LICENSE TERMS AND CONDITIONS
HIGHER ED CONNECTS
A. The Center for Higher Education Leadership (CHEL) is the operator of an online information service available on a subscription basis which provides information services of interest to faculty and administrators
in the field of higher education.
B. Subscriber is an institution of higher education that desires to obtain from CHEL a campus-wide
subscription license to the Licensed Content available through the Higher Ed Connects website and CHEL is
willing to grant the license on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the recitals, covenants and conditions herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following definitions apply:
2. Permitted Uses. Subject to the terms and conditions of this Agreement, CHEL hereby grants to Subscriber, and Subscriber accepts, a non-exclusive, non-transferable license (with no sublicense rights). 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 law. Nothing in this Agreement is intended to limit in any way whatsoever Licensee’s or any Authorized User’s rights under the Fair Use provisions of United States or international law to use the Licensed Materials. The Licensed Materials may be used for purposes of research, education, or other non-commercial use as follows:
(a) to allow Authorized Users to access, download and reproduce a reasonable number of copies of the Licensed Content solely for purposes of research, education or other non-commercial use during the term of this Agreement; and
(b) to allow library personnel within the scope of their employment at the libraries located at the Authorized Site periodically to make and lend an electronic or print copy of individual items of the Licensed Content in order to fulfill requests for such item by a third-party library or other institution under the Subscriber’s then-current inter-library loan agreements applicable to the Authorized Site, provided that (i) such copies are not routinely or systematically provided (whether in one occasion or over a period of time) in such a manner or in such quantities as to substitute for a subscription by the receiving library or the end user, (ii) all copies reproduce any proprietary legends included on the material by CHEL, (iii) the reproduction and lending is made without any purpose of direct or indirect commercial advantage, and (iv) the Subscriber and its personnel has had no notice that
the copy(ies) would be used for any purpose other than private study, scholarship or research.
(c) to allow Authorized Users to use a reasonable portion of the Licensed Content for use in connection with specific courses of instruction by Licensee.
(d) to allow Authorized Users to extract or use information for educational, scientific or research purposes, including extraction and manipulation of information for purposes of illustration, explanation, example, comment, criticism, teaching, research, or analysis.
(e) to allow Authorized Users to provide electronic links to the Licensed Content from Licensee’s and/or Authorized Users web page(s) and/or in e-mail communications.
3. License Limitations. Subscriber acknowledges and agrees that Higher Ed Connects Site and the Licensed Content will be for the internal use of Authorized Users only, and Authorized Users do not have the right to modify, adapt, retransmit, resell, redistribute or compile the Licensed Content, in whole or in part, including for purposes of creating course books or educational materials, or for any other commercial endeavors, except as approved in advance in writing by CHEL. The Licensee may incorporate article-level links to the Licensed Materials in Electronic Reserve collections for the use of Authorized Users in the course of instruction at the Licensee’s institution, but not for commercial use. Each such item shall carry appropriate acknowledgement of the source. CHEL and its suppliers reserve all rights and licenses in and to the Licensed Content not expressly granted to Subscriber hereunder. All copies of any Licensed Content made by or on behalf of Subscriber under this Agreement shall bear all proprietary rights and other legends of CHEL and its suppliers as reflected on the electronic copy. Products and services offered by or through CHEL now or hereafter other than the Licensed Content are not included in this Agreement. CHEL reserves the right to determine the scope and selection of content that is made available as part of the Licensed Content at any time while this Agreement is in effect. In the event that CHEL removes content in a way that is systematic, for example a class of material rather than scattered articles, CHEL will notify the Subscriber of the nature and extent of removal within ten days. If the removal has a
material effect on the usefulness of the Licensed Content, the Subscriber will have the right to cancel the
service and receive a prorated refund’
4. Access to Licensed Content. In order for Authorized Users to access Higher Ed Connects Site and the Licensed Content, Subscriber will provide to CHEL the valid email addresses which shall be allowed access to the Licensed Content.
5. Management of Higher Ed Connects Site. Higher Ed Connects Site will be located on CHEL’S server or the server of a third party as determined by CHEL. CHEL reserves the right, at its sole discretion, to block or remove from Higher Ed Connects Site any content which CHEL believes may be illegal or harmful to CHEL in any way or which conflicts with CHEL’s obligations to third parties. Although CHEL may from time to time monitor or review discussions, chats, postings, transmissions, bulletin boards and other user generated pages on Higher Ed Connects Site, CHEL is not under any obligation to do so. Subscriber acknowledges that CHEL does not control the information available on bulletin boards, chat rooms and other user generated pages and that any opinions, advice, statements, services, offers or other information or content presented or disseminated on any bulletin board, chat room or on any other user generated pages are those of their respective authors who are solely liable for their content. CHEL reserves the right, in its sole discretion, to edit, refuse to post or remove any material submitted to or posted on the chat rooms, bulletin boards or on any other user generated pages, and to terminate or suspend access by Authorized Users who make unauthorized or illegal use of the Higher Ed Connects Site. If the removal has a material effect on the usefulness of the Licensed Content, the Subscriber will have the right to cancel the service and receive a prorated refund.
6. Terms of Payment. Subscriber agrees to pay CHEL for the rights granted in this Agreement a nonrefundable (except as set forth in Section 8(a), a subscription fee to be paid annually based on the pricing set forth by CHEL. Payment is due before campus-wide access is provided. Renewal fees shall be in accordance with Section 8(a). Subscriber will be responsible for the payment of all taxes and duties assessed in connection with the license granted herein.
7. Ownership, Confidentiality, and Reporting.
(a) Licensed Content and Trademarks. Subscriber acknowledges that CHEL and its suppliers own all worldwide right, title, and interest in and to the Licensed Content, and all related information, software, data, layouts and formats made available by CHEL by or through the Higher Ed Connects site, including, but not limited to, all copyrights (including without limitation audiovisual works and moral rights), patents, and other worldwide intellectual property rights therein. CHEL and its licensors own all right, title, and interest in and to their respective trademarks, service marks, and logos (“Marks”) worldwide and such Marks cannot be used by Subscriber without the prior written approval of CHEL.
(b) Usage Data. All data collected by or on behalf of CHEL relating to any use of the Higher Ed Connects or the Licensed Content by any users is and shall remain at all times the sole property of CHEL.
(c) Confidentiality. Subscriber hereby agrees that the user name and password provided or made accessible by CHEL to Subscriber shall be and remains at all times the confidential property of CHEL and shall not be disclosed by Subscriber to any persons other than the Subscriber Administrator and those of its personnel involved with the implementation of this Agreement. Subscriber agrees to exercise reasonable commercial efforts to safeguard user name and password and keep them confidential
(d) Usage Reports. CHEL agrees to provide to Subscriber’s contact person usage reports regarding access to the Licensed Content by Authorized Users, which report shall only include non-personally identifiable information. This report shall be accessible to the Subscriber electronically by using the assigned user name and password or in such other means reasonably determined by CHEL from time to time and will be updated periodically. The reports shall not be distributed outside of the Subscriber’s organization and, while believed accurate by CHEL, are provided without warranty.
8. Term and Termination.
(a) Term/Renewal. The term of this Agreement shall commence on the Effective Date and be for twelve (12) months following the Service Commencement Date. Subscriber may renew this Agreement after the initial term by sending, prior to the Renewal Date, payment for an additional twelve months period (each a “renewal period”). CHEL will make a reasonable effort at least 60 days prior to the expiration of the then current term, to send to Subscriber at the last known address for billing a “renewal notice” stating the price applicable to the renewal period. The licensed rights granted hereunder will not renew for any renewal period unless CHEL has received within thirty (30) days following the expiration date payment in full of the applicable renewal fee. Any renewal is subject to the then current form of these Terms and Conditions as then prescribed by CHEL and to be provided to Subscriber prior to renewal for signature in the event the terms have changed from these Terms. In the event CHEL reasonably determines that the Licensed Content can no longer be made available, it shall have the right to terminate or not renew this Agreement by notice to Subscriber, provided that it refunds the Annual Subscription Fee for the unexpired portion of any then-current term.
(b) Termination. Either party may terminate this Agreement if the other party materially breaches any of its obligations hereunder and such breach remains uncured for thirty (30) days following the written notice of the breach to the breaching party. In the event Subscriber terminates pursuant to this section as a result of an uncured breach by CHEL, Subscriber shall be entitled to a refund of any fees paid by Subscriber for any unused portion of the then-current term, as Subscriber’s sole and exclusive remedy for such breach. Upon any termination or expiration of this Agreement: (i) the license rights granted under this Agreement immediately terminate; (ii) Subscriber shall promptly discontinue any use of the Marks; and (iii) the provisions of Sections 7(a), 7(b) and 7(c) will survive any termination or expiration of this Agreement.
9. Limited Warranty and Disclaimers.
(a) Warranties. CHEL warrants that it has the right and authority to enter into this Agreement and to grant to Subscriber the rights granted hereunder. The Subscriber warrants that it has the right and authority to enter into this Agreement. CHEL warrants that it will make commercially reasonable efforts to provide accurate and complete information through the Licensed Content and to provide to Subscriber the services set forth in this Agreement.
(b) Disclaimer. EXCEPT AS SET FORTH IN SECTION 9(a) ABOVE, CHEL AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY KIND IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE LICENSED CONTENT AND ANY OTHER INFORMATION, SERVICES OR MATERIALS PROVIDED OR MADE AVAILABLE BY CHEL HEREUNDER, AND CHEL AND ITS SUPPLIERS HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF
INFORMATIONAL CONTENT, SYSTEM INTEGRATION, TITLE, NON-INFRINGEMENT AND NONINTERFERENCE. CHEL DOES NOT MAKE ANY WARRANTY THAT THE LICENSED
CONTENT WILL BE AVAILABLE TOTALLY WITHOUT INTERRUPTION OR ERROR-FREE.
10. Limitation of Liability.
(a) Exclusion of Damages. IN NO EVENT WILL CHEL OR ITS SUPPLIERS BE LIABLE TO SUBSCRIBER, AUTHORIZED USERS OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE LICENSED CONTENT, OR THE HIGHER ED CONNECTS SITE, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT CHEL OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SUBSCRIBER AGREES THAT CHEL WILL NOT BE LIABLE FOR ANY CREDITS OR REFUNDS FOR SERVICE INTERRUPTIONS, LATENCY, INCOMPLETE CONTENT TRANSMISSION, GENERAL NETWORK FAILURES OR OTHER FAILURES REGARDING CONTENT ACCESS OR TRANSMISSION WHICH MAY FROM TIME TO TIME MAKE THE LICENSED CONTENT OR THE HIGHER ED CONNECTS SITE UNAVAILABLE TO AUTHORIZED USERS. IF INTERRUPTION OF SERVICE IS FOR MORE THAN 24 HOURS AND IS DUE TO FAILURE OF CHEL, THEN SUBSCRIBER WILL BE ENTITLED TO SUBSCRIBER CHOICE OF A CREDIT TO BE APPLIED TO A RENEWAL, A REFUND, OR AN EXTENSION OF SUBSCRIPTION TERM EQUALED TO THE INTERRUPTION IN SERVICE.
(b) Total Liability. IN NO EVENT WILL CHEL’S AND ITS SUPPLIERS’ TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, EXCEED THE ANNUAL SUBSCRIPTION FEE OF THE YEAR IN WHICH THE CAUSE OF ACTION OCCURS.
11. General Provisions.
(a) Assignment. Subscriber may not assign this Agreement, in whole or in part, without CHEL’s prior written consent, which shall not be unreasonably withheld. Any attempt to assign this Agreement other than as permitted herein will be null and of no effect. Without limiting the foregoing, this Agreement will inure to the benefit of and bind the parties’ respective successors and permitted assigns.
(b) Dispute Resolution. The parties agree to make good faith, diligent and reasonable commercial efforts to resolve any disputes under this Agreement by designating one senior executive of each party to negotiate for a mutually agreeable period of at least ten days once a party has provided written notice of the dispute and the desire to negotiate as set forth herein. Nothing herein shall affect the right of either party to seek interim or emergency injunctive relief before a court of competent jurisdictions. CHEL reserves the right to suspend service hereunder pending resolution of a dispute unless Subscriber escrows any amounts in dispute (in the case of a payment dispute) or otherwise provides written assurance that continuation of service hereunder will not give rise to any claim of remedies or damages by Subscriber for the period service is provided while the dispute is pending.
(c) Notice. Any notice under this Agreement will be in writing and delivered by personal delivery, express
courier, confirmed facsimile, confirmed e-mail, or certified or registered mail, postage prepaid and return
receipt requested. Notices will be deemed to be effective upon receipt. Notices will be sent to a party at its
address set forth above or such other address as that party may specify in writing pursuant to this section.
(d) No Agency. CHEL is only a licensor and an independent contractor of Subscriber. The parties will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency, or joint venture. The arrangements contemplated by this Agreement are non-exclusive and nothing in this Agreement shall be construed as limiting the ability of the other party to enter into similar arrangements with other parties.
(e) Entire Agreement. This Agreement, together with its exhibits, is the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreements, negotiations and communications regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.
(f) Counterparts. This Agreement may be executed in multiple counterparts (including facsimile), each of which, when so executed, shall be deemed to be an original copy hereof, and all such counterparts together shall constitute one single agreement.
THE CENTER FOR HIGHER EDUCATION LEADERSHIP/HIGHER ED CONNECTS