Review Copy Module Agreement

REVIEW COPY MODULE AGREEMENT

 

This Review Copy Module Agreement (the “Agreement”) by and between Above the Treeline, Inc. (“Treeline”), a Delaware corporation, and you (“User” or “I”).  By clicking the <Accept> button following the Agreement on the request form, User agrees to be bound by this Agreement with Treeline as of the date hereof (the “Effective Date”).   THE NATURAL PERSON CLICKING THE <ACCEPT> BUTTON REPRESENTS AND WARRANTS THAT S/HE IS AUTHORIZED TO SIGN CONTRACTS ON BEHALF OF, AND TO THEREBY BIND, USER, ALSO REFERRED TO AS “I” OR “YOU”.

 

WHEREAS, Treeline has developed a review copy module with respect to digital review copies and print review copies, including modifications, enhancements, improvements, updates, additions, derivative works, documentation and related material (the “RCM Module“), accessible via the website located at edelweiss.plus, or such other URL as Treeline may from time to time operate (the “Website”); and

 

WHEREAS, User wishes to access the Website and to use the RCM Module.

 

NOW, THEREFORE, for good consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

 

0. Restatement of Existing Agreement. Any pre-existing agreement by which User accesses the Website and uses the RCM Module is, and shall be, amended and restated hereby in its entirety.

 

1. Grant of License and Access

1.1 Subject to the terms of this Agreement, Treeline grants to User a non-exclusive, non-transferable, non-assignable right to access the Website and use the RCM Module for User’s internal business purposes only. For the avoidance of doubt, this Agreement does not provide User with full access to the EDELWEISS Module, only the RCM Module and associated functionality.

1.2The license granted pursuant to Section 1.1 does not include the right to sublicense.

1.3 User will ensure that no unauthorized persons have access to the RCM Module and that no persons authorized to have such access will take any action which would be in violation of this Agreement.

 

2. Term and Termination

2.1 This Agreement may be terminated by written notice delivered to the other party. Articles 4 – 7 shall survive the termination of this Agreement.

 

3. Compensation; Fees

3.1 User shall pay to Treeline any Annual Fee agreed upon within thirty (30) business days of the Effective Date and within five (5) days of each annual anniversary thereafter.

3.2 Treeline shall within thirty (30) days of the end of each calendar month, invoice User with respect to Fees accrued during such calendar month. User shall pay amounts due within thirty (30) days of invoice receipt. Treeline may increase Fees upon ninety (90) days written notice.

3.3 Fees shall be dependent on other current subscriptions and desired active titles and will be agreed upon in writing (including email).

 

4. Ownership & Use

4.1 User agrees that the RCM Module and the Website are the sole and exclusive property of Treeline, which both include Treeline’s valuable trade secrets. User further agrees and acknowledges that this Agreement grants User no right, title or interest to the RCM Module or the Website. User will not at any time take or cause any action that is inconsistent with or would tend to impair Treeline’s rights to the RCM Module or the Website.

4.2 User shall not modify, reuse, disassemble, decompile, reverse engineer or otherwise translate the RCM Module or any portion thereof. User shall not use access to the Website and RCM Module, to plan, develop, encourage, direct, launch, or operate any business activity or venture that competes with Treeline’s exploitation of the Website or RCM Module.

4.3 User agrees and acknowledges that RCM Module users, including without limitation, User, benefit from Treeline’s ability to utilize and commercialize RCM Module- and RCM Module use-related data. User, therefore, shall and hereby does grant Treeline a perpetual, irrevocable, worldwide, non-exclusive, assignable, fully-paid up, royalty-free license, with the right to sublicense through multiple tiers, to sell, offer to sell, make, have made, import, use, reproduce, distribute, perform, display, and create derivative works from the User-originated, -contributed, -generated, and -related information or data arising from or relating to User’s use of the RCM Module.

4.4. Because the unauthorized use of the RCM Module is likely to diminish substantially the value of such RCM Module and irreparably harm Treeline and will not be susceptible of cure by the payment of monetary damages, if User breaches the provisions of Article 1, Treeline will be entitled to injunctive and/or other equitable relief without the necessity of proving irreparable harm or posting a bond, in addition to other remedies afforded by law.

 

5. No Warranty and Disclaimer

5.1 THE WEBSITE AND RCM MODULE ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. TREELINE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE WEBSITE, RCM MODULE, AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OR OTHER ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE regardless of whether Treeline knows or had reason to know of User’s particular needs.

5.2 TREELINE SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE FUNCTIONS CONTAINED IN THE WEBSITE OR RCM MODULE WILL MEET VIEWER’S REQUIREMENTS OR WILL OPERATE IN COMBINATIONS OR IN A MANNER SELECTED FOR USE BY VIEWER, OR THAT THE OPERATION OF THE RCM MODULE WILL BE UNINTERRUPTED OR ERROR FREE. USER ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, IT HAS NOT RELIED ON ANY EXPRESS OR IMPLIED WRITTEN OR ORAL REPRESENTATION AS AN INDUCEMENT TO ENTER INTO THIS AGREEMENT. USER AGREES AND ACKNOWLEDGES THAT TREELINE DOES NOT CONTROL, AND BEARS NO RESPONSIBILITY FOR, THE ACTIONS OR OMISSIONS OF ANY USER. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE RCM MODULE REMAINS WITH USER. IN NO EVENT WILL TREELINE BE LIABLE FOR ANY DAMAGE WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO ACCESS THE RCM MODULE, EVEN IF TREELINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

6. Liability Limitation

6.1 TREELINE SHALL HAVE NO LIABILITY FOR THIRD PARTY CLAIMS, INCLUDING WITHOUT LIMITATION ANY CLAIM ASSOCIATED WITH REVIEW COPIES ORDERED BY USER VIA THE RCM MODULE. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, LOST PROFITS, LOSS OF USE OF EQUIPMENT OR LOST CONTRACTS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE RCM MODULE OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, EVEN IF SUCH PARTY HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

6.2 IN NO EVENT SHALL TREELINE BE LIABLE TO USER FOR ANY DAMAGE WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE RCM MODULE OR ARISING OUT OF THE ACTIONS OR OMISSIONS OF A THIRD PARTY, INCLUDING WITHOUT LIMITATION, WAREHOUSES, FULFILLMENT SERVICES, PRINTERS, OR PUBLISHERS, EVEN IF TREELINE HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, TREELINE’S ENTIRE LIABILITY TO USER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR WARRANTY), WILL BE FIVE HUNDRED DOLLARS ($500).

6.3 THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IF USER HAS A CLAIM OR A CAUSE OF ACTION ARISING UNDER THIS AGREEMENT AND USER FAILS TO SERVE TREELINE IN CONNECTION WITH THAT CLAIM OR CAUSE OF ACTION PRIOR TO THE TWELVE (12) MONTH ANNIVERSARY OF THE OCCURRENCE OF THE FACTS GIVING RISE TO THE CLAIM OR CAUSE OF ACTION, THEN USER HEREBY WAIVES, AND COVENANTS NOT TO SUE UPON, SUCH CLAIM OR CAUSE OF ACTION.

6.4 User understands and acknowledges that from time to time, the Website 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.

6.5 User agrees and acknowledges that Treeline makes no representations or warranties whatsoever with respect to any intrusions, disruption, loss of communication, loss or corruption of data, or other error or event caused or permitted by or introduced through User’s use of the Internet (“Data Breach”). User shall, and hereby does, forever release, waive, and covenant not to sue Treeline with respect to any Claim arising from or relating to an alleged or actual Data Breach. User shall be solely responsible for implementing adequate firewall, password and other security measures to protect User’s networks (and its users’) from unwanted intrusions over the Internet.

 

7.  Miscellaneous

7.1 User hereby grants to Treeline a license to use its name, trademarks and other brand identifiers in formats approved by User on the Website and in Treeline marketing materials for the sole purpose of identifying User as a recipient of the Services provided on the Website and a user of the RCM Module.

7.2 Treeline will not be responsible for any delay or failure in performance caused by acts of God or any government or any other cause beyond Treeline’s reasonable control.

7.3 Treeline may assign this Agreement. User may not assign this Agreement without Treeline’s prior written consent.  An assignee of either party, if authorized hereunder, shall have all of the rights and obligations of the assigning party set forth in this Agreement.  Any action in violation of this Section 7.3 shall be null, void, and without effect.

7.4 This Agreement will be governed, construed and enforced in accordance with the laws of the State of Michigan, without regard to its principles of the conflict of laws. Any and all litigation arising from or relating to this Agreement shall 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. The Parties agree that the Uniform Computer Information Transactions Act (“UCITA”), as adopted in any State or Commonwealth, shall not apply to this Agreement or any performance hereunder and the parties expressly opt-out of the applicability of UCITA to this Agreement.

7.5 This Agreement, including all Schedules and Exhibits hereto, is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior and contemporaneous discussions or agreements (whether written or oral) between the parties regarding such subject matter. In case of a conflict between a provision of the body of this Agreement and a specific provision of a Schedule, the provision of the Schedule shall prevail.

7.6 Treeline may modify or amend this Agreement at any time by notice delivered to User. User’s subsequent access of the Website and/or use of the RCM Module conclusively demonstrates and constitutes User’s acceptance of the modification or amendment. User may not modify or amend this Agreement except by a writing accepted by Treeline. If User issues a purchase order or other document covering the subject matter of this Agreement, it is agreed that such purchase order or document is for User’s internal purposes only and is not legally effective except to the extent specified in this Agreement.

7.7 It is the express intention of the parties that Treeline and Treeline personnel are independent contractors and not employees, agents, joint venturers or partners of User. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between User and Treeline or any Treeline personnel.  Both parties acknowledge that Treeline and Treeline personnel are not User employees for local, state or federal tax purposes.

7.8 All notices required or permitted to be given by one party to the other under this Agreement shall be sufficient if sent by electronic communication, personal delivery, overnight delivery service, or certified mail, return receipt requested, to the parties at the respective addresses set forth above or to such other address as the party to receive the notice has designated by notice to the other party.

7.9 In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and such provision shall be automatically modified so as to be valid, legal, and enforceable and to as nearly as possible reflect the intent of the parties.

7.10 The waiver by either party of a breach of a default of any provision of this Agreement by the other party will not be construed as a waiver of any prior or succeeding breach of the same or any other provision, nor will any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have thereunder, operate as a waiver of any right, power or privilege by such party.

 

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