The Publisher will license the electronic access to its online publications (“Licensed Materials”), on the terms and conditions set out in this Licence subject to payment of the Fee. The rights granted under this Licence apply only to the Licensed Materials for which the Licensee has a current paid subscription (the Fee).
KEY DEFINITIONS
In this Licence, the following terms shall have the following meanings: -
Agent
a third party appointed by the Licensee to act on its behalf and undertake any or all of the Licensee’s obligations hereunder (if applicable)
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. Course pack use on commercially run courses, whether organised by the Licensee, or another third party, is considered commercial use and as such prohibited.
Course Packs
A collection or compilation of printed materials (e.g. book chapters, 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 materials (e.g. book chapters, 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.
Fee
The Fee set out in Schedule 1 or in new Schedules to this Licence which may be agreed by the parties from time to time.
Learning Object
A self-contained unit of learning, education or training comprising information content, learning activities and metadata designed to explain a stand-alone learning objective.
Library Premises
The physical premises of the library or libraries operated by the Licensee, as specified in Schedule 2.
Licensed Materials
The electronic material as set out in Schedule 1 or in new Schedules to this Licence that may be agreed by the parties from time to time [including such ancillary materials that are owned or controlled by the Publisher and produced specifically to complement, supplement and support the said electronic material or any part of the same including podcasts, data sets, blogs, images, music, games, tests and quizzes].
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.
Single Institution
An institution within one metropolitan boundary with a single billing address for all subscription purchases.
Subscription Period
That period nominally covered by the volumes and issues of the Licensed Material, regardless of the actual date of publication, being the period ending 31 December following the date of this Licence and each twelve-month period thereafter, unless otherwise specified in Schedule 1.
Text Mining
a machine process by which information may be derived by identifying patterns and trends within natural language through text categorisation, statistical pattern recognition, concept or sentiment extraction, and the association of natural language with indexing terms.
Virtual Learning Environment
A software system designed to manage and support teaching and learning in education, including systems variously referred to as Course Management Systems, Learning Management Systems, Learning Support Systems, Managed Learning Environments, and similar names.
- COPYRIGHT
All copyright in the Licensed Materials and the documents contained in the Licensed content is owned by the Publisher and/or its respective licensors. All rights not expressly granted in this Licence are reserved to the copyright owners.
1.2
Subject to the Copyright, Designs and Patents Act 1988, the use of Licensed Materials supplied by the Publisher is limited to the rights detailed in clause 3.
- AGREEMENT
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 Licence, and the Licensee agrees to pay the Fee.
2.2
This Licence shall commence at the beginning of the Subscription Period, for each of the Licensed Materials as set out in Schedule 1 or in new Schedules to this Licence that may be added subsequently; and shall automatically terminate at the end of the Subscription Period, unless the parties have previously agreed to renew it. Any payment of the Fee by the Licensee or its Agent for the subsequent Subscription Period will constitute the renewal of this License.
2.3
Access is granted to Authorised Users and to Single Institutions only, as defined.
- USAGE RIGHTS
3.1
The Licensee, subject to clause 6 below, may:3.1.1 Make single copies of the Licensed Materials on the Licensee’s server on the Secure Network for use in temporary Electronic Reserves.
3.1.2 Make such temporary local electronic copies by means of cacheing or mirrored storage of all or part of the Licensed Materials as are necessary solely to ensure efficient use by Authorised Users and not to make available to Authorised Users duplicate copies of the Licensed Material.
3.1.3 Allow Authorised Users to have access to the Licensed Materials from the Server via the Secure Network.
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 Materials for the purpose of internal marketing or testing or for training Authorised Users or groups of Authorised Users.
3.1.6 Provide print or electronic copies of all or any part of the Licensed Work(s) to national or international regulatory authorities for the purposes of or in anticipation of regulatory approval and/or trademark applications or other regulatory purposes in respect of the Licensee’s products or services.
3.2
Authorised Users may, subject to clause 6 below:3.2.1 Search, view, retrieve and display the Licensed Materials.
3.2.2 Print a copy or download and save individual articles or items of the Licensed Materials for personal use but not for Commercial Use.
3.2.3 Use individual parts of the Licensed Materials within Learning Objects for the Licensee’s teaching, learning or training purposes.
3.2.4 Use the Licensed Materials to perform and engage in text/data mining activities for academic research and other educational purposes and allow Authorised Users to mount, load and integrate the results on a Secure Network and use the results in accordance with this Licence, provided that the Publisher is notified in writing in advance of the project to ensure they can provide appropriate technical assistance and maintain a log of projects.
3.2.5 Distribute a copy of individual articles or items of the Licensed Materials in print or electronic form to other Authorised Users but only for the purposes of research and private study; 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.
3.2.6 Download a copy of individual articles or items of the Licensed Materials and share the same with Authorised Users or other individual scholars collaborating in a specific research project with such Authorised Users provided that it is held and accessibly within a closed network that is not accessible to any person not directly involved in such collaboration and provided that it is deleted from such network immediately upon completion of the collaboration.
3.3
Nothing in this Licence shall in any way exclude, modify or affect any of the Licensee’s statutory rights under the copyright laws of the UK.
- SUPPLY OF COPIES TO OTHER LIBRARIES
4.1
Interlibrary loan (ILL): The Licensee may, subject to clause 6 below, supply to an Authorised User of another library a copy of an individual document being part of the Licensed Materials by post, fax or electronic transmission via the Internet or otherwise, for the purposes of research or private study and not for Commercial Use. ILL is permitted under the CONTU (National Commission on New Technological Uses of Copyrighted Works) guidelines.
- COURSE PACKS AND ELECTRONIC RESERVE
5.1
The Licensee may, subject to clause 6 below, incorporate parts of the Licensed Materials in printed Course Packs and Electronic Reserve collections and in Virtual Learning Environments 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 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.
- PROHIBITED USES
6.1
Neither the Licensee nor Authorised Users may:6.1.1 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;
6.1.2 systematically make print or electronic copies of multiple extracts or make multiple copies of any part of the Licensed Materials for any purpose other than expressly permitted by this Licence;
6.1.3 mount or distribute any part of the Licensed Material on any electronic system or network, including without limitation the Internet and the World Wide Web, other than the Secure Network, except where expressly permitted by this Licence under clause 3.2.6;
6.1.4 reverse engineer, decompile, alter, abridge or otherwise modify the Licensed Materials or any part of them for any purpose whatsoever, except as expressly provided in this License.
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 Materials for any Commercial Use;
6.2.2 systematically distribute the whole or any part of the Licensed Materials to anyone other than Authorised Users;
6.2.3 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 Licence;
6.2.4 alter, abridge, adapt or modify the Licensed Materials, except to the extent necessary to make them perceptible on a computer screen to Authorised Users. For the avoidance of doubt, no alteration of the words or their order is permitted.
- DATA PROTECTION AND MONITORING
7.1
Where Licensee supplies the Publisher with any information, for example, during the subscription process, the following shall apply:7.1.1 Licensee authorises the Publisher to use, store or otherwise process any personal information which relates to and/or identifies Licensee and/or Authorised Users, (including, but not limited to, names and addresses), to the extent reasonably necessary for the Publisher, its sub-contractors or other third parties to make available and/or to provide the Licensed Materials to Licensee and/or to Authorised Users.
7.1.2 Where Licensee obtains Licensed Materials through the Publisher’s websites then Publisher may collect information about Licensee’s buying behaviour and if it sends Publisher personal correspondence such as e-mails or letters then it may collect this information into a file specific to Licensee (together, the various purposes set out in this clause 7.1 shall be known as the “Purposes”). All such information collected by Publisher shall be referred to in these Terms as “Personal Information”.
7.1.3 By entering into this Agreement, Licensee agrees to the processing and disclosure of the Personal Information for the Purposes.
7.2
Publisher has the right to monitor use of and access to the Online Services in order to verify compliance with this Agreement and/or any Licensee’s operating rules and/or to satisfy any law, regulation or authorised government request.
- PUBLISHER’S UNDERTAKINGS
8.1
The Publisher warrants to the Licensee that the Licensed Materials used as contemplated by this Licence 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 survive the termination of this Licence for any reason. This indemnity shall not apply if the Licensee has amended the Licensed Materials in any way not permitted by this Licence.
8.2
The Publisher shall:8.2.1 make the Licensed Materials available to the Licensee from the Server via the Internet. Access shall be authenticated by Internet Protocol Address, OpenAthens or Shibboleth as specified in Schedule 1. The Publisher will notify the Licensee at least sixty (60) days in advance of any anticipated specification change applicable to the Licensed Materials. If the changes render the Licensed Materials less useful in a material respect to the Licensee, the Licensee may within thirty (30) days of such notice treat such changes as a breach of this Licence under clause 11.1.2.
8.2.2 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. 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.
8.2.3 provide the Licensee, within thirty (30) days of the date of this Licence, with information sufficient to enable the Licensee to access the Licensed Material.
8.2.4 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.
8.2.5 use reasonable endeavours to make the Licensed Materials available to the Licensee and to Authorised Users at all times and on a twenty-four 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.
8.3
The Publisher reserves the right at any time:8.3.1 to make changes or correction and to alter, update or upgrade any aspect of the Licensed Materials;
8.3.2 to vary the technical specification of any of the Licensed Materials or of any software included therein; and
8.3.3 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.
8.4
Where the Publisher exercises its rights to withdraw any substantial part of the Licensed Materials under clause 8.3, if the withdrawal represents more than ten per cent (10%) of the book, journal or other publication in which it appeared, the Publisher shall refund to the Licensee that part of the Fee that is in proportion to the amount of material withdrawn and the remaining un-expired portion of the Subscription Period.
8.5
The Publisher undertakes to use reasonable endeavours to provide or to make arrangements for a third party (via LOCKSS and CLOCKSS) to provide an archive of the Licensed Materials for the purposes of long term preservation of the Licensed Materials, and to permit Authorised Users to access such archive after termination of this Licence.
8.6
Collection and analysis of data on the usage of the Licensed Materials will assist both the Publisher and the Licensee to understand the impact of this Licence. The Publisher shall provide to the Licensee or facilitate the collection and provision to the Licensee and the Publisher by the Licensee of such usage data on the number of articles downloaded, by journal title, on an annual basis for the Publisher’s and the Licensee’s private internal use only. Such usage data shall be compiled in a manner consistent with applicable privacy and data protection laws and as may be agreed between the parties from time to time, and the anonymity of individual users and the confidentiality of their searches shall be fully protected. In the case that the Publisher assigns its rights to another party under clause 12.3, the Licensee may at its discretion require the assignee either to keep such usage information confidential or to destroy it.
8.7
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 MATERIALS, MERCHANTABILITY OR FITNESS OF USE FOR A PARTICULAR PURPOSE. THE LICENSED MATERIALS ARE SUPPLIED ‘AS IS’.
8.8
EXCEPT AS PROVIDED IN CLAUSE 8.1, 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 LICENCE SHALL IN NO CIRCUMSTANCES EXCEED THE FEE PAID BY 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 ACTION ARISES.
- LICENSEE’S UNDERTAKINGS
9.1
The Licensee shall:9.1.1 use reasonable endeavours to ensure that all Authorised Users are aware of the importance of respecting the intellectual property rights in the Licensed Materials and of the terms and conditions of this Licence, and use reasonable endeavours to notify Authorised Users of the terms and conditions of this Licence and take steps to protect the Licensed Materials from unauthorised use or other breach of this Licence;
9.1.2 use 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 any recurrence;
9.1.3 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;
9.1.4 provide the Publisher, within thirty (30) days of the date of this Agreement, with information sufficient to enable the Publisher to provide access to the Licensed Material in accordance with its obligation under clause 8.2.3. 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.
9.1.5 keep full and up-to-date records of all Authorised Users and their access details and IP addresses and 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 Materials as contemplated by this Licence. The Licensee is prohibited from making agreements for access to the ERS publications online with individuals, organisations, vendors, affiliates, or partners, which are not parts of the same institution purchasing this subscription. The Licensee affirms that all IP addresses or other access parameters in the range listed for authorisation are specifically controlled by the institution for workstations under its administrative control and for the use of individuals who meet the Authorised User definition. The Licensee is responsible for maintaining the list of IP addresses or other access parameters of all Authorised Users.
9.2 NOTHING IN THIS LICENCE SHALL MAKE THE LICENSEE LIABLE FOR BREACH OF THE TERMS OF THE LICENCE BY ANY AUTHORISED USER PROVIDED THAT THE LICENSEE DID NOT CAUSE, KNOWINGLY ASSIST OR CONDONE THE CONTINUATION OF SUCH BREACH AFTER BECOMING AWARE OF AN ACTUAL BREACH HAVING OCCURRED.
- UNDERTAKINGS BY BOTH PARTIES
Each party shall use its best endeavours to safeguard the intellectual property, confidential information and proprietary rights of the other party.
- TERM AND TERMINATION
In addition to automatic termination (unless renewed) under clause 2.2, this Licence shall be terminated:11.1.1 if the Licensee wilfully defaults in making payment of the Fee as provided in this Licence and fails to remedy such default within thirty (30) days of notification in writing by the Publisher;
11.1.2 if the Publisher commits a material or persistent breach of any term of this Licence and fails to remedy the breach (if capable of remedy) within thirty (30) days of notification in writing by the Licensee;
11.1.3 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;
11.1.4 if either party becomes insolvent or becomes subject to receivership, liquidation or similar external administration.
11.2
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 8.5.
11.3
On termination of this Licence for cause, as specified in clauses 11.1.1 and 11.1.3, the Licensee shall immediately cease to distribute or make available the Licensed Materials to Authorised Users and shall return to the Publisher or destroy all Licensed Materials locally mounted pursuant to clause 3.1.1 and 3.1.2 except as provided in clause 8.5.
- GENERAL
12.1
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.
12.2
Alterations to this Licence and to the Schedules to this Licence are only valid if they are recorded in writing and signed by both parties.
12.3
This Licence 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 Licence 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.
12.4
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 Licence are maintained.
12.5
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 address of the addressee as set out in this Licence 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 fourteen (14) days of posting.
12.6
Neither party’s delay or failure to perform any provision of this Licence, 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 Licence.
12.7
The invalidity or un-enforceability of any provision of this Licence shall not affect the continuation or enforceability of the remainder of this Licence.
12.8
Either party’s waiver, or failure to require performance by the other, of any provision of this Licence 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.
12.9
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.
This page was updated on 29 October, 2018