1. Pressbooks Platform
1.1 Provision of the Platform. CAUL shall make its Central PressbooksEDU hosted platform (the “Platform”) for the online editing and formatting of books and other structured documents in multiple formats (“Projects”) available to the Institution and its “Institutional Users” who are staff, faculty and administrators of Institution.
2. Institutional User Obligations, Licences and Representation
2.1 Institutional User Responsibility. Institutional User shall be responsible for any damages resulting from any negligent use or misuse of the Platform by Institutional User or any Authorized User, including but not limited to: (i) security breaches or other technological damage to the Platform such as viruses, trojan horses, worms or other malicious software introduced to the Platform as a result of negligence; or (ii) any violation of any applicable law (including but not limited to intellectual property laws) while using the Platform.
2.2 Institutional User Data Licenses. Institutional User hereby grants Pressbooks a royalty-free, worldwide, non-exclusive, non-transferable and non-sublicensable license to use, process and transmit any non-public data or information (in whatever form) provided by Institutional User to Pressbooks (the “Institutional UserData”) for the purposes of the provision of the Platform to Institutional User and any Authorized Users. Institutional User grants Pressbooks a royalty-free, worldwide, non-exclusive, non-transferable and non-sublicensable license to use anonymized, non-personally identifiable Institutional User Data as well as analytics and behavioural data related to Institutional User and any Authorized Users for Pressbooks’ internal business purposes, limited to the monitoring of features used by the Institutional User and Authorized Users to address any functionality issues as they arise, with the goal to enhance the experience and improve upon the features available to all Platform users.
2.3 Institutional User Representation. To the best of its knowledge, Institutional User Data and other material used in the creation of Projects does not violate any rights (including Intellectual Property Rights) of any third party. In case of violation of this sub-section by Institutional User or any Authorized Users, Institutional Usershall indemnify Pressbooks as per section 5 of these Terms of Service.
3. Intellectual Property
3.2 Pressbooks Property. Pressbooks (or its licensors) retains any and all rights in and to: (i) the Platform and its constituent components, including any enhancements, upgrades or other modifications to the Platform or any constituent component thereof, including its constituent Computer Code, subject to the license described further in this paragraph; (ii) all Pressbooks trademarks (including, without limitation, the “Pressbooks” trademark and logo); and (iii) all Intellectual Property Rights related to any of the foregoing. Institutional User acknowledges and agrees that it will acquire no ownership rights or licences to any Pressbooks intellectual property unless otherwise expressly provided in these Terms of Service. The parties acknowledge that the Platform is distributed under the GNU General Public License v3 (the “GNU License”), and that Institutional User acquires any and all rights to the Platform as outlined in the GNU License. Notwithstanding the foregoing, certain add-ons to the Platform (and their constituent Computer Code) are not distributed under the GNU License and remain Pressbooks property and subject to the limitations outlined in these Terms of Service.
3.3 Institutional User Property in Projects. To the extent that the use of the Platform by Institutional User results in any intellectual property whatsoever in any Project, such Projects and their associated Intellectual Property Rights shall be owned by the Institutional User as applicable.
4. Limitation of Liability
To the maximum extent permitted by law, in no event will Pressbooks, its shareholders, officers, directors, employees or agents: be liable for any indirect, incidental, extraordinary, consequential, special, punitive or exemplary damages (including, without limitation, loss of revenue or profits, lost or damaged data, loss of use, business interruption or any other pecuniary loss), arising out of or relating to these Terms of Service or caused by the Platform even if Pressbooks has been advised of the possibility of such damages. This limitation of liability will apply regardless of the form of action, whether in contract, warranty, tort, delict, quasi-delict, negligence, strict liability or under any other legal theory. To the extent permitted by law, the total liability of Pressbooks for claims by Institutional User or any other person arising under these Terms of Service shall be limited to the fees paid by Institutional User to Pressbooks during an annual Term.
Each party (“Indemnitor”) shall defend the other party (“Indemnitee”) against any claim, demand, suit or proceeding made or brought against Indemnitee, any of its Affiliates, or any of their respective shareholders, officers, directors, employees, or agents (collectively “Indemnified Parties”) by a third party alleging that: (a) Indemnitor’s (or any Authorized User’s, in the case of Institutional User) use of the Platform is in breach of these Terms of Service, infringes or misappropriates the Intellectual Property Rights or other rights of a third party (including but not limited to Projects infringing such rights in the case of Institutional User) or violates applicable law; (b) the violation of any law, regulation, or other legal mandate, by Indemnitor; (c) the breach by Indemnitor, its officers, directors, employees, or agents of any covenant, condition, warranty, or representation contained in these Terms of Service; or (d) the gross negligence or willful misconduct of Indemnitor, its officers, directors, employees, or agents (a “Claim”). Indemnitor shall indemnify and hold harmless the Indemnified Parties for any loss, claim, damages, cost, expenses, and other liability (including reasonable lawyers’ and expert’s fees and expenses) that any Indemnified Party incurs a result of or in connection with a Claim; provided that Indemnitee: (i) promptly gives Indemnitor written notice of the Claim; (ii) gives Indemnitor sole control of the defense and settlement of the Claim (provided that Indemnitor may not settle any Claim unless the settlement unconditionally releases Indemnitee of all liability); and (iii) provide to Indemnitor all reasonable assistance, at Indemnitor’s expense.
6. General Provisions
6.1 Governing Law; Jurisdiction. These Terms of Service shall be governed by and construed in accordance with the laws of the Province of Quebec, Canada and the Federal laws of Canada applicable therein in force at the time without regard to conflict of law provisions. Any legal action or proceeding regarding these Terms of Service shall be brought exclusively in the courts located in the Judicial District of Montreal, Canada.
6.2 Force Majeure. No party will be liable for any failure or delay in the performance of its obligations under these Terms of Service for any cause beyond its reasonable control including, without limitation, acts of God, fire or other disaster, catastrophe or unusual internet delays, outages, or congestion, denial of service attacks, and other “hacker” activity.
6.4 Execution. These Terms of Service may be executed in counterparts (including by electronic transmission). Any such counterparts will constitute an original and will be taken together to constitute one and the same instrument. Electronic acceptance of these Terms of Service shall be as valid as an agreement of the Terms of Service.
6.5 Language. The parties acknowledge having expressly required that these Terms of Service is to be drawn up in the English language.