Published 22 January 2016 by David Newton

OverDRIVE Terms of Service

BASIS OF CONTRACT

By accepting these Terms of Service, electronically or otherwise, or using the OverDRIVE service (the Services), you are entering into a Contract on behalf of your organisation (Customer) with Refractiv Limited (Refractiv).

Where the context so requires Customer includes your Authorised Users.

Schedule A will apply where you have Google Apps subscriptions through Refractiv.

No oral warranties or representations shall bind Refractiv.

YOUR SUBSCRIPTION

In consideration of payment of the Subscription Fees, We will provide Customer with User Logins or the facility via an Admin Console to create User Logins for the number of Authorised Users for whom you have purchased a Subscription to access the Services during the Subscription Period.

Customer shall be responsible for the accuracy of completing the online registration form or purchase order form and for giving Refractiv any information necessary to enable us to perform Our obligations under the Contract.

The Contract between Refractiv and Customer shall come into effect when We accept Customer’s Subscription. No Subscription shall be deemed accepted by Refractiv until confirmed by email or other written notification.

We shall have the right to refuse to accept any Subscription placed by Customer online through our Websites or online Marketplace or purchase order form.

YOUR USE OF THE SERVICES

Customer will not:

  • share User Login details with any third party, share User Login access with multiple Authorised Users or provide access to the Services for the benefit of third parties;
  • alter any part of the Services, remove any notice of proprietary rights from the Services or reverse engineer the Services;
  • contest our Intellectual Property Rights in the Services.

Customer will not use the Services:

  • to post or transmit any material that is threatening, defamatory, obscene, indecent, seditious, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, in breach of confidence, in breach of privacy or which may be detrimental to Our reputation or to the reputation of any third party, cause annoyance or inconvenience;
  • to post or transmit unsolicited, unauthorised, promotional material, ‘junk mail’, ‘spam’, ‘chain letters’,
  • to post or transmit any material for which Customer has not obtained all necessary consents, licences and/or approvals or which would infringe the trademarks, copyright or  Intellectual Property Rights of third parties;
  • in any way which constitutes or encourages conduct that would be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party in the UK or in any other country in the world;
  • in breach of the Google Acceptable Use Policy to the extent required by Google; and/or in any way which is technically harmful (including without limitation, using the Services to transmit or post computer viruses, logic bombs, trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data).

Customer is solely responsible for the security of any User Login and Admin Console access and You shall immediately notify Refractiv if you are aware of any breach of security including breach of username and password or related Google Account associated with User Logins.

Customer is responsible for configuring their own information technology environment and  device platforms in order to access or use the Services.  

We may at any time move, modify and/or remove any Content, or take legal action as a result of breaches or suspected breaches of this clause, any applicable laws or regulations and/or where Our rights are threatened or infringed.

We may at Our sole discretion, suspend or cancel your Subscription or access to the Services either for all Authorised Users or for individual Authorised Users if Customer breaches any of these Terms of Service.

ACCESS TO THIRD-PARTY DATA

Customer grants permission for OverDRIVE to access your data and settings via the Google or other API (s), including but not limited to Google Calendar, Users, Email Settings, Profiles and Charts.

FREE EDITION

If You register for a free edition and We accept Your registration, We will at our entire discretion make one or more Services available to you free of charge for an unlimited period or until the start date of any Services to which You subscribe.

You may cease to use the free edition at any time and you do not need to cancel the service.

With the free edition there may be limitations to the functionality of the Services or numbers of User Logins permitted.

All provisions of these Terms of Service except the requirement to pay a Subscription Fee and the benefits of the Service Level Agreement will apply during your use of the free edition.

Additional terms and conditions may appear on the registration web pages. Any such additional terms and conditions are incorporated into these Terms of Service by reference.

Any Customer Data saved during your use of the free edition will not be retained unless Customer purchases a paid Subscription to the same Services as those covered by the use of the free edition.

SERVICE LEVELS AND SUPPORT

Refractiv will use reasonable endeavours to ensure that the Services are available in accordance with our Service Level Agreement. The Service Level Agreement is published on the overdrive.io website and at our discretion may vary from time to time; any significant changes will be notified to Customer administrators.

Access to the Services may be suspended temporarily and without notice in the case of system failure, maintenance or repair, failures in the underlying Google Enterprise Services or for reasons beyond Our control.

Customer will, at its own expense, respond to questions and complaints from Authorised Users or third parties relating to Customer’s or Authorised Users’ use of the Services. Customer or Reseller will use its reasonable endeavours to resolve support issues before escalating them to Refractiv.

Refractiv’s OverDRIVE team will respond to support requests from Customer Administrators either by email or through our support portal as described on the OverDRIVE website(s).

MODIFICATION OF SERVICES AND URL TERMS

Refractiv may make commercially reasonable changes, enhancements or modifications to part or all of the Services from time to time. This may include discontinuing a Service or any aspect or feature thereof. If Refractiv makes a material change to the Services, We will inform Customer via an OverDRIVE blog, email or such method as We may elect provided that Customer has subscribed with the OverDRIVE website or portal to be informed about such changes.

Refractiv may make commercially reasonable changes to these Terms of Service from time to time. The URL Terms are the currently applicable terms of service. If OverDRIVE makes a material change to any of the URL Terms, OverDRIVE will inform Customer by sending an email to the Administrator email Address or alerting Customer via the Admin Console. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify Refractiv via OverDRIVE Support within thirty days after receiving notice of the change. If Customer notifies Refractiv as required, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current Subscription Period for the affected Services. If the affected Services are renewed in accordance with this Contract, they will be renewed under OverDRIVE's then current URL Terms.

FEES, PAYMENT AND TERM

In consideration of provision of the Services, Customer will pay the Subscription Fees for the Subscription Period to Refractiv.

The Subscription Fees are exclusive of VAT or local taxes which shall be paid by Customer in addition.

If Customer does not pay any Subscription Fee when due, Refractiv reserves the right (without prejudice to any other remedies Refractiv may have) to suspend and/or terminate Customer’s access to the Services.

Customer will pay all Subscription Fees due to Us under this Contract without any set-off, deduction, counterclaim and/or other withholding of monies.

Payment of Subscription Fees shall not be deemed to be made until We have received cleared funds in respect of the full amount outstanding.

Unless you designate in your Subscription preferences or notify us that you do not want your subscription to be auto-renewed, you agree that we may automatically renew your Subscription Fees and automatically charge you the then-current renewal fees for such renewed subscription using, where applicable, the credit card associated with your subscription at the beginning of each recurring period.

No refunds will be given by Us to the Customer.

TERMINATION

This Contract will terminate in the following circumstances:

  • expiry of the paid Subscription Period if not renewed; or
  • cessation of your use of the free edition.
  • if Customer is in material breach of any of its conditions and if the breach is not remedied within a period of 7 days after We have given You written notice of it.

If at any time you resume use of the free edition or subscribe again, this contract will apply.

On termination of this Contract:

  • Customer will cease accessing the Services.
  • Customer shall export or take copies of any Customer Data required before the date of termination. In the event that Customer wishes for Customer Data to be deleted immediately after termination, they may raise a case with OverDRIVE Support to request data to be deleted. OverDRIVE Support will action this request within 5 working days subject to validation of the request authorisation.
  • Refractiv will otherwise retain Customer Data for 60 days after termination after which all Customer Data may be deleted by Refractiv.

CONFIDENTIALITY

Customer acknowledges that all of the Content contained within the Services is Our Confidential Information which Customer will hold in confidence. This obligation shall remain in full force and effect after termination of the Contract for any reason.

INTELLECTUAL PROPERTY RIGHTS AND CUSTOMER DATA

All Intellectual Property Rights in the Services belong to Refractiv.

We grant a non-exclusive licence during the Subscription Period to Customer and Authorised Users to use the Services for internal business purposes only.

All Intellectual Property Rights in the Customer Data belongs to Customer. Customer will ensure that Customer Data complies with applicable laws and regulations. Customer retains ownership and possession of the Customer Data at all times, and retains control of the Customer Data at all times except to the extent that Customer specifically authorises Us to exercise certain controls or modifications, as selected by Customer within the Services, over the Customer Data.

Refractiv may use anonymised statistical and summary information derived from such Customer Data and aggregate it with statistical information from other customers (“Non-Identifiable Summary Data”) for Refractiv’s business purposes, including without limitation for analysing customer needs and improving its services, and Refractiv shall own all right, title and interest in any such Non-Identifiable Summary Data.

DATA PROCESSING AND PRIVACY

Customer warrants to Refractiv that Customer has complied with all provisions of the EU Directive and the DPA Act relevant to the passing of any Personal Data to OverDRIVE, including without limitation, that Customer have obtained all necessary consents from relevant individuals whose Personal Data Customer may disclose to OverDRIVE from time to time.

In these Terms of Service the terms “personal data”, “processing”, “controller” and “processor” shall have the meanings ascribed to them in the EU Directive. The parties agree and acknowledge that the DPA Act and EU Directive apply to the processing of Personal Data.

Processor. For the purposes of this Contract and in respect of Customer Personal Data, the parties agree that Customer shall be the controller and Refractiv shall be a processor. Within the scope of this Contract, Customer shall comply with its obligations as a controller and Refractiv shall comply with its obligations as a processor under the DPA Act and EU Directive.

Scope of Processing. Refractiv will process Customer Personal Data for the purposes of maintaining, improving and providing the Services and in accordance with applicable law. Refractiv will process Customer Personal Data in accordance with Customer’s written instructions provided that such Instructions are consistent with the Services capabilities and the Refractiv Privacy Policy. If Refractiv is unable to comply with Customer’s instructions because such instructions conflict with the Contract, Refractiv will notify Customer as soon as reasonably practicable. Following receipt of such notice, Customer may terminate the Contract for convenience on providing written notice to Refractiv.

Refractiv will provide the Services and Customer will access our Websites and Services in accordance with the OverDRIVE Privacy Policy.

PUBLICITY

Refractiv may use Customer’s name and/or logo (the “Marks”) on its website, customer or vendor list (as applicable) or other marketing materials to refer to the relationship between the parties pursuant to this Contract. All such use shall be in accordance with Customer’s usage policies and guidelines if provided in writing to Refractiv. If Customer objects to any such use or wishes to revoke its permission to use its Marks hereunder, OverDRIVE shall cease any such use promptly after receiving notification. Neither party’s use of the other party’s Marks implies or confers any endorsement by either party.

LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO OVERDRIVE AND TO PROVIDE THE SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS THE SERVICES OR YOUR DATA, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THESE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF OVERDRIVE AND THE SERVICES.

The Customer agrees that Our sole liability to Customer for a breach of this Contract is limited to damages of an equal amount to the Subscription Fee.

We shall have no liability to Customer in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise for any loss of profits; loss of data; loss of business; loss of anticipated savings, special damages; economic and/or other similar losses; loss of contracts and/or opportunity; damage to goodwill and/or reputation; in each case whether direct, indirect or consequential (howsoever caused) which arise out of or in connection with the Contract.


INDEMNIFICATION

You agree to indemnify, defend and hold harmless Refractiv, our parents, subsidiaries, affiliates, officers, directors, co-branders and other partners, employees, consultants and agents, from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys' fees and court costs) that such parties may incur as a result of or arising from (i) any of your Content or Customer Data, (ii) your use of OverDRIVE or our services, (iii) your violation of these Terms of Use, (iv) your violation of any rights of any other person or entity, or (v) any viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines input by you into our services.

FORCE MAJEURE

We reserve the right to cancel or suspend Customer’s Subscription or to cancel this Contract (without liability to Customer) if we are prevented from or delayed in carrying on Our business due to circumstances beyond Our reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or internet failure, power failure, or failure, disruptions or changes in Google’s Services or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.

ANTI-CORRUPTION LEGISLATION

Each party hereby undertakes that, at the date of entering into force of the Contract, itself, its directors, officers or employees have not offered, promised, given, authorised, solicited or accepted any undue pecuniary or other advantage of any kind (or implied that they will or might do any such thing as at any time in the future) in any way connected with the Contract and that it has taken reasonable measures to prevent subcontractors, agents or any other third parties,  its control or determining influence, from doing so.

The Parties agree that, at all times in connection with and throughout the course of the Contract and thereafter, they will comply with and that they will take reasonable measures to ensure that their subcontractors, agents or other third parties, subject to their control or determining influence, will comply with Part 1 of the ICC Rules on Combating Corruption 2011, which is hereby incorporated by reference into the Contract, as if written out in the Contract in full.

If a Party, as a result of the exercise of a contractually-provided audit right, if any, of the other Party’s accounting books and financial records, or otherwise, brings evidence that the latter Party has been engaging in material or several repeated breaches of the provisions of Part 1 of the ICC Rules on Combating Corruption 2011, it will notify the latter Party accordingly and require such Party to take the necessary remedial action in a reasonable time and to inform it about such action. If the latter Party fails to take the necessary remedial action, or if such remedial action is not possible, it may invoke a defence by providing that by the time the evidence of breach(es) had arisen, it had put into place adequate anti-corruption preventative measures, as described in Article 10 of the ICC Rules on Combating Corruption 2011, adapted to its particular circumstances and capable of detecting corruption and of promoting a culture of integrity in its organisation. If no remedial action is taken or, as the case may be, the defence is not effectively invoked, the first Party may, at its discretion, either suspend the Contract or terminate it, it being understood that all amounts contractually due at the time of suspension or termination of the COntract will remain payable, as far as permitted by applicable law.

Any entity, whether an arbitral tribunal or other dispute resolution body, rendering a decision in accordance with the dispute resolution provisions of the Contract, shall have the authority to determine the contractual consequences of any alleged non-compliance with this ICC Anti-corruption Clause.

GENERAL

Severability. If any of the provisions of these Terms of Service is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of them will not be prejudiced.

Waiver. No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.

Rights of Third Parties. The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.  

Assignment. Customer shall not assign Their rights and/or obligations under this Contract without Our prior written consent. We shall be permitted to subcontract part or all of the Service and/or assign Our rights and/or obligations under this Contract.

Notices. Any notice given under this Contract by either party to the other must be in writing and may be delivered by raising a case with OverDRIVE Support, personally or by first-class post, and in the case of post will be deemed to have been given two working days after the date of posting. Notices will be delivered or sent to the postal or email addresses of the parties on the order, online registration or to any other address notified in writing by either party to the other for the purpose of receiving notices after the date of this Contract.

Governing Law and Jurisdiction. This Contract is governed by and construed according to English law and the parties submit to the exclusive jurisdiction of the courts of England and Wales.

DEFINITIONS

In these Terms of Service, unless the context otherwise requires:-

Refractiv, We/Us/Ours”

means Refractiv Limited, a company incorporated in England and Wales (Company Number 08260773) having its registered office Round Foundry Media Centre, Foundry Street, Leeds, LS11 5QP, United Kingdom;

“Customer,You/ Your/ Yours”

means the person or company entering into this Contract with Refractiv by accepting these Terms of Service or using the Services.

“Authorised Users”

means any individuals the Customer permits to use the Services;

“Customer Administrators”

means Authorised Users who are also designated "Administrators" for the client domain(s) in the customer's Google Apps Administrative Console or in the administration sections of our Services.

“Contract”

means these Terms of Service and the online subscription or purchase order form;

“Intellectual Property Rights”

means any copyright, database right, know how, confidential information or other industrial or intellectual property right subsisting anywhere in the world and in any application for any of the above;

“Content”

means all content accessible in the Services;

“Software”

means any software or applications supplied by OverDRIVE which are installed by Customer to provide access to the Services;

“Subscription”

means subscription to the Services by the online subscription, registration or purchase order form placed on Refractiv by Customer on behalf of Customer;

“Subscription Fee”

means the subscription fee as set out on the Website or Our quotation or pricelist based on the specific services, the number of User Logins required and the user fee band and the Subscription Period;

“Subscription Period”

means the period in respect of which a Subscription Fee is payable;

“User Login”

means any Authorised User’s personal subscription login details configured to access the Services including either a username and password specific to the Services or authorisation for authentication with a Google Apps account login;

“Admin Console”

means the online administration console provided by Refractiv with the Services to configure functionality, reporting, User Logins and other administration functions;

“Google Enterprise Services”

means Google’s hosted or managed services including Google App Engine, Google Cloud SQL,  Google Compute Engine, Google Big Query, Google Apps and Google Maps as described at http://www.google.com/enterprise;

“Google Acceptable Use Policy”

means the Google Cloud Platform acceptable use policy listed at “https://developers.google.com/cloud/terms/aup

"EU Directive"

means Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data;

“DPA Act”

means the UK Data Protection Act 1998;

“Customer Personal Data”

means the personal data processed by or on behalf of OverDRIVE pursuant to this Contract; ‘personal data’ has the meaning stated in the EU Directive.

"Customer Data"

means data provided, generated, transmitted or displayed via the Services by Customer, on behalf of Customer, or End Users as more specifically identified in clause 4 above.

“Service Level Agreement”

means the service level agreement described on the OverDRIVE website. 

“OverDRIVE Support”

means the support service for Customer Administrators.

“URL Terms”

means these Terms of Service .

“OverDRIVE Privacy Policy”

means the policy found at https://overdrive.io/help/privacy/.

“Marketplace”

means the Google Apps Marketplace which allows the provisioning of and registration for the OverDRIVE services.

“Websites”

means the OverDRIVE website at https://overdrive.io which describes the OverDRIVE services and provides links to provision and register for the OverDRIVE services.

Schedule A - Google Apps for Business

1. Privacy.

Google will provide the services and treat Customer and user personal data in accordance with the Google Privacy Policy. The Customer will notify its end users of the ways in which their personal data will be processed and obtain the relevant consents for their personal data to be processed in these ways. For the purposes of this Contract and in respect of the personal data of end users, the parties agree that Google and OverDRIVE shall each be a data processor and Customer shall be a data controller. In this clause 1, the terms “data controller”, “processed” and “data processor” shall have the meanings ascribed to them in the EU Directive.

2. Click Through Terms.

Google will present the Google terms of service upon each Customer’s first log in to the services. The Customer must accept the Google terms of service prior to accessing or using the service.

3. Service Level Agreement.

The service will be provided by Google in accordance with the service level agreement (“SLA”) located here - http://www.google.com/apps/intl/en/terms/reseller_sla.html. This SLA may be updated periodically by Google. In the event of a breach of the SLA, OverDRIVE will provide to the Customer only the remedies specified in the SLA, with no substitutions, according to the terms of the service level agreement.

4. Google Technical Support Services (“TSS”).

Google will on request by the Customer provide TSS according to the guidelines from time to time located here: http://www.google.com/apps/intl/en/terms/tssg.html (or such other URL as may be provided by Google from to time). The Customer may choose, in its sole discretion, to include OverDRIVE in communications with Google. If authorized by the Customer, OverDRIVE may submit issues to Google on behalf of the Customer.

5.  Non-payment.

The Customer agrees that failure to pay any amounts due to Refractiv by the invoice due date may, after reasonable warning and a minimum of 7 days notice, result in a partial, temporary or permanent suspension of service.

6. Refractiv, Google and Customer are independent contractors with regards to the resale of products.