LIBRARY EDELWEISS+ANALYTICS SUBSCRIPTION AGREEMENT
The following terms and conditions (the “Agreement”) govern the provision of the EDELWEISS ANALYTICS services by Above the Treeline, LLC (“Treeline”) to your organization(“Library”). By continuing with the onboarding process and sending Treeline your ILS data, Library agrees to be bound by this Agreement with Treeline as of the date hereof. THE PERSON AGREEING REPRESENTS AND WARRANTS ON BEHALF OF LIBRARY THAT S/HE IS AUTHORIZED TO SIGN CONTRACTS ON BEHALF OF, AND TO THEREBY BIND, LIBRARY.
WHEREAS, Treeline has developed the web-based strategic planning computer program known as EDELWEISS ANALYTICS™ including modifications, enhancements, improvements, updates, additions, derivative works, documentation and related material (“Software”).
WHEREAS, Treeline wishes to provide Library with access to its website located at www.abovethetreeline.com, or such other URL as Treeline may from time to time operate in connection with the Software (the “Web Site”) and the services provided thereon using the Software; and
WHEREAS, Library wishes to access the Web Site and use the Software thereon.
NOW, THEREFORE, in consideration of the mutual covenants and premises herein contained, the parties hereto agree as follows:
1. Access, License & Data Rights
1.1 Subject to the terms of this Agreement, Treeline grants to Library a non-exclusive, non-transferable, non-assignable right to access the Web Site and license to use the Software, each for internal use only. The right and license granted pursuant to this Section 1.1 do not include the right to sublicense.
1.2 Library grants Treeline a perpetual, irrevocable, assignable, fully-paid up, royalty free license, with the right to sublicense, to use, reproduce, distribute, perform, display, and create derivative works from the Library-originated collection-related information or data (“Library Data”).
1.3 Upon the termination of this Agreement, Treeline will revoke Library’s user IDs and passwords and Library will promptly return any and all training/reference materials and all copies thereof to Treeline.
1.4 Library represents and warrants and covenants that it has performed, and will perform when due, all of its obligations under its EDELWEISS ANALYTICS™-related agreement with Ingram Library Services Inc. (“Ingram”), Treeline’s authorized reseller.
2. Ownership and Support
2.1 To ensure the security of Library Data as used in connection with the Software, Treeline will encrypt Library Data using a Secure Sockets Layer (SSL) certificate at the 1024 level (or at the 512 level for Library web browsers that do not support 1024 encryption) or an equivalent standard. To further protect the integrity of Library Data, the Software will permit Library to control User/Employee IDs, passwords, and site permission levels.
2.2 Library agrees that the Software and the Web Site are the sole property of Treeline and includes valuable trade secrets of Treeline. Library further agrees and acknowledges that this Agreement grants Library no right, title or interest to the Software or the Web Site or any content contained therein. Library will not at any time take or cause any action that is inconsistent with or would tend to impair Treeline’s rights to the Software or the Web Site.
2.3 Library agrees to treat the Web Site and Software as confidential and will not without the express written authorization of Treeline: (i) Demonstrate, display, distribute, perform, modify, copy, sell or market the Web Site and Software to any third party; or (ii) Publish or otherwise disclose information relating to or resulting from access to the Web Site or performance of the Software to any third party; or modify, reuse, disassemble, decompile, reverse engineer or otherwise translate the Software or any portion thereof.
2.5 Library understands and acknowledges that from time to time, the Web Site may be inaccessible or inoperable for various reasons, including equipment malfunctions, upgrades or modifications, or causes beyond Treeline’s control that are not reasonably foreseeable by Treeline, including interruption or failure of telecommunication or digital transmission links, necessary maintenance, hostile network attacks or network congestion or other failures (collectively “Downtime”). Treeline shall use its best efforts to minimize any disruption, inaccessibility and/or inoperability of the Web Site and in the case of any scheduled Downtime, if applicable, Treeline shall provide twenty-four (24) hour advance notice to Library or such other shorter period of time as Treeline shall reasonably determine.
3. No Warranty and Limitation of Liability
3.1 THE SERVICES PROVIDED THROUGH THE WEB SITE AND THE SOFTWARE ARE PROVIDED “AS IS” WITHOUT WARRANTY, EXPRESS OR IMPLIED OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND THE RECEIPT OF SERVICES THROUGH THE WEB SITE REMAINS WITH LIBRARY. IN NO EVENT WILL TREELINE BE LIABLE FOR ANY DAMAGE WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO ACCESS THE WEB SITE OR TO USE THE SOFTWARE, EVEN IF TREELINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TREELINE DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE OR THE WEB SITE WILL BE UNINTERRUPTED OR ERROR FREE.
3.2 LIBRARY ACKNOWLEDGES AND AGREES THAT IT HAS NOT RELIED ON ANY EXPRESS OR IMPLIED REPRESENTATION OF DISCREET, WRITTEN OR ORAL, AS AN INDUCEMENT TO ENTERING INTO THIS AGREEMENT.
3.3 TREELINE’S TOTAL LIABILITY TO THE LIBRARY OR TO ANY THIRD PARTY FOR ANY LOSS, DAMAGES, COSTS OR EXPENSES WHETHER IN STRICT LIABILITY, TORT, NEGLIGENCE, CONTRACT OR OTHERWISE, ARISING OUT OF OR RELATING TO THE SOFTWARE OR THIS AGREEMENT, SHALL BE LIMITED TO FIVE HUNDRED DOLLARS ($500), BUT IN NO EVENT WILL TREELINE BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE RECEIPT OR PROVISION OF SERVICES THROUGH THE WEB SITE OR USE OF THE SOFTWARE, OR ANY CONFIDENTIAL INFORMATION, HOWEVER CAUSED AND WHETHER OR NOT TREELINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
3.4 Library agrees to defend, indemnify and hold Treeline harmless from and against any losses, damages, liabilities and expenses resulting from any claims made by any third party which arises from or relates to the performance by Treeline of its obligations hereunder or by Library’s receipt of Services or its use of all or any component of the Software or the Web Site, provided that the foregoing indemnification obligation does not extend to claims that arise from or relate to Treeline’s gross negligence or willful misconduct.
4.1 This Agreement will be governed, construed and enforced in accordance with the laws of the United States of America and of the State of Michigan , without regard to its principles of the conflict of laws. All litigation arising from or relating to this Agreement will be filed and prosecuted before any court of competent subject matter jurisdiction in the Eastern District of Michigan. The parties hereto consent to the exclusive jurisdiction of such courts over them, stipulate to the convenience, efficiency and fairness of proceeding in such courts, and covenant not to allege or assert the inconvenience, inefficiency or unfairness of proceeding in such courts.
4.2 This Agreement constitutes the entire and only agreement between the parties and all other prior negotiations, representations, agreements, and understandings are superseded hereby. No agreements altering or supplementing the terms hereof may be made except by means of a written document signed by the duly authorized representatives of the parties.
4.3 In performing their respective duties under this Agreement, each of the parties will be operating as an independent contractor. Nothing contained herein will in any way constitute any association, partnership or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither of the parties will hold itself out in any manner that would be contrary to the provisions of this Section. At no time will either party make any commitments or incur any charges or expenses for or in the name of the other party.
4.4 Failure of Treeline to enforce a right under this Agreement will not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved. Failure of Library to enforce a right under this Agreement will not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved.
4.5 This Agreement will continue until the delivery of thirty (30) days written notice of termination by either party hereto, provided that either party may terminate this Agreement at any time and for any reason upon such written notice. Written notice shall be by Registered Mail. Section 1.2, 2.2, 2.3, and Articles 3 and 4 in its entirety will survive the termination of this Agreement. Upon termination of this Agreement for any reason, Library will return to Treeline any Confidential Information provided to Library hereunder that is in Library’s possession or under Library’s control within ten (10) business days following the termination date.
4.6 If any provision of this Agreement will be found by a court to be void, invalid or unenforceable, the same will be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of this Agreement.
4.7 This agreement may be amended as agreed upon in writing by both Treeline and Library.