Institution Subscription License
This document sets out the standard terms between Academic Scholars Publishing House, (UK)(Ph),
(“the Publisher”) and those (the “Licensee”) seeking campus-wide online access to journals published by the Publisher.
WHEREAS the Publisher holds the rights granted under this License
AND WHEREAS the Licensee desires to use the rights and the Publisher desires to grant to the Licensee the license to use the rights for a fee, subject to the terms and conditions of this License.
IT IS AGREED AS FOLLOWS
1. KEY DEFINITIONS
1.1 In this license, the following terms shall have the following meanings:
Authorised Users Current members of the faculty and other staff of the Licensee (whether on a permanent, temporary, contract or visiting basis) and individuals who are currently studying at the Licensee’s institution, who are permitted to access the Secure Network from within the Library Premises or from such other places where Authorised Users work or study (including but not limited to Authorised Users’ offices and homes, halls of residence and student dormitories) and who have been issued by the Licensee with a password or other authentication together with other persons who are permitted to use the Licensee’s library or information service and access the Secure Network but only from computer terminals within the Library Premises.
Commercial Use Use for the purposes of monetary reward (whether by or for the Licensee or an Authorised User) by means of sale, resale, loan, transfer, hire or other form of exploitation of the Licensed Materials. For the avoidance of doubt, neither recovery of direct costs by the Licensee from Authorised Users, nor use by the Licensee or by an Authorised User of the Licensed Materials in the course of research funded by a commercial organisation, is deemed to be Commercial Use.
Course Packs A collection or compilation of journal articles assembled by members of staff of the Licensee for use by students in a class for the purposes of instruction.
Electronic Reserve Electronic copies of journal articles made and stored on the Secure Network by the Licensee for use by students in connection with specific courses of instruction offered by the Licensee to its students.
Library Premises The physical premises of the library or libraries operated by the Licensee.
Licensed Materials The electronic material made available by the Publisher.
Secure Network A network (whether a standalone network or a virtual network within the Internet) which is only accessible to Authorised Users approved by the Licensee whose identity is authenticated at the time of log-in and periodically thereafter consistent with current best practice, and whose conduct is subject to regulation by the Licensee.
Server The server, either the Publisher’s server or a third party server designated by the Publisher, on which the Licensed Materials are mounted and may be accessed.
2.1 The Publisher agrees to grant to the Licensee the non-exclusive and non-transferable right, throughout the world, to give Authorised Users access to the Licensed Materials via a Secure Network for the purposes of research, teaching and private study, subject to the terms and conditions of this license, and the Licensee agrees to pay the fee set by the Publisher for the purchase of those rights.
2.2 On termination of this License, the Publisher shall provide continuing access for Authorised Users to that part of the Licensed Materials which was published and paid for within the Subscription Period, either from the Server or by supplying electronic files to the Licensee.
3. USAGE RIGHTS
The Licensee, subject to clause 6, may:
• Load the Licensed Materials on the Licensee’s server on the Secure Network.
• Make such back-up copies of the Licensed Materials as are reasonably necessary.
• Make such local electronic copies of all or part of the Licensed Materials as are necessary solely to ensure efficient use by Authorised Users.
• Allow Authorised Users to have access to the Licensed Materials from the Server via the Secure Network.
• Provide Authorised Users with integrated access and an integrated author, article title, abstract and index to the Licensed Material and all other similar material licensed from other publishers.
• Provide single printed or electronic copies of single articles at the request of individual Authorised Users.
• Display, download or print the Licensed Materials for the purpose of internal marketing or testing or for training Authorised Users or groups of Authorised Users.
Authorised Users may, subject to clause 6:
• Search, view, retrieve and display the Licensed Materials.
• Electronically save individual articles or items of the Licensed Materials for personal use.
• Print off a copy of parts of the Licensed Materials.
• Distribute a copy of individual articles or items of the Licensed Materials in print or electronic form to other Authorised Users; for the avoidance of doubt, this sub-clause shall include the distribution of a copy for teaching purposes to each individual student Authorised User in a class at the Licensee’s institution.
Nothing in this license 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; for Authorised Users in the USA nothing in this license shall in any way exclude, modify or affect any of the Licensee’s rights under the Copyright Act 1976 and the Digital Millennium Copyright Act or any statutory instruments made thereunder or any amending legislation.
4. SUPPLY OF COPIES TO OTHER LIBRARIES
Notwithstanding the provisions of Clause 3, it is understood and agreed that neither the Licensee nor Authorised Users may provide, by electronic means, to a user at another library a copy of any part of the Licensed Materials for research or private study or otherwise.
5. COURSE PACKS AND ELECTRONIC RESERVE
The Licensee may, subject to clause 6, incorporate parts of the Licensed Materials in printed Course Packs and Electronic Reserve collections 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, volume and issue number and year of publication. Copies of such items shall be deleted by the Licensee when they are no longer used 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:
• remove or alter the authors’ names or the Publisher’s copyright notices or other means of identification or disclaimers as they appear in the Licensed Materials;
• systematically make print or electronic copies of multiple extracts of the Licensed Materials for any purpose other than back-up copies permitted under clause 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:
• use all or any part of the Licensed Materials for any Commercial Use;
• systematically distribute the whole or any part of the Licensed Materials to anyone other than Authorised Users;
• publish, distribute or make available the Licensed Materials, works based on the Licensed Materials or works which combine them with any other material, other than as permitted in this license;
• alter, abridge, adapt or modify the Licensed Materials, except to the extent necessary to make them perceptible on a computer screen to Authorised Users.
7. PUBLISHER’S UNDERTAKINGS
7.1 The Publisher warrants to the Licensee that the Licensed Materials used as contemplated by this license do not infringe the copyright or any 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 not apply if the Licensee has amended the Licensed Materials in any way not permitted by this license.
7.2 The Publisher shall:
• use reasonable endeavours to make available the electronic copy of each journal issue in the Licensed Materials not later than the day of publication of the printed version where such exists. 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, together with such reasons.
• 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 license.
• use reasonable endeavours to make the Licensed Materials available to the Licensee and to Authorised Users at all times and on a twenty-four (24) hour basis, save for routine maintenance (which shall be notified to the Licensee in advance wherever possible), and to restore access to the Licensed Materials 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 Materials 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.
7.4 Except as expressly provided in this License, 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 Materials, merchantability or fitness of use for a particular purpose. The Licensed Materials are 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 Materials. 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 license shall in no circumstances exceed the Fee paid by Licensee to the Publisher under this license 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 license more than six (6) months after the cause of action arises.
7.6 The Publisher confirms to the licensee that usage statistics covering the online usage of the journals included in this license will be provided if requested. The licensor further confirms that such usage statistics will be in the same form as collected by the Server
8. LICENSEE’S UNDERTAKINGS
The Licensee shall:
• use reasonable endeavours to ensure that all Authorised Users are appropriately notified of the importance of respecting the intellectual property rights in the Licensed Materials and of the sanctions which the Licensee imposes for failing to do so;
• use reasonable endeavours to notify Authorised Users of the terms and conditions of this license;
• immediately upon becoming aware of any unauthorised use or other breach, inform the Publisher and take all reasonable and appropriate steps, both to ensure that such activity ceases and to prevent any recurrence;
• 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;
• use reasonable endeavours to ensure that only Authorised Users are permitted access to the Licensed Materials.
9. UNDERTAKINGS BY BOTH PARTIES
Each party shall use reasonable 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 license shall be terminated:
• if the Publisher commits a material or persistent breach of any term of this license and fails to remedy the breach (if capable of remedy) within sixty (60) days of notification in writing by the Licensee;
• if the Licensee commits a wilful material and persistent breach of the Publisher’s copyright or other intellectual property rights or of the provisions of clause 3 in respect of usage rights or of clause 6 in respect of prohibited uses;
• if 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 Licensed Materials to which access continues to be permitted as provided in clause 2.2.
This license constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter of this license, whether oral or written.
Alterations to this license and to the Schedules to this license are only valid if they are recorded in writing and signed by both parties.
This license may not be assigned by either party to any other person or organisation, nor may either party sub-contract any of its obligations, except as provided in this license in respect of the management and operation of the Server, without the prior written consent of the other party, which consent shall not unreasonably be withheld.
If rights in all or any part of the Licensed Materials are assigned to another publisher, the Publisher shall use its best endeavours to ensure that the terms and conditions of this license are maintained.
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 address of the addressee as set out in this license or to such other address as notified by either party to the other as its address for service of notices. All such notices shall be deemed to have been received within 14 days of posting.
Neither party’s delay or failure to perform any provision of this license, as result of circumstances beyond its control (including, without limitation, war, strikes, floods, governmental restrictions, power, telecommunications or Internet failures, or damage to or destruction of any network facilities) shall be deemed to be, or to give rise to, a breach of this license.
The invalidity or un-enforceability of any provision of this license shall not affect the continuation or enforceability of the remainder of this license.
Either party’s waiver, or failure to require performance by the other, of any provision of this license will not affect its full right to require such performance at any subsequent time, or be taken or held to be a waiver of the provision itself.