|
title and interest (including all intellectual property) in and to the Service
<br />and Offerings. Kanopy reserves all rights not expressly granted under this
<br />Agreement. Suggestions. If Institutione lects to provide or make ava Ilable
<br />to Kanopy any suggestions, comments, ideas, improvements or other
<br />feedback relating to the Service or Offerings ("Suggestions"), Kanopy
<br />shall be free to use, disclose, reproduce, have made, modify, license,
<br />transfer and otherwise utilize and distribute Suggestions In any manner,
<br />without creditor compensation to Institution.
<br />6. Term and Termination
<br />(a) Term. The term for this Agreement shall commence on the
<br />Effective Date and continue In effect until terminated by Kanopy or
<br />Institution in accordance with this Agreement or until one (1) year from
<br />the effective date whichever occurs first.
<br />(b) Suspension. Kanopy reserves the right to suspend Institution's
<br />and any End User's access to and use of the Service and Offerings in the
<br />event of any: (1) actual or reasonably suspected breach of Section 2 by
<br />Institution or any End User; providedhowever that Kanopy, where
<br />applicable, will use commercially reasonable efforts to limit suspension
<br />to each End User in breach of Section 2 or 3(b) and restore access upon
<br />elimination of the relevant breach; or (ill failure by Institution to make
<br />any payment when due under this Agreement; provided, however, that
<br />Kanopy will restore access upon Institution's payment of all outstanding
<br />fees.
<br />(c) Termination. Notwithstanding anything to the contrary, this
<br />Agreement may be terminated as follows: (1) by either party upon written
<br />notice to the other party; provided, however that no Order Form is then
<br />in effect; (II) upon a material breach of this Agreement by a party, which
<br />breach is not cured within thirty (30) days after receipt of written notice
<br />from the other party; or (ill) by either party in the event the other party
<br />becomes insolvent or bankrupt; becomes the subject of any proceedings
<br />under bankruptcy, insolvency or debtor's relief law; has a receiver or
<br />manager appointed; makes an assignment for the benefit of creditors; or
<br />takes the benefit of any applicable law or statute in force for the winding
<br />up or liquidation of such party's business.
<br />(d) Survival. Any provision that, by its terms, is intended to survive
<br />the expiration or termination of this Agreement shall survive such
<br />expiration or termination, including Sections: 3(b)(Assurances); 4 (Fees
<br />and Taxes); 5 (Intellectual Property); 6(d) (Survival); 7 (Representations
<br />and Warranties); 8 (Indemnification); 9 (Disclaimer of Warranties); 10
<br />(Limitation of Liability); and 11 (Miscellaneous),
<br />7. Representations and Warranties
<br />Kanopy and Institution each represents and warrants to the other
<br />that: (a) it has the necessary power and authority to enter into this
<br />Agreement; (b) the execution and performance of this Agreement have
<br />been authorized by all necessary corporate or institutional action; (c)
<br />entry into and performance of this Agreement will not conflict with any
<br />provision of law or the certificate of incorporation, bylaws or comparable
<br />organizational documents of such party; (d) no action by any
<br />governmental entity is necessary to make this Agreement valid and
<br />binding upon such party; and (a) it possesses all governmental licenses
<br />and approvals necessary to perform its obligations under this Agreement.
<br />8. Indemnification
<br />(a) Indemnification. To the extent permitted by applicable law, each
<br />party agrees that the other party and its affiliates and licensors
<br />(collectively, "Indemnified Parties") shall have no liability for, and each
<br />party shall indemnify, defend and hold the other party's Indemnified
<br />Parties harmless against, any loss, damage, cost, liability and expense
<br />(including reasonable attorneys' fees) finally awarded by a court of
<br />competent jurisdiction or paid in settlement to the extent arising from
<br />any action or claim of a third party based upon a party's breach of Section
<br />2(b) or 3(b) or infringement of such third party's copyright attributable
<br />to any materials provided by the party under this Agreement; provided.
<br />however, that Kanopy shall have no obligation to indemnify Institution
<br />from any loss, damage, cost, liability or expense to the extent it arises
<br />from: (i) access to or use of the Service or any Offering in a manner that
<br />does not comply in all material respects with the terms and conditions of
<br />this Agreement or applicable laws or regulations; (11) use of the Service or
<br />any Offering in combination with any materials not provided or approved
<br />by Kanopy; or (111) Institution Content. In the event that the Service or any
<br />Offering becomes the subject of an indemnified claim or Kanopy
<br />reasonably determines that any Offering is likely to become the subject
<br />of an Indemnified claim, Kanopy may, at its sole discretion: (1) procure
<br />for Institution a license as necessary for Institution to exercise the rights
<br />granted by Kanopy under this Agreement; (2) modify or replace the
<br />Service or Offering to avoid infringement, provided, however, that the
<br />Service or Offering as modified or replaced remains materially the same;
<br />or (3) issue to Institution a pro-rata refund of fees paid by Institution for
<br />the Service or Offering based upon the remainder of the Access Term.
<br />(b) Procedure. The indemnified party shall: (i) give the indemnifying
<br />party prompt written notice of any indemnified claim; Provided,
<br />however, that failure of the indemnified party to give such prompt
<br />written notice shall not relieve the indemnifying party of any obligation
<br />to indemnify pursuant to this Section 8, except to the extent the
<br />indemnifying party has been prejudiced thereby; (11) cooperate fully with
<br />the indemnifying party, at the indemnifying partys expense, in the
<br />defense or settlement of any Indemnified claim; and (ill) give the
<br />Indemnifying party sole and complete control over the defense or
<br />settlement of any indemnified claim; provided, however that any
<br />settlement must Include a complete release of the indemnified party
<br />without requiring the indemnified party to make any payment or bear
<br />any obligation.
<br />9. DISCLAIMER OF WARRANTIES
<br />THE SERVICE, OFFERINGS AND ALL OTHER MATERIALS PROVIDED
<br />BY KANOPY UNDER THIS AGREEMENT (COLLECTIVELY, "KANOPY
<br />MATERIALS") ARE PROVIDED "AS IS;' "AS AVAILABLE" AND "WITH ALL
<br />FAULTS." KANOPY, TO THE MAXIMUM EXTENT PERMITTED BY LAW,
<br />EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS
<br />(EXCEPTAS SET FORTH IN SECTION 7), EXPRESS OR IMPLIED, INCLUDING:
<br />(A) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
<br />A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH RESPECT TO
<br />THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE
<br />KANOPY MATERIALS, OR THAT USE OF THE KANOPY MATERIALS WILL BE
<br />ERROR -FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL
<br />MEET INSTITUTION'S OR END USERS' REQUIREMENTS.
<br />10. LIMITATION OF LIABILITY
<br />OTHER THAN WITH RESPECT TO KANOPY'S INDEMNIFICATION
<br />OBLIGATIONS UNDER SECTION 8(a): (A) IN NO EVENT SHALL KANOPY OR
<br />ITS AFFILIATES AND LICENSORS BE LIABLE FOR ANY INCIDENTAL,
<br />INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST
<br />PROFITS OR COST OF COVER, ARISING FROM OR RELATING TO THIS
<br />AGREEMENT, INCLUDING DAMAGES ARISING FROM ANY TYPE OR
<br />MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED
<br />BY OR RESULTING FROM ANY ACCESS TO OR USE OF OR INABILITY TO
<br />ACCESS OR USE THE KANOPY MATERIALS, SUCH AS ANY MALFUNCTION,
<br />DEFECT OR FAILURE OF ANY KANOPY MATERIALS, EVEN IF KANOPY HAD
<br />ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH
<br />DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE
<br />FORESEEABLE; AND (B) IN NO EVENT SHALL KANOPY'S AGGREGATE
<br />LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES
<br />RECEIVED BY KANOPY FROM INSTITUTION UNDER THIS AGREEMENT IN
<br />THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE
<br />ON WHICH THE EVENTS GIVING RISE TO LIABILITY AROSE.
<br />11. Miscellaneous
<br />(a) Independent Contractors. The relationship between Kanopy and
<br />Institution established by this Agreement is solely that of independent
<br />contractors. Neither party is in anywaythe partneror agent ofthe other,
<br />nor is either party authorized or empowered to create or assume any
<br />obligation of any kind, implied or expressed, on behalf of the other party,
<br />without the express priorwritten consent of such other party.
<br />Page 4 of 5
<br />
|