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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. In the event that Kanopy agrees to host
<br />content on behalf on Institution, Kanopy acknowledges and agrees that,
<br />as between Institution and Kanopy, Institution (or its licensors) owns all
<br />rights, title and interest (including all intellectual property) in and to
<br />Institution Content.
<br />4. Fees and Taxes
<br />(a) Fees. Institution shall pay Kanopy the applicable fees set forth in
<br />each Order Form pursuant to the payment terms therein. If an Order
<br />Form does not specify payment terms, then payments thereunder shall
<br />be due net thirty (30) days after invoice. Amounts not paid when due
<br />shall be subject to interest at the rate of one and a half percent (1.5%)
<br />per month or the maximum rate permitted by law, whichever is less.
<br />(b) Taxes. Any and all amounts payable hereunder by Institution are
<br />exclusive of any sales, use, value-added, excise or other similar taxes
<br />(collectively, "Taxes"). Institution shall be solely responsible for paying all
<br />applicable Taxes. If Kanopy has the legal obligation to collect any Taxes,
<br />Institution shall reimburse Kanopy upon invoice by Kanopy. If Institution
<br />is required by law to withhold any taxes from its payments to Kanopy,
<br />Institution shall provide Kanopy with an official tax receipt or other
<br />appropriate documentation to support such payments and take
<br />reasonable steps to minimize such payments.
<br />5. Intellectual Property
<br />(a) Kanopy Ownership. Institution acknowledges and agrees that, as
<br />between Kanopy and Institution, Kanopy (or its licensors)owns -all rights,
<br />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 Institution elects to provide or make available
<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 credit or 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 for two years from the effective date
<br />or until all content credit is exhausted, 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: (i) actual or reasonably suspected breach of Section 2 by
<br />Institution or any End User; provided, however, 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 (ii) 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: (i) by either party upon written
<br />notice to the other party; Provided, however that no Order Form is then
<br />in effect; (it) 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 (III) 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); 3 (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). PAL's shall also survive
<br />the expiration or termination of this Agreement, subject to payment of
<br />the Continuing Service Fee, as well as adherence to all relevant use
<br />restrictions.
<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 (e) 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(c) or 3(b) or infringement of such third party's copyright attributable to
<br />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: (1) 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; (ii) use of the Service
<br />or any Offering in combination with any materials not provided or
<br />approved by Kanopy; or (!it) Institution Content. In the event that the
<br />Service or any Offering becomes the subject of an indemnified claim or
<br />Kanopy reasonably determines that any Offering is likely to become the
<br />subject of an indemnified claim, Kanopy may, at its sole discretion: (1)
<br />procure for Institution a license as necessary for Institution to exercise
<br />the rights granted by Kanopy under this Agreement; (2) modify or replace
<br />the Service or Offering to avoid infringement, Provided, however that
<br />the Service or Offering as modified or replaced remains materially the
<br />same; or (3) issue to Institution a pro-rata refund of fees paid by
<br />Institution for the Service or Offering based upon the remainder of the
<br />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; (li) cooperate fully with
<br />the indemnifying party, at the indemnifying party's expense, in the
<br />defense or settlement of any indemnified claim; and (iii) 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
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