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This OverDrive End User License Agreement ("Agreement") is a legal agreement made between OverDrive, Inc., One OverDrive Way, Cleveland, Ohio 44125 USA, ("OverDrive", "we", "us" or "our"), and You ("You" and "Your") as a licensee and user of the OverDrive Media Console for Android and OverDrive Media Console for Android Player ("Software").
By clicking the "Accept" button or by installing, copying, or using the Software, You are confirming Your acceptance of the Software and are agreeing to become bound by this Agreement. If You do not agree to be bound by these terms, then do not install the Software and promptly cease using and destroy any copies of the Software in Your possession. Failure to abide by the terms of this Agreement may result in termination of Your access to the Software, any related OverDrive-hosted websites, applications, technologies and services (collectively referred to as "Services"), and/or any part thereof.
1. Grant of Rights to Software
1.1 OverDrive grants You a non-exclusive, non-assignable, non-transferable, limited license to the Software in machine-readable code only for Your personal, non-commercial use. The Software is licensed as a single product.
1.2 You shall not:
(a) copy, rent, lease, sell, repair, transfer, assign, sublicense, disassemble, reverse engineer or decompile, modify or alter the Software including, but not limited to, translating or creating derivative works, under any circumstances;
(b) separate the Software into its component parts for independent use;
(c) remove any proprietary notices and/or labels on or in the Software;
(d) use the Software to develop any like software or other technology having the same primary function as the Software, including but not limited to using the Software in any development or test procedure that seeks to develop like software or other technology;
(e) use the Software for any commercial or illegal purpose; and/or
(f) use, download and/or install the Software on public Internet terminals, shared devices, and/or public computers without prior written permission from OverDrive.
1.3 Violation of any of the above restrictions may result in a termination of your ability to access the Software. OverDrive reserves any and all rights or remedies that may be available in the event of Your breach of this Agreement.
2. Grant of Rights to Content
2.1 OverDrive grants You a non-assignable, non-transferable, limited license to use the digital content provided by OverDrive's suppliers ("Content") for Your personal, non-commercial use, subject to and in accordance with the terms of this Agreement. Where permitted, You may copy, transfer and burn the Content only for Your personal, non-commercial use.
2.2 For Content downloaded or accessed from a library service, at the end of the lending period, Your license to the Content terminates, and You may no longer use or access the Content. At the end of the lending period, You shall delete and/or destroy any and all copies of the Content. In the event OverDrive, the library or other rights holders determine You are violating permitted uses of the Content, OverDrive reserves the right to suspend or terminate Your ability to use or access the Services, Software, and/or Content.
2.3 You shall not:
(a) redistribute, repackage, transmit, assign, sell, broadcast, publicly display, rent, share, lend, modify, extract, reveal, adapt, edit, sub-license and/or otherwise transfer or misuse the Content;
(b) use the Content for synchronization, public performance, promotional use, commercial sale, resale, reproduction and/or distribution;
(c) infringe the rights of the Content's copyright owners; and/or
(d) use the Software or any other means to download and/or save Content on public Internet terminals, shared devices, and/or public computers without prior written permission from OverDrive.
2.4 Violation of any of the above restrictions may result in a termination of your ability to access the Content. OverDrive reserves any and all rights or remedies that may be available in the event of Your breach of this Agreement.
3. Modification of the Agreement and Software
3.1 OverDrive may modify any of the terms and conditions contained in this Agreement at any time and in OverDrive's sole discretion.
3.2 OverDrive may, in its sole discretion, release subsequent versions and/or updated versions of the Software and require You to use the most current version by releasing an automatic update and/or disabling the previous version. You are advised that Version 2.6 of the Software may contain bugs which may be corrected by OverDrive, thereby rendering the old version of the Software incompatible with other software.
3.3 OverDrive may conduct maintenance on, stop providing, and/or change the method of access to the Services, Software, and/or Content at any time, with or without notice to You. For avoidance of doubt, OverDrive, in its sole discretion, may temporarily or permanently suspend Your access to the Services, Software, and/or Content under this Agreement.
3.4 IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR SOLE RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED USAGE OF THE SERVICES, SOFTWARE, AND/OR CONTENT FOLLOWING OVERDRIVE'S MODIFICATION CONSTITUTES YOUR IRREVOCABLE AND BINDING ACCEPTANCE OF THE CHANGE.
4.1 You acknowledge and agree that OverDrive, and its suppliers, maintain exclusive ownership of and to the Software and Content, in all forms and all copies thereof including, without limitation, any and all worldwide copyrights, patents, trade secrets, trademarks, and proprietary and confidential information rights associated with the Software and Content.
4.2 Copyright laws and international copyright treaties, as well as other intellectual property laws and treaties, protect the Software and Content. The Software and Content is licensed, not sold and no ownership rights in the Software and Content are transferred to You at any time. You acknowledge and warrant that nothing in this Agreement gives You the right, title or interest in the Software and Content.
5. Third Parties
5.2 Use of certain features of the Software and Services, such as downloading or streaming Content on a mobile device or sharing via social networking websites, may require data use and may result in additional charges from your provider, including charges for overages. Please check Your mobile device service plan for details before using any streaming or similar features of the Software.
7. NO WARRANTIES; NO SUPPORT
THE OVERDRIVE SOFTWARE AND SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, OVERDRIVE DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, AND DUTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE OVERDRIVE SOFTWARE AND ANY OVERDRIVE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FURTHER, OVERDRIVE DISCLAIMS ANY WARRANTY THAT YOUR USE OF THE OVERDRIVE SOFTWARE AND/OR SERVICES WILL BE UNINTERRUPTED, SECURE, TIMELY OR ERROR FREE. IN THE EVENT OF ANY INTERRUPTION OF THE OVERDRIVE SOFTWARE AND/OR SERVICES, OVERDRIVE'S SOLE RESPONSIBILITY SHALL BE TO USE COMMERCIALLY REASONABLE EFFORTS TO CORRECT THE INTERRUPTION. FOR THE AVOIDANCE OF DOUBT, YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT DOES NOT ENTITLE YOU AND/OR END USERS TO ANY SUPPORT FOR THE OVERDRIVE SOFTWARE AND/OR SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR IN WRITING, OBTAINED BY YOU FROM OVERDRIVE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
8. LIMITATION OF LIABILITY & INDEMNIFICATION
8.1 THE OVERDRIVE SOFTWARE IS BEING PROVIDED BY OVERDRIVE FREE OF CHARGE. ACCORDINGLY, YOU AGREE THAT OVERDRIVE SHALL HAVE NO LIABILITY ARISING FROM OR RELATED TO YOUR ACCESS TO AND/OR USE OF THE OVERDRIVE SOFTWARE (OR OVERDRIVE'S SUSPENSION OR TERMINATION OF SUCH ACCESS AND/OR USE) REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, IN NO EVENT SHALL OVERDRIVE OR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES AND SUPPLIERS BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE OVERDRIVE SOFTWARE, EVEN IF OVERDRIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. OVERDRIVE'S MAXIMUM AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS AGREEMENT SHALL NOT, IN ANY EVENT, EXCEED ANY AMOUNTS RECEIVED UNDER THIS AGREEMENT.
8.2 You agree to indemnify, defend, and hold harmless OverDrive and its subsidiaries, affiliates, officers, directors, shareholders, employees, and agents, from any claim or demand, including reasonable attorneys' fees, made by any third party arising from or in any way related to Your use of the OverDrive Software, Services and/or Content and/or violation of this Agreement. OverDrive shall provide You with written notice of any such claim or demand. OverDrive reserves the right, to assume the exclusive defense and control of any matter subject to indemnification by You, which shall not excuse Your indemnity obligations. In the event of any settlement of an action, You agree to obtain OverDrive's prior written consent to the settlement (which shall not be unreasonably withheld, delayed or cause any delay or harm in the settlement discussion).
9.1 The term of this Agreement ("Term") shall continue indefinitely unless terminated by OverDrive or You in accordance with the provisions herein.
9.2 OverDrive reserves the right, in its sole discretion (for any reason or for no reason) and at any time without notice to You, to modify, suspend or discontinue the Services, Software, and/or Content and/or suspend or terminate Your rights under this Agreement to access and/or use the Services, Software and/or Content. You may terminate this Agreement by removing the Software and/or Content and/or discontinuing use of the Services at any time.
9.3 Upon termination of this Agreement, You shall promptly delete and remove any and all Software and Content in Your possession or under Your control. Any termination of access to the Services, Software and/or Content will also immediately terminate any and all licenses granted to You hereunder. All disclaimers of warranties and limitation of liability set forth in this Agreement shall survive any termination of this Agreement.
10.1 You acknowledge that the Software is confidential information of OverDrive and that it embodies certain valuable proprietary information and trade secrets. Accordingly, during the Term of this Agreement, You agree to use Software only in accordance with the terms and conditions of this Agreement.
10.2 You agree to implement procedures to prevent other persons from obtaining access to or use of the Software without your knowledge and OverDrive's prior express written permission. With respect to the Software, you acknowledge the uniqueness of such Software and that OverDrive will suffer irreparable harm shall you fail to abide by the terms and conditions herein. You agree that OverDrive may, in addition to recovering legal damages, proceed in equity to obtain injunctive relief to enjoin You from violating OverDrive's rights in the Software.
11. General Terms
11.1 Attribution. This Software contains Reader® Mobile technology by Adobe Systems Incorporated.
11.2 All Disputes Arising From This Agreement. This Agreement shall be governed, interpreted, and enforced by the laws of the State of Ohio. Any legal action brought involving the Services, Software, Content, and/or Agreement shall be brought only in the courts of the State of Ohio, in the County of Cuyahoga, or in the federal courts located in such state (and county). Both Parties to this Agreement submit to venue and jurisdiction in these courts. In the event that an action or claim arises outside of the exclusive jurisdiction specified herein which names OverDrive, Inc. as a party, OverDrive and You specifically agree 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 the objectives of this provision.
11.3 Outside the United States. The limitations or exclusions of warranties and liability contained in this Agreement do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than in the course of a business. The limitations or exclusions of warranties, remedies or liability contained in this Agreement shall apply to You only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where You are located.
11.4 Entire Agreement. This Agreement constitutes the entire Agreement and understanding of the Parties and supersedes all prior and contemporaneous agreements, understandings, negotiations and proposals, oral or written.
11.5 Severability. In the event that a court of competent jurisdiction determines that any portion of this Agreement is unenforceable, said unenforceability shall not affect any other provision of this Agreement.
11.6 United States Government Restricted Rights. Distribution and use of the Software and derivative works thereof to and by the United States Government are subject to the Restricted Rights as set forth in subparagraph (c) (1) (ii) of the rights in Technical Data and Computer Software clause at DFAR 252.227-7013. All Software is commercial computer software developed at private expense. Use, duplication or disclosure by the U.S. Government is subject to the restrictions set forth in FAR 52.277-19(c)(2) where applicable or the applicable provisions of the DFAR supplement 252.227.7013 subdivision (a)(15) or (a)(17).
12. Contact OverDrive
All questions concerning this Agreement, Services, Software and/or Content shall be directed to: OverDrive, Inc. One OverDrive Way, Cleveland, Ohio 44125 USA Attention: General Counsel.
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