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N-2021-074
<br />1. Definitions
<br />(a) "Access Term" means the period of time set forth In
<br />each Order Form during which the Offerings or, as applicable, Institution
<br />Content covered by such Order Form will be hosted and streamed by
<br />Kanopy pursuant to this Agreement.
<br />(b) "Credentials" means any user accounts, passwords
<br />and other authentication credentials associated with access to or use of
<br />the Service by Institution or End Users.
<br />(c) "End User" means: (1) any student, teacher,
<br />professor, patron, employee or staff member affiliated with Institution;
<br />(ii) any authorized visitor physically present at the facilities of Institution;
<br />and (111) with respect to any Institution that is a library established for use
<br />by the general public and maintained primarily through public funds, any
<br />individual who is a member of such Institution.
<br />(d) "Institution Content" means any content provided by
<br />Institution pursuant to this Agreement for hosting and streaming by
<br />Kanopy.
<br />(a) "Institution Facilities" means Credentials and any
<br />account, hardware, system or other facility within Institution's custody
<br />or control.
<br />(f) "Offering" means any Product or Title.
<br />(g) "Order Form" means an order form, invoice or other
<br />ordering document entered into between the parties pursuant to this
<br />Agreement specifying the Offerings, Institution Content, fees and
<br />payment terms, special usage rights and restrictions and other terms
<br />relevant to the order.
<br />(h) "Product" means each product identified in an Order
<br />Form that Kanopy will make accessible to Institution pursuant to this
<br />Agreement, including: (1) any package or collection of titles or other
<br />content made accessible to Institution via subscription, patron -driven
<br />acquisition (PDA), pay -per -use (PPU) or other such models; and (11) any
<br />other product that Kanopy may offer.
<br />(i) "Service" means the service through which Kanopy
<br />hosts and makes accessible Offerings and, as applicable, Institution
<br />Content.
<br />(j) "Territo ' means the geographical area designated
<br />as the Territory in an Order Form or, if no such area is designated in an
<br />Order Form, the country in which Institution is domiciled.
<br />(k) "Title" means each film, video or other content
<br />(excluding Institution Content) identified in an Order Form that Kanopy
<br />will make accessible to Institution pursuant to this Agreement.
<br />2. Grant of Rights and Restrictions
<br />(a) Grant of Rights. During the applicable Access Term
<br />and subject to Institution's compliance in all material respects with the
<br />terms and conditions of this Agreement, Kanopy hereby grants
<br />Institution a limited, non-exclusive, non-sublicensable right and license
<br />to allow End Users within the designated Territory to view Offerings and,
<br />as applicable, Institution Content in real-time within the Service.
<br />(b) Restrictions. All rights granted under this Agreement
<br />may only be exercised for non-commercial personal or educational use.
<br />Institution shall not: (1) use, archive, capture, reproduce, modify, adapt,
<br />create derivative works from, publicly perform, publicly display,
<br />distribute, make, have made, assign, pledge, transfer or otherwise grant
<br />rights to the Service or any Offering, except as expressly permitted under
<br />this Agreement; (11) translate or reverse engineer, decompile, decode or
<br />otherwise attempt to derive the source code, architectural framework or
<br />data records of any software within or associated with the Service; (111)
<br />frame or utilize any framing technique to enclose any content within the
<br />Service; (iv) access the Service for the purpose of benchmarking or
<br />developing, marketing, selling or distributing any product or service that
<br />competes with or Includes features substantially similar to the Service or
<br />any products or services offered by Kanopy; (v) rent, lease, lend or sell
<br />the Service, or otherwise provide access to the Service as part of a service
<br />bureau or similar fee -for -service purpose; (vi) make the Service or any
<br />Offering accessible to anyone who is not an End User; (vii) remove or
<br />obscure any proprietary notice that appears within the Service or any
<br />Offering; or (vlii) use the Service in any way that does not comply In all
<br />material respect with the terms and conditions of this Agreement and all
<br />applicable laws and regulations.
<br />(c) Policies. In addition to the terms and conditions of
<br />this Agreement, access to and use of the Service shall comply with and
<br />be subject to any terms of service, acceptable use policy, privacy policy,
<br />end user license agreement and other guidelines Instituted by Kanopy or
<br />Its licensors or service providers.
<br />(d) Technical Requirements. Institution and End Users
<br />shall be solely responsible for obtaining, configuring and maintaining any
<br />hardware, network connectivity and third -party software required to
<br />access the Service, including computers, operating systems, web
<br />browsers and storage devices.
<br />(e) Protection. Institution shall be solely responsible for
<br />protecting the confidentiality of Credentials and all activities undertaken
<br />using Institution Facilities. In the eventthat Institution becomes aware of
<br />any unauthorized use of the Service through Institution Facilities,
<br />Institution shall promptly give written notice to Kanopy of such
<br />unauthorized use and make reasonable efforts to eliminate such
<br />unauthorized use. Institution shall implement and maintain appropriate
<br />security policies and procedures and access control methodologies to
<br />safeguard access to the Service through Institution Facilities and to limit
<br />access to the Service to End Users.
<br />3. Institution Content
<br />(a) Grant of Rights. As specified in an applicable Order
<br />Form, Institution may upload Institution Content to the Service for
<br />hosting and streaming by Kanopy pursuant to this Agreement. During the
<br />applicable Access Term, Institution hereby grants Kanopy a limited, non-
<br />exclusive, non-sublicensable, royalty -free right and license to host,
<br />stream, exhibit, transmit, reproduce, publicly perform, publicly display
<br />and project Institution Content as necessary to make Institution Content
<br />available for viewing by End Users within the Service.
<br />(b) Assurances. Institution represents and warrants that:
<br />(i) it holds all necessary rights (Including all intellectual property rights)
<br />and permissions to grant the rights under this Section 3 to Kanopy; and
<br />(11) Institution Content does not violate any applicable laws or any rights
<br />of another party, Including any laws relating to defamation or indecency
<br />and any intellectual property or right of privacy or publicity.
<br />(c) Institution Ownership. Kanopy acknowledges and
<br />agrees that, as between Institution and Kanopy, Institution (or its
<br />licensors) owns all rights, title and interest (including all Intellectual
<br />property) in and to Institution Content.
<br />4. Fees and Taxes
<br />(a) Fees. Institution shall pay Kanopy the applicable fees
<br />set forth in each Order Form pursuant to the payment terms therein. If
<br />an Order Form does not specify payment terms, then payments
<br />thereunder shall be due net thirty (30) days after Invoice.
<br />(b) Taxes. Any and all amounts payable hereunder by
<br />Institution are exclusive of any sales, use, value-added, excise or other
<br />similar taxes (collectively, 'Taxes"). Institution asserts that It is a tax
<br />exempt organization, and as such shall only be responsible for paying
<br />those Taxes, if any, that are applicable to such an organization with tax
<br />exempt status.
<br />5. Intellectual Property
<br />(a) Kanopy Ownership. Institution acknowledges and
<br />agrees that, as between Kanopy and Institution, Kanopy (or its licensors)
<br />owns all rights, title and interest (Including all intellectual property) In
<br />and to the Service and Offerings. Kanopy reserves all rights not expressly
<br />granted under this Agreement. Suggestions. If Institution elects to
<br />provide or make available to Kanopy any suggestions, comments, ideas,
<br />improvements or other feedback relating to the Service or Offerings
<br />("Suggestions'), Kanopy shall be free to use, disclose, reproduce, have
<br />made, modify, license, transfer and otherwise utilize and distribute
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