Mon Sep 01 2014   
 

BNA Academic Customer License Agreement

This License Agreement is between THE BUREAU OF NATIONAL AFFAIRS, INC., 1231 25th Street, N.W., Washington, D.C. 20037, and/or a wholly-owned subsidiary of BNA including TAX MANAGEMENT INC., and BNA INTERNATIONAL, INC., referred to collectively as "BNA," and the licensee, Arizona Board of Regents on behalf of UNIVERSITY OF ARIZONA ("Licensee").

This Agreement sets forth the terms and conditions applicable to Licensee's access to, and use of, the BNA publications listed on the Order Form (referred to as "Licensed Materials"), including all databases, software, and/or materials contained within the Licensed Materials and accompanying documentation and/or manuals.

Access to and/or use of the Licensed Materials will constitute acceptance of all terms and conditions. If you do not agree with the terms and conditions stated herein, immediately contact BNA to discontinue access (Licensee Relations, telephone: 1-800-372-1033, e-mail: customer care@bna.com).

1. License. Licensee has purchased the type of license specified in the Order Form (or may have access to the Licensed Materials under an agreement with a third party information provider). BNA grants to Licensee a non-exclusive, non-transferable, limited right to access and use the Licensed Materials according to the terms and conditions of this Agreement. This license shall be effective during the term of Licensee's subscription to the Licensed Materials as set forth on the Order Form (or, if access is authorized under an information provider agreement, during the term of such agreement), and during any subsequent renewal terms. Licensee is solely responsible for selecting, purchasing, installing and maintaining the equipment and other software necessary to use the Licensed Materials.

2. Licensee. The terms and conditions of this Agreement shall apply to Licensee and each Authorized User. Licensee will use best efforts to inform all Authorized Users of the terms and conditions of this Agreement. Licensee will cooperate with any investigation into possible breach of terms and conditions of use.

3. Authorized Users. The term "Authorized Users" shall include full-time and part time, current, or visiting members of the faculty, library staff and currently enrolled students, who are permitted to access the Licensee's secure computer network system ("Network"), regardless of physical location of such person(s). Authorized Users shall also include other persons, e.g., walk-ins, who are permitted to use the Licensee's library and access the Network from computer terminals located on the library premises. Licensee shall use reasonable efforts to maintain records of use by such authorized persons.

CUSTOMER SHALL NOTIFY ALL AUTHORIZED USERS OF THE TERMS OF THIS LICENSE AGREEMENT THROUGH A "CLICK-THROUGH" LICENSE THAT APPEARS ONLINE EACH TIME THE LICENSED MATERIALS IS ACCESSED,OR OTHER MEANS THAT WILL NOTIFY USERS THAT USE IS SUBJECT TO THE TERMS OF THIS AGREEMENT.

4. Payment. Licensee will be billed at the beginning of the subscription term, or as otherwise specified, and an invoice for the electronic subscriptions will be sent by BNA to one (1) designated billing address. Within sixty (60) days after signing this Agreement, Licensee must notify BNA of existing BNA subscriptions that need to be canceled as a result of this Agreement. If timely notice is given, payments made on the unfulfilled portion of these subscriptions will be applied to amounts owed under this Agreement.

All subscription fees listed on the Order Form are exclusive of taxes and charges for replication, telecommunication, software and hardware. It is the responsibility of the Licensee to promptly provide BNA with its tax exemption documentation.

Payment is due to BNA within forty-five (45) days of the invoice date. After sixty-five (65) days, interest will be assessed at the rate of 10 % simple per annum. BNA also may terminate Licensee's access to the Publications without further notice if payment, or written notice of a payment dispute has not been acknowledged by Licensee, is not received within sixty (60) days of the invoice date.

5. Renewals. BNA reserves the right to revise its renewal prices at any time; renewal prices will be included on License renewal invoice. Licensee's payment of the renewal invoice will constitute acceptance of the renewal price and subscription that will continue to be governed by the terms of this Agreement unless both parties agree to any further changes. The conditions of payment described in section 4 shall apply to payment of renewal invoices.

6. Copyright.

a. The Licensed Materials contains proprietary material of BNA that is protected by copyright and other laws respecting proprietary rights. The Licensed Materials also may contain similarly protected licensed proprietary material of NextPage, American Medical Association or other suppliers ("Licensors"). BNA retains all rights in the Licensed Materials, including (without limitation) all copyright and other proprietary rights worldwide in all media. Licensee and all Authorized Users may not use the Licensed Materials except as expressly permitted under this Agreement, the BNA Copyright Guidelines, and under U.S. copyright laws. Any routine and/or systematic redistribution of any portion of the Licensed Materials is expressly prohibited other than agreed upon in this contract. On or before the subscription start date, BNA agrees to make the BNA Copyright Guidelines available to all Authorized Users within the organization through its website, http://www.bna.com/corp/copyright BNA reserves the right to revise the BNA Copyright Guidelines at any time.

b. Authorized Users may access the Licensed Materials for their individual use, i.e., may view the Licensed Materials on screen; may download or save the Licensed Materials to a computer disk for individual convenience and later reference; and may print paper copies for individual, educational, or research use only. If BNA is properly credited, Authorized Users may, on an occasional basis, reproduce and use small portions of material in the Licensed Materials for internal or interoffice use, coursework for educational or research use, court filings by student legal clinics and/or classroom use as provided for under United States copyright law fair use provisions. Unless otherwise authorized by BNA, any routine or systematic distribution of any portion of the Publications(s) is strictly prohibited.

c. The rights granted here are an expansion of the rights granted under the Copyright Act and do not include any rights to reproduce in its entirety any portion of the Licensed Materials or materials contained therein. No part of the Licensed Materials may be duplicated in any medium or format beyond the express terms of this Agreement without prior written authorization from BNA, 1231 25th St., N.W., Washington, D.C. 20037, Attention: Permissions Manager (e-mail: permissions@bna.com). Nothing in this license shall exclude, modify or affect any of the licensee rights under the U.S. copyright law.

d. The Licensed Materials may be used for purposes of research, education or other non-commercial use as follows:

Display. Licensee and Authorized Users shall have the right to electronically display the Licensed Materials.

Digitally Copy. Licensee and Authorized Users may download and digitally copy Materials the Licensed Materials as permitted under section 6.a. of this Agreement.

Print Copy. Licensee and Authorized Users may print the Licensed Materials as permitted under section 6.a. of this Agreement.

Recover Copying Costs. Licensee may charge a reasonable fee to cover costs of copying or printing portions of Licensed Materials for Authorized Users.

Archival/Backup Copy. Upon request of Licensee, Licensee may receive from Licensor and/or create one (1) copy of the entire set of Licensed Materials for the sole purpose of maintaining an archival copy of the Licensed Materials.

Course Packs. Licensee and Authorized Users may use a reasonable portion of the Licensed Materials in the preparation of Course Packs.

Electronic Reserve. Licensee and Authorized Users may use a reasonable portion of the Licensed Materials for use in connection with specific courses of instruction offered by Licensee.

Electronic Links. Licensee may provide electronic links to the Licensed Materials from Licensee's web page(s), and is encouraged to do so in ways that will increase the usefulness of the Licensed Materials to Authorized Users.

Caching. Licensee and Authorized Users may make such local digital copies of the Licensed Materials as are necessary to ensure efficient use by Authorized Users by appropriate browser or other software.

Interlibrary Loan. Licensee may fulfill requests from other institutions, a practice commonly called Interlibrary Loan. Licensee agrees to fulfill such requests in compliance with Section 108 of the United States Copyright Law (17 USC § 108, "Limitations on exclusive rights: Reproduction by libraries and archives") and clause 3 of the Guidelines for the Proviso of Subsection 108(g)(2) prepared by the National Commission on New Technological Uses of Copyright Works. Licensee agrees to provide the copy in print form and not electronically.

Scholarly Sharing. On an occasional basis, Authorized Users may transmit to a third party colleague in hard copy or electronically, minimal, insubstantial amounts of the Licensed Materials for personal use or scholarly, educational, or scientific research or professional use but in no case for re-sale, broad distribution, or on a routine or systematic basis. In addition, Authorized Users have the right to use, with appropriate credit, figures, tables and brief excerpts from the Licensed Materials in the Authorized User's own scientific, scholarly and educational works.

Licensee acknowledges that the Licensed Materials are highly proprietary in nature and that unauthorized copying, transfer or use may cause BNA or its licensors irreparable injury that cannot be adequately compensated for by means of monetary damages. Licensee agrees that any breach of this Agreement by Licensee, or any subscriber or Authorized User, may be enforced by BNA by means of equitable relief (including, but not limited to, injunctive relief) in addition to any other available rights and remedies.

e. The Licensed Materials may incorporate the search and retrieval software "Views" and/or the Internet display software "siteDirector." Views and siteDirector are proprietary products of NextPage which has made its software available under license to BNA. Use of Views and siteDirector is subject to all terms and conditions in this Agreement. (Some Licensed Materials also may include Physicians' Current Procedural Terminology, Fourth Edition ("CPT") under copyright of the American Medical Association (AMA"). All notices of proprietary rights, including trademark and copyright in CPT, must appear on all permitted copies of CPT or portions thereof made by Licensee under this license. Future updated versions of CPT are dependent upon continuing contractual relations between BNA and AMA. Responsibility for any National Correct Coding Policy included in the Licensed Materials is with the Health Care Financing Administration and no endorsement by the AMA is intended or should be implied.)

7. Restrictions.

a. Licensee may not and may not permit others to: reproduce, publish, distribute, sell, or otherwise access or use any material retrieved from or contained in the Licensed Materials in any manner whatsoever that may infringe any copyright or proprietary interest of BNA or its licensors; distribute the information contained in the Licensed Materials to other users not duly authorized to receive the Licensed Materials; distribute, rent, sublicense, lease, transfer, assign or otherwise make commercial use of the Licensed Materials or Agreement; decompile, disassemble, or otherwise reverse-engineer this Licensed Materials, or alter, translate, modify, or adapt it to create derivative works. The use of "framing" or other means of redirecting content is specifically prohibited by the foregoing. Unauthorized reproduction, transfer, and/or use may be a violation of criminal as well as civil law.

b. Except as expressly permitted under this Agreement, Licensee is expressly prohibited from placing or installing any portion of the Licensed Materials on any electronic media, including, but not limited to, individual desktop computers, local or wide area networks, timesharing services, multiple processing units, multiple site arrangements, service or software rental bureaus, list servers, online services, electronic bulletin boards or forums, World Wide Web sites or any other server that is Internet enabled, without written authorization by BNA.

c. Unauthorized Use. Licensee shall not knowingly permit anyone other than Authorized Users to use the Licensed Materials.

d. Modification of Licensed Materials. Licensee shall not modify or create a derivative work of the Licensed Materials without the prior written permission of Licensor.

e. Removal of Copyright Notice. Licensee may not remove, obscure or modify any copyright or other notices included in the Licensed Materials.

f. Commercial Purposes. Licensee may not use the Licensed Materials for commercial purposes, including, but not limited to, the sale of the Licensed Materials or bulk reproduction or distribution of the Licensed Materials in any form.

8. Licensor Performance Obligations

a. Availability of Licensed Materials. Within fifteen (15) days of execution of this Agreement, Licensor shall make the Licensed Materials available to Licensee and Authorized Users.

b. Support. Licensor will offer its standard activation or installation support. Licensor will offer its standard continuing support to assist Licensee and Authorized Users in use of the Licensed Materials.

c. Training. Licensor will provide appropriate training to Licensee staff relating to the use of the Licensed Materials and any Licensor software.

d. Quality of Service. Licensor shall use reasonable efforts to ensure that the Licensor's server or servers have sufficient capacity and rate of connectivity to provide the Licensee and its Authorized Users with a quality of service comparable to current standards in the on-line information provision industry in the Licensee's locale.

e. If the Licensed Materials fail to operate in conformance with the terms of this Agreement, Licensee shall immediately notify Licensor, and Licensor shall use reasonable efforts to restore access to the Licensed Materials as soon as practicable or extend the subscription term accordingly. In the event that Licensor fails to repair the nonconformity in a reasonable time, Licensor shall, in its sole discretion, reimburse Licensee in an amount that the nonconformity is proportional to the total Fees owed by Licensee under this Agreement, or appropriately extend the subscription term.

f. Notification of Modifications of Licensed Materials. Licensee understands that from time to time the Licensed Materials may be added to, modified, or deleted from by Licensor and/or that portions of the Licensed Materials may migrate to other formats. Licensor shall give the same notice of any such changes to Licensee as it does with the other subscribers.

g. Compliance with Americans with Disabilities Act. Licensor shall comply with the Americans with Disabilities Act (ADA).

9. Licensee Performance Obligations

a. Provision of Notice of License Terms to Authorized Users. Licensee shall make reasonable efforts to provide Authorized Users with appropriate notice of the terms and conditions under which access to the Licensed Materials is granted under this Agreement including, in particular, any limitations on access or use of the Licensed Materials as set forth in this Agreement.

b. Protection from Unauthorized Use. Licensee shall use reasonable efforts to protect the Licensed Materials from any use that is not permitted under this Agreement. In the event of any unauthorized use of the Licensed Materials by an Authorized User, (a) Licensor may terminate such Authorized User's access to the Licensed Materials, (b) Licensor may terminate the access of the Internet Protocol ("IP") address(es) from which such unauthorized use occurred, and/or (c) Licensee shall terminate such Authorized User's access to the Licensed Materials upon Licensor's request. Licensor shall take none of the steps described in this paragraph without first providing reasonable notice to Licensee (in no event less than thirty (30) days) and cooperating with the Licensee to avoid recurrence of any unauthorized use.

c. Maintaining Confidentiality of Access Passwords. Where access to the Licensed Materials is to be controlled by use of passwords, Licensee shall issue log-on identification numbers and passwords to each Authorized User and use reasonable efforts to ensure that Authorized Users do not divulge their numbers and passwords to any third party. Licensee shall also maintain the confidentiality of any institutional passwords provided by Licensor.

10. Mutual Performance Obligations

a. Confidentiality of User Data and Pricing. Licensor and Licensee agree to maintain to the extent provided by public record law, the confidentiality of any data relating to the usage of the Licensed Materials by Licensee and its Authorized Users. Such data may be used solely for purposes directly related to the Licensed Materials and may only be provided to third parties in aggregate form. Raw usage data, including but not limited to information relating to the identity of specific users and/or uses, shall not be provided to any third party.

b. Implementation of Developing Security Protocols. Licensee and Licensor shall cooperate in the implementation of security and control protocols and procedures as they are developed during the term of this Agreement.

11. Termination for Cause

a. In the event that either party believes that the other materially has breached any obligations under this Agreement, or if Licensor believes that Licensee has exceeded the scope of the License, such party shall so notify the breaching party in writing. The breaching party shall have thirty (30) days from the receipt of notice to cure the alleged breach and to notify the non-breaching party in writing that cure has been effected. If the breach is not cured within the thirty (30) days, the non-breaching party shall have the right to terminate the Agreement without further notice.

b. Upon termination of this Agreement for cause, online access to the Licensed Materials by Licensee and Authorized Users shall be terminated. Authorized print copies of Licensed Materials may be retained by Licensee or Authorized Users and used subject to the terms of this Agreement.

c. In the event of termination by Licensee for cause, Licensee shall be entitled to a refund of any fees or pro-rata portion thereof paid by Licensee for any remaining period of the Agreement from the date of termination.

12. Limited Warranty.

Licensor warrants that it has the right to license the rights granted under this Agreement to use Licensed Materials and that it has obtained any and all necessary permissions from third parties to license the Licensed Materials. Except for the express warranties stated herein, the Licensed Materials are provided on an "as is" basis, and Licensor disclaims any and all other warranties, conditions, or representations (express, implied, oral or written), relating to the Licensed Materials or any part thereof, including, without limitation, any and all implied warranties of quality, accuracy, completeness, currency, performance, merchantability or fitness for a particular purpose. BNA DOES NOT WARRANT THAT THE LICENSED MATERIALS ARE ERROR-FREE IN CONTENT. Licensor makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb or other such computer program. Licensor further expressly disclaims any warranty or representation to Authorized Users, or to any third party.

13. Indemnification

a. Subject to the Limited Warranty stated above, BNA will indemnify and hold Licensee harmless and will defend or settle any claim, suit or proceeding brought against Licensee that is based upon a claim that the content contained in the Licensed Materials infringes a United States copyright or violates an intellectual or proprietary right protected by United States law ("Claim"), but only to the extent the Claim arises directly out of the use of the Licensed Materials. Licensee shall notify BNA in writing of any Claim within ten (10) calendar days after Licensee first receives notice of the Claim, and Licensee shall provide to BNA at no cost with such assistance and cooperation as BNA may reasonably request from time to time in connection with the defense of the Claim. BNA shall have sole control over any Claim (including without limitation the selection of counsel and the right to settle on behalf of Licensee on any terms BNA deems desirable in the sole exercise of its discretion). Licensee may, at its sole cost, retain separate counsel and participate in the defense or settlement negotiations. BNA shall pay actual damages and costs awarded against Licensee (or payable by Licensee pursuant to a settlement agreement) in connection with a Claim. If the Licensed Materials or their use becomes subject of a Claim or their use is enjoined, or if in the opinion of BNA's legal counsel the Licensed Materials are likely to become the subject of a Claim, BNA shall attempt to resolve the Claim by using commercially reasonable efforts to modify the Licensed Materials or obtain a license to continue using the Licensed Materials. If in the opinion of BNA's legal counsel the Claim, injunction, or potential Claim cannot be resolved through reasonable modification or licensing, BNA, at its own election, may terminate the Agreement without penalty, and will refund to Licensee on a pro rata basis any fees paid in advance by Licensee to BNA. BNA shall have no obligation under this provision, if the Claim is based on a combination of material, content, Licensed Materials or software not provided by BNA. THE FOREGOING CONSTITUTES BNA'S SOLE AND EXCLUSIVE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT.

b. IN NO EVENT MAY LICENSEE BRING ANY CLAIM OR CAUSE OF ACTION AGAINST BNA MORE THAN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.

14. Limitations on Damages

Neither party shall be liable for any indirect, special, incidental, punitive or consequential damages, including but not limited to loss of data, business interruption, or loss of profits, arising out of the use of or the inability to use the Licensed Materials. Licensor makes no representation or warranty, and expressly disclaims any liability with respect to the content of any Licensed Materials, including but not limited to errors or omissions contained therein, libel, infringement of rights of publicity, privacy, trademark rights, moral rights, or the disclosure of confidential information.

IF THE FOREGOING LIMITATIONS ARE HELD TO BE UNENFORCEABLE, BNA'S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT TO LICENSEE OR ANY OTHER PERSON OR ENTITY SHALL IN ANY EVENT NOT EXCEED THE AMOUNT OF FEES PAID BY LICENSEE FOR THE LICENSED MATERIALS.

15. Additional Matters.

a. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Licensee's state.

b. Dispute Resolution. In the event any dispute or controversy arising out of or relating to this Agreement, the parties agree to exercise their best efforts to resolve the dispute as soon as possible. The parties shall, without delay, continue to perform their respective obligations under this Agreement that are not affected by the dispute.

c. Force Majeure. Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected.

d. Entire Agreement. This Agreement and the University Addendum constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter hereof, whether oral or written.

e. Amendment. No modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Licensor and Licensee.

f. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

g. Waiver of Contractual Right. Waiver of any provision herein shall not be deemed a waiver of any other provision herein, nor shall waiver of any breach of this Agreement be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.

h. Notices. All notices given pursuant to this Agreement shall be in writing and may be hand delivered, or shall be deemed received within 5 business days after mailing if sent by registered or certified mail, return receipt requested. If any notice is sent by facsimile, confirmation copies must be sent by mail or hand delivery to the specified address. Either party may from time to time change its Notice Address by written notice to the other party.

i. Assignment. Licensee may not assign or sublicense this Agreement without BNA's prior written consent

IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the subscription start date.

THE BUREAU OF NATIONAL AFFAIRS, INC. / Arizona Board of Regents on Behalf of UNIVERSITY OF ARIZONA