OverDrive AudioBook Classroom Access Agreement

The School Account and End Users agree to comply with the following terms and conditions (the "Access Agreement" or "Agreement").

For purposes of this Agreement, OverDrive shall mean OverDrive, Inc. ("OverDrive"); the "School Account" is the entity or institution that makes available OverDrive technologies, content, services and hardware (collectively “AudioBook Classroom Service” or "ABC Service"); and the "End Users" are employees, staff and students or other users that School Account authorizes to access, use, and connect to the ABC Websites and ABC Service.

OverDrive grants to the School Account a nontransferable and non-exclusive license to use the Digital Content and the ABC Service made available by OverDrive in accordance with the terms of this Agreement. The Digital Content and ABC Service made available to End Users are the subject of copyright protection, and the original copyright owner (OverDrive or its licensors) retains the ownership of the Digital Content and ABC Service. OverDrive does not transfer any ownership, and the School Account 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 ABC Service without the prior written consent of OverDrive and its suppliers and publishers.

End Users shall only use the Digital Content for their own personal, non-commercial use. End Users shall not sell, distribute, broadcast, rent, share, lend, modify, adapt, edit, or sub-license the Digital Content. All rights, titles, and interest in the Digital Content are reserved, and End Users do not acquire any ownership rights in the Digital Content as a result of downloading or using the Digital Content. The license granted to End Users to use the Digital Content is for a one-time limited right to borrow the Digital Content for a specific, school designated, limited duration ("Lending Period"). End Users agree and acknowledge that at the end of the Lending Period all rights to access the Digital Content expire and terminate. At the end of the Lending Period, End Users agree to delete and/or destroy any and all copies of the Digital Content, including any copies that may have been transferred to, or created on portable devices, storage media, removable drives, CDs & DVDs. In the event the School Account, OverDrive, or a rights holder determines End Users of the ABC Service are violating the terms of this Access Agreement, the School Account and/or OverDrive reserves the right to suspend or terminate End Users’ ability to use the ABC Service and to borrow Digital Content.

The ABC Service is software and associated services provided by OverDrive for installation by a School Account on fixed media such as a hard drive or server for access by End Users using school computers. End Users will have the ability to search the Digital Content by title category, author, keyword, or any other appropriate means.

School Account will implement and maintain reasonable measures to ensure that only authorized End Users have access to the ABC Service and Digital Content.

Any replacement hardware for School Accounts, including but not limited to external USB drives, may be subject to additional fees, which shall be the responsibility of School Account.

FOR THE ABC SERVICE AND ANY AND ALL ASSOCIATED HARDWARE, PERIPHERALS OR RELATED ITEMS PROVIDED BY OVERDRIVE, OVERDRIVE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. OVERDRIVE NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR OVERDRIVE ANY OTHER LIABILITY IN CONNECTION WITH THE LICENSING OF THE DIGITAL CONTENT AND ABC SERVICE AND THEIR USE BY THE SCHOOL ACCOUNT AND END USERS.

IN NO EVENT SHALL OVERDRIVE BE LIABLE TO SCHOOL ACCOUNT OR END USERS FOR ANY DAMAGES ARISING FROM OR RELATED TO FAILURE OR INTERRUPTION OF THE ABC 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 ABC SERVICE. IN NO EVENT SHALL OVERDRIVE'S LIABILITY HEREUNDER EXCEED THE TOTAL AMOUNT RECEIVED BY OVERDRIVE FROM SCHOOL ACCOUNT UP TO THE TIME THE CAUSE OF ACTION GIVING RISE TO SUCH LIABILITY OCCURRED. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS OVERDRIVE 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 YOUR USE OF THE ABC SERVICE.

OverDrive is a distributor of content supplied by third parties including publishers and others. Accordingly, any opinions, advice, statements, offers, services, or other information or content expressed by third parties are those of the respective author(s) and not OverDrive. OverDrive neither endorses nor is responsible for the accuracy or reliability of information on the ABC Service made by anyone other than authorized OverDrive employee spokespersons acting in their official capacities.

School Account will take reasonable steps to prevent unwarranted intrusion into data managed or maintained by OverDrive on behalf of School Account acquired in the course of the operation of the ABC Service.

In the event OverDrive learns of attempts to disassemble or reverse engineer any portion of the ABC Service either by School Account or its End Users, OverDrive shall in its sole discretion, be permitted to temporarily suspend and/or permanently terminate End User's and/or School Account’s Access to the ABC Service and Digital Content.

OverDrive agrees to provide technical support services by email to School Account including reasonable efforts to assist School Account in providing Primary Support, reasonable efforts to correct, fix, or circumvent errors, and in the discretion of OverDrive, provide updates, enhancements, and new versions of the ABC Service ("Secondary Support"). OverDrive shall provide such Secondary Support by email during its normal business hours of Monday- Friday 8:30 AM to 5:30 PM Eastern Standard Time.

OverDrive will use reasonable efforts to make the ABC Service perform substantially in accordance with the product description, as it may exist from time to time. However, School Account acknowledges that inevitably some errors may exist in the ABC Service, and the presence of such errors shall not be a breach of this provision. OverDrive's sole obligation with regard to such errors shall be to use commercially reasonable efforts to correct such errors and provide Secondary Support as stated in this Agreement.

School Account agrees to perform services to its End Users for day-to-day support, technical aid, help and other assistance for End Users’ use of its ABC Service ("Primary Support"). School Account will assign personnel with appropriate skills and expertise in computer, data processing, and related services to enable operation of the ABC Service and to provide Primary Support.

School Account will perform requested installation, upgrade, and reasonable technical services for Primary Support of the ABC Service pursuant to installation and support procedures and policies as developed by OverDrive and as modified from time-to-time. OverDrive will provide School Account with documentation regarding Primary Support and OverDrive support personnel will be available for Secondary Support by e-mail during its normal business hours.

The trademarks, logos, and service marks displayed on the ABC Service are owned by OverDrive or third parties, and the ABC Service’s trade dress is owned by OverDrive (collectively, "Trademarks"). All Trademarks not owned by OverDrive are the property of their respective owners, and are used with permission. Nothing contained on the ABC Service may be construed as granting, by implication, estoppel, or otherwise, any right or license to use any Trademark.

OverDrive respects the privacy of visitors to its sites. OverDrive's ABC Privacy Policy is expressly incorporated herein by reference and made a part of this Agreement.

OverDrive has appointed an agent to receive notifications of claims of copyright infringement regarding materials available or accessible on, through, or in connection with the ABC Service. Any person authorized to act for a copyright owner may notify us of such claims by contacting the following agent: Erica Lazzaro, OverDrive, Inc., 8555 Sweet Valley Drive, Suite N, Cleveland, OH 44125; phone: 216-573-6886 ext. 409, fax: 216-573-6888, email: elazzaro@overdrive.com. In contacting this agent, the contacting person must provide all relevant information, including the elements of notification set forth in 17 U.S.C. 512.

Unless otherwise agreed, the term for School Account's access to the ABC Service shall be for a period of twelve (12) months. School Account obtains certain rights and access to use the Digital Content and ABC Service for the term of its agreement with OverDrive. At the end of such term, the license granted to School Account shall be terminated immediately, along with School Account's access to the ABC Service and any and all Digital Content. School Account shall make no further use of all or any part of the Digital Content and ABC Service.

In the event of a breach of any of its obligations, including but not limited to non-payment or late payment for services, School Account shall have the right to remedy the breach within thirty (30) days upon receipt of written notice from OverDrive. If School Account fails to remedy such a breach within the period of thirty (30) days, OverDrive may (at its option) terminate its agreement with School Account upon written notice to School Account and/or temporarily or permanently suspend the School Account's access to the ABC Service.

This Agreement shall be governed and interpreted in accordance with the substantive law of the State of Ohio, United States of America without regard to conflict of law provisions. Any legal action brought concerning this Agreement or any dispute hereunder, including but not limited to an action to enforce or challenge an arbitration award, shall be brought only in the courts of the State of Ohio, USA, in the County of Cuyahoga, or in the federal courts located in such state (and county). Both parties 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 as a party, School 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 OverDrive's objectives of this provision.

Neither OverDrive nor its licensors will be liable or deemed to be in default for any delays or failure in performance resulting directly or indirectly from any cause or circumstance beyond its reasonable control, including but not limited acts of God, war, riot, embargoes, acts of civil or military authority, rain, fire, flood, accidents, earthquake(s), strikes or labor shortages, transportation facilities shortages or failures of equipment, or failures of the Internet.

In the event that a court of competent jurisdiction determines that any portion of the Agreement is unenforceable, void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect as though such invalid provisions were deleted.

This Agreement constitutes the entire Agreement and understanding of the parties. This Agreement may be amended or modified only by a subsequent Agreement in writing signed by each of the parties and may not be modified by course of conduct.

This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors. In the event OverDrive enters into an agreement to sell substantially all the assets of OverDrive, this Agreement shall be binding upon the purchaser.

Updated August 18, 2009