| LICENSE AGREEMENT
Turfgrass
Information Center Academic Subscription Campus-Wide Account In consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: CONTENT OF LICENSED MATERIALS; GRANT OF LICENSE. 1. The materials that are the subject of this Agreement shall consist of those databases and other content made available through the World Wide Web site of the Turfgrass Information Center (http://tic.msu.edu), including the Turfgrass Information File (TGIF) (hereinafter referred to as the "Licensed Materials"), using the "campus-wide interface suite," as designed and presented on the Web by the Licensor. 2. Licensor hereby grants to Licensee non-exclusive use of the Licensed Materials and permission to provide the Licensed Materials to Authorized Users in accordance with this Agreement. ACCESS TO LICENSED MATERIALS. 3. The Licensed Materials will be made available to the Licensee in the following manner: Access to
the Licensed Materials shall be controlled through the use of IP addresses,
issued passwords, or a Licensee- maintained security system approved
by the Licensor; which choice is made by the Licensee on the account
application form. FEES. 4. Licensee shall make payment to Licensor for use of the Licensed Materials as follows: -- for perpetual subscription access, a subscription fee per the below schedule (the TIC Academic rate subscription, which includes the "campus-wide account" to which this license applies):
AUTHORIZED USE OF LICENSED MATERIALS. 5. Authorized Users. "Authorized Users" means persons who are: -- on site full-time or part-time employees, faculty, or students of Licensee, as well as walk-in users who are permitted access to the secure network from computer terminals within the library premises and who are making inconsequential use of the resources for their scholarly, research, educational, or personal use only. -- off site full-time or part-time employees, faculty, or students of Licensee 6. Authorized Uses. Licensee and Authorized Users may make all use of the Licensed Materials as is consistent with the Fair Use Provisions of United States and international copyright laws. In addition, the Licensed Materials may be used as follows: Licensee and Authorized Users may view the Licensed Materials. Licensee and Authorized Users may copy the Licensed Materials for use in research, education, or other non-commercial purposes. Licensee and Authorized Users may print Licensed Materials. Licensee may provide access to students enrolled in distance education or learning programs offered or sponsored by Licensee. SPECIFIC RESTRICTIONS ON USE OF LICENSED MATERIALS. 7. Licensee shall not permit anyone other than Authorized Users to use the Licensed Materials. Licensee shall not modify, manipulate, or create a Derivative Work of the Licensed Materials without the prior written permission of Licensor. Licensee may not remove, obscure or modify any copyright or other notices included in the Licensed Materials. Licensee may not utilize the Licensed Materials for commercial purposes, including but not limited to the sale of the Licensed Materials, fee-for-service use of the Licensed Materials, or bulk reproduction or distribution of the Licensed Materials in any form; nor may Licensee impose special charges on Authorized Users for use of the Licensed Materials beyond reasonable printing or administrative costs. LICENSOR PERFORMANCE OBLIGATIONS. 8. Upon the Effective Date of this Agreement, Licensor shall make the Licensed Materials available in digital form to Licensee and Authorized Users. Licensor will offer reasonable levels of continuing support to assist Licensee in use of the Licensed Materials. Licensor will make its personnel available by email, phone or fax during regular business hours, Monday through Friday for feedback, problem-solving, or general questions from the "designated contact" of the Licensee, as designated by the Licensee on the subscription application. Licensor shall use reasonable efforts to ensure that the Licensor's server or servers have sufficient capacity and rate of connectivity to provide the Licensee and its Authorized Users with an acceptable quality of service. Licensor shall use reasonable efforts to restore access to the Licensed Materials as soon as possible in the event of an interruption or suspension of service. LICENSEE PERFORMANCE OBLIGATIONS. 9. Licensee shall use reasonable efforts as follows: Licensee shall make reasonable efforts to provide Authorized Users with appropriate notice of the terms and conditions under which access to the Licensed Materials is granted under this Agreement including, in particular, any limitations on access or use of the Licensed Materials as set forth in this Agreement. Licensee shall make reasonable efforts to provide Authorized Users with notice of any applicable Intellectual Property or other rights applicable to the Licensed Materials. Licensee shall make reasonable efforts to prevent the infringement of any Intellectual Property or other rights of the Licensor in the Licensed Materials. Licensee shall promptly notify Licensor of any infringement that comes to Licensee's attention, and take appropriate steps to avoid its recurrence. Licensee shall use reasonable efforts to protect the Licensed Materials from any use that is not permitted under this Agreement, and shall notify Licensor of any such use of which it learns or is notified. In the event of any unauthorized use of the Licensed Materials by an Authorized User, (a) Licensor may terminate such Authorized User's access to the Licensed Materials, (b) Licensor may terminate the access of the Internet Protocol ("IP") address(es) from which such unauthorized use occurred, and/or (c) Licensee shall terminate such Authorized User's access to the Licensed Materials upon Licensor's request. Licensor shall take none of the steps described in this paragraph without first providing reasonable notice to Licensee and working with the Licensee to avoid recurrence of any unauthorized use. Licensee shall cooperate with Licensor on the preparation and provision of user surveys to solicit feedback on the Licensed Materials from Authorized Users. Where access to the Licensed Materials is to be controlled by use of passwords, Licensee shall issue the log-on identification ID and password to Authorized Users and use all reasonable efforts to ensure that Authorized Users do not divulge the ID and password to any third party. Licensee shall be responsible for distributing passwords, verifying the status of Authorized Users, providing sets of IP addresses to Licensor if applicable, and updating such lists on a regular basis. Licensee shall cooperate with Licensor's reasonable efforts to maintain the security of the Licensed Materials. TERM. 10. This Agreement shall continue in effect indefinitely commencing on the Effective Date. TERMINATION. 11. In the event that either party believes that the other materially has breached any obligations under this Agreement, such party shall so notify the breaching party in writing. The breaching party shall have sixty (60) days from the receipt of notice to cure the alleged breach and to notify the non-breaching party in writing that cure has been effected. If the breach is not cured within the sixty (60) day period, the non-breaching party shall have the right to terminate the Agreement without further notice. Upon Termination of this Agreement for cause, online access to the Licensed Materials by Licensee and Authorized Users shall be terminated. Print copies of Licensed Materials may be retained by Licensee or Authorized Users and used subject to the terms of this Agreement. WARRANTIES. 12. Subject to the Limitations set forth elsewhere in this Agreement: Licensor shall use reasonable efforts to provide continuous availability of the Licensed Materials online subject to periodic unavailability due to maintenance of the server(s), the installation or testing of software, the loading of additional Licensed Materials as they become available, and downtime related to equipment or services outside the control of Licensor including public or private telecommunications services or internet nodes or facilities. If the Licensed Materials fails to operate in conformance with the terms of this Agreement, Licensee shall immediately notify Licensor, and Licensor shall promptly repair the nonconformity. LIMITATIONS ON WARRANTIES. 13. Notwithstanding anything else in this Agreement, Neither party shall be liable for any indirect, special, incidental, punitive or consequential damages, including but not limited to loss of data, business interruption, or loss of profits, arising out of the use of or the inability to use the Licensed Materials. Licensor makes no representation or warranty, and expressly disclaims any liability with respect to the content of any Licensed Materials, including but not limited to errors or omissions contained therein, libel, infringement of rights of publicity, privacy, trademark rights, moral rights, or the disclosure of confidential information. Except for the express warranties stated herein, the Licensed Materials are provided on an "as is" basis, and Licensor disclaims any and all other warranties, conditions, or representations (express, implied, oral or written), relating to the Licensed Materials or any part thereof, including, without limitation, any and all implied warranties of quality, performance, merchantability or fitness for a particular purpose. Licensor makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb or other such computer program. Licensor further expressly disclaims any warranty or representation to Authorized Users, or to any third party. INDEMNITIES. 14. The Licensor shall indemnify and hold the other harmless for any losses, claims, damages, awards, penalties, or injuries incurred, including reasonable attorney's fees, which arise from any claim by any third party of an alleged infringement of copyright or any other property right arising out of the use of the Licensed Materials by the Licensee or any Authorized User. Each party shall indemnify and hold the other harmless for any losses, claims, damages, awards, penalties, or injuries incurred, including reasonable attorney's fees, which arise from any alleged breach of such indemnifying party's representations and warranties made under this Agreement, provided that the indemnifying party is promptly notified of any such claims. The indemnifying party shall have the sole right to defend such claims at its own expense. The other party shall provide, at the indemnifying party's expense, such assistance in investigating and defending such claims as the indemnifying party may reasonably request. ASSIGNMENT AND TRANSFER. 15. Neither party may assign, directly or indirectly, all or part of its rights or obligations under this Agreement. DISPUTE RESOLUTION. 16. In the event of any dispute or controversy arising out of or relating to this Agreement, the parties agree to exercise their best efforts to resolve the dispute as soon as possible. The parties shall, without delay, continue to perform their respective obligations under this Agreement which are not affected by the dispute. FORCE MAJEURE. 17. Neither party shall be liable in damages or have the right to cancel this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections, strikes or other work stoppages, and/or any other cause beyond the reasonable control of the party whose performance is affected. ENTIRE AGREEMENT. 18. This Agreement constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter hereof, whether oral or written. AMENDMENT. 19. No modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Licensor and Licensee. SEVERABILITY. 20. If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. WAIVER OF CONTRACTUAL RIGHT. 21. Waiver of any provision herein shall not be deemed to be a waiver of any other provision herein, nor shall waiver of any breach of this Agreement be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement. NOTICES. 22. All notices given pursuant to this Agreement shall be in writing and may be hand delivered, or shall be deemed received within five (5) business days after mailing if sent by registered or certified mail, return receipt requested. If any notice is sent by facsimile, confirmation copies must be sent by U.S. Mail or hand delivery to the specified address. Either party may from time to time change its Notice Address by written notice to the other party. If to Licensor: Turfgrass Information Center Michigan State University Libraries 100 Library East Lansing Michigan USA 48824-1048 FAX: 517 353-1975 If to Licensee: _____________________________________ _____________________________________ _____________________________________ _____________________________________ _____________________________________ _____________________________________
IN WITNESS WHEREOF, the parties have executed this Agreement by their respective, duly authorized representatives as of the date first above written. LICENSOR: BY: _________________________ NAME: Michigan State University Libraries LICENSEE: BY: __________________________ NAME: ________________________________________ ****This agreement is based on and derived from the LIBLICENSE model license agreement (9/1998). see: http://www.library.yale.edu/~llicense/index.shtml 3: 09/07 |
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