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Wavesound RBdigital Library Access
Each Library Account and End User acknowledges and agrees to the terms described herein and in the applicable RBdigital Subscription Form at the subscription level set forth in such Subscription Form and agrees to comply with the terms and conditions set forth in this License Agreement (the “License Agreement” or “Agreement”).
Wavesound Pty Ltd. (“Wavesound”) grants to the institution identified in the applicable Subscription Form (each a “Library Account”) a nontransferable and non-exclusive license (the “License”) to use (i) the audiobooks or other publications/content (the “Digital Content”) made available through the various online sites and the Digital Content platforms that host Digital Content for and on behalf of the individual publisher or publishing body or any collection of publishers that have licensed Digital Content to Wavesound for resale to users either as individual titles or as collections (“RBdigital”) and (ii) the RBdigital service made available by Wavesound in accordance with the terms of this License Agreement and in the applicable subscription form (the “Subscription Form”) entered into in connection with the RBdigital service and annual subscription purchased by Library Account to receive the RBdigital service on the terms described herein and in the applicable RBdigital Subscription Form at the subscription level set forth in such Subscription Form. Library Accounts may not reproduce, distribute, display, modify, alter, publish, exploit, transfer or transmit, in any form, or by any means, any Digital Content or any portion of the RBdigital service, other than in accordance with this License Agreement, without the prior written consent of Wavesound. All use by Library Account or any of the Library Account’s current employees, representatives, faculty, students, staff, visiting scholars and patrons that the Library Account has reasonably authorised to directly or remotely access the Library Account’s systems and content (each an “End User”) of any Digital Content selected by Library Account or otherwise accessed by Library Account or End Users, including but not limited to any authorised trial periods, any period for which a fee has been paid, and when updates and access to new Digital Content are provided, is subject to the terms and conditions set forth in this License. Library Account shall be responsible for ensuring that any End Users accessing applicable Wavesound site(s) are notified of, and abide by, the terms of this License.
Ownership of Digital Content and Trademarks
Each Library Account and End User acknowledges that (i) Wavesound has sole and exclusive ownership of all right, title and interest in and to the Digital Content owned by Wavesound (the “Owned Content”), and (ii) Wavesound is a licensee, lessee or otherwise has obtained the right to use the Digital Content for which Wavesound is a licensee, lessee or otherwise has obtained the right to include such Licensed Content in the Digital Content (the “Licensed Content”). Each Library Account and End User further acknowledges and agrees that it has not acquired, and shall not acquire (whether by operation of law, by this License Agreement, by downloading any Digital Content, or otherwise), any right, title, interest or ownership in or to the Owned Content or the Licensed Content or any part thereof.
Each Library Account and End User additionally acknowledges that (a) the RBdigital trademark is owned by Wavesound and that all trademarks, logos, and service marks displayed on any RBdigital website are owned by Wavesound or the licensors of the Licensed Content (collectively, the “Trademarks”), (b) all Trademarks are the property of their respective owners and are used with permission, and (c) nothing in this License Agreement or contained on the RBdigital website may be construed as granting, by implication, estoppel, or otherwise, any right or license to use any Trademark.
Disclaimer of Warranty, Limitation of Liability and Indemnity
WAVESOUND DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WAVESOUND NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR WAVESOUND ANY OTHER LIABILITY IN CONNECTION WITH THE LICENSING OF THE DIGITAL CONTENT AND RBDIGITAL SERVICE AND THEIR USE BY ANY LIBRARY ACCOUNT AND END USER.
IN NO EVENT SHALL WAVESOUND BE LIABLE TO LIBRARY ACCOUNT OR END USERS FOR ANY DAMAGES ARISING FROM OR RELATED TO FAILURE OR INTERRUPTION OF THE RBDIGITAL SERVICE, OR FOR INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF OPPORTUNITY, LOSS OF USE, OR OTHER LOSS ARISING OUT OF OR IN CONNECTION WITH THE LICENSE, TRANSFER, OR USE OF THE RBDIGITAL SERVICE. IN NO EVENT SHALL WAVESOUND LIABILITY HEREUNDER EXCEED THE TOTAL AMOUNT RECEIVED BY WAVESOUND FROM LIBRARY ACCOUNT UP TO OCCURRENCE OF THE ACTION GIVING RISE TO SUCH LIABILITY.
EACH LIBRARY ACCOUNT AGREES TO INDEMNIFY AND HOLD HARMLESS WAVESOUND AND ITS OFFICERS, EMPLOYEES, AGENTS, BUSINESS PARTNERS, LICENSORS, AND LICENSEES FROM ANY DAMAGES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ON ACCOUNT OF ANY CLAIM, SUIT, ACTION, DEMAND, OR PROCEEDING MADE OR BROUGHT AGAINST ANY SUCH PARTY, OR ON ACCOUNT OF THE INVESTIGATION, DEFENSE, OR SETTLEMENT THEREOF, ARISING IN CONNECTION WITH THE USE OF THE RBDIGITAL SERVICE BY THE END USER OF SUCH LIBRARY ACCOUNT.
Each Library Account will implement and maintain reasonable measures to ensure that only authorised End Users have access to the RBdigital service and Digital Content. Each Library Account will take reasonable steps to prevent unwarranted intrusion into data managed or maintained by Wavesound on behalf of such Library Account acquired in the course of the operation of the RBdigital service, including but not limited to reasonable steps to protect such Library Account’s password files and access to the administrative website for management of the RBdigital service.
Technical Support Services
Wavesound agrees to provide technical support services by email and phone to each Library Account, including but not limited to reasonable efforts to (a) assist such Library Account in providing Primary Support, (b) correct, fix, or circumvent errors, and (c) in the sole discretion of Wavesound, provide updates, enhancements, and new versions of the RBdigital service (“Secondary Support”). Wavesound shall provide such Secondary Support by email and phone during its normal business hours of Monday to Thursday, 8:30am to 5.00pm, Friday 8:30am to 3:45pm GMT. Each Library Account and End User acknowledges that errors in the RBdigital service shall not be a breach of this License Agreement.
Each Library Account agrees that, without the prior consent of Wavesound such Library Account will not disclose, divulge, reveal, report, or use, for any purpose, any confidential information with respect to the business of Wavesound that such Library Account has obtained. Such confidential information shall include, but is not limited to, RBdigital service or Digital Content pricing, service terms, technical specifications and service level agreements. This obligation will survive indefinitely upon termination of this License Agreement.
Term and Termination
The term for each Library Account’s access to the RBdigital service shall be for a period of twelve (12) months, unless otherwise agreed by Wavesound and such Library Account. Such Library Account obtains certain rights and access to use the Digital Content and RBdigital service for the term of its agreement with Wavesound. The License granted to such Library Account shall be terminated at the end of such term, unless renewed or extended by the mutual agreement of Wavesound and such Library Account, along with such Library Account’s access to the RBdigital service and any and all Digital Content, and such Library Account and/or its End Users shall make no further use of all or any part of the Digital Content and the RBdigital service.
In the event of a breach of any of its obligations, including but not limited to non-payment or late payment for services, each Library Account shall have thirty (30) days from the receipt of written notice of such breach from Wavesound to cure such breach. If the Library Account fails to remedy such breach within such 30-day period, Wavesound, at its option and in its sole discretion, terminate its agreement with such Library Account upon written notice to such Library Account and/or temporarily or permanently suspend such Library Account’s access to the RBdigital service.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this License Agreement. To the extent permitted by law, each of Wavesound, the Library Accounts and the End Users hereby waive any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, which it may now or hereafter have to the bringing of any action or proceeding in such jurisdiction in respect of this License Agreement. In the event that an action or claim arises outside of the exclusive jurisdiction specified herein which names Wavesound as a party, Library Account agrees to initiate, consent to and/or cooperate with any and all efforts to remove the matter to the exclusive jurisdiction named herein, or otherwise take any and all reasonable actions to achieve Wavesound’ objectives of this provision.
In the event that a court of competent jurisdiction determines that any portion of this License Agreement is unenforceable, void, invalid or inoperative, the remaining provisions of this License Agreement shall not be affected and shall continue in effect as though such invalid provisions were deleted.
Neither Wavesound nor the licensors of the Licensed Content will be liable or deemed to be in default of this License Agreement for any delays or failure in performance resulting directly or indirectly from any cause or circumstance beyond its reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authority, rain, fire, flood, accidents, earthquake(s), strikes or labor shortages, transportation facility shortages, failures of equipment, or failures of the Internet.
Wavesound should be notified of any claims of copyright infringement regarding materials available or accessible on, through, or in connection with the RBdigital service or the associated websites.
This License Agreement constitutes the entire Agreement and understanding of the parties. This Agreement may be amended or modified by Wavesound from time to time only upon notice to the Library Account and End Users on the RBdigital website.
This License Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors. In the event Wavesound enters into an agreement to sell substantially all the assets of Wavesound, this License Agreement shall be binding upon the purchaser.
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