Store.Elsevier.com Agreement for Elsevier BioSource Project Edition

 

This agreement ("Agreement") is made by and between Elsevier B.V., Radarweg 29, 1043 NX Amsterdam, The Netherlands ("Elsevier") and the individual (the "Subscriber") identified in the order form ("Order Form") on the website at http://store.elsevier.com ("Website") as of the date that the Subscriber submits the Order Form by selecting the "Place Order" button thereon. This Agreement expressly incorporates by reference and includes the Website's Terms and Conditions, Privacy Policy, and any guidelines, rules or disclaimers that may be posted and updated on specific web pages of the Website or on notices that are sent to the Subscriber.

SECTION 1. SUBSCRIPTION.

1.1 Subscribed Products.

Elsevier grants to the Subscriber the non-exclusive, non-transferable right to access and use the database via the website identified in the Order Form, subject to the terms and conditions of this Agreement. The Subscribed Product is licensed, not sold, to Subscriber.

1.2 Authorized Uses.

The Subscriber may:

   access, search, browse and view the Subscribed Product;

   extract, print and store search results, from the Subscribed Product for the exclusive use of the Subscriber;

1.3 Restrictions on Use of Subscribed Product.

Except as expressly stated in this Agreement or otherwise permitted in writing by Elsevier, the Subscriber may not:

   modify, enhance, otherwise change, merge copies of the Subscribed Product with other software, or create derivative works of the Subscribed Product;

   use any back-up or disaster recovery copies of the Subscribed Product (or allow another party to use such copies) for any purpose other than to replace an original copy if it is destroyed or becomes defective or unavailable for use due to a disaster;

   disassemble, decompile, "unlock", reverse engineer or in any manner decode the Subscribed Product for any reason, except as expressly permitted by law without the possibility of contractual waiver, and then only to the extent required to achieve the interoperability of the Subscribed Product; and

   remove, obscure or modify in any way any copyright notices, other notices or disclaimers as they appear in the Subscribed Product.

   deliver or otherwise make the Subscribed Product directly or indirectly available to any third parties.

1.4 Intellectual Property Ownership.

The Subscriber acknowledges that all right, title and interest in and to the Subscribed Product, its Documentation, components and all Upgrades (as defined herein), Updates (as defined herein), moral rights and all modifications or alterations thereto, no matter by whom or when made and without regard to any formal patent, copyright or similar rights, or the absence thereof, remain with Elsevier and its suppliers, and that the unauthorized reproduction and distribution of the Subscribed Product could materially harm Elsevier and its suppliers. "Updates" mean any and all changes or additions to the Subscribed Product, including, without limitation, any fixes, error corrections, improvements and Upgrades thereof. "Upgrade" means a new version of, or patch or bug-corrections and other error corrections or minor enhancement issued from time to time with respect to the Subscribed Product, or a particular component of the Subscribed Product. Upgrades do not include separately priced and distinct product that Elsevier may release from time to time.

SECTION 2. ELSEVIER PERFORMANCE OBLIGATIONS.

2.1 Delivery.

Upon submitting the Order Form, Elsevier will provide access to the Subscribed Product by providing an access code to the Subscriber. Delivery of the access code will take up to two (2) working days. During the term of the Agreement, the Subscriber will have access to the database via the website hosted by the Service Provider.

2.2 Quality of Service.

The Service Provider will be responsible for the quality of service.

SECTION 3. SUBSCRIBER PERFORMANCE OBLIGATIONS.

3.1 Protection from Unauthorized Access and Use.

The Subscriber will use reasonable efforts to limit access to and use of the Subscribed Product to Subscriber. The Subscriber may make use of the Subscribed Product for personal use only. Promptly on becoming aware of any unauthorized use of the Subscribed Product, the Subscriber shall inform Elsevier’s Electronic Customer Service department and take appropriate steps to end such activity and to prevent any recurrence. If any unauthorized use of the Subscribed Product occurs, Elsevier may suspend the access.

3.2 Provision of Infrastructure.

The Subscriber is responsible for providing the IT environment required for the successful installation and operation of the Subscribed Product, if any.

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 once the entitlement e-mail has been sent by our customer service team and shall continue for the duration as reflected in the selected access option on the Website, in accordance with the usage provisions of this Agreement.

SECTION 6. ELSEVIER WARRANTIES AND INDEMNITIES.

6.1 Warranties.

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.

6.2 Indemnities.

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.

6.5 Disclaimer.

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 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, power failures, telecommunications or Internet failures or damage to or destruction of any network facilities or servers) will be deemed a breach of this Agreement.

8.2 Severability.

The invalidity or unenforceability of any provision of this Agreement will 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. The parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.

8.4 Governing Law.

This Agreement will be governed by and construed in accordance with the laws of the Netherlands and the parties irrevocably consent to the exclusive jurisdiction of the courts of the Netherlands, with respect to any action or suit arising out of or pertaining to this Agreement (except where local law requires).

8.5 Assignment.

The Subscriber will 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 will not unreasonably be withheld.

8.6 Privacy.

Elsevier will not, without the prior written consent of the Subscriber, transfer any personal information of the Subscriber to any non-affiliated third party or use it for any purpose other than as described in this Agreement and in the online privacy policy for the relevant online service.

8.7 Notices.

All notices to Elsevier shall be sent to Elsevier B.V., Radarweg 29, 1043 NX Amsterdam, The Netherlands, elsevierstore@elsevier.com, 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 shall have designated by notice hereunder.

Last revised: 24th October 2013