2011-345 Library - OverDrive, Inc. to provide digital book technology & services related to eBook, etc.

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9.1 OverDrive represents and warrants to Library that is has the necessary rights to enter into this Agreement and that it has the necessary ownership and intellectual property rights and licenses to the Application Services to grant the licenses herein. OverDrive warrants that the Application Services will operate as intended if properly used by Library and Patron. If any errors are discovered, Library shall promptly notify OverDrive in writing as to the description of the problem, whereupon OverDrive shall use reasonable efforts to correct such problems within a reasonable time thereafter. Corrections will be provided to Library with instructions for implementation. The remedies set forth in this Agreement shall be Library's sole remedies for breach of this Agreement. 9.2 THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE RIGHTS AND REMEDIES GRANTED TO LIBRARY AND ITS PATRONS UNDER THIS PARAGRAPH CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF LIBRARY AND LIBRARY'S PATRONS AGAINST OVERDRIVE FOR BREACH OF WARRANTY, EXPRESS OR IMPLIED, OR FOR ANY ERRORS OR DEFECTS IN THE APPLICATION SERVICES. IN NO EVENT SHALL OVERDRIVE OR ITS SUPPLIERS BE LIABLE TO LIBRARY OR LIBRARY'S PATRONS FOR ANY DAMAGES ARISING FROM OR RELATED TO FAILURE OR INTERRUPTION OF THE APPLICATION SERVICES, OR FOR INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PROFIT OR OPPORTUNITY, LOSS OF USE OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE LICENSE, TRANSFER OR USE OF THE APPLICATION SERVICES. IN NO EVENT SHALL OVERDRIVE'S LIABILITY HEREUNDER EXCEED THE TOTAL AMOUNT RECEIVED BY OVERDRIVE UNDER THIS AGREEMENT. 10. INDEMNIFICATION 10.1 OverDrive agrees to indemnify Library against liability and expense, including reasonable attorney fees, arising from any breach of OverDrive's warranty that it has the required rights to the Application Services and that the Application Services does not infringe any ownership or intellectual property right of a third party, provided that OverDrive: (i) is notified immediately after Library receives notice of such claim; (ii) is solely in charge of the defense of and any settlement negotiations with respect to such claim; (iii) received Library's cooperation in the defense or settlement of such claim; (iv) has the right, upon either the occurrence of or the likelihood (in the opinion of OverDrive) of the occurrence of a finding of infringement, either to procure for Library the right to continue use of the Application Services, or to replace the relevant portions of the Application Services with other equivalent, non-infringing portions. If OverDrive is unable to accomplish either of the options set forth in (iv) above, at OverDrive's option OverDrive shall either remove the portion of the Application Services in issue and refund to Library the value of such portion, or remove the entire Application Services and refund to Library the entire amount paid pro-rata under this Agreement as it relates to the incident that gave rise to the claim. 10.2 OverDrive shall have no obligation to Library to defend or satisfy any claims made against Library that arise from use, marketing, licensing, or disposition of the Application Services by Library other than as permitted by this Agreement. OverDrive shall not be responsible to indemnify Library for claims arising from the use or license of third party software including DRM where OverDrive is not afforded such corresponding indemnification from said third party vendor. In the event a claim arises from use of non-OverDrive technology, where the vendor of such product or technology does not indemnify OverDrive, then OverDrive is not liable to extend indemnification under this section to Library for any such claims. 11. TERM AND TERMINATION 11.1 Unless sooner terminated in accordance with the relevant provisions of this Agreement, the initial term of this Agreement shall be for four (4) years from the Effective Date. The Agreement shall automatically renew for successive terms of twenty four (24) months unless either party provides written notice of intention not to renew ninety (90) days prior to the expiration of the then current term. 11.2 In the event of a filing by or against either party of a petition for relief under the United States Bankruptcy Code or any similar petition under the insolvency laws of any jurisdiction, where such filing is not dismissed within thirty (30) days after the date of the filing, or should Library discontinue the operations relevant to this Agreement, then the other party may immediately terminate this Agreement upon written notice. 02011 OverDrive,Inc. Digital Library Reserve Content Service Plan Agreement-Orange County Library(NC) 5