LIBRARY VIDEO COMPANY DIGITAL CONTENT LICENSE AGREEMENT
Your school or school district (“Subscriber”) has purchased the SAFARI Montage video-on-demand system by Library Video Company
(“LVC”). Access to and all use of the Digital Content (defined below) on the
SAFARI Montage system by an Authorized Institution (defined below) and/or
End User (defined below) shall be subject to the following terms and conditions
(the “Agreement”):
1. Definitions. For purposes of
this Agreement, the following definitions shall apply:
(a) “Digital Content” shall mean the programs
comprising the digital content package(s) subscribed to and paid for by Subscriber
for use on the SAFARI Montage system and any teacher’s guides, curriculum
correlations, abstracts, metadata and any other content provided with each
such program at LVC’s sole discretion.
(b) “SAFARI Montage” shall mean the SAFARI
Montage video-on-demand system by Library Video Company, with resident software
or appliances purchased by Subscriber, and which provides Subscriber and/or
End Users with access to Digital Content.
(c) “Authorized Institution(s)” shall mean
the school, library and/or other educational institution authorized to access
and use the Digital Content under this Agreement.
(d) “End Users” shall mean educators, staff or student members of an Authorized Institution(s) utilizing the Digital
Content by means of the SAFARI Montage system
(e) “Activation Date” shall mean the date on
which the SAFARI Montage system is activated by Subscriber or an authorized
LVC technician.
2. Grant of Rights.
(a) LVC hereby grants to Subscriber a non-exclusive,
non-transferable license to use, publicly perform and/or exhibit the Digital
Content by means of the SAFARI Montage system for viewing by End Users located
at the Authorized Institution(s) and in accordance with the usage rights provided
by LVC on the SAFARI Montage system for each program comprising the Digital
Content. Notwithstanding the above, teachers shall have the right, only if
such right is available, to access the Digital Content from home for lesson
planning purposes only provided that, such access is password protected and
the Digital Content is not downloaded or saved to any desktop computer and/or
any other storage or playback device. All rights not specifically granted
to Subscriber under this Agreement are reserved by LVC.
(b) Subscriber acknowledges and agrees that,
except for limited home access rights as set forth in paragraph 2(a), above:
(i) the Digital Content shall be used only in connection with the SAFARI Montage
system for access by End Users within a confined viewing or listening environment
located at the Authorized Institution(s), including, without limitation, classrooms,
libraries and/or media centers; and (ii) the license herein is granted only
with respect to the Authorized Institution(s) and additional licenses must
be obtained and paid for by Subscriber for any schools, libraries and/or other
educational institutions that are provided access to Digital Content that
did not have prior access to such Digital Content under this Agreement, including,
without limitation, any new schools in a school district or new schools added
to a regional media center that are not covered by this Agreement and which
will have access to the Digital Content. Except as otherwise expressly authorized
by LVC under this Agreement, Subscribers and/or End Users shall not store,
copy, manipulate, transmit, download, or in any way redistribute the Digital
Content apart from the SAFARI Montage system. To the extent download rights,
if any, are available for Digital Content, Subscriber acknowledges and agrees
that such downloading shall be for educational purposes only, pursuant to
the terms of this Agreement. Notwithstanding anything to the contrary, nothing
in this Agreement shall limit or otherwise restrict Subscriber’s fair use
defenses under the U.S. Copyright Act of 1976.
3. Consideration. In consideration
for the rights granted under this Agreement, Subscriber agrees to pay any
and all license fees, service charges and/or taxes related to the Digital
Content, as set forth in the quote received by Subscriber for the Digital
Content or as otherwise invoiced to Subscriber by LVC. All payments due under
this Agreement shall be paid in accordance with the payment terms set forth
in the invoice received by Subscriber for such payment. Subscriber’s failure
to pay any and all fees and/or charges due under this Agreement may result
in additional service charges and/or termination of this Agreement at LVC’s
sole discretion.
4. Term. Unless terminated sooner,
as provided below, or as otherwise agreed to by LVC in writing, the term of
this Agreement shall begin on the Activation Date and run for a period of
one (1) year thereafter. Upon approval by LVC, in its sole discretion, this
Agreement may be renewed for additional one (1) year periods under the same
terms and conditions set forth in this Agreement, subject to payment of additional
digital license fees. Unless otherwise agreed to by LVC in writing, this Agreement
shall automatically become null and void if the Digital Content is not activated
within sixty (60) days of Subscriber’s receipt of an Activation Code for such
Digital Content from LVC.
5. Subscriber Obligations.
(a) Subscriber shall digitally deliver the
Digital Content as provided in paragraph 1, above, to the End Users only where
all End Users, as well as monitors and playback units utilized for the playing
and viewing of the Digital Content, are located within the Authorized Institution(s).
Subscriber shall use the Digital Content only in connection with the SAFARI
Montage system at the Authorized Institution(s) and shall not charge End Users
any direct or indirect fees for viewing the Digital Content.
(b) Subscriber agrees that Subscriber shall
not and shall instruct End Users that End Users shall not modify, edit, copy,
tape, reproduce, duplicate, transmit, broadcast, decompile, disassemble, reverse
engineer, loan, rent, lease, sublicense, create derivative works or make any
other use whatsoever of the SAFARI Montage system, including, without limitation,
any and all software residing on the SAFARI Montage system and/or the Digital
Content, in whole or in part, except as expressly authorized herein or as
otherwise permitted under the U.S. Copyright Act of 1976, including, without
limitation, any “fair use” provisions under Section 107 of such Act. Nothing
in this Agreement shall prohibit Subscriber from interrupting, fast forwarding
or rewinding the Digital Content during its viewing.
(c) Subscriber shall not make any modification,
deletion, cut, alteration or addition in or to the Digital Content, including,
without limitation, the deletion of any copyright notices or credits from
the Digital Content or from any other material supplied to Subscriber hereunder.
The Digital Content shall not be used in any manner to promote and/or endorse
any products and/or services, without the express written permission of the
copyright owner for the respective Digital Content.
(d) Upon written notice from LVC that the Digital
Content, or any portion thereof, is subject to a threatened or actual claim
of infringement, violation of another right or any other claim for which LVC
may be liable herein, or if LVC retires and/or withdraws any Digital Content
for any reason, including, without limitation, for editorial
reasons, Subscriber shall cease all further use of such Digital Content and
take any necessary action, as instructed by LVC, to block further access to
such Digital Content. LVC shall provide Subscriber with comparable Digital
Content (which comparability will be determined by LVC in its reasonable commercial
judgment) free of charge, but subject to the terms and conditions of this
Agreement.
(e) Subscriber shall enable uninterrupted remote
access to the SAFARI Montage system via the Internet, and LVC and/or its authorized
representative shall have the right to remotely access the SAFARI Montage
system via the Internet for content and software updates, maintenance, operational
and administrative purposes and/or data collection. In the event online access
to the SAFARI Montage system is interrupted or otherwise not available for
any reason, upon request by LVC, Subscriber shall grant LVC and/or its authorized
representative direct on-site access to the SAFARI Montage system during normal
business hours.
(f) Subscriber agrees that it shall not use
any trade names, service marks and/or trademarks belonging to SVN, LVC and/or
any third party provider of Digital Content licensed hereunder, including,
without limitation, any name or title of any Digital Content.
6. Copyright. Subscriber acknowledges
and agrees that no ownership or copyright in any Digital Content shall pass
to Subscriber. Subscriber shall not remove and/or alter the copyright information
from any Digital Content and/or any digital file related to the Digital Content.
Subscriber further agrees that the use of any copies of the Digital Content
hereunder shall not affect the copyright holder’s continued and separate copyright
ownership in the Digital Content. Should Subscriber inadvertently or for any
reason come into possession or ownership of the copyright in the Digital Content,
or any versions or derivatives thereof, Subscriber shall transfer and assign
such ownership of copyright to LVC (or LVC’s designee) immediately and without
request or demand by LVC.
7. Termination.
(a) LVC reserves the right to terminate this
Agreement, effective immediately, upon Subscriber’s breach of this Agreement.
(b) LVC may terminate this Agreement at any
time upon written notice to Subscriber, effective immediately, if Subscriber
seeks protection of any bankruptcy, insolvency or similar law, or terminates
its operations. Subscriber expressly waives any and all of its rights to sovereign
immunity to the extent Subscriber can seek such protection for any reason
in connection with this Agreement and its obligations under this Agreement.
(c) In the event of any termination of this
Agreement for breach by Subscriber or for any other reason hereunder, the
rights and obligations of Subscriber still in force at the time of such termination
shall automatically revert to LVC.
(d) Upon expiration or termination of this
Agreement, Subscriber shall immediately cease use of the Digital Content and
shall return to LVC all drives containing the Digital Content within thirty
(30) days of such expiration or termination.
8. Indemnification. Subscriber
agrees to indemnify and hold LVC and its Digital Content licensors (including
their affiliates, subsidiaries, successors and assigns, and their respective
directors, trustees, officers, employees and agents) harmless against any
and all claims for damages, losses or any costs, including attorney’s fees,
arising in any manner whatsoever from (a) the unauthorized use of any Digital
Content, (b) Subscriber’s use of any third party content in connection with
the SAFARI Montage system and/or (c) Subscriber’s breach of any of the terms
of this Agreement.
9. Warranty and Limitation of Liability.
(a) LVC warrants to Subscriber that, LVC has
secured all necessary rights to enter into this Agreement and to grant the
rights granted hereunder. The sole and exclusive remedy for a breach of this
Agreement, including, without limitation, any breach of the foregoing warranty,
is the replacement of the Digital Content, which replacement shall be subject
to the terms and conditions of this Agreement. Warranty service for the SAFARI
Montage system shall be subject to the warranty terms and conditions for such
system as provided by SAFARI Video Networks.
(b) EXCEPT AS EXPRESSLY SET FORTH IN THIS
SECTION 9, LVC MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. LVC, ITS AFFILIATES, SUBSIDIARIES, SUCCESSORS AND ASSIGNS, SHALL
NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE,
SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, LOST PROFITS OR OTHER
DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF LVC HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
10. Right to Inspect. LVC may
at any time inspect any records, accounts and/or books relating to Subscriber’s
use of the Digital Content to ensure that the Digital Content is being used
in accordance with the terms of this Agreement.
11. Assignment. This Agreement
and/or any and all of the rights granted to Subscriber under this Agreement
shall not be assigned by Subscriber, in whole or in part, without the prior
written consent of LVC, and any purported assignment absent such consent shall
be null and void. This Agreement and/or any and all of LVC’s obligations under
this Agreement may be assigned by LVC, in whole or in part, without the prior
written consent of Subscriber.
12. Miscellaneous.
(a) This Agreement contains the full and complete
understanding of the parties regarding the subject matter thereof, and supersedes
all prior and/or contemporaneous agreements and understandings, whether written
or oral, between the parties. No waiver, alteration or modification of any
provision of this Agreement shall be binding unless in writing and signed
by both parties hereto. In the event of any conflict between this Agreement
and any information or agreement otherwise provided to Subscriber in connection
with the SAFARI Montage system, the terms of this Agreement shall govern.
(b) Except as otherwise provided in section
9, above, no failure or delay of either party to exercise any rights or remedies
under this Agreement shall operate as a waiver thereof, nor shall any single
or partial exercise of any rights or remedies preclude any further or other
exercise of the same or any other rights or remedies, nor shall any waiver
of any rights or remedies with respect to any circumstances be construed as
a waiver thereof with respect to any other circumstances.
(c) In the event that any provision of this
Agreement is held invalid or unenforceable in any circumstances by a court
of competent jurisdiction, the remainder of this Agreement, and the application
of such provision in any other circumstances, shall not be affected thereby.
(d) This Agreement shall be governed by, construed
and enforced in accordance with the laws of the Commonwealth of Pennsylvania,
without regard to any conflict of laws principles. Subscriber consents to
the exclusive jurisdiction of the state courts of the Commonwealth of Pennsylvania,
Montgomery County and the United States District Court for the Eastern District
of Pennsylvania in all disputes and matters arising under this Agreement.
(e) All notices to LVC contemplated under this
Agreement shall be in writing and delivered by hand or registered mail, return
receipt requested, as follows: Library Video Company, P.O. Box 580, Wynnewood,
PA 19096, Attn: Vice President of Legal and Business Affairs.
(f) The headings set forth in this Agreement
are for convenience of the parties only and shall not be considered in interpreting
the meaning of any provision of this Agreement.
BY ACTIVATING, AUTHORIZING THE ACTIVATION OF, OR BY OTHERWISE
USING THE SAFARI MONTAGE SYSTEM, SUBSCRIBER ACKNOWLEDGES THAT IT HAS READ
AND UNDERSTANDS THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREES TO
BE LEGALLY BOUND BY ALL SUCH TERMS AND CONDITIONS. SUBSCRIBER FURTHER ACKNOWLEDGES
AND AGREES THAT SUCH ACTIVATION MAY BE PERFORMED BY AN LVC TECHNICIAN AT
LVC’S FACILITIES OR, IF ACTIVATED AT THE INSTALLATION LOCATION, SHALL BE
PERFORMED ONLY BY AN AUTHORIZED SIGNATORY FOR SUBSCRIBER.
Version 06.01.2007
LICENSED DIGITAL CONTENT.