Axis 360 Digital Media Circulation System and eContent License Agreement

Terms and Conditions

1.00DEFINITIONS

As used herein, the following definitions shall apply:

1.01"Affiliate" means any company or entity that controls, is controlled by or is under common control with Baker & Taylor, including but not limited to Follett Corporation and Follett School Solutions, Inc. The term "controlling", "controlled by", or "under common control with" means either the beneficial ownership under trust, or outright ownership of more than fifty percent (50%) of the affiliate or business entity itself or the affiliate's or business entity's securities, or units if a limited liability company.

1.02"Agreement" means the Axis 360 Digital Media Circulation Platform Services and Econtent License Agreement, including Customer's signature page and Customer's orders for licensed eContent placed through Vendor's Ordering System from time to time pursuant to this Agreement. No other terms and conditions contained in any purchase order issued outside Vendor's Ordering System by or for Customer, or otherwise communicated by or for Customer, shall apply to this Agreement.

1.03"Authorized eContent Term" means, as to any Sale of eContent, the shorter of (a) the period commencing on the applicable Sale Date of eContent and ending on the date that the license term corresponding thereto expires, as shown in Vendor's Ordering System, or (b) the period commencing on the applicable Sale Date of eContent and ending on the date that the Term of this Agreement ends.

1.04"Authorized Users" means any employees, patrons, students, staff and/or faculty of the Customer who meets the Customer's criteria for Check Out. This Agreement specifically excludes and prohibits any and all users who do not qualify for use of Axis 360 as Authorized Users.

1.05"Axis 360" refers to the Axis 360 System and Axis 360 Services.

1.06"Axis 360 Hosting Fee" means any fees in effect from time to time that are payable by Customer to Vendor for hosting the Axis 360 System.

1.07"Axis 360 Services" means all services involved in supplying and hosting of eContent via the Axis 360 System under the terms of this Agreement.

1.08"Axis 360 System" means the digital content management system established by Vendor for Customer under this Agreement for the purpose of supplying and hosting eContent.

1.09"Check Out" means the authorization and enablement of an Authorized User to access or download eContent from the Axis 360 System for display on the Authorized User's personal electronic reading device (or electronic reading device supplied by the Customer) for a period of time consistent with Customer's Check Out policies, but not beyond the Authorized eContent Term applicable to such eContent, provided such access or download shall be for personal, educational, non-commercial use only, with no right to re-sell, redistribute, share, e-mail, post, make publicly available, upload, print, or burn to a disk, and subject to applicable DRM (including, but not limited to, one Authorized User per licensed copy of eContent at any given time unless otherwise indicated in Vendor's Ordering System.

1.10"Customer" means (a) a public library, a higher education institution (such as college, university, graduate and post-graduate level educational institution), a corporate library, a special library or a private library, as identified in this Agreement, or (b) a public or a private school teaching on a Pre-K through12 (pre-kindergarten through twelfth grade) level or part of that level, as identified in this Agreement.

1.11"DRM" means such digital rights management requirements as may be placed on eContent by the publishers and/or licensors supplying eContent to Vendor.

1.12"eContent" means such copyrighted books, audiobooks, video and other proprietary works in digital format that are licensed to Customer by Vendor for inclusion in the Axis 360 System.

1.13"eContent License Fees" means the license fees in effect from time to time that are payable by Customer to Vendor for the Sale of eContent under this Agreement, as shown in Vendor's Ordering System.

1.14"EULA" means the license agreement posted on Axis 360, as amended by Vendor from time to time, that Authorized Users will accept in order to download and display eContent.

1.15"Fees" means, collectively, Axis 360 Hosting Fee, the eContent License Fees, and any other fee referenced herein.

1.16"Launch Date" means the date that Axis 360 is launched for Customer, as determined by Vendor.

1.17"Other Content" means materials that may be added to the Axis 360 System by Customer or Authorized Users, such as User Reviews displayed in association with eContent, and/or by mutual agreement of Customer and Vendor.

1.18"Participating Schools" means those certain pre-K through 12 schools within the same geographic locality as the Public Library that are authorized to view and Check Out approved eContent from the Public Library's Axis 360 System.

1.19"Privacy Policy" means, collectively, the privacy policy posted on Axis 360, as amended by Vendor from time to time, that applicable Authorized Users will accept in order to download and display eContent.

1.20"Public Library" means a library within the same geographic locality as Participating Schools that is an Axis 360 customer and has at least two of the following characteristics: (i) generally accessible by the public, (ii) generally funded from public sources, and (iii) governed in a manner to serve the public interest.

1.21"Sale of eContent" or "eContent Sold" means the sale of a license of eContent to Customer for the Authorized eContent Term under the terms and conditions of this Agreement, which eContent will be available for Check Out subject to the EULA and the Privacy Policy.

1.22"Sale Date" means for any Sale of eContent or any eContent Sold, the date that the applicable eContent ordered by Customer is first made available for Check Out by Vendor.

1.23"Term" means the period of time that this Agreement is in effect, as provided in Section 3.01 hereof.

1.24"User Review(s)" means star ratings and comments contributed by Authorized Users relating to eContent hosted on the Axis 360 System.

1.25"Vendor" means Baker & Taylor, LLC and/or any Affiliate thereof.

1.26"Vendor's Ordering System" means Title Source 360, TitleWave, or such other ordering system or process approved by Vendor for ordering eContent.

2.00LICENSE

2.01Subject to the terms and conditions of this Agreement and payment of the Axis 360 Hosting Fee and eContent License Fees by Customer, Vendor hereby grants to Customer a non-exclusive, nontransferable and revocable license to access and use Axis 360 and, for the Authorized eContent Term, such eContent as Customer may order through Vendor's Ordering System under this Agreement. eContent titles/collections ordered by Customer at any time during the Term of this Agreement will be made available for Check Out after the Launch Date upon the payment of applicable eContent License Fees by Customer. Except as otherwise expressly provided herein, all eContent Sold shall be non-returnable and all Fees paid by Customer shall be non-refundable.

2.02Authorized Users shall access Axis 360 and eContent for Check Out, using Authorized User's personal electronic reading device or the electronic reading device supplied by the Customer and Internet connections supplied by, and at the expense of, Customer and/or Authorized Users. All such access shall be controlled by valid IP address, referring URL, identification codes and passwords and/or other commercially reasonable methods, as determined by Vendor.

2.03Use of Axis 360 and eContent is limited to Authorized Users. Customer shall be responsible for determining which Authorized Users shall have access to Axis 360 and eContent. Customer shall not allow any access to Axis 360 or eContent by other libraries through consortia, inter-library loan, or similar arrangement, without Vendor's prior written consent.

2.04All access to Axis 360 and eContent by Customer and Authorized Users shall be subject to and governed by this Agreement, the EULA and the Privacy Policy. Vendor reserves the right to suspend or terminate access to Axis 360 or eContent by Customer in the event of any violation thereof by Customer or any Authorized Users. Vendor may withdraw any specific eContent title if required by the applicable supplier of such eContent to Vendor. Repeated violations of the EULA by Authorized Users may be cause for suspension or termination of this Agreement, as determined by Vendor. Customer and Authorized Users do not have any public performance or promotional use rights in eContent, but storytime is generally considered allowable under the "fair use" exception to copyright law.

2.05Customer agrees to comply, and require Authorized Users to comply, with all copyright, patent and other intellectual property laws and all DRM applicable to Axis 360 and/or eContent. Notwithstanding any provision herein to the contrary, in the event that the DRM applicable to any given eContent imposes license requirements other than, or different from, those expressed herein, such DRM shall control with respect thereto and the license granted hereby shall be deemed automatically amended by such DRM.

2.06Customer will enforce the proper and intended access to Axis 360 and eContent by Authorized Users by properly maintaining its patron database or other presentation of credentials for Authorized Users. The number of simultaneous users of eContent at any given time shall be limited to a single Authorized User per licensed copy of eContent, except to the extent that multi-user simultaneous access is authorized for specific eContent as shown in Vendor's Ordering System. Access to eContent by Authorized Users, including but not limited to any applicable ability to view, print and download, will automatically terminate upon expiration of the applicable Check Out. Customer will immediately notify Vendor of any breach or suspected breach of security (including without limitation any unauthorized use, disclosure or acquisition of or access to eContent, or disabling or circumvention of DRM with respect to eContent, of which Customer becomes aware.

2.07All rights not expressly granted or licensed to Customer or Authorized Users in writing by Vendor are reserved by Vendor and/or Vendor's licensors.

3.00TERM AND TERMINATION

3.01Except where earlier termination is required under the provisions hereof or by any DRM applicable to Axis 360 and/or eContent, this Agreement will be effective for a period beginning on the Launch Date and ending at 11:59:59 P.M. (Eastern U.S. Time) on the day preceding the third (3rd) anniversary of the Launch Date (the "Initial Term"). This Agreement will automatically renew for successive terms of one year each (a "Renewal Term") (the Initial Term and any Renewal Term being collectively referred to herein as the "Term") unless terminated by either party as provided herein. Either party shall have the right to prevent renewal by giving written notice of termination to the other party at least 60 days' prior to expiration of the then current term. In addition, Customer shall have the right to terminate this Agreement on written notice to Vendor when and if appropriations funding is not made available to Customer. Any annual Hosting Fee shall be due and payable on each anniversary of the Launch Date, as applicable.

3.02Subject to Section 3.03 hereof, upon termination of this Agreement, all rights and licenses granted pursuant to this Agreement for Customer's access to and use of all or any portion of Axis 360 and eContent will automatically terminate. Similarly, upon termination of any applicable Authorized eContent Term by passage of time, operation of applicable DRM or any reason whatsoever, all rights and licenses of access to the eContent applicable thereto will automatically terminate.

3.03Upon termination of this Agreement, Vendor's sole responsibility to Customer will be to confirm the eContent titles under license by Customer as of the date immediately preceding such termination date by providing the inventory list of the eContent titles under license and related information to Customer. Customer may supply such inventory list and information to the third party vendor selected by Customer to provide digital content management system services to Customer after Vendor (the "Next Vendor") and direct such Next Vendor to submit on Customer's behalf to the publishers of such eContent titles a request for replacement licenses to allow Customer to receive access to such eContent titles for the balance of any applicable Authorized eContent Term that would have continued but for the termination of this Agreement. Such Next Vendor will be solely responsible for obtaining such replacement licenses, and if such replacement licenses are granted, Next Vendor will be solely responsible for supplying such eContent under the terms of such replacement licenses on the digital content management system of the third party vendor then selected by Customer to provide such services. Vendor MAKES NO REPRESENTATIONS OR WARRANTIES AS TO WHETHER PUBLISHERS WOULD ALLOW ANY SUCH REPLACEMENT LICENSE(S) FOLLOWING TERMINATION OF THIS AGREEMENT OR WHETHER NEXT VENDOR WOULD PROVIDE CUSTOMER WITH ACCESS TO ANY SUCH ECONTENT PREVIOUSLY UNDER LICENSE.

4.00DEFAULT AND REMEDIES

Either party's failure to perform any of its obligations hereunder in any material respect, which failure is not cured within 60 days after notice from the non-defaulting party (provided that a 10 day notice and cure period shall apply to any failure to pay any amounts due) shall be an "Event of Default" hereunder. The non-defaulting party will have all rights and remedies available to it under applicable law if an Event of Default occurs, except as otherwise expressly provided herein. Without limiting the generality of the foregoing, Vendor's rights and remedies will include, without limitation, the right to disable the Axis 360 System to prevent access during the applicable cure period if reasonably needed to prevent further nonconformance. Customer acknowledges and agrees that the Agreement is for the benefit of Vendor and Vendor's licensors, and that Vendor and any of Vendor's licensors, jointly or severally, may avail themselves of any remedies available in this Agreement or by law, including without limitation the initiation of legal proceedings.

5.00WARRANTY; LIMITATION OF LIABILITY

5.01Vendor warrants that publishers and/or licensors of eContent in the Axis 360 System have authorized the licenses granted hereunder. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5.01, ALL ECONTENT AND ANY PORTIONS THEREOF ARE PROVIDED "AS IS" WITHOUT WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXPRESSLY EXCLUDED HEREBY ARE ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Vendor, ITS AGENTS OR EMPLOYEES, WILL CREATE A WARRANTY, AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.

5.02Neither Vendor nor any other party that has been involved in the creation, production or delivery of all or any portion of the eContent through Axis 360 or otherwise will be liable for indirect, special, incidental, punitive, exemplary or consequential damages (including, without limitation, damages for claims by third parties, or loss of profits) arising out of the access to or use or inability to use all or any portion of Axis 360 or the eContent, even if Vendor or such other party shall have been advised or otherwise have known of the possibility of such damages. In no case will any liability of Vendor or any such other party hereunder exceed the amounts actually paid by Customer to Vendor in the 12 month period preceding the claim giving rise to such liability.

6.00INFRINGEMENT

6.01All unauthorized access, use, copying, modification and/or distribution of all or any portion of Axis 360 or the eContent is expressly forbidden. Customer will be liable for any infringement that is caused, facilitated or encouraged by its failure to abide by the terms of this Agreement and/or any applicable DRM.

6.02Customer will promptly notify Vendor in writing if any infringement claim relating to all or any portion of Axis 360 or the eContent is made against Customer. If Customer provides Vendor with sufficient notice of any such infringement claim, Vendor at its option will make commercially reasonable effort to eliminate, or request that applicable publishers or licensors eliminate, the circumstances giving rise to such infringement. Alternatively, Vendor may issue a refund to Customer on a prorated basis and terminate access. The foregoing is the only remedy available to Customer, and the only liability of Vendor, in the event of a claim of infringement.

7.00FORCE MAJEURE

Customer acknowledges that the Internet is an unregulated, unorganized, unreliable, unstable, unsecure and ever-changing environment. The ability of each party to comply with this Agreement may be dependent on the Internet and equipment, software, systems, data, content and services provided by third parties, among other things. Neither party shall have any liability for any failure of performance due to events beyond its reasonable control. Lack of funds shall not be excused under this section.

8.00COMMUNITY SHARE CHECK OUT

Customer hereby authorizes Vendor to establish an online system whereby students, faculty members and/or staff members of Participating Schools may view and Check Out approved eContent from the Public Library's Axis 360 System, including:

  1. enabling Participating Schools to view a subset of selected eContent titles under license by Public Library from Vendor, which subset shall be established by restricting titles individually or by category, BISAC codes, subject matter, grade range and/or authors; and
  2. providing an authentication system at or for the Participating Schools whereby individuals who are enrolled students, faculty members and/or staff members of the Participating Schools are eligible to Check Out, as an Authorized User of the Public Library, any such eContent titles from the Public Library's Axis 360 System; and
  3. controlling access to such Axis 360 System by valid IP address, referring URL, identification codes and passwords and/or other commercially reasonable methods, as determined by Vendor; and
  4. executing Check Outs of eContent with appropriate recognition of such Check Outs in the Public Library's Axis 360 System and circulation reporting, without compromising DRM.

Enrolled students, faculty members and staff members of Participating Schools who desire to become Authorized Users of the Public Library must promptly apply for and obtain library cards from Public Library. Anyone who does not obtain a library card from Public Library may not be an Authorized User of the Public Library or eligible to Check Out eContent pursuant to this method. Check Outs of eContent accomplished through this method shall be subject to applicable lending terms of Public Library. Public Library must promptly issue library cards to those who complete and submit such applications to Public Library in accordance with Public Library's policies and procedures.

The authentication system established and implemented to facilitate Check Outs pursuant to this method may employ, without limitation, numeric IDs of enrolled students, faculty members and staff members issued by or for Participating Schools, rather than IDs issued by Public Library. Such numeric IDs, if applicable, will be supplied to Vendor, without any associated personally identifiable information, for this purpose. Vendor has no responsibility to sync such IDs with IDs issued by Public Library pursuant to library cards or otherwise.

9.00MISCELLANEOUS

9.01Except as otherwise required by law, Vendor and Customer agree to maintain the confidentiality of any data relating to the usage of the eContent by specific Authorized Users.

9.02Customer will be responsible for payment of any and all applicable sales, use, value-added, excise or similar taxes, if any, incurred in connection with any transactions under this Agreement.

9.03Any failure by either party to exercise any right hereunder will not be deemed a continuing waiver of such right. If any of the terms or provisions of this Agreement are ruled to be invalid or unenforceable by a court or administrative tribunal of competent jurisdiction, the remainder of the Agreement will not be affected thereby.

9.04Customer will not assign this Agreement, by operation of law or otherwise, without Vendor's prior written consent. This Agreement will be binding upon, and will inure to the benefit of, the parties hereto and their respective successors and permitted assigns.

9.05All notices required or permitted to be given by one party to the other under this Agreement will be sufficient if hand-delivered, sent by recognized overnight courier, receipt acknowledged, or sent by certified mail, return receipt requested, to the other party at the applicable address set forth in this Agreement or to such other applicable address as may be designated by notice from one party to the other pursuant to this paragraph.

9.06Telecopied facsimiles or email transmissions of a signed counterpart of this Agreement from one party to the other will be deemed to be delivery of a signed counterpart by the party sending the telecopied facsimile or email of such signed counterpart. If the use of a digital signature is needed, each party shall adopt as its authorized signature a confidential digital identification consisting of symbols(s) or code(s) which are to be affixed to or contained in each digital transmission.

10.00ENTIRE AGREEMENT

This Agreement, the EULA and Privacy Policy referenced herein constitute the complete and exclusive statement of the terms and conditions between the parties regarding the subject matter hereof and supersede all prior proposals, understandings and agreements, oral and written, between the parties relating hereto, notwithstanding any order form submitted either before or after the date hereof. This Agreement may not be modified or altered except by written instrument duly executed by both parties. This Agreement may be executed in counterparts, all of which, when taken together, will constitute a single instrument.

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