Elsevier general terms and conditions of sale
These Elsevier General Terms and Conditions of Sale (“Terms and Conditions”) in combination with the relevant product specific terms and conditions form an integral part of all contracts regarding Elsevier online products (“Subscribed Products”) between a subscribing organization (“you” or “your”) and Elsevier B.V, or its affiliated companies (“we” or “us”), as reflected in an executed online contract form (“Contract Form”). The Terms and Conditions, the relevant product specific terms and conditions and the Contract Form are jointly referred to below as “Agreement”.
Section 1. Our warranties and indemnities
We warrant that:
(a) we are duly organized, validly existing and properly constituted in our jurisdiction of formation; and
(b) we have all requisite power and authority necessary for the execution, delivery and performance of this Agreement.
1.2 Intellectual Property Rights
We warrant that we own, free and clear of all encumbrances, or have the valid right to use under license, all intellectual property rights in the Subscribed Products, and that use of the Subscribed Products in accordance with these Terms and Conditions and the relevant Product Specific Terms will not infringe the intellectual property rights of any third party. We will indemnify, defend and hold harmless you and your Authorized Users from and against any loss, damage, costs, liability and expenses (including reasonable attorneys’ fees) arising from or out of any third-party action or claim that use of the Subscribed Products in accordance with the terms and conditions herein infringes the intellectual property rights of such third party. If any such action or claim is made, you will promptly notify and reasonably cooperate with us. This indemnity obligation will survive the termination of the Agreement. We will have no obligation under this section 2.2 to the extent that: (a) any alleged infringement relates to use of the Subscribed Products in combination with other data products, processes or materials not provided by us or any modification of the Subscribed Products not made or authorized by us; (b) you continue allegedly infringing activity after being notified thereof or after being informed of available modifications that would have avoided the infringement; (c) your use of the Subscribed Products is not in accordance with these Terms and Conditions; or (d) any alleged infringement is related to your failure to implement, without our prior written consent, any available improvements or corrections to the Subscribed Products provided by you that could have remedied such claim.
EXCEPT FOR THE EXPRESS WARRANTIES AND INDEMNITIES STATED HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIBED PRODUCTS ARE PROVIDED “AS IS”. WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SUBSCRIBED PRODUCTS AND ANY OTHER DATA, DOCUMENTATION OR MATERIALS PROVIDED IN CONNECTION WITH THE AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY ERRORS, INACCURACIES, OMISSIONS, OR DEFECTS CONTAINED THEREIN, AND ANY IMPLIED OR EXPRESS WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
1.4 Limitation of liability
1.4.1 Except for the express warranties and indemnities stated herein and to the extent permitted by applicable law, in no event will either we or you be liable for any indirect, incidental, special, consequential or punitive damages including, but not limited to, loss of data, business interruption or loss of profits, arising out of or in connection with the Agreement, nor will either our liability to you or your liability to us exceed a sum equal to the Fees paid by you hereunder during the twelve (12) month period immediately preceding the date on which the claim arose, even if the liable party has been advised of the possibility of such liability or damages.
1.4.2 The exclusions and limitations of liability set out in section 2.4.1 shall not apply to liability arising from the following:
(a) our obligation to indemnify you under Section 2.2 (Intellectual Property Rights);
(b) any claims resulting from gross negligence or willful misconduct or fraud of a party;
(c) breach of your or our respective obligations under Section 3.10 (Compliance with Laws);
(d) breach of your or our obligations under Section 3.9 (Confidentiality); or
(e) any other forms of liability which by law cannot be limited or excluded.
For the purposes of this Section 2.4.2, “willful misconduct” includes, but is not limited to, your intentional infringement of our intellectual property rights, or those of our licensors, or your intentional use of the Subscribed Products in a manner inconsistent with the rights granted to you under these Terms and Conditions or the relevant Product Specific Terms.
Section 2. Termination
Either party may terminate these Terms and Conditions or any affected Statement of Work(s) on written notice in the event of a material breach or persistent non-material breaches by the other party of any of its obligations under these Terms and Conditions or any Statement of Work and the party said to be in breach fails to cure the breach within thirty (30) days after receipt of notice of such breach.
2.2 Effect of termination
Upon termination or expiration of these Terms and Conditions or any SOW(s), you will cause your Authorized Users to promptly discontinue all use of the affected Subscribed Products or Deliverable(s) under an SOW, including the affected Documentation; return to us any and all copies of the affected Subscribed Products, including the affected Documentation, any media and any proprietary materials of ours that have been provided to you or, destroy all such materials and document the same to our reasonable satisfaction; and we may terminate or disable access to the affected Subscribed Products or Deliverable(s) under an SOW by you. You will also pay to us any outstanding fees, costs, or expenses incurred up through the date of termination.
Termination of these Terms and Conditions on grounds of material breach or persistent non-material breaches results in termination of the right to use any and all Subscribed Products.
Unless otherwise agreed with us, you will be responsible for extracting your data from the Subscribed Products before the effective end date of these Terms and Conditions and we will have no obligation to store any such data after that date.
Section 3. General
3.1 Force Majeure
Neither party’s delay or failure to perform any provision of the Agreement as a result of circumstances beyond its control (including, but not limited to, war, strikes, fires, floods, power failures, telecommunications or Internet failures or damage to or destruction of any network facilities or servers) will be deemed a breach of the Agreement. If, as a result of conditions beyond its control, we are unable to provide you with access to the Subscribed Products for a period exceeding five (5) consecutive days, we will extend the term of the Agreement for a corresponding period at no additional cost to you.
The invalidity or unenforceability of any provision of the Agreement will not affect any other provisions of the Agreement.
3.3 Entire agreement
The Agreement contains the entire understanding and agreement of the parties and replaces and supersedes any and all prior and contemporaneous agreements, communications, proposals and purchase orders, written or oral, between the parties with respect to the subject matter contained herein.
No modification, amendment or waiver of any provision of the Agreement will be valid unless in writing and signed by the parties, except for changes reflecting substituted titles, IP addresses, authentication mechanisms, invoicing and contact address details which may be confirmed by us in an email notice sent to you.
3.5 Assignment / Change of control
You will not assign, transfer or license any of your rights or obligations under the Agreement unless you obtain our prior written consent, which will not unreasonably be withheld. If you are a corporate Subscriber you may unilaterally terminate the Agreement if a third party acquires the majority of your ownership interest.
All notices given pursuant to the Agreement will be in writing and delivered to the party to whom such notice is directed at the address specified in the Contract Form.
If you are a corporate customer, the parties agree that; either party may use the other party’s name and associated marks for purposes of client/contractor references, advertising or promotional campaigns. The parties agree that either party may issue a press release or make a public announcement regarding the Agreement subject to the other party’s right to review and prior approval of the relevant portions of such release or announcement containing reference to its name or marks, which review and approval will not be unreasonably withheld or delayed.
Parties’ employees, officers, directors and agents will maintain as confidential and not disclose to any non-affiliated third party without the other party’s prior written consent the financial terms and commercial conditions of the Agreement. As an exception to the aforementioned we may disclose such information (i) to applicable service providers to the extent necessary to perform their functions in support of the Agreement and (ii) where reasonably necessary to address security, safety, fraud or other legal issues.
3.1 Compliance with law
Each party will comply with all applicable laws, ordinances and judicial and administrative orders relating to its duties and obligations under this Agreement.
3.11 Unauthorized use
If any unauthorized use of the Subscribed Products occurs or if we suspect that it may have occurred or be about to occur, we may immediately suspend the access and/or require that you suspend the access from where the unauthorized use occurred or where it is suspected. You will cooperate fully with our reasonable requests surrounding the investigation and remediation of any unauthorized use.