DIGITAL LICENSE AGREEMENT
READ THIS AGREEMENT CAREFULLY. YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT IF YOU DO ANY ONE OF THE FOLLOWING: ACCESS OR USE CAPSTONE DIGITAL CONTENT ONLINE OR THROUGH OTHER MEDIA ON WHICH CAPSTONE DIGITAL CONTENT IS STORED; SEND TO CAPSTONE A PURCHASE ORDER FOR THE RIGHT TO ACCESS THE CAPSTONE DIGITAL CONTENT; OR TICK THE BOX AT THE END OF THIS AGREEMENT. YOU MAY NOT ACCESS THE CAPSTONE DIGITAL CONTENT WITHOUT ACCEPTING THE TERMS OF THIS AGREEMENT.Agreement
This Capstone Digital License Agreement (the "Agreement") is a legal agreement between you and Capstone Global Library Ltd ("Capstone"). The parties agree as follows:
As used in this Agreement, "you" and "your" refer TO the entity receiving the right to use Capstone digital content. THE INDIVIDUAL accepting THIS AGREEMENT DOES SO ON BEHALF OF SUCH ENTITY AND NOT IN HIS OR HER INDIVIDUAL CAPACITY. You as an individual represent that as the person accepting this Agreement you as an individual are duly authorized to bind the entity receiving the right to use Capstone digital content to the terms of this Agreement.
As used in this Agreement, "Capstone digital content" shall include ALL Software, databases, TEXT, DIAGRAMS, IMAGES, PHOTOGRAPHS, AUDIO, VIDEO, COMPILATIONS, OR OTHER WORKS OF AUTHORSHIP OF ANY KIND THAT ARE MADE AVAILABLE TO YOU BY CAPSTONE.
- Grant of License. Capstone grants to you, for the term of this Agreement, a non-exclusive, non-transferable, non-assignable, Building Specific site license to access and view the Capstone Digital Content solely in accordance with the terms of this Agreement in the United Kingdom and worldwide. "Building Specific" shall mean that this license is strictly limited to a site license granted to you on a per Building basis. This Building Specific license allows all of your students that currently attend, and staff that currently work, in the licensed Building identified by you when purchasing this license, to access and view the Capstone Digital Content. Those students and staff of the identified Building may also view and access the Capstone Digital Content at-home for private non-commercial use. Individuals who do not remain students or staff of the identified Building shall have no ongoing right to view or access the Capstone Digital Content. In the case of consortium, district, multi-site, regional centre, local authority or other entities consisting of multiple institutional Buildings of any type, a site license is required for each Building with students or staff accessing or viewing the Capstone Digital Content. For the purpose of clarity, a "Building" is defined as having a unique mailing address and head teacher, director, or manager. You, your students, and your staff may only access and view the Capstone Digital Content for your internal, non-commercial use in connection with their studies and work at the Building. You are solely responsible for providing the required facilities, hardware, software (including third-party software), services, and systems (including telecommunications and bandwidth, electrical and physical systems), for you, your students, and your staff to access and view the Capstone Digital Content. Minimum requirements are the responsibility of the licensee and can be found at http://online.raintree.co.uk/about/requirements.html.
- Payment. By entering into this Agreement, you agree to be bound by the payment terms set forth by Capstone for the license granted to the Capstone Digital Content. Failure to abide by the payment terms set forth by Capstone (whether in the invoice provided by Capstone or as listed in catalogues, web site or other marketing material or otherwise) may, at Capstone's discretion, entitle Capstone to automatically terminate this Agreement including without limitation all of your license rights to the Capstone Digital Content. Any acceptance of partial payment, reduced payment, or late payment by Capstone shall not constitute a waiver as to Capstone's right to recover full amounts due under the payment terms and Capstone's right to terminate this Agreement for non-payment.
- Restrictions on Use. Without the prior written consent of Capstone, you may not do any of the following, nor may you permit any of your students or staff, or any third party, to do any of the following, save as expressly permitted under applicable law: (i) exceed the limited license rights granted in this Agreement including, without limitation, the sharing of passwords or other login credentials with those not given explicit rights to access and view Capstone Digital Content under this Agreement; (ii) remove any proprietary notices, labels, or marks from Capstone Digital Content, (iii) sell, transfer, lend, lease, license, or sublicense Capstone Digital Content, (iv) copy, distribute, display, communicate to the public, perform, modify, or create derivative works from Capstone Digital Content or circumvent any digital rights management or copyright management protection associated with the Capstone Digital Content, or (v) translate, reverse engineer, decompile or disassemble Capstone Digital Content or the hardware, executable software, software source code, or any other technology used as a means for delivering the Capstone Digital Content or securing Capstone's rights in the Capstone Digital Content including without limitation any digital rights management or copyright protection. In addition, you agree and are responsible for ensuring that neither you nor your students or staff will use any website, ftp site, media, or other methods or materials provided by Capstone for your access and viewing of Capstone Digital Content for any purpose beyond that which is explicitly contemplated in this Agreement.
- Ownership. As between you and Capstone, Capstone is the owner of all Intellectual Property rights in and to Capstone Digital Content and any information, suggestions, comments, or other materials you, your students, or your staff submit to Capstone. "Intellectual Property" shall mean all of the following, arising under equity or law, whether or not filed, perfected, registered or recorded anywhere in the world: all patents and applications for patents; all designs, copyrights, copyright registrations and copyright applications, copyrightable works, database rights, and all other corresponding rights; all trade dress and trade names, logos, trademarks and service marks and related registrations and applications, all other indicia of commercial source or origin, and all goodwill associated with any of the foregoing; and, all trade secrets and confidential information of any kind. The license granted under this Agreement is not a sale of Capstone Digital Content or any copy of Capstone Digital Content and does not grant you any ownership rights to or in any copies of Capstone Digital Content. Ownership of Capstone Digital Content and copies thereof will at all times remain with Capstone (or its licensors), regardless of who may be deemed the owner of the tangible media in or on which Capstone Digital Content may be copied, encoded or otherwise fixed.
- Duration of Access to Capstone Digital Content: Capstone will endeavour to provide access to the Capstone Digital Content in a form and format that is in the sole discretion of Capstone for a period of not less than five (5) years from the date on which a given piece of Capstone Digital Content is made available by Capstone. By way of example, if Capstone adds access to an electronic book as a part of the Capstone Digital Content, Capstone will endeavour to continue to make that specific electronic book available to you for a period of not less than five (5) years after it is first added to the Capstone Digital Content. After five (5) years, Capstone reserves the right, in its sole discretion, to remove that piece of Capstone Digital Content. If Capstone removes a piece of Capstone Digital Content, you will have the right to request a copy of that piece of removed content in a form and format that is in the sole discretion of Capstone. Capstone will then deliver to you in a method and medium of Capstone's choosing and in a commercially reasonable time a copy of the removed content that you will continue to have a license to in accordance with the license rights granted in this Agreement. All requests for copies of removed pieces of Capstone Digital Content must be sent to Capstone by email at: firstname.lastname@example.org and received by Capstone no later than ninety (90) days after the piece is removed from the Capstone Digital Content. In no event shall Capstone have any obligation to provide access or a copy to you, your students, or your staff, to any piece of Capstone Digital Content (i) removed in accordance with this Section of the Agreement and where Capstone did not receive a request from you for a copy of that removed piece of Capstone Digital Content or (ii) removed by Capstone where the material in question infringes any third party rights or is alleged to do so or Capstone reasonably considers it does, or (iii) where Capstone is unable to supply the Capstone Digital Content in question for any reason (including without limitation where the Capstone Digital Content is no longer available to Capstone on terms acceptable to Capstone).
- Term and termination. The term of this Agreement shall continue so long as you are in compliance with the terms of this Agreement. Without affecting any other right or remedy available to it, Capstone may terminate this Agreement with immediate effect by giving written notice to you if: (i) you fail to pay any amount due under this Agreement on the due date for payment and remain in default not less than 30 days after being notified in writing to make such payment, (ii) you commit a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fail to remedy that breach within a period of 30 days after being notified to do so, (iii) repeatedly breach any of the terms of this Agreement in such a manner as to reasonably justify the opinion that your conduct is inconsistent with your having the intention or ability to give effect to the terms of this Agreement, or (iv) any distress or execution is levied on your property or if you have a receiver, administrator, administrative receiver or manager appointed over the whole or any part of your assets, become insolvent, compound or make any arrangement with your creditors, are the subject of a bankruptcy petition or order, or a petition is filed, a notice is given, a resolution is passed or an order is made for or in connection with your winding up or you go into liquidation, or if you suffer any analogous proceeding under foreign law.
- On termination or expiry of this Agreement, you must destroy all copies of the Capstone Digital Content in your possession or control, cease any and all attempts at accessing or viewing Capstone Digital Content by you, your students, and your staff, and, upon Capstone's request, you shall provide written, signed certification of such destruction.
- Disclaimer of Warranties. CAPSTONE DIGITAL CONTENT AND ALL METHODS AND MEDIA THROUGH OR ON WHICH IT IS PROVIDED INCLUDING WITHOUT LIMITATION ANY HOSTING OR PROVISION OF CAPSTONE DIGITAL CONTENT THROUGH THE INTERNET IS PROVIDED BY CAPSTONE AND ACCEPTED BY YOU "AS IS," "WITH ALL FAULTS," AND WITHOUT ANY WARRANTY WHATSOEVER. ALL WARRANTIES, TERMS OR CONDITIONS, EXPRESS OR IMPLIED (OTHER THAN AS EXPRESSLY SET OUT IN THIS AGREEMENT), INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY CAPSTONE TO THE FULLEST EXTENT PERMITTED BY LAW. CAPSTONE DOES NOT WARRANT THAT THE ACCESS TO CAPSTONE DIGITAL CONTENT OR CAPSTONE DIGITAL CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY WEBSITE OR SERVER THAT MAKES CAPSTONE DIGITAL CONTENT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CAPSTONE DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING USE, OR THE RESULT OF USE, OF THE CAPSTONE DIGITAL CONTENT IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE. THE CAPSTONE DIGITAL CONTENT MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS.
- Limitation of Liability. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, CAPSTONE (AND ITS LICENSORS) WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY USE OF OR INABILITY TO USE, ACCESS, OR VIEW CAPSTONE DIGITAL CONTENT. YOU UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES WILL CAPSTONE (OR ITS LICENSORS) BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE CAPSTONE DIGITAL CONTENT, EVEN IF CAPSTONE (OR ITS LICENSOR) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE LEGAL CAUSE OF ACTION ASSERTED WHETHER NEGLIGENCE, BREACH OF CONTRACT, BREACH OF STATUTORY DUTY OR OTHERWISE. IN ANY CASE, IN NO EVENT SHALL CAPSTONE'S AND ITS LICENSORS' AGGREGATE LIABILITY HOWSOEVER ARISING WHETHER IN NEGLIGENCE, BREACH OF CONTRACT, BREACH OF STATUTORY DUTY OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU FOR THE LICENSE GRANTED HEREIN. PROVIDED ALWAYS THAT NOTHING IN THIS AGREEMENT SHALL OPERATE TO EXCLUDE OR LIMIT A PERSON'S LIABILITY FOR: (I) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, (II) FRAUD, (III) ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
- Indemnification. You are legally responsible for any inappropriate access, viewing, or other misuse of Capstone Digital Content that occurs in violation of, or outside of, the rights granted in this Agreement whether by you, your students, your staff, or any third party that gains access to the Capstone Digital Content by or through your, your students', or your staff's actions or inactions (collectively "Inappropriate Behaviour"). You agree to indemnify, defend and hold harmless Capstone, its officers, directors, and employees from and against any and all claims, losses, expenses, damages (including, but not limited to, direct, indirect, incidental, consequential, and exemplary damages), liabilities, and costs (including reasonable attorneys' fees, expert fees, and other litigation or investigation costs), whether for defence or prosecution of any of Capstone's, or Capstone's licensors', Intellectual Property rights or other rights under this Agreement resulting from or arising out of your use of or inability to use Capstone Digital content, any violation by you of this Agreement, and any Inappropriate Behaviour.
- General Provisions
- No Waiver. No waiver by Capstone of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
- Severability. If any provision of this Agreement is found to be invalid or unenforceable, that provision will be enforceable to the maximum extent permissible, and the other provisions of the Agreement will remain in force.
- Force Majeure. Capstone will not be liable for, nor will be considered to be in breach of or default under, this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond Capstone's reasonable control and that Capstone is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, Capstone will give prompt notice to you and will use commercially reasonable efforts to minimize the impact of the event. This clause in no way abrogates or limits the Disclaimer of Warranty, Limitation of Liability, and Indemnification provisions otherwise set forth in this Agreement.
- Enforcement. This Agreement is governed by, and will be interpreted in accordance with, the laws of England and Wales, without regard to any conflict of laws or principles of any other jurisdiction. You irrevocably consent to the exclusive jurisdiction and venue of the courts of England and Wales, for the litigation of any dispute relating to this Agreement.
- Assignment. Your rights under this Agreement are not assignable or transferable (by operation of law or otherwise). Capstone is entitled to assign or delegate its rights and obligations under this Agreement. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. No third-party beneficiaries (save for Capstone's licensors as provided herein) are intended or shall be construed as created by virtue of this Agreement including without limitation the parties agree that your students and staff are not third-party beneficiaries to this Agreement. For the avoidance of doubt, no one other than a party to this Agreement (or Capstone's permitted assigns or Capstone's licensors) shall have any right to enforce any of its terms.
- No Partnership or Agency. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between either of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party (except as expressly provided in this Agreement). Each party confirms it is acting on its own behalf and not for the benefit of any other person
- Notices. Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be: (i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office and/or its principal place of business, or (ii) sent by fax to its main fax number, (iii) or sent by e-mail to a valid current e-mail address of the recipient.
- Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives) or otherwise expressly agreed to by the authorised representatives of the parties. For the avoidance of doubt the consent of Capstone's licensors shall not be required to vary or amend this Agreement.
- General Contact Information. If you have any questions about this Agreement, you may contact Capstone at the following address or e-mail address: Capstone Global Library Limited, Halley Court, Oxford, OX2 8EJ, Tel 01865 312248, e-mail email@example.com.