Application Programming Interface License Agreement

OverDrive, Inc. Application Programming Interface License Agreement

This OverDrive Application Programming Interface License Agreement (“API Agreement”) contains the terms and conditions that govern Your access to and use of the OverDrive Application Programming Interface (“OverDrive API”) to interface with Your website(s), catalog(s), app(s), and/or software application(s), as applicable (collectively referred to as “Your Services”), to provide access to and use of OverDrive-hosted digital content and metadata and OverDrive’s hosted websites, apps, and platforms (collectively referred to as “OverDrive Services”). “OverDrive” means OverDrive, Inc. or any of its affiliate companies, as applicable. “You” or “Your” means the applicant and any other OverDrive approved third parties employed or directed by You or acting as Your agent who will utilize the OverDrive API under this API Agreement and be subject to the terms and conditions of this Agreement.

By accessing or using the OverDrive API, You (a) agree to be bound by this API Agreement and any incorporated documents; (b) acknowledge and agree that You have independently evaluated the desirability of using the OverDrive API in Your Services and are not relying on any representation, guarantee, or statement other than as expressly set forth in this API Agreement; (c) hereby represent and warrant that You are lawfully able to enter into contracts and that You have the authority to bind the party being issued Client Credentials (as defined in Section 3.1 of this OverDrive API Agreement); (d) hereby represent and warrant that any end user data, including but not limited to email addresses, Your Services communicate to OverDrive has been collected according to all relevant laws including the Children’s Online Privacy Protection Act (COPPA); and (e) acknowledge and agree that OverDrive may immediately terminate this API Agreement as set forth herein and pursue any and all additional remedies, including but not limited to suspending or revoking the license granted to You under the terms of this API Agreement and blocking Your web-traffic. If this API Agreement is being agreed to by a company or other legal entity, then the person signing this API Agreement on behalf of that company or entity hereby represents and warrants that they are authorized and lawfully able to bind that company or entity to this API Agreement.

1. GRANT OF LICENSE

1.1. Subject to the terms set forth in this API Agreement, OverDrive grants You a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to (a) access and use the OverDrive API (in unaltered object code form) to receive information related to the OverDrive Services in accordance with this API Agreement and (b) display digital content solely in Your Services (“Permitted Purpose”). You shall not access and/or use the OverDrive API or OverDrive Services for any purpose other than the Permitted Purpose.

1.2. You may utilize a technical services provider (“Provider”) to integrate and/or implement the OverDrive API(s) into Your Services. Provider is solely responsible for any costs or expenses, incurred by Provider, resulting from Provider’s integration with the OverDrive API. Provider shall comply with the terms and conditions as set forth in this API Agreement. In the event that OverDrive determines, in its sole discretion, that Provider fails to comply with these terms and procedures, OverDrive may terminate this API Agreement with immediate effect and pursue any and all additional remedies, including suspending or revoking this license and blocking Your web-traffic.

1.3. You shall only provide access to and use of the OverDrive Services using the OverDrive API, under the terms of this API Agreement. In the event OverDrive determines, in its sole discretion, that You are using any unauthorized method to access and/or use the OverDrive Services, OverDrive may terminate this API Agreement with immediate effect and pursue any and all additional remedies, including suspending or revoking the license and blocking Your web-traffic.

1.4. You shall require all customers, partners, business users, libraries, and other similar entities that utilize Your Services to follow OverDrive instructions for interaction with the OverDrive API, including but not limited to an application and acknowledgment of terms via OverDrive’s online portal: https://developer.overdrive.com/application

1.5. You shall comply with the OverDrive Privacy Policy, including all future amendments or modifications thereto, found here: http://company.overdrive.com/privacy-policy/

1.6. In consideration for access to and use of the OverDrive API, You agree to provide OverDrive with data as detailed in Section 2.1.13.

2. OVERDRIVE INTEGRATION REQUIREMENTS

2.1. To access and use the OverDrive Services via the OverDrive API, You shall:

2.1.1. Call the OverDrive API to receive updated metadata and other information no less than once every twenty-four (24) hours;

2.1.2. Update any and all title changes and remove from Your Services digital content that is no longer available for access as communicated by OverDrive through the OverDrive API, if applicable, within twenty-four (24) hours;

2.1.3. Adhere to territorial and geographic rights and restrictions regarding the access of digital content to end users, if applicable;

2.1.4. Honor all DRM permissions (e.g., restrictions on expiration of license, sharing of files, cut/paste functionality, restrictions on printing, etc.) related to the digital content as communicated by OverDrive;

2.1.5. Provide a direct and prominent link to the OverDrive-hosted title record for each item of digital content in your discovery, catalog, or mobile app either through the MARC record 856 link or through another discovery layer as pre-approved in writing by OverDrive;

2.1.6. Enable search features, including but not limited to, quick search, search by title/author, advanced search and other methods of searching for OverDrive supplied digital content;

2.1.7. Provide feature lists, subject lists, and any other mechanisms to aid in browsing digital content;

2.1.8. Provide the end user a link to the OverDrive-hosted website where digital content is available for the end user and, in the case of Your Services, provide access for end users to "check out" digital content with a valid library card, if applicable;

2.1.9. Ensure that any displayed data accurately represents the data supplied by OverDrive for the corresponding digital content;

2.1.10. Display samples and/or all available excerpts of the digital content, as provided by OverDrive;

2.1.11. Provide links to full reviews and/or additional metadata for digital content, if truncated;

2.1.12. Provide any and all customer and technical support to end users for Your Services;

2.1.13. Provide OverDrive all session data related to Your Services that in any way trigger, call, or interact with OverDrive APIs and associated data in a similar quality and quantity as would be available accessing and using the OverDrive Services and on OverDrive-hosted pages. You shall provide session data to OverDrive for immediate use upon demand by OverDrive. Session data that You provide to OverDrive shall include but not be limited to: web traffic data, search terms, circulation activity, appropriately anonymized patron or customer zip code or similar geolocation, browsing activity, and other available data;

2.1.14. If available, provide, at no cost to OverDrive, data related to content and materials available from sources other than OverDrive, including libraries’ physical materials;

2.1.15. Display mutually agreed upon attribution to OverDrive in all end-user facing applications;

2.1.16. Include a link to Your privacy policy or OverDrive’s privacy policy, as detailed at http://company.overdrive.com/privacy-policy/, and notify end users that OverDrive’s privacy policy is incorporated into Your privacy policy, as applicable;

2.1.17. Use any end user email address obtained through the OverDrive API and/or OverDrive Services only for the purpose of providing the end user with information related to the OverDrive Services that the end user has requested to receive (e.g., library hold availability); and

2.1.18. Immediately remove from any interface and any data repository in Your possession or under Your control, any end user data obtained through the OverDrive API and/or OverDrive Services which is not explicitly identified in writing by OverDrive as being storable, including pursuant to notifications received from interface uninstall event handlers; and

2.1.19. At OverDrive’s request, provide an installation of Your software that has been designed to use OverDrive Services.

2.2. You shall not, and will not assist or enable others to:

2.2.1. Access, operate, copy, rent, lease, sell, repair, transfer, assign, sublicense, dissemble, reverse engineer or decompile, modify or alter any part of the OverDrive API;

2.2.2. Sell, rent, bundle, or use samples of excerpts of the digital content provided by OverDrive except as an integrated component of the intended and approved use of OverDrive APIs;

2.2.3. Access and/or use the OverDrive API for any benchmarking or competitive purposes;

2.2.4. Modify the OverDrive Services in any way, including but not limited to adding to, deleting from, or otherwise altering any OverDrive provided digital content and/or OverDrive provided metadata, including adding additional information (e.g. inserting additional words into the OverDrive provided descriptions of digital content). Notwithstanding the forgoing, You may (a) resize digital content graphic images in a manner that maintains the original proportions of the image or, in the case of reviews or additional metadata fields for the digital content, (b) truncate the reviews and/or additional metadata fields in a manner that does not materially alter the meaning of the text or cause the text to become factually incorrect or misleading; and (c) allow users of Your Services to post reviews, comment on, or upload other user-generated material within Your Services;

2.2.5. Combine OverDrive-provided digital content and/or metadata with content and/or metadata of any third party for the purpose of providing the download of digital content from somewhere other than OverDrive Services. For avoidance of doubt, You may include OverDrive provided metadata in a catalog, OPAC and search results alongside metadata from third parties;

2.2.6. Access and/or use the OverDrive API to establish end user identities or customer profiles;

2.2.7. Issue any press release or make any other public communication, without OverDrive’s prior approval, with respect to the API Agreement or Your access to and/or use of the OverDrive API and/or OverDrive Services;

2.2.8. Access and/or use the OverDrive API and/or OverDrive Services in any manner or for any purpose that may knowingly violate any law or regulation, or any right of any person including, but not limited to, intellectual property rights, rights of privacy and/or rights of personality, or which otherwise may be harmful (in OverDrive’s sole discretion) to OverDrive, its providers, its suppliers, and end users of Your Services;

2.2.9. Access and/or use the OverDrive API and/or OverDrive Services in a manner that impacts the stability of OverDrive’s servers, impacts the behavior of other mobile applications, software, applications and/or websites using the OverDrive API and/or OverDrive Services, and/or impacts the integrity of data in OverDrive reports, as determined by OverDrive in its sole discretion;

2.2.10. Access and/or use the OverDrive API in a manner that exceeds reasonable request volume, attempts to create a denial of service response, and/or constitutes excessive or abusive usage as determined by OverDrive, in its sole discretion;

2.2.11. Access and/or use the OverDrive API and/or OverDrive Services to market to or divert visitors and/or users and/or potential visitors and users of the OverDrive Services, and create or disclose metrics about, or perform any statistical analysis of, the OverDrive API and/or OverDrive Services;

2.2.12. Intercept, redirect, capture or hold OverDrive-initiated email or other electronic communications to end users of OverDrive Services. Any and all OverDrive-initiated email or other electronic communication to end users of OverDrive Services shall remain from OverDrive. With exception of customer and technical support to end users, You shall not send notifications or other communications to end users regarding the OverDrive Services without OverDrive’s prior written approval; and

2.2.13. Use any end user email address obtained through the OverDrive API and/or OverDrive Services for any commercial or solicitation purposes.

3. CLIENT CREDENTIALS

3.1. OverDrive shall assign You a confidential “Client Key” and “Client Secret” (together referred to as “Client Credentials”), for use with the OverDrive API. You shall store the Client Credentials on a secure server with controlled access, firewall and intrusion detection, network monitoring and other reasonable requirements as may be communicated to You in writing from time to time. For distributed applications, You shall conceal or encrypt the Client Credentials to prevent unauthorized access and/or use. You shall communicate with OverDrive’s servers using the Client Credentials through a Secure Sockets Layer (“SSL”) or other OverDrive-approved protocol.

3.2. OverDrive may change the Client Credentials from time to time and shall give You written notice of such change. Modifications of the Client Credentials may affect Your Services and may require You to make changes to Your Services at Your own cost to continue to be compatible with or interface with the OverDrive API.

3.3. The Client Credentials are the property of OverDrive. You shall not sell, transfer, sublicense or otherwise disclose the Client Credentials to unauthorized third-parties. You shall contact OverDrive immediately if You reasonably believe that an unauthorized third-party is using the Client Credentials or if the Client Credentials are otherwise disclosed, lost or stolen.

4. YOUR SERVICES

4.1. You shall be solely responsible for Your Services, including development, operation, maintenance and all materials that appear within Your Services. You are solely responsible for (a) the technical operation of Your Services and all related equipment including but not limited to customer and technical support for Your Services; (b) ensuring the display of digital content on Your Services does not violate this API Agreement or any agreement between You and a third-party (including, but not limited to, any restrictions or requirement imposed by a third-party hosting Your Services); (c) ensuring You do not access and/or use the OverDrive API or OverDrive Services in a manner that infringes, violates or misappropriates any of OverDrive’s rights or those of any third-party; (d) ensuring You do not access and/or use OverDrive API or OverDrive Services for any illegal purpose; and (e) any access to and/or use of the OverDrive API and/or OverDrive Services, whether or not permitted under this API Agreement.

4.2. You shall configure unique, consistent, attributable User-Agent strings (“User-Agent Strings”) and use such User-Agent Strings in conjunction with Your Services. You shall assign User-Agent Strings to all end users of Your Services and provide a list of all current User-Agent Strings to OverDrive upon request. You shall not use and/or assign empty User-Agent Strings or User-Agent Strings that misrepresent the caller’s identity. You shall give prior written notice to OverDrive of deletion of or any modification to the User-Agent Strings. OverDrive reserves the right to terminate or limit the OverDrive API based on User-Agent String logs and/or Internet Protocol addresses.

4.3. You shall not commence live use of the OverDrive API without OverDrive’s (i) prior review of its implementation/integration into Your Services, and (ii) written approval by OverDrive to launch. Upon OverDrive’s written request, You shall provide a report to OverDrive detailing Your capabilities and resources available to comply with the terms the API Agreement, including but not limited to the monitoring capabilities, safeguards, and other methods for enforcement of proper end user authentication, security, privacy, and lending periods.

4.4. You shall proactively monitor the use of the OverDrive API related to its integration into Your Services for suspicious activities to determine its use is in compliance with Your obligations under this API Agreement. You shall notify OverDrive within twenty-four (24) hours if You become aware of any activities that are contrary to or in any way seek to frustrate the publisher-defined use permissions, access models, or lending periods, or become aware of any other activities that violate or are contrary to the permitted uses of the OverDrive API under this API Agreement. In the event You become aware of any such occurrence, You shall promptly notify OverDrive with details of such occurrence and You shall use commercially reasonable efforts to cooperate with OverDrive to remedy or mitigate such violative activities.

4.5. Monitoring and Audit Rights. OverDrive, or its representative, has the right, at OverDrive’s expense, to monitor and audit Your Services or activities relating to Your access to and/or use of the OverDrive API and/or OverDrive Services. You will not seek to block or otherwise interfere with any monitoring or audit by OverDrive. Your failure to comply with OverDrive’s efforts to monitor or audit Your compliance with this API Agreement shall constitute a material breach of this API Agreement and be grounds for OverDrive to terminate this API Agreement.

4.5.1. Emergency Audit. At any time, with or without notice to you, OverDrive may conduct an audit of Your Services and related systems to investigate compliance with this API Agreement, security and privacy concerns, or any other stated concerns. Upon request by OverDrive, You shall present to OverDrive the technical functionality of Your Services and related systems to verify use of the OverDrive API.

4.5.2. Routine Audit. OverDrive may, in its sole discretion, conduct a routine audit for any reason. Notice of a routine audit may be given by OverDrive to You by any reasonable means, including but not limited to: email, U.S. mail, verbal communication, or personal service. The timing of OverDrive’s notice to You shall be measured from the date notice is sent by OverDrive. You shall give OverDrive notice of Your agreement to an audit deadline date within 3 business days of notice of a routine audit sent to You by OverDrive. The timing of Your notice to OverDrive shall be measured from the date of receipt by OverDrive. You shall cooperate with OverDrive’s audit within 30 days of OverDrive’s notice to You. Your failure to set a date compliant with the above terms, or ineffective notice required by You to OverDrive, shall constitute a breach of this agreement. No terms here or in any other section shall diminish OverDrive’s right to conduct independent monitoring per Section 4.5, or an immediate emergency audit per Section 4.5.1.

4.6. OverDrive may discuss, review, develop for itself, have developed, acquire, license or develop for third parties mobile application(s), software application(s), website(s), and/or marketing materials that may be competitive to Your Services or other products or services provided by You, irrespective of their similarity to Your current product(s) or product(s) that You may develop. For avoidance of doubt, OverDrive may provide the OverDrive API and/or OverDrive Services to third parties who may compete with You and Your Services and/or Your product(s).

5. PROPRIETARY RIGHTS

The OverDrive API, OverDrive Services and all intellectual property rights contained in the foregoing, are and will at all times remain the sole and exclusive property of OverDrive and/or its licensors and are protected by applicable intellectual property laws and treaties, whether those rights happen to be registered or not, and wherever in the world those rights may exist.

6. MODIFICATION OF API AGREEMENT & OVERDRIVE API

6.1. OverDrive may modify any of the terms and conditions contained in this API Agreement at any time and in OverDrive’s sole discretion with or without notice to You. Modifications may affect Your Services and may require You to make changes to Your Services at Your own cost to continue to be compatible with or interface with the OverDrive API.

6.2. OverDrive may, in its sole discretion, release subsequent versions and/or updated versions of the OverDrive API and require You to use the most current version by giving You written notice. Modifications may affect Your Services and may require You to make changes to Your Services at Your own cost to continue to be compatible with or interface with the OverDrive API.

6.3. OverDrive may conduct maintenance on, stop providing, and/or change the method of access to the OverDrive API and/or OverDrive Services at any time, with or without notice to You. For avoidance of doubt, OverDrive, in its sole discretion, may temporarily or permanently suspend Your access to and/or use of the OverDrive API and/or OverDrive Services under this API Agreement. OverDrive shall not be liable for any cost, expenses, or damage which You may incur as a result of said maintenance, suspension, or changing the method of access to and/or use of OverDrive API and/or Services.

6.4. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR SOLE RECOURSE IS TO TERMINATE THIS API AGREEMENT. YOUR CONTINUED ACCESS TO AND/OR USAGE OF THE OVERDRIVE API AND/OR OVERDRIVE SERVICES FOLLOWING OVERDRIVE’S MODIFICATION CONSTITUTES YOUR IRREVOCABLE AND BINDING ACCEPTANCE OF THE CHANGE.

7. FEES

OverDrive reserves the right, at any time and in its sole discretion, to charge reasonable fees for use of and/or access to the OverDrive API and/or the OverDrive Services. If OverDrive decides to charge You for access to and/or use of the OverDrive API and/or the OverDrive Services, OverDrive will provide You with prior written notice of such charges.

8. NO WARRANTIES; NO SUPPORT

THE OVERDRIVE API AND OVERDRIVE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, OVERDRIVE DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, AND DUTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE OVERDRIVE API AND ANY OVERDRIVE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FURTHER, OVERDRIVE DISCLAIMS ANY WARRANTY THAT YOUR USE OF THE OVERDRIVE API WILL BE UNINTERRUPTED, SECURE, TIMELY OR ERROR FREE. IN THE EVENT OF ANY INTERRUPTION OF THE OVERDRIVE API, OVERDRIVE’S SOLE RESPONSIBILITY SHALL BE TO USE COMMERCIALLY REASONABLE EFFORTS TO CORRECT THE INTERRUPTION. FOR THE AVOIDANCE OF DOUBT, YOU ACKNOWLEDGE AND AGREE THAT THE API AGREEMENT DOES NOT ENTITLE YOU AND/OR END USERS TO ANY SUPPORT FOR THE OVERDRIVE API. NO ADVICE OR INFORMATION, WHETHER ORAL OR IN WRITING, OBTAINED BY YOU FROM OVERDRIVE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS API AGREEMENT.

9. LIMITATION OF LIABILITY & INDEMNIFICATION

9.1. YOU AGREE THAT OVERDRIVE SHALL HAVE NO LIABILITY ARISING FROM OR RELATED TO YOUR ACCESS TO AND/OR USE OF THE OVERDRIVE API (OR OVERDRIVE’S SUSPENSION OR TERMINATION OF SUCH ACCESS AND/OR USE) REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, IN NO EVENT SHALL OVERDRIVE OR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES AND SUPPLIERS BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE OVERDRIVE API, EVEN IF OVERDRIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. OVERDRIVE’S MAXIMUM AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS API AGREEMENT SHALL NOT, IN ANY EVENT, EXCEED $500.00 USD.

9.2. You agree to indemnify, defend, and hold harmless OverDrive and its subsidiaries, affiliates, officers, directors, shareholders, employees, and agents, from any claim or demand, including reasonable attorneys’ fees, made by any and all third parties arising from or in any way related to Your access to and/or use of the OverDrive API and/or violation of this API Agreement. OverDrive shall provide You with written notice of any such claim or demand. OverDrive reserves the right, to assume the exclusive defense and control of any matter subject to indemnification by You, which shall not excuse Your indemnity obligations. In the event of any settlement of an action, You agree to obtain OverDrive’s prior written consent to the settlement (which shall not be unreasonably withheld, delayed or cause any delay or harm in the settlement discussion).

10. TERM AND TERMINATION

10.1. The term of this API Agreement (“Term”) shall commence upon the Effective Date and for an initial period of two (2) years. This API Agreement shall automatically renew for additional periods of one (1) year unless either party gives written notice of termination no less than ninety (90) days prior to the expiration of the then current term.

10.2. OverDrive reserves the right, in its sole discretion (for any reason or for no reason) and at any time without notice to You, to (a) modify, suspend or discontinue the OverDrive API, including its availability to You; (b) suspend or terminate this API Agreement; and/or (c) suspend or terminate any of Your rights under this API Agreement to access and/or use the OverDrive API and/or any OverDrive Services. Any termination of access to the OverDrive API will also immediately terminate any and all licenses granted to You hereunder.

10.3. Upon termination of this API Agreement, You shall immediately discontinue use of the OverDrive API and OverDrive Services, promptly delete and remove any and all references, calls to the OverDrive API from all web pages, scripts, widgets, applications, and other software in Your possession or under Your control and promptly destroy and remove from all computers, hard drives, networks and other storage media all copies of the OverDrive API, Client Credentials, and OverDrive Services.

10.4. OverDrive shall not be liable for any costs, expenses, or damages as a result of termination of this API Agreement by either party.

10.5. The terms of this Agreement that by their nature are intended to continue indefinitely, including but not limited to Sections 2.2, 4, 5, 8, 9, 10, 11, and 12, shall remain in full force and effect following the termination of this API Agreement.

11. CONFIDENTIALITY

11.1. This Agreement and the terms provided herein are confidential. Each party acknowledges that it may receive confidential information, software or knowhow from the other party relating to the other party or its customers or users, or to technical, marketing and business affairs of the other party (“Confidential Information”). Each party agrees that all that is identified in writing at the time of disclosure as confidential, or ought to be treated as confidential given the type of information of the other party shall be held in strict confidence and shall not be disclosed or used without express written consent of the other party disclosed and the nature of its disclosure.

11.2. The receiving party will: (i) not use the disclosing party’s Confidential Information except for the exercise of its rights or performance of its obligations hereunder; (ii) not disclose such Confidential Information to any party, other than its and its affiliates’ employees and consultants who have a “need to know” for the receiving party to exercise its rights or perform its obligations hereunder; and (iii) use commercially reasonable measures to protect the confidentiality of such Confidential Information. If the receiving party is required by law to make any disclosure of such Confidential Information, the receiving party will first give written notice of such requirement to the disclosing party, and will permit the disclosing party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation to the disclosing party in seeking to obtain such protection.

11.3. Information will not be deemed Confidential Information hereunder if such information: (a) is known or becomes known (independently of disclosure by the disclosing party) to the receiving party prior to or after receipt from the disclosing party from a source other than one having an obligation of confidentiality to the disclosing party; (b) becomes publicly known, except through a breach hereof by the receiving party; (c) is independently developed by the receiving party without any use of the disclosing party’s Confidential Information; or (d) the disclosing party has given the receiving party written permission to disclose the Confidential Information.

12. GENERAL TERMS

12.1. No Joint Venture. Nothing in this Agreement authorizes either party to act as a legal representative or agent of the other for any purpose. It is expressly understood that this Agreement does not establish a franchise relationship, partnership, principal-agent relationship, or joint venture. Neither party shall have the power to bind the other with respect to any obligation to any third party. Each party is solely responsible for its employees, including terms of employment, wages, hours, required insurance, and daily direction and control.

12.2. Assignment. The rights and obligations under this API Agreement shall not be assigned or subcontracted by You without the express prior written consent of OverDrive. In the event substantially all of your business and relating assets are acquired, or You are subject to a merger, consolidation, or similar event, this API Agreement shall automatically terminate unless OverDrive provides written approval of its continuation.

12.3. No Exclusivity. This Agreement is not exclusive and does not impose any obligation on either party with respect to competing relationships or opportunities.

12.4. All Disputes Arising From this API Agreement. The API Agreement shall be governed by the laws of the State of Ohio, USA, without regard to any conflict of laws principles. Any dispute regarding the API Agreement shall be solely and exclusively brought in courts residing in the Northern District of Ohio, USA, and the local laws of Ohio shall apply to any such action related to the above without regard to any conflicts of laws principles. The parties agree that exclusive venue and jurisdiction for any and all actions brought by the parties or related entities, shall be in the courts residing in the Northern District of Ohio. You waive any and all objections and challenges to the exclusive venue and jurisdiction of this section.

12.5. No Waiver. The failure of OverDrive to exercise any right or the waiver by OverDrive of any breach shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same of any other term of the API Agreement.

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

Last updated: March 2022

Prior Version: September 2021