Store.Elsevier.com Agreement
This agreement (“Agreement”) is made by and between Elsevier B.V., Radarweg 29, 1043 NX Amsterdam, The Netherlands (“Elsevier”) and the Organization (the “Subscriber”) identified in the order form (“Order Form”) on the website at http://www.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.
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 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.
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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 SciVerse® ScienceDirect® eBook List(s) at , 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.]
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1.1 Subscribed Products.
Elsevier hereby grants to the Subscriber the non-exclusive, non-transferable right to access and use the products and services identified under “Annual Subscription” on the Order (“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 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.
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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 SciVerse® 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”).]
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1.3 Authorized Uses.
The Subscriber and its Authorized Users may access, search, browse, view, print and download the abstracts and full text of all articles from the Elsevier journals on SciVerse® ScienceDirect® e-Select™ online service published since 1 January 1995 that are 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.
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 SciVerse® 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) SciVerse 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.
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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. Elsevier may change the Fees for any renewal effective 1 January of the following year by giving notice to the Subscriber by email and posting a notice on the Site no later than 1 November of the then current term. The Fees for such renewal will be billed by 15 December and due no later than 31 December prior to the renewal year.]
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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.]
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SECTION 4. FEES AND PAYMENT TERMS.
Payment of the fees (the “Fees”), including any applicable taxes, identified on the Order for the Subscribed Products shall be made upon receipt of invoice. The Fees shall be exclusive of any sales, use, value added, withholding or similar tax and the Subscriber shall be liable for any such taxes in addition to the Fees. If the Subscriber is within the European Union, the Subscriber shall be charged Dutch value added tax (VAT) unless the Subscriber is a foreign relevant business person and its VAT Identification Number is submitted to Elsevier and identified on the Order. The Subscriber shall promptly notify Elsevier of any changes to its VAT Identification Number or VAT status. Elsevier may charge the Subscriber any VAT, fines, penalties, interest and other costs that Elsevier may incur as a result of incorrect VAT information.]
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SECTION 5. TERM AND RENEWAL.
5.1 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 until 31 December of the same calendar year. Elsevier’s Electronic Customer Service department shall notify the Subscriber when payment has been processed and access has been activated.
5.2 Renewal.
The term of this Agreement shall renew automatically unless Elsevier terminates it or the Subscriber notifies Elsevier in writing of its decision not to renew no later than 1 December of the then current term. Elsevier will notify the Subscriber of the pending automatic renewal no later than 1 November prior to the renewal year, except as otherwise required by law. Notice of non-renewal must be timely received in order to avoid billing of the Fees for the renewal term. ]
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SECTION 5. TERM AND TERMINATION.
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 to access and use the Subscribed Products in perpetuity in accordance with the usage provisions of this Agreement.. The perpetual access granted hereunder for the above eBooks is subject to payment of a one-time fee as identified in the Shopping Cart on the Order Form as set forth in the applicable SciVerse® ScienceDirect® eBook List(s) and, after the initial year of the term of this Agreement, an annual access fee in an amount not to exceed five (5%) percent of such one-time fee. The annual access fee will not be charged if the Subscriber maintains an annual subscription on SciVerse® ScienceDirect® online, and in the event that all such annual subscriptions are terminated, the Subscriber may, at its option, continue to access the eBooks online for an annual access fee based on the number of chapters downloaded from such eBooks during the prior twelve (12) months at a rate of $0.081 | €0.063 | ¥9.04 per download (adjusted annually for inflation and cost increases), in accordance with the usage provisions of the Agreement. In the event that the Subscriber does not pay any eBooks annual access fee or maintain any annual subscription on SciVerse® ScienceDirect® online, the Subscriber may, at its option, acquire, load and technically format on a server that enables access and use by Authorized Users an electronic copy of such eBooks for cost in accordance with the usage provisions of the Agreement. The copy may not contain links and other features and functionality associated with the online version. Elsevier’s Electronic Customer Service department shall notify the Subscriber when payment has been processed and access has been activated.]
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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 for 12 months in accordance with the provisions of this Agreement until the Subscriber has exhausted its pre-paid Transactions or the twelve (12) month subscription period has expired, 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.
6.1 Warranties.
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.
6.2 Indemnities.
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.
6.3 Disclaimer.
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.
7.2 Severability.
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 Modification.
No modification, amendment or waiver of any provision of this Agreement shall be valid unless in writing and signed by the parties.
7.5 Assignment.
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.
7.6 Privacy.
Elsevier shall not, without the prior written consent of the Subscriber, transfer any personal information of any Authorized Users 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.
7.7 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 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: 2nd December 2011
