3 USAGE RIGHTS
3.1 The Licensee, subject to clauses 2.1 and 6 of this Licence,
may:
3.1.1 Make such temporary local electronic copies by means of
cacheing or mirrored storage of all or part of the Licensed Material
as are necessary solely to ensure efficient use by Authorised
Users.
3.1.2 Allow Authorised Users to have access to the Licensed Material
from the Server via the Secure Network.
3.1.3 Provide Authorised Users with integrated access and an integrated
author, article title, abstract and keyword (if applicable) index
to the Licensed Material.
3.1.4 Provide single printed or electronic copies of single articles
at the request of individual Authorised Users.
3.1.5 Display, download or print the Licensed Material for the
purpose of internal marketing or testing or for training Authorised
Users or groups of Authorised Users.
3.2 The Licensee and Authorised Users may, in accordance with
the copyright laws of the United Kingdom and subject to clause
6 below:
3.2.1 Search, view, retrieve and display the Licensed Material.
3.2.2 Electronically save individual articles or items of the
Licensed Material for personal use.
3.2.3 Print off a copy of parts of the Licensed Material.
3.2.4 Distribute single copies of parts of the Licensed Material
in print or electronic form to other Authorised Users.
3.3 Nothing in this Licence shall in any way exclude, modify
or affect any of the Licensee's rights under the Copyright Designs
and Patents Act 1988 or any statutory instruments made thereunder
or any amending legislation.
4 SUPPLY OF COPIES TO OTHER LIBRARIES
4.1 The Licensee may, subject to clause 6, supply to an Authorised
User of another library within the same country as the Licensee
a single copy of an individual document being part of the Licensed
Material by post, fax or electronic transmission via the Internet
or otherwise, for the purposes of research or private study and
not for Commercial Use.
5 COURSE PACKS AND ELECTRONIC RESERVE
5.1 The Licensee may, subject to clauses 2.1 and 6, incorporate
parts of the Licensed Material in printed Course Packs or Electronic
Reserve for the use of Authorised Users in the course of instruction
at the Licensee's institution, but not for Commercial Use. Each
such item shall carry appropriate acknowledgement of the source,
listing title and author of the extract, title and author of the
work, and the publisher. Copies of such items shall be deleted
by the Licensee when they are no longer required for such purpose.
Course packs in non-electronic non-print perceptible form, such
as audio or Braille, may also be offered to Authorised Users who,
in the reasonable opinion of the Licensee, are visually impaired.
6 PROHIBITED USES
6.1 Neither the Licensee nor Authorised Users may:
6.1.1 Remove or alter the authors' names or any of the Publisher's
copyright notices or other means of identification or disclaimers
as they appear in the Licensed Material.
6.1.2 Systematically make print or electronic copies of multiple
extracts of the Licensed Material for any purpose.
6.1.3 Mount or distribute any part of the Licensed Material on
any electronic network, including without limitation the Internet
and the World Wide Web, other than the Secure Network.
6.2 The Publisher's explicit written permission must be obtained
in order to:
6.2.1 Use all or any part of the Licensed Material for Commercial
Use.
6.2.2 Systematically distribute the whole or any part of the Licensed
Material to anyone other than Authorised Users.
6.2.3 Publish, distribute or make available the Licensed Material,
works based on the Licensed Material or works that combine it
with any other material, other than as permitted in this Licence.
6.2.4 Alter, abridge, adapt or modify the Licensed Material, except
to the extent necessary to make it perceptible on a computer screen
to Authorised Users. For the avoidance of doubt, no alteration
of the words or their order is permitted.
7 PUBLISHER'S UNDERTAKINGS
7.1 The Publisher warrants to the Licensee that it is the owner
of the copyright in the Licensed Material or that it is duly authorised
to control the copyright contained in the Licensed Material and
that the Licensed Material used as contemplated by this Licence
does not infringe any copyright or other proprietary or intellectual
property rights of any person. The Publisher shall indemnify and
hold the Licensee harmless from and against any loss, damage,
costs, liability and expenses (including reasonable legal and
professional fees) arising out of any legal action taken against
the Licensee claiming actual or alleged infringement of such rights.
This indemnity shall survive the termination of this Licence for
any reason. This indemnity shall not apply if the Licensee has
amended the Licensed Material in any way not permitted by this
Licence.
7.2 The Publisher shall:
7.2.1 Make the Licensed Material available to the Licensee via
the Server. The Publisher will notify the Licensee at least sixty
(60) days in advance of any anticipated specification change applicable
to the Licensed Material.
7.2.2 Make available the electronic copy of each journal issue
in the Licensed Material as soon as reasonably possible after
the date of publication of the printed version. In the event that
for technical reasons this is not possible for any particular
journal, as a matter of course, such journal shall be identified
at the time of licensing and/or renewal of a subscription, together
with the reasons therefor.
7.2.3 Provide the Licensee, within thirty (30) days of commencement
of the Subscription Period, with information sufficient to enable
the Licensee to access the Licensed Material.
7.2.4 Use reasonable endeavours to ensure that the Server has
adequate capacity and bandwidth to support the usage of the Licensee
at a level commensurate with the standards of availability for
information services of similar scope operating via the World
Wide Web, as such standards evolve from time to time over the
term of this Licence.
7.2.5 Use reasonable endeavours to make the Licensed Material
available to the Licensee and to Authorised Users at all times
and on a twenty-four hour basis, save for routine maintenance,
and to restore access to the Licensed Material as soon as possible
in the event of an interruption or suspension of the service.
7.3 The Publisher reserves the right at any time to withdraw
from the Licensed Material any item or part of an item for which
it no longer retains the right to publish, or which it has reasonable
grounds to believe infringes copyright or is defamatory, obscene,
unlawful or otherwise objectionable. The Publisher shall give
written notice to the Licensee of such withdrawal. If the withdrawn
material represents more than ten per cent (10%) of the content
published during the Subscription Period in the journal in which
it appeared, the Publisher shall refund to the Licensee at the
end of the Subscription Period that part of the Fee that is in
proportion to the amount of material withdrawn and the remaining
unexpired portion of the Subscription Period at the time of withdrawal.
7.4 EXCEPT AS EXPRESSLY PROVIDED IN THIS LICENCE, THE PUBLISHER
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF DESIGN, ACCURACY
OF THE INFORMATION CONTAINED IN THE LICENSED MATERIAL, MERCHANTABILITY
OR FITNESS OF USE FOR A PARTICULAR PURPOSE. THE LICENCED MATERIAL
IS SUPPLIED "AS IS".
7.5 EXCEPT AS PROVIDED IN CLAUSE 7.1, UNDER NO CIRCUMSTANCES
SHALL THE PUBLISHER BE LIABLE TO THE LICENSEE OR ANY OTHER PERSON,
INCLUDING BUT NOT LIMITED TO AUTHORISED USERS, FOR ANY SPECIAL,
EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER
ARISING OUT OF THE INABILITY TO USE, OR THE USE OF, THE LICENSED
MATERIAL. IRRESPECTIVE OF THE CAUSE OR FORM OF ACTION, THE PUBLISHER'S
AGGREGATE LIABILITY FOR ANY CLAIMS, LOSSES, OR DAMAGES ARISING
OUT OF ANY BREACH OF THIS LICENCE SHALL IN NO CIRCUMSTANCES EXCEED
THE FEE PAID BY THE LICENSEE TO THE PUBLISHER UNDER THIS LICENCE
IN RESPECT OF THE SUBSCRIPTION PERIOD DURING WHICH SUCH CLAIM,
LOSS OR DAMAGE OCCURRED. THE FOREGOING LIMITATION OF LIABILITY
AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE
SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES. REGARDLESS OF THE
CAUSE OR FORM OF ACTION, THE LICENSEE MAY BRING NO ACTION ARISING
FROM THIS LICENCE MORE THAN SIX (6) MONTHS AFTER THE CAUSE OF
SUCH ACTION ARISES.
8 LICENSEE'S UNDERTAKINGS
8.1 The Licensee shall:
8.1.1 Use all reasonable endeavours to ensure that all Authorised
Users are appropriately notified of the importance of respecting
the intellectual property rights in the Licensed Material and
of the sanctions which the Licensee imposes for failing to do
so.
8.1.2 Use all reasonable endeavours to notify Authorised Users
of the terms and conditions of this Licence and take steps to
protect the Licensed Material from unauthorised use or other breach
of this Licence.
8.1.3 Use all reasonable endeavours to monitor compliance and
immediately upon becoming aware of any unauthorised use or other
breach, inform the Publisher and take all reasonable and appropriate
steps, including disciplinary action, both to ensure that such
activity ceases and to prevent recurrence.
8.1.4 Issue passwords or other access information only to Authorised
Users and use all reasonable endeavours to ensure that Authorised
Users do not divulge their passwords or other access information
to any third party.
8.1.5 Provide the Publisher, within thirty (30) days of commencement
of the Subscription Period, with information sufficient to enable
the Publisher to provide access to the Licensed Material in accordance
with its obligation under clause 7.2.3. Should the Licensee make
any significant change to such information, it will notify the
Publisher not less than ten (10) days before the change takes
effect.
8.1.6 Keep full and up-to-date records of all Authorised Users
and their access details, and if appropriate provide the Publisher
with details of such additions, deletions or other alterations
to such records as are necessary to enable the Publisher to provide
Authorised Users with access to the Licensed Material as contemplated
by this Licence.
8.1.7 Use all reasonable endeavours to ensure that only Authorised
Users are permitted access to the Licensed Material, and if appropriate
notify the Publisher within a reasonable period of any person
ceasing to be an Authorised User.
8.2 The Licensee shall, in consideration for the rights granted
under this Licence, pay the Fee within thirty (30) days of receipt
of invoice and, if applicable, within thirty (30) days of receipt
of invoice relating to each subsequent Subscription Period. Receipt
of such payment shall be a condition of this Licence coming into
effect or continuing in effect. For the avoidance of doubt, the
Fee shall be exclusive of any sales, use, value-added or similar
taxes and the Licensee shall be liable to any such taxes in addition
to the Fee.
9 UNDERTAKINGS BY BOTH PARTIES
9.1 Each party shall use its best endeavours to safeguard the
intellectual property, confidential information and proprietary
rights of the other party.
10 TERM AND TERMINATION
10.1 In addition to automatic termination (unless renewed) under
clause 2.2, this Licence shall be terminated if:
10.1.1 The Licensee defaults in making payment of the Fee and
fails to remedy such default within thirty (30) days of notification
in writing by the Publisher.
10.1.2 The Licensee commits a wilful material and persistent breach
of the terms of this Licence, and particuarly of the Publisher's
copyright or other intellectual property rights or of the provision
of clause 3 in respect of usage rights or of clause 6 in respect
of prohibited uses, and fails to remedy the breach within thirty
(30) days of notification in writing by the Publisher.
10.1.3 The Publisher commits a material or persistent breach of
its undertakings and fails to remedy the breach (if capable of
remedy) within thirty (30) days of notification in writing by
the Licensee.
10.1.4 Either party becomes insolvent or becomes subject to receivership,
liquidation or similar external administration.
10.2 On termination, all rights and obligations of the parties
automatically terminate except for obligations in respect of Licenced
Material to which access continues to be permitted as provided
in clause 2.3.
10.3 On termination of this Licence by the Publisher for cause,
as specified in clause 10.1.2 above, access from the Server to
all of the Licensed Material by the Licensee and Authorised Users
shall be terminated.
10.4 On termination of this Licence by the Licensee for cause,
as specified in clause 10.3 above, the Publisher shall forthwith
refund the proportion of the Fee that represents the paid but
unexpired part of the Subscription Period.
11 GENERAL
11.1 This Licence constitutes the entire agreement of the parties
and supersedes all prior communications, understandings and agreements
relating to the subject matter of this Licence, whether oral or
written.
11.2 Alterations to this Licence are only valid if they are recorded
in writing and signed by both parties. In the event that a licence
is signed by the parties in respect of the Licensed Material,
that written licence shall take precedence over this Licence.
11.3 This Licence may not be assigned by either party to any
other person or organisation, nor may either party subcontract
any of its obligations, without prior written agreement of the
other party.
11.4 If rights in all or any part of the Licensed Material are
assigned to another publisher, the Publisher shall use its reasonable
endeavours to ensure that the terms and conditions of this Licence
are maintained.
11.5 Any notices to be served on either of the parties by the
other shall be sent by prepaid recorded delivery or registered
post to the postal address nominated by each party to be its address
for the purposes of the subscription and this Licence. All such
notices shall be deemed to have been received within 14 days of
posting.
11.6 Either party's failure to perform any provision of this
Licence as a result of circumstances beyond its control (including,
without limitation, war, strikes, floods, government restrictions,
power, telecommunications or Internet failures, or damage to or
destruction of any network facilities) shall not be deemed to,
or give rise to, a breach of this Licence.
11.7 The invalidity or unenforceability of any provision in this
Licence shall not affect the continuation or enforceability of
the remainder of this Licence.
11.8 The failure of either party to require performance by the
other party of any provision of this Licence will not affect its
full right to require such performance at any subsequent time;
nor will the waiver by either party of a breach of any provision
in this Licence be taken or held to be a waiver of the provision
itself.
11.9 This Licence shall be governed by and construed in accordance
with English Law; the parties irrevocably agree that any dispute
arising out of or in connection with this Licence will be subject
to and within the jurisdiction of the courts of England.
END OF LICENCE
