Elsevier.com agreement for e-book subscription
The parties hereto agree as follows:
SECTION 1. SUBSCRIPTION
1.1 Subscribed products
Elsevier hereby grants to the Subscriber the non-exclusive, non-transferable right to access and use the Elsevier eBooks identified in the Shopping Cart on the Order Form as set forth in the applicable ScienceDirect® eBook List(s), as may be updated annually with the changes effective as of 1 January of the following calendar year of the term of the Agreement (the “Subscribed Products”) 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
[If academic subscriber or medical with school]
Authorized Users are the full-time and part-time students, faculty, staff and researchers of the Subscriber and individuals who are independent contractors or are employed by independent contractors of the Subscriber affiliated with the Subscriber’s identified sites (the “Sites”) and individuals using computer terminals within the library facilities at the Sites permitted by the Subscriber to access the Subscribed Products for purposes of personal research, education or other non-corporate use (“Walk-in Users”).
[If corporate/ association / non-profit subscriber:]
Authorized Users are either the employees of the Subscriber or individuals who are independent contractors or are employed by independent contractors of the Subscriber affiliated with the Subscriber’s locations (the “Sites”) and permitted by the Subscriber to access the Subscribed Products.
1.3 Authorized uses
The Subscriber and its Authorized Users may:
- access, search, browse and view the Subscribed Product;
- incorporate links to the Subscribed Product on the Subscriber’s intranet and internet websites, provided that the appearance of such links and/or statements accompanying such links will be changed as reasonably requested by Elsevier.
- print, download and store a reasonable portion of individual items from the Subscribed Product for the exclusive use of the Subscriber;
- store individual journal articles from the Subscribed Product in the private library of a social networking site for the Authorized User’s own personal use only; and
- share individual items from the Subscribed Product with third party colleagues individually for their scholarly or research use;
Except if corporate:
The Subscriber may:
- print and deliver book chapters from the Subscribed Product to fulfill requests as part of the practice commonly known as “interlibrary loan” from non-commercial libraries located within the same country as the Subscriber;
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, 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;
- 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;
- substantially or systematically reproduce, retain, store locally, redistribute or disseminate online the Subscribed Products;
- post individual items from the Subscribed Products on social networking sites.
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 distribution 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, untrue, harmful, false or infringing.
SECTION 3. SUBSCRIBER PERFORMANCE OBLIGATIONS
3.1 Authorized access
Access to the Subscribed Products shall be authenticated for Authorized Users through 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 the personal use of the Authorized Users only 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. 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.
3.3 Compliance with Sanction Laws.
Elsevier reserves the right to deny access to the Subscribed Products to any person or entity who is prohibited from receiving such access based on any applicable sanctions or embargoes laws.
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, within thirty (30) days of date of invoice.
SECTION 5. TERM
The term of this Agreement shall commence when Elsevier upon the effective date of the Order Form and shall continue in perpetuity, in accordance with the usage provisions of this Agreement.
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 during the twelve (12) month period immediately preceding the date on which the claim arose, 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.
7.4 Governing law
This Agreement will be governed by and construed in accordance with the laws of The Netherlands, without regard to conflict of law principles, and the parties irrevocably consent to the exclusive jurisdiction of the courts located in Amsterdam, The Netherlands, with respect to any action or suit arising out of or pertaining to this Agreement (except where local law requires).
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, and all notices to the Subscriber shall be delivered to the contact details identified on the Order Form or to such other address(es) as the party concerned designates by notice hereunder.
Last revised: 4th April 2018