Section 1. Subscription.
1.1 Subscribed Products.
Elsevier hereby grants to the Subscriber the non-exclusive, non-transferable right to access and use the Geofacets database, (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.
Authorized Users are the individuals permitted by the Subscriber to access the Subscribed Products. Only an Authorized User can access the Subscribed Products and cannot distribute their login information to any other individual.
1.3 Authorized Uses.
Each Authorized User may extract individual maps from the Subscribed Products and upload them on and integrate them into the Subscriber's internal secure geologic software analysis system for internal research purposes. The Subscribed Products are licensed, not sold, to the Subscriber. Elsevier permits that the Subscriber may print download and store a reasonable portion of individual items from the Subscribed Products.
1.4 Restrictions on Use of Subscribed Products.
Except as may be expressly permitted in this Agreement or by Elsevier’s express written authorization, the Subscriber and its Authorized Users may not:
- abridge, modify, translate or create any derivative work based on the Subscribed Products;
- remove, obscure or modify in any way any copyright notices, other notices or disclaimers as they appear in the Subscribed Products;
- reproduce, retain, distribute, sell, rent, lease or lend the Subscribed Products;
- bypass, modify, defeat or circumvent security measures that protect the Subscribed Products; or
- 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.
- divulge any passwords or credentials to any third party.
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 website www.Geofacets.com. Access to the Subscribed Products is granted from the time of an Authorized User's first successful login and lasts for seven (7) or thirty (30) calendar days.
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 one (1) Authorized User by the use of no more than one (1) registration username and password provided by Elsevier to the Subscriber. Each registration is for a single individual only, unless specifically designated otherwise on the registration page. Elsevier does not permit a) anyone other than the Authorized User to access the Subscribed Products by using another individual’s name or password; or b) access through a single name being made available to multiple users on a network or otherwise.
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 System Requirements
Use of the Subscribed Products requires compatible devices, internet access, and certain software (fees may apply); may require periodic updates, and may be affected by the performance of these factors. Subscriber agrees that meeting these requirements, which may change from time to time, is the responsibility of the Subscriber.
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 Product identified by the Subscriber in the Shopping Cart on the Order Form at the rates in effect when the charges were incurred.
Section 5. Term.
The term of this Agreement shall commence when the access code is entered for the first time and shall continue for one (1) year, in accordance with the usage provisions of this Agreement.
Section 6. Elsevier warranties and indemnities
Elsevier warrants to the Subscriber that Elsevier has the necessary rights to grant this subscription, and that use of the Subscribed Product by the Subscriber in accordance with the terms of this Agreement will not infringe the intellectual property rights of any third party.
Elsevier will indemnify, defend and hold harmless the Subscriber 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 Product 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 reasonably cooperate with Elsevier. This indemnity obligation will survive the termination of this Agreement.
6.3 Limitations of Indemnification.
Elsevier will have no obligation under Section 6.2 to the extent that: (a) any alleged infringement relates to use of the Subscribed Product in combination with other data products, processes or materials not provided by Elsevier or any modification of the Subscribed Product not made or authorized by Elsevier; (b) the Subscriber continues allegedly infringing activity after being notified thereof or after being informed of available modifications that would have avoided the infringement; (c) the Subscriber’s use of the Subscribed Product is not strictly in accordance with the terms of this Agreement; or (d) any alleged infringement is related to the Subscriber’s failure to implement, without the prior written consent of Elsevier, any available improvements or corrections to the Subscribed Product provided by Elsevier that could have remedied such claim.
6.4 Remedies for Third Party Injunction.
If the Subscriber is enjoined from using the Subscribed Product due to an infringement of a third party’s intellectual property right, or Elsevier believes an injunction may occur, Elsevier will have the option to either (a) modify the Subscribed Product to render it non-infringing while maintaining substantial equivalence, or (b) procure a license or subscription which permits the Subscriber at no additional cost to continue to use the Subscribed Product, or (c) terminate this agreement for the Subscribed Product and refund to the Subscriber a portion of the fees paid for the Subscribed Product, prorated to the end of the then-current term.
EXCEPT FOR THE EXPRESS WARRANTIES AND INDEMNITIES STATED HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIBED PRODUCT AND THEIR COMPONENTS ARE PROVIDED “AS IS” AND ELSEVIER AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SUBSCRIBED PRODUCT AND ANY OTHER DATA, DOCUMENTATION OR MATERIALS PROVIDED IN CONNECTION WITH THIS 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. THE SUBSCRIBER IS SOLELY RESPONSIBLE FOR ITS USE OF THIRD PARTY INFORMATION CONTAINED IN OR INFORMATION GENERATED THROUGH USE OF THE SUBSCRIBED PRODUCT.
6.6 Limitation of Liability.
Except for the express warranties and indemnities stated herein and to the extent permitted by applicable law, in no event will 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, loss of profits, results of use, inaccuracy of data, cost of procurement of substitute goods, services or technology, arising out of or in connection with this Agreement, nor will 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. Risk of loss
Risk of loss for the Subscribed Product transfers when the Subscriber downloads or accesses the Subscribed Product.
Section 8. General.
8.1 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.
8.3 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.
8.4 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, firstname.lastname@example.org, and all notices to the Subscriber shall be delivered to the contact details identified on the Order Confirmation or to such other address(es) as the party concerned designates by notice hereunder.