Category Archives: Attachment B1

SB1

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FORM OF LIBRARY-REGISTRY (FULLY PARTICIPATING) AGREEMENT

Also posted in Settlement | Comments closed

SB1 0

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This LIBRARY-REGISTRY (FULLY PARTICIPATING) AGREEMENT (with all of the exhibits hereto, the “Library Agreement”) is entered into by and between ______________, a ___________ with its principal offices at _________________ (the “Registry”), on behalf of itself and all Rightsholders, and __________________, with its principal offices at _________________________________(“Library”), is entered into as of _________________ and is effective on the later of such date or the Effective Date of the Settlement Agreement (the “Library Agreement Effective Date”). The Registry and Library are sometimes referred to hereinafter individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, pursuant to a Settlement Agreement between Google and Plaintiffs dated as of October 28, 2008, the Registry has been established as a clearinghouse for the administration of the rights of Rightsholders under the Settlement Agreement; and

WHEREAS, all of the Rightsholders, through the Settlement embodied in the Settlement Agreement, are deemed to have authorized the Registry to enter into this Library Agreement on their behalf; and

WHEREAS, Library desires to become a Fully Participating Library under the Settlement Agreement.

NOW, THEREFORE, in consideration of the covenants and agreements set forth in this Library Agreement, Registry and Library hereby agree as follows:

Also posted in Attachment A, Section B1.0, Settlement | Tagged | Comments closed

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Definitions. Capitalized terms have the meanings ascribed to them in Exhibit A (Settlement Agreement Definitions).

Also posted in Section B1.1, Settlement | Comments closed

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Settlement Agreement Terms.

Also posted in Section B1.2, Settlement | Comments closed

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(a) Authorizations of Library. As of the Effective Date, the Registry authorizes Library to (i) use its Library Digital Copy in accordance with the terms and conditions of this Library Agreement and (ii) engage in the activities, and only the activities, set forth in this Library Agreement, and only in accordance with such terms and conditions as are applicable to those activities; provided that the remedy for any breach of a term or condition of this Library Agreement shall not be termination of such authorizations except as provided in Section 8.3(g) (Remedies) of Exhibit E (Security and Breach). This Library Agreement does not authorize Library to make any uses of Books and Inserts other than those uses that are authorized under this Library Agreement. This Library Agreement neither authorizes nor prohibits, nor releases any Claims with respect to, (1) the use of any work or material that is in the public domain under the Copyright Act in the United States, (2) the use of books in hard copy (including microform) format other than the creation and use of Digital Copies of Books and Inserts, or (3) Library’s Digitization of Books if the resulting Digitized Books are neither provided to Google pursuant to the Settlement Agreement nor included in the Library Digital Copy provided to Library by Google, or the use of any such Digitized Books that are neither provided to Google pursuant to the Settlement Agreement nor included in such LDC.

Also posted in Section B1.2, Section B1.2(a), Settlement | Comments closed

SB1 2.2

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(b) Non-Exclusive Digitization Rights. As of the Effective Date, in the United States, (i) Library may provide Books and Inserts to Google in hard copy (including microform) format to be Digitized (or in a form Digitized by or for Library), and (ii) Library may use such Books and Inserts as provided in this Library Agreement. The authorizations to use Books and Inserts provided for by this Library Agreement are not transfers of copyright ownership to such Books or Inserts, and nothing in this Library Agreement shall operate to transfer any copyright ownership in Books or Inserts.

Also posted in Section B1.2, Section B1.2(b), Settlement | Comments closed

SB1 2.3

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(c) Library Digital Copy. The obligations and restrictions set forth in this Library Agreement regarding Digital Copies of Books apply only to the Library Digital Copy provided to Library by Google. If, pursuant to Section 3.5(a) (Right to Remove) of the Settlement Agreement, a Rightsholder exercises its right to have its Book Removed, then Library agrees to also Remove such Book from its Library Digital Copy; provided that, pursuant to such section, the right to Remove is limited to requests made within twenty-seven (27) months from the Notice Commencement Date. Library may maintain Books on back-up tapes or on any other back-up storage media in accordance with Section 2(g) (Security of Library Digital Copy) below. If any back-up tape or other back-up storage media containing any Book that has been Removed is restored by Library, then such Book shall also be Removed from the copy made from the back-up tape or other back-up storage media. Library will implement a Rightsholder’s Removal direction within ninety (90) days after notice from the Registry.

Also posted in Section B1.2, Section B1.2(c), Settlement | Comments closed

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(d) Use of Library Digital Copy. The Registry, on behalf of the Rightsholders, and Library agree to the terms and conditions set forth in Exhibit B (Fully Participating Library Uses).

Also posted in Section B1.2, Section B1.2(d), Settlement | Comments closed

SB1 2.5

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(e) Fully Participating Libraries’ and Cooperating Libraries’ Exercise of Collective Rights. In each case in which the Fully Participating Libraries and the Cooperating Libraries have the right as a group to exercise or waive a right or grant or withhold consent under certain sections of the Settlement Agreement, as set forth in Exhibit C (Exercise of Collective Rights), Library agrees to the terms of such Exhibit C (Exercise of Collective Rights) and to the terms of Attachment 1 (Selection of Designated Representative and Security Representatives and Establishment of Governance Rules) thereto.

Also posted in Section B1.2, Section B1.2(e), Settlement | Comments closed

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(f) Meetings to Discuss Library Uses. The Registry, Google, Library and other Fully Participating Libraries will meet from time to time as mutually agreed to discuss operational matters regarding the Library-Registry (Fully Participating) Agreements and the provisions of the Settlement Agreement that are applicable to Fully Participating Libraries, as set forth in Exhibit D (Meetings to Discuss Library Uses).

Also posted in Section B1.2, Section B1.2(f), Settlement | Comments closed

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(g) Security of Library Digital Copy. Library and the Registry agree to the terms and conditions set forth in Exhibit E (Security and Breach). Library shall implement an initial Security Implementation Plan prior to using the LDC after the Effective Date. For all breaches of its Security Implementation Plan that are subject to Section 8.4 (Remedies for Breaches of the Security Implementation Plan that Do Not Result in Unauthorized Access) of Exhibit E (Security and Breach), Library and the Registry agree either [ ] that the monetary remedies specified in Sections 8.4(b) (Single or Non-Willful/Intentional Breach of Security Implementation Plan) or 8.4(c) (Repeated or Willful/Intentional Breaches of Security Implementation Plan), as applicable, of such Exhibit apply to Library or [ ] Library will be subject to a judicial action or an arbitration under Section 8 (Dispute Resolution) of this Library Agreement (at the Registry’s election) allowing the Registry to seek all available remedies in equity and at law. [Library to check one of the two alternatives in the preceding sentence.]

Also posted in Section B1.2, Section B1.2(g), Settlement | Comments closed

SB1 2.8

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(h) Hosting by Fully Participating Libraries. The Hosting Addendum attached hereto indicates whether Library will host an LDC for another Fully Participating Library, or whether another Fully Participating Library will host Library’s LDC for Library, and the applicable terms therefor. Library promptly will provide a revised Hosting Addendum to Registry in the event that, if Library is a Hosting Fully Participating Library, Library terminates its hosting arrangement with a Requesting Fully Participating Library or, if Library is a Requesting Fully Participating Library, Library terminates its hosting arrangement with one Hosting Fully Participating Library or enters into another hosting arrangement with a different Hosting Fully Participating Library for hosting of Library’s LDC.

Also posted in Section B1.2, Section B1.2(h), Settlement | Comments closed

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Digital Copy of Excluded Books. In the event that Google excludes a Book from one or more Display Uses for editorial reasons, and provides to the Registry a Digital Copy of such Book pursuant to Section 3.7(e)(i) (Digital Copy of Excluded Books) of the Settlement Agreement, then the Registry may, subject to Section 3.5 (Right to Remove and Exclude) of the Settlement Agreement, engage, with the consent (not to be unreasonably withheld) of the Fully Participating Library or the Cooperating Library from which the Library Scan of such Book was made (including, if Google constructed a Digital Copy of a Book pursuant to Section 7.2(a)(i) (Fully Participating Library Collections) of the Settlement Agreement from one or more physical Books, all such libraries that were the source of such physical Books), a Third-Party Required Library Services Provider that, once engaged, may make available to users a Digital Copy of that Book for uses comparable to Display Uses and Non-Display Uses; provided that, if a Book is not then Commercially Available and the Third-Party Required Library Services Provider makes available the Book for a fee, then the Third-Party Required Library Services Provider must also offer the Required Library Services (Section 7.2(e) (Required Library Services Requirement) of the Settlement Agreement) for the Book to the extent required by such Fully Participating Library or Cooperating Library. Such Third-Party Required Library Services Provider is, in connection with any Claim arising out of its making available such Digital Copy of the Book, deemed to be a successor of Google for purposes of Section 10.1(g) (Google Releasees) of the Settlement Agreement.

Also posted in Section B1.3, Settlement | Comments closed

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Term And Termination.

Also posted in Section B1.4, Settlement | Comments closed

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(a) Effective Date. This Library Agreement, if not terminated pursuant to any provision hereof, shall become effective on the Library Agreement Effective Date.

Also posted in Section B1.4, Section B1.4(a), Settlement | Comments closed

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(b) Term. This Library Agreement shall continue in full force and effect until the last to expire of the U.S. copyright in each Book and Insert, unless otherwise terminated at an earlier date pursuant to Section 4(c) (Termination if Settlement Agreement Not Final) or Section 4(d) (Termination by Library).

Also posted in Section B1.4, Section B1.4(b), Settlement | Comments closed

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(c) Termination if Settlement Agreement Not Final. In the event that the Registry and Library agree that the Effective Date will never occur, this Library Agreement shall be null and void.

Also posted in Section B1.4, Section B1.4(c), Settlement | Comments closed

SB1 4.4

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(d) Termination by Library. Library may terminate this Library Agreement at any time for any reason or for no reason, upon thirty (30) days’ notice to the Registry. In the event of such termination, Library shall delete or permanently render unusable its LDC, and shall certify to the Registry in writing that it has done so. This obligation shall survive termination pursuant to this Section 4(d) (Termination by Library).

Also posted in Section B1.4, Section B1.4(d), Settlement | Comments closed

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Representations, Disclaimer And Limitation Of Liability.

Also posted in Section B1.5, Settlement | Comments closed

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(a) Mutual Warranties. Each Party represents and warrants to the other that (i) it has full power and authority to enter into this Library Agreement and to perform its obligations hereunder; and (ii) this Library Agreement constitutes its valid and binding obligation, enforceable against it in accordance with its terms.

Also posted in Section B1.5, Section B1.5(a), Settlement | Comments closed

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(b) Disclaimer. The warranties explicitly set forth above are the only warranties provided herein and are in lieu of all other warranties by the Parties, express or implied, with respect to the subject matter of this Library Agreement.

Also posted in Section B1.5, Section B1.5(b), Settlement | Comments closed

SB1 5.3

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(c) Limitation of Liability. In no event will Library or the Registry be liable for lost profits or any form of indirect, special, incidental, consequential or punitive damages of any character from any claims arising out of this Library Agreement, whether based on breach of contract (including, without limitation, breach of the Security Standard referred to in Exhibit E (Security and Breach)), tort (including negligence), or otherwise, and whether or not such Party has been advised of the possibility of such damage.

Also posted in Section B1.5, Section B1.5(c), Settlement | Comments closed

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Releases.

Also posted in Section B1.6, Settlement | Comments closed

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(a) Use of Digital Copies by Library. Pursuant to Section 10.2(a) (Release of Google Releasees, Fully Participating Library Releasees, Cooperating Library Releasees, Public Domain Releasees and Other Library Releasees) of the Settlement Agreement, as of the Effective Date, Library is released by Rightsholder Releasors from the Fully Participating Library Released Claims. Such section is set forth in Exhibit F (Fully Participating Library Releases).

Also posted in Section B1.6, Section B1.6(a), Settlement | Comments closed

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(b) Library Releases of Rightsholders. Without further action by anyone, as of the Effective Date, Library, for good and sufficient consideration, the receipt and adequacy of which are hereby acknowledged, shall be deemed to have fully, finally and forever released, relinquished, settled, and discharged, each Rightsholder Releasor and Class Counsel, from any and all Claims that directly or indirectly relate to, are based upon or arise out of, the commencement, prosecution or settlement of the Action, or the negotiation or execution of this Library Agreement.

Also posted in Section B1.6, Section B1.6(b), Settlement | Comments closed

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Third-Party Beneficiary.

Also posted in Section B1.7, Settlement | Comments closed

SB1 7.1

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(a) Library. The Registry, on behalf of Rightsholders, acknowledges and agrees that Library is a third-party beneficiary of certain provisions of the Settlement Agreement, as set forth in and according to the terms of Exhibit G (Third-Party Beneficiary).

Also posted in Section B1.7, Section B1.7(a), Settlement | Comments closed

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(b) Rightsholders. Library acknowledges and agrees that each Rightsholder is a third-party beneficiary of this Library Agreement, entitled to enforce it in accordance with Section 8.3 (Breaches – General Principles) of the Settlement Agreement and Section 8.3 (Breaches – General Principles) of Exhibit E (Security and Breach) as if such Rightsholder were a party hereto.

Also posted in Section B1.7, Section B1.7(b), Settlement | Comments closed

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Dispute Resolution. Library hereby agrees that all disputes arising under this Library Agreement shall be subject to Exhibit H (Dispute Resolution). Except as provided in Exhibit H (Dispute Resolution), any claims, disputes or actions arising under or to enforce this Library Agreement shall be commenced and maintained only in the U.S. District Court for the Southern District of New York, and all actions regarding the interpretation, implementation and enforcement of this Library Agreement shall be brought exclusively in such Court, with the Registry and Library submitting to the personal jurisdiction thereof, unless venue in the state in which Library is located is required by the law of such state.

Also posted in Section B1.8, Settlement | Comments closed

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Miscellaneous Provisions.

Also posted in Section B1.9, Settlement | Comments closed

SB1 9.01

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(a) Notices. Unless provided for to the contrary in this Library Agreement, any and all notices or other communications or deliveries required or permitted to be made under this Library Agreement shall be in writing and sent to the Parties at their addresses identified above (or as otherwise provided by notice given pursuant to this Section 9(a) (Notices)). Notice shall be deemed received (i) upon receipt when delivered personally, (ii) upon written verification of receipt from overnight courier, (iii) upon verification of receipt of registered or certified mail or (iv) upon verification of receipt via facsimile or electronic mail, provided that such notice is also sent simultaneously via first class mail. Contact information shall be updated in writing as necessary to ensure that each Party has current information regarding all such contacts.

Also posted in Section B1.9, Section B1.9(a), Settlement | Comments closed

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(b) Governing Law. This Library Agreement shall be governed by and construed in accordance with the law of the State of _______________, without reference to principles of conflicts of laws. [Governing law to be specified in each Library-Registry Agreement. Governing law will be New York or the state in which Library is located if required by the law of such state.]

Also posted in Section B1.9, Section B1.9(b), Settlement | Comments closed

SB1 9.03

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(c) Entire Agreement. This Library Agreement, including exhibits, sets forth the entire agreement between the Registry and Library with respect to its subject matter.

Also posted in Section B1.9, Section B1.9(c), Settlement | Comments closed

SB1 9.04

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(d) Amendment. This Library Agreement may be amended by a written agreement signed by both Parties, only if such amendment does not impair the rights of Rightsholders under this Library Agreement.

Also posted in Section B1.9, Section B1.9(d), Settlement | Comments closed

SB1 9.05

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(e) Assignment. Except with respect to the use of contractors pursuant to Section 9(h) (Use of Contractors), neither Party may assign any of its rights or delegate any of its duties under this Library Agreement without the prior written consent of the other Party, which shall not unreasonably be withheld or delayed. Any attempted assignment, delegation or transfer in derogation hereof shall be null and void. This Library Agreement shall be binding upon the successors and permitted assigns of both Parties.

Also posted in Section B1.9, Section B1.9(e), Settlement | Comments closed

SB1 9.06

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(f) Severability. If any provision of this Library Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Library Agreement shall otherwise remain in full force and effect and remain enforceable between the Parties.

Also posted in Section B1.9, Section B1.9(f), Settlement | Comments closed

SB1 9.07

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(g) No Waiver. The failure of either Party to act in the event of a breach of this Library Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.

Also posted in Section B1.9, Section B1.9(g), Settlement | Comments closed

SB1 9.08

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(h) Use of Contractors. Library may use third parties to exercise its rights or to perform any of its obligations under this Library Agreement, including the hosting and storage of Library’s LDC. If and to the extent that Library uses third parties to exercise its rights or to perform any of its obligations as set forth in this Library Agreement, Library shall, at all times, be and remain responsible for ensuring that such third parties act in accordance with this Library Agreement. Library shall be liable for any such third party’s nonconformance with or breach of this Library Agreement, and such breaches shall be regarded as breaches by Library for purposes of Exhibit E (Security and Breach), except as otherwise set forth in the Hosting Addendum.

Also posted in Section B1.9, Section B1.9(h), Settlement | Comments closed

SB1 9.09

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(i) Interpretation. The interpretive provisions of Section 17.32 (Interpretation) of the Settlement Agreement apply to this Library Agreement.

Also posted in Section B1.9, Section B1.9(i), Settlement | Comments closed

SB1 9.10

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(j) Compliance with Law. Notwithstanding any other provision of this Library Agreement, nothing in this Library Agreement requires Library or the Registry to take any action that would violate any applicable law and neither of them shall be held to have breached this Library Agreement by omitting to take any action that, if taken, would violate any applicable law.

Also posted in Section B1.9, Section B1.9(j), Settlement | Comments closed

SB1 9.11

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(k) Counterparts. This Library Agreement may be signed in counterparts, each of which shall constitute a duplicate original. Execution by facsimile shall be fully and legally binding on a Party.

Also posted in Section B1.9, Section B1.9(k), Settlement | Comments closed

SB1 e

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[The Exhibits of each Library-Registry (Fully Participating) Agreement will attach, or incorporate by reference, the following sections from the Settlement Agreement.]

Exhibit A: Settlement Agreement Definitions [Relevant definitions from the Settlement Agreement]

Exhibit B: Fully Participating Library Uses [Section 7.2 (Fully Participating Library Uses)]

Exhibit C: Exercise of Collective Rights [Section 7.4 (Fully Participating Libraries’ and Cooperating Libraries’ Exercise of Collective Rights) and Attachment 1 hereto]

Exhibit D: Meetings to Discuss Library Uses [Section 7.5 (Meetings to Discuss Library Uses)]

Exhibit E: Security and Breach [Article VIII (Security and Breach)]

Exhibit F: Fully Participating Library Releases [Fully Participating Library releases from Section 10.2 (Releases) and the related definitions from 10.1 (Definitions)]

Exhibit G: Third-Party Beneficiary [Section 7.2(f)(i) and the sections to which it refers]

Exhibit H: Dispute Resolution [Article IX (Dispute Resolution)]

Also posted in Section SB1.e, Settlement | Comments closed

SB1 h

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Check here if Library is a Hosting Fully Participating Library: __

List Requesting Fully Participating Library(ies) for which Library will host:


Check here if Library is a Requesting Fully Participating Library: __

List Hosting Fully Participating Library that will host for Library:


If Library is a Hosting Fully Participating Library, Library shall protect the security of all of the LDCs of all of the Requesting Fully Participating Library(ies) from Prohibited Access and Third- Party Unauthorized Access in the same way that it is obligated to protect the security of its own LDC as described in Exhibit E (Security and Breach). If Library is a Hosting Fully Participating Library, then Library, and not any of the Requesting Fully Participating Library(ies), shall be liable for Library’s compliance with Exhibit E (Security and Breach) with respect to any of the LDCs of Requesting Fully Participating Library(ies) hosted by Library; provided that any Requesting Fully Participating Library is responsible for any act of such Requesting Fully Participating Library that results in any Prohibited Access or any Third-Party Unauthorized Access to its LDC. If Library is a Requesting Fully Participating Library, then Library shall not be liable for its Hosting Fully Participating Library’s compliance with Exhibit E (Security and Breach) with respect to Library’s LDC, provided that Library is responsible for any act of Library that results in any Prohibited Access or any Third-Party Unauthorized Access to its LDC. If Library is a Hosting Fully Participating Library, it may not make any use of the LDCs of any of the Requesting Fully Participating Library(ies) except to the extent required to host such LDCs and to enable the Requesting Fully Participating Library(ies) to use its or their LDCs pursuant to its or their respective Library- Registry (Fully Participating) Agreement(s).

Library:

By:

Print Name:

Title:

Date:

Also posted in Section SB1.h, Settlement | Comments closed