THIS AGREEMENT is entered into by the undersigned Subscriber with The College Music Society (CMS), its computer music institution research service and professional marketing service, as follows:
1. License.
a. Grant. Subscriber is granted a non-exclusive, non- transferable, limited license for its “authorized users” to access CMS. Authorized users are (i) currently enrolled students; (ii) on an ad hoc basis, researchers and lecturers affiliated and/or visiting under the terms of an agreement with the subscriber; (iii) Full and part-time employees of subscriber; and (iv) on-site users physically present and authorized to be on the subscriber’s premise. CMS consists of various CMS and third-party databases, services, functions and remotely-accessed gateways (collectively "Features") which may change from time to time. Access to certain Features may be limited or restricted. Subscriber is licensed to use data made available on CMS for non-commercial purposes. Subscriber may also create print portions of Data for internal use.
b. lib.music.org is an Internet-based service that provides access to CMS. CMS grants Subscriber a single non-exclusive, non-transferable, limited license to use lib.music.org (including all versions and updates). Subscriber may not reverse engineer, disassemble nor may Subscriber reproduce all or any portion of the components of lib.music.org.
c. Limitations. Subscriber may not copy, download, store, publish, transmit, transfer, sell or otherwise use the Data, or any portion of the Data, in any form or by any means, except (i) as expressly permitted by this Agreement or (ii) with CMS’s prior written permission as allowed under the fair use provision of the Copyright Act (17 U.S.C.A. § 107). Subscriber shall not sell, license or distribute Data (including printouts and Downloaded Data) to third parties or use Data as a component of or as a basis for any material offered for sale, license or distribution.
d. Rights in Data. Except for the license granted in this Agreement, all rights, title and interest in Data, in all languages, formats and media throughout the world, including all copyrights, are and will continue to be the exclusive property of CMS and its contributors ("Contributors").
2. Public Records Databases. Public records databases consist of third party public records databases and filings as identified in the CMS Directory. Subscriber shall not use Public Record Databases in a manner contrary to or in violation of any applicable federal, state, or local law, rule or regulation.
3. Disclaimer of Warranties and Limitation of Liability. Except as specifically provided in this agreement, CMS’ features, data, software and lib.music.org are provided "as is," without warranty of any kind, express or implied, including, but not limited to, warranties of performance, merchantability, fitness for a particular purpose, accuracy, omissions, completeness, currentness and delays. Subscriber's exclusive remedy and CMS’, its affiliates and/or contributors' entire liability under this agreement, if any, for any claim(s) for damages relating to CMS, features, data, software or lib.music.org which are made against them, individually or jointly, whether based in contract or negligence, shall be limited to the aggregate amount of CMS charges paid by subscriber, as applicable, which is the basis of the claim(s) during the 12 month period preceding the event giving rise to such claim.
CMS is not liable, and subscriber agrees that he will not hold CMS liable for any loss, injury, claim, liability, damages, costs, and/or attorneys fees of any kind that result from the unavailability of the CMS Platform or Content, delays or interruption of the services provided hereunder, or arising out of or in connection with Subscriber’s use of the CMS in violation of these Terms and Conditions of Use. In no event will CMS’s liability to an Institutional Licensee exceed the fees paid to CMS by that Institutional Licensee for the term of the agreement then in effect.
4. Term and Termination. This Agreement will become effective upon subscriber’s acceptance and will continue in force until terminated by either party upon at least 30 days prior written notice of termination to the other party. Notwithstanding the foregoing, (i) CMS may terminate this Agreement immediately upon giving written notice of termination to Subscriber if Subscriber commits a material breach of any obligation to CMS under any other agreement between the parties; and (ii) either party may terminate this Agreement immediately upon giving written notice of termination to the other party if the other party commits a material breach of this Agreement.
5. Effect of Agreement. This Agreement embodies the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes any and all prior understandings and agreements, oral or written, relating to the subject matter. Except as otherwise provided in this Agreement, CMS may amend at any time.
6. Force Majeure. CMS will not be liable for failures or delays in performing its obligations pursuant to this Agreement arising from any cause outside of its control, including but not limited to, act of God, acts of civil or military authority, terrorism, fires, strikes, lockouts or labor disputes, epidemics, wars, riots, earthquakes, storms, typhoons and floods and in the event of any such delay, the time for either party’s performance will be extended for a period equal to the time lost by reason of the delay.
7. General Provisions.
a. Choice of law/jurisdiction. This Agreement will be governed by and construed under the law of the state of Montana, United States of America. The parties agree that the state and federal courts sitting in Montana will have exclusive jurisdiction over any claim arising out of this Agreement and each party consents to the exclusive jurisdiction of such courts.
b. Assignment. This Agreement is not assignable by Subscriber.
c. Enforceability. Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal by a court, the validity and enforceability of the other provisions will not be affected. The headings and captions contained in this Agreement are inserted for convenience only and do not constitute a part of this Agreement.