ELSEVIER SUBSCRIPTION TERMS AND CONDITIONS
This agreement (“Agreement”) is entered into as of 2020 by and between _______ (the “Consortium”) and Elsevier B.V., Radarweg 29, 1043 NX Amsterdam, The Netherlands and Elsevier B.V., Radarweg 29, 1043 NX Amsterdam, The Netherlands (“Elsevier”).
The parties hereto agree as follows:
SECTION 1. SUBSCRIPTION.
Elsevier hereby grants to the Subscriber the non-exclusive, non-transferable right to access and use the products and services identified in Schedule 1 (“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/Sites.
Authorized Users are the full-time and part-time students, faculty, staff and researchers of the Subscriber and individuals who are independent contractors or are employed by independent contractors of the Subscriber affiliated with the Subscriber’s locations listed on Schedule 2 (the “Sites”) and individuals using computer terminals within the library facilities at the Sites permitted by the Subscriber to access the Subscribed Products for purposes of personal research, education or other non-corporate use (“Walk-in Users”).
1.3 Authorized Uses.
Each Authorized User may:
- access, search, browse and view the Subscribed Products;
- print, download and store a reasonable portion of individual items from the Subscribed Products for the exclusive use of such Authorized User;
- incorporate links to the Subscribed Products on the Subscriber’s intranet and internet websites and in electronic coursepacks, reserves and course management systems and instructor websites, provided that the appearance of such links and/or statements accompanying such links will be changed as reasonably requested by Elsevier;
- provide print or electronic copies of individual items from the Subscribed Products to other Authorized Users and to third-party colleagues for their scholarly or research use;
- store individual journal articles from the ScienceDirect Subscribed Products in the private library of a social networking site for the Authorized User’s own personal use only;
- share individual journal articles from the ScienceDirect Subscribed Products with third party colleagues individually for their scholarly or research use;
- share individual journal articles from the ScienceDirect Subscribed Products with a limited number of third party colleagues as part of an invitation only working group on non-commercial platforms or tools, for personal, scholarly or research use; and
- access, search, browse, view, print, make electronic copies and store for the exclusive use of such Authorized User or, if the Authorized User is a librarian/information specialist, for the exclusive use of another Authorized User certain journal articles and book chapters from the ScienceDirect® online service that are not subscribed to as part of the Subscribed Products, with each twenty-four (24) hour access period for a selected article or chapter, a “Transaction”.
(i) may extract and index Data (as defined below) from the articles authored by Authorized Users included in the Subscribed Products, to index in the user interface of the Subscriber’s product by implementing both the SD Search API and the SD Article Entitlement API (see http://dev.elsevier.com/sd_apis.html) and store in perpetuity in the Subscriber’s secure database system that the Subscriber uses to collect, preserve and disseminate information about the intellectual output of the Subscriber’s institute(s) (“Institutional Repository”) and to publically display Snippets (as defined below), provided that:
(a) the display of any Data will at all times include (if available) the associated Digital Object Identifier (“DOI”), and
(b) links are incorporated in the Data to the relevant article landing page in the Subscribed Product from which such Data was extracted by which such link to the Subscribed Product is displayed more prominently than the links to other versions of the article, and
(c) the indexes only include Data and no other parts of the full text articles, and
(d) the Subscriber will provide on a monthly basis to Elsevier complete and accurate usage data reports on the Subscriber’s Institutional Repository usage activity in a mutually agreed upon format which will at a minimum specify preprint and author manuscripts usage, during the pilot period of six (6) months.
(ii) is obligated to remove illicit versions of full text articles upon Elsevier’s request and allow Elsevier to review the implementation of the Data into the Institutional Repository. Elsevier will have the right to suggest improvements to the display and ranking of the search results for the articles that are available in ScienceDirect.
“Data” will be limited to the following: index terms, bibliographic information, headers, references, digital object identifiers, footnotes, acknowledgements, keywords, author affiliation, Snippets (as defined below) and abstracts, or any other data when included, of the full text articles. Abstracts may only be displayed on the abstract records on the Subscriber data’s websites, all other services of the Institutional Repository, such as (but not limited to) alerts, e- mail services and API’s may only display Snippets but not abstracts.
“Snippets“ mean a first page PDF preview of the full text article or short contextually relevant query-dependent text or data which may include bibliographic metadata as well as a maximum of 120 words of query-dependent text from individual full text articles.
(iii) extract and index Affiliation Data (as defined below) from the Scopus® online service respecting published journal articles, abstracts, conference proceedings, technical reports, presentations/lectures, and other research and intellectual output as published for the Subscriber by its affiliated authors, to load in, make publicly accessible from at no charge, and store in perpetuity in, the Subscriber’s secure database system that Subscriber uses to collect, preserve and disseminate information about the intellectual output of the Subscriber’s institute(s) (“Institutional Repository”), provided that the display of any Affiliation Data will at all times include (if available) the associated Digital Object Identifier (“DOI”), and (ii) incorporate links in Affiliation Data to the relevant landing page in Scopus from which such Affiliation Data was extracted. “Affiliation Data” will be limited to the following bibliographic metadata: author name, author profile number, author country of residence, author affiliation, document title, document publication year, source title, volume, issue, pages, source and document type, publisher, ISSN, DOI, subject category (ASJC). CAS registration numbers, author contact information, author profiles, non-English language tags, chemical names and controlled vocabulary are excluded.
1.4 Restrictions on Use of Subscribed Products.
Except as expressly stated in this Agreement or otherwise permitted in writing by Elsevier, the Subscriber and its Authorized Users may not:
- abridge, modify, translate or create any derivative work based on the Subscribed Products, 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;
- 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;
- substantially or systematically reproduce, retain, redistribute or disseminate online the Subscribed Products; or
- post individual items from the Subscribed Products on social networking sites.
Authorized Users who are individuals who are independent contractors or are employed by independent contractors may use the Subscribed Products only for the purposes of the contracted research 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 or dissemination online of the Subscribed Products could materially and irreparably harm Elsevier and its suppliers.
Notwithstanding anything to the contrary contained in this Agreement, more extensive usage terms might be permitted for open access content in the Subscribed Products as identified in the individual journal article as stated in the applicable user (e.g. CC) license.
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 internet address set forth on Schedule 1 or as may be otherwise set forth herein.
2.2 Quality of Service.
Elsevier will 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.
2.4 Usage Data Reports.
Elsevier will make usage data reports on the usage activity of each Institution available as described at https://www.elsevier.com/sd_usage_reports.
SECTION 3. SUBSCRIBER PERFORMANCE OBLIGATIONS.
Access to the Subscribed Products will be authenticated by the use of Internet Protocol (“IP”) address(es) and/or usernames and passwords and/or a delegated authentication mechanism requiring at least two different credentials, as identified on Schedule 2. Distribution of usernames, passwords, credentials or otherwise providing remote access to the Subscribed Products by Authorized Users who are Walk-in Users is not permitted.
3.2 Protection from Unauthorized Access and
The Subscriber will use reasonable efforts to:
- limit access to and use of the Subscribed Products to Authorized Users and notify all Authorized Users of the usage restrictions set forth in this Agreement and that they must comply with such restrictions;
- issue any passwords or credentials used to access the Subscribed Products only to Authorized Users, not divulge any passwords or credentials to any third party, and notify all Authorized Users not to divulge any passwords or credentials to any third party;
- provide true, complete and accurate IP addresses, as identified on Schedule 2, (if any) for the exclusive use by the Subscriber (including, if requested by Elsevier, written confirmation by the relevant third party internet service provider) and proactively inform Elsevier of any changes to the Subscriber IP addresses, including the addresses no longer being used exclusively by the Subscriber; and
- promptly upon becoming aware of any unauthorized use of the Subscribed Products, inform Elsevier and take appropriate steps to end such activity 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 Consortium and relevant Institution(s) suspend the access from where the unauthorized use occurred upon notice to the Consortium and relevant Institution(s). The Consortium and relevant Institution(s) will not be liable for unauthorized use of the Subscribed Products by any Authorized Users provided that the unauthorized use did not result from the Consortium and relevant Institution(s)’s own negligence or willful misconduct and that the Consortium and relevant Institution(s) did not permit such unauthorized use to continue after having actual notice thereof. The Consortium and relevant Institution(s) will be responsible for the adherence to the terms and conditions of this Agreement by a third party provider the Consortium and relevant Institution(s) engages, in particular, if such third party provider supplies and manages IP addresses.
3.3 Compliance with Sanction
Elsevier reserves the right to deny access to the Subscribed Products to any person or entity who is the target of any sanctions or embargoes laws (hereinafter “Sanctions Laws”), and who does not fall under an exemption or for which a general license has been granted under the Sanctions Laws.
3.4 Security Requirements.
The Subscriber agrees that the Subscriber will have in place documented policies and procedures, which will be reviewed, and if appropriate, tested and updated, covering the administrative, physical and technical safeguards in place and relevant to the access, use, loss, alteration, disclosure, storage, destruction and control of information and which are measured against objective standards and controls. Such program shall comply with all applicable laws. The Subscriber shall promptly notify Elsevier if it determines that there has been a breach of the confidentiality or security of any confidential information provided hereunder and cooperate with Elsevier’s reasonable requests surrounding such breach including taking appropriate steps to end such activity and to prevent any recurrence.
SECTION 4. ELSEVIER WARRANTIES AND INDEMNITIES.
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.
Elsevier will 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 reasonably cooperate with Elsevier. This indemnity obligation will survive the termination of this Agreement.
EXCEPT FOR THE EXPRESS WARRANTIES AND INDEMNITIES STATED HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIBED PRODUCTS ARE PROVIDED “AS IS” AND ELSEVIER AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SUBSCRIBED PRODUCTS 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.
4.4 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 or loss of profits, arising out of or in connection with this Agreement, or will the liability of Elsevier and its suppliers to the Subscriber exceed a sum equal to the Fees paid by the Subscriber hereunder during the twelve (12) month period immediately preceding the date on which the claim arose, even if Elsevier or any supplier has been advised of the possibility of such liability or damages.