AbeBooks Database (Search Web Services) License Agreement
General Terms & Conditions
Version Date: April 15, 2008
These general terms and conditions and the online application form (collectively, this "agreement") govern access to and use of AbeBooks' Search Web Services, systems, inventory, content and marks (each defined below). Applicant may not access or use AbeBooks' Search Web Services, systems, inventory, content and marks except pursuant to this agreement. If applicant does not accept and agree to this agreement, applicant may not access or use AbeBooks' Search Web Services, systems, inventory, content and marks.
AbeBooks owns and operates the "AbeBooks" website at www.abebooks.com (the "AbeBooks Site") that facilitates the sale by independent booksellers (the "Booksellers") of a constantly changing inventory of books and other items. Information regarding the inventory (the "AbeBooks Database") is contained on AbeBooks' computer systems (the "Systems") and may be searched remotely over the Internet through the use of software programs ("Search Programs") based upon a certain search Application Programming Interface (the "Search Web Services") as determined by AbeBooks.
1.2 This Agreement.
This Agreement allows Applicant to access and use the Search Web Services to create a Search Program to access the Systems and search the Database, and to use the search results (the "Search Results") and the trademarks "AbeBooksTM" and "abebooks.comTM" and such other marks as AbeBooks may in its discretion prescribe from time to time (collectively the "AbeBooks Marks") for the Permitted Purposes (defined in Section 2.1) only and strictly in accordance with this Agreement.
1.3 Other Agreements.
This Agreement is in addition to and supplements any written agreements that Applicant has with AbeBooks (now or in the future) concerning Applicant's dealings with AbeBooks generally or regarding other matters (the "Other Agreements"). If there is any inconsistency or conflict between the provisions of this Agreement and the Other Agreements: (a) the provisions of this Agreement will govern regarding access to and use of the Search Web Services, Search Program, Systems, Database, Search Results, AbeBooks Marks and related matters; and (b) the provisions of Other Agreements will govern regarding all other matters.
2. LICENSE, RESTRICTIONS AND REQUIREMENTS
2.1 Permitted Purposes.
In this Agreement, "Permitted Purposes" means: (i) allowing individual users of Applicant's Site to use the Search Program to submit search queries to the Systems in order to search the Database for specific books or other items; (ii) displaying Search Results on Applicant's Site for viewing by the individual user that submitted the search query; and (iii) such other purposes as may be agreed to in writing by AbeBooks.
Subject to the provisions of this Agreement, AbeBooks hereby grants to Applicant a personal, revocable, royalty-free, non-exclusive, non-transferable, non-sublicensable, restricted and limited license (the "License") during the term of this Agreement to: (a) access and use the Search Web Services for the sole purpose of creating the Search Program for the Permitted Purposes; (b) use the Search Program for the sole purpose of accessing the Systems and searching the Database for the Permitted Purposes; (c) download, use and display Search Results retrieved through searches of the Database conducted using the Search Program for the Permitted Purposes; and (d) use the AbeBooks Marks as set forth in Section 2.3(d).
2.3 Restrictions and Requirements.
Notwithstanding any other provision of this Agreement, Applicant will not, directly or indirectly: (i) assign this Agreement or the License; (ii) act as a service bureau, assign, authorize, license, sublicense, grant, sell, resell, lend, lease, loan, transfer, publish, transmit, publicly display or perform, distribute, rent, create any interest in, or otherwise give or make available the Search Web Services or its functionality, the Search Program or its functionality, the Database, Search Results or the AbeBooks Marks to or for the benefit of any other person, with or without charge, except as necessary for the Permitted Purposes; (iii) disclose the Search Web Services, the Search Program, or Search Results to any other person except as may be necessary for the Permitted Purposes, (iv) alter, attempt to circumvent, destroy, obscure, or remove any notices, proprietary marks or codes, means of identification or digital rights management tools or information, or security or control measures on, in or in relation to the Search Web Services, Systems, Database, Search Results, or AbeBooks Marks; (v) use, or provide or permit access to or use of, the Search Web Services, Search Program, Systems, Database, Search Results or AbeBooks Marks except as expressly permitted in this Agreement; (vi) permit or assist any other person to use the Search Web Services, Search Program, Systems, Database, Search Results or AbeBooks Marks in any way that would constitute a breach of this Agreement; (vii) use the Search Web Services, Search Program, Systems, Database, Search Results or AbeBooks Marks to participate in or facilitate any transaction between any third party and either AbeBooks or any Bookseller regarding the purchase of any items listed in the Database, except for directing persons to the AbeBooks Site; or (viii) use the Search Web Services, Search Program, Systems, Database, Search Results or AbeBooks Marks in any manner or for any purpose that is critical or disparaging of AbeBooks or the AbeBooks Site or that might diminish or otherwise damage AbeBooks' reputation and goodwill, that implies sponsorship or endorsement by AbeBooks, that damages, disables, harms, overburdens or impairs any portion of the Systems, the Database, or the AbeBooks Site, or any other person's use and enjoyment of the Systems, the Database, the AbeBooks Site or the Internet generally, or has the potential to do any of the foregoing (as determined by AbeBooks in its discretion).
Notwithstanding any other provision of this Agreement, Applicant will not, directly or indirectly: (i) submit queries to the Systems or otherwise search the Database except as necessary to facilitate lawful, legitimate and good faith inquiries by third party users of Applicant's Site regarding the listing in the Database of specific books or other items; (ii) submit queries to, access or search the Systems or the Database using any means other than the Search Program, including without limitation any robots, spiders, crawlers, scraping or other similar technology; (iii) use the Search Web Services or the Search Program to access or search any computer Systems, database or website other than the Systems and the Database; (iv) submit an excessive number of queries to or searches of the Systems or the Database, or access an excessive amount of Search Results, that may damage, disrupt, compromise or degrade the integrity, efficiency, performance or security of the Systems, the Database or the AbeBooks Site; or (v) facilitate or permit any other person to do anything prohibited by items (i) to (iv) above.
(c) Search Results.
Applicant will ensure that all pages of Applicant's Site that disclose or display Search Results also provide hypertext links to the pages of the AbeBooks Site that correspond to the books and other items listed in the Search Results. Notwithstanding any other provision of this Agreement, Applicant will not, directly or indirectly: (i) make copies of, cache or otherwise store Search Results except as necessary for the Permitted Purposes, and provided that such copies or caches are permanently deleted and destroyed after they are no longer necessary for a Permitted Purpose and in any event no later than 24 hours after the Search Results were first downloaded from the Systems; (ii) distribute, disclose, display, or facilitate, enable or allow access to Search Results from any Internet website or resource other than Applicant's Site; (iii) distribute, disclose, display, or facilitate, enable or allow access to Search Results to any person except the person that submitted the query through Applicant's Site resulting in the Search Results; (iv) distribute, disclose, display, or facilitate, enable or allow access to any Search Results unless the Search Results was directly obtained from a search or query of the Database using the Search Program no more than 5 minutes before the Search Results is first disclosed or displayed; (v) change, revise, alter or otherwise modify any Search Results except for minor modifications necessary to properly display the Search Results on Applicant's Site for the Permitted Purposes, and provided that any such minor modifications do not in any way change the meaning of any Search Results; (vi) permit or enable any other person to copy or obtain Search Results from Applicant's Site in any unauthorized manner, including without limitation the use of robots, spiders, crawlers, scraping or other similar technology; (vii) transfer, assign, sublicense or otherwise give or create any interest in Search Results.
(d) AbeBooks Marks.
Upon notice from AbeBooks in its discretion at any time, Applicant will immediately cease using any or all AbeBooks Marks. Applicant will strictly comply with all directions and requirements provided to Applicant by AbeBooks in its discretion from time to time regarding use of AbeBooks Marks.
AbeBooks may require that Applicant use one or more unique codes (collectively "Codes") provided by AbeBooks to access and use the Search Web Services, Systems, Database, and Search Results. Applicant will ensure that Codes are kept confidential and not disclosed to or used by any other person except for a third party service provider in accordance with Section 2.5. Applicant is solely responsible for all use and misuse of Codes. Applicant will immediately notify AbeBooks if Applicant discovers or suspects any unauthorized disclosure or use of Codes. If AbeBooks in its discretion considers any Code to be insecure or to have been used inappropriately, then AbeBooks may immediately cancel any and all Codes without any notice or liability to Applicant or any other person.
2.5 Third Party Service Providers.
Applicant may engage a third party service provider to use the Search Web Services and Codes to create and maintain the Search Program on behalf of Applicant, provided that the service provider is approved in writing by AbeBooks and signs and delivers to AbeBooks a form (prescribed by AbeBooks) confirming the service provider's agreement to comply with all of the requirements of this Agreement (including without limitation all restrictions and requirements of Sections 2.3 and 3.11). Applicant is and will remain fully responsible and liable to AbeBooks for all acts and omissions of any and all third party service providers engaged by Applicant.
2.6 Review and Inspection.
AbeBooks may in its discretion: (a) require that Applicant submit the Search Program to AbeBooks for testing and approval before the Search Program is used; and (b) from time to time review and inspect Applicant's use of the Search Web Services, Codes, Search Program, Systems, Database, Search Results and AbeBooks Marks to verify the accuracy of the Search Program and otherwise verify Applicant's compliance with this Agreement. Applicant will fully cooperate with AbeBooks regarding any such testing, review and inspection, including without limitation providing AbeBooks with access to and use of the Search Program and all aspects of Applicant's Site and all related computer systems and data.
2.7 Ownership and Benefit.
As between Applicant and AbeBooks, AbeBooks owns and retains all right, title and interest, including all intellectual and industrial property rights, whether or not registered or registrable (including without limitation all copyrights, patents, moral rights, and trademark rights) in, to and associated with the Search Web Services, Codes, Systems, Database, Search Results and AbeBooks Marks and the goodwill pertaining thereto, and Applicant will not acquire any right, title or interest in, to or associated with the Search Web Services, Codes, Systems, Database, Search Results or AbeBooks Marks pursuant to this Agreement or otherwise, except for the License. Any and all benefit and goodwill associated with Applicant's use of the AbeBooks Marks will enure entirely to AbeBooks. Applicant will not at any time during or after the term of this Agreement directly or indirectly do anything or omit to do anything that might prejudice, impair, jeopardize, violate, adversely affect or infringe AbeBooks' ownership or rights and interests in, to or associated with the Search Web Services, Codes, Systems, Database, Search Results or AbeBooks Marks and any associated goodwill, including without limitation: (a) challenging the validity of the AbeBooks Marks; or (b) claiming, using or applying to register any trademark, service mark, trade name, copyright, design, telephone number, Internet domain name or universal resource locator (URL) in any jurisdiction that is identical or confusingly similar to, or derived from or based on, or incorporates any of the AbeBooks Marks.
Notwithstanding any other provision of this Agreement, nothing in this Agreement in any way limits, impairs or restricts AbeBooks' right and ability in its discretion from time to time to change and modify the Search Web Services, Codes, Systems, Database, Search Results, and AbeBooks Marks without any prior notice or liability to Applicant or any other person, and Applicant will promptly comply with and implement all such changes at Applicant's sole cost and expense.
3. APPLICANT'S REPRESENTATIONS AND OBLIGATIONS
In this Agreement: (a) "Claims" means claims, counterclaims, complaints, demands, causes of action, liabilities, obligations, damages, legal fees, costs, expenses, and disbursements, including without limitation reasonable attorneys' fees and court costs, of any nature or kind, whatsoever and howsoever arising, whether known or unknown, whether in law or in equity or pursuant to contract or statute, and whether in any court of law or equity or before any arbitrator or other body, board or tribunal; (b) "Proceedings" means actions, suits, proceedings, and hearings of any nature and kind in any court of law or equity or before any arbitrator or other body, board or tribunal; and (c) "Representatives" means past, present and future directors, officers, employees, lawyers, agents, subcontractors, representatives, successors, permitted assigns, heirs, executors, administrators, related persons and each of them.
Applicant represents and warrants to, and covenants with, AbeBooks as follows: (a) Applicant's entering into and performance of this Agreement will not conflict with, or result in the breach of, any express or implied obligation or duty (contractual or otherwise) that Applicant now or in the future has or owes to any other person; and (b) there is no pending or threatened Claim or Proceeding against Applicant or arising from, connected with or related to Applicant's Site, and to the best of Applicant's knowledge there is no basis for any such Claim or Proceeding.
3.3 Applicant's Site.
Applicant is solely responsible and liable for: (a) creating, operating, supporting and maintaining Applicant's Site; (b) obtaining, provisioning, configuring, supporting, maintaining, paying for and protecting all equipment and services necessary for Applicant to create, operate and maintain Applicant's Site and to use and display Search Results; (c) the content of Applicant's Site; and (d) the use of Applicant's Site by other persons. Applicant will ensure that throughout the term of this Agreement Applicant's Site and all of its content: (i) comply with all applicable laws and community standards; (ii) do not infringe or violate the rights (including intellectual property, industrial property, moral, privacy and publicity rights) of any person; (iii) are not directed to persons under 13 years of age; and (iv) do not contain, reference or distribute any statements, messages, images or other materials that are abusive, contain nudity, deceptive, defamatory, derogatory, discriminatory, false, fraudulent, harassing, harmful, hateful, indecent, objectionable, obscene, offensive, pornographic, profane, racist, sexist, sexually explicit, threatening, violent, vulgar, or otherwise objectionable, or which advocate, depict, encourage, or tend to incite any such conduct, the commission of a crime or other unlawful activities (including pyramid schemes); provided that items (ii), (iii) and (iv) above do not apply to Search Results.
3.4 Search Program.
Applicant is solely responsible and liable for: (a) creating, using and maintaining the Search Program; (b) obtaining, provisioning, configuring, supporting, maintaining, paying for and protecting all equipment and services necessary for Applicant to create, use and maintain the Search Program; (c) scanning for and preventing the receipt and transmission of viruses, trojan horses, worms or other destructive or disruptive components; and (d) maintaining complete and current backup and archival copies of all data contained on Applicant's computer system prior to accessing or using the Search Web Services or the Search Program.
3.5 Marketing and Publicity.
Except for the display on Applicant's Site of Search Results and related notices in accordance with this Agreement or another written agreement between Applicant and AbeBooks, Applicant will not directly or indirectly make, create, publish, distribute or transmit any oral, written or electronic materials or communications that directly or indirectly reference, advertise, or promote AbeBooks or the AbeBooks Site or contain any representations, warranties, conditions, promises or claims about AbeBooks or the AbeBooks Site without AbeBooks' express prior written consent to both the content of the materials and communications and the manner in which they will be published, distributed and transmitted. Without limiting the generality of the foregoing, Applicant will not: (a) include the AbeBooks Marks or any other reference to AbeBooks or the AbeBooks Site in Applicant's Site's domain name, URL, meta-tags or hidden text; or (b) state, suggest, or imply on Applicant's Site or otherwise any sponsorship, approval or endorsement of Applicant's Site by AbeBooks.
3.6 Notices of Problems/Errors and Changes.
Applicant will promptly notify AbeBooks of: (a) any malfunctioning or other problems or errors with or in the Search Web Services, Systems, Database or Search Results; and (b) any material changes in: (i) the nature and content of Applicant's Site; (ii) the ownership of Applicant's Site; and (iii) if Applicant is a corporation, partnership or other legal entity, the ownership or control (through shareholdings or otherwise) of Applicant.
3.7 No Transactions.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT AND UNLESS OTHERWISE AGREED TO IN WRITING BY ABEBOOKS, APPLICANT WILL NOT PARTICIPATE IN OR FACILITATE ANY TRANSACTION BETWEEN ANY THIRD PARTY AND ANY ABEBOOKS' BOOKSELLER REGARDING THE PURCHASE OF ANY ITEMS IN THE DATABASE EXCEPT FOR DIRECTING PERSONS TO THE ABEBOOKS SITE.
3.8 Collection of Personal Information.
3.9 Compliance with Laws.
Applicant will at all times comply with all applicable laws and regulations relating to Applicant, Applicant's business and other operations and activities, Applicant's Site, Applicant's access to and use of the Search Web Services, Codes, Search Program, Systems, Database, Search Results, AbeBooks Marks and the performance of Applicant's obligations under this Agreement, including without limitation all laws relating to personal information protection and privacy, international communications and the exportation and transmission of technical data and other regulated materials. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement, under no circumstances whatsoever will Applicant use any unsolicited email, faxes or other communications or other forms of spam to directly or indirectly reference, advertise, promote or distribute Applicant's Site, Search Results or AbeBooks Marks.
3.10 Costs and Expenses.
Applicant is solely responsible for any and all costs and expenses incurred directly or indirectly by Applicant or any other person arising from, connected with, or relating to Applicant's use of the Search Web Services, Codes, Search Program, Systems, Database, Search Results and AbeBooks Marks and the performance of Applicant's obligations under this Agreement.
The Search Web Services and all Codes are AbeBooks' confidential and proprietary information. Applicant will: (a) use the Search Web Services and the Codes only during the term of this Agreement and only as necessary for the purposes of this Agreement; (b) disclose the Search Web Services and the Codes only to such persons and only to the extent that such disclosure is necessary for the purposes of this Agreement; (c) both during and after the term of this Agreement, maintain the strict confidentiality of the Search Web Services and the Codes using the same degree of care as Applicant affords to Applicant's own confidential information of a similar nature which Applicant desires not to be published or disseminated, and in no event less than reasonable care, to prevent the unauthorized use or disclosure of the Search Web Services and Codes; and (d) ensure that all of Applicant's Representatives and third party service providers (if any) comply with the restrictions and requirements set forth in this Section 3.11.
Applicant will defend, indemnify and hold harmless AbeBooks and its Representatives from and against any and all Claims and Proceedings directly or indirectly arising from, connected with or relating to: (a) any negligence, misconduct, or breach of this Agreement by Applicant, Applicant's Representatives, third party services providers (if any) and any other person for whom Applicant is under this Agreement or in law responsible; or (b) Applicant's Site and its content and the use of Applicant's Site and its content by any other person. AbeBooks and its Representatives retain the right to participate in the defense of and settlement negotiations relating to any and all Claims and Proceedings with counsel of their own selection at their sole cost and expense, and Applicant will not settle any Claim or Proceeding without AbeBooks' prior written consent (not to be unreasonably withheld). Applicant will assist and co-operate as fully as reasonably required by AbeBooks and its Representatives in the defence of any and all Claims and Proceedings.
4. DISCLAIMERS AND LIABILITY EXCLUSIONS AND LIMITATIONS
4.1 GENERAL DISCLAIMER.
THE SEARCH WEB SERVICES, CODES, SYSTEMS, DATABASE, SEARCH RESULTS AND ABEBOOKS MARKS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF OR RELATING TO ACCURACY, ACCESSIBILITY, AVAILABILITY, CAPACITY, COMPLETENESS, DELAYS, DURABILITY, ERRORS, FITNESS FOR A PARTICULAR PURPOSE, LACK OF NEGLIGENCE, VIRUSES OR OTHER HARMFUL COMPONENT, ERRORS, OR INTERRUPTED SERVICE, MERCHANTABILITY, NON-INFRINGEMENT, PERFORMANCE, QUALITY, RESULTS, SECURITY, SERVICE, TIMELINESS, TITLE, UNINTERRUPTED SERVICE, VIRUSES OR WORKMANLIKE EFFORT, ALL OF WHICH ARE HEREBY DISCLAIMED BY ABEBOOKS TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ABEBOOKS DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT THE SEARCH WEB SERVICES, CODES, SYSTEMS, DATABASE, SEARCH RESULTS OR ABEBOOKS MARKS WILL MEET APPLICANT'S NEEDS OR BE FREE FROM ERRORS OR UNINTERRUPTED. IF APPLICANT IS DISSATISFIED WITH ANY OF THE SEARCH WEB SERVICES, CODES, SYSTEMS, DATABASE, SEARCH RESULTS OR ABEBOOKS MARKS, APPLICANT'S SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE THIS AGREEMENT.
4.2 NO FEES.
EXCEPT AS OTHERWISE AGREED TO IN WRITING BY ABEBOOKS, ABEBOOKS IS NOT OBLIGATED TO PAY OR PROVIDE ANY ROYALTY, FEE OR OTHER COMPENSATION OR CONSIDERATION TO APPLICANT OR ANY OTHER PERSON ARISING FROM, CONNECTED WITH OR RELATING TO THIS AGREEMENT OR APPLICANT'S USE OF THE SEARCH WEB SERVICES, CODES, SEARCH PROGRAM, SYSTEMS, DATABASE, SEARCH RESULTS OR ABEBOOKS MARKS.
4.3 LIABILITY EXCLUSIONS AND LIMITATION.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) ABEBOOKS' LIABILITY (IF ANY) UNDER THIS AGREEMENT OR OTHERWISE IS LIMITED TO DIRECT DAMAGES SUFFERED BY APPLICANT, AND IN NO EVENT WILL ABEBOOKS BE LIABLE TO APPLICANT OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSS OR DAMAGE, ARISING FROM, CONNECTED WITH, OR RELATING TO THIS AGREEMENT, THE SEARCH WEB SERVICES, CODES, SEARCH PROGRAM, SYSTEMS, DATABASE, SEARCH RESULTS OR ABEBOOKS MARKS OR OTHERWISE, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, INFORMATION, BUSINESS, MARKETS, SAVINGS, INCOME, PROFITS, USE, PRODUCTION, OR GOODWILL, ANTICIPATED OR OTHERWISE (INCLUDING WITHOUT LIMITATION BY REASON OF ANY EXPENDITURES, INVESTMENTS, LEASES OR COMMITMENTS MADE IN ANTICIPATION OF THE CONTINUANCE OR PERFORMANCE OF THIS AGREEMENT), OR ECONOMIC LOSS, UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LAW OR EQUITY), REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING (INCLUDING FUNDAMENTAL BREACH OR GROSS NEGLIGENCE) BY ABEBOOKS OR ANY PERSON FOR WHOM ABEBOOKS IS RESPONSIBLE, AND EVEN IF ABEBOOKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE BEING INCURRED; AND (B) IN NO EVENT WILL ABEBOOKS' TOTAL AGGREGATE LIABILITY TO APPLICANT OR ANY OTHER PERSON, UNDER THIS AGREEMENT OR OTHERWISE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING (INCLUDING FUNDAMENTAL BREACH OR GROSS NEGLIGENCE) BY ABEBOOKS OR ANY PERSON FOR WHOM ABEBOOKS IS RESPONSIBLE, AND EVEN IF ABEBOOKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE BEING INCURRED, EXCEED THE SUM OF $10 CDN; AND APPLICANT HEREBY RELEASES, REMISES AND DISCHARGES ABEBOOKS FROM ANY AND ALL CLAIMS AND PROCEEDINGS EXCLUDED OR LIMITED BY THIS PARAGRAPH 4.3. IN THIS PARAGRAPH 4.3, "ABEBOOKS" INCLUDES ABEBOOKS AND ITS REPRESENTATIVES.
4.4 FAIR ALLOCATION OF LIABILITY.
APPLICANT ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT REPRESENTS A FAIR ALLOCATION OF RISK AND LIABILITY.
5. DURATION, TERMINATION AND SUSPENSION
This Agreement is effective until terminated.
5.2 Automatic Termination.
This Agreement will immediately and automatically terminate without any notice to Applicant if: (a) Applicant materially breaches any provision of this Agreement; (b) the nature, content or structure of Applicant's Site changes in any material respect; (c) the domain name or URL of Applicant's Site changes; (d) ownership or control of Applicant's Site is transferred or assigned; (e) registered ownership of the domain name of Applicant's Site is cancelled, transferred or assigned; or (f) Applicant becomes insolvent, commits an act of bankruptcy, or makes an assignment for the benefit of creditors, or if a receiver or receiver-manager is appointed for Applicant or any of Applicant's assets, or if a proceeding in bankruptcy, receivership, winding-up, or liquidation is initiated by or against Applicant or Applicant's assets, or if Applicant ceases to carry on business or operate Applicant's Site.
5.3 Termination for Convenience.
Either party may in its discretion and for its sole convenience terminate this Agreement at any time, without any reason, and without any prior notice or liability to the other party or any other person, immediately upon notice to the other party. Applicant may deliver a notice of termination to AbeBooks by email to email@example.com. AbeBooks may deliver a notice of termination to Applicant at the email or postal address set forth in the Application Form or any other email or postal address Applicant may provide to AbeBooks or use in Applicant's communications with AbeBooks or at any email or postal address stipulated in a whois database maintained by the Internet domain name registrar responsible for the registration of any domain name used for Applicant's Site.
5.4 Consequences of Termination.
Immediately upon termination of this Agreement, the License will immediately terminate and Applicant will: (a) cease using and permanently delete and destroy all copies of the Search Web Services, Codes, Search Program, Search Results and AbeBooks Marks in Applicant's possession or control; and (b) within five (5) days thereafter deliver to AbeBooks a written confirmation that Applicant has complied with the foregoing. Notwithstanding any other provision of this Agreement to the contrary, the following provisions of this Agreement, and all other provisions necessary to their interpretation or enforcement, will survive indefinitely after the expiration or termination of this Agreement for whatever reason and will remain in full force and effect and be binding upon the parties as applicable: Sections 4 and 6 and paragraphs 2.7, 2.8, 3.10, 3.11, 3.12 and 5.4.
AbeBooks may in its discretion at any time during the term of this Agreement suspend Applicant's access to or use of any or all of the Search Web Services, Codes, Search Program, Systems, Database, Search Results and AbeBooks Marks, without any prior notice or liability to Applicant or any other person, if AbeBooks has reasonable grounds to believe that Applicant has breached this Agreement.
In this Agreement: (a) a reference to "this Agreement" and other similar terms refers to this Agreement (the Online Application Form and these General Terms and Conditions) as a whole, and not just to the particular provision in which those words appear; (b) headings in this Agreement are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions; (c) words importing persons include individuals, partnerships, associations, trusts, unincorporated organizations, societies, and corporations; (d) words importing the singular number only include the plural and vice versa; and (e) words importing any gender include all genders.
All rights not expressly granted under this Agreement are reserved to the parties. Notwithstanding any other provision of this Agreement, the arrangement and relationship between the parties are non-exclusive, and nothing in this Agreement in any way limits, impairs or restricts either party's right and ability, and each party reserves the right and ability from time to time in its discretion, to enter into similar arrangements with other persons, including without limitation in the case of AbeBooks to allow other persons to access and use the Search Web Services, Systems, Codes, Database, Search Results and AbeBooks Marks.
6.3 Enurement and Assignment.
The provisions of this Agreement will enure to the benefit of and be binding upon the parties and their respective Representatives. Applicant may not, by operation of law or otherwise, assign, transfer, delegate, sub-license or grant all or any part of this Agreement or Applicant's entitlements, rights, duties or obligations under this Agreement to any other person without AbeBooks' prior written consent, which consent may be withheld in AbeBooks' discretion. AbeBooks may assign this Agreement and its rights and obligations under this Agreement as it sees fit in its discretion.
6.4 No Waiver.
No consent or waiver by either party to or of any breach or default by the other party in its performance of its obligations under this Agreement will be: (a) effective unless in writing and signed by both parties; or (b) deemed or construed to be a consent to or waiver of a continuing breach or default or any other breach or default of those or any other obligations of that party.
6.5 Governing Law and Dispute Resolution.
This Agreement and all related matters will be governed by, and construed in accordance with, the laws of British Columbia, Canada and the laws of Canada applicable in British Columbia (excluding the United Nations Convention on Contracts for the International Sale of Goods and any rules of private international law or the conflict of laws which would lead to the application of any other laws), which is the proper law of this Agreement. All disputes between the parties arising from, connected with, or relating to this Agreement, the Search Web Services, Codes, Search Program, Systems, Database, Search Results or AbeBooks Marks (the "Disputes") will be determined by the courts of British Columbia, Canada sitting in the City of Victoria, British Columbia, Canada, and the parties each hereby irrevocably submit and attorn to the original and exclusive jurisdiction of those courts in respect of any and all Disputes.
If any provision of this Agreement is held to be invalid or unenforceable for any reason, then the provision will be deemed to be severed from this Agreement and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of any such severance this Agreement would fail in its essential purpose.
6.7 Relationship of Parties.
The parties are independent contractors, and nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, joint venture, agency, employment, or other similar relationship between the parties.
Except as expressly set forth in this Agreement, the parties' respective rights and remedies under this Agreement are cumulative and not exclusive of any other rights or remedies to which the parties may be lawfully entitled under this Agreement or at law or equity, and the parties will be entitled to pursue any and all of their respective rights and remedies concurrently, consecutively and alternatively.
6.9 Complete Agreement.
This Agreement sets forth the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes any and all previous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, between them with respect to the subject matter of this Agreement. This Agreement may be modified only by a written instrument signed by both parties or their successors or permitted assigns.
The parties expressly request and require that this Agreement and all other related documents be drawn up in the English language. Les parties conviennent et exigent expressement que ce Contrat et tous les documents qui s'y rapportent soient rediges en anglais.