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11.3 In addition to provisions authorizing termination hereunder, either party shall have the right to terminate this <br /> Agreement as a result of a material breach of the Agreement by the other party that is not cured within thirty (30) days <br /> after written notice of such breach. <br /> 11.4 This Agreement is a commitment of the current revenues only of the Library. Library represents and warrants <br /> that it has appropriated and budgeted the necessary funds to make all payments required pursuant to this Agreement for <br /> the remainder of the fiscal year in which the payment term commences; and that it currently intends to make payments for <br /> the full contract term as scheduled in the applicable payment schedule herein if funds are appropriated for the payment in <br /> each succeeding fiscal year by its governing body. Library reasonably believes that monies in an amount sufficient to <br /> make all payments can and will lawfully be appropriated. If Library's governing body fails to appropriate sufficient funds <br /> in any fiscal year for payments due and if other funds are not legally appropriated for such payment, then a non- <br /> appropriation event shall be deemed to have occurred. If a non-appropriation event occurs, (1) Library shall give <br /> OverDrive immediate notice of such non-appropriation event and provide written evidence of such failure by Library's <br /> governing body; and (2) the Agreement shall terminate on the first day of the fiscal year in which funds are not <br /> appropriated. <br /> 11.5 Upon termination of this Agreement, and except as otherwise provided in this Agreement, the license granted to <br /> Library by this Agreement shall be terminated immediately; Library shall make no further use of all or any part of the <br /> Application Services, Content or any confidential information received from OverDrive. <br /> 11.6 The provisions of this Agreement concerning confidential information and indemnification shall survive the <br /> termination and/or expiration of this Agreement, and termination shall not relieve either party of the obligation to pay any <br /> amount due to the other. In the event of such termination, any payment made or due for Annual Application License and <br /> Hosting Fee shall be prorated to the date of termination and returned to Library within thirty(30) days of termination. <br /> 12. GENERAL PROVISIONS <br /> 12.1 Independent Contractor. OverDrive and Library are independent contractors under this Agreement and nothing in <br /> this Agreement authorizes either party to act as a legal representative or agent of the other for any purpose. It is expressly <br /> understood that this Agreement does not establish a franchise relationship, partnership, principal-agent relationship, or <br /> joint venture. Neither party shall have the power to bind the other with respect to any obligation to any third party. Each <br /> party is solely responsible for its employees, including terms of employment, wages, hours, required insurance, and daily <br /> direction and control. <br /> 12.2 Confidential Information. Both OverDrive and Library acknowledge that each will receive confidential <br /> information from the other relating to technical, Application Services and operational affairs of the other. Each party <br /> agrees that all confidential information of the other party shall be held in confidence and shall not be disclosed, not <br /> withstanding any laws and regulations permitting public access to documents and information that are considered public. <br /> 12.3 Announcements. OverDrive and Library may issue, at a mutually agreed upon time and in a mutually agreed <br /> upon form, a public announcement relating to this Agreement. OverDrive and Library will each give the other party the <br /> opportunity to review and approve, in advance of its issuance, any public announcement or publicity relating to this <br /> Agreement or any aspect of the parties' relationship hereunder. <br /> 12.4 No Exclusivity. This Agreement is not exclusive and does not impose any obligation on either party with respect <br /> to competing relationships or opportunities. <br /> 12.5 No Waiver. The failure of either party to exercise any right or the waiver by either party of any breach, shall not <br /> prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same of any other term <br /> of the Agreement. <br /> 12.6 Notice. All notices, requests, demands or other communications required to be given pursuant to the Agreement <br /> shall be in writing and shall be deemed to have been given, if sent by U.S. mail, registered or certified mail, return receipt <br /> requested, postage prepaid, addressed to the parties at their place of business or to such other addresses as the parties <br /> direct in writing. Notice to OverDrive shall be addressed to OverDrive at the address provided in the Introduction or at <br /> its' current address as notified to Library, Attention: President or to such person or to such address as OverDrive may <br /> ©2011 OverDrive,Inc. <br /> Digital Library Reserve Content Service Plan Agreement-Orange County Library(NC) 6 <br />