INSTITUTIONAL LICENSE AGREEMENT The American Academy of Pediatrics

Transcription

1 INSTITUTIONAL LICENSE AGREEMENT The American Academy of Pediatrics THIS INSTITUTIONAL LICENSE AGREEMENT ( Agreement ) is by and between The American Academy of Pediatrics ( Publisher ), and the licensee indicated below ( Licensee ): LICENSEE: ADDRESS: (street, city, state, zip) Contact: Phone: LICENSED MATERIALS: Format: SUBSCRIPTION FEE: SUBSCRIPTION PERIOD: TERRITORY: RECITALS Publisher has developed certain Licensed Materials that Licensee desires to use for research, teaching and/or private study purposes. Licensee desires to provide access to the Licensed Materials to its Authorized Users through its Secure Network. Publisher has agreed to make the Licensed Materials available to the Secure Network from Publisher s Servers pursuant to the following terms. NOW, THEREFORE, the Publisher and Licensee agree to the following terms and conditions: 1. DEFINITIONS In this Agreement, the following terms shall have the following meanings: 1.1 Authorized Users means all individual employees (whether on a permanent, temporary or contract basis), faculty, staff and students officially affiliated with the Licensee who are permitted to access the Secure Network from within the Licensee s premises or from such other places where Authorized Users undertake their work for the Licensee and who have been issued a password or other network authentication by Licensee to access the Licensed Materials. 1.2 Commercial Use means use for the purposes of monetary reward (whether by or for the Licensee or an Authorized User) by means of sale, resale, license, transfer, hire or other form of exploitation or commercialization of the Licensed Materials. For the avoidance of doubt, use of the Licensed Materials by the Licensee or an Authorized User in the course of research, teaching, study and related activity in the normal course of business does not constitute Commercial Use. 1.3 Fee means the fees set out above or in an addendum to this Agreement executed by both parties. 1.4 Licensed Materials means the electronic materials as set out above (or in an addendum to this Agreement executed by both parties) that are made available by Publisher during the Subscription Period. 1.5 Publisher Trademarks means any trademarks, logos and brand names of Publisher. 1.6 Secure Network means a network (whether a standalone network or a virtual network within the Internet) which is only accessible to Authorized Users, whose identities are authenticated at the time of log-in and periodically thereafter consistently with current best practice. - Page 1 of 7 -

2 1.7 Server means one or more servers designated by the Publisher on which the Licensed Materials are stored and may be accessed. 1.8 Subscription Period means that period for which the Licensee has ordered the Licensed Material under this Agreement as set out above or in an addendum to this Agreement executed by both parties. 1.9 Territory means the Territory set forth above. 2. LICENSE GRANT AND USAGE RIGHTS 2.1 License Grant. Subject to the terms and conditions of this Agreement, Publisher hereby grants to the Licensee, during the term of this Agreement, the non-exclusive right in the Territory (i) to use the Licensed Materials as set forth in Section 2.2 and (ii) to permit Authorized Users to access the Licensed Materials on the Server via the Secure Network (from the Licensee s premises and remotely) for the purposes set forth in Section 2.3 (the License ). The License is subject to the restrictions set forth in Section Licensee s Use. Under the License, Licensee is permitted to: (a) Make temporary local electronic copies of the Licensed Materials by means of caching or mirrored storage as are necessary solely to ensure efficient use by Authorized Users of the Licensed Materials. (b) Use the Licensed Materials as part of an integrated information service available to Authorized Users that will include links between the Licensed Materials and the Licensee s own indexes, third party abstracting and indexing services and other information resources utilized by the Licensee. The foregoing permits links to the Licensed Materials or individual portions therein, and does not permit incorporation of the Licensed Materials into any other service, system or database. (c) Distribute single copies of individual documents or items of the Licensed Materials in print or electronic form to Authorized Users for the purposes of research, teaching and/or private study. (d) Supply print or electronic copies of individual documents from the Licensed Materials to regulatory authorities for regulatory purposes. (e) Supply portions of Licensed Materials in connection with any legal and/or patent proceedings and/or if requested pursuant to an order of a competent court or administrative agency. 2.3 Authorized Users Use. Under the License, Authorized Users are only permitted to: (a) Access and display the Licensed Materials for the purposes of research, teaching and/or private study and never for Commercial Uses. (b) Electronically save and print off individual documents or parts of the Licensed Materials for personal use in connection with research, teaching and/or private study and never for Commercial Uses. (c) Distribute single copies of individual documents or items of the Licensed Materials in print or electronic form to other Authorized Users. (d) Supply printed copies of individual documents or parts of the Licensed Materials to individual patients on request or on an ad-hoc basis for medical informational purposes, provided that such dissemination does not result in distribution of a substantial or material portion or volume of the Licensed Materials to such patient. 2.4 License Restrictions. The License shall be subject to the following restrictions and conditions, and without the separate written approval of Publisher neither Licensee nor any Authorized User shall: (a) Use, or permit any third party to use, the Licensed Materials for any purposes other than research, teaching and/or private study. (b) Use, or permit any third party to use, the Licensed Materials for Commercial Uses. (c) Use any Licensed Material in course packs (print or electronic) or other written materials distributed to students. (d) Distribute, publish or make available any part of the Licensed Materials (in print or electronic form) to anyone other than Authorized Users except as explicitly permitted herein. (e) Remove, obscure, or change any copyright notices, author identification, disclaimers or other proprietary legends incorporated in the Licensed Materials. - Page 2 of 7 -

3 (f) Alter, abridge, adapt or modify the Licensed Materials or prepare derivative works based upon the Licensed Materials, nor permit third parties to do so. (g) Systematically download or copy (by robots or other automatic processes) portions of the Licensed Materials or make multiple extracts of the Licensed Materials. The foregoing shall not restrict the indexing of materials for search purposes. (h) Post or distribute any part of the Licensed Material on any electronic network other than Licensee s Secure Network as permitted herein, and in no event make available Licensed Material to the public via the Internet or World Wide Web. (i) Make agreements for access to the Licensed Materials with individuals, organizations, vendors, affiliates, or partners, who are not individual Authorized Users. 3. ACCESS BY AUTHORIZED USERS 3.1 Licensee shall make all Authorized Users aware of, and undertake to abide by, the terms and conditions in this Agreement, including Sections 2.3 and 2.4, regarding permitted use of the Licensed Material. Licensee will monitor compliance of its Authorized Users with the terms of this Agreement. Licensee will promptly upon becoming aware of any significant unauthorized use or other breach, inform the Publisher of such fact and take all reasonable steps, including disciplinary action, both to ensure that such activity ceases and to prevent any recurrence. Licensee shall at all time remain responsible for its Authorized Users and their use of the Licensed Material. 3.2 Licensee shall take commercially reasonable efforts to ensure that only Authorized Users are permitted access to the Licensed Materials. Licensee will issue passwords or other access information only to Authorized Users and use reasonable efforts to ensure that Authorized Users do not divulge their passwords other access information to any third party. 3.3 Licensee will keep full and up-to-date records of all IP addresses used in connection with the Secure Network and promptly provide the Publisher with details of any additions, deletions or other alterations as requested. 4. AVAILABILITY OF LICENSED MATERIALS 4.1 Publisher shall make the Licensed Materials available to the Licensee from the Server, at the IP addresses provided by Licensee via Publisher s online IP address registration process, as the Licensee may amend such IP addresses from time to time. Publisher will notify the Licensee at least sixty (60) days in advance of any anticipated change of specification in respect of access method, display or any other feature that may affect the manner in which Authorized Users access and make use of the Licensed Materials. 4.2 Publisher reserves the right at any time to withdraw from the Licensed Materials any item or part of an item for which it no longer retains the right to publish, or which it has reasonable grounds to believe infringes copyright or is defamatory, obscene, unlawful or otherwise objectionable. Publisher shall give written notice to the Licensee of such withdrawal. If the withdrawal results in the Licensed Materials being substantially and materially less useful to the Licensee, the Licensee may, within thirty days of such notice, terminate this Agreement by giving fifteen days written notice to Publisher. 4.3 Publisher will take commercially reasonable efforts to ensure that the Server has adequate capacity and bandwidth to support the usage of the Licensed Materials at a level commensurate with the standards of availability for online information services of similar scope operating via the World Wide Web, as such standards evolve from time to time over the term of this Agreement. 4.4 Publisher will take commercially reasonable efforts to make the Licensed Materials available to Licensee and its Authorized Users on a 24x7 basis, save for scheduled routine maintenance (which shall be notified to the Licensee in writing in advance wherever possible) provided that the PUBLISHER WILL NOT BE LIABLE FOR DAMAGES OR REFUNDS SHOULD THE SERVER BECOME TEMPORARILY UNAVAILABLE OR IF ACCESS TO THE SERVER OCCASIONALLY BECOMES SLOW OR INCOMPLETE. In no event shall the Publisher be liable for downtime, system speed or slow down caused by the misoperation or failure of the Internet or any other network not under the sole control of Publisher or by any other cause beyond the reasonable control of Publisher. Publisher will restore access to the Licensed Materials as soon as commercially - Page 3 of 7 -

4 practicable in the event of an unscheduled interruption or failure of the Server. 4.5 Licensee acknowledges that Publisher may use and disclose for its own purposes the server logs recording users access to the Server and Licensed Materials ( Server Logs ), provided that Publisher will take commercially reasonable efforts to ensure that the portion of the Server Logs recording the Authorized Users access to the Server will not be made available to any third party without the consent of Licensee except in de-personalized or aggregate form or as required by law or court order. 4.6 Publisher will make available to the Licensee usage statistics for the Licensee s online usage of Licensed Materials. Usage statistics will describe usage for all IP addresses registered by the Licensee as part of this Agreement. 5. FEES. In consideration for the rights granted under this Agreement, Licensee will pay the Fees within thirty (30) days of receipt of invoice from the Publisher. Licensee shall be responsible for any taxes imposed or levied on the License or Licensee, with the exception of taxes based on Publisher s income. 6. TRADEMARKS AND APPROVALS 6.1 Licensee is only authorized to use the Publishers Trademarks in connection with reproducing any such Publisher Trademarks as incorporated in the Licensed Materials. All other uses of the Publisher Trademarks, including uses in promotional and marketing materials, advertising, web pages and in any other materials that incorporate the Publisher Trademarks, shall be submitted for Publisher s written approval, in Publisher s sole discretion, prior to such use, distribution, display or publication thereof. Publisher shall notify Licensee in writing whether it approves of such materials, and Publisher agrees not to distribute, display or publish any such materials without such approval. 6.2 Licensee acknowledges that Publisher is the sole and exclusive owner of the Publisher Trademarks and that any use by Licensee shall inure solely to the benefit of Publisher. Upon termination of this Agreement for any reason, Licensee agrees to cease use of the Publisher Trademarks. 6.3 Neither party shall make any public or press announcement about this Agreement or its business relationship with the other party without the written consent of the other party. The form and content of any such announcement shall be subject to the approval of each party. This provision shall survive the termination of this Agreement. 7. OWNERSHIP. As between the Parties, title to and ownership of the Licensed Materials, and all materials and data provided by Publisher in connection with this Agreement, any materials or other derivative work based on or derived therefrom or improvements thereto, and all copyrights and associated intellectual property rights therein, shall belong to the Publisher. The only rights to the Licensed Materials granted to Licensee are the rights to use the Licensed Materials in accordance with the License and all rights not specifically granted herein are reserved by the Publisher. Licensee acknowledges and agrees that the Publisher shall have all right, title and ownership in any Licensed Materials incorporated or embedded in any other materials or items, and that such incorporated materials may only be used in accordance with the terms of this Agreement. Licensee shall cooperate fully with the Publisher for the purpose of securing, reserving and protecting the Publisher s rights in the Licensed Materials. 8. INDEMNITY, DISCLAIMERS AND LIMITATIONS OF LIABILITY. 8.1 Publisher shall indemnify, defend and hold Licensee, and its affiliates, and Authorized Users harmless from and against any loss, damage, costs, liability and expenses (including reasonable attorney fees) arising out of any legal action taken against such entities claiming that the Licensed Materials used as contemplated by this Agreement infringe the U.S. copyright or any other U.S. proprietary or intellectual property rights of any person. The Publisher shall have no obligation under this Section for any such claims, actions or losses which are based upon: (i) Licensee s or its Authorized Users use of the Licensed Materials in a combination with materials or products not supplied by the Publisher which violate the rights of third parties, (ii) the modification of the Licensed Materials or the use or distribution of such modified content, or (iii) use of the Licensed Materials in a manner other than that permitted herein. 8.2 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, PUBLISHER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, - Page 4 of 7 -

5 INCLUDING, BUT NOT LIMITED TO, ACCURACY, TIMELINESS OR COMPLETE- NESS OF THE INFORMATION CONTAINED IN THE LICENSED MATERIALS, OR MERCHANTABILITY, TITLE OR FITNESS OF USE FOR A PARTICULAR PURPOSE. THE LICENSED MATERIALS ARE SUPPLIED AS IS. 8.3 UNDER NO CIRCUMSTANCES, SHALL PUBLISHER BE LIABLE TO LICENSEE OR ANY AUTHORIZED USER OR OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS), INCI- DENTAL, SPECIAL EXEMPLARY OR PUNITIVE DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR INABILITY TO USE THE LICENSED MATERIALS. IN NO EVENT SHALL EITHER PARTY HERETO BE LIABLE TO ANY OTHER PARTY FOR ANY ADVERSE CONSEQUENCES ARISING FROM INDEPENDENT APPLICATION OF THE CONTENT OF THE LICENSED MATERIALS TO PARTICULAR CIRCUMSTANCES OR LICENSEE S OR ITS AUTHORIZED USERS RELIANCE ON THE LICENSED MATERIALS FOR ANY PURPOSE. 8.4 EXCEPT FOR CLAIMS BROUGHT PURSUANT TO SECTION 8.1, THE LIMIT OF PUBLISHER S LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) TO LICENSEE OR TO ANY THIRD PARTY RELATED TO THIS AGREEMENT OR THE LICENSED MATERIALS, FOR ANY AND ALL CLAIMS, SHALL NOT IN THE AGGREGATE EXCEED THE FEES PAID BY LICENSEE HEREUNDER IN THE 12 MONTHS PRIOR TO THE OCCURRENCE GIVING RISE TO THE CLAIM. 8.5 Except as to those matters for which Publisher is obligated to indemnify Licensee under Section 8.1, Licensee agrees to indemnify, defend and hold Publisher harmless from and against any loss, damage, costs, liability and expenses (including reasonable attorney fees) arising out of any claim or legal action taken against the Publisher related to or in any way connected with any use of the Licensed Materials by the Licensee or Authorized Users or any failure by the Licensee to perform its obligations in relation to this License. 9. TERM AND TERMINATION 9.1 This Agreement shall come into force at the beginning of the Subscription Period and, unless earlier terminated in accordance with this Agreement or extended by written agreement of both parties, shall expire at the end of the Subscription Period. 9.2 Either party may terminate this Agreement at any time by written notice to the other party with immediate effect in either of the following circumstances: (a) If the other party has breached any of its obligations hereunder and has failed to remedy such breach within thirty (30) days of receipt of notice in writing specifying the breach; or (b) If the other party has gone into bankruptcy or liquidation; or has had a receiver or manager appointed in respect of any of its assets. 9.3 Except for termination due to Licensee s breach, Publisher shall continue to provide access, subject to the terms of the License, for Authorized Users to that part of the Licensed Materials which was published during the Subscription Period in a manner and form substantially similar to the means by which access is provided under this Agreement or via a successor system or format to which the Licensed Materials are migrated. 9.4 Except as provided in Section 9.3, on termination of the License (including termination due to Licensee s breach), the Licensee and its Authorized Users shall immediately cease all further use and distribution of the Licensed Materials. The following rights and obligations shall survive any termination: (a) any obligation that matured prior to the effective date of the termination or expiration; and (b) Sections 6.2, 6.3, 7, 8, 9.3 and GENERAL 10.1 Neither party shall disclose the terms and conditions or the subject matter of this Agreement (including, without limitation, the pricing terms) or any other non-public information that such party learns about the other party s business to any third party without the prior written consent of the other. This provision shall survive the termination of this License, and - Page 5 of 7 -

6 any information obtained or received which comes within these restrictions shall remain confidential, provided that this obligation shall not apply to any information that is or comes into the public domain through no fault of the receiving party or that is made available by an independent third party which has not obtained it directly or indirectly in breach of any confidentiality agreement with either of the parties hereto This Agreement will be governed by the laws of the State of Illinois. The parties hereby submit to the exclusive jurisdiction of the federal and state courts located in Cook County, Illinois, U.S.A. to resolve disputes related to this Agreement or the Licensed Materials. The foregoing choice of law and forum designation will not apply if compliance would violate (a) any law, regulation, or official government policy (excluding normal choice of law principles) or (b) any bylaw or equivalent governing instrument of Licensee Signed facsimile copies of this Agreement, and attachments will legally bind the parties to the same extent as original documents. A waiver of any breach or default under this Agreement shall not constitute a waiver of any other right for subsequent breach or default. Either party's failure to enforce any term of this Agreement shall not constitute a waiver of any rights to enforce subsequent breaches. If any term of this Agreement is held to be invalid, the parties agree that such invalidity will not affect the remaining terms Any notice required under this Agreement shall be in writing and sent to the address shown on the front of this Agreement or such other address as may be provided by each party from time-totime. Notices shall be effective when received and shall be sent by certified mail or by overnight courier Neither party may assign this Agreement to any third party without the prior written consent of the other party. Any transaction pursuant to which legal or equitable title to more than fifty percent (50%) of the capital stock or equity interest of Licensee is transferred or more than ½ the business or assets of Licensee is sold, shall be deemed an assignment in violation of this Section unless Publisher consented thereto in writing in advance This Agreement and any attachments represents the entire agreement between the parties and supersedes any previous contemporaneous oral or written agreements, commitments, representations or communications regarding the subject matter of this Agreement. Any modification to this Agreement must be in writing and signed by a duly authorized agent of both parties Nothing in this Agreement shall give either party the right to use the other s trade names, trademarks or service marks. Each party shall comply with all applicable laws and regulations in exercising its rights and performing its obligations hereunder. ACCEPTED AND AGREED: LICENSEE [Name] [Address] [Address] [ ] Fax: By: Name: Title: Date: PUBLISHER The American Academy of Pediatrics 141 Northwest Point Blvd. Elk Grove Village, IL, Attn: Department of Marketing and Publications/Licensing Manager Fax: By: Name: Title: Date: - Page 6 of 7 -

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