This License Sales Agreement is made between Canadian Electronic Library, a corporation located in Ontario, Canada, ("CEL”) and You ("You" or "Your"). If you have registered for or on behalf of an entity, you are deemed to have accepted this Agreement on behalf of that entity.

The following meanings shall apply to capitalized terms used herein:

a.  “Authenticated Library” means an institution which has entered a Customer Agreement with CEL.

b.  “Customer Agreement” means the standard Canadian Electronic Library Order Terms and Conditions, attached as Schedule A.

c.  “Electronic Titles” consist of the Titles in digital format suitable for online viewing, printing and copying/pasting which have been licensed to CEL by Publisher.

d.  “FTE” or “Full-Time Equivalent” is a measure of the number of people reasonably expected to be authorized by a customer to access an Electronic Title or collection of Electronic Titles. The specific method of measurement may vary from market to market (e.g., a foreign university purchasing an English-language Perpetual Access Title might estimate the number of its students and faculty proficient in English; an institution that limits access to use within a physical library might estimate anticipated users based on a multiple of the number of computers available in such library).

e.  “Hosted Service” means a secure system providing access and viewing functionality as well as secure digital rights management functions sufficient to protect the Intellectual Property Rights of the Publisher, and providing, at a minimum, the level of security set out in Section 11. A Hosted Service may be operated by CEL or by an agent licensed by CEL or on behalf of CEL or by a Perpetual Access Customer.

f.  “License” has the meaning set forth in Section 1.

g.  “Licensed Access Titles” are Titles that Publisher intends for distribution via CEL’s Licensed Access Business Model.

h.  “Licensed Access Business Model” is a service designed to facilitate archiving, retrieving, viewing, copying/pasting and printing of Electronic Titles, also known as the Subscription Service.Through this model, Electronic Titles are posted by CEL and made accessible to its customers on a limited-term basis over the Internet through Web sites branded and/or operated by CEL or third parties. The model enables CEL to collect fees for individual transactions involving printing and copying/pasting, and/or to charge fees for limited-term online access to and use of the Electronic Titles.

i.  “Multiple-institution Consortium Sale”is an arrangement to provide access to Perpetual Access Titles to more than one legally-distinct entities or institutions which have combined to license the Titles at reduced pricing based on a volume purchase.

j.  “Perpetual Access” is a perpetual right, subject to certain terms and conditions, held by a Perpetual Access Customer, to make a Perpetual Access Title available to its authorized end-users through a Single Viewer Usage Model or a Multiple Viewer Usage Model.

k.  “Perpetual Access Business Model” is the sale of a set of rights by CEL that includes Perpetual Access to certain Perpetual Access Titles, and may also include the right to access copies of such Perpetual Access Titles from a Secure Archive, in the event that the Service through which the customer had purchased Perpetual Access becomes unavailable to the customer.

l.  “Perpetual Access Customers” are individuals or single corporations or institutions that have purchased access to Perpetual Access Titles through the Perpetual Access Business Model. Cooperative purchasing groups or consortia are not defined as customers for purposes of payment to publishers.

m.  “Perpetual Access Titles” are Titles that Publisher has designated as approved for distribution under CEL’s Perpetual Access Business Model.

n.  “Publisher Retail Book Price” is the published price of a Perpetual Access Title, as determined by Publisher and communicated to CEL from time to time as described in this Agreement.

o.  “Secure Archives” are archives maintained by CEL or a reputable third party under contract with CEL and subject to confidentiality and file-protection obligations comparable to CEL’s obligations to Publisher as set out in Section 11.

p.  “Service” means the services provided by CEL to a customer, namely the distribution of Licensed Access Titles and Perpetual Access Titles, the provision of a Hosted Service and Secure Archives, and the licensing of the Ebrary software enabling a customer to access Electronic Titles in accordance with the Customer Agreement.

q.  “Titles” means the books, serials, or other literary work(s), graphics, cover art or other images distributed there with that are submitted to CEL by Publisher or Publisher’s agent.

”Publisher is the owner or rightful licensee of the electronic publication and distribution rights to the books, serials, or other literary work(s), graphics, cover art or other images distributed therewith that are submitted to CEL by Publisher or Publisher’s agent, and Publisher controls electronic publication and electronic distribution rights to the Titles.

CEL desires to acquire the right to market and license the Electronic Titles in digital format (pursuant to the terms of Exhibit B to this Agreement) suitable for online viewing, printing and copying/pasting on a Hosted Service through CEL's Licensed Access and Perpetual Access Business Models.

Publisher desires to grant CEL a license on the terms and conditions set forth below. Therefore, in consideration of the mutual promises set forth below, CEL and Publisher hereby agree as follows:

(a) Publisher will provide to CEL all Titles listed in the Title Schedule, in the manner described in Exhibit B.

(b) Once CEL has sold a customer the right to access a Title under the Perpetual Access License, Publisher may not under any circumstances compel CEL to modify or withdraw such Title from such customer, except as set out in subsection 6(d) and subsection 9(b), and except in accordance with the Customer Agreement in the event a customer is in breach of its obligations thereunder..

(a) Subject to the rights licensed by this Agreement, as between the parties, Publisher shall retain all copyrights, trademarks and all other proprietary rights associated with the Titles, including but not limited to the text of the Title and any illustrations contained in the Title and including without limitation for performance and display (i) in any manner intended to make the Title available in visual form for reading (whether sequentially or non-sequentially and together with the accompanying sounds and images, if any),and (ii) by any electronic device or medium to include any device or medium for electronic reproduction, publication, distribution or transmission.

(b) CEL asserts and agrees that all digital files provided by Publisher under this Agreement are owned by Publisher. CEL may make modifications to the files necessary to render them compatible with its software system. However, CEL shall ensure that no changes are made to the content of the Title files during the submission process and will promptly correct any errors or omissions in its electronic versions that may result from the submission process.

(c) Publisher acknowledges that users of the Service may view less than an entire Electronic Title. CEL does not guarantee that any user of the Service will access or use any of the Titles. CEL warrants that a page limit of 10% of the Title will be placed on the printing or copying/pasting of any Electronic Title by users and that this limitation will be strictly enforced by CEL.

(d) If requested by Publisher, CEL may act as its agent specifically to deposit copies of the Titles to an escrow or legal deposit site in order to fulfill any legal or archival obligations that may arise as part of the delivery of the Service.

(a) Fees Due. CEL will pay fees as set forth in Exhibit C.

(b) Publisher Library eBook Price. In the metadata submitted for each Perpetual Access Title, Publisher will specify the Publisher Library eBook Price for in Canadian Dollars. Except as otherwise agreed by CEL, Publisher may change the Publisher Library eBook Price associated with a Perpetual Access Title no more than once annually, upon sixty (60) days’ prior written notice to CEL. Except as otherwise agreed by CEL, changes to a Publisher Library Book Price will not affect CEL’s payment obligations in connection with orders received by CEL from its customers before the 60 day notice period has elapsed.

(c) Competitive Prices and Fees. During the term of this Agreement, the Publisher Library eBook Price specified by Publisher for a particular Title will be equal to the lowest such price specified by Publisher in connection with any distribution of such Title to libraries through any digital medium.

(a) CEL will provide a written statement to Publisher on a calendar semi-annual basis, specifying which portion of each payment to Publisher is attributable to which Title. The statement will accompany the payment, if any, due to the Publisher pursuant to Exhibit C, but CEL will provide a statement for each calendar period, regardless of whether any payment is due.

(b) Once annually, upon thirty (30) days’ notice, Publisher shall have the right to have certified public or chartered accountants audit CEL’s accounting records necessary to calculate fees due hereunder during normal business hours. Such audit shall be at Publisher’s expense unless accounting errors amounting to ten percent (10%) or more of the total sums accruing to Publisher during the year in question shall be found to Publisher’s disadvantage. For each such occurrence, CEL shall bear the cost of the audit, and payment of the amount due shall be made to Publisher within thirty (30) days’ notice to CEL of the deficiency, provided there is no dispute regarding the audit.

(a) The term of this Agreement will commence on the Effective Date of this Agreement and shall continue for three (3) years after the Effective Date (the “Initial Term”). Upon the expiration of the Initial Term, this agreement will be automatically renewed for successive one (1) year terms (“Renewal Terms”) unless either party gives the other notice of termination at least ninety (90) days prior to the expiration of the Initial Term or the then-current Renewal Term.

(b) Either party may terminate this Agreement upon written notice to the other in the event the other party (a) becomes insolvent,(b) files a petition in bankruptcy, (c) makes an assignment for the benefit of its creditors, or (d) breaches any of its material obligations hereunder and fails to cure the breach within 30 days after receipt of written notice of such breach. 

(c) CEL shall provide at least 30 days’ prior written notice to Publisher in the event of a proposed change of control of CEL, or any assignment of this Agreement by CEL pursuant to Section 13 below, and Publisher shall then have a period of 30 days after receipt of such notice within which to choose to terminate this Agreement. If Publisher chooses to terminate this Agreement pursuant to this subsection 6(c), then Publisher shall give CEL written notice of termination within such 30-day period.

(d) CEL shall remove all Titles from the CEL database within one hundred and twenty (120) business days after termination of this Agreement for any reason. However, subject to Section 9, CEL may continue to retain and use copies of Perpetual Access Titles as reasonably necessary to permit CEL to continue servicing Perpetual Access Customers that ordered such Perpetual Access Titles prior to termination of this Agreement, provided that CEL is in compliance with Section 11.

(e) Sections 1 (b) (provided however that no new Perpetual Licenses may be granted following termination of the Agreement), 2(c) 3, 4, 5, 6, 7, 8,9, 10, 11, 12 and 13 of this Agreement will survive termination of this Agreement. Termination of this Agreement under any provision of this Section 6 shall not relieve CEL of the obligation to pay any monies then due, or that become due, from CEL to Publisher in accordance with Exhibit C.

CEL agrees that it will not use the content of any Title without crediting the Title by referring to the name and publisher of the Title, and the name(s) of author(s) or editor(s) of the Title. CEL will not, and will require that its customer and their authorized users do not, tamper with or remove the copyright notice for each Title that appears in the printed version of the Title.

(a) CEL is under no obligation to review or edit the Titles or any other licensed materials, whether for accuracy of content or the presence of any infringing or libelous material, but CEL will promptly inform Publisher upon learning of any inaccuracy or infringing or libelous material.

(b) If Publisher discovers that any Title, portion thereof or other licensed material contains material errors, or is (or could be subject to a claim that it is) defamatory, obscene, invades the right of privacy, or infringes any right of any person or entity, Publisher may request that such Title, portion thereof or other licensed material be deleted, corrected or made inaccessible. In such event, CEL will use reasonable efforts to comply with Publisher’s request within two (2) business days. In the event such Title is a Perpetual Access Title to which a customer has been previously granted a Perpetual License, then, at the option of Publisher, either Publisher must at its own cost provide a replacement copy of the Perpetual Access Title which CEL shall then provide to each such Perpetual Access Customer who acquired such Title, or each Perpetual License for such Title shall be terminated and Publisher shall pay to CEL all fees previously paid by CEL to Publisher with respect to such Title and CEL shall refund all fees to customers who previously acquired Perpetual Access to such Title.

(c) CEL shall immediately withdraw access to all Titles from, and demand return of all copies of Perpetual Access Titles (including without limitation those in Secure Archives) by any customer who is in breach of the Customer Agreement.

(a) In the event that the Parties have entered into a Non-Disclosure Agreement (“NDA”), the Parties agree that their obligations under the NDA will apply to information related to this Agreement.

(b) If the Parties have not entered into a Non-Disclosure Agreement (“NDA”), Publisher acknowledges that by reason of its relationship with CEL hereunder, it may have access to certain of CEL's information and materials (including but not limited to business plans, customer information, technology, and marketing strategies) that is confidential and of substantial value to CEL, which value would be impaired if such information were disclosed to third parties. Publisher agrees that it will not use in any way for its own account nor for the account of any third party, nor disclose to any third party, any such information revealed to it by CEL. Publisher will not reverse engineer, disassemble, or decompile any software or technology embodying CEL's confidential information. Publisher further agrees that it will take every reasonable precaution to protect the confidentiality of such information. In the event of termination Publisher promptly will return or destroy all confidential information, and will provide CEL with written confirmation that it has done so. Upon any breach or threatened breach of this section, CEL shall be entitled to injunctive relief.

(c) CEL will not disclose to any third party the fees paid by it to Publisher, without Publisher’s prior written consent.

(d) Each party may disclose the existence of this Agreement, but each party agrees not disclose the terms and conditions of this Agreement to any third party except (i) as required by any court or other governmental body;(ii) as otherwise required by law; (iii) to legal counsel of the Parties; (iv)in confidence, to authors, agents, accountants, banks, and financing sources and their advisors; (v) in connection with the enforcement of this Agreement or rights under this Agreement; or (vi) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction.

CEL will offer the Titles for access only through a Hosted Service, which will stream content to end users. CEL will ensure that the Hosted Service and the servers used in the Service deliver only one page at a time to users. CEL will also at all time use software which (i) effectively and accurately monitors and regulates printing, copying and other functions, as well as how many users are permitted to access and are accessing a particular Title at once, and (ii) authenticates users, to make sure that unauthorized users (people from outside the licensed institution) cannot access the Title. CEL will also ensure that no person uses any Title in any digital format other than as provided by CEL, and that no person accesses or uses any Electronic Title other than through the CEL/Ebrary site. Electronic Titles as discrete files will never be provided to end users without digital rights management protection which will remove files from personal devices after a limited lending period. Electronic Titles as discrete files will be provided to institutional Perpetual Access licensees for archival purposes only. Where these are provided, they will be subject to a license agreement which requires the licensee to maintain the files only in a secure Hosted Service environment which provides commercially-acceptable security and detection capabilities to prevent unauthorized access to and reproduction of Titles. In the event its security or detection systems become violated to such an extent that Publisher’s copyrights in the Titles are being infringed, CEL shall take immediate steps to correct this problem, and shall terminate such customers’ rights to maintain the files if the problem is not immediately corrected. Nothing in this Agreement will be construed to prevent Publisher from pursuing any recourse or remedy available to it in the event of any infringement of its copyright in the Titles.

Except for third-party damages arising out of Section 7,damages arising out of breach of Section 11 and damages arising out of any deliberate breach of this Agreement by CEL, neither Party shall be liable to the other Party for any incidental, consequential, indirect or special damages or lost or imputed profits or royalties arising out of this Agreement or its termination, whether liability is asserted in contract or tort (including negligence) and irrespective of whether the Party has been advised of the possibility of any such loss or damage. In no event will either Party’s cumulative liability under this Agreement (excluding CEL’s obligation to pay fees under Exhibit C) exceed the amount paid by CEL to Publisher during the Initial Term. This limitation is an essential element of this Agreement, on which the fees agreed to herein are predicated.

(a) Assignment. The Parties may not assign this Agreement without the express written consent of the other party, not to be unreasonably withheld or delayed, except as follows:

(i) Publisher may assign its rights and obligations hereunder as to any Title(s) to any assignee (“Assignee”) that acquires from Publisher sufficient rights to grant the licenses and make the representations and warranties made by Publisher hereunder. CEL will begin sending payments and reports regarding such Title(s) to such Assignee within a commercially reasonable time after receiving written notice of the assignment and the affected Title(s); and

(ii) Subject to subsection 6(c) above, CEL may assign this Agreement to a successor in interest (or its equivalent) of all or substantially all of its relevant assets, whether by sale, merger, or otherwise, except to an entity whose principal business competes with Publisher.

Any attempted assignment contrary to the provisions of this paragraph shall be null and void. This Agreement shall be binding upon and inure to the benefit of the Parties' permitted successors and assigns

(b) Notices. Any notices or communications regarding breach or termination of this Agreement shall be in writing, delivered by hand, courier, or email with return receipt requested, to the Address for Notices set forth below, or such other address as either party may from time to time designate in writing. Notices shall be deemed effective when delivered.

(c) Governing Law; Disputes. This Agreement shall be governed by the laws of the Province of Ontario, without reference to conflicts of laws principles. All disputes arising under or related to this Agreement will be adjudicated exclusively in the Province of Ontario, and each party consents to personal jurisdiction and service of process in Ontario in connection with such disputes.

(d) Waiver. No waiver of any right under this Agreement will be valid unless in writing and signed by the waiving party. Neither party’s failure to exercise any right or hereunder will operate or be construed as a continuing waiver.

(e) Severability. If any provision of this Agreement is unenforceable under applicable law, such term or condition shall be modified to the minimum extent necessary to conform to the law. The modified provision and all other provisions of the Agreement shall remain in full force and effect.

(f) Independent Contractors. It is expressly agreed that CEL and Publisher are and shall be independent contractors and that the relationship between the Parties shall not constitute a partnership or agency of any kind. Neither CEL nor Publisher shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other, without the other party’s prior written authorization.

(g) Entire Agreement: This Agreement and the Non-Disclosure Agreement (if any) referred to in Section 10 set forth the entire agreement between the Parties with respect to the subject matter hereof, and supersede all prior agreements and understandings between the Parties, whether written or oral. This Agreement may not be modified except in writing signed by the party against which its enforcement is sought.