Elsevier.com agreement for ArticleChoice®
The parties hereto agree as follows:
SECTION 1. SUBSCRIPTION ARTICLE CHOICE
1.1 Subscribed products
Elsevier hereby grants to the Subscriber the non-exclusive, non-transferable right to access and use the Subscribed Products (as defined herein) and provide the Subscribed Products to its Authorized Users (as defined herein) subject to the terms and conditions of this Agreement.
1.2 Authorized users
Authorized Users are the full-time and part-time students, faculty, residents, fellows, staff, researchers, employees and independent contractors of the Subscriber affiliated with the Subscriber and individuals using computer terminals within the library facilities of the Subscriber, permitted by the Subscriber to access the Subscribed Products.
1.3 Authorized uses
The Subscriber and its Authorized Users may access, search, browse, view, print, download and locally store certain journal articles and book chapters from the ScienceDirect® ArticleChoice™ online service, with each twenty-four (24) hour access period for a selected article or chapter, a “Transaction”, and the number of pre-paid Transactions identified in the Shopping Cart on the Order Form and processed and confirmed by Elsevier (“Subscribed Products”).
1.4 Restrictions on use of subscribed products
Except as may be expressly permitted in this Agreement, the Subscriber and its Authorized Users may not:
- abridge, modify, translate or create any derivative work based on the Subscribed Products without the prior written permission of Elsevier, except to the extent necessary to make them perceptible on a computer screen to Authorized Users;
- remove, obscure or modify in any way any copyright notices, other notices or disclaimers as they appear in the Subscribed Products; or
- substantially or systematically reproduce, retain or redistribute the Subscribed Products;
- use any robots, spiders, crawlers or other automated downloading programs, algorithms or devices to continuously and automatically search, scrape, extract, deep link, index or disrupt the working of the Subscribed Products
- post individual items from the subscribed products on social networking sites.
Authorized Users who are independent contractors may use the Subscribed Products only for the purposes of the contracted work for the Subscriber.
1.5 Intellectual Property Ownership.
The Subscriber acknowledges that all right, title and interest in and to the Subscribed Products remain with Elsevier and its suppliers, except as expressly set forth in this Agreement, and that the unauthorized redistribution of the Subscribed Products could materially harm Elsevier and its suppliers.
SECTION 2. ELSEVIER PERFORMANCE OBLIGATIONS
2.1 Access to subscribed products
Elsevier will make the Subscribed Products accessible to the Subscriber and its Authorized Users from the ScienceDirect® website at http://www.sciencedirect.com.
2.2 Quality of service
Elsevier shall use reasonable efforts to provide the Subscribed Products with a quality of service consistent with industry standards, specifically, to provide continuous service with an average of 98% up-time per year, with the 2% down-time including scheduled maintenance and repairs performed at a time to minimize inconvenience to the Subscriber and its Authorized Users, and to restore service as soon as possible in the event of an interruption or suspension of service.
2.3 Withdrawal of content
Elsevier reserves the right to withdraw from the Subscribed Products content that it no longer retains the right to provide or that it has reasonable grounds to believe is unlawful, harmful, false or infringing.
SECTION 3. SUBSCRIBER PERFORMANCE OBLIGATIONS
3.1 Authorized access
Access to the Subscribed Products shall be authenticated for no more than five (5) Authorized Users by the use of no more than five (5) ScienceDirect registration usernames and passwords provided by Elsevier to the Subscriber.
3.2 Protection from unauthorized access and use
The Subscriber shall use reasonable efforts to:
- ensure that access to and use of the Subscribed Products is limited to Authorized Users and that all Authorized Users are notified of and comply with the usage restrictions set forth in this Agreement;
-ensure that any passwords or credentials used to access the Subscribed Products are issued only to Authorized Users and that neither the Subscriber nor its Authorized Users divulge any passwords or credentials to any third party; and
-immediately upon becoming aware of any unauthorized use of the Subscribed Products, inform Elsevier and take appropriate steps to ensure that such activity ceases and to prevent any recurrence.
In the event of any unauthorized use of the Subscribed Products, Elsevier may suspend the access and/or require that the Subscriber suspend the access from where the unauthorized use occurred upon notice to the Subscriber. The Subscriber shall not be liable for unauthorized use of the Subscribed Products by any Authorized Users provided that the Subscriber did not intentionally assist in or encourage such unauthorized use or permit such unauthorized use to continue after having actual notice thereof.
SECTION 4. FEES AND PAYMENT TERMS
The Subscriber shall pay to Elsevier the fees (the “Fees”), including any applicable taxes, for access to and use of the Subscribed Products identified by the Subscriber in the Shopping Cart on the Order Form at the rates in effect when the charges were incurred. The Subscriber may purchase additional pre-paid Transactions by submitting another Order Form.
SECTION 5. TERM
The term of this Agreement shall commence when Elsevier processes the Subscriber’s payment of the Fees, including any applicable taxes, and activates the Subscriber’s access to the Subscribed Products and shall continue in perpetuity in accordance with the provisions of this Agreement until the Subscriber has exhausted its pre-paid Transactions or ceased using any of its pre-paid Transactions for a period of twelve (12) consecutive months, in which case the Agreement shall be terminated and any unused pre-paid Transactions shall be forfeited. Elsevier’s Electronic Customer Service department shall notify the Subscriber when payment has been processed and access has been activated.
SECTION 6. ELSEVIER WARRANTIES AND INDEMNITIES
Elsevier warrants that use of the Subscribed Products in accordance with the terms and conditions herein will not infringe the intellectual property rights of any third party.
Elsevier shall indemnify, defend and hold harmless the Subscriber and its 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, the Subscriber will promptly notify and cooperate with Elsevier. This indemnity obligation shall survive the termination of this Agreement.
EXCEPT FOR THE EXPRESS WARRANTIES AND INDEMNITIES STATED HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, ELSEVIER AND ITS SUPPLIERS PROVIDE THE SUBSCRIBED PRODUCTS “AS IS” AND MAKE NO REPRESENTATION OR WARRANTY AND EXPRESSLY DISCLAIM ANY LIABILITY FOR ANY CLAIM ARISING FROM OR OUT OF THE SUBSCRIBED PRODUCTS, 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.
6.4 Limitation of liability
Except for the express warranties and indemnities stated herein and to the extent permitted by applicable law, in no event shall Elsevier or its suppliers 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 this Agreement, or shall the liability of Elsevier and its suppliers to the Subscriber exceed a sum equal to the Fees paid by the Subscriber hereunder, even if Elsevier or any supplier has been advised of the possibility of such liability or damages.
SECTION 7. GENERAL
7.1 Force majeure
Neither party’s delay or failure to perform any provision of this Agreement as a result of circumstances beyond its control (including, but not limited to, war, strikes, fires, floods, governmental restrictions, power failures, telecommunications or Internet failures or damage to or destruction of any network facilities or servers) shall be deemed a breach of this Agreement.
The invalidity or unenforceability of any provision of this Agreement shall not affect any other provisions of this Agreement.
7.3 Entire agreement
This Agreement contains the entire understanding and agreement of the parties and merges 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 this Agreement shall be valid unless in writing and signed by the parties.
The Subscriber shall not assign, transfer or license any of its rights or obligations under this Agreement unless it obtains the prior written consent of Elsevier, which consent shall not unreasonably be withheld.
All notices to Elsevier shall be sent to Elsevier B.V., Radarweg 29, 1043 NX Amsterdam, The Netherlands, Ecommerce@elsevier.com, and all notices to the Subscriber shall be sent to the Admin User identified in the Site User Profile or to such other address(es) as the party concerned designates by notice hereunder.
Last revised: 23rd February 2016