials. In the event OverDrive learns of attempts to circumvent such DRM protections either by School Account or its End Users, OverDrive shall in its sole discretion, be permitted to temporarily suspends and/or permanently terminate End User's and/or School Accounts Access to the CDL service and Digital Content
As part of the CDL Service, the School Account will have the ability to upload digital content in supported digital formats (collectively "Local Content") for circulation to End Users of the School Account. Five (5) Gigabytes of storage for Local Content shall be included with each School Account's CDL Service at no additional cost. Additional storage available for a fee.
School Account acknowledges that OverDrive does not review or evaluate the Local Content in any matter whatsoever, including subject matter, substance, or accuracy of the content.
School Account warrants and represents that is has the necessary ownership rights, licenses and/or permissions, or has secured such from suppliers, publishers or other providers, to deposit the Local Content into the CDL Service. School Account warrants and represents that the Local Content does not violate the proprietary rights of others, including but not limited to contract, copyright and trademark. School Account warrants and represents the Local Content does not contain matter which is libelous, slanderous, an invasion of privacy, unlawful appropriation of name, and likeness and defamation of character.
School Account and all End Users agree to hold OverDrive, its agents, officers and directors, harmless in any and all matters for any claims related to the upload, deposit or distribution of Local Content.
OverDrive, in its sole discretion reserves the right, without notice, to reject or remove any and all Local Content deposited by authorized End Users, if in OverDrive's sole opinion it reasonably believes the Local Content will expose OverDrive to any action, liability, damage and/or potential exposure to third party claims.
OverDrive provides certain services for setting copyright protection for the Local Content. OverDrive makes no representations or warranties as to the effectives of any such software or services as applied to the Local Content.
School Account can make its Local Content available to End Users of other School Accounts and libraries and in OverDrive's network through a service called "Community Reserve".
OverDrive makes no representations or warranties that content available via Community Reserve does not violate the proprietary rights of others, including but not limited to contract, copyright and trademark, and that the available content does not contain matter which is libelous, slanderous, an invasion of privacy, unlawful appropriation of name, and likeness and defamation of character.
OverDrive agrees to provide technical support services by email and phone to School Account including reasonable efforts to assist School Account in providing Primary Support, reasonable efforts to correct, fix, or circumvent errors, and in the discretion of OverDrive, provide updates, enhancements, and new versions of the CDL Service ("Secondary Support"). OverDrive shall provide such Secondary Support by email and phone during its normal business hours of Monday- Friday 8:30 AM to 5:30 PM Eastern Standard Time.
OverDrive will use reasonable efforts to make the CDL Service perform substantially in accordance with the product description, as it may exist from time to time. However, School Account acknowledges that inevitably some errors may exist in the CDL Service, and the presence of such errors shall not be a breach of this provision. OverDrive's sole obligation with regard to such errors shall be to use commercially reasonable efforts to correct such errors and provide Secondary Support as stated in this Agreement.
School Account agrees to perform services to its End Users for day-to-day support, technical aid, help and other assistance for End User's use of its CDL Service or for any issues arising from the use of its CDL Website ("Primary Support"). School Account will assign personnel with appropriate skills and expertise in computer, data processing, and related services to enable operation of the CDL Service and Website and to provide Primary Support.
School Account will perform requested installation, upgrade, and reasonable technical services for Primary Support of the CDL Service pursuant to installation and support procedures and policies as developed by OverDrive and as modified from time-to-time. OverDrive will provide School Account with documentation regarding Primary Support and OverDrive support personnel will be available for Secondary Support by e-mail and phone during its normal business hours.
The trademarks, logos, and service marks displayed on School Account's CDL Website are owned by OverDrive or third parties, and the CDL Website's trade dress is owned by OverDrive (collectively, "Trademarks"). All Trademarks not owned by OverDrive are the property of their respective owners, and are used with permission. Nothing contained on the CDL Website may be construed as granting, by implication, estoppel, or otherwise, any right or license to use any Trademark.
OverDrive respects the privacy of visitors to its sites. OverDrive's CDL Privacy Policy is expressly incorporated herein by reference and made a part of this Agreement.
OverDrive has appointed an agent to receive notifications of claims of copyright infringement regarding materials available or accessible on, through, or in connection with the CDL Service or Website. Any person authorized to act for a copyright owner may notify us of such claims by contacting the following agent: Erica Lazzaro, OverDrive, Inc., 8555 Sweet Valley Drive, Suite N, Cleveland, OH 44125; phone: 216-573-6886 ext. 409, fax: 216-573-6888, email: elazzaro@overdrive.com. In contacting this agent, the contacting person must provide all relevant information, including the elements of notification set forth in 17 U.S.C. 512.
Unless otherwise agreed, the term for School Account's access to the CDL Service shall be for a period of twelve (12) months. The CDL Service and the terms of this Agreement shall automatically renew for successive terms of twelve (12) months unless either party provides written notice of intention not to renew ninety (90) days prior to the expiration of the then current twelve (12) month term. School Account obtains certain rights and access to use the Digital Content and CDL Service for the term of its agreement with OverDrive. At the end of such term, the license granted to School Account shall be terminated immediately, along with School Account's access to the CDL Service and any and all Digital Content. School Account shall make no further use of all or any part of the Digital Content and CDL Service.
In the event of a breach of any of its obligations, including but not limited to non-payment or late payment for services, School Account shall have the right to remedy the breach within thirty (30) days upon receipt of written notice from OverDrive. If School Account fails to remedy such a breach within the period of thirty (30) days, OverDrive may (at its option) terminate its agreement with School Account upon written notice to School Account and/or temporarily or permanently suspend the School Account's access to the CDL Service
This Agreement shall be governed and interpreted in accordance with the substantive law of the State of Ohio, United States of America without regard to conflict of law provisions. Any legal action brought concerning this Agreement or any dispute hereunder, including but not limited to an action to enforce or challenge an arbitration award, shall be brought only in the courts of the State of Ohio, USA, in the County of Cuyahoga, or in the federal courts located in such state (and county). Both parties submit to venue and jurisdiction in these courts. In the event that an action or claim arises outside of the exclusive jurisdiction specified herein which names OverDrive as a party, School Account agrees to initiate, consent to and/or cooperate with any and all efforts to remove the matter to the exclusive jurisdiction named herein, or otherwise take any and all reasonable actions to achieve OverDrive's objectives of this provision.
Neither OverDrive nor its licensors will be liable or deemed to be in default for any delays or failure in performance resulting directly or indirectly from any cause or circumstance beyond its reasonable control, including but not limited acts of God, war, riot, embargoes, acts of civil or military authority, rain, fire, flood, accidents, earthquake(s), strikes or labor shortages, transportation facilities shortages or failures of equipment, or failures of the Internet.
In the event that a court of competent jurisdiction determines that any portion of the Agreement is unenforceable, void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect as though such invalid provisions were deleted.
This Agreement constitutes the entire Agreement and understanding of the parties. This Agreement may be amended or modified only by a subsequent Agreement in writing signed by each of the parties and may not be modified by course of conduct.
This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors. In the event OverDrive enters into an agreement to sell substantially all the assets of OverDrive, this Agreement shall be binding upon the purchaser.
Updated April 21, 2011
