SIMPLYE END USER AGREEMENT
Please take a moment to read the End Use License Agreement (EULA) below. This EULA is important because it provides the conditions for your use of the NYPL SimplyE application, your relationship with NYPL, and your relationship with the software contributors and eBook content providers, including your local library, that help to power SimplyE. By continuing to use SimplyE, you accept the terms of this EULA. If you do not accept the terms, you are not authorized to use NYPL SimplyE.
NYPL SimplyE End User License Agreement
Last Updated: 12.8.17
This End User License Agreement (“EULA”) is a legal agreement made between The New York Public Library, Astor, Lenox, and Tilden Foundations (“NYPL”, “we”, “us”, or “our”), and you (“you” and “your”) as a licensee and user of NYPL SimplyE’s machine-readable object code (“the Software”), an eReader application for mobile devices developed and distributed by NYPL. By continuing to use the Software, you are confirming your acceptance of the Software and are agreeing to become bound by this EULA. If you do not agree to be bound by these terms, then you may not use the Software. Failure to abide by the terms of this EULA may result in termination of your access to the Software, eBook content (the “Content”), and any related websites or applications controlled by NYPL. Notwithstanding the foregoing, software having a separate end user license agreement shall be covered by that separate end user license agreement and shall be expressly excluded from the definition of Software. Questions concerning this EULA, Software and/or Content shall be directed here: info@librarysimplified.org
I. Grant of License to Software
A. NYPL grants you a non-exclusive, non-assignable, non-transferable, limited license to the Software in machine-readable code only for your personal, non-commercial use. The Software is licensed as a single product, and not sold. No ownership rights in the Software are transferred to you at any time. You acknowledge and warrant that nothing in this EULA gives you right, title, or interest in the Software.
B. You shall not:
i. copy, rent, lease, sell, repair, transfer, assign, sublicense, disassemble, circumvent, reverse engineer or decompile, modify or alter the Software including, but not limited to, translating or creating derivative works, under any circumstances;
ii. separate the Software into its component parts for independent use;
iii. remove any proprietary notices and/or labels on or in the Software; and/or
iv. use the Software for any commercial or illegal purpose.
C. End User Terms Required by Adobe. The Software contains Adobe DRM (“the Adobe Software”), which NYPL has provided to you by license arrangement with Adobe Systems Incorporated (“Adobe”), a Delaware corporation having a place of business at 345 Park Avenue, San Jose, CA 95110-2704, and with WebQEM pty Ltd (the “Adobe Supplier”), a corporation having a place of business at 59 Backland Road, Atlanta, GA 30342. As a condition of that license, you agree to be bound by the specific terms of this subsection. This subsection limits your use of the Adobe Software, and also requires you to use the Adobe License Signing Service (the “Adobe Service”), and comply with its terms, when using the Adobe Software. You agree as follows:
i. No Modification or Reverse Engineering. You specifically acknowledge and agree that other than as expressly set forth in this EULA, you shall not modify, port, adapt or translate the Adobe Software or its documentation. You will not reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Adobe Software not supplied to you in source code form. Notwithstanding the foregoing, decompiling the Adobe Software is permitted to the extent that the laws of a jurisdiction give you the right to do so to obtain information necessary to render the Adobe Software interoperable with other software; provided, however, that you must first request such information from Adobe or the Adobe Supplier, and Adobe or the Adobe Supplier may, in their discretion, either provide such information to you or impose reasonable conditions, including a reasonable fee, on such use of the Adobe Software to ensure that Adobe and the Adobe Supplier’s proprietary rights in the Adobe Software are protected.
ii. Proprietary Notices. You agree that as a condition of your rights hereunder, each copy of the Adobe Software and its documentation shall contain the same proprietary notices of Adobe, the Adobe Supplier, and their suppliers that appear in such Adobe Software or documentation provided by the Adobe Supplier, and as otherwise may be reasonably required by the Adobe Supplier.
iii. Ownership. Adobe, the Adobe Supplier, and their suppliers are the sole and exclusive owners of all rights, title and interest, including all trademarks, copyrights, patents, trade names, trade secrets, and other intellectual property rights in and to the Adobe Software. Except for the rights expressly granted in this EULA, you are not granted any rights to patents, copyrights, trade secrets, trade names, trademarks (whether or not registered), or any other rights, franchises or licenses with respect to the Adobe Software or its documentation, and you agree that you will not exceed the scope of the licenses granted herein. There are no implied licenses granted under this EULA, and all rights not expressly granted to you in this EULA are reserved.
iv. Log-In Information. To gain access to and use the Adobe Service, you may be required to create an ID and password or other log-in ID and password issued by Adobe (“Log-In Information”). You are responsible for all activity occurring under your Log-In Information, and you must keep your Log-In Information confidential and not share your Log-In Information with third parties. Adobe has no obligation or responsibility with regard to your use, distribution, disclosure, or management of Log-In Information. Notwithstanding the foregoing, Adobe may require you to change your Log-In Information if such Log-In Information is inconsistent with the terms of this EULA.
v. The Adobe Service. You will use the Adobe Software only when the Adobe Software is integrated with the Adobe Service. You agree that Adobe will collect, transmit and use the eBook Transaction Data to provide the Adobe Service and to enable billing under the applicable pricing models. You have adequate rights to allow Adobe, for such collection, use and sharing of eBook Transaction Data. eBook Transaction Data means all the data required to provide the Adobe Service, for digital content, primarily eBooks; which shall include but is not limited to the Adobe Software version, fulfillment ID, transaction type (permanent or expiring), eBook metadata like geo, subscription ID, price, currency, epub version, resource type (epub/PDF), or users Internet Protocol.
vi. Use Restrictions.
(a) In connection with your access or use of the Adobe Service, you will not: introduce a virus, worm, Trojan horse or other harmful software code or similar files that may damage the operation of a third party’s computer or property or information;
(b) use the Adobe Service in any manner that could damage, disable, overburden, or impair any server, or the network(s)connected to any server or interfere with any other party’s use and enjoyment of the Adobe Service;
(c) attempt to gain unauthorized access to service, materials, other accounts, computer systems or networks connected to any server or to the Adobe Service, through hacking, password mining, or any other means;
(d) obtain or attempt to obtain any materials or information through any means not intentionally made available through the Adobe Service;
(e) host, on a subscription basis or otherwise, the Adobe Service, including any related application, to permit a third party to use the Adobe Service to create, transmit, or protect any content;
(f) engage in any systematic extraction of data or data fields, including without limitation email addresses;
(g) disclose, harvest, or otherwise collect information, including email addresses, or other private Information about any third party without the party’s express consent;
(h) transmit junk mail, spam, surveys, contests, pyramid schemes, chain letters, or other unsolicited e-mail or duplicative messages;
(i) sell, lease, or rent access to or use of the Adobe Service, or otherwise transfer any rights to use the Adobe Service under this EULA (including without limitation, on a timeshare or service bureau basis); or
(j) defraud, defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
vii. Termination of Service. Upon your material breach of a provision of this EULA respecting the Adobe Service, Adobe or the Adobe Supplier may discontinue your access to the Adobe Service.
viii. Termination of Vendor ID. Adobe or the Adobe Supplier may terminate any Vendor ID in the event that it believes, in its sole and absolute discretion, that continued use of the Vendor ID, may compromise the effectiveness of the Adobe Software or the Adobe Service.
D. Open Source Version. If you are interested in learning about or accessing NYPL’s open source code version of the Software released on GitHub, you can visit https://github.com/NYPL-Simplified/Simplified (last visited 2/10/2021). The open source version of the Software is not licensed to you under this EULA and does not include any licenses for third-party software.
E. Communication. NYPL uses LibAnswers to fulfill requests and perform various functions necessary to improve the Software. NYPL encourages you to read the Privacy Policy at https://springshare.com/privacy.html (last visited 2/10/2021) of LibAnswers parent company. NYPL also uses Service Objects for address validation and encourages you to read Service Object’s Privacy Policy at https://www.serviceobjects.com/privacy (last visited 2/10/2021). We use the contact information provided by you through LibAnswers to contact you outside of the Software. If you have questions or wish to review or delete information captured through LibAnswers, please contact Ask NYPL at gethelp@nypl.org.
II. Use of eBook Content Accessed Using the Software
A. Multiple Providers; Multiple Licenses. The SimplyE Application is designed to be a platform for digital content provided by your local library from multiple sources. To access and read Content using the Software, you must register an account with a participating library (a “Provider”), such as NYPL, and agree to its terms and conditions of service. Additionally, NYPL has made some Content available to all SimplyE users without further registration.
B. Authorized Use. You agree to use Content only for your own personal, non-commercial use in the United States consistent with the copyright and other intellectual property laws which apply to such Content, except where otherwise allowed as described in Subsections D and G. The Content is licensed, not sold, and no ownership rights in the Content are transferred to you at any time. You acknowledge and warrant that nothing in this EULA gives you right, title, or interest in the Content.
C. Lending Content. Your Provider gives you access to Lending Content as part of your library membership. You can recognize Lending Content by the statement “This book is available to borrow” in the Details page of an eBook. You agree not to reproduce, modify, redistribute, synchronize, perform, publicly display, or otherwise infringe the copyright of Lending Content. At the conclusion of your Provider’s prescribed lending period, you agree to delete all copies of borrowed Lending Content.
D. Non-Lending Content. Your Provider and/or the NYPL may give you access to eBooks which you may permanently download to your device. You can recognize such eBooks by a statement saying the book is “available to keep” in the Details page of an eBook. eBooks that you can permanently download are typically derived from the public domain, though some restrictions may still apply (see Subsection G below).
E. Content Distributors. Your Provider may authorize you to borrow or download Content from third parties (a “Distributor”). You can recognize Content’s Distributor by the statement “distributed by:” in the Details page of an eBook. From time to time, NYPL or your Provider may incorporate new Distributors into the SimplyE application.
F. Responsibility for Terms. You are solely responsible for reading and agreeing to the Terms and Conditions of your Provider and its associated Distributors BEFORE using Content. For your convenience only, you can find links to some Distributor’s Terms and Conditions and Privacy Policies in the Content Licenses section of your user account. You acknowledge that any information provided in this section may not reflect the current or accurate terms governing your relationship with Distributors. We encourage you to check regularly for updates to these terms.
G. Additional information. More detailed information about the copyright protection and use restrictions of Content can typically be found in the “About,” “Imprint,” or “Copyright” sections of an eBook. For general information about copyright, fair use, public domain, and related topics, you may consult http://www.copyright.gov/.
III. Trademarks
A. All text, graphics, user interfaces, visual interfaces, photographs, trademarks (whether or not registered), logos, sounds, music, and artwork (collectively, “Marks”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Marks, contained on the Software is owned, controlled or licensed by or to NYPL and its suppliers, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws. The Marks of NYPL and NYPL’s suppliers may not be used without prior written consent of NYPL or NYPL’s suppliers, as the case may be.
IV. Age of Users
A. Individuals under the age of 18 are not permitted to use the Software without the supervision of a parent or legal guardian. Furthermore, NYPL does not knowingly collect or solicit personal information from children under the age of 13 or knowingly allow such persons to register for an account online or to post personal information online. Should NYPL learn that someone under the age of 13 has provided any personal information to or on the Software, NYPL will remove that information as soon as possible.
V. Feedback; Usage Data,
A. Any feedback or suggestions regarding the Software provided by you to NYPL, and any related intellectual property rights, shall be licensed to NYPL by you on a perpetual, royalty-free, worldwide, and irrevocable basis. You acknowledge and understand that in connection with your use of the Software certain information regarding your use of the Software may be transmitted to NYPL and its suppliers (“Usage Data”). This Usage Data may be collected and used by NYPL and its suppliers to provide support services to you, to better tailor the Software to your use, to improve the Software generally, and for research, development, and fundraising purposes. You hereby consent to such activities. All Usage Data collection is subject to NYPL’s Privacy Policy.
VI. Privacy Policy
A. For information about NYPL’s data protection and collection practices, please read NYPL’s Privacy Policy at http://www.nypl.org/help/about-nypl/legal-notices/privacy-policy (last visited 06/20/2017), which is incorporated herein by reference. You agree to NYPL’s use of your data in accordance with the Privacy Policy.
B. When using the Software, you are interacting with the online services of your Provider and its Distributors, who may collect information about you and your use of the Software and their own services. You are also solely responsible for reading and agreeing to the Privacy Policies of your Provider and any associated Distributors.
VII. No Warranties; No Support
THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, NYPL AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, AND DUTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND/OR CONTENT, 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, NYPL AND ITS SUPPLIERS DISCLAIM ANY WARRANTY THAT YOUR USE OF THE SOFTWARE AND/OR CONTENT WILL BE UNINTERRUPTED, SECURE, TIMELY OR ERROR FREE. YOU ACKNOWLEDGE AND AGREE THAT THIS EULA DOES NOT ENTITLE YOU TO ANY SUPPORT FOR THE SOFTWARE AND/OR CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR IN WRITING, OBTAINED BY YOU FROM NYPL OR ITS SUPPLIERS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS EULA.
VIII. Limitation of Liability
THE SOFTWARE IS BEING PROVIDED BY NYPL FREE OF CHARGE. ACCORDINGLY, YOU AGREE THAT NYPL AND ITS SUPPLIERS SHALL HAVE NO LIABILITY ARISING FROM OR RELATED TO YOUR ACCESS TO AND/OR USE OF THE SOFTWARE AND/OR CONTENT (OR NYPL’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 NYPL OR ITS OFFICERS, TRUSTEES, AGENTS, EMPLOYEES, OR ITS 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, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE AND/OR CONTENT, EVEN IF NYPL OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. NYPL’S MAXIMUM AGGREGATE LIABILITY, OR THAT OF ITS SUPPLIERS, ARISING IN CONNECTION WITH THIS EULA SHALL NOT, IN ANY EVENT, EXCEED ANY AMOUNTS RECEIVED UNDER THIS EULA.
IX. Indemnification
You agree to indemnify, defend, and hold harmless NYPL and its officers, trustees, employees, agents, and its suppliers from any claim or demand, including reasonable attorneys’ fees, made by any third party arising from or in any way related to (i) your use or access of (or inability to use or access) the Software and/or Content; (ii) your violation of any third party right, including without limitation any copyright, property or privacy right; and/or (iii) violation of this EULA. NYPL shall provide you with written notice of any such claim or demand. NYPL and its suppliers reserve 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 NYPL’s prior written consent to the settlement and, as the case may be, the prior written consent of its suppliers (which consent shall not be unreasonably withheld or delayed, or cause any delay or harm in the settlement discussion).
X. Digital Millennium Copyright Act
A. Notice: The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that Content hosted by NYPL infringes your copyright, you (or your agent) may send NYPL a notice requesting that the material be removed or access to it blocked. Notice can be sent to takedown@nypl.org or mailed to:
NYPL Copyright Agent Michele Mayes, General Counsel
The New York Public Library
476 5th Avenue New York, NY 10018
212.930.0552
The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow NYPL to locate the material on the Software; (d) information reasonably sufficient to permit NYPL to contact the complaining party, such as the name, address, telephone number and e-mail address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. NYPL suggests that you consult your legal advisor before filing a notice. Also, be aware that there can be penalties for false claims under the DMCA.
B. Counter-Notice: If you believe in good faith that your Content that was removed (or to which access was disabled) is not infringing, or that you have authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law to post and use the material in your Content, you may send a counter-notice to the NYPL Copyright Agent listed above, containing the following information: (a) your physical or electronic signature; (b) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled; (c) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; (d) your name, address, telephone number, and e-mail address; (e) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which you are located, or if your address is outside of the United States, for the Southern District of New York; and (f) a statement that you will accept service of process from the person who provided notification of the alleged infringement or their agent. NYPL suggests that you consult your legal advisor before filing a counter-notice. Also, please be aware that there can be penalties for false claims under the DMCA.
If a counter-notice is received by the NYPL Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after the receipt of the counter-notice, at our sole discretion.
XI. U.S. Government Rights
A. The Software licensed hereunder is provided with restricted rights applicable to private and public licenses alike. Without limiting the foregoing, any use, duplication, modification, reproduction, operation, performance, release or disclosure of the Software by the U.S. Government is subject to restrictions as set forth in this EULA and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013 (c)(1)(ii)(OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable.
B. You agree that by using the Software and accessing Content that: (i) you do not reside in a country subject to embargo or export controls by the U.S. Government; (ii) you are not on the List of Denied Persons as published by the U.S. government; and (iii) you will not use the Software or any Content for any illegal purpose.
XII. Modification of the EULA and Software
A. NYPL may modify any of the terms and conditions contained in this EULA at any time and at NYPL’s sole discretion.
B. From time to time, NYPL, or third parties may automatically update or otherwise modify the Software, including, but not limited to, for purposes of enhancement of security functions, error correction and improvement of functions, at such time as you interact with NYPL’s or third parties’ servers, or otherwise. Such updates or modifications may delete or change the nature of the features or other aspects of the Software, including functions you may rely upon. You hereby agree that such activities may occur at NYPL’s sole discretion and that NYPL may condition continued use of the Software upon your complete installation or acceptance of such update or modifications. Any updates/modifications shall be deemed to be, and shall constitute part of, the Software for purposes of this EULA. By acceptance of this EULA, you consent to such update/modification.
C. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR SOLE RECOURSE IS TO TERMINATE THIS EULA BY DISCONTINUING USE OF THE SOFTWARE AND REMOVING IT FROM YOUR MOBILE DEVICE. YOUR CONTINUED USAGE OF THE SOFTWARE AND/OR CONTENT FOLLOWING NYPL’S MODIFICATION CONSTITUTES YOUR IRREVOCABLE AND BINDING ACCEPTANCE OF THE CHANGE.
D. You understand and agree that the Content might become unavailable for a number of reasons, including an operational glitch, a DMCA takedown request, or a decision on our end to terminate your account.
XIII. Termination
A. The term of this EULA (“Term”) shall continue indefinitely unless terminated by NYPL or you in accordance with the provisions herein.
B. NYPL reserves the right, in its sole discretion (for any reason or for no reason) and at any time without notice to you, to modify, suspend or discontinue the Software and/or Content, and/or suspend or terminate your rights under this EULA to access and/or use the Software and/or Content. You may terminate this EULA by discontinuing use of the Software and removing it from your mobile device.
C. Upon termination of this EULA, you shall promptly delete and remove any and all Software and Content in your possession or under your control unless otherwise specified. Any termination of access to the Software and/or Content will also immediately terminate any and all licenses granted to you hereunder. All disclaimers of warranties and limitation of liability set forth in this EULA shall survive any termination of this EULA.
D. NYPL will terminate your access to the Software if, under appropriate circumstances and in NYPL’s sole discretion, you are determined to be a repeat infringer of a third party’s copyright(s).
XIV. Compliance
A. NYPL reserves the right to take steps NYPL believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this EULA. You acknowledge and agree that NYPL may preserve any transmittal or communication by you with NYPL or any third party through the Software or otherwise to this end. All users are advised that any library record or other information collected by NYPL as described herein is, pursuant to New York CPLR §4509, subject to disclosure upon subpoena, court order, or as otherwise authorized by applicable law.
XV. General Terms
A. All Disputes Arising From This EULA. This EULA shall be governed, interpreted, and enforced by the laws of the State of New York. Any legal action brought involving the Software, NYPL Content, and/or EULA shall be brought only in the courts of the State of New York, in the County of New York, or in the federal courts located in such state (and county). Both you and NYPL submit to venue and jurisdiction in these courts. In the event that an action or claim arises outside of the exclusive jurisdiction specified herein which names NYPL as a party, NYPL and you specifically agree to initiate, consent to and/or cooperate with any and all efforts to remove the matter to the exclusive jurisdiction named herein, or otherwise take any and all reasonable actions to achieve the objectives of this provision.
B. Entire Agreement. This EULA constitutes the entire agreement and understanding between you and NYPL and supersedes all prior and contemporaneous agreements, understandings, negotiations and proposals, oral or written.
C. Severability. In the event that a court of competent jurisdiction determines that any portion of this EULA is unenforceable, said unenforceability shall not affect any other provision of this EULA.
D. Independent Transactions. NYPL makes no representation and shall have no liability or obligation whatsoever in relation to your use of any Third-Party Services accessed through the Software. Any transaction completed with any Third-Party Services through the Software, and any dispute concerning the terms of service of any of the Third-Party Services, is between you and the relevant third party, and not NYPL.
E. Remedies. Violation of any of the above provisions or restrictions may result in a termination of your ability to access the Software or the Content. NYPL reserves any and all rights or remedies that may be available in the event of your breach of this EULA.
F. Waiver. The failure of NYPL to exercise or enforce any right or provision of this EULA shall not operate as a waiver of such right or provision, nor shall any course of conduct between NYPL and you or any other party be deemed to modify any provision of this EULA.